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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

FORM 20-F

(Mark One)
¨	REGISTRATION STATEMENT PURSUANT TO SECTION 12(b) OR (g) OF THE SECURITIES EXCHANGE ACT OF 1934	
OR
 
x	ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934	
For the fiscal year ended December 31, 2013
OR
 
¨	TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934	
OR
 
¨	SHELL COMPANY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934	
Date of event requiring this shell company report
For the transition period from                    to                     
Commission file number 1-14946

CEMEX, S.A.B. de C.V.
(Exact name of Registrant as specified in its charter)

CEMEX PUBLICLY TRADED STOCK CORPORATION WITH VARIABLE CAPITAL
(Translation of Registrant’s name into English)
United Mexican States
(Jurisdiction of incorporation or organization)
Avenida Ricardo Margáin Zozaya #325, Colonia Valle del Campestre, Garza García, Nuevo León,
México 66265
(Address of principal executive offices)
Ramiro G. Villarreal Morales,
+52 81 8888-8888, +52 81 8888-4399,
Avenida Ricardo Margáin Zozaya #325, Colonia Valle del Campestre, Garza García, Nuevo León,
México 66265
(Name, Telephone, E-mail and/or Facsimile number and Address of Company Contact Person)
Securities registered or to be registered pursuant to Section 12(b) of the Act.

Title of each class	 	Name of each exchange on which registered	
Ordinary Participation Certificates (Certificados de Participación Ordinarios), or CPOs, each CPO representing two Series A shares and one Series B share, traded in the form of American Depositary Shares, or ADSs, each ADS representing ten CPOs.	 	New York Stock Exchange	

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Securities registered or to be registered pursuant to Section 12(g) of the Act.
None
(Title of Class)
Securities for which there is a reporting obligation pursuant to Section 15(d) of the Act.
None
(Title of Class)

Indicate the number of outstanding shares of each of the issuer’s classes of capital or common stock as of the close of the period covered by the annual report.
11,395,982,596 CPOs
22,847,063,194 Series A shares (including Series A shares underlying CPOs)
11,423,531,597 Series B shares (including Series B shares underlying CPOs)
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.    Yes   x     No   ¨
If this report is an annual or transition report, indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934.    Yes   ¨     No   x
Note—Checking the box above will not relieve any registrant required to file reports pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 from their obligations under those sections.
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.    Yes   x     No   ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). N/A
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act. (Check one):

Large accelerated filer  x	 	Accelerated filer  ¨	  	Non-accelerated filer  ¨	
Indicate by check mark which basis of accounting the registrant has used to prepare the financial statements included in this filing:

U.S. GAAP  ¨	 	International Financial Reporting Standards as issued
by the International Accounting Standards Board  x	  	Other  ¨	
If “Other” has been checked in response to the previous question, indicate by check mark which financial statement item the registrant has elected to follow.    Item 17   ¨     Item 18   ¨
If this is an annual report, indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).    Yes   ¨     No   x

 

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TABLE OF CONTENTS
PART I

Item 1—Identity of Directors, Senior Management and Advisors	  	 	3	  	
Item 2—Offer Statistics and Expected Timetable	  	 	3	  	
Item 3—Key Information	  	 	3	  	
Summary of Most Important Transactions since the 2009 Refinancing	  	 	3	  	
Risk Factors	  	 	6	  	
Mexican Peso Exchange Rates	  	 	26	  	
Selected Consolidated Financial Information	  	 	27	  	
Item 4—Information on the Company	  	 	31	  	
Business Overview	  	 	31	  	
Geographic Breakdown of Net Sales for the year ended December 31, 2013	  	 	34	  	
Breakdown of Net Sales by Product for the year ended December 31, 2013	  	 	34	  	
Our Business Strategy	  	 	34	  	
Our Products	  	 	42	  	
User Base	  	 	48	  	
Our Corporate Structure	  	 	48	  	
Our Trading Operations	  	 	80	  	
Item 4A—Unresolved Staff Comments	  	 	105	  	
Item 5—Operating and Financial Review and Prospects	  	 	105	  	
Cautionary Statement Regarding Forward-Looking Statements	  	 	105	  	
Overview	  	 	106	  	
Critical Accounting Policies	  	 	107	  	
Results of Operations	  	 	117	  	
Selected Consolidated Statement of Operations Data	  	 	118	  	
Year Ended December 31, 2013 Compared to Year Ended December 31, 2012	  	 	119	  	
Year Ended December 31, 2012 Compared to Year Ended December 31, 2011	  	 	133	  	
Liquidity and Capital Resources	  	 	147	  	
Research and Development, Patents and Licenses, etc.	  	 	158	  	
Trend Information	  	 	159	  	
Summary of Material Contractual Obligations and Commercial Commitments	  	 	159	  	
Off-Balance Sheet Arrangements	  	 	165	  	
Qualitative and Quantitative Market Disclosure	  	 	165	  	
Investments, Acquisitions and Divestitures	  	 	170	  	
Recent Developments	  	 	171	  	
Item 6—Directors, Senior Management and Employees	  	 	174	  	
Board Practices	  	 	182	  	
Compensation of CEMEX, S.A.B. de C.V.’s Directors and Members of Our Senior Management	  	 	184	  	
Employees	  	 	185	  	
Share Ownership	  	 	187	  	
Item 7—Major Shareholders and Related Party Transactions	  	 	187	  	
Major Shareholders	  	 	187	  	
Related Party Transactions	  	 	188	  	
Item 8—Financial Information	  	 	189	  	
Consolidated Financial Statements and Other Financial Information	  	 	189	  	
Legal Proceedings	  	 	189	  	
Dividends	  	 	189	  	
Significant Changes	  	 	190	  	
Item 9—Offer and Listing	  	 	190	  	
Market Price Information	  	 	190	  	
Item 10—Additional Information	  	 	191	  	
Articles of Association and By-laws	  	 	191	  	

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Material Contracts	  	 	201	  	
Exchange Controls	  	 	202	  	
Taxation	  	 	202	  	
Documents on Display	  	 	206	  	
Item 11—Qualitative and Quantitative Disclosures About Market Risk	  	 	206	  	
Item 12—Description of Securities Other than Equity Securities	  	 	207	  	
Item 12A—Debt Securities	  	 	207	  	
Item 12B—Warrants and Rights	  	 	207	  	
Item 12C—Other Securities	  	 	207	  	
Item 12D—American Depositary Shares	  	 	207	  	
Depositary Fees and Charges	  	 	207	  	
Depositary Payments for the year ended December 31, 2013	  	 	207	  	
 	 	
PART II	  	 	 	 	
 	 	
Item 13—Defaults, Dividend Arrearages and Delinquencies	  	 	208	  	
Item 14—Material Modifications to the Rights of Security Holders and Use of Proceeds	  	 	208	  	
Item 15—Controls and Procedures	  	 	208	  	
Disclosure Controls and Procedures	  	 	208	  	
Management’s Annual Report on Internal Control Over Financial Reporting	  	 	208	  	
Attestation Report of the Registered Public Accounting Firm	  	 	208	  	
Changes in Internal Control Over Financial Reporting	  	 	208	  	
Item 16—[RESERVED]	  	 	209	  	
Item 16A—Audit Committee Financial Expert	  	 	209	  	
Item 16B—Code of Ethics	  	 	209	  	
Item 16C—Principal Accountant Fees and Services	  	 	209	  	
Audit Committee Pre-Approval Policies and Procedures	  	 	209	  	
Item 16D—Exemptions from the Listing Standards for Audit Committees	  	 	210	  	
Item 16E—Purchases of Equity Securities by the Issuer and Affiliated Purchasers	  	 	210	  	
Item 16F—Change in Registrant’s Certifying Accountant	  	 	210	  	
Item 16G—Corporate Governance	  	 	210	  	
Item 16H—Mine Safety Disclosure	  	 	213	  	
 	 	
PART III	  	 	 	 	
 	 	
Item 17—Financial Statements	  	 	214	  	
Item 18—Financial Statements	  	 	214	  	
Item 19—Exhibits	  	 	214	  	

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INTRODUCTION
CEMEX, S.A.B. de C.V. is incorporated as a publicly traded stock corporation with variable capital (sociedad anónima bursátil de capital variable ) organized under the laws of the United Mexican States, or Mexico. Except as the context otherwise may require, references in this annual report to “CEMEX,” “we,” “us” or “our” refer to CEMEX, S.A.B. de C.V. and its consolidated entities. See note 2 to our 2013 audited consolidated financial statements included elsewhere in this annual report.
PRESENTATION OF FINANCIAL INFORMATION
Our consolidated financial statements included elsewhere in this annual report have been prepared in accordance with International Financial Reporting Standards, or IFRS, as issued by the International Accounting Standards Board, or IASB.
The regulations of the Securities and Exchange Commission, or SEC, do not require foreign private issuers that prepare their financial statements on the basis of IFRS (as published by the IASB) to reconcile such financial statements to U.S. GAAP. As such, while CEMEX, S.A.B. de C.V. has in the past reconciled its consolidated financial statements prepared in accordance with Mexican Financial Reporting Standards, or MFRS, to U.S. GAAP, those reconciliations are no longer presented in CEMEX, S.A.B. de C.V.’s filings with the SEC.
References in this annual report to “U.S.$” and “Dollars” are to U.S. Dollars, references to “€” are to Euros, references to “£” and “Pounds” are to British Pounds, references to “¥” and “Yen” are to Japanese Yen, and, unless otherwise indicated, references to “Ps,” “Mexican Pesos” and “Pesos” are to Mexican Pesos. References to “billion” means one thousand million. The Dollar amounts provided below, unless otherwise indicated elsewhere in this annual report, are translations of Peso amounts at an exchange rate of Ps13.05 to U.S.$1.00, the CEMEX accounting rate as of December 31, 2013. However, in the case of transactions conducted in Dollars, we have presented the Dollar amount of the transaction and the corresponding Peso amount that is presented in our consolidated financial statements. These translations have been prepared solely for the convenience of the reader and should not be construed as representations that the Peso amounts actually represent those Dollar amounts or could be converted into Dollars at the rate indicated. Between January 1, 2013 and April 17, 2014, the Peso appreciated by approximately 0.3% against the Dollar, based on the noon buying rate for Pesos. See “Item 3—Key Information—Selected Consolidated Financial Information.”
The noon buying rate for Pesos on December 31, 2013 was Ps13.10 to U.S.$1.00 and on April 17, 2014 was Ps13.06 to U.S.$1.00.
References in this annual report to total debt plus other financial obligations do not include debt and other financial obligations of ours held by us. See notes 2L and 16B to our 2013 audited consolidated financial statements included elsewhere in this annual report for a detailed description of our other financial obligations. Total debt plus other financial obligations differs from the calculation of debt under our Facilities Agreement described herein.

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CERTAIN TECHNICAL TERMS
When used herein, the terms set forth below mean the following:
 
 	•	 	Aggregates are sand and gravel, which are mined from quarries. They give ready-mix concrete its necessary volume and add to its overall strength. Under normal circumstances, one cubic meter of fresh concrete contains two metric tons of gravel and sand.	
 
 	•	 	Clinker is an intermediate cement product made by sintering limestone, clay, and iron oxide in a kiln at around 1,450 degrees Celsius. One metric ton of clinker is used to make approximately 1.1 metric tons of gray portland cement.	
 
 	•	 	Gray Portland Cement, used for construction purposes, is a hydraulic binding agent with a composition by weight of at least 95% clinker and 0% to 5% of a minor component (usually calcium sulfate) which, when mixed with sand, stone or other aggregates and water, produces either concrete or mortar.	
 
 	•	 	Petroleum coke (pet coke) is a byproduct of the oil refining coking process.	
 
 	•	 	Ready-mix concrete is a mixture of cement, aggregates, and water.	
 
 	•	 	Tons means metric tons. One metric ton equals 1.102 short tons.	
 
 	•	 	White cement is a specialty cement used primarily for decorative purposes.	

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PART I
Item 1—Identity of Directors, Senior Management and Advisors
Not applicable.
Item 2—Offer Statistics and Expected Timetable
Not applicable.
Item 3—Key Information
Summary of Most Important Transactions since the 2009 Refinancing
On August 14, 2009, we entered into a financing agreement (the “2009 Financing Agreement”), which extended the final maturities of approximately U.S.$15 billion in syndicated and bilateral bank facilities and private placement notes to February 14, 2014. On July 5, 2012, we launched an exchange offer and consent request (the “Exchange Offer and Consent Request”), to eligible creditors under the 2009 Financing Agreement pursuant to which eligible creditors were requested to consent to certain amendments to the 2009 Financing Agreement, including the deletion of all mandatory prepayment provisions, the release of the collateral securing the 2009 Financing Agreement and other obligations secured by such collateral, and the deletion of certain representations, information undertakings, financial covenants, general undertakings and events of default thereunder (together, the “Amendment Consents”). In addition, we offered to exchange the indebtedness owed to such creditors under the 2009 Financing Agreement that were eligible to participate in the Exchange Offer and Consent Request (the “Participating Creditors”) for (i) new loans (or, in the case of the private placement notes, new private placement notes) or (ii) up to U.S.$500 million of our 9.50% Senior Secured Notes due 2018 (the “September 2012 Notes”), in each case, in transactions exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”).
On September 17, 2012, we successfully completed the refinancing transactions contemplated by the Exchange Offer and Consent Request (collectively, the “Refinancing Transaction”), and we and certain of our subsidiaries entered into (a) an amendment and restatement agreement, dated September 17, 2012 (the “Amendment and Restatement Agreement”), pursuant to which the Amendment Consents with respect to the 2009 Financing Agreement were given effect, and (b) a facilities agreement, dated September 17, 2012 (as amended from time to time, the “Facilities Agreement”), pursuant to which we were deemed to borrow loans from those Participating Creditors participating in the Exchange Offer and Consent Request in principal amounts equal to the principal amounts of indebtedness subject to the 2009 Financing Agreement that was extinguished by such Participating Creditors. As a result of the Refinancing Transaction, participating creditors received (i) approximately U.S.$6.155 billion in aggregate principal amount of new loans and new private placement notes and (ii) U.S.$500 million aggregate principal amount of the September 2012 Notes. In addition, approximately U.S.$525 million aggregate principal amount of loans and private placement notes remained outstanding under the 2009 Financing Agreement as of September 17, 2012. We currently have no loans or private placement notes outstanding under the 2009 Financing Agreement as a result of subsequent prepayments made in accordance with the Facilities Agreement.
As part of the Facilities Agreement, we pledged under pledge agreements or transferred to a trustee under a security trust substantially all the shares of CEMEX México, S.A. de C.V., or CEMEX México, Cemex Operaciones México, S.A. de C.V., or Cemex Operaciones México (formerly known as Centro Distribuidor de Cemento, S.A. de C.V., as successor by merger to Mexcement Holdings, S.A. de C.V. and Corporación Gouda, S.A. de C.V.), CEMEX TRADEMARKS HOLDING Ltd., New Sunward Holding B.V., or New Sunward, and CEMEX España, S.A., or CEMEX España, as collateral (together, the “Collateral”), and all proceeds of such Collateral, to secure our payment obligations under the Facilities Agreement and under several other financing arrangements. These subsidiaries whose shares were pledged or transferred as part of the Collateral collectively own, directly or indirectly, substantially all our operations worldwide.
 
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Since 2009, we have completed a number of capital markets transactions and asset disposals, the majority of the proceeds of which have been used to repay indebtedness, to improve our liquidity position and for general corporate purposes. Such capital market transactions consisted of:
 
 	•	 	in September 2009, the sale of a total of 1,495 million CPOs, directly or in the form of ADSs, in a global offering for approximately U.S.$1.8 billion in net proceeds;	
 
 	•	 	in December 2009, the issuance by CEMEX, S.A.B. de C.V. of approximately Ps4.1 billion (approximately U.S.$315 million) of 10% mandatory convertible notes due 2019 (the “Mandatory Convertible Securities”), in exchange for promissory notes previously issued by CEMEX, S.A.B. de C.V. in the Mexican capital markets ( Certificados Bursátiles ) (“CBs”);	
 
 	•	 	in December 2009 and January 2010, the issuance by CEMEX Finance LLC of U.S.$1.75 billion aggregate principal amount of its 9.50% U.S. Dollar-Denominated Senior Secured Notes due 2016 (the “December 2009 U.S. Dollar Notes”) and €350 million aggregate principal amount of its 9.625% Euro-Denominated Senior Secured Notes due 2017 (the “December 2009 Euro Notes” and, together with the December 2009 U.S. Dollar Notes, the “December 2009 Notes”);	
 
 	•	 	in March 2010, the issuance by CEMEX, S.A.B. de C.V. of U.S.$715 million aggregate principal amount of its 4.875% Convertible Subordinated Notes due 2015 (the “2010 Optional Convertible Subordinated Notes”);	
 
 	•	 	in May 2010, the issuance by CEMEX España, acting through its Luxembourg branch, of U.S.$1,067,665,000 aggregate principal amount of its 9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 (the “May 2010 U.S. Dollar Notes”) and €115,346,000 aggregate principal amount of its 8.875% Euro-Denominated Senior Secured Notes due 2017 (the “May 2010 Euro Notes” and, together with the May 2010 U.S. Dollar Notes, the “May 2010 Notes”), in exchange for the U.S. Dollar-Denominated 6.196% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C5 Capital (SPV) Limited, U.S. Dollar-Denominated 6.64% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C8 Capital (SPV) Limited, U.S. Dollar-Denominated 6.722% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C10 Capital (SPV) Limited and Euro-Denominated 6.277% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C10-EUR Capital (SPV) Limited (collectively, the “Perpetual Debentures”), pursuant to a private placement exchange offer directed to the holders of Perpetual Debentures;	
 
 	•	 	in January 2011, the issuance by CEMEX, S.A.B. de C.V. of U.S.$1.0 billion aggregate principal amount of its 9.0% Senior Secured Notes due 2018 (the “January 2011 Notes”);	
 
 	•	 	in March 2011, the issuance by CEMEX España, acting through its Luxembourg branch, of U.S.$125,331,000 aggregate principal amount of its 9.25% Senior Secured Notes due 2020 (the “Additional May 2010 Notes”);	
 
 	•	 	in March 2011, the issuance by CEMEX, S.A.B. de C.V. of U.S.$1,667.5 million aggregate principal amount of its 3.25% Convertible Subordinated Notes due 2016 and 3.75% Convertible Subordinated Notes due 2018 (together, the “2011 Optional Convertible Subordinated Notes”);	
 
 	•	 	in April 2011, the issuance by CEMEX, S.A.B. de C.V. of U.S.$800 million aggregate principal amount of its Floating Rate Senior Secured Notes due 2015 (the “April 2011 Notes”);	
 
 	•	 	in July 2011, the issuance by CEMEX, S.A.B. de C.V. of U.S.$650 million aggregate principal amount of its 9.000% Senior Secured Notes due 2018 (the “Additional January 2011 Notes”);	
 
 	•	 	in March 2012, the issuance by CEMEX España, acting through its Luxembourg branch, of U.S.$703,861,000 aggregate principal amount of its 9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and €179,219,000 aggregate principal amount of its 9.875% Euro-Denominated Senior Secured Notes Due 2019 (together, the “March 2012 Notes”), in exchange for Perpetual Debentures and 4.75% Notes due 2014 (the “Eurobonds”) issued by CEMEX Finance Europe B.V., a special purpose vehicle and wholly-owned subsidiary of CEMEX España, pursuant to separate private placement exchange offers directed to the holders of Perpetual Debentures and Eurobonds;	
 
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 	•	 	in October 2012, the issuance by CEMEX Finance LLC of U.S.$1.5 billion aggregate principal amount of its 9.375% Senior Secured Notes due 2022 (the “October 2012 Notes”);	
 
 	•	 	in November 2012, CEMEX Latam Holdings, S.A. (“CEMEX Latam”), a then wholly-owned subsidiary of CEMEX España, completed the sale of newly issued common shares in a concurrent public offering to investors in Colombia and a private placement to eligible investors outside of Colombia (together, the “CEMEX Latam Offering”), representing approximately 26.65% of CEMEX Latam’s outstanding common shares. CEMEX Latam’s common shares are listed on the Colombian Stock Exchange ( Bolsa de Valores de Colombia S.A. ). CEMEX Latam used the net proceeds from the offering to repay a portion of the indebtedness owed to us, which we used for general corporate purposes, including the repayment of indebtedness. CEMEX Latam is the holding company for CEMEX’s operations in Brazil, Colombia, Costa Rica, Guatemala, Nicaragua, Panama and El Salvador. As of December 31, 2013, CEMEX España owned approximately 73.35% of CEMEX Latam’s outstanding common shares, excluding shares held in treasury;	
 
 	•	 	in March 2013, the issuance by CEMEX S.A.B. de C.V. of U.S.$600 million aggregate principal amount of its 5.875% Senior Secured Notes due 2019 (the “March 2013 Notes”);	
 
 	•	 	in August 2013, the issuance by CEMEX S.A.B. de C.V. of U.S.$1.0 billion aggregate principal amount of its 6.5% Senior Secured Notes due (the “August 2013 Notes”); and	
 
 	•	 	in October 2013, the issuance by CEMEX S.A.B. de C.V. of U.S.$1.0 billion aggregate principal amount of its 7.25% Senior Secured Notes due 2021 (the “October 2013 Fixed Rate Notes”) and U.S.$500 million aggregate amount of its Floating Rate Senior Secured Notes due 2018 (the “October 2013 Floating Rate Notes” and, together with the October 2013 Fixed Rate Notes (the “October 2013 Notes”).	
As of December 31, 2013, our total debt plus other financial obligations were Ps230,298 million (U.S.$17,647 million) (principal amount Ps235,688 million (U.S.$18,060 million)), which does not include approximately Ps6,223 million (U.S.$477 million) of dual-currency notes underlying the Perpetual Debentures (collectively, the “Perpetual Notes”), but which does include our debt subject to the Facilities Agreement, which was approximately Ps54,024 million (U.S.$4,140 million) (principal amount Ps55,147 million (U.S.$4,226 million)).
Since the beginning of 2014, we have engaged in the following additional capital market transactions:
 
 	•	 	On February 28, 2014, CEMEX, S.A.B. de C.V. entered into private conversion agreements with certain institutional holders of its 2010 Optional Convertible Subordinated Notes pursuant to which such holders converted U.S.$280,387,000 in aggregate principal amount of the 2010 Optional Convertible Subordinated Notes in exchange for approximately 27.73 million of CEMEX, S.A.B. de C.V.’s ADSs (the “Private Inducements”). Following the closing of the Private Inducements in March 2014, U.S.$434,613,000 aggregate principal amount of the 2010 Optional Convertible Subordinated Notes remained outstanding.	
 
 	•	 	On March 5, 2014, CEMEX Finance Europe B.V. repaid the remaining €247,442,000 aggregate principal amount outstanding of its Eurobonds at their maturity (the “Eurobond Repayment”) using a portion of the proceeds from the October 2013 Notes.	
 
 	•	 	On April 1, 2014, CEMEX Finance LLC issued U.S.$1.0 billion aggregate principal amount of its 6.000% U.S. Dollar-Denominated Senior Secured Notes due 2024 (the “April 2014 U.S. Dollar Notes”) and €400 million aggregate principal amount of its 5.250% Euro-Denominated Senior Secured Notes due 2021 (the “April 2014 Euro Notes” and, together with the April 2014 U.S. Dollar Notes, the “April 2014 Notes”). The net proceeds from the offering of the April 2014 U.S. Dollar Notes of approximately U.S.$995 million and the offering of the April 2014 Euro Notes of approximately €398 million were used to fund the April 2014 Tender Offer (as defined below) and the December 2009 Euro Notes Redemption (as defined below), with the remainder to be used for general corporate purposes, including to fund May 2010 Euro Notes Redemption (as defined below).	
 
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 	•	 	On April 9, 2014, CEMEX Finance LLC completed the purchase of U.S.$597,153,000 aggregate principal amount of May 2010 U.S. Dollar Notes and U.S.$482,847,000 aggregate principal amount of January 2011 Notes through a cash tender offer (the “April 2014 Tender Offer”) using a portion of the proceeds from the issuance of the April 2014 Notes, which May 2010 U.S. Dollar Notes and January 2011 Notes were immediately cancelled. Following the settlement of the April 2014 Tender Offer, U.S.$595,843,000 aggregate principal amount of May 2010 U.S. Dollar Notes and U.S.$1,167,153,000 aggregate principal amount of January 2011 Notes remained outstanding.	
 
 	•	 	On April 25, 2014, CEMEX Finance LLC completed the redemption of the remaining €130,000,000 aggregate principal amount of its December 2009 Euro Notes (the “December 2009 Euro Notes Redemption”) using a portion of the proceeds from the issuance of the April 2014 Notes.	
 
 	•	 	Pursuant to a notice of redemption issued on April 1, 2014, CEMEX España, acting through its Luxembourg branch, expects to complete the redemption of the €115,346,000 remaining aggregate principal amount outstanding of its May 2010 Euro Notes (the “May 2010 Euro Notes Redemption”) on May 12, 2014 using a portion of the proceeds from the issuance of the April 2014 Notes.	
We refer to the May 2010 Notes, January 2011 Notes, Additional May 2010 Notes, April 2011 Notes, Additional January 2011 Notes, March 2012 Notes, September 2012 Notes, October 2012 Notes, March 2013 Notes, August 2013 Notes, October 2013 Notes and April 2014 Notes, collectively, as the Senior Secured Notes. For a more detailed description of these transactions, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments.”
For the convenience of the reader, considering the impact of our recent financing transactions on our liquidity and financing obligations, we present amounts of debt and other financial obligations on as adjusted basis to give effect to important financing transactions completed between December 31, 2013 and the date of this annual report on Form 20-F. We refer to the Private Inducements, the Eurobond Repayment, the issuance of the April 2014 Notes, the April 2014 Tender Offer and the December 2009 Euro Notes Redemption collectively as the “Recent Financing Transactions,” which term does not include the May 2010 Euro Notes Redemption. As of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, our total debt plus other financial obligations were Ps226,920 million (U.S.$17,388 million) (principal amount Ps232,099 million (U.S.$17,785 million)), which does not include approximately Ps6,223 million (U.S.$477 million) of Perpetual Debentures, but which does include our debt subject to the Facilities Agreement, which was approximately Ps54,024 million (U.S.$4,140 million) (principal amount Ps55,147 million (U.S.$4,226 million)).
Risk Factors
Many factors could have an adverse effect on our financial condition, cash flows and results of operations. We are subject to various risks resulting from changing economic, environmental, political, industry, business, financial and climate conditions. The factors we consider most important are described below.
Economic conditions in some of the countries where we operate may adversely affect our business, financial condition and results of operations.
The economic conditions in some of the countries where we operate have had and may continue to have a material adverse impact on our business, financial condition and results of operations throughout our operations worldwide. Our results of operations are highly dependent on the results of our operating subsidiaries in the United States, Mexico, South America and Western Europe. The most significant challenges facing the current global economic environment are decreasing government intervention in the U.S. economy and its effects on the global economy, a slowdown in China’s economic performance, deflation and economic stagnation in Europe, and the potential geopolitical implications of the current conflict in Ukraine and in other regions of political turmoil.
 
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The recovery of the U.S. economy has been particularly slow, despite extraordinary measures taken by the Federal Reserve to increase liquidity in the U.S. financial system. There is a risk of a shock to the private sector if extraordinary stimulus measures taken by the Federal Reserve following the global financial crisis are scaled back. While the tapering process began at a time of improving economic indicators, recent economic data has fallen below economists’ expectations. A rapid and aggressive withdrawal of monetary stimulus could jeopardize economic growth. Conversely, there is medium term risk that the Federal Reserve could act too slowly to rein in extraordinary liquidity levels, prompting a disanchoring of inflationary expectations, an increase in capital outflows, a disorderly rise of interest rates and economic recession. Furthermore, the U.S. economy still could be affected by fiscal adjustments, as political and fiscal uncertainty could resurface heading into 2015. Recovery in the housing sector, which is leading cement demand, could stall if employment gains falter and/or long term interest rates increase sharply.
Even though investor confidence in the Mexican economy remains relatively high due to the recent progress of structural reforms, economic activity in Mexico moderated more than expected during 2013 as a result of external conditions and domestic factors. Currently, all economic indicators point towards a moderate, rather than strong, recovery. If the Mexican economy fails to gain momentum, construction activity would remain weak and, therefore, may result in an adverse effect on demand for our products and could have a material adverse effect on our business, financial condition and results of operations. In addition, Mexico’s dependence on the U.S. economy remains very significant and, therefore, any downturn in the economic outlook of the United States may hinder economic growth in Mexico.
In terms of financial variables, the Federal Reserve’s tapering process in the United States has impacted all emerging economies, particularly reflected in capital outflows and exchange rate volatility. Although Mexico is not immune to such impact, the risk of a sudden reversal of capital outflows has been contained due to the absence of the economic imbalances that were experienced in the past and relatively low external financing needs. Nonetheless, the risk of contagion from other emerging markets remains a concern to the Mexican economy.
Countries in the Euro area, particularly in the periphery, have faced a difficult economic environment due to sovereign, institutional and financial crises. Economic stability in the Euro area is still fragile. Although progress has been made through actions essential to the establishment of a consistent monetary and fiscal policy across the Euro area such as a banking union and enhanced fiscal integration, the relevant details of such policies are still in the initial phases. Once the details of these policies have been refined and developed, they will still need to be legislated and implemented. Delays and/or incomplete steps towards structural reforms could trigger the erosion of incipient market confidence and our business, financial condition and results of operations could be further affected. The current low inflation in Europe has raised the fear of deflation across the Euro zone. Austerity measures being implemented by most European countries could result in larger than expected declines in infrastructure construction activity and demand for our products. Weaker than expected economic growth and worsening financial conditions could negatively affect residential and private non-residential construction. The risks are more pronounced in countries that experienced stronger market distortions, especially those that experienced real estate bubbles and durable goods overhangs prior to the global financial crisis, such as Spain. In these countries, levels of unemployment remain high and the adjustment process has been particularly painful and slow, given the severe fiscal constraints, the need for households to repair their balance sheets and the limitations on credit institutions that are in the process of deleveraging. Because of this, weakness in the residential and non-residential building sectors could persist longer than anticipated.
Significant trade links with Western Europe render some of the Eastern European countries susceptible to economic and political pressures in Western Europe. Additionally, in the coming years, Central European countries might experience a reduction in the proceeds they receive from the European Union Structural Funds which could hinder infrastructure investment.
Central and South American economies are also exposed to the risk of a decrease in overall economic activity. The region has been recently affected by the broad selling of equities across emerging markets and the
 
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contagion effect from crisis in Argentina and Turkey. The risk of a new contagion across the emerging markets is persistent. Political or economic volatility in South American, Central American or Caribbean countries in which we have operations may also have an impact on prices and demand for our products, which could adversely affect our business, financial condition and results of operations.
Lower commodity prices and a further slowdown in some net commodity importing Asian emerging markets could represent an important risk for the region in the short term. This may translate into greater economic and financial volatility and lower growth rates, which could have a material adverse effect on demand and/or prices for our products, thereby adversely affecting our business, financial condition and results of operations.
The economic slowdown in China will have a broad impact across many economies, particularly those of commodity exporters among the emerging markets. There are expectations that China will grow more slowly over the medium term than in the recent past as it transitions into a more balanced and sustainable growth path.
In the Middle East, lower oil revenues and political risk could moderate economic growth and adversely affect construction investments. Particularly, political instability in Syria and a potential military intervention could affect oil prices. In Egypt, political instability and social risk persist despite the approval of a new constitution, the relative stability of the provisional government and the milestone path for elections in 2014. Uncertainty could dampen overall economic activity in Egypt, negatively affecting demand for building materials. Although Egypt has recently received direct financial support from its allies in the Persian Gulf, its foreign reserves remain low and the exchange rate for the Egyptian pound, although stable during the last few months, is still faced with the threat of depreciation. Egypt´s substantial financial needs combined with an inability to access multilateral financial support could eventually trigger a disorderly depreciation of the exchange rate. In addition, Egypt is subject to risks created by legal uncertainty.
Demand for our products is highly related to construction levels and depends, in large part, on residential and commercial construction activity as well as private and public infrastructure spending in the countries where we operate. Declines in the construction industry are correlated with declines in economic conditions. As a result, deterioration in economic conditions in the countries where we operate could have a material adverse effect on our business, financial condition and results of operations. In addition, we cannot assure you that growth in the gross domestic product of the countries where we operate will translate into a correlated increase in demand for our products.
Concerns regarding the European debt crisis and market perception concerning the instability of the Euro could affect our operating profits.
We conduct business in many countries that use the Euro as their currency, or the Eurozone. Although this risk appears to have declined considerably, concerns persist regarding the debt burden of certain Eurozone countries and their ability to meet future financial obligations, the overall stability of the Euro and the suitability of the Euro as a single currency given the diverse economic and political circumstances in individual Eurozone countries.
These concerns could lead to the reintroduction of individual currencies in one or more Eurozone countries, or in more extreme circumstances, the possible dissolution of the Euro currency entirely. Should the Euro dissolve entirely, the legal and contractual consequences for holders of Euro-denominated obligations would be determined by laws in effect at such time. These potential developments, or market perceptions concerning these and related issues, could adversely affect the value of our Euro-denominated assets and obligations. In addition, concerns over the effect of this financial crisis on financial institutions in Europe and globally could have an adverse effect on the global capital markets, and more specifically on our ability, and the ability of our customers, suppliers and lenders to finance their respective businesses, to access liquidity at acceptable financing costs, if at all, and on the demand for our products.
 
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We are subject to the effects of general global economic and market conditions that are beyond our control. If these conditions remain challenging or deteriorate, our business, financial condition and results of operations could be adversely affected. Possible consequences from macroeconomic global challenges such as the debt crisis in certain countries in the European Union could have an adverse effect on our business, financial condition and results of operations.
The Facilities Agreement contains several restrictions and covenants. Our failure to comply with such restrictions and covenants could have a material adverse effect on us.
The Facilities Agreement requires us to comply with several financial ratios and tests under IFRS, including a consolidated coverage ratio of EBITDA to consolidated interest expense (including interest accrued on Perpetual Debentures), for each period of four consecutive fiscal quarters (measured semi-annually), of not less than (i) 1.50:1 from the period ending December 31, 2012 up to and including the period ending June 30, 2014, (ii) 1.75:1 from the period ending December 31, 2014 up to and including the period ending June 30, 2015, (iii) 1.85:1 for the period ending December 31, 2015, (iv) 2:00:1 for the period ending June 30, 2016 and (v) 2.25:1 for the period of four consecutive fiscal quarters ending December 31, 2016. In addition, the Facilities Agreement allows us a maximum consolidated leverage ratio of total debt (including financial leases plus Perpetual Debentures and guarantees, plus or minus the fair value of derivative financial instruments, among other adjustments) to EBITDA for each period of four consecutive fiscal quarters (measured semi-annually) not to exceed (i) 7.00:1 for each period from the period ending December 31, 2012, up to and including the period ending December 31, 2013, (ii) 6.75:1 for the period ending June 31, 2014, (iii) 6.5:1 for the period ending December 31, 2014, (iv) 6.00:1 for the period ending June 30, 2015, (v) 5.50:1 for the period ending December 31, 2015, (vi) 5.00:1 for the period ending June 30, 2016 and (vii) 4.25:1 for the period ending December 31, 2016. Our ability to comply with these ratios may be affected by economic conditions and volatility in foreign exchange rates, as well as by overall conditions in the financial and capital markets. For the period ended December 31, 2013, we reported to the lenders under the Facilities Agreement a consolidated coverage ratio of 2.11:1 and a consolidated leverage ratio of 5.49:1, each as calculated pursuant to the Facilities Agreement. Pursuant to the Facilities Agreement, we are prohibited from making aggregate annual capital expenditures in excess of U.S.$800 million (excluding certain capital expenditures, and joint venture investments and acquisitions by CEMEX Latam and its subsidiaries, which capital expenditures, joint venture investments and acquisitions at any time then incurred are subject to a separate aggregate limit of U.S.$350 million (or its equivalent)).
We are also subject to a number of negative covenants that, among other things, restrict or limit our ability to: (i) create liens; (ii) incur additional debt; (iii) change our business or the business of any obligor or material subsidiary (in each case, as defined in the Facilities Agreement); (iv) enter into mergers; (v) enter into agreements that restrict our subsidiaries’ ability to pay dividends or repay intercompany debt; (vi) acquire assets; (vii) enter into or invest in joint venture agreements; (viii) dispose of certain assets; (ix) grant additional guarantees or indemnities; (x) declare or pay cash dividends or make share redemptions; (xi) issue shares; (xii) enter into certain derivatives transactions; (xiii) exercise any call option in relation to any perpetual bonds we issue unless the exercise of the call options does not have a materially negative impact on our cash flow; and (xiv) transfer assets from subsidiaries or more than 10% of shares in subsidiaries into or out of CEMEX España or its subsidiaries if those assets or subsidiaries are not controlled by CEMEX España or any of its subsidiaries.
The Facilities Agreement also contains a number of affirmative covenants that, among other things, require us to provide periodic financial information to our creditors. Pursuant to the Facilities Agreement, however, a number of those covenants and restrictions will automatically cease to apply or become less restrictive if (i) our consolidated leverage ratio for the two most recently completed semi-annual testing periods is less than or equal to 3.50:1; and (ii) no default under the Facilities Agreement is continuing. Restrictions that will cease to apply when we satisfy such conditions include the capital expenditure limitations mentioned above and several negative covenants, including limitations on our ability to declare or pay cash dividends and distributions to shareholders, limitations on our ability to repay existing financial indebtedness, certain asset sale restrictions, the
 
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quarterly cash balance sweep, certain mandatory prepayment provisions, and restrictions on exercising call options in relation to any perpetual bonds we issue (provided that creditors will continue to receive the benefit of any restrictive covenants that other creditors receive relating to other financial indebtedness of ours in excess of U.S.$75 million). At such time, several baskets and caps relating to negative covenants will also increase, including permitted financial indebtedness, permitted guarantees and limitations on liens. However, we cannot assure you that we will be able to meet the conditions for these restrictions to cease to apply prior to the final maturity date under the Facilities Agreement.
The Facilities Agreement contains events of default, some of which may be outside our control. Such events of default include defaults based on (i) non-payment of principal, interest, or fees when due; (ii) material inaccuracy of representations and warranties; (iii) breach of covenants; (iv) bankruptcy ( quiebra ) or insolvency ( concurso mercantil ) of CEMEX, S.A.B. de C.V., any other obligor under the Facilities Agreement or any other of our material subsidiaries (as defined in the Facilities Agreement); (v) inability to pay debts as they fall due or by reason of actual financial difficulties, suspension or threatened suspension of payments on debts exceeding U.S.$50 million or commencement of negotiations to reschedule debt exceeding U.S.$50 million; (vi) a cross-default in relation to financial indebtedness in excess of U.S.$50 million; (vii) a change of control with respect to CEMEX, S.A.B. de C.V.; (viii) certain changes to the ownership of any of our subsidiary obligors under the Facilities Agreement, unless the proceeds of such disposal are used to prepay Facilities Agreement debt; (ix) enforcement of the share security; (x) final judgments or orders in excess of U.S.$50 million that are neither discharged nor bonded in full within 60 days thereafter; (xi) any restrictions not already in effect as of September 17, 2012 limiting transfers of foreign exchange by any obligor for purposes of performing material obligations under the Facilities Agreement; (xii) any material adverse change arising in the financial condition of CEMEX, S.A.B. de C.V. and each of its subsidiaries, taken as a whole, which more than 66.67% of the Facilities Agreement creditors determine would result in our failure, taken as a whole, to perform payment obligations under the Facilities Agreement; and (xiii) failure to comply with laws or our obligations under the Facilities Agreement cease to be legal. If an event of default occurs and is continuing, upon the authorization of 66.67% of the Facilities Agreement creditors, the creditors have the ability to accelerate all outstanding amounts due under the Facilities Agreement. Acceleration is automatic in the case of insolvency.
We cannot assure you that we will be able to comply with the restrictive covenants and limitations contained in the Facilities Agreement. Our failure to comply with such covenants and limitations could result in an event of default, which could materially and adversely affect our business and financial condition.
If we are unable to comply with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, the maturity date of our indebtedness under the Facilities Agreement will automatically reset, or “spring-back” to earlier dates.
The Facilities Agreement requires us to (a) on or before March 15, 2015, redeem, convert into equity, purchase, repurchase, refinance or extend the maturity date of 100% of the 2010 Optional Convertible Subordinated Notes to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become March 15, 2015 (in March 2014, holders of U.S.$280,387,000 in aggregate principal amount of the 2010 Optional Convertible Subordinated Notes converted their 2010 Optional Convertible Subordinated Notes in exchange for approximately 27.73 million of CEMEX, S.A.B. de C.V.’s ADSs pursuant to the Private Inducements), (b) on or before September 30, 2015, redeem or extend the maturity date of 100% of the April 2011 Notes to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become September 30, 2015, (c) on or before March 15, 2016, redeem, convert into equity, purchase, repurchase, refinance or extend the maturity date of 100% of the 3.25% Convertible Subordinated Notes due 2016 to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become March 15, 2016, and (d) on or before December 14, 2016, redeem or extend the maturity date of 100% of the December 2009 Notes to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become December 14, 2016.
 
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We cannot assure you that we will be able to meet any or all of the above milestones for redeeming, converting into equity, purchasing, repurchasing or extending the maturities of our indebtedness. Failure to meet any of these milestones will result in a spring-back of the maturity date of our indebtedness under the Facilities Agreement, and we cannot assure you that at such time we will be able to repay such indebtedness.
We pledged the capital stock of subsidiaries that represent substantially all of our business as collateral to secure our payment obligations under the Facilities Agreement, the Senior Secured Notes and other financing arrangements.
As part of the Facilities Agreement, we pledged under pledge agreements or transferred to a trustee under a security trust, as collateral, the Collateral, and all proceeds of the Collateral to secure our payment obligations under the Facilities Agreement and under a number of other financing arrangements for the benefit of the creditors and holders of debt, and other obligations that benefit from provisions in their instruments requiring that their obligations be equally and ratably secured. As of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, the Collateral and all proceeds of such Collateral secured (i) Ps188,050 million (U.S.$14,410 million) (principal amount Ps190,445 million (U.S.$14,594 million) aggregate principal amount of debt under the Facilities Agreement and other financing arrangements and (ii) Ps9,270 million (U.S.$710 million aggregate principal amount of Perpetual Notes, which includes debt of ours held by us). These subsidiaries collectively own, directly or indirectly, substantially all of our operations worldwide. Provided that no default has occurred which is continuing under the Facilities Agreement, the Collateral will be released automatically if we meet specified debt reduction and financial covenant targets.
We have a substantial amount of debt and other financial obligations maturing in the next several years. If we are unable to secure refinancing on favorable terms or at all, we may not be able to comply with our upcoming payment obligations. Our ability to comply with our principal maturities and financial covenants may depend on us making asset sales, and there is no assurance that we will be able to execute such sales on terms favorable to us or at all.
As of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, our total debt plus other financial obligations were Ps226,920 million (U.S.$17,388 million) (principal amount Ps232,099 million (U.S.$17,785 million)), which does not include approximately Ps6,223 million (U.S.$477 million), which represents the nominal amount of Perpetual Debentures, but which does include our debt subject to the Facilities Agreement, which was approximately Ps54,024 million (U.S.$4,140 million) (principal amount Ps55,147 million (U.S.$4,226 million)). Of such total debt plus other financial obligations amount, approximately Ps5,795 million (U.S.$444 million) (principal amount Ps5,795 million (U.S.$444 million)) matures during 2014; Ps18,423 million (U.S.$1,411 million) (principal amount Ps18,775 million (U.S.$1,439 million)) matures during 2015; Ps12,113 million (U.S.$928 million) (principal amount Ps13,319 million (U.S.$1,021 million)) matures during 2016; Ps58,304 million (U.S.$4,468 million) (principal amount Ps59,435 million (U.S.$4,554 million)) matures during 2017 (including the remainder of the principal amount of debt under the Facilities Agreement); and Ps132,285 million (U.S.$10,137 million) (principal amount Ps134,775 million (U.S.$10,327 million)) matures after 2017. Additionally, as described above, if we are unable to comply with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, the maturity date of our indebtedness under the Facilities Agreement will automatically spring-back to earlier dates.
If we are unable to comply with our upcoming principal maturities under our indebtedness or any milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, or refinance or extend maturities of our indebtedness, our debt could be accelerated or the maturity date could spring-back. Acceleration of our debt or a spring-back of a maturity date would have a material adverse effect on our financial condition.
Although we have successfully repaid or refinanced a substantial portion of our debt maturing in 2014, our ability to comply with our financial covenants and payment obligations under the Facilities Agreement and other indebtedness, in the event we are unable to refinance our maturities or generate sufficient cash flow from operations, may depend on asset sales, and there is no assurance that we will be able to execute such sales on terms favorable to us or at all.
 
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As a result of the restrictions under the Facilities Agreement and other debt instruments, the current global economic environment and uncertain market conditions, we may not be able to complete asset sales on terms that we find economically attractive or at all. Volatility in the credit and capital markets could significantly affect us due to its effect on the availability of funds to potential acquiring parties, including industry peers. In addition, high levels of consolidation in our industry in some jurisdictions may further limit potential assets sales to interested parties due to antitrust considerations. If we are unable to complete asset sales and our cash flow or capital resources prove inadequate, we could face liquidity problems and may not be able to comply with financial covenants and payment obligations under our indebtedness.
In addition, our levels of debt, contractual restrictions, and our need to deleverage may limit our planning flexibility and our ability to react to changes in our business and the industry, and may place us at a competitive disadvantage compared to competitors who may have lower leverage ratios and fewer contractual restrictions. There can also be no assurance that, because of our high leverage ratio and contractual restrictions, we will be able to maintain our operating margins and deliver financial results comparable to the results obtained in the past under similar economic conditions
We may not be able to generate sufficient cash to service all of our indebtedness or satisfy our short-term liquidity needs, and we may be forced to take other actions to satisfy our obligations under our indebtedness and our short-term liquidity needs, which may not be successful.
Historically, we have addressed our liquidity needs (including funds required to make scheduled principal and interest payments, refinance debt, and fund working capital and planned capital expenditures) with operating cash flow, borrowings under credit facilities and receivables and inventory financing facilities, proceeds of debt and equity offerings and proceeds from asset sales.
As of December 31, 2013, we had U.S.$534 million funded under our securitization programs in the United States, France and Mexico. We cannot assure you that, going forward, we will be able to roll over or renew these programs, which could adversely affect our liquidity.
The continued weakness of the global economic environment and its adverse effects on our operating results may negatively affect our credit rating and the market value of CEMEX, S.A.B. de C.V.’s common stock, CPOs and ADSs. If current economic pressures continue or worsen, we may be dependent on the issuance of equity as a source to repay our existing indebtedness, including indebtedness under the Facilities Agreement. Although we have been able to raise debt, equity and equity-linked capital in the recent past, previous conditions in the capital markets in 2008 and 2009 were such that traditional sources of capital were not available to us on reasonable terms or at all. As a result, we cannot assure you that we will be able to successfully raise additional debt or equity capital on terms that are favorable to us or at all.
The Facilities Agreement restricts us from incurring additional debt, subject to several exceptions. The limitation on incurrence of debt covenant under the Facilities Agreement permits us to incur a liquidity facility or facilities in an amount not to exceed U.S.$400 million. In addition, the Facilities Agreement requires (i) proceeds from asset disposals, incurrences of debt and issuances of equity and excess cash flow to be applied to the prepayment of the indebtedness under the Facilities Agreement, subject to our right to retain cash on hand up to U.S.$625 million in the first three quarters of any fiscal year and U.S.$725 million in the fourth quarter of any fiscal year, including the amount of undrawn commitments of a permitted liquidity facility or facilities (unless the proceeds are used to refinance existing indebtedness on the terms set forth in the Facilities Agreement), and (ii) proceeds reserved from asset disposals, permitted refinancings and cash on hand to be applied to the repayment of indebtedness under the Facilities Agreement and of other indebtedness as permitted under the Facilities Agreement.
We and our subsidiaries have sought and obtained waivers and amendments to several of our debt instruments relating to a number of financial ratios in the past. Our ability to comply with these ratios may be affected by current global economic conditions and volatility in foreign exchange rates and the financial and
 
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capital markets. We may need to seek waivers or amendments in the future. However, we cannot assure you that any future waivers or amendments, if requested, will be obtained. If we or our subsidiaries are unable to comply with the provisions of our debt instruments, and are unable to obtain a waiver or amendment, the indebtedness outstanding under such debt instruments could be accelerated. Acceleration of these debt instruments would have a material adverse effect on our financial condition.
If the global economic environment deteriorates further and our operating results worsen significantly, if we were unable to complete debt or equity offerings or if our planned divestitures and/or our cash flow or capital resources prove inadequate, we could face liquidity problems and may not be able to comply with our upcoming principal payments under our indebtedness or refinance our indebtedness.
The indentures governing the Senior Secured Notes and the terms of our other indebtedness impose significant operating and financial restrictions, which may prevent us from capitalizing on business opportunities and may impede our ability to refinance our debt and the debt of our subsidiaries.
As of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, there were U.S.$9,367 million and €695 million aggregate principal amount of Senior Secured Notes outstanding under the indentures governing such notes, excluding those held by us. The indentures governing the Senior Secured Notes and the other instruments governing our consolidated indebtedness impose significant operating and financial restrictions on us. These restrictions will limit our ability, among other things, to: (i) incur debt; (ii) pay dividends on stock; (iii) redeem stock or redeem subordinated debt; (iv) make investments; (v) sell assets, including capital stock of subsidiaries; (vi) guarantee indebtedness; (vii) enter into agreements that restrict dividends or other distributions from restricted subsidiaries; (viii) enter into transactions with affiliates; (ix) create or assume liens; (x) engage in mergers or consolidations; and (xi) enter into a sale of all or substantially all of our assets.
These restrictions could limit our ability to seize attractive growth opportunities for our businesses that are currently unforeseeable, particularly if we are unable to incur financing or make investments to take advantage of these opportunities.
These restrictions may significantly impede our ability, and the ability of our subsidiaries, to develop and implement refinancing plans in respect of our debt or the debt of our subsidiaries.
Most of the covenants are subject to a number of important exceptions and qualifications. The breach of any of these covenants could result in a default under the indentures governing the Senior Secured Notes, as well as certain other existing debt obligations, as a result of the cross-default provisions contained in the instruments governing such debt obligations. In the event of a default under the indentures governing the Senior Secured Notes, holders of the Senior Secured Notes could seek to declare all amounts outstanding under such Senior Secured Notes, together with accrued and unpaid interest, if any, to be immediately due and payable. If the indebtedness under the Senior Secured Notes, or certain other existing debt obligations were to be accelerated, we cannot assure you that our assets would be sufficient to repay in full that indebtedness or our other indebtedness.
Furthermore, upon the occurrence of any event of default under the Facilities Agreement, or other credit facilities or any of our other debt, the lenders could elect to declare all amounts outstanding thereunder, together with accrued interest, to be immediately due and payable. If the lenders accelerate payment of those amounts, we cannot assure you that our assets would be sufficient to repay in full those amounts or to satisfy our other liabilities.
In addition, in connection with the entry into new financings or amendments to existing financing arrangements, our and our subsidiaries’ financial and operational flexibility may be further reduced as a result of more restrictive covenants, requirements for security and other terms that are often imposed on sub-investment grade entities.
 
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CEMEX, S.A.B. de C.V.’s ability to repay debt and pay dividends depends on our subsidiaries’ ability to transfer income and dividends to us.
Aside from operating certain assets in Mexico, CEMEX, S.A.B. de C.V. is a holding company that owns the stock of its direct and indirect subsidiaries and has holdings of cash and marketable securities. In general, CEMEX, S.A.B. de C.V.’s ability to repay debt and pay dividends depends on the continued transfer to it of dividends and other income from its wholly-owned and non-wholly-owned subsidiaries. The ability of CEMEX, S.A.B. de C.V.’s subsidiaries to pay dividends and make other transfers to it is limited by various regulatory, contractual and legal constraints. The Facilities Agreement restricts CEMEX, S.A.B. de C.V.’s ability to declare or pay cash dividends. In addition, the indentures governing the Senior Secured Notes also limit CEMEX, S.A.B. de C.V.’s ability to pay dividends.
The ability of CEMEX, S.A.B. de C.V.’s subsidiaries to pay dividends, and make loans and other transfers to it is generally subject to various regulatory, legal and economic limitations. Depending on the jurisdiction of organization of the relevant subsidiary, such limitations may include solvency and legal reserve requirements, dividend payment restrictions based on interim financial results or minimum net worth and withholding taxes on loan interest payments. For example, our subsidiaries in Mexico are subject to Mexican legal requirements, which provide that a corporation may declare and pay dividends only out of the profits reflected in the year-end financial statements that are or have been approved by its stockholders. In addition, such payment can be approved by a subsidiary’s stockholders only after the creation of a required legal reserve (equal to one fifth of the relevant company’s capital) and compensation or absorption of losses, if any, incurred by such subsidiary in previous fiscal years.
CEMEX, S.A.B. de C.V. may also be subject to exchange controls on remittances by its subsidiaries from time to time in a number of jurisdictions. In addition, CEMEX, S.A.B. de C.V.’s ability to receive funds from these subsidiaries may be restricted by covenants in the debt instruments and other contractual obligations of those entities.
CEMEX, S.A.B. de C.V. currently does not expect that existing regulatory, legal and economic restrictions on its subsidiaries’ ability to pay dividends and make loans and other transfers to it will negatively affect its ability to meet its cash obligations. However, the jurisdictions of organization of CEMEX, S.A.B. de C.V.’s subsidiaries may impose additional and more restrictive regulatory, legal and/or economic limitations. In addition, CEMEX, S.A.B. de C.V.’s subsidiaries may not be able to generate sufficient income to pay dividends or make loans or other transfers to it in the future. Any material additional future limitations on our subsidiaries could adversely affect CEMEX, S.A.B. de C.V.’s ability to service our debt and meet its other cash obligations.
We are subject to restrictions due to non-controlling interests in our consolidated subsidiaries.
We conduct our business through subsidiaries. In some cases, third-party shareholders hold non-controlling interests in these subsidiaries. Various disadvantages may result from the participation of non-controlling shareholders whose interests may not always be aligned with ours. Some of these disadvantages may, among other things, result in our inability to implement organizational efficiencies and transfer cash and assets from one subsidiary to another in order to allocate assets most effectively.
 
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We have to service our debt and other financial obligations denominated in U.S. Dollars with revenues generated in Mexican Pesos or other currencies, as we do not generate sufficient revenue in U.S. Dollars from our operations to service all our debt and other financial obligations denominated in U.S. Dollars. This could adversely affect our ability to service our obligations in the event of a devaluation or depreciation in the value of the Mexican Peso, or any of the other currencies of the countries in which we operate, compared to the U.S. Dollar. In addition, our consolidated reported results and outstanding indebtedness are significantly affected by fluctuations in exchange rates between the Mexican Peso and other currencies.
A substantial portion of our total debt plus other financial obligations is denominated in U.S. Dollars. As of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, our debt plus other financial obligations denominated in U.S. Dollars represented approximately 85% of our total debt plus other financial obligations, which does not include approximately U.S.$389 million of U.S. Dollar-denominated Perpetual Debentures. Our U.S. Dollar-denominated debt must be serviced with funds generated by our subsidiaries. Although we have substantial U.S. operations, we continue to rely on our non-U.S. assets to generate revenues to service our U.S. Dollar-denominated debt. Consequently, we have to use revenues generated in Mexican Pesos, Euros or other currencies to service our U.S. Dollar-denominated obligations. See “Item 5—Operating and Financial Review and Prospects—Qualitative and Quantitative Market Disclosure—Interest Rate Risk, Foreign Currency Risk and Equity Risk—Foreign Currency Risk.” A devaluation or depreciation in the value of the Mexican Peso, Euro, British Pound, Colombian Peso or any of the other currencies of the countries in which we operate, compared to the U.S. Dollar, could adversely affect our ability to service our debt. In 2013, Mexico, the United Kingdom, Germany, France, the rest of Northern Europe region (which includes our subsidiaries in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, and which we refer to as our Rest of Northern Europe region), Spain, Egypt, the rest of the Mediterranean region (which includes our subsidiaries in Croatia, the UAE and Israel, and which we refer to as our Rest of the Mediterranean region) and Colombia, which are our main non-U.S. Dollar-denominated operations, together generated approximately 62% of our total net sales in Mexican Peso terms (approximately 20%, 7%, 7%, 6%, 6%, 2%, 3%, 5% and 6%, respectively) before eliminations resulting from consolidation. In 2013, approximately 20% of our net sales in Mexican Peso terms were generated in the United States. During 2013, the Mexican Peso depreciated approximately 2% against the U.S. Dollar, the Euro appreciated approximately 4% against the U.S. Dollar and the British Pound appreciated approximately 2% against the U.S. Dollar. If we enter into currency hedges in the future, these may not be effective in covering all our currency-related risks. Our consolidated reported results for any period and our outstanding indebtedness as of any date are significantly affected by fluctuations in exchange rates between the Mexican Peso and other currencies, as those fluctuations influence the amount of our indebtedness when translated into Mexican Pesos and also result in foreign exchange gains and losses as well as gains and losses on derivative contracts, including those entered into to hedge our exchange rate exposure. The Facilities Agreement and other debt instruments significantly restrict our ability to enter into derivative transactions. For a description of these restrictions, see “—Our use of derivative financial instruments has negatively affected our operations, especially in volatile and uncertain markets.”
In addition, as of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, our Euro-denominated total debt plus other financial obligations represented approximately 11% of our total debt plus other financial obligations, which does not include the approximately €64 million aggregate principal amount of Euro-denominated Perpetual Debentures.
Our use of derivative financial instruments has negatively affected our operations, especially in volatile and uncertain markets.
We have used, and may continue to use, derivative financial instruments to manage the risk profile associated with interest rates and currency exposure of our debt, to reduce our financing costs, to access alternative sources of financing and to hedge some of our financial risks. However, we cannot assure you that our use of such instruments will allow us to achieve these objectives due to the inherent risks in any derivatives transaction. The Facilities Agreement and other debt instruments significantly restrict our ability to enter into derivative transactions.
 
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As of December 31, 2013, our derivative financial instruments that had a potential impact on other financial income (expense), net, consisted of equity forward contracts on third-party shares and equity derivatives on shares of CEMEX, S.A.B. de C.V. (including our zero strike call options in connection with the 2010 Optional Convertible Subordinated Notes and capped call transactions in connection with the 2011 Optional Convertible Subordinated Notes), a forward instrument over the Total Return Index of the Mexican Stock Exchange, and interest rate derivatives related to energy projects.
Most derivative financial instruments are subject to margin calls in case the threshold set by the counterparties is exceeded. The cash required to cover margin calls in several scenarios may be substantial and may reduce the funds available to us for our operations or other capital needs. The fair value changes in some of our derivative financial instruments are reflected in our statement of operations, which could introduce volatility in our controlling interest net loss and our related ratios. For the years ended December 31, 2012 and 2013, the recognition of changes in the fair value of derivative financial instruments during the applicable period represented a net loss of approximately Ps98 million (U.S.$8 million) and a net gain of approximately Ps2,126 million (U.S.$163 million), respectively. Also, the creditworthiness of our counterparties may deteriorate substantially, preventing them from honoring their obligations to us. We maintain equity derivatives that in a number of scenarios may require us to cover margin calls that could reduce our cash availability. If we enter into new derivative financial instruments, or with respect to our existing derivative financial instruments (including our outstanding equity derivative positions), we may incur net losses from our derivative financial instruments. See notes 2L, 16B, 16D and 16E to our 2013 audited consolidated financial statements included elsewhere in this annual report.
We may fail to obtain or renew or may experience material delays in obtaining requisite governmental approvals, licenses and permits for the conduct of our business.
We require various approvals, licenses, permits and certificates in the conduct of our business. We cannot assure you that we will not encounter significant problems in obtaining new or renewing existing approvals, licenses, permits and certificates required in the conduct of our business, or that we will continue to satisfy the conditions to which such approvals, licenses, permits and certificates are granted. There may also be delays on the part of regulatory and administrative bodies in reviewing our applications and granting approvals. If previously obtained approvals, licenses, permits and certificates are revoked and/or if we fail to obtain and/or maintain the necessary approvals, licenses, permits and certificates required for the conduct of our business, we may be required to incur substantial costs or temporarily suspend the operation of one or more of our production facilities, which could have a material adverse effect on our business, financial condition, results of operations and prospects.
We may not be able to realize the expected benefits from acquisitions, some of which may have a material impact on our business, financial condition and results of operations.
Our ability to realize the expected benefits from acquisitions depends, in large part, on our ability to integrate acquired operations with our existing operations in a timely and effective manner. These efforts may not be successful. Although we may seek to dispose of assets to reduce our overall leverage and the Facilities Agreement and other debt instruments restrict our ability to acquire assets, we may in the future acquire new operations and integrate such operations into our existing operations, and some of such acquisitions may have a material impact on our business, financial condition and results of operations. We cannot assure you that we will be successful in identifying or acquiring suitable assets in the future. If we fail to achieve the anticipated cost savings from any acquisitions, our business, financial condition and results of operations could be materially and adversely affected.
Higher energy and fuel costs may have a material adverse effect on our operating results.
Our operations consume significant amounts of power and fuel, the cost of which has significantly increased worldwide in recent years. Power and fuel prices generally reflect certain volatility, particularly in times of
 
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political turbulence in Iran, Iraq, Egypt and other countries in the Middle East and Africa, such as has been recently experienced. We cannot assure you that our operations would not be materially adversely affected in the future if energy and fuel costs increase.
In addition, if our efforts to increase our use of alternative fuels are unsuccessful, we would be required to use traditional fuels, which would increase our energy and fuel costs and could have a material adverse effect on our business, financial condition and results of operations.
The introduction of substitutes for cement, concrete or aggregates into the market and the development of new construction techniques could have a material adverse effect on our business, financial condition and results of operations.
Materials such as plastic, aluminum, ceramics, glass, wood and steel can be used in construction as a substitute for cement, concrete or aggregates. In addition, other construction techniques, such as the use of dry wall, could decrease the demand for cement, concrete and/or aggregates. Further, research aimed at developing new construction techniques and modern materials may introduce new products in the future that reduce the demand for cement, concrete and/or aggregates. The use of substitutes for cement, concrete or aggregates could cause a significant reduction in the demand and prices for our products.
We operate in highly competitive markets and if we do not compete effectively, our results of operations will be harmed.
The markets in which we operate are highly competitive and are served by a variety of established companies with recognized brand names, as well as new market entrants. Companies in these markets compete based on a variety of factors, often employing aggressive pricing strategies to gain market share. For example, CEMEX Colombia’s results of operations have been negatively affected in the past by the pricing strategies of its competitors. Our ability to increase our net sales depends, in part, on our ability to compete effectively and maintain or increase our market share. We compete with different types of companies and based on different factors in each market. For example, in the relatively consolidated cement and ready-mix concrete industries, we generally compete based on quality and value proposition. In the more fragmented market for aggregates, we generally compete based on capacity and price. In certain areas of the markets in which we compete, some of our competitors may be more established, benefit from greater brand recognition or have greater manufacturing and distribution channels and other resources than we do. In addition, if our competitors were to combine, they may be able to compete more effectively with us and they may dispose of assets, which could lead to new market entrants that increase competition in our markets. If we are not able to compete effectively, we may lose market share, our net sales could decline or grow at a slower rate and our business and results of operations would be harmed.
A substantial amount of our total assets consists of intangible assets, including goodwill. We have recognized charges for goodwill impairment in the past, and if market or industry conditions deteriorate further, additional impairment charges may be recognized.
Our audited consolidated financial statements have been prepared in accordance with IFRS, under which goodwill is not amortized and is tested for impairment when impairment indicators exist or at least once a year during the fourth quarter of each year, by determining the recoverable amount of the groups of cash-generating units to which goodwill balances has been allocated, which recoverable amount consists of the higher of such groups of cash-generating units its corresponding fair value, less cost to sell, and the corresponding value in use, represented by the discounted amount of estimated future cash flows expected to be generated within other expenses, net, by such groups of cash-generating units to which goodwill has been allocated. An impairment loss is recognized under IFRS if the recoverable amount is lower than the net book value of the groups of cash-generating units to which goodwill has been allocated. We determine the discounted amount of estimated future cash flows generally over periods of 5 years. In specific circumstances, when, according to our experience, actual
 
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results for a given cash-generating unit do not fairly reflect historical performance and most external economic variables provide us with confidence that a reasonably determinable improvement in the mid-term is expected in their operating results, management uses cash flow projections over a period of up to 10 years, to the extent we have detailed, explicit and reliable financial forecasts and is confident and can demonstrate its ability, based on past experience, to forecast cash flows accurately over that longer period. If the value in use of a group of cash-generating units to which goodwill has been allocated is lower than its corresponding carrying amount, we determine its corresponding fair value using methodologies generally accepted in the markets to determine the value of entities, such as multiples of operating EBITDA and/or by reference to other market transactions, among others. Impairment tests are significantly sensitive to, among other factors, the estimation of future prices of our products, trends in operating expenses, local and international economic trends in the construction industry, the long-term growth expectations in the different markets, as well as the discount rates and the growth rates in perpetuity applied, among others. We use specific pre-tax discount rates for each group of cash-generating units to which goodwill is allocated, which are applied to pre-tax cash flows. The amounts of estimated undiscounted cash flows are significantly sensitive to the growth rates in perpetuity applied. Likewise, the amounts of discounted future cash flows are significantly sensitive to the weight average cost of capital (discount rate) applied. The higher the growth rate in perpetuity applied, the higher the amount of undiscounted future cash flows by group of cash-generating units obtained. Conversely, the higher the discount rate applied, the lower the amount of discounted estimated future cash flows by group of cash-generating units obtained. During the last quarter of 2013, 2012 and 2011, we performed our annual goodwill impairment test. Based on these analyses, in 2013 and 2012 we did not determine impairment losses of goodwill, whereas, in 2011, we determined impairment losses of goodwill for approximately Ps145 million (U.S.$12 million), associated with our groups of cash generating units to which goodwill has been allocated in Latvia representing 100% of the goodwill balance associated with such country. The estimated impairment loss was mainly attributable to market dynamics in this country and its position in the business economic cycle, generating that the net book value exceeded its respective recoverable amount. See note 15C to our 2013 audited consolidated financial statements included elsewhere in this annual report.
Due to the important role that economic factors play in testing goodwill for impairment, a further downturn in the economies where we operate could necessitate new impairment tests and a possible downward readjustment of our goodwill for impairment under IFRS. Such an impairment test could result in additional impairment charges which could be material to our financial statements.
We are subject to litigation proceedings, including antitrust proceedings that could harm our business if an unfavorable ruling were to occur.
From time to time, we are and may become involved in litigation and other legal proceedings relating to claims arising from our operations in the normal course of business. As described in, but not limited to, “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings” in this annual report, we are currently subject to a number of significant legal proceedings, including, but not limited to, those relating to tax matters in Mexico, as well as antitrust investigations in Europe. In addition, our Egyptian subsidiary, Assiut Cement Company (“ACC”), is involved in an Egyptian legal proceeding relating to the acquisition of ACC. Litigation is subject to inherent uncertainties, and unfavorable rulings may occur. We cannot assure you that these or other legal proceedings will not materially affect our ability to conduct our business in the manner that we expect or otherwise adversely affect us should an unfavorable ruling occur.
Our operations are subject to environmental laws and regulations.
Our operations are subject to a broad range of environmental laws and regulations in each of the jurisdictions in which we operate. These laws and regulations impose stringent environmental protection standards regarding, among other things, air emissions, wastewater discharges, the use and handling of hazardous waste or materials, waste disposal practices and the remediation of environmental damage or contamination. These laws and regulations expose us to the risk of substantial environmental costs and liabilities, including fines and other sanctions, the payment of compensation to third parties, remediation costs and damage to reputation.
 
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Moreover, the enactment of stricter laws and regulations, stricter interpretation of existing laws or regulations, or new enforcement initiatives, may impose new risks or costs on us or result in the need for additional investments in pollution control equipment, which could result in a material decline in our profitability.
In late 2010, the U.S. Environmental Protection Agency (“EPA”) issued the final Portland Cement National Emission Standard (“Portland Cement NESHAP”) for Hazardous Air Pollutants under the federal Clean Air Act (“CAA”). This rule required portland cement plants to limit mercury emissions, total hydrocarbons, hydrochloric acid and particulate matter by September 2013. The rule was challenged in federal court, and in December 2011, the D.C. Circuit Court of Appeals remanded the Portland Cement NESHAP to EPA and directed the agency to recompute the standards. In February 2013, EPA issued a revised final NESHAP rule that relaxed emissions limits for particulate matter and moved the compliance deadline to September 2015. In April 2013, environmental groups again challenged the revised Portland Cement NESHAP rule in federal court. In April 2014, the D.C. Circuit issued a ruling upholding both the revised particulate matter emission limits and the Semptember 2015 compliance deadline. We are unable to predict at this time whether the environmental groups will petition for a rehearing or rehearing en banc of the D.C. Circuit’s decision. If the final Portland Cement NESHAP takes effect in its present form, the rule could have a material adverse impact on our results of operations, liquidity and financial condition, however, we expect that such impact would be consistent with the impact on the cement industry as a whole.
In February 2013, EPA issued revised final emissions standards under the CAA for commercial and industrial solid waste incinerators (“CISWI”). Under the CISWI rule, if a material being used in a cement kiln as an alternative fuel is classified as a solid waste, the plant must comply with CISWI standards. The CISWI rule covers nine pollutants, and imposes more stringent emissions limits on certain pollutants that also are regulated under the Portland Cement NESHAP. The CISWI rule has been challenged by both industrial and environmental groups in federal court. We are unable to predict whether these challenges will ultimately result in the rule being remanded to EPA, or whether such a remand would result in more or less stringent CISWI standards. If the CISWI rule takes effect in its current form, and if kilns at or CEMEX plants are determined to be CISWI kilns due to the use of certain alternative fuels, the emissions standards imposed by the CISWI rule could have a material impact on our business operations.
Under certain environmental laws and regulations, liability associated with investigation or remediation of hazardous substances can arise at a broad range of properties, including properties currently or formerly owned or operated by CEMEX, as well as facilities to which we sent hazardous substances or wastes for treatment, storage or disposal. Such laws and regulations may apply without regard to causation or knowledge of contamination. We occasionally evaluate various alternatives with respect to our facilities, including possible dispositions or closures. Investigations undertaken in connection with these activities (or ongoing operational or construction activities) may lead to hazardous substance releases or discoveries of historical contamination that must be remediated, and closures of facilities may trigger compliance requirements that are not applicable to operating facilities. While compliance with these laws and regulations has not materially adversely affected our operations in the past, we cannot assure you that these requirements will not change and that compliance will not adversely affect our operations in the future. Furthermore, we cannot assure you that existing or future circumstances or developments with respect to contamination will not require us to make significant remediation or restoration expenditures.
The cement manufacturing process requires the combustion of large amounts of fuel and creates carbon dioxide (“CO2”) as a by-product of the calcination process. Therefore, efforts to address climate change through federal, state, regional, European Union and international laws and regulations requiring reductions in emissions of greenhouse gases (“GHGs”) can create economic risks and uncertainties for our business. Such risks could include the cost of purchasing allowances or credits to meet GHG emission caps, the cost of installing equipment to reduce emissions to comply with GHG limits or required technological standards, decreased profits or losses arising from decreased demand for our goods and higher production costs resulting directly or indirectly from the imposition of legislative or regulatory controls. To the extent that financial markets view climate change and
 
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GHG emissions as a financial risk, this could have a material adverse effect on our cost of and access to capital. Given the uncertain nature of the actual or potential statutory and regulatory requirements for GHG emissions at the federal, state, regional, European Union and international levels, we cannot predict the impact on our operations or financial condition or make a reasonable estimate of the potential costs to us that may result from such requirements. However, the impact of any such requirements, whether individually or cumulatively, could have a material economic impact on our operations in the United States and in other countries. For more information on the laws and regulations addressing climate change that we are, or could become, subject to, and the impacts to our operations arising therefrom, see “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Environmental Matters.”
Cement production raises a number of health and safety issues. As is the case with other companies in our industry, some of our aggregate products contain varying amounts of crystalline silica, a common mineral. Also, some of our construction and material processing operations release, as dust, crystalline silica that is in the materials being handled. Excessive, prolonged inhalation of very small-sized particles of crystalline silica has allegedly been associated with respiratory disease (including silicosis). As part of our annual due diligence, we work with our stakeholders to verify that certain health and safety protocols are in place as regards the management of silica and its health effects. Nonetheless, under various laws we may be subject to future claims related to exposure to these or other substances.
Other health and safety issues related to our business include: burns arising from contact with hot cement kiln dust or dust on preheater systems; air borne hazards related to our aggregates mining activities; noise, including from chutes and hoppers, milling plants, exhaust fans and blowers; the potential for dioxin formation if chlorine-containing alternative fuels are introduced into kilns; plant cleaning and maintenance activities involving working at height or in confined or other awkward locations, and the storage and handling of coal, pet coke and certain alternative fuels, which, in their finely ground state, can pose a risk of fire or explosion; and health hazards associated with operating ready-mix concrete trucks. While we actively seek to minimize the risk posed by these issues, personal injury claims may be made, and substantial damages awarded, against us. We may also be required to change our operational practices, involving material capital expenditure.
As part of our insurance-risk governance approach, from time to time we evaluate the need to address the financial consequences of environmental laws and regulations through the purchase of insurance. As a result we do arrange certain types of environmental impairment insurance policies for both site-specific, as well as multi-site locations. We also organize non-specific environmental impairment insurance as part of the provision of a broader corporate insurance strategy. These latter insurance policies are designed to offer some assistance to our financial flexibility to the extent that the specifics of an environmental incident could give rise to a financial liability. However, we cannot assure you that a given environmental incident will be covered by the environmental insurance we have in place, or that the amount of such insurance will be sufficient to offset the liability arising from the incident.
We are an international company and are exposed to risks in the countries in which we have significant operations or interests.
We are dependent, in large part, on the economies of the countries in which we market our products. The economies of these countries are in different stages of socioeconomic development. Consequently, like many other companies with significant international operations, we are exposed to risks from changes in foreign currency exchange rates, interest rates, inflation, governmental spending, social instability and other political, economic or social developments that may materially affect our business, financial condition and results of operations.
As of December 31, 2013, we had operations in Mexico, the United States, the United Kingdom, Germany, France, Rest of Northern Europe (which includes our subsidiaries in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland), Egypt, Spain, Rest of the
 
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Mediterranean (which includes our subsidiaries in Croatia, the UAE and Israel), Colombia and Rest of South America and the Caribbean (which includes our subsidiaries in Costa Rica, the Dominican Republic, Panama, Nicaragua, Puerto Rico, Guatemala, Argentina and other assets in the Caribbean region), the Philippines and Rest of Asia (which includes our subsidiaries in Thailand, Bangladesh, China and Malaysia).
For a geographic breakdown of our net sales for the year ended December 31, 2013, see “Item 4—Information on the Company—Geographic Breakdown of Net Sales for the Year Ended December 31, 2013.”
Our operations in the South America and the Caribbean region are faced with several risks that are more significant than in other countries. These risks include political instability and economic volatility. For example, on August 18, 2008, Venezuelan officials took physical control of the facilities of CEMEX Venezuela, S.A.C.A., or CEMEX Venezuela, following the issuance on May 27, 2008 of governmental decrees confirming the expropriation of all of CEMEX Venezuela’s assets, shares and business.
Our operations in Egypt, the UAE and Israel have experienced instability as a result of, among other things, civil unrest, extremism and the deterioration of general diplomatic relations in the region. We cannot assure you that political turbulence in Egypt, Libya and other countries in Africa and the Middle East will abate in the near future or that neighboring countries will not be drawn into conflicts or experience instability. In addition, our operations in Egypt are subject to political risks, such as confiscation, expropriation and/or nationalization. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Egypt Share Purchase Agreement.”
In January 2011, protests and demonstrations demanding a regime change began taking place across Egypt, which resulted in former President Hosni Mubarak resigning from his post on February 11, 2011. Subsequently, Mr. Mubarak transferred government powers to the Egyptian Army. The Supreme Council of the Armed Forces of Egypt dissolved the Egyptian parliament, suspended the nation’s constitution, and formed a committee to recommend constitutional changes to facilitate a political transition through democratic elections. Following some delays, elections for a new parliament took place between November 2011 and January 2012. Elections held in May and June of 2012 witnessed the victory of Mohamed Morsi as the fifth president of Egypt. Despite a return to civilian rule, demonstrations and protests continued to take place across Egypt following Mr. Morsi’s election, culminating in large-scale anti-Morsi protests in June 2013. On July 3, 2013, the Egyptian military removed Mr. Morsi from office and suspended the Egyptian constitution. The Egyptian military then appointed Chief Justice Adly Mansour as the interim president of Egypt, and charged him with forming a transitional technocratic government. The removal of Mr. Morsi from office has been followed by demonstrations and clashes between his supporters and opponents across Egypt, some of which have been violent. A referendum for a new constitution was approved and a call for presidential elections is expected soon. Although CEMEX’s operations in Egypt have not been immune from disruptions resulting from the turbulence in Egypt, CEMEX continues with its cement production, dispatch and sales activities as of the date of this annual report. Risks to CEMEX’s operations in Egypt include a potential reduction in overall economic activity in Egypt exchange rate volatility, energy shortages and, which could affect demand for building materials, and interruptions in services, such as banking, which could have a material adverse effect on our operations in Egypt.
In recent years, concerns over global economic conditions, energy costs, geopolitical issues, the availability and cost of credit and the international financial markets have contributed to economic uncertainty and reduced expectations for the global economy. Meanwhile, political unrest in Ukraine and Venezuela, continued hostilities in the Middle East and the occurrence or threat of terrorist attacks also could adversely affect the global economy.
There have been terrorist attacks and ongoing threats of future terrorist attacks in countries in which we maintain operations. We cannot assure you that there will not be other attacks or threats that will lead to an economic contraction or erection of material barriers to trade in any of our markets. An economic contraction in any of our major markets could affect domestic demand for cement and could have a material adverse effect on our operations.
 
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Our operations can be affected by adverse weather conditions.
Construction activity, and thus demand for our products, decreases substantially during periods of cold weather, when it snows or when heavy or sustained rainfalls occur. Consequently, demand for our products is significantly lower during the winter in temperate countries and during the rainy season in tropical countries. Winter weather in our European and North American operations significantly reduces our first quarter sales volumes, and to a lesser extent our fourth quarter sales volumes. Sales volumes in these and similar markets generally increase during the second and third quarters because of normally better weather conditions. However, high levels of rainfall can adversely affect our operations during these periods as well. Such adverse weather conditions can adversely affect our business, financial condition and results of operations if they occur with unusual intensity, during abnormal periods, or last longer than usual in our major markets, especially during peak construction periods.
We will be adversely affected by any significant or prolonged disruption to our production facilities.
Any prolonged and/or significant disruption to our production facilities, whether due to repair, maintenance or servicing, industrial accidents, unavailability of raw materials such as energy, mechanical equipment failure, human error or otherwise, will disrupt and adversely affect our operations. Additionally, any major or sustained disruptions in the supply of utilities such as water or electricity or any fire, flood or other natural calamities or communal unrest or acts of terrorism may disrupt our operations or damage our production facilities or inventories and could adversely affect our business, financial condition and results of operations.
We typically shut down our facilities to undertake maintenance and repair work at scheduled intervals. Although we schedule shut downs such that not all of our facilities are shut down at the same time, the unexpected shut down of any facility may nevertheless affect our business, financial condition and results of operations from one period to another.
We are dependent on information technology and our systems and infrastructure, as well as those provided by our third-party service providers, face certain risks, including cyber security risks.
We rely on a variety of information technology and automated operating systems to manage or support our operations. The proper functioning of these systems is critical to the efficient operation and management of our business. In addition, these systems may require modifications or upgrades as of a result of technological changes or growth in our business. These changes may be costly and disruptive to our operations, and could impose substantial demands on management time. Our systems, as well as those provided by our third-party service providers, may be vulnerable to damage or disruption caused by circumstances beyond our control, such as physical or electronic break-ins, catastrophic events, power outages, natural disasters, computer system or network failures, viruses or malware, unauthorized access and cyber-attacks. Although we take steps to secure our systems and electronic information, these security measures may not be adequate. Any significant disruption to our systems could adversely affect our business, financial condition and results of operations.
Activities in our business can be dangerous and can cause injury to people or property in certain circumstances.
Our production facilities require individuals to work with chemicals, equipment and other materials that have the potential to cause harm and injury when used without due care. An accident or injury that occurs at our facilities could result in disruptions to our business and have legal and regulatory consequences and we may be required to compensate such individuals or incur other costs and liabilities, any and all of which could adversely affect our reputation, business, financial condition, results of operations and prospects.
 
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Labor activism and unrest, or failure to maintain satisfactory labor relations, could adversely affect our results of operations.
Labor activism and unrest may adversely affect our operations and thereby adversely affect our business, financial condition, results of operations and prospects. Although our operations have not been affected by any significant labor dispute in the past, we cannot assure you that we will not experience labor unrest, activism, disputes or actions in the future, some of which may be significant and could adversely affect our business, financial condition, results of operations and prospects.
Our insurance coverage may not cover all the risks to which we may be exposed.
We face the risks of loss and damage to our products, property and machinery due to fire, theft and natural disasters such as floods. Such events may cause a disruption to or cessation of our operations. While we believe that we have adequate and sufficient coverage, in line with industry practices, in some instances our insurance coverage may not be sufficient to cover all of our potential unforeseen losses and liabilities. In addition, our insurance coverage may not cover all the risks to which we may be exposed. If our losses exceed our insurance coverage, or if we are not covered by the insurance policies we have taken up, we may be liable to cover any shortfall or losses. Our insurance premiums may also increase substantially because of such claims. In such circumstances, our financial results may be adversely affected.
Our success depends on key members of our management.
Our success depends largely on the efforts and strategic vision of our executive management team. The loss of the services of some or all of our executive management could have a material adverse effect on our business, financial condition and results of operations.
The execution of our business plan also depends on our ongoing ability to attract and retain additional qualified employees. For a variety of reasons, particularly with respect to the competitive environment and the availability of skilled labor, we may not be successful in attracting and retaining the personnel we require. If we are unable to hire, train and retain qualified employees at a reasonable cost, we may be unable to successfully operate our business or capitalize on growth opportunities and, as a result, our business, financial condition and results of operations could be adversely affected.
Certain Mexican tax matters may have an adverse effect on our cash flow, financial condition and net income.
During November 2009, the Mexican Congress approved a general tax reform, effective as of January 1, 2010. Specifically, the tax reform required CEMEX, S.A.B. de C.V. to retroactively pay taxes (at current rates) on items in past years that were eliminated in consolidation or that reduced consolidated taxable income (“Additional Consolidation Taxes”). This tax reform required CEMEX, S.A.B. de C.V. to pay taxes on certain previously exempt intercompany dividends, certain other special tax items, and operating losses generated by members of the consolidated tax group not recovered by the individual company generating such losses within the succeeding 10-year period, which may have an adverse effect on our cash flow, financial condition and net income. This tax reform also increased the statutory income tax rate from 28% to 30% for the years 2010 to 2012, 29% for 2013, and 28% for 2014 and future years. However, in December 2012, the Federal Revenue Law ( Ley de Ingresos de la Federación ) applicable in 2013 established that the statutory income tax rate remained at 30% in 2013, and then lowered it to 29% for 2014 and 28% for 2015 and future years.
For the 2010 fiscal year, CEMEX was required to pay (at the new 30% tax rate) 25% of the Additional Consolidation Taxes for the period between 1999 and 2004, with the remaining 75% payable as follows: 25% in 2011, 20% in 2012, 15% in 2013 and 15% in 2014. Additional Consolidation Taxes arising after 2004 are taken into account in the sixth fiscal year after their occurrence and will be payable over the succeeding five years in the same proportions (25%, 25%, 20%, 15% and 15%). See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Tax Matters—Mexico” for a description of the legal proceeding regarding the January 1, 2010 tax reform described herein.
 
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On June 30, 2010, CEMEX paid approximately Ps325 million (approximately U.S.$25 million as of December 31, 2013, based on an exchange rate of Ps13.05 to U.S.$1.00) of Additional Consolidation Taxes. This first payment represented 25% of the Additional Consolidation Taxes for the period between 1999 and 2004. On March 31, 2011, CEMEX paid approximately Ps506 million (approximately U.S.$39 million as of December 31, 2013, based on an exchange rate of Ps13.05 to U.S.$1.00). This amount covered the second payment, which together with the first payment represented 50% of the Additional Consolidation Taxes for the period between 1999 and 2004, and also included the first payment of 25% of the Additional Consolidation Taxes corresponding to 2005. On March 30, 2012, CEMEX paid Ps698 million (approximately U.S.$53 million as of December 31, 2013, based on an exchange rate of Ps13.05 to U.S.$1.00). This third payment together with the first and second payments represented 70% of the Additional Consolidation Taxes for the “1999-2004” period, 50% of the Additional Consolidation Taxes for the “2005” period and it also included the first payment of 25% of the Additional Consolidation Taxes for the “2006” period. On March 27, 2013, CEMEX paid Ps2 billion (approximately U.S.$153.25 million as of December 31, 2013, based on an exchange rate of Ps13.05 to U.S.$1.00). This fourth payment together with the first, second and third payments represented 85% of the Additional Consolidation Taxes for the “1999-2004” period, 70% of the Additional Consolidation Taxes for the “2005” period, 50% of the Additional Consolidation Taxes for the “2006” period and 25% of the Additional Consolidation Taxes for the “2007” period. As of December 31, 2013, our estimated payment schedule of taxes payable resulting from changes in the tax consolidation regime was as follows: approximately Ps4.2 billion in 2014; approximately Ps5 billion in 2015; and approximately Ps15.6 billion in 2016 and thereafter. As of December 31, 2013, we had paid an aggregate amount of approximately Ps3.5 billion of Additional Consolidation Taxes. See notes 2O and 19D to our 2013 audited consolidated financial statements included elsewhere in this annual report, and for information as of March 31, 2014, see “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Tax Matters.”
In addition, as a result of the enactment of the new income tax law in Mexico approved in December of 2013 and effective beginning January 1, 2014, the statutory income tax rate for 2014 will remain at 30%, and the tax consolidation regime that was in effect until December 31, 2013, was replaced prospectively by a new integration regime, to which CEMEX will not apply. In consequence, as of 2014, each company in Mexico will determine its income taxes based solely in its individual results, and a period of up to 10 years has been established for the settlement of the liability for income taxes related to the tax consolidation regime accrued until December 31, 2013. See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Tax Matters—Mexico” for a description of the legal proceeding regarding the January 1, 2014 tax reform described herein.
It may be difficult to enforce civil liabilities against us or our directors, executive officers and controlling persons.
We are a publicly traded stock corporation with variable capital (sociedad anónima bursátil de capital variable) organized under the laws of Mexico. Substantially all of our directors and officers and some of the persons named in this annual report reside in Mexico, and all or a significant portion of the assets of those persons may be, and the majority of our assets are, located outside the United States. As a result, it may not be possible for you to effect service of process within the United States upon such persons or to enforce against them or against us in U.S. courts judgments predicated upon the civil liability provisions of the federal securities laws of the United States. We have been advised by our General Counsel, Lic. Ramiro G. Villarreal, that there is doubt as to the enforceability in Mexico, either in original actions or in actions for enforcement of judgments of U.S. courts, of civil liabilities predicated on the U.S. federal securities laws
The protections afforded to non-controlling shareholders in Mexico are different from those in the United States and may be more difficult to enforce.
Under Mexican law, the protections afforded to non-controlling shareholders are different from those in the United States. In particular, the legal framework and case law pertaining to disputes between shareholders and us,
 
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our directors, our officers or our controlling shareholders, if any, are less developed under Mexican law than under U.S. law. Mexican law generally only permits shareholder derivative suits (i.e., suits for our benefit as opposed to the direct benefit of our shareholders) and there are different procedural requirements for bringing shareholder lawsuits, such as shareholder derivative suits, which differ from those you may be familiar with under U.S. and other laws. There is also a substantially less active plaintiffs’ bar dedicated to the enforcement of shareholders’ rights in Mexico than in the United States. As a result, in practice it may be more difficult for our non-controlling shareholders to enforce their rights against us or our directors or controlling shareholders than it would be for shareholders of a U.S. company.
ADS holders may only vote the Series B shares represented by the CPOs deposited with the ADS depositary through the ADS depositary and are not entitled to vote the Series A shares represented by the CPOs deposited with the ADS depositary or to attend shareholders’ meetings.
Under the terms of the ADSs and CEMEX, S.A.B. de C.V.’s by-laws, a holder of an ADS has the right to instruct the ADS depositary to exercise voting rights only with respect to Series B shares represented by the CPOs deposited with the depositary, but not with respect to the Series A shares represented by the CPOs deposited with the depositary. ADS holders will not be able to directly exercise their right to vote unless they withdraw the CPOs underlying their ADSs (and, in the case of non-Mexican holders, even if they do so, they may not vote the Series A shares represented by the CPOs) and may not receive voting materials in time to ensure that they are able to instruct the depositary to vote the CPOs underlying their ADSs or receive sufficient notice of a shareholders’ meeting to permit them to withdraw their CPOs to allow them to cast their vote with respect to any specific matter. In addition, the depositary and its agents may not be able to send out voting instructions on time or carry them out in the manner an ADS holder has instructed. As a result, ADS holders may not be able to exercise their right to vote and they may lack recourse if the CPOs underlying their ADSs are not voted as they requested. In addition, ADS holders are not entitled to attend shareholders’ meetings. ADS holders will also not be permitted to vote the CPOs underlying the ADSs directly at a shareholders’ meeting or to appoint a proxy to do so without withdrawing the CPOs. If the ADS depositary does not receive voting instructions from a holder of ADSs in a timely manner such holder will nevertheless be treated as having instructed the ADS depositary to give a proxy to a person we designate to vote the B shares underlying the CPOs represented by the ADSs in his/her discretion. The ADS depositary or the custodian for the CPOs on deposit may represent the CPOs at any meeting of holders of CPOs even if no voting instructions have been received. The CPO trustee may represent the A shares and the B shares represented by the CPOs at any meeting of holders of A shares or B shares even if no voting instructions have been received. By so attending, the ADS depositary, the custodian or the CPO trustee, as applicable, may contribute to the establishment of a quorum at a meeting of holders of CPOs, A shares or B shares, as appropriate.
Non-Mexicans may not hold CEMEX, S.A.B. de C.V.’s Series A shares directly and must have them held in a trust at all times.
Non-Mexican investors in CEMEX, S.A.B. de C.V.’s CPOs or ADSs may not directly hold the underlying Series A shares, but may hold them indirectly through CEMEX, S.A.B. de C.V.’s CPO trust. Upon the early termination or expiration of the 30-year term of CEMEX, S.A.B. de C.V.’s CPO trust, the Series A shares underlying CEMEX, S.A.B. de C.V.’s CPOs held by non-Mexican investors must be placed into a new trust similar to the current CPO trust for non-Mexican investors to continue to hold an economic interest in such shares. We cannot assure you that a new trust similar to the CPO trust will be created or that the relevant authorization for the creation of the new trust or the transfer of our Series A shares to such new trust will be obtained. In that event, since non-Mexican holders currently cannot hold Series A shares directly, they may be required to sell all of their Series A shares to a Mexican individual or corporation.
Preemptive rights may be unavailable to ADS holders.
ADS holders may be unable to exercise preemptive rights granted to CEMEX, S.A.B. de C.V.’s shareholders, in which case ADS holders could be substantially diluted following future equity or equity-linked
 
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offerings. Under Mexican law, whenever CEMEX, S.A.B. de C.V. issues new shares for payment in cash or in kind, CEMEX, S.A.B. de C.V. is generally required to grant preemptive rights to CEMEX, S.A.B. de C.V.’s shareholders, except if the shares are issued in respect of a public offering or if the relevant shares underlie convertible securities. However, ADS holders may not be able to exercise these preemptive rights to acquire new shares unless both the rights and the new shares are registered in the United States or an exemption from registration is available. We cannot assure you that we would file a registration statement in the United States at the time of any rights offering.
Mexican Peso Exchange Rates
Mexico has had no exchange control system in place since the dual exchange control system was abolished in November 1991. The Mexican Peso has floated freely in foreign exchange markets since December 1994, when the Mexican Central Bank ( Banco de México ) abandoned its prior policy of having an official devaluation band. Since then, the Mexican Peso has been subject to substantial fluctuations in value. The Mexican Peso appreciated against the U.S. Dollar by approximately 5% and 6% in 2009 and 2010, respectively, depreciated against the U.S. Dollar by approximately 11.5% in 2011, appreciated against the U.S. Dollar by approximately 9% in 2012 and depreciated against the U.S. Dollar by approximately 2% in 2013. These percentages are based on the exchange rate that we use for accounting purposes, or the CEMEX accounting rate. The CEMEX accounting rate represents the average of three different exchange rates that are provided to us by Banco Nacional de México, S.A., integrante del Grupo Financiero Banamex, or Banamex. For any given date, the CEMEX accounting rate may differ from the noon buying rate for Mexican Pesos in New York City published by the U.S. Federal Reserve Bank of New York.
The following table sets forth, for the periods and dates indicated, the end-of-period, average and high and low points of the CEMEX accounting rate as well as the noon buying rate for Mexican Pesos, expressed in Mexican Pesos per U.S.$1.00.

 	  	CEMEX Accounting Rate	 	  	Noon Buying Rate	 	
Year Ended December 31,	  	End of the
period	 	  	Average(1)	 	  	High	 	  	Low	 	  	End of the
period	 	  	Average(1)	 	  	High	 	  	Low	 	
2009	  	 	13.09	  	  	 	13.51	 	  	 	15.57	 	  	 	12.62	 	  	 	13.06	 	  	 	13.50	 	  	 	15.41	 	  	 	12.63	 	
2010	  	 	12.36	  	  	 	12.67	 	  	 	13.21	 	  	 	12.15	 	  	 	12.38	 	  	 	12.64	 	  	 	13.19	 	  	 	12.16	 	
2011	  	 	13.96	 	  	 	12.45	 	  	 	14.21	 	  	 	11.50	 	  	 	13.95	 	  	 	12.43	 	  	 	14.25	 	  	 	11.51	 	
2012	  	 	12.85	 	  	 	13.16	 	  	 	14.37	 	  	 	12.56	 	  	 	12.96	 	  	 	13.15	 	  	 	14.37	 	  	 	12.63	 	
2013	  	 	13.05	 	  	 	12.85	 	  	 	13.39	 	  	 	11.98	 	  	 	13.10	 	  	 	12.76	 	  	 	13.43	 	  	 	11.98	 	
 	 	 	 	 	 	 	 	 	
Monthly (2013)	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	
October	  	 	13.02	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.00	 	  	 	 	 	  	 	13.25	 	  	 	12.77	 	
November	  	 	13.11	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.11	 	  	 	 	 	  	 	13.24	 	  	 	12.87	 	
December	  	 	13.05	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.10	 	  	 	 	 	  	 	13.22	 	  	 	12.85	 	
 	 	 	 	 	 	 	 	 	
Monthly (2014)	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	
January	  	 	13.36	  	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.36	  	  	 	 	 	  	 	13.46	  	  	 	13.00	  	
February	  	 	13.25	  	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.23	  	  	 	 	 	  	 	13.51	  	  	 	13.20	  	
March	  	 	13.06	  	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.06	  	  	 	 	 	  	 	13.33	  	  	 	13.06	  	
April(2)	  	 	13.04	  	  	 	 	 	  	 	 	 	  	 	 	 	  	 	13.06	  	  	 	 	 	  	 	13.13	  	  	 	12.95	  	
 
(1)	The average of the CEMEX accounting rate or the noon buying rate for Mexican Pesos, as applicable, on the last day of each full month during the relevant period.	
(2)	April noon buying rates and CEMEX accounting rates are through April 17, 2014.	
On April 21, 2014, the CEMEX accounting rate was Ps13.04 to U.S.$1.00. Between January 1, 2013 and April 17, 2014, the Mexican Peso appreciated by approximately 0.3% against the U.S. Dollar, based on the noon buying rate for Mexican Pesos.
 
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For a discussion of the financial treatment of our operations conducted in other currencies, see “—Selected Consolidated Financial Information.”
Selected Consolidated Financial Information
The financial data set forth below as of and for each of the four years ended December 31, 2013 have been derived from our audited consolidated financial statements. The financial data set forth below as of December 31, 2013 and 2012 and for each of the three years ended December 31, 2013, 2012 and 2011 have been derived from, and should be read in conjunction with, and are qualified in their entirety by reference to, our 2013 audited consolidated financial statements and the notes thereto included elsewhere in this annual report. Our audited consolidated financial statements prepared under IFRS for the year ended December 31, 2013 were approved by our shareholders at the annual general ordinary shareholders’ meeting, which was held on March 20, 2014. Our consolidated financial statements as of December 31, 2012 and 2011 and for the three years ended as of December 31, 2012 included in our annual report on Form 20-F for the year ended December 31, 2012 (the “2012 20-F”), do not include the adjustments from the application of those newly issued financial reporting standards effective January 1, 2013. The effects of the amendments to IAS 19 “Employee Benefits” and the IFRIC 20 “Stripping Cost in the production phase of a surface mine” were recognized in our 2013 audited consolidated financial statements.
Pursuant to guidance set forth in SEC’s International Series Release No. 1285, File No. 57-15-04, we are only presenting four years of our selected consolidated statement of operation due to our adoption of IFRS on January 1, 2010.
The operating results of newly acquired businesses are consolidated in our financial statements beginning on the acquisition date. Therefore, all periods presented do not include operating results corresponding to newly acquired businesses before we assumed control. As a result, the financial data for the years ended December 31, 2013, 2012, 2011 and 2010 may not be comparable to that of prior periods.
Our audited consolidated financial statements included elsewhere in this annual report, have been prepared in accordance with IFRS, which differ in significant respects from U.S. GAAP. The regulations of the SEC do not require foreign private issuers that prepare their financial statements on the basis of IFRS (as published by the International Accounting Standards Board) to reconcile such financial statements to U.S. GAAP. Accordingly, beginning in 2011 upon our adoption of IFRS, we no longer reconcile our financial information to U.S. GAAP.
Non-Mexican Peso amounts included in the financial statements are first translated into U.S. Dollar amounts, in each case at a commercially available or an official government exchange rate for the relevant period or date, as applicable, and those U.S. Dollar amounts are then translated into Mexican Peso amounts at the CEMEX accounting rate, described under “—Mexican Peso Exchange Rates,” as of the relevant period or date, as applicable.
The U.S. Dollar amounts provided below, unless otherwise indicated elsewhere in this annual report, are translations of Mexican Peso amounts at an exchange rate of Ps13.05 to U.S.$1.00, the CEMEX accounting rate as of December 31, 2013. However, in the case of transactions conducted in U.S. Dollars, we have presented the U.S. Dollar amount of the transaction and the corresponding Mexican Peso amount that is presented in our consolidated financial statements. These translations have been prepared solely for the convenience of the reader and should not be construed as representations that the Mexican Peso amounts actually represent those U.S. Dollar amounts or could be converted into U.S. Dollars at the rate indicated. The noon buying rate for Mexican Pesos on December 31, 2013 was Ps13.10 to U.S.$1.00. From December 31, 2013 through April 17, 2014, the Mexican Peso appreciated by approximately 0.3% against the U.S. Dollar, based on the noon buying rate for Mexican Pesos.
 
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CEMEX, S.A.B. DE C.V. and Subsidiaries Selected Consolidated Financial Information

 	 	As of and For the Year Ended December 31,	 	
 	 	2010	 	 	2011	 	 	2012	 	 	2013	 	
 	 	(in millions of Mexican Pesos, except ratios and share and
per share amounts)	 	
Statement of Operations Information:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net sales	 	 	Ps 177,641	  	 	 	Ps 189,887	 	 	 	Ps 197,036	 	 	 	Ps 195,661	 	
Cost of sales(1)	 	 	(127,845	) 	 	 	(136,181	) 	 	 	(138,706	) 	 	 	(134,774	) 	
Gross profit	 	 	49,796	  	 	 	53,706	 	 	 	58,330	 	 	 	60,887	 	
Administrative, selling and distribution expenses	 	 	(39,060	) 	 	 	(41,844	) 	 	 	(41,329	) 	 	 	(41,383	) 	
Operating earnings before other expenses, net(2)	 	 	10,736	  	 	 	11,862	 	 	 	17,001	 	 	 	19,504	 	
Other expense, net	 	 	(6,335	) 	 	 	(5,233	) 	 	 	(5,490	) 	 	 	(4,903	) 	
Operating earnings(2)	 	 	4,401	  	 	 	6,629	 	 	 	11,511	 	 	 	14,601	 	
Financial items(3)	 	 	(15,276	) 	 	 	(19,092	) 	 	 	(17,534	) 	 	 	(18,231	) 	
Equity in income (loss) of associates	 	 	(487	) 	 	 	(334	) 	 	 	728	 	 	 	229	 	
Loss before income tax	 	 	(11,362	) 	 	 	(12,797	) 	 	 	(5,295	) 	 	 	(3,401	) 	
Non-controlling net income	 	 	46	  	 	 	21	 	 	 	662	 	 	 	1,223	 	
Controlling interest net loss	 	 	(13,482	) 	 	 	(24,953	) 	 	 	(12,000	) 	 	 	(10,834	) 	
Basic loss per share(4)(5)	 	 	(0.37	) 	 	 	(0.69	) 	 	 	(0.33	) 	 	 	(0.29	) 	
Diluted loss per share(4)(5)	 	 	(0.37	) 	 	 	(0.69	) 	 	 	(0.33	) 	 	 	(0.29	) 	
Number of shares outstanding(4)(6)(7)	 	 	30,065	  	 	 	31,410	 	 	 	32,808	 	 	 	34,270	 	
Balance Sheet Information:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents	 	 	8,354	  	 	 	16,128	 	 	 	12,478	 	 	 	15,176	 	
Property, machinery and equipment, net	 	 	221,271	  	 	 	234,342	 	 	 	213,075	 	 	 	205,717	 	
Total assets	 	 	504,881	  	 	 	541,655	 	 	 	478,797	 	 	 	496,130	 	
Short-term debt including current maturities of long-term debt	 	 	5,618	  	 	 	4,673	 	 	 	596	 	 	 	3,959	 	
Long-term debt	 	 	188,776	  	 	 	203,798	 	 	 	177,539	 	 	 	187,021	 	
Non-controlling interest and Perpetual Debentures(8)	 	 	19,443	  	 	 	16,602	 	 	 	14,488	 	 	 	14,939	 	
Total controlling stockholders’ equity	 	 	163,744	  	 	 	155,104	 	 	 	141,139	 	 	 	133,379	 	
Other Financial Information:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net working capital(9)	 	 	18,692	  	 	 	23,690	 	 	 	19,667	 	 	 	20,754	 	
Book value per share(4)(7)(10)	 	 	5.45	  	 	 	4.94	 	 	 	4.30	 	 	 	3.89	 	
Operating margin before other expense, net	 	 	6.0	% 	 	 	6.2	% 	 	 	8.6	% 	 	 	10.0	% 	
Operating EBITDA(11)	 	 	29,844	  	 	 	29,710	 	 	 	34,506	 	 	 	33,963	 	
Ratio of Operating EBITDA to interest expense(11)	 	 	2.0	  	 	 	1.8	 	 	 	1.9	 	 	 	1.7	 	
Capital expenditures	 	 	6,963	  	 	 	8,540	 	 	 	10,465	 	 	 	8,409	 	
Depreciation and amortization	 	 	19,108	  	 	 	17,848	 	 	 	17,505	 	 	 	14,459	 	
Net cash flow provided by operating activities before interest, coupons on perpetual debentures and income taxes	 	 	25,952	  	 	 	23,942	 	 	 	30,222	 	 	 	27,045	 	
Basic loss per CPO(4)(5)	 	 	(1.11	) 	 	 	(2.07	) 	 	 	(0.99	) 	 	 	(0.87	) 	
Total debt plus other financial obligations	 	 	210,619	  	 	 	249,372	 	 	 	218,026	 	 	 	230,298	 	
Total debt plus other financial obligations, as adjusted to give effect to the Recent Financing Transactions(12)	 	 	—  	  	 	 	—  	  	 	 	—  	 	 	 	226,920	  	
 
(1)	Cost of sales includes depreciation, amortization and depletion of assets involved in production, freight expenses of raw materials used in our producing plants, delivery expenses of our ready-mix concrete business and expenses related to storage in producing plants. Our cost of sales excludes (i) expenses related to personnel and equipment comprising our selling network and those expenses related to warehousing at	
 
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 	the points of sale, which are included as part of our administrative and selling expenses line item, and (ii) freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations, which are all included as part of our distribution expenses line item.	
(2)	The line item “Operating earnings before other expenses, net” was titled by CEMEX until the year ended December 31, 2011 as “Operating income.” The line item “Operating earnings” was titled by CEMEX until the year ended December 31, 2011 as “Operating income after other expenses, net.” See note 2A to our 2013 audited consolidated financial statements included elsewhere in this annual report.	
(3)	Financial items include financial expenses and our other financial (expense) income, net, which includes our financial income, results from financial instruments, net (derivatives and marketable securities), foreign exchange results, effects of net present value on assets and liabilities and others, net. See note 7 to our 2013 audited consolidated financial statements included elsewhere in this annual report.	
(4)	CEMEX, S.A.B. de C.V.’s capital stock consists of Series A shares and Series B shares. Each of CEMEX, S.A.B. de C.V.’s CPOs represents two Series A shares and one Series B share. As of December 31, 2013, approximately 99.76% of CEMEX, S.A.B. de C.V.’s outstanding share capital was represented by CPOs. Each of CEMEX, S.A.B. de C.V.’s ADSs represents ten CPOs.	
(5)	Loss per share are calculated based upon the weighted average number of shares outstanding during the year, as described in note 22 to our 2013 audited consolidated financial statements included elsewhere in this annual report. Basic loss per CPO is determined by multiplying the basic loss per share for each period by three (the number of shares underlying each CPO). Basic loss per CPO is presented solely for the convenience of the reader and does not represent a measure under IFRS.	
(6)	CEMEX, S.A.B. de C.V. did not declare a dividend for fiscal years 2011, 2012 and 2013. At each of CEMEX, S.A.B. de C.V.’s 2011, 2012 and 2013 annual general ordinary shareholders’ meetings, held on February 23, 2012, March 21, 2013 and March 20, 2014, respectively, CEMEX, S.A.B. de C.V.’s shareholders approved a recapitalization of retained earnings. New CPOs issued pursuant to each such recapitalization were allocated to shareholders on a pro-rata basis. As a result, shares equivalent to approximately 418.8 million CPOs, approximately 437.4 million CPOs and approximately 468 million CPOs were allocated to shareholders on a pro-rata basis in connection with the 2011, 2012 and 2013 recapitalizations, respectively. In each case, CPO holders received one new CPO for each 25 CPOs held and ADS holders received one new ADS for each 25 ADSs held. There was no cash distribution and no entitlement to fractional shares.	
(7)	Based upon the total number of shares outstanding at the end of each period, expressed in millions of shares, and includes shares subject to financial derivative transactions, but does not include shares held by our subsidiaries.	
(8)	As of December 31, 2011, 2012 and 2013, non-controlling interest includes U.S.$938 million (Ps13,089 million), U.S.$473 million (Ps6,078 million) and U.S.$477 million (Ps6,223 million), respectively, that represents the nominal amount of Perpetual Debentures, denominated in U.S. Dollars and Euros, issued by consolidated entities. In accordance with IFRS, these securities qualify as equity due to their perpetual nature and the option to defer the coupons.	
(9)	Net working capital equals trade receivables, less allowance for doubtful accounts plus inventories, net, less trade payables.	
(10)	Book value per share is calculated by dividing the total controlling stockholders’ equity by the number of shares outstanding.	
(11)	Operating EBITDA equals operating earnings before other expenses, net, plus amortization and depreciation expenses. Operating EBITDA and the ratio of Operating EBITDA to interest expense are presented because we believe that they are widely accepted as financial indicators of our ability to internally fund capital expenditures and service or incur debt. Operating EBITDA and such ratios should not be considered as indicators of our financial performance, as alternatives to cash flow, as measures of liquidity or as being comparable to other similarly titled measures of other companies. Under IFRS, while there are line items that are customarily included in statements of operations prepared pursuant to IFRS, such as net sales, operating costs and expenses and financial revenues and expenses, among others, the inclusion of certain subtotals, such as operating earnings before other expenses, net, and the display of such statement of operations varies significantly by industry and company according to specific needs. Operating EBITDA is	
 
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 	reconciled below to operating earnings before other expenses, net, as reported in the statements of operations, and to net cash flows provided by operating activities before interest and income taxes paid in cash, as reported in the statement of cash flows. Interest expense under IFRS does not include coupon payments and issuance costs of the Perpetual Debentures issued by consolidated entities of approximately Ps1,010 million in 2011, approximately Ps453 million in 2012 and approximately Ps405 million in 2013, as described in note 20D to our 2013 audited consolidated financial statements included elsewhere in this annual report.	

 	 	For the Year Ended December 31,	 	
 	 	2010	 	 	2011	 	 	2012	 	 	2013	 	
 	 	(in millions of Mexican Pesos)	 	
Reconciliation of operating EBITDA to net cash flows provided by operating activities before interest and income taxes paid in cash	 	 	 	 	 	 	 	 	
Operating EBITDA	 	 	Ps 29,844	  	 	 	Ps 29,710	 	 	 	Ps 34,506	 	 	 	Ps 33,963	 	
Less:	 	 	 	 	 	 	 	 	 	 	 	 	
Operating depreciation and amortization expense	 	 	19,108	  	 	 	17,848	 	 	 	17,505	 	 	 	14,459	 	
Operating earnings before other expenses, net	 	 	10,736	  	 	 	11,862	 	 	 	17,001	 	 	 	19,504	 	
Plus/minus:	 	 	 	 	 	 	 	 	 	 	 	 	
Changes in working capital excluding income taxes	 	 	(623	) 	 	 	(727	) 	 	 	(2,048	) 	 	 	(4,082	) 	
Operating depreciation and amortization expense	 	 	19,108	  	 	 	17,848	 	 	 	17,505	 	 	 	14,459	 	
Other items, net	 	 	(3,269	) 	 	 	(5,041	) 	 	 	(2,236	) 	 	 	(2,836	) 	
Net cash flow provided by operating activities before interest, coupons on perpetual debentures and income taxes	 	 	Ps 25,952	  	 	 	Ps 23,942	 	 	 	Ps 30,222	 	 	 	Ps 27,045	 	
 
(12)	The table below shows a reconciliation of total debt plus other financial obligations to total debt plus other financial obligations, as adjusted to give effect to the Recent Financing Transactions.	

 	 	As of December 31, 2013	 	
 	 	Less than 1
year	 	 	1-3
Years	 	 	3-5
Years	 	 	More than
5 Years	 	 	Total	 	
 	 	(Amounts in millions)	 	
Total debt plus other financial obligations	 	Ps	9,527	  	 	 	21,916	  	 	 	72,736	  	 	 	126,119	  	 	 	230,298	  	
Total debt plus other financial obligations	 	U.S.$	730	  	 	 	1,679	  	 	 	5,574	  	 	 	9,664	  	 	 	17,647	  	
 	 	 	 	 	 	
Effect of the Recent Financing Transactions	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
December 2009 Euro Notes Redemption	 	U.S.$	—  	  	 	 	 	 	 	 	(178	) 	 	 	 	 	 	 	(178	) 	
April 2014 Notes Due 2024	 	U.S.$	—  	  	 	 	 	 	 	 	 	 	 	 	995	  	 	 	995	  	
April 2014 Notes Due 2021	 	U.S.$	—  	  	 	 	 	 	 	 	 	 	 	 	548	  	 	 	548	  	
Eurobond Repayment	 	U.S.$	(286	) 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	(286	) 	
April Tender Offer January 2018	 	U.S.$	—  	  	 	 	 	 	 	 	 	 	 	 	(476	) 	 	 	(476	) 	
April Tender Offer May Notes 2020	 	U.S.$	—  	  	 	 	 	 	 	 	 	 	 	 	(594	) 	 	 	(594	) 	
Private Inducements	 	U.S.$	—  	  	 	 	(268	) 	 	 	 	 	 	 	 	 	 	 	(268	) 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total debt and other financial obligations, as adjusted to give effect to the Recent Refinancing Transactions	 	U.S.$	444	  	 	 	1,411	  	 	 	5,396	  	 	 	10,137	  	 	 	17,388	  	
Total debt and other financial obligations, as adjusted to give effect to the Recent Refinancing Transactions	 	P	s 5,795	  	 	 	18,423	  	 	 	70,417	  	 	 	132,285	  	 	 	226,920	  	
 
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Item 4—Information on the Company
Unless otherwise indicated, references in this annual report to our sales and assets, including percentages, for a country or region are calculated before eliminations resulting from consolidation, and thus include intercompany balances between countries and regions. These intercompany balances are eliminated when calculated on a consolidated basis.
Business Overview
CEMEX, S.A.B. de C.V. is a publicly traded stock corporation with variable capital, or sociedad anónima bursátil de capital variable , organized under the laws of Mexico, with our principal executive offices in Avenida Ricardo Margáin Zozaya #325, Colonia Valle del Campestre, Garza García, Nuevo León, 66265, México. Our main phone number is +52 81 8888-8888.
CEMEX, S.A.B. de C.V. was founded in 1906 and was registered with the Mercantile Section of the Public Registry of Property and Commerce in Monterrey, Nuevo Leon, Mexico, on June 11, 1920 for a period of 99 years. At our 2002 annual general ordinary shareholders’ meeting, this period was extended to the year 2100. Beginning April 2006, CEMEX’s full legal and commercial name is CEMEX, Sociedad Anónima Bursátil de Capital Variable.
CEMEX is one of the largest cement companies in the world, based on annual installed cement production capacity as of December 31, 2013 of approximately 94.8 million tons. We are the largest ready-mix concrete company in the world with annual sales volumes of approximately 54.9 million cubic meters and one of the largest aggregates companies in the world with annual sales volumes of approximately 159 million tons, in each case based on our annual sales volumes in 2013. We are also one of the world’s largest traders of cement and clinker, having traded approximately 8.8 million tons of cement and clinker in 2013. CEMEX, S.A.B. de C.V. is engaged, either directly or indirectly through our operating subsidiaries, in the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates, clinker and other construction materials throughout the world, and that provides reliable construction-related services to customers and communities in more than 50 countries throughout the world.
We operate globally, with operations in Mexico, the United States, Northern Europe, the Mediterranean, South America and the Caribbean and Asia. We had total assets of approximately Ps496 billion (U.S.$38 billion) as of December 31, 2013, and an equity market capitalization of approximately Ps197,569 million (U.S.$15,081 million) as of April 24, 2014.
 
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As of December 31, 2013, our main cement production facilities were located in Mexico, the United States, Spain, Egypt, Germany, Colombia, the Philippines, Poland, the Dominican Republic, the United Kingdom, Croatia, Panama, Latvia, Puerto Rico, Thailand, Costa Rica and Nicaragua. As of December 31, 2013, our assets (after eliminations), cement plants and installed capacity, on an unconsolidated basis by region, were as set forth below. Installed capacity, which refers to theoretical annual production capacity, represents gray portland cement equivalent capacity, which counts each ton of white cement capacity as approximately two tons of gray portland cement capacity, and includes installed capacity of cement plants that have been temporarily closed.

 	 	As of December 31, 2013	 	
 	 	Assets After
Eliminations
(in Billions of
Mexican Pesos)	 	 	Number of
Cement Plants	 	 	Installed Cement
Production
Capacity
(Millions of Tons
Per Annum)	 	
Mexico(1)	 	 	77	  	 	 	15	 	 	 	29.3	 	
United States(2)	 	 	206	 	 	 	13	 	 	 	17.1	 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	29	  	 	 	2	 	 	 	2.4	 	
Germany	 	 	13	  	 	 	2	 	 	 	4.9	 	
France	 	 	15	  	 	 	—  	  	 	 	—  	  	
Rest of Northern Europe(3)	 	 	18	  	 	 	3	 	 	 	5.1	 	
The Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	
Spain(4)	 	 	23	  	 	 	6	 	 	 	9.4	 	
Egypt	 	 	7	  	 	 	1	 	 	 	5.4	 	
Rest of Mediterranean(5)	 	 	11	 	 	 	3	 	 	 	2.4	 	
South America and the Caribbean (“SAC”)	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	17	 	 	 	2	 	 	 	4.0	  	
Rest of SAC(6)	 	 	17	 	 	 	5	 	 	 	8.0	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	8	  	 	 	2	 	 	 	4.5	 	
Rest of Asia(7)	 	 	2	 	 	 	1	 	 	 	1.2	 	
Corporate and Other Operations	 	 	53	  	 	 	—  	  	 	 	—  	  	
 	 	 	 	 	 	 	 	 	 	 	 	 	
Total	 	 	496	  	 	 	55	  	 	 	93.7	  	

The above table includes our proportional interest in the installed capacity of companies in which we hold a non-controlling interest.
 
(1)	“Number of cement plants” and “installed cement production capacity” includes two cement plants that have been temporarily closed with an aggregate annual installed capacity of 2.7 million tons of cement.	
(2)	“Number of cement plants” and “installed cement production capacity” includes two cement plants that have been temporarily closed with an aggregate annual installed capacity of 2.1 million tons of cement.	
(3)	Refers primarily to our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland. For purposes of the columns labeled “Assets after eliminations” and “Installed cement production capacity,” includes our approximate 37.8% interest, as of December 31, 2013, in a Lithuanian cement producer that operated one cement plant with an annual installed capacity of 1.3 million tons of cement as of December 31, 2013.	
(4)	For purposes of “number of cement plants” and “installed cement production capacity” includes one cement plant that has been temporarily closed with an aggregate annual installed capacity of 0.1 million tons of cement.	
(5)	Refers primarily to our operations in Croatia, the United Arab Emirates (“UAE”) and Israel.	
(6)	Includes our operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala and small ready-mix concrete operations in Argentina.	
(7)	Includes our operations in Thailand, Bangladesh, China and Malaysia.	
 
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During part of the last 25 years, we embarked on a major geographic expansion program to diversify our cash flows and enter markets whose economic cycles within the cement industry largely operate independently from those of Mexico and which offer long-term growth potential. We have built an extensive network of marine and land-based distribution centers and terminals that give us marketing access around the world. The following is our only significant acquisition over the last five years:
 
 	•	 	In August 2011, as a result of Ready Mix USA’s exercise of its put option (see note 15B to our 2013 audited consolidated financial statements included elsewhere in this annual report), and after performance of the obligations by both parties under the put option agreement, effective as of August 1, 2011, through the payment of approximately U.S.$352 million (approximately Ps4,914 million), we acquired our former joint venture partner’s interests in CEMEX Southeast, LLC and Ready Mix USA, LLC, including a non-compete and a transition services agreement. See “Item 5—Operating and Financial Review and Prospects—Results of Operations—Investments, Acquisitions and Divestitures—Investments and Acquisitions” for additional information regarding the Ready Mix USA put option right.	
As part of our strategy, we periodically review and reconfigure our operations in implementing our post-merger integration process, and we sometimes divest assets that we believe are less important to our strategic objectives. The following have been our most significant divestitures and reconfigurations over the last five years:
 
 	•	 	In November 2012, CEMEX Latam, a then wholly-owned subsidiary of CEMEX España, completed the sale of newly issued common shares in the CEMEX Latam Offering, representing approximately 26.65% of CEMEX Latam’s outstanding common shares. CEMEX Latam is the main holding company for CEMEX’s operations in Brazil, Colombia, Costa Rica, Guatemala, Nicaragua, Panama and El Salvador. See “Item 5—Operating and Financial Review and Prospects—Results of Operations—Investments, Acquisitions and Divestitures—Investments and Acquisitions” for additional information regarding the CEMEX Latam Offering.	
 
 	•	 	On October 12, 2012, CEMEX made the final payment in connection with the acquisition, initiated in April 2012 from third parties, of the 49% non-controlling interest in an indirect holding company of CEMEX Guatemala, CEMEX’s main operating subsidiary in Guatemala, for a total amount including the final payment of approximately U.S.$54 (Ps694 million).	
 
 	•	 	On May 17, 2012, Readymix Investments, an indirect subsidiary of CEMEX España, acquired all the shares of Readymix plc (“Readymix”), CEMEX’s main operating subsidiary in the Republic of Ireland. The acquisition price for the 38.8% non-controlling interest in Readymix was approximately €11 million (U.S.$15 or Ps187 million).	
 
 	•	 	On August 27, 2010, we completed the sale of seven aggregates quarries, three resale aggregate distribution centers and one concrete block manufacturing facility in Kentucky to Bluegrass Materials Company, LLC for U.S.$88 million in proceeds.	
 
 	•	 	On October 1, 2009, we completed the sale of our Australian operations to a subsidiary of Holcim Ltd. (“Holcim”). The net proceeds from this sale were approximately $2.02 billion Australian Dollars (approximately U.S.$1.7 billion).	
 
 	•	 	On June 15, 2009, we sold three quarries (located in Nebraska, Wyoming and Utah) and our 49% joint venture interest in the operations of a quarry located in Granite Canyon, Wyoming, to Martin Marietta Materials, Inc. for U.S.$65 million.	
 
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Geographic Breakdown of Net Sales for the year ended December 31, 2013
The following chart indicates the geographic breakdown of our net sales, before eliminations resulting from consolidation, for the year ended December 31, 2013:

For a description of a breakdown of total revenues by geographic markets for each of the years ended December 31, 2011, 2012, and 2013, please see “Item 5—Operating and Financial Review and Prospects.”
Breakdown of Net Sales by Product for the year ended December 31, 2013
The following chart indicates the breakdown of our net sales by product, after eliminations resulting from consolidation, for the year ended December 31, 2013:

Our Business Strategy
We seek to continue to improve our overall business by growing profitably through our integrated positions along the cement value chain and maximizing our overall performance by employing the following strategies:
Focus on our core business of cement, ready-mix concrete and aggregates
We plan to continue focusing on our core businesses, the production and sale of cement, ready-mix concrete and aggregates, and the vertical integration of these businesses, leveraging our global presence and extensive operations worldwide. We believe that managing our cement, ready-mix concrete and aggregates operations as
 
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an integrated business allows us to capture a greater portion of the cement value chain, as our established presence in ready-mix concrete secures a distribution channel for our cement products. Moreover, we believe that, in most cases, vertical integration brings us closer to the end consumer by allowing us to offer comprehensive building solutions. We believe that this strategic focus enables us to grow our existing businesses, particularly in high-growth markets and higher-margin products. In approximately 25 years, we evolved from primarily a Mexican cement producer to a global building materials company with a diversified product portfolio across a balanced mix of developed and emerging economies that provides comprehensive building solutions.
We intend to focuse on our most promising, structurally attractive markets with considerable infrastructure needs and housing requirements, where we have substantial market share and benefit from competitive advantages. Despite the current economic and political turmoil, we believe that some of the countries in which we operate (particularly Mexico, the United States, Colombia and the Philippines) are poised for economic growth, as significant investments are made in infrastructure, notably by the economic stimulus programs that have been announced by governments in some of these markets.
We are focused on managing costs and maintaining profitability in the current economic environment, and we believe that we are well-positioned to benefit when the construction cycle recovers in the main countries in which we operate. A combination of continued government stimulus spending and renewed focus on infrastructure investment in many of our markets, along with some recovery for housing and for non-residential construction sectors, could translate into substantial growth in demand for our products.
We will continue to analyze our current portfolio and monitor opportunities for asset divestitures, as evidenced by the disposals we have made in the last few years in Central and South America, the United States, Spain, Italy, Australia and elsewhere, asset swaps or mergers.
Provide our customers with the best value proposition
We aspire to be the supplier of choice for our customers, whether governmental entities, construction firms that operates in the countries in which we operate or individuals building or expanding their family’s first home. We seek a clear understanding of what our customers require to meet their needs and provide them with the most efficient and effective building solutions for their construction project, large or small. We are committed to suiting our customers’ needs by providing them with not only high quality and tailor-made products, but also with reliable and cost-efficient building solutions.
We believe that by pursuing our objective of integrating our business along the cement value chain, we can improve and broaden the value proposition that we provide to our customers. We believe that by offering integrated solutions, we can provide our customers more reliable sourcing as well as higher quality services and products.
We continue to focus on developing new competitive advantages that will differentiate us from our competitors. We are evolving from a traditional supplier of building materials into a fully integrated building solutions provider in many of the countries in which we operate, mostly in infrastructure projects which make extensive use of our cement and concrete products. For example, in Mexico alone, we have paved more than 10,000 kilometers of concrete highways and roads. We have also provided tailor-made solutions for important infrastructure projects in Mexico and abroad, including the Baluarte Bicentennial Bridge and La Yesca Dam in Jalisco and Nayarit, respectively; the Clamecy-Oisy wind farm in Nièvre, France; and, in the United States, the fourth bore of the Caldecott tunnel, which connects Oakland to Orinda, California. We also continue innovating with new products, and launched new global ready-mix brands designed using proprietary admixtures developed by our researchers.
We strive to provide superior building solutions in the markets we serve. To this end, we tailor our products and services to suit customers’ specific needs, from home construction, improvement and renovation to industrial
 
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and marine/hydraulic applications. Our porous paving concrete, for example, is best suited for sidewalks and roadways because it allows rainwater to filter into the ground, reducing flooding and helping to maintain groundwater levels. In contrast, our significantly less permeable and highly resistant concrete products are well-suited for applications in coastal, marine and other harsh environments.
Our global building materials trading network, which is one of the largest in the world, plays a fundamental and evolving role in fulfilling our objectives. Our network of strategically located terminals allows us to build strong relationships with reliable suppliers and shippers around the world, which we believe translates into a superior value proposition for our customers. We can direct building materials (primarily cement, clinker and slag) from markets with excess capacity to markets where they are needed most and, in the process, optimize the allocation of our worldwide production capacity.
Maximize our operating efficiency
We have a long history of successfully operating world-class cement production facilities in developed and emerging markets and have demonstrated our ability to produce cement at a lower cost compared to industry standards in most of these markets. We continue to strive to reduce our overall production related costs for all of our products and corporate overhead through disciplined cost management policies and through improving efficiencies by removing redundancies. We have implemented several worldwide standard platforms as part of this process and have also started different initiatives, such as a system designed to improve our operating processes worldwide. In addition, we implemented centralized management information systems throughout our operations, including administrative, accounting, purchasing, customer management, budget preparation and control systems, which have helped us to achieve cost efficiencies, and have also reached a strategic agreement with International Business Machines Corporation (“IBM”) expected to improve some of our business processes. We have also transferred key processes, such as procurement and trading, from a centralized model to a regional model and are simplifying and delayering our business to accelerate decision-making and maximize efficiency. In a number of our core markets, such as Mexico, we launched aggressive initiatives aimed at reducing the use of fossil fuels, consequently reducing our overall energy costs.
Furthermore, significant economies of scale in key markets often allow us to obtain competitive freight contracts for key components of our cost structure, such as fuel and coal, among others.
Through a worldwide import and export strategy, we will continue to seek to optimize capacity utilization and maximize profitability by redirecting our products from countries experiencing economic downturns to target export markets where demand may be greater. Our global trading system enables us to coordinate our export activities globally and take advantage of demand opportunities and price movements worldwide allowing our regions to have access to information required to execute our trading activities. Should demand for our products in the United States improve, we believe we are well-positioned to service this market through our established presence in the southern and southwestern regions of the country and our ability to import to the United States.
Our industry relies heavily on natural resources and energy, and we use cutting-edge technology to increase energy efficiency, reduce carbon dioxide emissions and optimize our use of raw materials and water. We are committed to measuring, monitoring and improving our environmental performance. In the last few years, we have implemented various procedures to improve the environmental impact of our activities as well as our overall product quality, such as a reduction of carbon dioxide emissions, an increased use of alternative fuels to reduce our reliance on primary fuels, an increased number of sites with local environmental impact plans in place and the use of alternative raw materials in our cement.
Strengthen our capital structure and regain our financial flexibility
In light of the global economic environment and our substantial amount of indebtedness, we have been focusing, and expect to continue to focus, on strengthening our capital structure and regaining financial
 
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flexibility through reducing our debt and cost of debt, improving cash flow generation and extending maturities. As of December 31, 2013, we had reduced total debt plus Perpetual Debentures by approximately U.S.$4.8 billion since June 2009. This ongoing effort has included the following key strategic initiatives:
Global Refinancing. On August 14, 2009, we entered into the 2009 Financing Agreement, which extended the maturities of approximately U.S.$15 billion in syndicated and bilateral bank facilities and private placement obligations and had a final principal payment date of February 14, 2014. On September 17, 2012, we successfully completed the Refinancing Transaction, whereby we refinanced a substantial portion of the remaining outstanding amounts under the 2009 Financing Agreement by entering into (a) the Amendment and Restatement Agreement to the 2009 Financing Agreement and (b) the Facilities Agreement. Upon consummation of the Refinancing Transaction, creditors under the Facilities Agreement received (i) approximately U.S.$6.155 billion in aggregate principal amount of new loans and new private placement notes and (ii) U.S.$500 million aggregate principal amount of the September 2012 Notes, leaving approximately U.S.$525 million aggregate principal amount of loans and private placement notes outstanding under the 2009 Financing Agreement. Subsequently, we applied the proceeds of the October 2012 Notes to make a prepayment on the Facilities Agreement, and we applied the proceeds of the CEMEX Latam Offering to make a prepayment on the 2009 Financing Agreement and the Facilities Agreement. In addition, on March 25, 2013, we used approximately U.S.$55 million of the net proceeds from the offering of the March 2013 Notes to repay in full the remaining indebtedness under CEMEX’s 2009 Financing Agreement. As of December 31, 2013, we had repaid the 2009 Financing Agreement in full and had reduced the aggregate principal amount of loans and private placement notes outstanding under the Facilities Agreement to U.S.$4,226 million, all of which matures on February 14, 2017 (subject to our compliance with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement). Maintaining market terms and achieving an appropriate size, tenor and pricing for our overall corporate financing facilities is an ongoing objective of ours. Consistent with this objective, we maintain an ongoing dialogue with our creditors regarding refinancing alternatives for our upcoming maturities.
Asset Divestitures, Asset Swaps or Mergers. We have continued a process to divest assets in order to reduce our debt and streamline operations, taking into account our cash liquidity needs and prevailing economic conditions and their impact on the value of the asset or business unit being divested. For the year ended December 31, 2013, we sold assets for approximately U.S.$172 million. We still expect to sell non-core assets, swap certain assets to streamline our operations, or enter into mergers, if we deem it necessary.
Proposed Transactions in Europe. In August 2013, we and Holcim, a global producer of building materials based in Switzerland, reached an agreement in principle, to conduct a series of related transactions by means of which: a) in the Czech Republic, we would acquire all of Holcim’s assets, including a cement plant, four aggregates quarries and 17 ready-mix plants; b) in Germany, we would sell to Holcim our assets in the western part of the country, consisting of one cement plant, two cement grinding mills, one slag granulator, 22 aggregates quarries and 79 ready-mix plants, while we would maintain our operations in the north, east and south of the country; and c) in Spain, Holcim would contribute all its operations in the country to CEMEX España Operaciones, S.L. (“CEMEX España Operaciones”), our operating subsidiary in the country, in exchange for approximately 25% of the resulting combined entity’s common stock, reflecting the relative estimated fair value of the net assets to be contributed, while we would hold a 75% equity interest in CEMEX España Operaciones. As part of all the above transactions, we would receive €70 million (U.S.$96 million) in cash, reflecting certain fair value differences between the net assets to be sold, against the contribution to be received and the net assets to be acquired, as well as the sale of certain other assets and the rendering of services during the transition process. As of March 31, 2014, the execution of the transactions are subject to various conditions precedent, including among others, negotiation of final binding agreements and the review and authorization of the European Commission and the Czech Office for the Protection of Competition. On March 12, 2014, the Czech Office for the Protection of Competition issued a decision clearing the acquisition by us of Holcim’s assets in the Czech Republic. The remaining authorizations required from the European Commission are, at this stage, still pending and are expected during the second half of 2014. Nonetheless, we cannot predict if the European Commission may extend its review period or if it would authorize the transactions as proposed by us and Holcim,
 
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or if it would require certain modifications thereof. Considering that the consummation of the aforementioned transactions are still subject to the negotiation of final binding agreements and that the required authorizations from the European Commission are out of our and Holcim’s control, and such approval could require changes to the proposed transaction or its withdrawal, as of December 31, 2013, our related net assets in Germany were not treated as assets held for disposal. As of the date of this annual report we cannot determine the impact on this transaction of the proposed merger of Holcim and Lafarge S.A. (“Lafarge”) announced on April 7, 2014.
Global Cost-Reduction and Pricing Initiatives. In response to decreased demand in most of our markets as a result of the global economic recession, in 2008 we identified and began implementing global cost-reduction initiatives intended to reduce our annual cost structure to a level consistent with the decline in demand for our products. Such global cost-reduction initiatives encompass different undertakings, including headcount reductions, capacity closures across the cement value chain and a general reduction in global administrative, selling and distribution expenses. During the first half of 2011, CEMEX launched a company-wide program aimed at enhancing competitiveness, providing a more agile and flexible organizational structure and supporting an increased focus on the company’s markets and customers. For the year ended December 31, 2013, we reached our target of U.S.$400 million in annualized cost savings through the implementation of this program, which contemplated an improvement in underperforming operations, a reduction in selling, general and administrative costs and the optimization of the company’s organizational structure.
In connection with the implementation of our cost-reduction initiatives, and as part of our ongoing efforts to eliminate redundancies at all levels and streamline corporate structures to increase our efficiency and reduce administrative, selling and distribution expenses, we have reduced our global headcount by approximately 24%, from 56,791 employees as of December 31, 2008 to 43,087 employees as of December 31, 2013. Both figures exclude personnel from our operations in Australia sold in October 2009 and our operations in Venezuela, which were expropriated in 2008, but do not give effect to any other divestitures.
Also as part of these initiatives, since 2009, we have temporarily shut down (some for a period of at least two months) several cement production lines in order to rationalize the use of our assets and reduce the accumulation of our inventories. We have also announced the permanent closure of some of our cement plants, such as our Davenport cement plant located in northern California in 2010. Similar actions were taken in our ready-mix concrete and aggregates businesses. Such rationalizations included, among others, our operations in Mexico, the United States, Spain and the United Kingdom.
Furthermore, during 2013, we achieved energy cost-savings by actively managing our energy contracting and sourcing, and by increasing our use of alternative fuels. We believe that these cost-saving measures better position us to quickly adapt to potential increases in demand and thereby benefit from the operating leverage we have built into our cost structure.
We have also introduced a comprehensive pricing strategy for our products that is expected to more fully reflect and capture the high value-creating capability of our products and services. Our strategy focuses on value enhancement, optimizing gains in customer relationships and in generating sufficient returns that would allow us to reinvest in our business. Under this strategy we are establishing internal procedures and guidelines that are expected to support our approach to pricing our different products and services.
Optimizing Capital Expenditures. In light of weak demand for our products throughout a considerable part of our markets, we reduced capital expenditures related to maintenance and expansion of our operations to approximately U.S.$468 million during 2011, from approximately U.S.$555 million during 2010 and approximately U.S.$636 million during 2009 (in each case excluding acquisitions and capital leases). These reductions in capital expenditures were in response to weak demand for our products has were implemented to maximize our free cash flow generation available for debt service and debt reduction, consistent with our ongoing efforts to strengthen our capital structure, improve our conversion of operating EBITDA to free cash flow and regain our financial flexibility. During 2013 and 2012, while still optimizing our maintenance and
 
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expansion capital expenditures and as a result of a higher demand for our products in certain markets in which we operate, we increased capital expenditures related to maintenance and expansion of our operations to approximately U.S.$606 million and U.S.$609 million, respectively, from approximately U.S.$468 million in 2011. Pursuant to the Facilities Agreement, we are prohibited from making aggregate annual capital expenditures in excess of U.S.$800 million (excluding certain capital expenditures, and joint venture investments and acquisitions by CEMEX Latam and its subsidiaries, which capital expenditures, joint ventures investments and acquisitions at any time then incurred are subject to a separate aggregate limit of U.S.$350 million (or its equivalent)) until the debt under the Facilities Agreement has been repaid in full. We believe that these restrictions on capital expenditures do not diminish our world-class operating and quality standards and we may opportunistically increase capital expenditures in some of the markets in which we operate, if necessary, to take advantage of improved market conditions.
Recruit, retain and cultivate world-class managers
Our senior management team has a strong track record operating diverse businesses throughout the cement value chain in emerging and developed economies globally.
We will continue to focus on recruiting and retaining motivated and knowledgeable professional managers. We encourage managers to regularly review our processes and practices, and to identify innovative management and business approaches to improve our operations. By rotating our managers from one country to another and from one area of our operations to another, we can increase their diversity of experience and knowledge of our business.
Foster our sustainable development
Our priorities include sustainable construction, affordable housing and infrastructure, enhancing our carbon strategy, environmental and biodiversity management, health and safety, strengthening local communities and partnering with key stakeholders.
Lead in Sustainable Construction. We are focused on delivering solutions to the different infrastructure demands of society in a manner designed to improve the future of cities and the environment. We recognize that creating sustainable infrastructure goes beyond building materials, it requires broad collaboration that encompasses all involved parties in the planning, financing, construction, ownership and maintenance of the projects. Moreover, we seek to continually expand the range of applications and sustainability benefits that our products support. For example, during 2013 we continued to expand our already extensive portfolio of sustainable technology offers, developing products that aid in the reduction of clinker factor and waste reduction by improving the recyclability of our products. Our complete portfolio includes products that address solutions to land use, water management, energy and emissions among others.
Also, in Mexico, we have created and launched the Sustainable Cities Initiative, which, in collaboration with third parties, has resulted in a local model to help unlock opportunities for urban authorities to create more sustainable, livable cities. In 2013, the first study was carried out in Merida, Yucatán. We expect that further studies will take place during 2014 in other cities in Mexico such as Querétaro, Torreón and Puebla.
Housing and Infrastructure. We are a leading provider of housing and high-scale infrastructure, as well as a significant contributor to the socioeconomic development of emerging markets throughout the world. During 2013, we completed more than 350 infrastructure projects, representing more than 7 million square meters of pavement for highways, mass transit projects, airport runways and city streets. We have also made significant progress in meeting the need for housing in our markets. In 2013 alone, we contributed to the construction of 7,155 homes in Mexico and Latin America, representing almost 300,000 square meters. This brings the total for the first four years of this initiative to almost 15,000 units.
 
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CEMEX has also partnered with Habitat for Humanity to carry out microfinance pilots in Mexico, Nicaragua, Colombia and the Philippines, and to try and increase the building of affordable and disaster relief housing in the majority of the countries in which both Habitat for Humanity is present and in which we operate. During 2013, in collaboration with the government of Colombia and with the objective of providing affordable housing to low-income people, we started to serve as a general contractor in the  Vivienda  project, a project which involves the construction of approximately 5,745 homes in six different provinces consisting of houses and apartment buildings as well as public services such as water, sewage and electricity.
Enhance our Carbon Strategy. Climate change poses significant challenges to our society, and we are committed to applying our skills, technologies and determination to contribute to the development of a low-carbon economy. We have been successful in increasing alternative fuel substitution rates to more than 28% in 2013, well on track to meet our ambitious target of 35% substitution rate by 2015. During 2013, six new projects qualified for Certified Emission Reduction (“CER”) credits under the Clean Development Mechanism (“CDM”). Our full CDM portfolio now includes 19 projects officially registered with a total potential to mitigate around 2.44 million tons of CO2 per year. CEMEX also registered another carbon reduction project under the Verified Carbon Standard (“VCS”), the world’s leading voluntary greenhouse gas program. The project consisted of the partial substitution of fossil fuels by biomass fuels such as textiles, organic sludge, wood residues, paper, cardboard and other biomass residues in the kilns at the CEMEX cement plant in Miami, Florida. Together, CEMEX’s two VCS projects have the potential to reduce more than 360 kT of CO2 per year. Our full portfolio, including CDMs and VCS projects has the potential to mitigate approximately 2.8 million tons of CO2 per year.
For the second consecutive year, we have been recognized by the Carbon Disclosure Project as one of the leading companies in Latin America for climate change data disclosure. CEMEX continues to strive its efforts on expanding its renewable energy sources and, in 2013, added two wind projects at its Victorville cement plant in California with a total capacity of 6.2 megawatts of energy. The turbines will produce energy equivalent to powering approximately 550 American homes annually and prevent 4,300 tons of CO2 emissions each year.
Excellence in Environmental and Biodiversity Management. We have a set of global initiatives that include monitoring and controlling air emissions from our facilities; managing land and conserving biodiversity within and around our sites; minimizing disturbances, such as noise, vibration and traffic from the locations in which we operate; optimizing water use; and reducing and recycling waste. In 2013, our overall clinker factor (the ratio of clinker content to total cement production) was reduced by approximately 8% when compared to our baseline year of 1990.
In 2013, we continued our work to develop quarry rehabilitation plans for our active cement and aggregates quarries. We also continued taking action to enhance the biodiversity of our quarries in areas with significant natural value, and started new BAP projects in key quarries located in areas of high biodiversity value. Also during 2013, we continued working with the International Union for Conservation of Nature and implemented the methodology the we jointly developed last year, in order to improve our water management and to better address the water risks facing our business. The methodology was rolled out to all businesses and countries in which CEMEX operates. We also launched our corporate water policy, which defines our global strategy for responsible water management and acts as a framework for the development of local water conservation and efficiency strategies across our operations worldwide.
Strengthen Communities. Bringing together economic, educational and human resources, we are creating innovative solutions to social challenges and more sustainable communities. CEMEX strives to identify the needs and concerns of the communities where we operate and collaborates to address them. By leveraging CEMEX’s strengths and experience, we jointly with communities develop project proposals that are relevant to each community.
Patrimonio Hoy is our flagship community initiative that helps low-income families realize their dream of home ownership. Combining the global presence of CEMEX distribution with the power of microcredit, the
 
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program offers families financial and technical assistance in the construction of their homes. With more than 100 offices in Latin America, during 2013, we reached approximately 29,700 new partners, bringing the accumulated total to approximately 426,570. In 2013 we built approximately 270,500 square meters of living space, resulting in an accumulated total of approximately 3.4 million square meters.
In 2013, we added 6 new Productive Centers for Self-Employment in Colombia and 2 in Costa Rica. In Mexico, we expect to reach 100 of such centers by the end of 2014. In 2012, CEMEX also became a founding partner of New Employment Opportunities, an initiative to prepare young people, particularly disadvantaged ones, for entry level jobs in Latin America and the Caribbean. Other founding partners include the Multilateral Investment Fund , the Inter-American Development Bank, the International Youth Foundation, Caterpillar and Microsoft, among others. In 2013, a strategic implementation plan was developed and in December 2013, the MIF Donors Committee authorized the corresponding funding to begin its implementation in during 2014. As a result of its Inclusive Businesses Assisted Self Construction Program ( Programa Integral de Autoconstrucción Asistida ) and Patrimonio Hoy, CEMEX is part of the United Nations Business Call to Action initiative which aims to accelerate meeting the Millennium Development Goals set by the UN, such as eradicating extreme poverty and hunger, promoting gender equality and empowerment of women, reducing mortality among children, among others.
Partnership with Key Stakeholders. We continuously interact with a wide variety of stakeholders to discuss and address society’s pressing needs. Within our sustainability model, we have defined four core stakeholder groups: our people, our neighbors, our business partners and our world. Beyond this, we actively engage with our sustainability reporting advisory panel. As of December 31, 2013, 97% of our operations had community engagement plans and 67% of our operations had employee volunteering programs. CEMEX is part of the Sustainability Index of the Mexican Stock Exchange and we have been included in the United Nations Global Compact “Global Compact 100” Index. We are the only Mexican-based company in such index and the only amongst our top competitors.
We have also continued to leverage our knowledge and resources and promote our sustainability priorities and vision through strategic global partnerships and memberships with recognized global and local organizations, such as the Clinton Initiative, National Geographic, MIT Concrete Sustainability Hub, The Cement Sustainability Initiative from the World Business Council for Sustainable Development, among many others.
Health and Safety. In 2012, CEMEX began implementing a new Global Health and Safety Management System to bring alignment and structure to health and safety activities while empowering certain leading management within CEMEX to choose solutions that work best locally. We find that leadership driven initiatives are having the greatest impact on our health and safety performance with most countries seeing significant improvement in their key performance indicators. LEGACY, our health and safety leadership training course, is provided on a regular basis for managers at all levels. While no level of fatalities are acceptable, in 2013, the combined number of employee, contractor and third-party fatalities in connection with CEMEX activities increased by 17% compared to 2012. In addition, our employee Lost-Time Injury rate (per million hours worked) decreased to 1.7 in 2013, a 15% reduction compared to 2012. In 2013, the CEMEX Total Recordable Injury Frequency Rate remained the same when compared to 2012, with a rate of 5.9. However, the Sickness Absence Rate for CEMEX decreased from 2.6 to 2.3 in 2013 when compared to 2012.
All of our operations have a Health and Safety Management System implemented. To complement these systems, we continue to promote the CEMEX Health Essentials, which provides managers in all business units with practical and easy-to-use materials on 12 key topics including heart and back health, stress management and nutrition.
 
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The following table sets forth our performance indicators with respect to safety by geographic location for the year ended December 31, 2013:

 	  	Mexico	 	 	United
States	 	  	Northern
Europe	 	  	The
Mediterranean	 	  	SAC	 	  	Asia	 	  	Total
CEMEX	 	
Total fatalities, employees, contractors and other third parties (#)	  	 	10	 	 	 	2	 	  	 	3	 	  	 	—  	  	  	 	5	 	  	 	1	 	  	 	21	 	
Fatalities employees (#)	  	 	2	 	 	 	1	 	  	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	3	 	
Fatality rate employees(1)	  	 	0.9	 	 	 	1.1	 	  	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	0.5	 	
Lost-Time injuries (LTI), employees (#)	  	 	60	 	 	 	67	 	  	 	7	 	  	 	3	 	  	 	33	 	  	 	1	 	  	 	171	 	
Lost-Time injuries (LTI), contractors (#)	  	 	45	(2)	 	 	1	 	  	 	8	 	  	 	13	 	  	 	21	 	  	 	2	 	  	 	90	 	
Lost-Time injury (LTI) frequency rate, employees per million hours worked	  	 	2.5	 	 	 	3.3	 	  	 	0.3	 	  	 	0.4	 	  	 	2.2	 	  	 	0.3	 	  	 	1.7	 	
 
(1)	Incidents per 10,000 people in a year.	
(2)	Includes a contractor from our global headquarters in Mexico.	
Our Products
We always strive to provide superior building solutions in the markets we serve. To this end, we tailor our products and services to suit customers’ specific needs, from home construction, improvement and renovation to agricultural, industrial and marine/hydraulic applications.
Cement
Cement is a binding agent, which, when mixed with sand, stone or other aggregates and water, produces either ready-mix concrete or mortar. Whether in bags or in bulk, we provide our customers with high-quality branded cement products and services. We tap our professional knowledge and experience to develop customized products that fulfill our clients’ specific requirements and foster sustainable construction. In many of the countries where we have cement operations, a large proportion of cement sold is a bagged, branded product. We often deliver the product to a large number of distribution outlets such that our bagged, branded cement is available to the end users in a point of sale in close proximity to where the product will be used. We strive to develop brand identity and recognition in our bagged product.
We manufacture cement through a closely controlled chemical process, which begins with the mining and crushing of limestone and clay, and, in some instances, other raw materials. The clay and limestone are then pre-homogenized, a process which consists of combining different types of clay and limestone. The mix is typically dried, then fed into a grinder which grinds the various materials in preparation for the kiln. The raw materials are calcined, or processed, at a very high temperature in a kiln, to produce clinker. Clinker is the intermediate product used in the manufacture of cement. For limestone, clay and gypsum, requirements are based on chemical composition that, depending on the other materials available, matches with the quality demanded by the production process. For cement limestone, clay and gypsum, we run chemical tests to prepare the mining plan of the quarry, to confirm material quality and reduce variations in the mineral content. We consider that limestone and clay quality of our cement raw material quarries are adequate for the cement production process.
There are two primary processes used to manufacture cement: the dry process and the wet process. The dry process is more fuel efficient. As of December 31, 2013, 53 of our 55 operative production plants used the dry process and two used the wet process. Our operative production plants that use the wet process are located in Nicaragua and the United Kingdom. In the wet process, the raw materials are mixed with water to form slurry, which is fed into a kiln. Fuel costs are greater in the wet process than in the dry process because the water that is added to the raw materials to form slurry must be evaporated during the clinker manufacturing process. In the dry process, the addition of water and the formation of slurry are eliminated, and clinker is formed by calcining the
 
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dry raw materials. In the most modern application of this dry process technology, the raw materials are first blended in a homogenizing silo and processed through a pre-heater tower that utilizes exhaust heat generated by the kiln to pre-calcine the raw materials before they are calcined to produce clinker.
Clinker and gypsum are fed in pre-established proportions into a cement grinding mill where they are ground into an extremely fine powder to produce finished cement. We primarily cover our gypsum needs from third parties; however, we also operate gypsum quarries in the United States, Spain, Dominican Republic and Egypt.
Ready-Mix Concrete
Ready-mix concrete is a combination of cement, fine and coarse aggregates, admixtures (which control properties of the concrete including plasticity, pumpability, freeze-thaw resistance, strength and setting time), and water. We tailor our ready-mix concrete to fit our clients’ specific needs. By changing the proportion of water, aggregates, and cement in the mix, we modify our concrete’s resistance, manageability, and finish. We also use additives to customize our concrete consistent with the transportation time from our plant to the project, weather conditions at the construction site, and the project’s specifications. From our water-resistant to our self-compacting concrete, we produce a great variety of specially designed concrete to meet the many challenges of modern construction.
Aggregates
We are one of the world’s largest suppliers of aggregates: primarily the crushed stone, sand and gravel, used in virtually all forms of construction. Customers use our aggregates for a wide array of uses, from a key component in the construction and maintenance of highways, walkways, and railways to an indispensable ingredient in concrete, asphalt, and mortar.
Aggregates are obtained from land-based sources such as sand and gravel pits and rock quarries or by dredging marine deposits. See “—Description of our raw materials reserves.”
Hard Rock Production. Rock quarries usually operate for at least 30 years and are developed in distinct benches or steps. A controlled explosion is normally used to release the rock from the working face. It is then transported by truck or conveyor to a crusher to go through a series of crushing and screening stages to produce a range of final sizes to suit customers’ needs. Dry stone is delivered by road, rail or water from the quarry.
Sand and Gravel Production. Sand and gravel quarries are much shallower than rock quarries and are usually worked and restored in progressive phases. Water can either be pumped out of the quarries allowing them to be worked dry or they can be operated as lakes with extraction below water. A conveyor draws the raw material into the processing plant where it is washed to remove unwanted clay and to separate sand. Sand separated during processing is dewatered and stockpiled. Gravel then passes over a series of screens that sieve the material into different sizes. Processing separates the gravel into stockpiles in a range of sizes for delivery.
Marine Aggregate Production. A significant proportion of the demand for aggregates is satisfied from rivers, lakes, and seabeds. Marine resources are increasingly important to the sustainable growth of the building materials industry. Marine aggregates also play an important role in replenishing beaches and protecting coastlines from erosion. At sea, satellite navigation is used to position a vessel precisely within its licensed dredging area. Vessels trail a pipe along the seabed and use powerful suction pumps to draw sand and gravel into the cargo hold. Dredged material is discharged at wharves, where it is processed, screened and washed for delivery.
 
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Description of our raw materials reserves
We are a leading global provider of building materials, including cement, ready-mix concrete and aggregates. Our cement production process begins with the mining and crushing of limestone and clay, and, in some instances, other raw materials. We have access to limestone and clay quarries near most of our cement plant sites worldwide since these minerals are the main raw materials in the cement production process.
In addition, we are one of the world’s largest suppliers of aggregates, primarily hard rock, sand and gravel, obtained from quarries, to be used in ready-mix concrete and other concrete-based products such as blocks and pipes.
Customers use our aggregates for a wide array of purposes, from a key component in the construction and maintenance of highways, walkways, and railways to an indispensable ingredient in concrete, asphalt and mortar. Aggregates can be used in their natural state or crushed into smaller size pieces.
The types of mine mostly used to extract raw materials for aggregates and cement production, are open pit or open cut, which relate to deposits of economically useful minerals or rocks that are found near the land surface. Open-pit mines that produce raw material for our industry are commonly referred to as quarries. Open-pit mines are typically enlarged until either the mineral resource is exhausted, or an increasing ratio of overburden to exploitable material makes further mining uneconomic. In some cases, we also extract raw materials by dredging underwater deposits.
Aggregates and other raw materials for our own production processes are obtained mainly from our own sources. However, we may cover our aggregates and other raw material needs through the supply from third-parties. For the year ended December 31, 2013, approximately 14% of our total raw material needs were supplied by third-parties.
Reserves are considered as proven when all legal and environmental conditions have been met and permits have been granted. Proven reserves are those for which (i) the quantity is computed from dimensions revealed by drill data, together with other direct and measurable observations such as outcrops, trenches and quarry faces and (ii) the grade and/or quality are computed from the results of detailed sampling; and the sampling and measurement data are spaced so closely and the geologic character is so well defined that size, shape, depth and mineral content of reserves are well-established. Probable reserves are those for which quantity and grade and/or quality are computed from information similar to that used from proven reserves, but the sites for inspection, sampling, and measurement are farther apart or are otherwise less adequately spaced. The degree of assurance, although lower than that for proven reserves, is high enough to assume continuity between points of observation.
Our reserve estimates are prepared by CEMEX’s engineers and geologists and are subject to annual review by our corporate staff jointly with the regional technical managers associated to our business units. On specific circumstances we have used the services of third-party geologists and/or engineers to validate our own estimates. Over the three-year period ended December 31, 2013, we have employed third-parties to review (i) our cement raw materials reserves estimates in Mexico, Colombia, Nicaragua, Costa Rica, the United Kingdom, Germany, Latvia and Spain, and (ii) our aggregates reserves estimates in France, Poland, Austria, the Czech Republic, Hungary, the United Kingdom, Germany, Ireland and Mexico.
Reserves determination incorporates only materials meeting specific quality requirements. For aggregates used in ready-mix concrete such requirements are based on hardness, shape and size; for cement raw materials (mainly limestone and clay), such requirements are based on a chemical composition that matches the quality demanded by the production process. In the case of cement raw materials, since chemical composition varies from production sites and even in the same site, we conduct geostatistical chemical tests and determine the best blending proportions to meet production quality criteria and to try to maintain an extraction ratio close to 100% of the reported reserves for such materials.
 
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The main equipment utilized in our production sites is as follows:
 
 	•	 	In our cement facilities: drills, crushers, kilns, coolers, mills, packing/loading machines, pay loaders, excavators, off-road trucks and other material handling equipment.	
 
 	•	 	In our ready-mix concrete facilities: batch plants, silos and mobile equipment and mixer trucks.	
 
 	•	 	In our aggregates facilities: drills, crushers, screens, belt conveyors, pay loaders, excavators, trucks and other material handling equipment.	
We believe that our facilities are in general good condition, adequate for efficient operations.
During 2013, our total quarry material production was approximately 192 million tons, of which approximately 55% was used for own consumption to produce cement, ready-mix concrete, and/or other products which are later sold to the public and the remaining 45% was directly sold to customers.
Our estimates distinguish between owned and leased reserves, the later determined over the term of the lease contract, and include only those permitted reserves which are proven and probable. As of December 31, 2013, the total surface of property in our quarries operations (including cement raw materials quarries and aggregates quarries), was approximately 111,620 hectares, of which approximately 72% was owned by us and approximately 38% was managed through lease contracts.
As of December 31, 2013, we operated 167 cement raw materials quarries across our global operations, serving our facilities dedicated to cement production, which are located at or near the cement plant facilities. We estimate that our proven and probable cement raw material reserves, on a consolidated basis, have an average remaining life of approximately 74 years, assuming 2009-2013 average annual cement production (last five years average production).
 
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The table set forth below presents our total permitted proven and probable cement raw materials reserves by geographic segment and material type extracted or produced in our cement raw materials quarries operations.

Location	 	Mineral	 	 	Number of
quarries	 	 	Property Surface
(hectares)	 	 	Reserves
(Million tons)	 	 	Years to
depletion	 	 	2013
Annualized
Production	 	 	5 years
aver.
Annualized
Production	 	 	Own Use	 	 	
 	 	 	 	 	 	 	 	Owned	 	 	Leased	 	 	Proven	 	 	Probable	 	 	Total	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Mexico(1)	 	 	Limestone	  	 	 	18	  	 	 	8,920	  	 	 	24	  	 	 	1,233	  	 	 	491	  	 	 	1,725	  	 	 	83	  	 	 	20.7	  	 	 	20.8	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	16	  	 	 	8,445	  	 	 	—  	  	 	 	139	  	 	 	156	  	 	 	295	  	 	 	77	  	 	 	3.4	  	 	 	3.9	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Others	  	 	 	15	  	 	 	1,247	  	 	 	150	  	 	 	8	  	 	 	23	  	 	 	31	  	 	 	99	  	 	 	0.3	  	 	 	0.3	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United States(2)	 	 	Limestone	  	 	 	13	  	 	 	17,577	  	 	 	—  	  	 	 	856	  	 	 	223	  	 	 	1,078	  	 	 	90	  	 	 	12.8	  	 	 	12.0	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	2	  	 	 	132	  	 	 	7	  	 	 	23	  	 	 	—  	  	 	 	23	  	 	 	65	  	 	 	0.4	  	 	 	0.4	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	Limestone	  	 	 	3	  	 	 	681	  	 	 	107	  	 	 	135	  	 	 	43	  	 	 	178	  	 	 	82	  	 	 	1.9	  	 	 	2.2	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	2	  	 	 	98	  	 	 	—  	  	 	 	16	  	 	 	19	  	 	 	35	  	 	 	58	  	 	 	0.5	  	 	 	0.6	  	 	 	100	% 	 	 	 	 	 	 	 	
Germany	 	 	Limestone	  	 	 	3	  	 	 	597	  	 	 	49	  	 	 	31	  	 	 	120	  	 	 	151	  	 	 	39	  	 	 	3.6	  	 	 	3.9	  	 	 	89	% 	 	 	 	 	 	 	 	
Rest of Northern Europe	 	 	Limestone	  	 	 	3	  	 	 	740	  	 	 	—  	  	 	 	89	  	 	 	45	  	 	 	134	  	 	 	29	  	 	 	4.1	  	 	 	4.6	  	 	 	95	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	1	  	 	 	70	  	 	 	—  	  	 	 	11	  	 	 	2	  	 	 	13	  	 	 	37	  	 	 	0.3	  	 	 	0.4	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	Limestone	  	 	 	11	  	 	 	606	  	 	 	117	  	 	 	272	  	 	 	131	  	 	 	403	  	 	 	59	  	 	 	3.1	  	 	 	6.8	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	6	  	 	 	64	  	 	 	72	  	 	 	16	  	 	 	5	  	 	 	21	  	 	 	36	  	 	 	0.4	  	 	 	0.6	  	 	 	27	% 	 	 	 	 	 	 	 	
 	 	 	Others	  	 	 	2	  	 	 	102	  	 	 	9	  	 	 	1	  	 	 	14	  	 	 	15	  	 	 	69	  	 	 	0.0	  	 	 	0.2	  	 	 	100	% 	 	 	 	 	 	 	 	
Egypt	 	 	Limestone	  	 	 	2	  	 	 	—  	  	 	 	154	  	 	 	282	  	 	 	—  	  	 	 	282	  	 	 	49	  	 	 	6.0	  	 	 	5.8	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	4	  	 	 	—  	  	 	 	583	  	 	 	114	  	 	 	—  	  	 	 	114	  	 	 	72	  	 	 	1.6	  	 	 	1.6	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Others	  	 	 	5	  	 	 	—  	  	 	 	296	  	 	 	27	  	 	 	—  	  	 	 	27	  	 	 	197	  	 	 	0.1	  	 	 	0.1	  	 	 	100	% 	 	 	 	 	 	 	 	
Rest of the Mediterranean	 	 	Limestone	  	 	 	2	  	 	 	192	  	 	 	23	  	 	 	20	  	 	 	—  	  	 	 	20	  	 	 	9	  	 	 	2.0	  	 	 	2.2	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SAC	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	Limestone	  	 	 	13	  	 	 	3,025	  	 	 	1,751	  	 	 	102	  	 	 	491	  	 	 	593	  	 	 	145	  	 	 	4.0	  	 	 	4.1	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	2	  	 	 	183	  	 	 	—  	  	 	 	2	  	 	 	—  	  	 	 	2	  	 	 	9	  	 	 	0.2	  	 	 	0.2	  	 	 	100	% 	 	 	 	 	 	 	 	
Rest of SAC	 	 	Limestone	  	 	 	21	  	 	 	990	  	 	 	186	  	 	 	223	  	 	 	549	  	 	 	771	  	 	 	127	  	 	 	5.9	  	 	 	6.1	  	 	 	95	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	8	  	 	 	540	  	 	 	60	  	 	 	46	  	 	 	47	  	 	 	93	  	 	 	136	  	 	 	0.6	  	 	 	0.7	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Others	  	 	 	2	  	 	 	27	  	 	 	1,543	  	 	 	16	  	 	 	50	  	 	 	66	  	 	 	394	  	 	 	0.2	  	 	 	0.2	  	 	 	87	% 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	Limestone	  	 	 	4	  	 	 	129	  	 	 	47	  	 	 	93	  	 	 	31	  	 	 	124	  	 	 	84	  	 	 	4.9	  	 	 	1.5	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	3	  	 	 	37	  	 	 	—  	  	 	 	1	  	 	 	3	  	 	 	4	  	 	 	13	  	 	 	0.3	  	 	 	0.3	  	 	 	100	% 	 	 	 	 	 	 	 	
 	 	 	Others	  	 	 	5	  	 	 	69	  	 	 	15	  	 	 	6	  	 	 	4	  	 	 	11	  	 	 	13	  	 	 	0.8	  	 	 	0.9	  	 	 	66	% 	 	 	 	 	 	 	 	
Rest of Asia	 	 	Limestone	  	 	 	1	  	 	 	—  	  	 	 	—  	  	 	 	5	  	 	 	8	  	 	 	13	  	 	 	12	  	 	 	1.1	  	 	 	1.1	  	 	 	10	% 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
CEMEX Consolidated	 	 	Limestone	  	 	 	94	  	 	 	33,458	  	 	 	2,458	  	 	 	3,341	  	 	 	2,132	  	 	 	5,473	  	 	 	74	  	 	 	70.1	  	 	 	74.0	  	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	Clay	  	 	 	44	  	 	 	9,568	  	 	 	722	  	 	 	366	  	 	 	231	  	 	 	598	  	 	 	71	  	 	 	7.6	  	 	 	8.4	  	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	Others	  	 	 	29	  	 	 	1,445	  	 	 	2,013	  	 	 	59	  	 	 	92	  	 	 	119	  	 	 	70	  	 	 	1.4	  	 	 	1.7	  	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	Totals	  	 	 	167	  	 	 	44,470	  	 	 	5,194	  	 	 	3,766	  	 	 	2,455	  	 	 	6,190	  	 	 	74	  	 	 	79.1	  	 	 	84.1	  	 	 	 	 	 	 	 	 	 	 	 	
 
(1)	Our cement raw materials operations in Mexico include three limestone quarries that also produce hard rock aggregates.	
(2)	Our cement raw materials operations in the U.S. include one limestone quarry that also produces hard rock aggregates.	
As of December 31, 2013, we operated 460 aggregates quarries across our global operations dedicated to serving our ready-mix and aggregates businesses. We estimate that our proven and probable aggregates reserves, on a consolidated basis, have an average remaining life of 38 years, assuming 2009-2013 average production (last five years average aggregates production).
 
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The table set forth below, present our total permitted proven and probable aggregates reserves by geographic segment and material type extracted or produced in our aggregates quarries operations.

Location	 	Mineral	 	Number of
quarries	 	 	Property Surface
(hectares)	 	 	Reserves
(Million tons)	 	 	Years to
depletion	 	 	2011
Annualized
Production	 	 	5 years
aver.
Annualized
Production	 	 	Own Use	 	 	
 	 	 	 	 	 	 	Owned	 	 	Leased	 	 	Proven	 	 	Probable	 	 	Total	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Mexico	 	Hardrock	 	 	6	  	 	 	881	  	 	 	54	  	 	 	179	  	 	 	210	  	 	 	389	  	 	 	101	  	 	 	4.2	  	 	 	3.8	  	 	 	100	% 	 	 	 	 	 	
 	 	Others	 	 	7	  	 	 	128	  	 	 	209	  	 	 	15	  	 	 	82	  	 	 	96	  	 	 	23	  	 	 	4.5	  	 	 	4.2	  	 	 	92	% 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United States	 	Hardrock	 	 	27	  	 	 	15,208	  	 	 	5,493	  	 	 	357	  	 	 	372	  	 	 	729	  	 	 	42	  	 	 	20.4	  	 	 	17.4	  	 	 	23	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	90	  	 	 	8,036	  	 	 	9,727	  	 	 	460	  	 	 	132	  	 	 	592	  	 	 	53	  	 	 	9.5	  	 	 	11.1	  	 	 	42	% 	 	 	 	 	 	
 	 	Others	 	 	3	  	 	 	113	  	 	 	214	  	 	 	8	  	 	 	7	  	 	 	15	  	 	 	89	  	 	 	0.2	  	 	 	0.2	  	 	 	0	% 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	Hardrock	 	 	9	  	 	 	330	  	 	 	756	  	 	 	397	  	 	 	—  	  	 	 	397	  	 	 	68	  	 	 	5.8	  	 	 	5.8	  	 	 	50	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	84	  	 	 	3,915	  	 	 	2,441	  	 	 	67	  	 	 	156	  	 	 	223	  	 	 	39	  	 	 	5.7	  	 	 	5.7	  	 	 	50	% 	 	 	 	 	 	
 	 	Others	 	 	16	  	 	 	350	  	 	 	304	  	 	 	120	  	 	 	—  	  	 	 	120	  	 	 	31	  	 	 	3.8	  	 	 	3.8	  	 	 	47	% 	 	 	 	 	 	
Germany	 	Hardrock	 	 	3	  	 	 	87	  	 	 	56	  	 	 	13	  	 	 	21	  	 	 	34	  	 	 	26	  	 	 	1.0	  	 	 	1.3	  	 	 	0	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	38	  	 	 	1,991	  	 	 	1,014	  	 	 	98	  	 	 	116	  	 	 	214	  	 	 	20	  	 	 	10.4	  	 	 	10.6	  	 	 	0	% 	 	 	 	 	 	
 	 	Others	 	 	6	  	 	 	30	  	 	 	645	  	 	 	102	  	 	 	11	  	 	 	113	  	 	 	23	  	 	 	5.3	  	 	 	5.0	  	 	 	0	% 	 	 	 	 	 	
France	 	Hardrock	 	 	9	  	 	 	120	  	 	 	342	  	 	 	118	  	 	 	—  	  	 	 	118	  	 	 	31	  	 	 	3.5	  	 	 	3.7	  	 	 	0	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	32	  	 	 	968	  	 	 	1,031	  	 	 	152	  	 	 	46	  	 	 	198	  	 	 	28	  	 	 	7.5	  	 	 	7.0	  	 	 	0	% 	 	 	 	 	 	
Rest of Northern Europe	 	Hardrock	 	 	16	  	 	 	321	  	 	 	701	  	 	 	184	  	 	 	7	  	 	 	191	  	 	 	67	  	 	 	2.5	  	 	 	2.9	  	 	 	10	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	39	  	 	 	1,571	  	 	 	849	  	 	 	160	  	 	 	137	  	 	 	297	  	 	 	26	  	 	 	10.7	  	 	 	11.4	  	 	 	24	% 	 	 	 	 	 	
 	 	Others	 	 	19	  	 	 	389	  	 	 	139	  	 	 	53	  	 	 	24	  	 	 	77	  	 	 	23	  	 	 	2.6	  	 	 	3.3	  	 	 	8	% 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	Hardrock	 	 	21	  	 	 	543	  	 	 	231	  	 	 	258	  	 	 	236	  	 	 	494	  	 	 	137	  	 	 	1.0	  	 	 	3.6	  	 	 	70	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	5	  	 	 	504	  	 	 	162	  	 	 	55	  	 	 	1	  	 	 	55	  	 	 	28	  	 	 	0.6	  	 	 	2.0	  	 	 	38	% 	 	 	 	 	 	
 	 	Others	 	 	1	  	 	 	—  	  	 	 	48	  	 	 	1	  	 	 	2	  	 	 	3	  	 	 	61	  	 	 	—  	  	 	 	0.1	  	 	 	0	% 	 	 	 	 	 	
Egypt	 	Others	 	 	2	  	 	 	—  	  	 	 	2	  	 	 	0	  	 	 	1	  	 	 	2	  	 	 	4	  	 	 	0.4	  	 	 	0.4	  	 	 	38	% 	 	 	 	 	 	
Rest of the Mediterranean	 	Hardrock	 	 	7	  	 	 	27	  	 	 	296	  	 	 	77	  	 	 	38	  	 	 	115	  	 	 	11	  	 	 	12.2	  	 	 	10.5	  	 	 	51	% 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	1	  	 	 	—  	  	 	 	29	  	 	 	1	  	 	 	—  	  	 	 	1	  	 	 	5	  	 	 	0.3	  	 	 	0.2	  	 	 	35	% 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
SAC	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	Sand &
Gravel	 	 	6	  	 	 	613	  	 	 	19	  	 	 	32	  	 	 	—  	  	 	 	32	  	 	 	5	  	 	 	1.5	  	 	 	7.2	  	 	 	71	% 	 	 	 	 	 	
Rest of SAC	 	Hardrock	 	 	1	  	 	 	150	  	 	 	—  	  	 	 	15	  	 	 	3	  	 	 	18	  	 	 	60	  	 	 	0.3	  	 	 	0.3	  	 	 	0	% 	 	 	 	 	 	
 	 	Others	 	 	10	  	 	 	53	  	 	 	849	  	 	 	20	  	 	 	188	  	 	 	207	  	 	 	93	  	 	 	1.3	  	 	 	2.2	  	 	 	70	% 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Rest of Asia	 	Hardrock	 	 	2	  	 	 	—  	  	 	 	69	  	 	 	58	  	 	 	27	  	 	 	84	  	 	 	60	  	 	 	1.4	  	 	 	1.4	  	 	 	27	% 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
CEMEX Consolidated	 	Hardrock	 	 	101	  	 	 	17,667	  	 	 	7,997	  	 	 	1,656	  	 	 	915	  	 	 	2,570	  	 	 	51	  	 	 	52.4	  	 	 	50.8	  	 	 	 	 	 	 	 	 	 	
 	 	Sand &
Gravel	 	 	295	  	 	 	17,597	  	 	 	15,272	  	 	 	1,025	  	 	 	589	  	 	 	1,614	  	 	 	29	  	 	 	46.2	  	 	 	55.2	  	 	 	 	 	 	 	 	 	 	
 	 	Others	 	 	64	  	 	 	1,063	  	 	 	2,409	  	 	 	319	  	 	 	315	  	 	 	634	  	 	 	33	  	 	 	18.1	  	 	 	19.2	  	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	        Totals	 	 	460	  	 	 	36,327	  	 	 	25,678	  	 	 	3,000	  	 	 	1,818	  	 	 	4,818	  	 	 	38	  	 	 	116.7	  	 	 	125.2	  	 	 	 	 	 	 	 	 	 	
Related Products
We rely on our close relationship with our customers to offer them complementary products for their construction needs, from rods, blocks, concrete tubing and asphalt to electrical supplies, paint, tile, lumber and other fixtures.
 
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User Base
Cement is the primary building material in the industrial and residential construction sectors of most of the markets in which we operate. The lack of available cement substitutes further enhances the marketability of our product. The primary end-users of cement in each region in which we operate vary but usually include, among others, wholesalers, ready-mix concrete producers, industrial customers and contractors in bulk. Additionally, sales of bagged cement to individuals for self-construction and other basic needs are a significant component of the retail sector. The end-users of ready-mix concrete generally include homebuilders, commercial and industrial building contractors and road builders. Major end-users of aggregates include ready-mix concrete producers, mortar producers, general building contractors and those engaged in road building activity, asphalt producers and concrete product producers. In summary, because of their many favorable qualities, builders worldwide use our cement, ready-mix concrete and aggregates for almost every kind of construction project, from hospitals and highways to factories and family homes.
Our Corporate Structure
We are a holding company, and operate our business through subsidiaries that, in turn, hold interests in our cement and ready-mix concrete operating companies, as well as other businesses. The following chart summarizes our corporate structure as of December 31, 2013. The chart also shows, for each company, our approximate direct or indirect percentage equity ownership or economic interest. The chart has been simplified to show only some of our major holding companies and/or major operating companies in the main countries in which we operate and does not include all our intermediary holding companies and all our operating company subsidiaries.
 
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Our Corporate Structure as of December 31, 2013

 
(1)	Includes approximate 99.87% interest pledged as part of the Collateral.	
(2)	Includes approximate 99.99% interest pledged as part of the Collateral. On December 1, 2013, Mexcement Holdings, S.A. de C.V. and Corporación Gouda, S.A. de C.V. were merged into and absorbed by Centro Distribuidor de Cemento, S.A. de C.V. On December 3, 2013, Centro Distribuidor de Cemento, S.A. de C.V. changed its legal name to CEMEX Operaciones México.	
 
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(3)	Includes approximate 100% interest pledged as part of the Collateral.	
(4)	CEMEX, S.A.B. de C.V. and CEMEX Operaciones México indirectly hold 100% of New Sunward through other intermediate subsidiaries.	
(5)	Includes New Sunward’s and CEMEX, S.A.B. de C.V.’s interest and shares held in CEMEX España’s treasury.	
(6)	Includes approximate 99.63% interest pledged as part of the Collateral.	
(7)	Includes CEMEX España’s 69.39% interest and CEMEX France Gestion (S.A.S.)’s (“CEMEX France”) 30.61% interest.	
(8)	On March 15, 2011, EMBRA AS changed its legal name to CEMEX AS. CEMEX AS is an operational company and also the holding company for operations in Finland, Norway and Sweden.	
(9)	Includes CEMEX Asia Holdings Ltd.’s (“Cemex Asia Holdings”) 70% indirect economic interest and 30% equity ownership by CEMEX España.	
(10)	Represents CEMEX Asia Holdings’ indirect economic interest.	
(11)	Represents our economic interest in three UAE companies, CEMEX Topmix LLC, CEMEX Supermix LLC and CEMEX Falcon LLC. We own a 49% equity interest in each of these companies, and we have purchased the remaining 51% of the economic benefits through agreements with other shareholders.	
(12)	Includes CEMEX (Costa Rica), S.A.’s 98% interest and CEMEX Latam’s 2% indirect interest.	
(13)	On December 4, 2009, Dalmacijacement d.d. changed its legal name to CEMEX Hrvatska d.d.	
(14)	Represents our 37.84% in ordinary shares and our 11.76% in preferred shares.	
(15)	Represents CEMEX Asia Holdings’ 99% economic interest in CEMEX Tianjin. CEMEX Asia Holdings’sale of its 99% economic interest in CEMEX Tianjin is pending certain government approvals. On December 17, 2013, CEMEX Asia Holdings completed the sale of its 100% interest in CEMEX Qingdao.	
(16)	Represents outstanding shares of CEMEX Latam’s capital stock and excludes treasury stock.	
(17)	Represents CEMEX Latam’s economic interest in five Guatemala companies: CEMEX Guatemala, S.A., Global Concrete, S.A., Gestion Integral de Proyectos, S.A., Equipos para uso de Guatemala, S.A., and Cementos de Centroamérica, S.A.	
(18)	Includes CEMEX France’s 94.75% interest and CEMEX Investments Limited’s 5.25% interest.	
(19)	CxNetworks N.V. is the holding company of the global business and IT consulting entities.	
(20)	Represents our 99.75% and 99.74% interest in ordinary and preferred shares, respectively.	
Mexico
Overview. Our operations in Mexico represented approximately 20% of our net sales in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2013, our business in Mexico represented approximately 30% of our total installed cement capacity and approximately 15% of our total assets.
As of December 31, 2013, we owned 100% of the outstanding capital stock of CEMEX México. CEMEX México is a direct subsidiary of CEMEX, S.A.B. de C.V. and is currently both a holding company for some of our operating companies in Mexico and is involved in the manufacturing and marketing of cement, plaster, gypsum, groundstone and other construction materials and cement by-products in Mexico. CEMEX México, indirectly, is also the holding company for our international operations. CEMEX México, together with its subsidiaries, accounts for a substantial part of the revenues and operating income of our operations in Mexico.
In September 2006, we announced a plan to construct a new kiln at our Tepeaca cement plant in Puebla, Mexico. The current production capacity of the Tepeaca cement plant is approximately 3.1 million tons of cement per year. The construction of the new kiln, which is designed to increase our total production capacity in the Tepeaca cement plant to approximately 7.2 million tons of cement per year, is expected to be completed in 2018. We anticipate spending a total of approximately U.S.$581 million on the construction of this new kiln, which includes capital expenditures of approximately U.S.$459 million incurred through the end of 2013. We did not make any capital expenditures for the construction of the new kiln in 2013. We expect to spend approximately U.S.$122 million to start operations.
In 2001, we launched the Construrama program, a registered brand name for construction material stores. Through the Construrama program, we offer to an exclusive group of our Mexican distributors the opportunity to
 
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sell a variety of products under the Construrama brand name, a concept that includes the standardization of stores, image, marketing, products and services. As of December 31, 2013, approximately 703 independent concessionaries with more than 1,827 stores were integrated into the Construrama program, with nationwide coverage.
Industry. The National Institute of Statistics and Geography (Instituto Nacional de Estadística y Geografía), or INEGI, indicated that, as of September 30, 2013, total construction investment in Mexico decreased by approximately 5.0% (based on constant prices, non-seasonally adjusted). The negative performance has been attributed to a decline in all segments. Residential and non-residential sectors both declined 5.0%. Public construction investment declined 9.8% while the private segment decreased 3.1%. INEGI has not yet published construction data for the whole year.
Cement in Mexico is sold principally through distributors, with the remaining balance sold through ready-mix concrete producers, manufacturers of pre-cast concrete products and construction contractors. Cement sold through distributors is mixed with aggregates and water by the end user at the construction site to form concrete. Ready-mix concrete producers mix the ingredients in plants and deliver it to local construction sites in mixer trucks, which pour the concrete. Unlike more developed economies, where purchases of cement are concentrated in the commercial and industrial sectors, retail sales of cement through distributors in 2013 accounted for approximately 65% of Mexico’s demand. Individuals who purchase bags of cement for self-construction and other basic construction needs are a significant component of the retail sector. We estimate that about 35% of total demand in Mexico comes from individuals who address their own construction needs. We believe that this large retail sales base is a factor that significantly contributes to the overall performance of the Mexican cement market.
The retail nature of the Mexican cement market also enables us to foster brand loyalty, which distinguishes us from other worldwide producers selling primarily in bulk. We own the registered trademarks for our brands in Mexico, such as “Tolteca,” “Monterrey,” “Maya,” “Anáhuac,” “Campana,” “Gallo” and “Centenario.” We believe that these brand names are important in Mexico since cement is principally sold in bags to retail customers who may develop brand loyalty based on differences in quality and service. In addition, we own the registered trademark for the “Construrama” brand name for construction material stores.
Competition. In the early 1970s, the cement industry in Mexico was regionally fragmented. However, for over more than the past 40 years, cement producers in Mexico have increased their production capacity and the Mexican cement industry has consolidated into a national market, thus becoming increasingly competitive. The major cement producers in Mexico are CEMEX; Holcim Apasco, an affiliate of Holcim; Sociedad Cooperativa Cruz Azul, a Mexican operator; Cementos Moctezuma, an associate of Ciments Molins; Grupo Cementos de Chihuahua, S.A.B. de C.V., or Cementos Chihuahua, a Mexican operator, whose holding company is 49% owned by us; and Lafarge Cementos, a subsidiary of Lafarge. During 2013, a new cement producer, Elementia (Cementos Fortaleza), entered the market. The major ready-mix concrete producers in Mexico are CEMEX, Holcim Apasco, Sociedad Cooperativa Cruz Azul and Cementos Moctezuma.
Potential entrants into the Mexican cement market face various impediments to entry, including, among other things, the time-consuming and expensive process of establishing a retail distribution network and developing the brand identification necessary to succeed in the retail market, which represents the bulk of the domestic market; the lack of port infrastructure and the high inland transportation costs resulting from the low value-to-weight ratio of cement; the distance from ports to major consumption centers and the presence of significant natural barriers, such as mountain ranges, which border Mexico’s east and west coasts; the strong brand recognition and the wide variety of special products with enhanced properties; the extensive capital expenditure requirements; and the length of time required for construction of new plants, which is approximately two years.
 
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Our Operating Network in Mexico
During 2013, we operated 13 out of our total of 15 cement plants (two were temporarily shut down given market conditions) and 85 cement distribution centers (including 7 marine terminals) located throughout Mexico. We operate modern cement plants on the Gulf of Mexico and Pacific coasts, allowing us to take advantage of low transportation costs to export to the United States, the Caribbean, and Central and South America.

 

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Products and Distribution Channels
Cement. Our cement operations represented approximately 52% of net sales for our operations in Mexico before eliminations resulting from consolidation in 2013. Our domestic cement sales volume represented approximately 93% of our total cement sales volume in Mexico for 2013. As a result of the retail nature of the Mexican market, our operations in Mexico are not dependent on a limited number of large customers. The five most important distributors in the aggregate accounted for approximately 11% of our total cement sales in Mexico by volume in 2013.
Ready-Mix Concrete. Our ready-mix concrete operations represented approximately 24% of net sales for our operations in Mexico before eliminations resulting from consolidation in 2013. Our ready-mix concrete operations in Mexico purchase all their cement requirements from our cement operations in Mexico. Ready-mix concrete is sold through our own internal sales force and facilities network.
Aggregates. Our aggregates operations represented approximately 5% of net sales for our operations in Mexico before eliminations resulting from consolidation in 2013.
Exports. Our operations in Mexico export a portion of their cement production, mainly in the form of cement and to a lesser extent in the form of clinker. Exports of cement and clinker by our operations in Mexico represented approximately 7% of our total cement sales volume in Mexico for 2013. In 2013, approximately 17% of our cement and clinker exports from Mexico were to the United States, 19% to Central America and the Caribbean and 64% to South America.
The cement and clinker exports by our operations in Mexico to the United States are marketed through subsidiaries of CEMEX Corp., the holding company of CEMEX, Inc. All transactions between CEMEX and the subsidiaries of CEMEX Corp., which act as our U.S. importers, are conducted on an arm’s-length basis.
Production Costs. Our cement plants in Mexico primarily utilize pet coke, but several are designed to switch to fuel oil and natural gas with minimum downtime. We have entered into four 20-year contracts with PEMEX pursuant to which PEMEX has agreed to supply us with a total of 1.75 million tons of pet coke per year, including TEG coke consumption, through 2024. Pet coke is petroleum coke, a solid or fixed carbon substance that remains after the distillation of hydrocarbons in petroleum and that may be used as fuel in the production of cement. The PEMEX pet coke contracts have reduced the volatility of our fuel costs. In addition, since 1992, our operations in Mexico have begun to use alternative fuels, to further reduce the consumption of residual fuel oil and natural gas. These alternative fuels represented approximately 15% of the total fuel consumption for our operations in Mexico in 2013.
In 1999, we reached an agreement with TEG for the financing, construction and operation of a 230 megawatt energy plant in Tamuín, San Luis Potosí, Mexico. We entered into this agreement in order to reduce the volatility of our energy costs. The total cost of the project was approximately U.S.$360 million. The power plant commenced commercial operations in April 2004. In February 2007, the original members of the consortium sold their participations in the project to a subsidiary of The AES Corporation. For additional information, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Commercial Commitments.”
In 2006, in order to take advantage of the high wind potential in the “Tehuantepec Isthmus,” CEMEX and the Spanish company ACCIONA, S.A., or ACCIONA, formed an alliance to develop a wind farm project for the generation of 250 megawatts in the Mexican state of Oaxaca. CEMEX acted as promoter of the project, which was named “EURUS.” ACCIONA provided the required financing, constructed the facility and currently operates the wind farm. The installation of 167 wind turbines in the farm was finished on November 15, 2009. For additional information, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Commercial Commitments.”
 
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We have, from time to time, purchased hedges from third parties to reduce the effect of volatility in energy prices in Mexico. See “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources.”
Description of Properties, Plants and Equipment. As of December 31, 2013, we had 15 wholly-owned cement plants located throughout Mexico, with a total potential capacity of 29.3 million tons per year, of which two were temporarily shut down given market conditions. We have exclusive access to limestone quarries and clay reserves near each of our plant sites in Mexico. We estimate that, as of December 31, 2013, the limestone and clay permitted proven and probable reserves of our operations in Mexico had an average remaining life of approximately 83 and 77 years, respectively, assuming 2009-2013 average annual cement production levels. As of December 31, 2013, all our production plants in Mexico utilized the dry process.
As of December 31, 2013, we had a network of 78 land distribution centers in Mexico, which are supplied through a fleet of our own trucks and rail cars, as well as leased trucks and rail facilities, and operated seven marine terminals. In addition, we had 286 (77 are idle due to market conditions) ready-mix concrete plants throughout 80 cities in Mexico, more than 2,320 ready-mix concrete delivery trucks and 16 aggregates quarries.
As part of our global cost-reduction initiatives we have made temporary capacity adjustments and rationalizations in four of our cement plants in Mexico. In addition, in 2013, we closed approximately 6% of our production capacity in our ready-mix plants throughout Mexico.
Capital Expenditures. We made capital expenditures of approximately U.S.$89 million in 2011, U.S.$98 million in 2012 and U.S.$86 million in 2013 in our operations in Mexico. We currently expect to make capital expenditures of approximately U.S.$79 million in our operations in Mexico during 2014.
United States
Overview. Our operations in the United States represented approximately 20% of our net sales in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2013, our business in the United States represented approximately 18% of our total installed cement capacity and approximately 42% of our total assets. As of December 31, 2013, we held 100% of CEMEX, Inc., the main holding company of our operating subsidiaries in the United States.
As of December 31, 2013, we had a cement manufacturing capacity of approximately 17.1 million tons per year in our operations in the United States, including 1.2 million tons in proportional interests through non-controlling holdings. As of December 31, 2013, we operated a geographically diverse base of 13 cement plants located in Alabama, California, Colorado, Florida, Georgia, Kentucky, Ohio, Pennsylvania, Tennessee and Texas. As of that date, we also operated 46 rail, truck or water served active cement distribution terminals in the United States. As of December 31, 2013, we had 381 ready-mix concrete plants located in the Alabama, Arizona, California, Florida, Georgia, New Mexico, Nevada, Oregon, Tennessee, Texas and Washington and aggregates facilities in Arizona, California, Florida, Georgia, New Mexico, Nevada, Oregon, South Carolina, Texas, Virginia and Washington.
On July 1, 2005, we and Ready Mix USA, a privately owned ready-mix concrete producer with operations in the southeastern United States, established two jointly-owned limited liability companies, CEMEX Southeast, LLC, a cement company, and Ready Mix USA LLC, a ready-mix concrete company, to serve the construction materials market in the southeast region of the United States. Pursuant to the terms of the limited liability company agreements, Ready Mix USA had a put option right, which, upon exercise, required us to acquire Ready Mix USA’s interest in CEMEX Southeast, LLC and Ready Mix USA LLC. As a result of Ready Mix USA’s exercise of its put option (see note 15B to our 2013 audited consolidated financial statements included elsewhere in this annual report), and after performance of the obligations by both parties under the put option agreement, effective as of August 1, 2011, through the payment of approximately U.S.$352 million (approximately Ps4,914
 
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million), we acquired our former joint venture partner’s interests in CEMEX Southeast, LLC and Ready Mix USA, LLC, including a non-compete and a transition services agreement. See “Item 5—Operating and Financial Review and Prospects—Results of Operations—Investments, Acquisitions and Divestitures—Investments and Acquisitions” for additional information regarding the Ready Mix USA put option right.
On May 30, 2013, we announced plans to expand the production capacity at our Odessa, Texas cement plant by 345,000 metric tons to nearly 900,000 metric tons per year in order to keep pace with rapidly growing demand in the West Texas market led mainly by the oil and gas industry. By leveraging existing assets and producing value-added products, we expect to achieve strong returns on our investment. The demand for specialty cement products used in well construction is growing as a result of the use of more efficient extraction technologies, such as horizontal drilling and hydraulic fracturing. Oil wells using this technology typically reach depths of thousands of feet. Specialty well cement is required for the complex application and extreme conditions to which these wells are exposed. The expansion will utilize state of the art production technology resulting in higher fuel efficiency and improved productivity. The expansion will also include an improved higher capacity load out system, allowing for a more efficient truck loading process to accommodate the region’s growing demand for cement.
On September 9, 2013, we and Concrete Supply Company, a leading producer of ready-mix concrete throughout the Carolinas, announced we have entered into an agreement to form a joint venture company. The joint venture company will be known as Concrete Supply Co., LLC and will be majority owned by Concrete Supply Holdings Co, who will act as the managing member. This joint venture will be a leading concrete supplier in North and South Carolina and will create a regionally focused company with strong local management able to service every facet of the market.
With the acquisition of Mineral Resource Technologies, Inc. in August 2003, we became an important player in the fly ash market. Fly ash is a mineral residue resulting from the combustion of powdered coal in electric generating plants. Fly ash has the properties of cement and may be used in the production of more durable concrete. Mineral Resource Technologies, Inc. is one of the six largest fly ash companies in the United States, providing fly ash to customers in 24 states.
Industry. Demand for cement is derived from the demand for ready-mix concrete and concrete products which, in turn, is dependent on the demand for construction. The construction industry is composed of three major sectors: the residential, the industrial and commercial, and the public sectors. The public sector is the most cement intensive sector, particularly for infrastructure projects such as streets, highways and bridges. While overall cement demand is sensitive to the business cycle, the public sector demand is more stable and also has helped to soften the decline in global demand during periodic economic recessions.
The construction industry is continuing to recover from the recession experienced during 2008 and 2009, which was the worst downturn in over 70 years. The construction industry was hit particularly hard during this recession due to the collapse of the housing sector. The massive job losses during the recession pushed home foreclosures to record levels, which resulted in excess inventories and a decline of over 30% in home prices. As a result, new construction plummeted, with housing starts declining 73% from a peak of 2.1 million units in 2005 to only 554,000 units in 2009. The decline in housing and other construction activity resulted in a 45% decline in cement demand from 2006 to 2010. In addition, the massive losses in the financial sector led to government bailouts and financial reforms, such as the Dodd-Frank Wall Street Reform and Consumer Protection Act. These actions, together with unprecedented fiscal stimulus and expansionary monetary policies, helped pull the economy out of the recession in the second half of 2009. The economic recovery has proceeded at a relatively moderate pace, with real GDP growth of 2.5% in 2010, 1.8% in 2011, 2.8% in 2012 and an estimated 2.2% in 2013. With the economy growing again, the construction sector stabilized in 2010 and joined the economy-wide recovery in 2011. Compared with the prior year, the total nominal construction spending for 2013 increased by 5%, with the residential sector up 18%, the industrial and commercial sector up 9% and the public sector down 5%. The residential sector is leading the construction sector recovery with positive fundamentals in place.
 
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Despite the mid-year increase in interest rates of about 100 basis points and rising home prices in 2013, housing affordability remains at a high level from a historical perspective. In addition, substantial pent-up demand exits and housing inventories have declined to below normal levels in most markets. Housing starts increased 28% in 2012 and 18% in 2013 which brought total housing starts to 925,000 units, well above the 2009 trough of 554,000 units but well below the historical steady state level which we estimate at 1.6 million units. Cement demand has increased for the third consecutive year with cement demand up 4.5% in 2013 after annual increases of 8.8% in 2012 and 2.7% in 2011.
Competition. The cement industry in the United States is highly competitive, including national and regional cement producers in the United States. Our principal competitors in the United States are Holcim, Lafarge, Buzzi-Unicem, Heidelberg Cement and Ash Grove Cement.
The independent U.S. ready-mix concrete industry is highly fragmented. According to the National Ready Mixed Concrete Association (“NRMCA”), it is estimated that there are about 5,500 ready-mix concrete plants that produce ready-mix concrete in the United States and about 55,000 ready-mix concrete mixer trucks that deliver the concrete to the point of placement. The NRMCA estimates that the value of ready-mix concrete produced by the industry is approximately U.S.$30 billion per year. Given that the concrete industry has historically consumed approximately 75% of all cement produced annually in the United States, many cement companies choose to develop concrete plant capabilities.
Aggregates are widely used throughout the United States for all types of construction because they are the most basic materials for building activity. The U.S. Geological Survey (USGS) estimates over 2.1 billion tons of aggregates were produced in 2013, an increase of about 6% over 2012. Crushed stone accounted for 59% of aggregates consumed and sand & gravel 40%, slag was about 1%. These products are produced in all 50 states and have a value of U.S.$19 billion. The U.S. aggregates industry is highly fragmented and geographically dispersed. The top ten producing states represent approximately 50% of all production. According to the USGS, during 2013, an estimated 4,000 companies operated approximately 6,500 sand and gravel sites and 1,550 companies operated 4,000 crushed stone quarries and 91 underground mines in the 50 U.S. states.
 
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Our Operating Network in the United States
The maps below reflect the location of our operating assets, including our cement plants and cement terminals in the United States as of December 31, 2013.

 

Products and Distribution Channels
Cement. Our cement operations represented approximately 29% of our operations in the United States’ net sales before eliminations resulting from consolidation in 2013. We deliver a substantial portion of cement by rail, which occasionally those go directly to customers. Otherwise, shipments go to distribution terminals where
 
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customers pick up the product by truck or we deliver the product by truck. The majority of our cement sales are made directly to users of gray portland and masonry cements, generally within a radius of approximately 200 miles of each plant.
Ready-Mix Concrete. Our ready-mix concrete operations represented approximately 35% of our operations in the United States’ net sales before eliminations resulting from consolidation in 2013. Our ready-mix concrete operations in the United States purchase most of their cement aggregates requirements from our cement operations in the United States and roughly two-thirds of their aggregates requirements from our aggregates operations in the United States. Our ready-mix concrete products are mainly sold to residential, commercial and public contractors and to building companies.
Aggregates. Our aggregates operations represented approximately 16% of net sales for our operations in the United States before eliminations resulting from consolidation in 2013. We estimate that, as of December 31, 2013, the crushed stone quarries and sand/gravel pits permitted proven and probable reserves of our operations in the United States had an average remaining life of approximately 42 and 53 years, respectively, assuming 2009-2013 average annual cement production levels. Our aggregates are consumed mainly by our internal operations and by our trade customers in the ready-mix, concrete products and asphalt industries.
Production Costs. The largest cost components of our plants are electricity and fuel, which accounted for approximately 31% of our total production costs of our cement operations in the United States in 2013. We are currently implementing a program to gradually replace coal with more economic fuels, such as pet coke, tires and other alternative fuels, which has resulted in reduced energy costs. By retrofitting our cement plants to handle alternative energy fuels, we have gained more flexibility in supplying our energy needs and have become less vulnerable to potential price spikes. In 2013, the increased use of alternative fuels helped to offset the effect on our fuel costs of increasing coal prices. Power costs in 2013 represented approximately 13% of our cash manufacturing cost of our cement operations in the United States, which represents production cost before depreciation. We have improved the efficiency of our electricity usage of our cement operations in the United States, concentrating our manufacturing activities in off-peak hours and negotiating lower rates with electricity suppliers.
Description of Properties, Plants and Equipment. As of December 31, 2013, we operated 13 cement manufacturing plants in the United States, and had a total installed capacity of 17.1 million tons per year, including 1.2 million tons representing our proportional interests through associates in five other cement plants. We estimate that, as of December 31, 2013, the limestone permitted proven and probable reserves of our operations in the United States had an average remaining life of approximately 90 years, assuming 2009-2013 average annual cement production levels. As of that date, we operated a distribution network of 46 cement terminals. All of our 13 cement production facilities in 2012 were wholly-owned except for the Louisville, Kentucky plant, which is owned by Kosmos Cement Company, a joint venture in which we own a 75% interest and a subsidiary of Dyckerhoff AG owns a 25% interest. As of December 31, 2013, we had 381 wholly-owned ready-mix concrete plants and operated 77 aggregates quarries. As of December 31, 2013, we distributed fly ash through 15 terminals and 7 third-party-owned utility plants, which operate both as sources of fly ash and distribution terminals. As of that date, we also owned 122 concrete block, paver, pipe, precast, asphalt and gypsum products distribution facilities.
We have continued to take a number of actions to streamline our operations and improve productivity, including temporary capacity adjustments and rationalizations in some of our cement plants, and shutdowns of ready-mix and block plants and aggregates quarries. We are currently utilizing approximately 70% of our ready-mix plants, 54% of our block manufacturing plants and 83% of our aggregates quarries in the United States.
On January 22, 2010, we announced the permanent closure of our Davenport cement plant located in northern California. The plant had been closed on a temporary basis since March 2009 due to the economic conditions. We have been serving our customers in the region through our extensive network of terminals in northern California, which are located in Redwood City, Richmond, West Sacramento and Sacramento. Since
 
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March 2009, our state-of-the-art cement facility in Victorville, California has provided and will continue to provide cement to this market more efficiently than the Davenport plant. Opened in 1906, Davenport was the least efficient of our 14 plants in the United States to operate. We sold a portion of the Davenport facility in 2011 for U.S.$30 million and a portion in 2012 for U.S.$4.2 million
Capital Expenditures. We made capital expenditures of approximately U.S.$66 million in 2011, U.S.$149 million in 2012 and U.S.$160 million in 2013 in our operations in the United States. We currently expect to make capital expenditures of approximately U.S.$211 million in our operations in the United States during 2014.
Northern Europe
For the year ended December 31, 2013, our business in Northern Europe, which includes our operations in the United Kingdom, Germany, France and our Rest of Northern Europe segment, as described below, represented approximately 26% of our net sales before eliminations resulting from consolidation. As of December 31, 2013, our business in Northern Europe represented approximately 13% of our total installed capacity and approximately 15% of our total assets.
Our Operations in the United Kingdom
Overview. Our operations in the United Kingdom represented approximately 7% of our net sales in Mexican Peso terms, before eliminations resulting from consolidation, and approximately 6% of our total assets, for the year ended December 31, 2013.
As of December 31, 2013, we held 100% of CEMEX Investments Limited, the main holding company of our operating subsidiaries in the United Kingdom. We are a leading provider of building materials in the United Kingdom with vertically integrated cement, ready-mix concrete, aggregates and asphalt operations. We are also an important provider of concrete and precast materials solutions such as concrete blocks, concrete block paving, flooring systems and sleepers for rail infrastructure.
Industry. According to the United Kingdom’s Construction Products Association, in 2013, the GDP of the United Kingdom was estimated to have grown by 1.4% compared to 0.1% growth in 2012. Total construction output is estimated to have increased by 1% in 2013, as compared to a 7.5% decrease in 2012 over the preceding year. Both private and public sector housing sectors are estimated to have grown by 9% and 4% respectively in 2013, with the housing market stimulated by the governments Help to Buy scheme. Public sector non-housing construction output fell 7.6% in 2013, impacted by continued public sector spending cuts, and the industrial sector also fell by 7.3%. However in 2013 the commercial sector grew by 2.7%, with recovery now underway in offices and retail, and the infrastructure sector also grew by 1.4% driven by roads, rail and energy. As of the date of this annual report, the official data corresponding to 2013 has not been released by the Mineral Products Association, but we estimate that domestic cement demand expanded by approximately 6.8% in 2013 compared to 2012.
Competition. Our primary competitors in the United Kingdom are Lafarge Tarmac (a joint venture formed in early 2013), Heidelberg, Aggregate Industries (a subsidiary of Holcim) and Hope Construction Materials, a new integrated player owned by Mittal Investments and formed from enforced divestments by Lafarge and Tarmac when they created Lafarge Tarmac. In addition more than 1 million tons per acre of cement are imported to the UK by various players including CRH, Holcim, and other independents, with material increasingly arriving from over-capacity markets including Ireland, Spain and Greece. A market investigation commenced by the United Kingdom Competition Commission (the “UK Commission”) in January 2012 and concluded in January 2014 issued remedies to address a combination of structural and conduct features that gave rise to an adverse effect on competition in the United Kingdom cement markets and an adverse effect on competition as a result of contracts involving certain major producers for the supply of granulated blast furnace slag and for the supply of ground granulated blast furnace slag, these remedies include divestitures by certain competitors of ours in the United Kingdom.
 
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Our Operating Network in the United Kingdom

 

Products and Distribution Channels
Cement. Our cement operations represented approximately 16% of net sales for our operations in the United Kingdom before eliminations resulting from consolidation for the year ended December 31, 2013. About 82% of our United Kingdom cement sales were of bulk cement, with the remaining 18% in bags. Our bulk cement is mainly sold to ready-mix concrete, concrete block and pre-cast product customers and contractors. Our bagged cement is primarily sold to national builders’ merchants. During 2013, our operations in the United Kingdom imported approximately 169 metric tons of clinker, of which 110 metric tons were from CRH plc in Ireland and 59kT were from Titan in Greece.
 
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Ready-Mix Concrete. Our ready-mix concrete operations represented approximately 27% of net sales for our operations in the United Kingdom before eliminations resulting from consolidation in 2013. Special products, including self-compacting concrete, fiber-reinforced concrete, high strength concrete, flooring concrete and filling concrete, represented 15% of our 2013 United Kingdom sales volume. Our ready-mix concrete operations in the United Kingdom in 2013 purchased approximately 82% of their cement requirements from our cement operations in the United Kingdom and approximately 83% of their aggregates requirements from our aggregates operations in the United Kingdom. Our ready-mix concrete products are mainly sold to public, commercial and residential contractors.
Aggregates. Our aggregates operations represented approximately 23% of net sales for our operations in the United Kingdom before eliminations resulting from consolidation in 2013. In 2013, our United Kingdom aggregates sales were divided as follows: 51% were sand and gravel, 40% limestone and 9% hard stone. In 2013, 15% of our aggregates volumes were obtained from marine sources along the United Kingdom coast. In 2013, approximately 46% of our United Kingdom aggregates production was consumed by our own ready-mix concrete operations as well as our asphalt, concrete block and precast operations. We also sell aggregates to major contractors to build roads and other infrastructure projects.
Production Costs
Cement. In 2013, fixed production costs increased by 7%. Variable costs increased by 1%, primarily as a result of imported clinker and rising electricity costs. We continued to implement our cost reduction programs and increased the use of alternative fuels by 6% in 2013.
Ready-Mix Concrete. In 2013, fixed production costs increased by 3%, as compared to fixed production costs in 2012. During 2013, 11 ready-mix plants were closed as part of our capacity management measures.
Aggregates. In 2013, fixed production costs increased by 5%, as compared to fixed production costs 2012. 2 aggregates sites were closed in 2013.
Description of Properties, Plants and Equipment. As of December 31, 2013, we operated 2 cement plants and 1 clinker grinding facility in the United Kingdom (excluding Barrington, which was idled in November 2008 and is now permanently closed and dismantled). Assets in operation at year-end 2013 represent an installed cement capacity of 2.4 million tons per year. We estimate that, as of December 31, 2013, the limestone and clay permitted proven and probable reserves of our operations in the United Kingdom had an average remaining life of approximately 82 and 58 years, respectively, assuming 2009-2013 average annual cement production levels. As of December 31, 2013, we also owned 4 cement import terminals and operated 195 ready-mix concrete plants and 53 aggregates quarries in the United Kingdom. In addition, we had operating units dedicated to the asphalt, concrete blocks, concrete block paving, sleepers and flooring businesses in the United Kingdom.
In order to ensure increased availability of blended cements, which are more sustainable based on their reduced clinker factor and use of by-products from other industries, we built a grinding and blending facility at the Port of Tilbury, located on the Thames River east of London, in 2009. The facility, which started operations during May 2009, has an annual grinding capacity of approximately 1.2 million tons. In total, we spent approximately U.S.$93 million in the construction of this grinding and blending facility.
Capital Expenditures. We made capital expenditures of approximately U.S.$47 million in 2011, U.S.$43 million in 2012 and U.S.$44 million in 2013 in our operations in the United Kingdom. We currently expect to make capital expenditures of approximately U.S.$34 million in our operations in the United Kingdom during 2014.
 
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Our Operations in Germany
Overview. As of December 31, 2013, we held 100% of CEMEX Deutschland AG, our main subsidiary in Germany. We are a leading provider of building materials in Germany, with vertically integrated cement, ready-mix concrete and aggregates. Our operations in Germany represented approximately 7% of our net sales in Mexican Peso terms, before eliminations resulting from consolidation.
Industry. According to Euroconstruct, total construction output in Germany was stagnant in 2013, compared to 2012. Construction in the residential sector increased by 3% during 2013. According to the German Cement Association, in 2013, the national cement consumption in Germany decreased by 1% to 26.5 million tons, while the ready-mix concrete market and the aggregates market each decreased by 1%.
Competition. Our primary competitors in the cement market in Germany are Heidelberg, Dyckerhoff (a subsidiary of Buzzi-Unicem), Lafarge, Holcim and Schwenk, a local German competitor. These competitors, along with CEMEX, represent a market share of about 80%, as estimated by us for 2013. The ready-mix concrete and aggregates markets in Germany are fragmented and regionally heterogeneous, with many local competitors. The consolidation process in the ready-mix concrete markets and aggregates market is moderate.
Our Operating Network in Germany

 
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Description of Properties, Plants and Equipment. As of December 31, 2013, we operated 2 cement plants in Germany. As of December 31, 2013, our installed cement capacity in Germany was 4.9 million tons per year. We estimate that, as of December 31, 2013, the limestone permitted proven and probable reserves of our operations in Germany had an average remaining life up to 139 years, assuming 2009-2013 average annual cement production levels. As of that date, our operations in Germany included 3 cement grinding mills, 158 ready-mix concrete plants, 41 aggregates quarries, 2 land distribution centers for cement and 2 maritime terminals.
Capital Expenditures. We made capital expenditures of approximately U.S.$26 million in 2011, U.S.$35 million in 2012 and U.S.$37 million in 2013 in our operations in Germany. We currently expect to make capital expenditures of approximately U.S.$29 million in our operations in Germany during 2014.
Our Operations in France
Overview. As of December 31, 2013, we held 100% of CEMEX France, our main subsidiary in France. We are a leading ready-mix concrete producer and a leading aggregates producer in France. We distribute the majority of our materials by road and a significant quantity by waterways, seeking to maximize the use of this efficient and sustainable alternative. Our operations in France represented approximately 6% of our net sales in Mexican Peso terms, before eliminations resulting from consolidation.
Industry. According to the Ministry of Ecology, Sustainable Development and Energy, housing starts in the residential sector decreased by 5.7% in 2013 compared to 2012. According to market consensus data, buildings starts in 2013 compared to 2012 decreased by approximately 3.4% and demand from the public works sector decreased by approximately 1.9% over the same period.
According to the French cement producers association, total cement consumption in France in 2013 reached approximately 19.2 million tons, a 3.8% decrease compared to 2012. The decrease was primarily driven by 2.6% decrease in demand in the construction, residential and non-residential sectors, and a lower proportion from the public works sector.
 
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Competition. Our main competitors in the ready-mix concrete market in France include Lafarge, Holcim, Italcementi and Vicat. Our main competitors in the aggregates market in France include Lafarge, Italcementi, Colas (Bouygues) and Eurovia (Vinci). Many of our major competitors in ready-mix concrete are subsidiaries of French cement producers, whereas we rely on sourcing cement from third parties.
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Description of Properties, Plants and Equipment. As of December 31, 2013, we operated 241 ready-mix concrete plants in France, 1 maritime cement terminal located in Le Havre, on the northern coast of France, 18 land distribution centers, 43 quarries and 11 river ports.
Capital Expenditures. We made capital expenditures of approximately U.S.$22 million in 2011, U.S.$21 million in 2012 and U.S.$28 million in 2013 in our operations in France. We currently expect to make capital expenditures of approximately U.S.$20 million in our operations in France during 2014.
Rest of Northern Europe
Our operations in the Rest of Northern Europe, which as of December 31, 2013 consisted primarily of our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland, our other Northern European assets and our approximately 37.8% non-controlling interest in a Lithuanian company. These operations represented approximately 6% of our 2013 net sales in Mexican Peso terms, before eliminations resulting from consolidation, and approximately 3% of our total assets in 2013.
Our Operations in the Republic of Ireland
Overview. As of December 31, 2013, we held 100% of Readymix Ltd., our main operating subsidiary in the Republic of Ireland. On May 17, 2012, we acquired the 38.8% interest in Readymix plc that had not been owned by us for approximately €11 million. Our operations in the Republic of Ireland produce and supply sand, stone and gravel as well as ready-mix concrete, mortar and concrete blocks. As of December 31, 2013, we operated 14 ready-mix concrete plants, 14 aggregates quarries and 8 block plants located in the Republic of Ireland and Northern Ireland. In December 2012, the company sold its operations on the Isle of Man and signed an agreement to sell its operations in Northern Ireland. CEMEX concluded the sale of the business unit in Northern Ireland in May 2013.
Industry. According to Euroconstruct, total construction output in the Republic of Ireland is estimated to have decreased by 3.5% in 2013, reflecting the continued contraction in the housing sector. We estimate that total cement consumption in the Republic of Ireland and Northern Ireland reached 1.5 million tons in 2013, a decrease of 7.5% compared to total cement consumption in 2012.
Competition. Our main competitors in the ready-mix concrete and aggregates markets in the Republic of Ireland are CRH plc and the Kilsaran Group.
Capital Expenditures. We made capital expenditures of approximately U.S.$1 million for each of the three years ended December 31, 2011, 2012 and 2013 in our operations in the Republic of Ireland. We currently expect to make capital expenditures of approximately U.S.$0.5 million in our operations in the Republic of Ireland during 2014.
Our Operations in Poland
Overview. As of December 31, 2013, we held 100% of CEMEX Polska Sp. ZO.O, or CEMEX Polska, our main subsidiary in Poland. We are a leading provider of building materials in Poland, serving the cement, ready-mix concrete and aggregates markets. As of December 31, 2013, we operated 2 cement plants and 1 grinding mill in Poland, with a total installed cement capacity of 3.1 million tons per year. As of December 31, 2013, we also operated 38 ready-mix concrete plants, 9 aggregates quarries, 7 land distribution centers and 2 maritime terminals in Poland.
Industry. In addition, according to our estimates, total cement consumption in Poland reached approximately 14.8 million tons in 2013, a decrease of 8.5% compared to 2012.
 
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Competition. Our primary competitors in the cement, ready-mix concrete and aggregates markets in Poland are Heidelberg, Lafarge, CRH and Dyckerhoff, Miebach.
Capital Expenditures. We made capital expenditures of approximately U.S.$21 million in 2011, U.S.$31 million in 2012 and U.S.$12 million in 2013 in our operations in Poland. We currently expect to make capital expenditures of approximately U.S.$16 million in our operations in Poland during 2014.
Our Operations in the Czech Republic
Overview. As of December 31, 2013, we held 100% of CEMEX Czech Republic, s.r.o., our main subsidiary in the Czech Republic. We are a leading producer of ready-mix concrete and aggregates in the Czech Republic. We also distribute cement in the Czech Republic. As of December 31, 2013, we operated 59 ready-mix concrete plants, 6 gravel pits and 7 aggregates quarries in the Czech Republic. As of that date, we also operated 1 cement grinding mill and 1 cement terminal in the Czech Republic.
Industry. According to the Czech Statistical Office, total construction output in the Czech Republic decreased by 8% in 2013. The decrease was primarily driven by a continued slowdown in civil engineering works, low demand for housing and the negative impact of government saving measures on non-residential buildings. According to the Czech Cement Association, total cement production in the Czech Republic reached 3.2 million tons in 2013, a decrease of 6.5% compared to 2012.
Competition. Our main competitors in the cement, ready-mix concrete and aggregates markets in the Czech Republic are Heidelberg, Dyckerhoff, Holcim, Skanska and Lafarge.
Capital Expenditures. We made capital expenditures of approximately U.S.$4.3 million in 2011, U.S.$3.4 million in 2012 and U.S.$3.8 million in 2013 in our operations in the Czech Republic. We currently expect to make capital expenditures of approximately U.S.$2.3 million in our operations in the Czech Republic during 2014.
Our Operations in Latvia
Overview. As of December 31, 2013, we held 100% of CEMEX SIA, our operating subsidiary in Latvia. We are the only cement producer and a leading ready-mix concrete producer and supplier in Latvia. From our cement plant in Latvia we also supply markets in the Baltics. As of December 31, 2013, we operated 1 cement plant in Latvia with an installed cement capacity of 1.6 million tons per year. As of that date, we also operated 6 ready-mix concrete plants in Latvia and 1 aggregates quarry.
In April 2006, we initiated an expansion project for our cement plant in Latvia in order to increase our cement production capacity by approximately 0.8 million tons per year to support strong demand in the region. The plant was fully commissioned during July 2010. Our total capital expenditure in the capacity expansion of this plant was approximately U.S.$409 million through 2013. The project was completed and fully capitalized in 2013.
Capital Expenditures. In total, we made capital expenditures of approximately U.S.$8 million in 2011, U.S.$9 million in 2012 and U.S.$8 million in 2013 in our operations in Latvia. We currently expect to make capital expenditures of approximately U.S.$3.7 million in our operations in Latvia during 2014.
Our Equity Investment in Lithuania
Overview. As of December 31, 2013, we owned an approximate 37.8% interest in Akmenes Cementas AB, a cement producer in Lithuania, which operates one cement plant in Lithuania with an annual installed cement capacity of 1.3 million tons.
 
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Our Operations in Austria
Overview. As of December 31, 2013, we held 100% of CEMEX Austria AG, our main subsidiary in Austria. We are a leading participant in the ready-mix concrete and aggregates markets in Austria and also produce admixtures. As of December 31, 2013, we owned 31 operating ready-mix concrete plants and operated 8 additional plants through joint ventures and special purpose entities. We also owned 24 aggregates quarries, including 4 quarries which are currently operated by third parties, and had non-controlling interests in 4 quarries.
Industry. According to Euroconstruct, total construction output in Austria increased by 0.5% in 2013. This increase was primarily driven by higher spending on residential construction projects. Total cement consumption in Austria in 2013 remained at the same level compared to 2012.
Competition. Our main competitors in the ready-mix concrete and aggregates markets in Austria are Asamer, Lafarge, Lasselsberger, Strabag and Wopfinger.
Capital Expenditures. We made capital expenditures of approximately U.S.$3 million in 2011, U.S.$4 million in 2012 and U.S.$5 million in 2013 in our operations in Austria. We currently expect to make capital expenditures of approximately U.S.$4.5 million in our operations in Austria during 2014.
Our Operations in Hungary
Overview. As of December 31, 2013, we held 100% of CEMEX Hungária Kft., our main operating subsidiary in Hungary. As of December 31, 2013, we owned 34 ready-mix concrete plants and 5 aggregates quarries, and we had non-controlling interests in 6 other ready-mix concrete plants and 1 other aggregates quarry.
Industry. According to the Hungarian Central Statistical Office, total construction output in Hungary increased by 9.6% in 2013 compared to 2012. The increase was primarily driven by construction in the industrial sector, as residential construction continued to decrease.
Competition. Our main competitors in the ready-mix concrete and aggregates markets in Hungary are Heidelberg, Holcim, Frissbeton (Strabag) and Lasselsberger.
Capital Expenditures. We made capital expenditures of approximately U.S.$1 million in 2011, U.S.$1 million in 2012 and U.S.$1.5 million in 2013 in our operations in Hungary. We currently expect to make capital expenditures of approximately U.S.$3 million in our operations in Hungary during 2014.
Our Operations in Other Northern European Countries
Overview. As of December 31, 2013, we operated ten marine cement terminals in Finland, Norway and Sweden through CEMEX AS, a leading bulk-cement importer in the Nordic region.
Capital Expenditures. We made capital expenditures of approximately U.S.$0.2 million in 2011, U.S.$0.2 million in 2012 and U.S.$0.3 million in 2013 in our operations in Other Northern European countries. We currently do not expect to make any significant capital expenditures in our operations in Other Northern European countries during 2014.
The Mediterranean
For the year ended December 31, 2013, our business in the Mediterranean, which includes our operations in the Spain, Egypt and our Rest of the Mediterranean segment, as described below, represented approximately 10% of our net sales before eliminations resulting from consolidation. As of December 31, 2013, our business in the Mediterranean represented approximately 20% of our total installed capacity and approximately 8% of our total assets.
 
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Our Operations in Spain
Overview. Our operations in Spain represented approximately 2% of our net sales in Mexican Peso terms, before eliminations resulting from consolidation, and approximately 5% of our total assets, for the year ended December 31, 2013.
As of December 31, 2013, we held 99.88% of CEMEX España (including shares held in treasury), a holding company for most of our international operations.
On October 1, 2012, CEMEX España agreed to spin-off its Spanish industrial operations in favor of CEMEX España Operaciones, a subsidiary in which CEMEX España holds 100% of the share capital. In December 2012, the merger of CEMEX España Operaciones and Aricemex, S.A. and Hormicemex, S.A. was completed and, as a result, our manufacturing and sales of cement, aggregates, concrete and mortar were consolidated in CEMEX España Operaciones, which became our Spanish operating subsidiary.
In March 2006, we announced a plan to invest approximately €47 million in the construction of a new cement mill and dry mortar production plant in the Port of Cartagena in Murcia, Spain. The first phase, which included the construction of a cement mill with production capacity of nearly one million tons of cement per year, was completed in the fourth quarter of 2007. Execution of the second phase, which included the construction of a new dry mortar plant with a production capacity of 200,000 tons of dry mortar per year, was delayed due to market conditions. In line with CEMEX España Operaciones’ strategic plan, “Plan Horizonte,” we decided to relinquish the administrative concession granted for the construction of the cement mill and dry mortar production plant. In June 2013, the Cartagena Port Authority approved the resignation, and we decided to dismantle the installation and relocate it to another country.
In furtherance of our assets optimization plan, in June 2013, we formalized an agreement to sell our cement plant in San Feliú of Llobregat (Barcelona) to Cements Molins, S.A. The transaction has been approved by the Spanish Competition Authorities.
In February 2007, we announced that Cementos Andorra S.A., at the time a joint venture between us and Spanish investors (the Burgos family), intended to build a new cement production facility in Teruel, Spain. Due to the current market conditions in Spain, we are in the process of analyzing whether to relocate the installation to other markets where we have operations. During 2013, CEMEX España Operaciones acquired up to the 100% interest in Cementos Andorra, S.A.
Industry. According to our latest estimates, in 2013, investment in the construction sector in Spain decreased by approximately 10.5% compared to 2012, primarily as a result of the drop in investment in the non-residential construction sector (both public and private), which decreased approximately 12% during this period. Investment in the residential construction sector decreased approximately 8.5% in 2013. According to the latest estimates from the  Asociación de Fabricantes de Cemento de España  (OFICEMEN), the Spanish cement trade organization, cement consumption in Spain decreased 19.2% in 2013 compared to 2012.
During the past several years, the level of cement imports into Spain has been influenced by the strength of domestic demand and fluctuations in the value of the Euro against other currencies. According to OFICEMEN, cement imports decreased 39% in 2008, 58% in 2009, 10% in 2010, 29% in 2011, 18% in 2012 and 18% in 2013. Clinker imports have been significant, with a decrease of 46.0% in 2008, but experienced a sharp decline of 61% in 2009, 49% in 2010, 47% in 2011, 75% in 2012 and 18% in 2013. Imports primarily have had an impact on coastal zones, since transportation costs make it less profitable to sell imported cement in inland markets.
In the early 1980’s, Spain was one of the leading exporters of cement in the world, exporting up to 13 million tons per year. However, as of December 31, 2013, cement exports amounted approximately 7 million tons per year. In recent years, Spanish cement and clinker export volumes have fluctuated, reflecting the rapid
 
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changes in demand in the Mediterranean basin, as well as the strength of the Euro and changes in the domestic market. According to OFICEMEN, these export volumes decreased 3% in 2007, and increased 114% in 2008, 22% in 2009, 37% in 2010 and 2% in 2011, 56% in 2012 and 12% in 2013.
Competition. According to our estimates, as of December 31, 2013, we were one of the five largest multinational producers of clinker and cement in Spain. Competition in the ready-mix concrete industry is intense in large urban areas. The overall high degree of competition in the Spanish ready-mix concrete industry is reflected in the multitude of offerings from a large number of concrete suppliers. We have focused on developing value added products and attempting to differentiate ourselves in the marketplace. The distribution of ready-mix concrete remains a key component of our business strategy in Spain.
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Products and Distribution Channels
Cement. Our cement operations represented approximately 71% of net sales for our operations in Spain before eliminations resulting from consolidation in 2013. We offer various types of cement in Spain, targeting specific products to specific markets and users. In 2013, approximately 20% of CEMEX España Operaciones’ domestic sales volume consisted of bagged cement, and the remainder of CEMEX España Operaciones’ domestic sales volume consisted of bulk cement, primarily to ready-mix concrete operators, including sales to our other operations in Spain, as well as industrial customers that use cement in their production processes and construction companies.
Ready-Mix Concrete. Our ready-mix concrete operations represented approximately 16% of net sales for our operations in Spain before eliminations resulting from consolidation in 2013. Our ready-mix concrete operations in Spain in 2013 purchased almost 98% of their cement requirements from our cement operations in Spain, and approximately 67% of their aggregates requirements from our aggregates operations in Spain.
Aggregates. Our aggregates operations represented approximately 4% of net sales for our operations in Spain before eliminations resulting from consolidation in 2013.
Exports. Exports of cement and clinker by our operations in Spain, which represented approximately 20% of net sales for our operations in Spain before eliminations resulting from consolidation, decreased approximately 13% in 2013 compared to 2012, primarily as a result of a decrease in export volumes to other countries, in particular, those located in Africa and the Middle East and Europe. Export prices are lower than domestic market prices, and costs are usually higher for export sales. Of our total exports from Spain in 2013, 22% consisted of white cement, 14% of gray portland cement and 64% of clinker. In 2013, 10% of our exports from Spain were to Central America, 24% to Europe and the Middle East and 66% to Africa.
Production Costs. We have improved the efficiency of our operations in Spain by introducing technological improvements that have significantly reduced our energy costs, including the use of alternative fuels, in accordance with our cost reduction efforts. In 2013, we used organic waste, tires and plastics as fuel, achieving a 46.9% substitution rate for pet coke in our gray and white clinker kilns for the year. During 2014, we expect to reach a substitution level over 40.2%. Also during 2013, as part of our Plan Horizonte, new cement collective agreements have been signed with cost reductions of approximately 30%.
Description of Properties, Plants and Equipment. As of December 31, 2013, our operations in Spain included 6 cement plants located in Spain, with an annual installed cement capacity of 9.4 million tons, including 1 million tons of white cement. As of that date, we also owned 1 cement mill, 13 distribution centers, including 4 land and 9 marine terminals, 72 ready-mix concrete plants, 21 aggregates quarries and 11 mortar plants. As of December 31, 2013, we owned 7 limestone quarries located in close proximity to our cement plants and 4 clay quarries in our cement operations in Spain. We estimate that, as of December 31, 2013, the limestone and clay permitted proven and probable reserves of our operations in Spain had an average remaining life of approximately 59 and 36 years, respectively, assuming 2009-2013 average annual cement production levels.
As part of our global cost reduction initiatives, we have made temporary capacity adjustments and rationalizations in several cement plants in Spain. During 2012, three out of our eight cement plants shut down their kilns (Castillejo, Alcanar and San Feliu), operating only as grinding mills. In October of 2013, the Alcanar kilns were restarted to supply export markets. As of December 31, 2013, approximately 60% of our ready-mix concrete plants in Spain were temporarily closed.
Capital Expenditures. We made capital expenditures of approximately U.S.$39 million in 2011, U.S.$26 million in 2012 and U.S.$10 million in 2013 in our operations in Spain. We currently expect to make capital expenditures of approximately U.S.$12 million in our operations in Spain during 2014.
 
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Our Operations in Egypt
Overview. As of December 31, 2013, we had a 95.8% interest in Assiut Cement Company, or ACC, our main subsidiary in Egypt. As of December 31, 2013, we operated one cement plant in Egypt, with an annual installed Clinker capacity of approximately 5.3 million tons. This plant is located approximately 280 miles south of Cairo and serves the upper Nile region of Egypt, as well as Cairo and the delta region, Egypt’s main cement market. We estimate that, as of December 31, 2013, the limestone and clay permitted proven and probable reserves of our operations in Egypt had an average remaining life of approximately 49 and 72 years, respectively, assuming 2009-2013 average annual cement production levels. In addition, as of December 31, 2013, we operated 9 ready-mix concrete plants, of which 4 are owned and 5 are under management contracts, 9 land distribution centers and 1 maritime terminal in Egypt. For the year ended December 31, 2013, our operations in Egypt represented approximately 3% of our net sales before eliminations resulting from consolidation and approximately 1% of our total assets.
See “Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Egypt Share Purchase Agreement” for a description of the legal proceeding relating to the share purchase agreement, signed in November 1999 between CEMEX, S.A.B. de C.V. and state-owned Metallurgical Industries Company, pursuant to which CEMEX, S.A.B. de C.V. acquired a controlling interest in ACC.
Industry. According to the ministry of Investment official figures, the Egyptian market consumed approximately 50.1 million tons of cement during 2013, based on government data (local and imported cement). Cement consumption decreased by approximately 3.1% in 2013 compared to 2012, which was mainly attributed to political events taking place in 2013 that slowed cement consumption. As of December 31, 2013, the cement industry in Egypt had a total of 20 cement producers, with an aggregate annual installed cement capacity of approximately 75 million tons .
Competition. According to the ministry of Investment official figures, during 2013, Holcim and Lafarge (Egyptian Cement Company of Egypt), CEMEX (Assiut) and Italcementi (Suez Cement, Torah Cement and Helwan Portland Cement), four of the largest cement producers in the world, represented approximately 37% of the total cement production in Egypt. Other significant competitors in Egypt are Arabian (La Union), Titan (Alexandria Portland Cement and Beni Suef Cement), Ameriyah (Cimpor), National, Sinai (Vicat), Sinai White cement (Cementir), South Valley, Nile Valley, El Sewedy, Army Cement, Aswan Medcom, Misr Beni Suef, Al Nahda and Misr Quena Cement Companies, in addition to two new cement producers that entered the market in 2013, ASEC Cement and Egyptian Kuwait Holding Co.
Cement and Ready-Mix Concrete. For the year ended December 31, 2013, cement represented approximately 91% and ready-mix concrete represented approximately 6% of net sales for our operations in Egypt before eliminations resulting from consolidation.
Capital Expenditures. We made capital expenditures of approximately U.S.$14 million in 2011, U.S.$21 million in 2012 and U.S.$24 million in 2013 in our operations in Egypt. We currently expect to make capital expenditures of approximately U.S.$26 million in our operations in Egypt during 2014.
Rest of the Mediterranean
Our operations in the Rest of the Mediterranean, which as of December 31, 2013, consisted primarily of our operations in Croatia, the UAE and Israel. These operations represented approximately 5% of our 2013 net sales in Mexican Peso terms, before eliminations resulting from consolidation, and approximately 2% of our total assets in 2013.
 
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Our Operations in South-East Europe
Overview. As of December 31, 2013, we held 100% of CEMEX Hrvatska d.d., our operating subsidiary in Croatia. We are the largest cement producer in Croatia based on installed capacity as of December 31, 2013, according to our estimates. We have three cement plants in Croatia with an annual installed capacity of 2.6 million tons. As of December 31, 2013, from our cement plants in Croatia only the largest plant having operated until the end of December 2013 due to inventory control. As of December 31, 2013, we operated 11 land distribution centers, 4 maritime cement terminals in Croatia, Bosnia & Herzegovina and Montenegro, 8 ready-mix concrete facilities and 2 aggregates quarry in Croatia.
Industry. According to our estimates, total cement consumption in Croatia, Bosnia & Herzegovina and Montenegro reached almost 2.9 million tons in 2013, a decrease of 4.1% compared to 2012.
Competition. Our primary competitors in the cement market in Croatia are Nexe and Holcim.
Capital Expenditures. We made capital expenditures of approximately U.S.$10 million in 2011, U.S.$6 million in 2012 and U.S.$6 million in 2013 in our operations in South-East Europe. We currently expect to make capital expenditures of approximately U.S.$4 million in our operations in South-East Europe during 2014.
Our Operations in the United Arab Emirates (UAE)
Overview. As of December 31, 2013, we held a 49% equity interest (and 100% economic benefit) in three UAE companies: CEMEX Topmix LLC and CEMEX Supermix LLC, two ready-mix holding companies, and CEMEX Falcon LLC, which specializes in the trading and production of cement and slag. We are not allowed to have a controlling interest in these companies (UAE law requires 51% ownership by UAE nationals). However, through agreements with other shareholders in these companies, we have control over the remaining 51% of the economic benefits in each of the companies. As a result, we own a 100% economic interest in all three companies. As of December 31, 2013, we owned 9 ready-mix concrete plants and 1 cement and slag grinding facility in the UAE, serving the markets of Dubai and Abu Dhabi.
Capital Expenditures. We made capital expenditures of approximately U.S.$1 million in 2011, U.S.$0.5 million in 2012 and U.S.$0.4 million in 2013 in our operations in the UAE. We currently expect to make capital expenditures of approximately U.S.$0.3 million in our operations in the UAE during 2014.
Our Operations in Israel
Overview. As of December 31, 2013, we held 100% of CEMEX Holdings (Israel) Ltd., our main subsidiary in Israel. We are a leading producer and supplier of raw materials for the construction industry in Israel. In addition to ready-mix concrete and aggregates, we produce a diverse range of building materials and infrastructure products in Israel. As of December 31, 2013, we operated 57 ready-mix concrete plants, 6 aggregates quarries, 1 concrete products plant, 1 admixtures plant, 1 lime factory and 1 blocks factory in Israel.
Capital Expenditures. We made capital expenditures of approximately U.S.$10 million in 2011, U.S.$17 million in 2012 and U.S.$17 million in 2013 in our operations in Israel. We currently expect to make capital expenditures of approximately U.S.$17 million in our operations in Israel during 2014.
South America and the Caribbean
For the year ended December 31, 2013, our business in South America and the Caribbean, which includes our operations in the Colombia and our Rest of South America and the Caribbean segment, as described below, represented approximately 13% of our net sales before eliminations resulting from consolidation. As of December 31, 2013, our business in South America and the Caribbean represented approximately 13% of our total installed capacity and approximately 7% of our total assets.
 
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In November 2012, CEMEX Latam, a then wholly-owned subsidiary of CEMEX España, completed the sale of newly issued common shares in the CEMEX Latam Offering, representing approximately 26.65% of CEMEX Latam’s outstanding common shares. CEMEX Latam is the main holding company for CEMEX’s operations in Brazil, Colombia, Costa Rica, Guatemala, Nicaragua, Panama and El Salvador. See “Item 5—Operating and Financial Review and Prospects—Results of Operations—Investments, Acquisitions and Divestitures—Divestitures” for additional information regarding the CEMEX Latam Offering.
Our Operations in Colombia
Overview. As of December 31, 2013, CEMEX Latam owned approximately 99.7% of CEMEX Colombia, S.A., or CEMEX Colombia, our main subsidiary in Colombia. As of December 31, 2013, CEMEX Colombia was the second-largest cement producer in Colombia, based on installed capacity (4.0 million metric tons per year) as of December 31, 2013, according to the National Administrative Statistics Department, or DANE, in Colombia. For the year ended December 31, 2013, our operations in Colombia represented approximately 6% of our net sales before eliminations resulting from consolidation and approximately 4% of our total assets.
CEMEX Colombia has a significant market share in the cement and ready-mix concrete market in the “Urban Triangle” of Colombia comprising the cities of Bogotá, Medellín and Cali. During 2013, these three metropolitan areas accounted for approximately 36% of Colombia’s cement consumption. CEMEX Colombia’s Ibague plant, which uses the dry process and is strategically located in the Urban Triangle, is CEMEX Colombia’s largest plant and had an annual installed capacity of 2.8 million tons as of December 31, 2013. CEMEX Colombia, through its Bucaramanga and Cúcuta plants, is also an active participant in Colombia’s northeastern market. In 2013, we completed the construction of a new cement grinding plant with an annual capacity of 450,000 tons of cement. This new plant is enhancing our footprint in the Caribbean coast market in Colombia. CEMEX Colombia’s strong position in the Bogotá ready-mix concrete market is largely due to its access to a ready supply of aggregates deposits in the Bogotá area.
Industry. According our estimates, the installed capacity for cement in Colombia was 17.7 million tons in 2013. According to DANE, total cement consumption in Colombia reached 10.9 million tons during 2013, an increase of 3.5% from 2012, while cement exports from Colombia reached 0.4 million tons. We estimate that close to 38% of cement in Colombia is consumed by the self-construction sector, while the infrastructure sector accounts for approximately 36% of total cement consumption and has been growing in recent years. The other construction segments in Colombia, including the formal housing and commercial sectors, account for the balance of cement consumption in Colombia.
Competition. We have two primary competitors, Cementos Argos, which has established a leading position in the Colombian Caribbean coast, Antioquia and Southwest region markets, and our other competitor is Holcim Colombia.
The ready-mix concrete industry in Colombia is fairly consolidated with the top three producers accounting for approximately 75% of the market as of December 31, 2013. CEMEX Colombia was the second-largest ready-mix concrete producer as of December 31, 2013. The first and third-largest producers were Argos and Holcim Colombia, respectively.
The aggregates market in Colombia is highly fragmented and is dominated by the informal market. CEMEX Colombia was the largest aggregates producer as of December 31, 2013. Approximately 88% of the aggregates market in Colombia is comprised of small independent producers as of December 31, 2013.
 
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Our Operating Network in Colombia

 

Products and Distribution Channels
Cement. Our cement operations represented approximately 58% of net sales for our operations in Colombia before eliminations resulting from consolidation in 2013.
Ready-Mix Concrete. Our ready-mix concrete operations represented approximately 29% of net sales for our operations in Colombia before eliminations resulting from consolidation in 2013.
 
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Aggregates. Our aggregates operations represented approximately 9% of net sales for our operations in Colombia before eliminations resulting from consolidation in 2013.
Description of Properties, Plants and Equipment. As of December 31, 2013, CEMEX Colombia owned 5 operating cement plants, having a total annual installed capacity of 4.0 million tons. Both plants utilize the dry process. In 2013, we replaced 36% of our total fuel consumed in CEMEX Colombia with alternative fuels, and we have an internal electricity generating capacity of 24.7 megawatts. We estimate that, as of December 31, 2013, the limestone and clay permitted proven and probable reserves of our operations in Colombia had an average remaining life of approximately 145 and 9 years, respectively, assuming 2009-2013 average annual cement production levels. The operating licenses for quarries in Colombia are renewed every 30 years; assuming renewal of such licenses, we estimate having sufficient limestone reserves for our operations in Colombia for over 100 years assuming 2009-2013 average annual cement production levels. As of December 31, 2013, CEMEX Colombia owned 8 land distribution centers, 1 mortar plant, 69 ready-mix concrete plants (including 44 fixed and 25 mobile) and 6 aggregates operations. As of that date, CEMEX Colombia also owned 13 limestone quarries.
Capital Expenditures. We made capital expenditures of approximately U.S.$20 million in 2011, U.S.$81 million in 2012 and U.S.$60 million in 2013 in our operations in Colombia. We currently expect to make capital expenditures of approximately U.S.$30 million in our operations in Colombia during 2014.
Rest of South America and the Caribbean
Our operations in the Rest of South America and the Caribbean, which as of December 31, 2013, consisted primarily of our operations in Costa Rica, the Dominican Republic, Jamaica, Nicaragua, Panama, Puerto Rico and other countries in the Caribbean, Guatemala and small ready-mix concrete operations in Argentina. These operations represented approximately 7% of our 2013 net sales in Mexican Peso terms, before eliminations resulting from consolidation, and approximately 3% of our total assets in 2013.
Our Operations in Costa Rica
Overview. As of December 31, 2013, CEMEX Latam owned a 99.1% interest in CEMEX (Costa Rica), S.A., or CEMEX Costa Rica, our main operating subsidiary in Costa Rica and a leading cement producer in the country.
Industry. Approximately 1.3 million tons of cement were sold in Costa Rica during 2013, according to the Cámara de la Construcción de Costa Rica , the construction industry association in Costa Rica. The cement market in Costa Rica is a predominantly retail market, and we estimate that 57% of cement sold is bagged cement.
Competition. The Costa Rican cement industry currently includes two producers, CEMEX Costa Rica and Holcim Costa Rica.
Description of Properties, Plants and Equipment. As of December 31, 2013, CEMEX Costa Rica operated 1 cement plant in Costa Rica, with an annual installed capacity of 0.7 million tons, and operated a grinding mill in the capital city of San José with an annual installed capacity of 0.2 million tons. CEMEX Costa Rica had 7 operational ready-mix concrete plants (one is dismantled), 1 aggregates quarry and 1 land distribution center.
Exports. During 2013, cement exports by our operations in Costa Rica represented approximately 16% of our total production in Costa Rica. In 2013, 50% of our cement exports from Costa Rica were to El Salvador, and the remaining exports were to Nicaragua.
Capital Expenditures. We made capital expenditures of approximately U.S.$7 million in 2011, U.S.$6 million in 2012 and U.S.$6 million in 2013 in our operations in Costa Rica. We currently expect to make capital expenditures of approximately U.S.$4 million in our operations in Costa Rica during 2014.
 
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Our Operations in the Dominican Republic
Overview. As of December 31, 2013, we held 100% of CEMEX Dominicana, S.A., or CEMEX Dominicana, our main subsidiary in the Dominican Republic and a leading cement producer in the country. CEMEX Dominicana’s sales network covers the country’s main consumption areas, which are Santo Domingo, Santiago de los Caballeros, La Vega, San Pedro de Macorís, Samaná and La Altagracia. CEMEX Dominicana also has a 10-year lease arrangement with the Dominican Republic government related to the mining of gypsum, which has enabled CEMEX Dominicana to supply all local and regional gypsum requirements.
Industry. In 2013, cement consumption in the Dominican Republic reached 3.1 million tons according to our estimates.
Competition. Our principal competitors in the Dominican Republic are Domicem, a mixed Italian/local cement producer that started cement production in 2005; Cementos Cibao, a local competitor; Cemento Colón, an affiliated grinding operation of Argos; Cementos Santo Domingo, a cement grinding partnership between a local investor and Cementos La Union from Spain; Cementos Andinos, a Colombian cement producer which has an installed grinding operation and a partially constructed cement kiln; and Cementos Estrella, a new grinding owned by a local investor.
Description of Properties, Plants and Equipment. As of December 31, 2013, CEMEX Dominicana operated 1 cement plant in the Dominican Republic, with an installed capacity of 2.6 million tons per year. As of that date, CEMEX Dominicana also owned 10 ready-mix concrete plants, 1 aggregates quarry, 2 land distribution centers and 2 marine terminals.
Capital Expenditures. We made capital expenditures of approximately U.S.$9 million in 2011, U.S.$10 million in 2012 and U.S.$17 million in 2013 in our operations in the Dominican Republic. We currently expect to make capital expenditures of approximately U.S.$6 million in our operations in the Dominican Republic during 2014.
Our Operations in Panama
Overview. As of December 31, 2013, CEMEX Latam held a 99.5% interest in Cemento Bayano, S.A., or Cemento Bayano, our main subsidiary in Panama and a leading cement producer in the country.
Industry. Approximately 1.8 million cubic meters of ready-mix concrete were sold in Panama during 2013, according to our estimates. Cement consumption in Panama increased 10.7% in 2013, according to our estimates.
Competition. The cement industry in Panama includes three cement producers: Cemento Bayano, Argos Panamá, an affiliate of Colombian Cementos Argos, and Cemento Interoceánico.
Description of Properties, Plants and Equipment. As of December 31, 2013, Cemento Bayano operated 1 cement plant in Panama, with an annual installed capacity of 2.1 million tons. As of that date, Cemento Bayano also owned and operated 14 ready-mix concrete plants, 4 aggregates quarries and 3 land distribution centers.
Capital Expenditures. We made capital expenditures of approximately U.S.$17 million in 2011, U.S.$9 million in 2012 and U.S.$11 million in 2013 in our operations in Panama. We currently expect to make capital expenditures of approximately U.S.$7 million in our operations in Panama during 2014.
Our Operations in Nicaragua
Overview. As of December 31, 2013, CEMEX Latam owned 100% of CEMEX Nicaragua, S.A., or CEMEX Nicaragua, our operating subsidiary in Nicaragua.
Industry. According to our estimates, approximately 0.8 million tons of cement, approximately 184,000 cubic meters of ready-mix concrete and approximately 4.9 million tons of aggregates were sold in Nicaragua during 2013.
 
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Competition. Two market participants compete in the Nicaraguan cement industry: CEMEX Nicaragua and Holcim (Nicaragua) S.A.
Description of Properties, Plants and Equipment. As of December 31, 2013, we leased and operated 1 fixed ready-mix concrete plant with an installed capacity of 0.6 million tons, 5 ready-mix plants, 2 aggregates quarries and 1 distribution center in Nicaragua. Since March 2003, CEMEX Nicaragua has also leased a 100,000 ton milling plant in Managua, which has been used exclusively for pet coke milling.
Capital Expenditures. We made capital expenditures of approximately U.S.$4 million in 2011, U.S.$5 million in 2012 and U.S.$5 million in 2013 in our operations in Nicaragua. We currently expect to make capital expenditures of approximately U.S.$4 million in our operations in Nicaragua during 2014.
Our Operations in Puerto Rico
Overview. As of December 31, 2013, we owned 100% of CEMEX de Puerto Rico, Inc., or CEMEX Puerto Rico, our main subsidiary in Puerto Rico.
Industry. In 2013, cement consumption in Puerto Rico reached 0.9 million tons according to our estimates
Competition. The cement industry in Puerto Rico in 2013 was comprised of two cement producers: CEMEX Puerto Rico and San Juan Cement Co., an affiliate of Italcementi and Elefante Rojo Inc. (formerly Antilles Cement Co.).
Description of Properties, Plants and Equipment. As of December 31, 2013, CEMEX Puerto Rico operated 1 cement plant with an installed cement capacity of approximately 1.2 million tons per year. As of that date, CEMEX Puerto Rico also owned and operated 9 ready-mix concrete plants and 2 land distribution centers. CEMEX Puerto Rico owns an aggregate quarry, which is currently closed.
Capital Expenditures. We made capital expenditures of approximately U.S.$2 million in 2011, U.S.$4 million in 2012 and U.S.$4 million in 2013 in our operations in Puerto Rico. We currently expect to make capital expenditures of approximately U.S.$8 million in our operations in Puerto Rico during 2014.
Our Operations in Guatemala
Overview. As of December 31, 2013, CEMEX Latam owned 100% of CEMEX Guatemala, S.A., our main operating subsidiary in Guatemala. As of December 31, 2013, we owned and operated 1 cement grinding mill in Guatemala with an installed capacity of 500,000 tons per year. In addition, we also owned and operated 3 land distribution centers and 1 clinker dome close to the maritime terminal in the southern part of the country, as well as 4 ready-mix plants.
Capital Expenditures. We made capital expenditures of approximately U.S.$1 million in 2011, U.S.$1 million in 2012 and U.S.$2 million in 2013 in Guatemala. We currently expect to make capital expenditures of approximately U.S.$1 million in our operations in Guatemala during 2014.
Our Operations in Other South American and Caribbean Countries
Overview. As of December 31, 2013, we held 100% of Readymix Argentina, S.A., which owns 5 ready-mix concrete plants in Argentina. Due to market conditions, only 4 of the 5 ready-mix concrete plants were in operation in 2013.
We believe that the Caribbean region holds considerable strategic importance because of its geographic location. As of December 31, 2013, we operated a network of 8 marine terminals in the Caribbean region, which facilitated exports from our operations in several countries, including Mexico, the Dominican Republic, Puerto
 
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Rico and the United States. Three of our marine terminals are located in the main cities of Haiti, two are in the Bahamas, and one is in Manaus, Brazil. We also have a non-controlling interest in two other terminals, one in Bermuda and the other in the Cayman Islands.
As of December 31, 2013, we had non-controlling positions in Trinidad Cement Limited, with cement operations in Trinidad and Tobago, Barbados and Jamaica, as well as a non-controlling position in Caribbean Cement Company Limited in Jamaica, National Cement Ltd. in the Cayman Islands and Maxcem Bermuda Ltd. in Bermuda. As of December 31, 2013, we also held a 100% interest in CEMEX Jamaica Limited, which operates a calcinated lime plant in Jamaica with a capacity of 120,000 tons per year and a hydrate line with a capacity of 18,000 tons per year. As of December 31, 2013, we also held a non-controlling position in Societe des Ciments Antillais, a company with cement operations in Guadalupe and Martinique.
Capital Expenditures. We made capital expenditures in our other operations in South America, Central America and the Caribbean of approximately U.S.$1 million in 2011, U.S.$3 million in 2012 and U.S.$7 million in 2013. We currently expect to make capital expenditures of approximately U.S.$1 million in our Other operations in South America, Central America and the Caribbean during 2014.
In April 2010, CEMEX announced its plans to contribute up to U.S.$100 million for a non-controlling interest in a vehicle originally named Blue Rock Cement Holdings S.A. which is now named TRG Blue Rock HBM Holdings S.à.r.l. (“Blue Rock—TRG”) that would invest in the cement and related industries. Depending on funds raised from third-party investors and the availability of financing, Blue Rock—TRG may decide to invest in different assets in the cement industry and/or related industries and/or enter into operating contracts providing for CEMEX’s assistance in the development, building and operation of the invested assets, if any. As of December 31, 2013, different projects are being considered but CEMEX does not have any investment in Blue Rock—TRG. Although we do not anticipate being in a control position to affect the decisions of Blue Rock—TRG’s management, given our investment and industry expertise, we are in discussions with Blue Rock—TRG’s management to enter into an operating contract providing for our assistance in the development, building and operation of the invested assets, if any. Depending on the amount raised from third-party investors and the availability of financing, Blue Rock—TRG’s management may also decide to invest in different assets in the cement industry and/or related industries.
Asia
For the year ended December 31, 2013, our business in Asia, which includes our operations in the Philippines and the Rest of Asia segment, as described below, represented approximately 4% of our net sales before eliminations resulting from consolidation. As of December 31, 2013, our business in Asia represented approximately 6% of our total installed capacity and approximately 2% of our total assets.
Our Operations in the Philippines
Overview. As of December 31, 2013, on a consolidated basis through various subsidiaries, we held 100% of the economic benefits of our two operating subsidiaries in the Philippines, Solid Cement Corporation (“Solid Cement”) and APO Cement Corporation (“APO”). For the year ended December 31, 2013, our operations in the Philippines represented approximately 3% of our net sales before eliminations resulting from consolidation and approximately 3% of our total assets.
Industry. According to the Cement Manufacturers’ Association of the Philippines (CEMAP), cement consumption in the Philippine market, which is primarily retail, totaled 19.4 million tons during 2013. Demand for cement in the Philippines increased by approximately 5.9% in 2013 compared to 2012 .
As of December 31, 2013, the Philippine cement industry had a total of 19 cement plants, of which 2 are grinding plants. Annual installed clinker capacity is 26.9 million metric tons, according to CEMAP.
 
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Competition. As of December 31, 2013, our major competitors in the Philippine cement market were Lafarge, Holcim, Taiheiyo, Pacific, Northern, Goodfound, Mabuhay and Eagle.
Description of Properties, Plants and Equipment. As of December 31, 2013, our operations in the Philippines included 2 cement plants with an annual installed capacity of 4.5 million tons, 4 quarry dedicated to supply raw materials to our cement plants, 13 land distribution centers and 4 marine distribution terminals. We estimate that, as of December 31, 2013, the limestone and clay permitted proven and probable reserves of our operations in the Philippines had an average remaining life of approximately 27 and 13 years, assuming 2009-2013 average annual cement production levels.
On September 17, 2012, we announced that we intended to invest approximately U.S.$65 million to increase the cement production capacity of our APO plant in the Philippines by 1.5 million tons per year. This expansion is expected to be operational by the second half of 2014.
Cement. For the year ended December 31, 2013, our cement operations represented 99% of net sales for our operations in the Philippines before eliminations resulting from consolidation.
Capital Expenditures. We made capital expenditures of approximately U.S.$36 million in 2011, U.S.$19 million in 2012 and U.S.$39 million in 2013 in our operations in the Philippines. We currently expect to make capital expenditures of approximately U.S.$54 million in our operations in the Philippines during 2014.
Rest of Asia
Our operations in the Rest of Asia, which as of December 31, 2013, consisted primarily of our operations in Thailand, Bangladesh, China and Malaysia. These operations represented approximately 1% of our 2013 net sales in Mexican Peso terms, before eliminations resulting from consolidation, and an insignificant amount of our total assets in 2013.
Our Operations in Thailand
Overview. As of December 31, 2013, we held, on a consolidated basis, 100% of the economic benefits of CEMEX (Thailand) Co. Ltd., or CEMEX (Thailand), our operating subsidiary in Thailand. As of December 31, 2013, CEMEX (Thailand) owned one cement plant in Thailand, with an annual installed capacity of approximately 0.8 million tons.
Industry. According to our estimates, at December 31, 2013, the cement industry in Thailand had a total of 14 cement plants, with an aggregate annual installed capacity of approximately 55 million tons, from which the capacity to produce 10 million tons has been temporarily shut down. We estimate that there are 6 major cement producers in Thailand, four of which represent approximately 98% of installed capacity and 94% of the market.
Competition. Our major competitors in Thailand, which have a significantly larger presence than CEMEX (Thailand), are Siam Cement, Holcim, TPI Polene and Italcementi.
Capital Expenditures. We made capital expenditures of approximately U.S.$1 million in 2011, approximately U.S.$1 million in 2012 and U.S.$1 million in 2013. We currently expect to make capital expenditures of approximately U.S.$1 million in our operations in Thailand during 2014.
Our Operations in Malaysia
Overview. As of December 31, 2013, we held on a consolidated basis 100% of the economic benefits of our operating subsidiaries in Malaysia. We are a leading ready-mix concrete producer in Malaysia, with a significant share in the country’s major urban centers. As of December 31, 2013, we operated 16 ready-mix concrete plants, 2 asphalt plants and 3 aggregates quarries in Malaysia.
 
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Competition. Our main competitors in the ready-mix concrete and aggregates markets in Malaysia are YTL, Lafarge and Heidelberg.
Capital Expenditures. We made capital expenditures of approximately U.S.$1 million in 2011, U.S.$2 million in 2012 and U.S.$2.7 million in 2013 in our operations in Malaysia. We currently expect to make capital expenditures of approximately U.S.$2.0 million in our operations in Malaysia during 2014.
Our Operations in Other Asian Countries
Overview. Since April 2001, we have been operating a grinding mill near Dhaka, Bangladesh. As of December 31, 2013, this mill had a production capacity of 520,000 tons per year. A majority of the supply of clinker for the mill is produced by our operations in the region. In the fourth quarter of 2012, we sold our stake in the company that owned and operated a cement terminal located on the west coast of Taiwan.
In the second quarter of 2013, we agreed to sell our stake in the company that owned and operated ready-mix plants in Qingdao. The transfer of ownership in said company was officially completed in the last quarter of 2013. As of December 31, 2013, we also operated 3 ready-mix concrete plants in China, located in the northern city of Tianjin.
Capital Expenditures. We made capital expenditures of approximately U.S.$2 million in 2011, U.S.$2.3 million in 2012 and U.S.$1.6 million in 2013 in our operations in other Asian countries. We currently expect to make capital expenditures of approximately U.S.$1.2 million in our operations in other Asian countries during 2014.
Our Trading Operations
In 2013, we traded approximately 9.5 million tons of cementitious materials, including 8.5 million tons of cement and clinker. Approximately 79% of the cement and clinker trading volume in 2013 consisted of exports from our operations in Costa Rica, Croatia, the Dominican Republic, Germany, Guatemala, Latvia, Mexico, the Philippines, Poland, Puerto Rico, Spain, United Arab Emirates and the United States. The remaining approximately 21% was purchased from third parties in countries, such as Colombia, Greece, Honduras, India, Ireland, Italy Jamaica, Slovakia, South Korea, Spain, Turkey, the United States and Vietnam. As of December 31, 2013, we had trading activities in 108 countries. In 2013, we traded approximately 1 million metric tons of granulated blast furnace slag, a non-clinker cementitious material.
Our trading network enables us to maximize the capacity utilization of our facilities worldwide while reducing our exposure to the inherent cyclicality of the cement industry. We are able to distribute excess capacity to regions around the world where there is demand. In addition, our worldwide network of strategically located marine terminals allows us to coordinate maritime logistics on a global basis and minimize transportation expenses. Our trading operations also enable us to explore new markets without significant initial capital expenditure.
Freight rates, which account for a large share of the total import supply cost, have been subject to significant volatility in recent years. Our trading operations, however, have obtained significant savings by contracting maritime transportation in due time and by using our own and chartered fleet, which transported approximately 13% of our cement and clinker import volume during 2013.
In addition, based on our spare fleet capacity, we provide freight service to third parties, thus providing us with valuable shipping market information and generating additional revenues.
Regulatory Matters and Legal Proceedings
A description of material regulatory matter and legal proceedings affecting us is provided below.
 
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Antitrust Proceedings
Polish Antitrust Investigation. Between May 31, 2006 and June 2, 2006, officers of the Polish Competition and Consumer Protection Office (the “Protection Office”) conducted a search of the office in Warsaw, Poland, of CEMEX Polska, one of our indirect subsidiaries in Poland, and of the offices of other cement producers in Poland. These searches took place as a part of the exploratory investigation that the head of the Protection Office had started on April 26, 2006. On January 2, 2007, CEMEX Polska received a notification from the Protection Office informing it of the formal initiation of an antitrust proceeding against all cement producers in Poland, including CEMEX Polska and another of our indirect subsidiaries in Poland. The notification alleged that there was an agreement between all cement producers in Poland regarding prices and other sales conditions for cement, an agreed division of the market with respect to the sale and production of cement, and the exchange of confidential information, all of which limited competition in the Polish market with respect to the production and sale of cement. On December 9, 2009, the Protection Office delivered to CEMEX Polska its decision against Polish cement producers related to an investigation which covered a period from 1998 to 2006. The decision imposed fines on a number of Polish cement producers, including CEMEX Polska. The fine imposed on CEMEX Polska was approximately Polish Zloty 115.56 million (approximately U.S.$38.17 million as of March 31, 2014, based on an exchange rate of Polish Zloty 3.0279 to U.S.$1.00), which is approximately 10% of CEMEX Polska’s total revenue in 2008. CEMEX Polska disagreed with the decision, denied that it committed the practices alleged by the Protection Office and, therefore, on December 23, 2009, CEMEX Polska filed an appeal before the Polish Court of Competition and Consumer Protection in Warsaw (the “First Instance Court”). After a series of hearings, on December 13, 2013, the First Instance Court issued its judgment in regards with the appeals filed by CEMEX Polska and other cement producers, which were previously combined into a joint appeal. The First Instance Court reduced the penalty imposed on CEMEX Polska to approximately Polish Zloty 93.89 million (approximately U.S.$31.01 million based on an exchange rate of Polish Zloty 3.0279 to U.S.$1.00 as of March 31, 2014), which is equal to 8.125% of CEMEX Polska’s revenue in 2008. On December 20, 2013, CEMEX Polska requested the First Instance Court to deliver its judgment with a written justification. After reception of the written justification CEMEX Polska intends to appeal the First Instance Court judgment before the Appeals Court in Warsaw. The abovementioned penalty is enforceable until the Appeals Court issues its final judgment. As of March 31, 2014, the accounting provision created in relation with this proceeding was approximately Polish Zloty 93.89 million (approximately U.S.$31.01 million as of March 31, 2014, based on an exchange rate of Polish Zloty 3.0279 to U.S.$1.00). As of March 31, 2014, we do not expect this matter would have a material adverse impact on our results of operations, liquidity and financial condition.
Antitrust Investigations in Europe by the European Commission. On November 4, 2008, officers of the European Commission, in conjunction with officials of the national competition enforcement authorities, conducted unannounced inspections at our offices in Thorpe, United Kingdom, and Ratingen, Germany. Further to these inspections, on September 22 and 23, 2009, our offices in Madrid, Spain, were also inspected by the European Commission.
In conducting these investigations, the European Commission alleged that we may have participated in anti-competitive agreements and/or concerted practices in breach of Article 101 of the Treaty on the Functioning of the European Union (formerly Article 81 of the EC Treaty) and Article 53 of the European Economic Area (“EEA”) Agreement in the form of restrictions of trade flows in the EEA, including restrictions on imports into the EEA from countries outside the EEA, market sharing, price coordination and connected anticompetitive practices in the cement and related products markets. During 2009 and 2010, we received requests for information and documentation from the European Commission, and we fully cooperated by providing the relevant information and documentation on time.
On December 8, 2010, the European Commission informed us that it decided to initiate formal proceedings with respect to the investigation of the aforementioned anticompetitive practices. These proceedings would affect Austria, Belgium, the Czech Republic, France, Germany, Italy, Luxembourg, the Netherlands, Spain and the United Kingdom. The European Commission indicated that we, as well as seven other companies, would be included in these proceedings. These proceedings may lead to an infringement decision, or if the objections
 
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raised by the European Commission are not substantiated, the case might be closed. This initiation of proceedings relieves the competition authorities of the Member States of the European Union of their competence to apply Article 101 of the Treaty on the Functioning of the European Union to the same case. We intend to defend our position vigorously in these proceedings and are fully cooperating and will continue to cooperate with the European Commission in connection with this matter.
On April 1, 2011, the European Commission notified CEMEX, S.A.B. de C.V. of a decision under Article 18(3) of Council Regulation (EC) No 1/2003 of December 16, 2002 on the implementation of the rules on competition set forth in Article 81 of the EC Treaty (current Articles 101 and 102 of the EC Treaty). The European Commission also requested that CEMEX, S.A.B. de C.V. deliver a substantial amount of information and documentation, which we effectively delivered on August 2, 2011, after requesting additional time.
CEMEX, S.A.B. de C.V. and several of its affiliates in Europe filed an appeal before the General Court of the European Union (the “General Court”) for the annulment of the European Commission’s decision requesting information and documentation on the grounds that such request was contrary to several principles of European Union Law. In addition, on June 17, 2011, CEMEX, S.A.B. de C.V. and several of its affiliates in Europe requested interim measures to the General Court, asking for the suspension of the information and document request until the appeal was resolved. The President of the General Court rejected the proposal for a suspension without considering the arguments of the main appeal. On December 21, 2011, CEMEX, S.A.B. de C.V. and several of its affiliates in Europe filed their reply to the European Commission’s defense. The European Commission filed its rejoinder on March 27, 2012. A hearing with respect to the proceedings against CEMEX, S.A.B. de C.V. and several of its affiliates in Europe was held on February 6, 2013, and the hearings for all other companies being investigated were held during April 2013. On March 14, 2014, the General Court issued a judgment dismissing the appeal filed by CEMEX, S.A.B. de C.V. and several of its affiliates in Europe and confirming the lawfulness of the request for information sent by the European Commission in all of its aspects. CEMEX, S.A.B. de C.V. and several of its affiliates in Europe may file an appeal against the General Court’s judgment, limited to points of law only, before the European Court of Justice (the “Court of Justice”), within approximately two months from the date of notice of the General Court’s judgment dismissing the appeal.
On November 29, 2011, the European Commission notified CEMEX, S.A.B. de C.V. of its decision that if, by December 15, 2011, the European Commission did not receive a confirmation that CEMEX, S.A.B. de C.V.’s reply submitted on August 2, 2011 was complete, accurate and definitive, or if CEMEX, S.A.B. de C.V. did not submit a new reply with the necessary amendments and clarifications, the European Commission would impose a daily fine. On December 15, 2011, we complied with the terms of this decision and submitted a new reply with the amendments and clarifications identified in the revision and audit process performed since August 2, 2011.
If the alleged infringements investigated by the European Commission are substantiated, significant penalties may be imposed on our subsidiaries operating in such markets. In that case, pursuant to European Union Regulation 1/2003, the European Commission may impose penalties of up to 10% of the total turnover of the relevant companies for the last year preceding the imposition of the fine for which the financial statements have been approved by the shareholders’ meeting of the relevant companies. At this stage of the proceedings, as of March 31, 2014, the European Commission had not yet formulated a Statement of Objections against us and, as a result, the extent of the charges and the alleged infringements are unknown. Moreover, it is not clear which cement related products total turnover would be used as the basis for the determination of the possible penalties. As a consequence, we are not able to assess the likelihood of an adverse result or the amount of the potential fine, but if adversely resolved it may have a material adverse impact on our results of operations, liquidity and financial condition.
Antitrust Investigations in Spain by the CNC. On September 22, 2009, the Investigative Department (Dirección de Investigación ) of the Spanish Competition Commission ( Comisión Nacional de la Competencia ), or CNC, applying exclusively national antitrust law, carried out an inspection, separate from the investigation conducted by the European Commission, in the context of possible anticompetitive practices in the production
 
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and distribution of mortar, ready-mix concrete and aggregates within the Chartered Community of Navarre (“Navarre”). On December 15, 2009, the CNC started a procedure against CEMEX España and four other companies with activities in Navarre for alleged practices prohibited under the Spanish competition law.
On January 12, 2012, the CNC Council notified CEMEX España of its final decision on this matter, imposing a fine of approximately €500,000 (approximately U.S.$688,800.11 as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00) against CEMEX España for price-fixing and market sharing in the concrete market of Navarre from June 2008 through September 2009. CEMEX España denied any wrongdoing and on March 1, 2012, filed an appeal before the competent court ( Audiencia Nacional ), requesting the interim suspension of the decision until a final judgment was issued. To that effect, it requested the CNC Council to suspend the implementation of its decision until the  Audiencia Nacional decided on the requested interim measure. On July 10, 2012, the  Audiencia Nacional  issued a resolution agreeing to the suspension of payment of the fine. On February 14, 2014, the  Audiencia Nacional  notified the judgment issued regarding this matter, accepting in part the appeal filed by CEMEX España. The  Audiencia Nacional  ordered the CNC to recalculate the penalty imposed on CEMEX España, which must be reduced substantially. As CEMEX España continues to believe it has not breached any laws, on March 27, 2014, CEMEX España filed an appeal before the Supreme Court ( Tribunal Supremo ) against the judgment of the  Audiencia Nacional . As of March 31, 2014, we do not expect that the decision to be issued by the CNC to have a material adverse impact on our results of operations, liquidity and financial condition.
Investigations in the United Kingdom. On January 20, 2012, the UK Commission commenced a Market Investigation, (“MIR”), into the supply or acquisition of cement, ready-mix concrete and aggregates for the period from 2007 to 2011. This referral to the UK Commission was made by the Office of Fair Trading following an investigation by them of the aggregates sector. Those companies and persons invited to participate in the MIR are required by law to comply with certain requests for information and, if necessary, to attend hearings. Our subsidiaries in the United Kingdom were invited to participate in the MIR and fully cooperated. The UK Commission issued its full Provisional Findings Report on May 23, 2013, in which it provisionally found that there was a combination of structural and conduct features that gave rise to an adverse effect on competition in the Great Britain cement markets and an adverse effect on competition as a result of contracts involving certain major producers for the supply of granulated blast furnace slag and for the supply of ground granulated blast furnace slag. The UK Commission has not identified any problems with the markets for aggregates or ready-mix concrete. The possible remedies the UK Commission listed include, among others, the divestiture of cement production capacity and/or ready-mix concrete plants by one or more of the top three cement producers and the creation of a cement buying group. On October 8, 2013, the UK Commission announced its provisional decision on remedies which not required CEMEX to divest any of its assets in the United Kingdom. On January 14, 2014, the UK Commission published its Final Report which followed the earlier provisional decision in regards any remedies for our subsidiaries in the United Kingdom. The UK Commission made changes to the provisional decision in its Final Report regarding the supply of granulated blast furnace slag and for the supply of ground granulated blast furnace slag by the other major participants in the MIR; our subsidiaries in the United Kingdom are not impacted by this. As of March 31, 2014, we estimate that the Final Report will not have a material adverse impact on our results of operations, liquidity and financial condition.
Antitrust Investigations in Mexico. In January and March 2009, we were notified of two findings of presumptive responsibility against CEMEX issued by the Mexican Competition Authority ( Comisión Federal de Competencia ), or CFC, alleging certain violations of Mexican antitrust laws. We believed these findings contained substantial violations of rights granted by the Mexican Constitution.
With respect to the first case, in February 2009, we filed a constitutional challenge (juicio de amparo) before the Circuit Court in Monterrey, Mexico (the “Monterrey Circuit Court”), as well as a denial of the allegations. The Monterrey Circuit Court determined that CEMEX lacked standing since the notice of presumptive responsibility did not affect any of CEMEX’s rights; therefore, CEMEX would need to wait until the CFC concluded its proceeding and issued a final ruling before raising its constitutional challenge again. However, in July 2010, in light of the possible violations to CEMEX’s constitutional rights, the CFC terminated
 
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the existing proceeding and reinitiated a new proceeding against CEMEX to cure such violations. We believed that Mexican law did not entitle the CFC to reinitiate a new proceeding but only to continue with the original one. In August 2010, we filed a separate constitutional challenge before the District Court in Monterrey, Mexico, (the “Monterrey District Court”), arguing against the reinitiated proceeding. The Monterrey District Court determined that the order to reinitiate the proceeding and the notice of presumptive responsibility did not affect any of CEMEX’s rights. CEMEX subsequently filed an appeal before the Monterrey District Court, and the Monterrey Circuit Court determined that the CFC’s termination of the proceedings in July 2010 was illegal and it notified the CFC to comply with the issued resolution. In February 2012, CEMEX was fined approximately Ps10.2 million (approximately U.S.$781,010.72 as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) for anticompetitive practices and ordered to implement certain measures. CEMEX appealed the resolution before the CFC and the Monterrey Circuit Court and denied any wrongdoing. In June 2012, the CFC confirmed its resolution. On July 2, 2012, CEMEX filed a separate constitutional challenge before the District Court in Mexico D.F. (the “D.F. District Court”). Simultaneously, CEMEX filed a claim before the Monterrey Circuit Court against the June 2012 CFC resolution. In this proceeding, the Monterrey Circuit Court determined that such resolution did not meet the Circuit Court’s order and, consequently, that it did not comply with the resolution previously issued in this regard. As a result, the Monterrey Circuit Court nullified the fine previously imposed on CEMEX, consequently on May 15, 2013 the D.F. District Court dismissed the constitutional challenge filed by CEMEX against that decision. On December 18, 2012, the CFC ruled against CEMEX, although the fine was excluded from the part of its decision relating to the resolution. On February 12, 2013, CEMEX filed an appeal against this new resolution before the Monterrey Circuit Court. On June 6, 2013, the Monterrey Circuit Court ruled that the CFC had not complied with the constitutional challenge resolution and that the matter shall be sent to Mexico’s Supreme Court in order to apply the relevant sanctions to the CFC. Once the CFC was notified of the content of this resolution, the CFC issued a new decision revoking its previous resolution and withdrawing all charges against CEMEX.
With respect to the second case, in April 2009, we filed a constitutional challenge before the Monterrey Circuit Court and in May 2009 we filed a denial of the CFC’s allegations. In November 2010, the Monterrey Circuit Court ordered the case to be heard by the D.F. District Court, claiming that it lacked appropriate jurisdiction. In December 2010, similar to the first case, the D.F. District Court determined that CEMEX lacked standing with respect to its constitutional challenge since the notice of presumptive responsibility did not affect any of CEMEX’s rights; therefore, CEMEX would need to wait until the CFC concluded its proceeding and issued a final ruling before raising its constitutional challenge again. CEMEX filed an appeal before the D.F. District Court to argue against such determination. On October 14, 2011, the CFC determined that the case should be closed due to a lack of evidence to impose any sanctions. Third parties subsequently filed an appeal before the CFC to reconsider its ruling. The CFC recently confirmed its resolution to not impose any sanctions due to a lack of evidence. This decision was challenged by the plaintiffs before the D.F. District Court through a constitutional challenge, which was dismissed because the plaintiffs lacked standing to challenge the CFC’s decision. Thereafter, the plaintiffs appealed this resolution before a Circuit Court in Mexico City. On September 20, 2013, the Circuit Court in Mexico City confirmed that the case should be closed due to a lack of evidence to impose any sanctions.
Antitrust Cartel Litigation in Germany. On August 5, 2005, Cartel Damages Claims, SA (“CDC”), a Belgian company established by two lawyers in the aftermath of the German cement cartel investigation that took place from July 2002 to April 2003 by Germany’s Federal Cartel Office, with the express purpose of purchasing potential damages claims from cement consumers and pursuing those claims against the alleged cartel participants, filed a lawsuit in the District Court in Düsseldorf, Germany (“Düsseldorf District Court”) against CEMEX Deutschland AG and other German cement companies originally claiming €102 million (approximately U.S.$140.52 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00), which later increased to €131 million (approximately U.S.$180.47 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00), in damages related to alleged price and quota fixing by German cement companies between 1993 and 2002. On February 21, 2007, the Düsseldorf District Court allowed this lawsuit to proceed without going into the merits of this case by issuing an interlocutory judgment. All defendants appealed, but the appeal was dismissed on May 14, 2008.
 
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On a hearing on the merits of this case that was held on March 1, 2012, the Düsseldorf District Court revealed several preliminary considerations on relevant legal questions and allowed the parties to submit their plea and reply on May 21, 2012. After several court hearings, on December 17, 2013 the Düsseldorf District Court issued a decision on closing the first instance. By this decision, all claims brought to court by CDC were dismissed. The court held that the manner in which CDC obtained the claims from 36 cement purchasers was illegal given the limited risk it faced for covering the litigation costs. The acquisition of the claims also breached rules that make the provision of legal advice subject to public authorization. On January 15, 2014, CDC filed an appeal to the Higher Regional Court in Düsseldorf, Germany, and thereafter submitted reasons for their appeal. A court hearing has been scheduled for November 12, 2014. As of March 31, 2014, we are unable to assess the likelihood of an adverse result and, because of the number of defendants, the potential damages that would be borne by us; however, if the final decision is adverse to us, it could have a material adverse impact on our results of operations, liquidity and financial condition.
As of March 31, 2014, we had accrued liabilities regarding this matter for an amount of approximately €20 million (approximately U.S.$27.55 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00), plus an additional €9.98 million (approximately U.S.$13.75 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00), as interest over the principal amount of the claim.
Antitrust Cases in Egypt. On July 29, 2009, two Egyptian contractors filed separate lawsuits against four cement producers, including ACC, demanding compensation of 20 million Egyptian Pounds (approximately U.S.$2.87 million as of March 31, 2014, based on an exchange rate of Egyptian Pounds 6.9790 to U.S.$1.00) from the four cement producers, or approximately 5 million Egyptian Pounds (approximately U.S.$716,435.02 as of March 31, 2014, based on an exchange rate of Egyptian Pounds 6.9790 to U.S.$1.00) from each defendant.
At a December 16, 2009 hearing for one of the cases, the plaintiffs requested the court to release ACC from the claim. On May 11, 2010, ACC was released from the claim and this case is now closed. On an April 24, 2010 hearing for the other case, the court decided to refer the matter back to the prosecutor’s office for further investigation and for a report on the investigations that was presented at a hearing held on January 11, 2011. Thereafter, this case was dismissed and all charges against ACC were dropped. The plaintiffs subsequently filed their appeal to this ruling before the Court of Cassation. As of March 31, 2014, the Court of Cassation had not yet scheduled the first hearing of cassation for this case.
These cases are the first of their kind in Egypt due to the recent enactment of the Law on Competition Protection and Prevention of Monopolistic Practices No. 3 in 2005. Even if we prevail in the ongoing case, these claims may have an adverse impact on our results of operations, liquidity and financial condition if they were to become a precedent and may create a risk of similar claims in the future.
Antitrust Cases in Florida. In October 2009, CEMEX Corp. and other cement and concrete suppliers were named as defendants in several purported class action lawsuits alleging price-fixing in Florida. The purported class action lawsuits are of two distinct types: The first type was filed by entities purporting to have purchased cement or ready-mix concrete directly from one or more of the defendants. The second group of plaintiffs are entities purporting to have purchased cement or ready-mix concrete indirectly from one or more of the defendants. Underlying all proposed suits is the allegation that the defendants conspired to raise the price of cement and concrete and hinder competition in Florida. In early March 2012, the corresponding CEMEX subsidiaries in the United States and the other remaining defendants effected a settlement of both cases resulting in us having to pay approximately U.S.$460,000. The corresponding CEMEX subsidiaries in the United States did not admit any wrongdoing as part of the settlements and deny allegations of misconduct.
On October 26, 2010, CEMEX, Inc. received an Antitrust Civil Investigative Demand from the Office of the Florida Attorney General, which seeks documents and information in connection with an antitrust investigation by the Florida Attorney General into the ready-mix concrete industry in Florida. As of March 31, 2014, CEMEX, Inc. has complied with the Office of the Florida Attorney General with respect to the documents and information requested by the civil investigative demand, and it is unclear, as of March 31, 2014, whether any formal
 
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proceeding will be initiated by the Office of the Florida Attorney General or, if such proceedings are initiated, if any adverse decision against us resulting from the investigations would be made or if such decision would or would not have a material adverse impact on our results of operations, liquidity and financial condition.
Antitrust Investigation in Colombia. On September 5, 2013, CEMEX Colombia was notified of Resolution No. 49141 dated August 21, 2013, issued by the Colombian Superintendency of Industry and Commerce ( Superintendencia de Industria y Comercio ), or SIC, pursuant to which the SIC opened an investigation and issued a statement of objections ( pliego de cargos ) against five cement companies and fourteen directors of those companies, including CEMEX Colombia, for alleged anti-competitive practices. On October 7, 2013, CEMEX Colombia answered the statement of objections and submitted evidence.
The investigated parties are accused of allegedly breaching: (i) Article 1 of Law 155 of 1959, which prohibits any kind of practice, procedure or system designed to limit free competition and determining or maintaining unfair prices; (ii) paragraph 1 of Article 47 of Decree 2153 of 1992, which prohibits any agreements designed to directly or indirectly fix prices; and (iii) paragraph 3 of Article 47 of Decree 2153 of 1992, which prohibits any market sharing agreements between producers or between distributors. Additionally, the fourteen executives, including a former legal representative and the current President of CEMEX Colombia, are being investigated for allegedly breaching paragraph 16 of Article 4 of Decree 2153 of 1992, as amended by Article 26 of Law 1340 of 2009, which provides that the SIC may investigate and sanction any individual who collaborates, facilitates, authorizes, executes or tolerates behavior that violates free competition rules.
If the alleged infringements investigated by the SIC are substantiated, aside from any measures that could be ordered to stop the alleged anti-competitive practices, the following penalties may be imposed against CEMEX Colombia pursuant to Law 1340 of 2009: (i) up to 100,000 times the legal monthly minimum wage, which equals approximately 58,950 million Colombian Pesos (approximately U.S.$29.99 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00) for each violation and to each company being declared in breach of the competition rules, and (ii) up to 2,000 times the legal monthly minimum wage, which equals approximately 1,179 million Colombian Pesos (approximately U.S.$599,902.31 as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00) against those individuals found responsible of collaborating, facilitating, authorizing, executing or tolerating behavior that violates free competition rules. At this stage of the investigations, as of March 31, 2014, we do not expect this matter to have a material adverse impact on our results of operations, liquidity and financial condition.
Environmental Matters
In the ordinary course of business, we are subject to a broad range of environmental laws and regulations in each of the jurisdictions in which we operate. These laws and regulations impose increasingly stringent environmental protection standards regarding, among other things, air emissions, wastewater discharges, the use and handling of hazardous waste or materials, waste disposal practices and the remediation of environmental damage or contamination. These laws and regulations expose us to the risk of substantial environmental costs and liabilities, including liabilities associated with divested assets and past activities and, in some cases, the acts and omissions of the previous owners or operators of a property or facility. Furthermore, in some jurisdictions, certain environmental laws and regulations impose liability, without regard to fault or the legality of the original activity at the time of the actions giving rise to liability.
To prevent, control and remediate environmental problems and maintain compliance with regulatory requirements, we maintain an environmental policy designed to monitor and control environmental matters. Our environmental policy requires each subsidiary to respect and comply with local laws and meet our own internal standards to minimize the use of non-renewable resources and the generation of hazardous and other wastes. We use processes that are designed to reduce the impact of our operations on the environment throughout all the production stages in all our operations worldwide. In addition, during 2012 we started the implementation of a global Environmental Management System (EMS) at our operating sites that provides a framework to facilitate the consistent and systematic implementation of practical, risk-based environmental management at all sites. As
 
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of March 31, 2014, we expect to finish the implementation of the EMS at all of our operating sites by 2015. It will be used to support sites and businesses across CEMEX globally to document, maintain and continuously improve our environmental performance. We believe that, at present, a substantial part of our operations already comply with all material environmental laws applicable to us, as all our cement plants already have some kind of EMS (most of which are ISO 14000 certified), with the remaining implementation efforts directed mainly on our aggregates and ready-mix plants.
We regularly incur capital expenditures that have an environmental component or that are impacted by environmental regulations. However, we do not keep separate accounts for such mixed capital and environmental expenditures. Environmental expenditures that extend the life, increase the capacity, improve the safety or efficiency of assets or are incurred to mitigate or prevent future environmental contamination may be capitalized. Other environmental costs are expensed when incurred. For the years ended December 31, 2011, 2012 and 2013, our sustainability capital expenditures (including our environmental expenditures and investments in alternative fuels and cementitious materials) were approximately U.S.$95 million, approximately U.S.$139 million and approximately U.S.$95 million, respectively. Our environmental expenditures may materially increase in the future.
The following is a discussion of environmental regulations and related matters in our major markets.
Mexico. We were one of the first industrial groups in Mexico to sign an agreement with the Mexican Ministry of Environment and Natural Resources ( Secretaría del Medio Ambiente y Recursos Naturales ), or SEMARNAT, to carry out voluntary environmental audits in our 15 Mexican cement plants under a government-run program. In 2001, the Mexican Environmental Protection Agency ( Procuraduría Federal de Protección al Ambiente ), or PROFEPA, which is part of SEMARNAT, completed the audit of our cement plants and awarded each of them a Clean Industry Certificate ( Certificado de Industria Limpia ) certifying that our cement plants are in full compliance with applicable environmental laws. The Clean Industry Certificates are subject to renewal every two years. As of March 31, 2014, our operating cement plants had Clean Industry Certificates or were in the process of renewing them. We expect the renewal of all currently expired Clean Industry Certificates.
For over a decade, the technology for recycling used tires into an energy source has been employed in our plants located in Ensenada and Huichapan. By the end of 2006, all our cement plants in Mexico were using tires as an alternative fuel. Municipal collection centers in the cities of Tijuana, Mexicali, Ensenada, Mexico City, Reynosa, Nuevo Laredo and Guadalajara currently enable us to recycle an estimated 10,000 tons of tires per year. Overall, approximately 15.50% of the total fuel used in our operating cement plants in Mexico during 2013 was comprised of alternative fuels.
Between 1999 and March 31, 2014, our operations in Mexico have invested approximately U.S.$97 million in the acquisition of environmental protection equipment and the implementation of the ISO 14001:2004 environmental management standards of the International Organization for Standardization (“ISO”). The audit to obtain the renewal of the ISO 14001:2004 certification took place during the first quarter of 2012 and our operating cement plants in Mexico obtained the renewal of the ISO 14001:2004 certification for environmental management systems which is valid for a three year period.
On June 6, 2012 the General Law on Climate Change (Ley General de Cambio Climático), or the Climate Change Law, was published in the Mexican Official Gazette. The Climate Change Law establishes a legal framework to regulate policies for climate change mitigation and adaptation. Many important provisions require the development of secondary legislation, and depend on the publication of subsequent implementing regulations, which are expected to take place within the twelve months following the publication of the Climate Change Law. Because secondary legislation has not yet been developed and corresponding regulations have not yet been implemented, at this stage, as of March 31, 2014, we do not have sufficient information to determine whether or not the measures that may be taken by the Mexican federal government in connection with the Climate Change Law will have a material impact on our business or operations. For instance, the Climate Change Law provides for the elaboration of a registry of the emissions that are generated by fixed sources. However, the
 
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detailed guidelines for reporting, including the scope and methodologies for calculation, will be developed by implementing regulations yet to be developed. Companies that are required to report their emissions and fail to do so or that report false information will be fined. We do not expect any negative impact from this development as we already report our direct and indirect carbon dioxide emissions to SEMARNAT under a voluntary scheme. The Climate Change Law also allows for the establishment of specific greenhouse gas reduction targets in accordance with the respective contribution of each economic sector to the national greenhouse gas emissions. We cannot estimate at this time the impact, if any, that any measures related to this may have upon our operations in Mexico. Although the Climate Change Law does not establish a program for emissions trading, it does vest on the Mexican federal government the power to create, authorize and regulate such a scheme, which may be voluntary or binding. We are closely observing the development of implementing regulations and cannot estimate at this time the impact, if any, that any measures related to this may have upon our operations in Mexico. A Special Tax on Production and Services ( Impuesto Especial Sobre Producción y Servicios ) on the sale of fossil fuels was included in the recently approved tax reform. Starting January 1, 2014, petroleum coke, a primary fuel widely used in our kilns in Mexico will be taxed at a rate of Mexican Ps15.60 (approximately U.S.$1.19 as of March 31, 2014, based on an exchange rate of Mexican Ps13.06 to U.S.$1.00) per ton.
United States. Our operating subsidiaries in the United States are subject to a wide range of U.S. federal, state and local laws, regulations and ordinances dealing with the protection of human health and the environment that are strictly enforced and can lead to significant monetary penalties for noncompliance. These laws and regulations expose us to the risk of substantial environmental costs and liabilities, including liabilities associated with divested assets and past activities and, in some cases, the acts and omissions of the previous owners or operators of a property or facility. These laws regulate, among other things, water discharges, noise, and air emissions, including dust, as well as the handling, use and disposal of hazardous and non-hazardous waste materials. Certain laws also create a shared liability scheme under which parties are held responsible for the cost of cleaning up releases to the environment of designated hazardous substances. We therefore may have to conduct environmental remediation associated with the disposal or release of hazardous substances at our various operating facilities, or at sites in the United States to which we sent hazardous waste for disposal. We believe that our current procedures and practices for handling and managing materials are generally consistent with industry standards and legal and regulatory requirements, and that we take appropriate precautions to protect employees and others from harmful exposure to hazardous materials.
As of March 31, 2014, CEMEX, Inc. and its subsidiaries had accrued liabilities specifically relating to environmental matters in the aggregate amount of approximately U.S.$23.04 million. The environmental matters relate to (i) the disposal of various materials, in accordance with past industry practice, that might be categorized as hazardous substances or wastes, and (ii) the cleanup of hazardous substances or wastes at sites used or operated by CEMEX, Inc. and its subsidiaries including discontinued operations, either individually or jointly with other parties. Most of the proceedings are in the preliminary stages, and a final resolution might take several years. For purposes of recording the provision, CEMEX, Inc. and its subsidiaries consider that it is probable that a liability has been incurred and the amount of the liability is reasonably estimable, whether or not claims have been asserted, and without giving effect to any possible future recoveries. Based on information developed to date, CEMEX, Inc. does not believe it will be required to spend significant sums on these matters, in excess of the amounts previously recorded. The ultimate cost that might be incurred to resolve these environmental issues cannot be assured until all environmental studies, investigations, remediation work, and negotiations with, or litigation against, potential sources of recovery have been completed.
In 2007, the EPA launched a CAA enforcement initiative against the U.S. cement industry. The primary goal of the initiative is to assess the industry’s historic compliance with the CAA’s New Source Review program and to reduce emissions from the industry through the installation of add-on controls. CEMEX has actively engaged with the EPA on its investigations, which involve multiple CEMEX facilities, and has entered into three settlements involving a total of U.S.$4.4 million in civil penalties and a commitment to incur certain capital expenditures for pollution control equipment at its Victorville, California, Fairborn, Ohio and Lyons, Colorado plants. Although some of these proceedings are still in the initial stages, based on our past experience with such
 
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matters and currently available information, we believe, although we cannot assure you, that as of March 31, 2014, such cases will not have a material adverse impact on our results of operations, liquidity and financial condition.
In 2002, CEMEX Construction Materials Florida, LLC (formerly Rinker Materials of Florida, Inc.) (“CEMEX Florida”), a subsidiary of CEMEX, Inc., was granted a federal quarry permit and was the beneficiary of another federal quarry permit for the Lake Belt area in South Florida. The permit held by CEMEX Florida covered CEMEX Florida’s SCL and FEC quarries. CEMEX Florida’s Kendall Krome quarry is operated under the permit of which it was a beneficiary. The FEC quarry is the largest of CEMEX Florida’s quarries measured by volume of aggregates mined and sold. CEMEX Florida’s Miami cement mill is located at the SCL quarry and is supplied by that quarry, while the FEC and Kendall Krome quarries have supplied aggregates to CEMEX and third-party users. In response to litigation brought by environmental groups concerning the manner in which the federal quarry permits were granted, in January 2009, the U.S. District Court for the Southern District of Florida ordered the withdrawal of the federal quarry permits for CEMEX Florida’s SCL, FEC and Kendall Krome quarries. The judge ruled that there were deficiencies in the procedures and analysis undertaken by the Army Corps of Engineers (“Corps”) in connection with the issuance of the permits. Upon appeal, on January 21, 2010, the Eleventh Circuit Court of Appeals affirmed the district court’s ruling withdrawing the federal quarry permits for the three CEMEX Florida quarries as well as other third-party federal quarry permits subject to the litigation. On January 29, 2010, the Corps completed a multi-year review commenced as a result of this litigation and issued a Record of Decision (ROD) supporting the issuance of new federal quarry permits for the FEC and SCL quarries. Excavation of new aggregates was stopped at the FEC and SCL quarries from January 20, 2009 until new permits were issued. The FEC permit was issued on February 3, 2010, and the SCL permit on February 18, 2010. The ROD also indicated that a number of potential environmental impacts must be addressed at the wetlands located at the Kendall Krome site before a new federal quarry permit may be issued for mining at that quarry. It is unclear how long it will take to fully address the Corps’ concerns regarding mining in the Kendall Krome wetlands. While no new aggregates will be quarried from wetland areas at Kendall Krome pending the resolution of the potential environmental issues, the FEC and SCL quarries will continue to operate. If CEMEX Florida is unable to maintain the new Lake Belt permits, CEMEX Florida would need to source aggregates, to the extent available, from other locations in Florida or import aggregates. This would likely affect operating income from our Florida operations. Any adverse impacts on the Florida economy arising from the cessation or significant restriction of quarrying operations in the Lake Belt area could also have a material adverse impact on our results of operations, liquidity and financial condition.
In June 2010, EPA proposed regulating Coal Combustion Products (“CCPs”) generated by electric utilities and independent power producers as a hazardous or special waste under the Resource Conservation and Recovery Act. CEMEX uses CCPs as a raw material in the cement manufacturing process, as well as a supplemental cementitious material in some of our ready-mix concrete products. It is too early to predict how CCPs will ultimately be regulated, but if CCPs are regulated as a hazardous or special waste in the future, it may result in changes to the formulation of our products away from those formulations that employ CCPs as a raw or supplemental cementitious material. Based on current information, we believe, although we cannot assure you, that such matters will not have a material impact on us. EPA has entered into a Consent Decree obligating it to issue a final rule on the regulation of CCPs by December 19, 2014.
We are subject to a number of federal and state laws and regulations addressing climate change. On the federal side, EPA has promulgated a series of regulations pertaining to emissions of GHGs from industrial sources. EPA issued the Mandatory Reporting of GHGs Rule, effective December 29, 2009, which requires certain covered sectors, including cement manufacturing, with GHG emissions above an established threshold to inventory and report their GHG emissions annually on a facility-by-facility basis. In 2010, EPA issued a final rule that establishes GHG thresholds for the New Source Review Prevention of Significant Deterioration (“PSD”) and Title V Operating Permit programs. The rule “tailors” the requirements of these CAA permitting programs to limit which facilities will be required to obtain PSD and Title V permits for GHG emissions. Cement production facilities are included within the categories of facilities required to obtain permits, provided that their GHG emissions exceed the thresholds in the tailoring rule. The PSD program requires new major sources of
 
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regulated pollutants and major modifications at existing major sources to secure pre-construction permits, which establish, among other things, limits on pollutants based on Best Available Control Technology (“BACT”). According to EPA’s rules, stationary sources, such as cement manufacturing, which are already regulated under the PSD program for non-GHG pollutants, need to apply for a PSD permit for any GHG emissions increases above 75,000 tons/year of carbon dioxide equivalent (“CO2E”). Therefore, new cement plants and existing plants undergoing modification which are major sources for non-GHG pollutants regulated under the CAA need to acquire a PSD permit for construction or modification activities that increase CO2E by 75,000 or more tons/year, and would have to determine and install BACT controls for those emissions. Furthermore, any new source that emits 100,000 tons/year of CO2E or any existing source that emits 100,000 tons/year of CO2E and undergoes modifications that would emit 75,000 tons/year of CO2E, must comply with PSD obligations. Complying with these PSD permitting requirements can involve significant costs and delay. The costs of future GHG-related regulation of our facilities through these efforts or others could have a material economic impact on our U.S. operations and the U.S. cement manufacturing industry.
With respect to state efforts to address climate change, in 2006, the State of California adopted the Global Warming Solutions Act (Assembly Bill 32 or “AB32”) setting into law a goal to reduce the State’s carbon dioxide emissions to 1990 levels by 2020. As part of the measures derived from AB32, the California Air Resources Board (“CARB”) developed a cap-and-trade program, to be enforced from 2013, that covers most industrial sources of greenhouse gas emissions in the State, including cement production facilities. The program involves allocating a number of allowances free of charge to covered installations, which must subsequently surrender back to the regulator a number of allowances or qualified offset credits matching their verified emissions during the compliance period. Based on the free allowances received as of March 31, 2014 for the first compliance period (2013-2014), we expect that our Victorville cement plant will have enough free allowances to meet all of its compliance obligations for the first compliance period (2013-2014) without a material impact on its operating costs. Furthermore, we are actively pursuing initiatives to substitute lower carbon fuels for fossil fuels, improve our energy efficiency and utilize renewable power in an effort to economically reduce our direct and indirect GHG emission intensities. However, even with these ongoing efforts and the expected distribution of free allowances, we cannot assure you that the overall costs of complying with a cap-and-trade program will not have a material impact on our operations in California.
In 2007, CARB approved a regulation that will require California equipment owners/operators to reduce diesel particulate and nitrogen oxide emissions from in-use off-road diesel equipment and to meet progressively more restrictive emission targets. In 2008, CARB approved a similar regulation for in-use on-road diesel equipment. The emission targets will require us to retrofit our California-based equipment with diesel emission control devices or replace equipment with new engine technology in accordance with certain deadlines, which will result in higher equipment related expenses or capital investments. We may incur substantial expenditures to comply with these requirements.
Europe.
Permits and Emissions Trading
In the European Union, cement plants have been regulated by two directives which were transposed into domestic law by member states. The first was the Directive on Integrated Pollution Prevention and Control (2008/1/EC) (“IPPC Directive”), which adopted an integrated approach by taking into account the whole environmental performance of the plant. It required cement works to have a permit containing emission limit values and other conditions based on the application of best available techniques (“BAT”) with a view to preventing or, where this was not practicable, minimizing emissions of pollutants likely to be emitted in significant quantities in air, water or land. Permit conditions also had to address energy efficiency, waste minimization, prevention of accidental emissions and site restoration. To assist the permitting authorities and companies in determining the BAT, the European Commission organized an exchange of information between experts from the member states, industry and environmental organizations. This resulted in the adoption and
 
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publication by the European Commission of BAT Reference Documents (“BREFs”) for the industry sectors covered by the IPPC Directive. A key element of the BREFs were the conclusions on BAT (“BAT conclusions”) which were used as a reference for setting permit conditions.
The second Directive related to the Incineration of Waste (2000/76/EC) (“Incineration Directive”). Its aim was to prevent or limit, as far as practicable, negative effects on the environment, in particular pollution by emissions in air, soil, surface water and groundwater and the resulting risks to human health, from incineration and co-incineration plants, the latter including cement and lime kilns. The Incineration Directive sought to achieve its aim by setting and maintaining stringent operational conditions and technical requirements, as well as emission limit values for a range of pollutants including dust, nitrogen oxides, sulfur dioxide, hydrogen chloride, heavy metals and dioxins.
On January 6, 2011, the Industrial Emissions Directive (2010/75/EU) (“IED”) came into force. The IED recasts seven pieces of existing legislation into a single coherent legislative instrument, including the above mentioned IPPC Directive and Incineration Directive, both of which it repeals. The IED has applied to new industrial installations since January 7, 2013 and to existing industrial installations (other than large combustion plants) since January 7, 2014. Under the IED, operators of industrial installations, including cement plants, are required to obtain an integrated permit from the relevant permitting authority in the member states. As with the IPPC Directive, permit conditions, including emission limit values, must be based on BAT and a total of 35 BREFs are being rewritten or revised for the IED However, there is an important difference between the IPPC Directive and the IED. Under the IPPC Directive, the BREFs were considered as guidance only. This is not the case under the IED. Where BAT conclusions specify emission levels, permitting authorities are required to set emission limit values that do not exceed these levels. They may derogate from this requirement only where the costs associated with the achievement of the emission levels associated with the BAT disproportionately outweigh the environmental benefits due to the geographical location, the local environmental conditions or the technical characteristics of the installation concerned. The permitting authorities must document the reasons for the derogation from the emission limit values in the permit, including the result of the cost-benefit assessment. In April 2013, the European Commission published new BAT conclusions under the IED for Cement, Lime and Magnesium Oxide, together with specific emission levels. While it is too early to assess what impact the IED will have on our operations, it is reasonable to assume that there will be an impact given the change in regulatory approach heralded by the legislation and the fact that it will be key to the permitting of the cement industry in the EU.
In 1997, as part of the United Nations Framework Convention on Climate Change, 197 governments adopted the Kyoto Protocol to limit and reduce GHG emissions. The Kyoto Protocol set legally binding emission reduction targets for 37 industrialized countries and the European Union. Under the Kyoto Protocol, industrialized countries agreed to reduce their collective GHG emissions by 5% against 1990 levels over the five year period 2008-2012 (“first commitment period”); future mandatory targets were expected to be established for commitment periods after 2012. To compensate for the sting of binding targets, the Kyoto Protocol allows three “flexibility” mechanisms to be used by parties in meeting their emission limitation commitments: the Clean Development Mechanism (“CDM”), Joint Implementation (“JI”) and International Emissions Trading.
In 2012, at the UN Climate Change Conference in Doha, Qatar, certain parties, including the UK and the European Union, adopted the Doha Amendment to the Kyoto Protocol and committed to reduce GHG emissions by at least 18% below 1990 levels in the eight year period from 2013 to 2020 (“second commitment period”).
Our operations in the United Kingdom, Spain, Germany, Latvia, Poland and Croatia (since 2013), are subject to binding caps on CO2 emissions imposed pursuant to the European Union’s emissions trading system (“ETS”) that was established by Directive 2003/87/EC to implement the Kyoto Protocol. Under the ETS, a cap or limit is set on the total amount of CO2 emissions that can be emitted by the power plants, energy-intensive installations (including cement plants) and commercial airlines that are covered by the system. The cap is reduced over time, so that the total amount of emissions will decrease. Within the cap, companies receive or buy
 
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emission allowances. These allowances are tradable so as to enable companies that manage to reduce their emissions to sell their excess allowances to companies that are not reaching their emissions objectives. After each year, a company must surrender enough carbon allowances to cover all its emissions. Failure to meet the emissions caps is subject to significant monetary penalties.
In addition to carbon allowances, the ETS also allows the use of Kyoto Protocol units: the Emission Reduction Unit, representing a metric ton of carbon saved by a project under the JI mechanism, and the Certified Emission Reduction unit under the CDM. The ETS recognizes these units as equivalent to its carbon allowances and allows them to be used by companies for compliance up to a certain limit to offset their carbon emissions in the EU. We have registered 12 CDM projects; in total, these projects have the potential to reduce almost 1.7 million metric tons of CO2-E emissions per year.
The ETS consists of three trading phases: Phase I which lasted from January 1, 2005 to December 31, 2007, Phase II, which lasted from 1 January 2007 to December 31, 2012, and was intended to meet commitments under the Kyoto first commitment period, and Phase III which commenced on 1 January 2013 and will end on 31 December 2020. Prior to the commencement of each of ETS Phases I and II, each member state was responsible for publishing its National Allocation Plan (“NAP”), a document which sets out a national cap on the total amount of carbon allowances during each relevant trading phase and the methodology by which the cap would be allocated to the different sectors in the ETS and their respective installations. Each member state’s cap contributed to an overall EU cap on emissions, where one carbon allowance must be surrendered to account for 1 metric ton of carbon emitted. The carbon allowances were mostly distributed for free by each member state to its ETS installations, although some member states also used a fraction of their material cap for auctioning, mainly to power generators. Under ETS Phase III, however, the system of NAPs has been replaced by a single EU-wide, top-down, cap on CO2 emissions, with allocation for all installations made according to harmonized EU rules and set out in each member state’s National Implementation Measures (“NIM”). Restrictions have been introduced on the extent to which Kyoto Protocol units can be used to offset EU carbon emissions, and auctioning, not free allocation, has become the default method for distributing allowances. For those allowances that are still given away free, as discussed below, harmonized rules apply based on EU-wide benchmarks of emissions performance.
EU policymakers see the free allocation of allowances as a principle way to reduce the risk of carbon leakage—that is, the risk that energy-intensive industries, facing higher costs because of the ETS, will move their facilities beyond the EU’s borders to countries that do not have climate change controls, thus resulting in a leakage of CO2 emissions without any environmental benefits. In 2009, a list of ETS sectors deemed to be at significant risk of carbon leakage was formally adopted by the European Commission, following agreement by member states and the European Parliament. The list included the cement production sector, on the basis that the additional costs imposed by the ETS would lead to a 30% or more increase in production costs as a proportion of the “gross value added.” Sectors classified as deemed to be at significant risk of carbon leakage will continue to receive 100% of their benchmark allocation of allowances free of charge during 2013 and 2014, adjusted by a cross-sectoral correction factor that is being applied uniformly upon all participating facilities in Europe in order to reduce the amount of free allocation that each installation so that the total sum does not exceed the authorized EU-wide cap for free allocation. By contrast, sectors that are not considered at risk of carbon leakage will receive 80% of their benchmark allowances for free in 2013, declining to 30% by 2020.
In accordance with European Commission Decision of April 27, 2011 (2011/278/EU), the number of allowances to be allocated to installations for free will be based on a combination of historic activity levels at that installation and an EU benchmark of carbon efficiency for the production of a particular product—for example, clinker. An installation’s historic activity level is calculated by taking the median of its annual production levels during the baseline period, either 2005 to 2008 or, where historic activity levels are higher, 2009/10. The product benchmark is based on the average carbon emissions of the top 10% most “carbon efficient” EU installations for a particular product during 2007/8, where carbon efficiency is measured by carbon intensity or carbon emission per metric ton of product. On September 5, 2013, the European Commission adopted Decision 2013/448/EU by which the figures for the annual cross-sectoral correction factor were determined for the period 2013-2020.
 
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Based on the European Commission approved NIMs that have been published in the first quarter of 2014, we expect that the aggregate amount of allowances that will be annually allocated for free to CEMEX in Phase III of the ETS will be sufficient to operate, assuming that the cement industry continues to be considered at significant risk of carbon leakage. However, a review of the sectors deemed to be at significant risk is to take place in 2014 and it is possible that the cement industry could lose that status. Indeed, commentators argue that many of the assumptions that were used to determine which sectors should be deemed to be at significant risk are now obsolete. For example, the 2009 quantitative analysis that was relied upon forecast that ETS prices would stabilize at €30/ton CO2, but in fact prices are significantly lower than that. A determination that the cement industry should no longer be regarded as at significant risk of carbon leakage could have a material impact on our operations.
An installation can only receive its full allocation of free allowances if it is deemed to have not partially ceased under the “partial cessation rule” of the ETS. Partial cessation applies where a sub-installation which contributes at least 30% of the installation’s final annual amount of emissions allocated, or contributes to more than 50,000 allowances, reduces its activity level by at least 50% of its historic activity levels. If activity levels are reduced to between 50% and 75% of the historic activity level, the amount of free carbon allowances the sub-installation will receive will reduce by half in the following year; if activity levels are reduced by 75% to 90% compared to historic activity levels, the amount of free carbon allowances the sub-installation will receive will reduce by 75% in the following year; and if activity levels are reduced by 90% or more compared to historic activity levels, no allowances shall be allocated free of charge the following year in respect of the sub-installation concerned. This represents a change from ETS Phase II, in which the rules for partial cessation were defined by each member state’s NAP and often did not result in any reduction in the level of free allocation, but an installation was no longer entitled to a free allocation from the following year if it had permanently ceased operating. The new rules are therefore more stringent, and to the extent that they result in our plants foregoing free carbon allowances, they could represent a significant loss of revenue, since carbon allowances are also tradable.
After a favorable verdict in the case that the Republic of Latvia brought before the General Court against the European Commission’s rejection of the initial version of the Latvian NAP for the period from 2008 to 2012, the Latvian Ministry of Environmental Protection and Regional Development issued the Decision No. 46 of April 18, 2012 increasing the allocation of allowances to our Broceni plant. The European Commission subsequently filed an appeal with the Court of Justice against the Judgment of the General Court. On October 3, 2013, the Court of Justice issued a judgment dismissing the European Commission’s appeal; therefore our operations in Latvia obtained all the allowances they were entitled to pursuant to the initial version of the Latvian NAP.
On April 27, 2011, the European Commission adopted a Decision that states the rules, including the benchmarks of greenhouse gas emissions performance, to be used by the Member States in calculating the number of allowances to be annually allocated for free to industrial sectors (such as cement) that are deemed to be exposed to the risk of “carbon leakage.” Preliminary allocation calculations based on those rules were carried out by each Member State and included in a NIM table which was sent for scrutiny to the European Commission. Furthermore on September 5, 2013, the Commission adopted a Decision on Member States’ NIMs, which provides the basis for calculating the number of allowances allocated for free and auctioned, respectively. According to this Decision, the free allocation to each installation is to be adjusted by a cross-sectoral correction factor laid down in the Decision which will vary each year, as foreseen by the ETS legislation. This is to ensure that the total amount handed out for free does not exceed a maximum set in the ETS Directive. The application of this cross-sectoral correction factor results in an important decrease in the quantity of allowances that our ETS-participant operations expect to receive for free in the 2013-2020 period. On February 27, 2014, the European Commission adopted a Decision on national allocation allowances for the last group of Member States including Croatia, which was granted 5.56 million of free allowances. Thereafter, a regularly updated allocation table showing the number of allowances that have been allocated per Member State will be published on the European Commission’s website.
 
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Nonetheless, despite having sold a substantial amount of allowances during Phase II of the ETS, we believe that the aggregate amount of allowances that will be annually allocated for free to CEMEX in Phase III of the ETS (2013-2020) will be sufficient to operate. This assessment stems from various factors, notably our efforts to reduce emissions per unit of clinker produced, the stream of offset credits coming from our internal portfolio of CDM projects in Latin America and our expected long position in the initial years of Phase III of the ETS. We are taking measures intended to minimize our exposure to this market, while continuing to supply our products to our customers.
Landfills
In Great Britain, future expenditure on closed and current landfill sites has been assessed and quantified over the period in which the sites are considered to have the potential to cause environmental harm, generally consistent with the regulatory view of up to 60 years from the date of closure. The assessed expenditure relates to the costs of monitoring the sites and the installation, repair and renewal of environmental infrastructure. The costs have been quantified on a net present value basis in the amount of approximately £131.2 million (approximately U.S.$218.70 million as of March 31, 2014, based on an exchange rate of £0.5999 to U.S.$1.00) as of March 31, 2014, and we made an accounting provision for this amount at March 31, 2014.
Tariffs
The following is a discussion of tariffs on imported cement in our major markets.
Mexico. Mexican tariffs on imported goods vary by product and have historically been as high as 100%. In recent years, import tariffs have been substantially reduced and currently range from none at all for raw materials to over 20% for finished products, with an average weighted tariff of approximately 3.7%. As a result of the North American Free Trade Agreement, or NAFTA, as of January 1, 1998, the tariff on cement imported into Mexico from the United States or Canada was eliminated. However, a tariff in the range of 7% ad valorem will continue to be imposed on cement produced in all other countries unless tariff reduction treaties are implemented or the Mexican government unilaterally reduces that tariff. While the reduction in tariffs could lead to increased competition from imports in our Mexican markets, we anticipate that the cost of transportation from most producers outside Mexico to central Mexico, the region of highest demand, will remain a barrier to entry.
United States. There are no tariffs on cement imported into the United States from any country, except Cuba and North Korea.
Europe. Member countries of the European Union are subject to the uniform European Union commercial policy. There is no tariff on cement imported into a country that is a member of the European Union from another member country or on cement exported from a European Union country to another member country. For cement imported into a member country from a non-member country, the tariff is currently 1.7% of the customs value. Any country with preferential treatment with the European Union is subject to the same tariffs as members of the European Union. Most Eastern European producers exporting cement into European Union countries currently pay no tariff.
Tax Matters
Mexico. Pursuant to amendments to the Mexican Income Tax Law (Ley del Impuesto sobre la Renta) that became effective on January 1, 2005, Mexican companies with direct or indirect investments in entities incorporated in foreign countries, whose income tax liability in those countries is less than 75% of the income tax that would be payable in Mexico, were required to pay taxes in Mexico on passive income, such as dividends, royalties, interest, capital gains and rental fees obtained by such foreign entities, except for income derived from entrepreneurial activities in such countries, which were not subject to tax under these amendments. We had filed two motions in the Mexican federal courts challenging the constitutionality of the January 1, 2005 amendments
 
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to the Mexican Income Tax Law. Although we had obtained a favorable ruling from the lower Mexican federal court, on September 9, 2008, the Mexican Supreme Court, on appeal, ruled against our constitutional challenge of the controlled foreign corporation tax rules in effect in Mexico for tax years 2005 to 2007. Because the Mexican Supreme Court’s decision did not pertain to an amount of taxes due or other tax obligations, we had the right to self-assess any taxes due through the submission of amended tax returns. On March 1, 2012 and July 5, 2012, we self-assessed the taxes corresponding to the 2005 and 2006 tax years, respectively, of which 20% of the amounts due were paid in connection with the submission of amended tax returns, which were filed on March 1, 2012, for the 2005 tax year, and on July 5, 2012, for the 2006 tax year, respectively. The remaining 80% of the total amounts due were to be paid in January 2013 and July 2013, for the amounts due in connection to the 2005 and 2006 tax years, respectively. No taxes are due in connection to the 2007 tax year. The tax authorities in Mexico agreed with our self-assessment and with the procedure to determine the taxes due for the 2005 and 2006 tax years and, as a result, the tax authorities in Mexico may not assess additional amounts of taxes past due for those years. The Mexican Income Tax Law was again amended in 2008, as a result of which we do not expect any material adverse effect from the controlled foreign corporation tax rules for years subsequent to 2007. However, on December 17, 2012, the Mexican authorities published the decree of the Federation Revenues Law for the 2013 tax year. The decree contains a transitory amnesty provision (the “Amnesty Provision”) that grants tax amnesty of up to 80% of certain tax proceedings originated before the 2007 tax period and 100% of interest and penalties of tax proceedings originated in the 2007 tax period and thereafter. We opted to enter this amnesty program and, therefore, the amounts due in connection to the 2005 and 2006 tax years were settled and there are no tax liabilities in connection to this matter as of March 31, 2014.
In November 2009, the Mexican Congress approved a general tax reform, effective as of January 1, 2010. Specifically, the tax reform included changes to the tax consolidation regime that required CEMEX, among others, to determine and retroactively pay taxes at a current rate on items in past years that were eliminated in consolidation or that reduced consolidated taxable income (“Additional Consolidated Taxes”). This tax reform required CEMEX to pay taxes on certain previously exempted intercompany dividends, certain other special tax items and operating losses generated by members of the consolidated tax group not recovered by the individual company generating such losses within the succeeding 10-year period. This tax reform also increased the statutory income tax rate from 28% to 30% for the years 2010 to 2012, then lowered it to 29% for 2013 and 28% for 2014 and future years. However, in December of 2012, the Federal Revenue Law ( Ley de Ingresos de la Federación ) applicable in 2013, established that the statutory income tax rate would remain at 30% in 2013, and thereafter lowered to 29% for 2014 and 28% for 2015 and future years. As per the tax reforms enacted for 2014, the statutory income tax will remain at 30%.
For the 2010 fiscal year, CEMEX was required to pay (at the new, 30% tax rate) 25% of the Additional Consolidation Taxes for the period between 1999 and 2004, with the remaining 75% payable as follows: 25% in 2011, 20% in 2012, 15% in 2013 and 15% in 2014. Additional Consolidation Taxes arising after the 2004 tax year are taken into account in the sixth fiscal year after such year and are payable over the succeeding five years in the same proportions (25%, 25%, 20%, 15% and 15%). Applicable taxes payable as a result of this tax reform are increased by inflation adjustments as required by the Mexican Income Tax Law ( Ley del Impuesto Sobre la Renta ). In connection with these changes in the tax consolidation regime in Mexico, as of December 31, 2009, we recognized a liability of approximately Ps10.5 billion (approximately U.S.$803.98 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), of which approximately Ps8.2 billion (approximately U.S.$627.87 million as of March 31, 2014, based on an exchange rate of Mexican Ps13.06 to U.S.$1.00) was recognized under “Other non-current assets” in connection with the net liability recognized under the new tax law and that we expect to realize in connection with the payment of this tax liability, and approximately Ps2.2 billion (approximately U.S.$168.45 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) was recognized against “Retained earnings” upon adoption of IFRS according to the new law, related to: (a) the difference between the sum of the equity of the controlled entities for tax purposes and the equity for tax purposes of the consolidated entity, (b) dividends from the controlled entities for tax purposes to CEMEX, S.A.B. de C.V., and (c) other transactions among the companies included in the tax consolidation group that represented the transfer of resources within such group.
 
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On February 15, 2010, we filed a constitutional challenge (juicio de amparo) against the January 1, 2010 tax reform described above. As of June 3, 2011, we were notified of a favorable verdict at the first stage of the trial; the Mexican tax authorities subsequently filed an appeal ( recurso de revisión ) before the Mexican Supreme Court, which, as of March 31, 2014, is pending. At this stage of the proceeding, as of March 31, 2014, we are not able to assess the likelihood of an adverse result to us on the appeal ( recurso de revision ) filed by the Mexican tax authorities before the Mexican Supreme Court, but if adversely resolved, the resolution could have a material adverse impact on our results of operations, liquidity and financial condition.
On March 31, 2010, additional tax rules (miscelánea fiscal) were published in connection with the general tax reform approved by the Mexican Congress in November 2009. These new rules provided certain taxpayers with benefits arising from the years 1999 to 2004.
On June 30, 2010, CEMEX paid approximately Ps325 million (approximately U.S.$24.89 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) of Additional Consolidation Taxes. This first payment represented 25% of the Additional Consolidation Taxes for the period that includes from 1999 to 2004. On March 31, 2011, CEMEX made a second payment of approximately Ps506 million (approximately U.S.$38.74 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00). This second payment, together with the first payment, represented 50% of the Additional Consolidation Taxes for the period that includes from 1999 to 2004, and also included the first payment of 25% of the Additional Consolidation Taxes for the period that corresponds to 2005. On March 30, 2012, CEMEX paid Ps698 million (approximately U.S.$53.45 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00). This third payment together with the first and second payments represented 70% of the Additional Consolidation Taxes for the period that includes from 1999 to 2004, 50% of the Additional Consolidation Taxes for the period that corresponds to 2005 and it also included the first payment of 25% of the Additional Consolidation Taxes for the period that corresponds to 2006. On March 27, 2013, CEMEX paid Ps2 billion (approximately U.S.$153.14 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00). This fourth payment, together with the first, second and third payments represented 85% of the Additional Consolidation Taxes for the period that includes from 1999 to 2004, 70% of the Additional Consolidation Taxes for the period that corresponds to 2005, 50% of the Additional Consolidation Taxes for the period that corresponds to 2006 and 25% of the Additional Consolidation Taxes for the period that corresponds to 2007. On March 31, 2014, CEMEX paid Ps2 billion (approximately U.S.$153.14 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00). This fifth payment, together with the first, second, third and fourth payments represented 100% of the Additional Consolidation Taxes for the period that includes from 1999 to 2004, 85% of the Additional Consolidation Taxes for the period that corresponds to 2005, 70% of the Additional Consolidation Taxes for the period that corresponds to 2006 and 50% of the Additional Consolidation Taxes for the period that corresponds to 2007. As of March 31, 2014, we have paid an aggregate amount of approximately Ps5.5 billion (approximately U.S.$421.13 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) of Additional Consolidation Taxes.
In December 2010, pursuant to certain additional rules, the tax authorities granted the option to defer the calculation and payment of certain items included in the law in connection with the taxable amount for the difference between the sum of the equity of controlled entities for tax purposes and the equity of the consolidated entity for tax purposes. As a result, CEMEX reduced its estimated tax payable by approximately Ps2.9 billion (approximately U.S.$222.05 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) against a credit to the income statement when the new tax enactment took place. In addition, after accounting for the following that took place in 2010: (a) cash payments of Ps325 million (approximately U.S.$24.89 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), (b) income tax from subsidiaries paid to the parent company of Ps2.4 billion (approximately U.S.$183.77 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), and (c) other adjustments of Ps358 million (approximately U.S.$27.41 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), the estimated tax payable for tax consolidation in Mexico amounted to approximately Ps10.1 billion (approximately U.S.$773.35 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) as of December 31, 2010.
 
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Furthermore, after accounting for the following that took place in 2011: (a) cash payments in the amount of Ps506 million (approximately U.S.$38.74 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), (b) income tax from subsidiaries paid to the parent company of Ps2.3 billion (approximately U.S.$176.11 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), and (c) other adjustments of Ps485 million (approximately U.S.$37.14 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), the estimated tax payable for tax consolidation in Mexico increased to approximately Ps12.4 billion (approximately U.S.$949.46 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) as of December 31, 2011. Additionally, after accounting for the following that took place in 2012: (a) cash payments in the amount of Ps698 million (approximately U.S.$53.45 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), (b) income tax from the subsidiaries paid to the parent company of Ps2.1 billion (approximately U.S.$160.80 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), and (c) other adjustments of Ps745 million (approximately U.S.$57.04 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), as of December 31, 2012, the estimated tax payable for tax consolidation in Mexico increased to approximately Ps14.5 billion (approximately U.S.$1.11 billion as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00). Furthermore, after accounting for the following that took place in 2013: (a) cash payments in the amount of Ps2 billion (approximately U.S.$152.79 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), (b) income tax from subsidiaries paid to the parent company of Ps1.8 billion (approximately U.S.$137.83 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), and (c) other adjustments of Ps1.2 billion (approximately U.S.$91.88 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), and (d) effects of tax deconsolidation of Ps9.3 billion (approximately U.S.$712.10 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00), as of December 31, 2013, the estimated tax payable for tax consolidation in Mexico increased to approximately Ps24.8 billion (approximately U.S.$1.90 billion as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00).
As of March 31, 2014, our estimated payment schedule of taxes payable resulting from changes in the tax consolidation regime is as follows: approximately Ps2.2 billion (approximately U.S.$168.45 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) in 2014; approximately Ps5 billion (approximately U.S.$382.85 million as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) in 2015; and approximately Ps15.6 billion (approximately U.S.$1.19 billion as of March 31, 2014, based on an exchange rate of Ps13.06 to U.S.$1.00) in 2016 and thereafter.
On January 21, 2011, the Mexican tax authorities notified CEMEX, S.A.B. de C.V. of a tax assessment pertaining to the 2005 tax year. The tax assessment was related to the corporate income tax in connection with the tax consolidation regime. On March 29, 2011, CEMEX challenged the assessment before the tax court. This tax assessment was settled in May of 2013 based on the Amnesty Provision.
On November 16, 2011, Mexican tax authorities notified Centro Distribuidor de Cemento, S.A. de C.V. (“CEDICE”) (now named Cemex Operaciones México, S.A. de C.V.) and Mexcement Holdings, S.A. de C.V. (“Mexcement”) (now merged to, and succeeded by CEDICE), both indirect subsidiaries of CEMEX, S.A.B. de C.V., of tax assessments, related to direct and indirect investments in entities considered to be preferential tax regimens for tax year 2004. On February 3, 2012, CEDICE and Mexcement filed a claim against the November 16, 2011 assessments. These tax assessments were settled in May 2013 based on the Amnesty Provision.
In addition, as a result of the enactment of the new Income Tax Law (Ley del Impuesto Sobre la Renta) in Mexico approved in December 2013 and effective beginning January 1, 2014, the statutory income tax rate for 2014 will remain at 30%, and the tax consolidation regime that was in effect up until December 31, 2013, was replaced prospectively by a new integration regime, to which CEMEX will not apply. In consequence, as of 2014, each company in Mexico will determine its income taxes based solely in its individual results, and a period of up to 10 years has been established for the settlement of the liability for income taxes related to the tax consolidation regime accrued until December 31, 2013.
On February 12, 2014, we filed a constitutional challenge (juicio de amparo) against the January 1, 2014 tax reform that abrogated the tax consolidation regime, described in the preceding paragraph. The purpose of the
 
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challenge is to obtain certainty in the applicable statutory rules in order to assess and pay the tax liability derived from such reform according to Constitutional principles. As of March 31, 2014, we cannot asses the likelihood of an adverse result to the constitutional challenge we filed, but even if the constitutional challenge is adversely resolved, we do not foresee any material adverse impact on our results of operations, liquidity and financial condition, additional to those described above.
United States. As of March 31, 2014, the Internal Revenue Service concluded its audits for the years 2010 and 2011. The final findings did not materially alter the reserves CEMEX had set aside for these matters and, as such, the amounts are not considered material to our financial results. On February 4, 2014, the Internal Revenue Service commenced its audit of the 2012 tax year. We have not identified any material audit issues and, as such, no reserves are recorded for the 2012 audit in our financial statements.
Colombia. On November 10, 2010, the Colombian Tax Authority (Dirección de Impuestos) notified CEMEX Colombia of a proceeding ( requerimiento especial ) in which the Colombian Tax Authority rejected certain tax losses taken by CEMEX Colombia in its 2008 year-end tax return. In addition, the Colombian Tax Authority assessed an increase in taxes to be paid by CEMEX Colombia in the amount of approximately 43 billion Colombian Pesos (approximately U.S.$21.88 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00) and imposed a penalty in the amount of approximately 69 billion Colombian Pesos (approximately U.S.$35.11 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). The Colombian Tax Authority argued that CEMEX Colombia was limited in its use of prior year tax losses to 25% of such losses per subsequent year. We believed that the tax provision that limited the use of prior year tax losses did not apply in the case of CEMEX Colombia because the applicable tax law was repealed in 2006. Furthermore, we believed that the Colombian Tax Authority was no longer able to review the 2008 tax return because the time to review such returns had already expired pursuant to Colombian law. In February 2011, CEMEX Colombia presented its arguments to the Colombian Tax Authority. On July 27, 2011, the Colombian Tax Authority issued its final determination, which confirmed the information in the November 10, 2010 proceeding notice. The official assessment was appealed by CEMEX Colombia on September 27, 2011. On July 31, 2012, the Colombian Tax Authority notified CEMEX Colombia of the resolution confirming the official liquidation. CEMEX Colombia filed a lawsuit on November 16, 2012; however, during the second quarter of 2013, CEMEX Colombia reached a settlement with the Colombian Tax Authority regarding the 2008, and also its 2007, year-end tax returns. The aggregate amount paid in connection with the settlement regarding the 2008 and 2007 year-end tax returns was $47,111.33 million Colombian Pesos (approximately U.S.$23.97 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). On August 26, 2013 and September 16, 2013, CEMEX Colombia received the final resolutions regarding the 2007 and 2008 year-end tax returns, respectively, effectively concluding both processes.
On April 1, 2011, the Colombian Tax Authority notified CEMEX Colombia of a proceeding notice in which the Colombian Tax Authority rejected certain deductions taken by CEMEX Colombia in its 2009 year-end tax return. The Colombian Tax Authority assessed an increase in taxes to be paid by CEMEX Colombia in the amount of approximately 90 billion Colombian Pesos (approximately U.S.$45.79 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00) and imposed a penalty in the amount of approximately 144 billion Colombian Pesos (approximately U.S.$73.27 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). The Colombian Tax Authority argues that certain expenses are not deductible for fiscal purposes because they are not linked to direct revenues recorded in the same fiscal year, without taking into consideration that future revenue will be taxed with income tax in Colombia. CEMEX Colombia responded to the proceeding notice on June 25, 2011. On December 15, 2011, the Colombian Tax Authority issued its final determination, which confirmed the information in the special proceeding. CEMEX Colombia appealed the final determination on February 15, 2012. On January 17, 2013, the Colombian Tax Authority notified CEMEX Colombia of the resolution confirming the official liquidation. CEMEX Colombia appealed the final determination on May 10, 2013 which was admitted on June 21, 2013. The appeal was notified to the Colombian Tax Authority and initial hearings took place on February 18, 2014 and
 
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March 11, 2014. At this stage of the proceeding, as of March 31, 2014, we are not able to assess the likelihood of an adverse result in this special proceeding, but if adversely resolved, they could have a material adverse impact on our results of operations, liquidity and financial condition.
Spain. On July 7, 2011, the tax authorities in Spain notified CEMEX España of a tax audit process in Spain covering the tax years from and including 2006 to 2009. The tax authorities in Spain have challenged part of the tax losses reported by CEMEX España for such years. CEMEX España has been formally notified of fines in the aggregate amount of approximately €456 million (approximately U.S.$625.69 million as of April 3, 2014, based on an exchange rate of €0.7288 to U.S.$1.00) resulting from the July 7, 2011 tax audit process in Spain. The laws of Spain provide a number of appeals that can be filed against such fines without CEMEX España having to make any payment until such appeals are finally resolved. CEMEX España intends to appeal such fines. At this stage, as of April 4, 2014, we are not able to assess the likelihood of an adverse result regarding this matter, and the appeals that CEMEX España will file could take an extended amount of time to be resolved, but if all appeals that CEMEX España files are adversely resolved, it could have a material adverse impact on our results of operations, liquidity and financial condition.
Other Legal Proceedings
Expropriation of CEMEX Venezuela and ICSID Arbitration. On August 18, 2008, Venezuelan officials took physical control of the facilities of CEMEX Venezuela, following the issuance of several governmental decrees purporting to authorize the takeover by the government of Venezuela of all of CEMEX Venezuela’s assets, shares and business. Around the same time, the Venezuelan government removed the board of directors of CEMEX Venezuela and replaced its senior management. On October 16, 2008, CEMEX Caracas, which held a 75.7% interest in CEMEX Venezuela, filed a request for arbitration against the government of Venezuela before the International Centre for Settlement of Investment Disputes, or ICSID, seeking relief for the expropriation of their interest in CEMEX Venezuela. In the ICSID proceedings against Venezuela, CEMEX Caracas was seeking: (a) a declaration that the government of Venezuela was in breach of its obligations under a bilateral investment treaty between the Netherlands and Venezuela (the “Treaty”), the Venezuelan Foreign Investment Law and customary international law; (b) an order that the government of Venezuela restore to CEMEX Caracas their interest in, and control over, CEMEX Venezuela; (c) in the alternative, an order that the government of Venezuela pay CEMEX Caracas full compensation with respect to its breaches of the Treaty, the Venezuelan Foreign Investment Law and customary international law, in an amount to be determined in the arbitration, together with interest at a rate not less than LIBOR, compounded until the time of payment; and (d) an order that the government of Venezuela pay all costs of and associated with the arbitration, including CEMEX Caracas’s legal fees, experts’ fees, administrative fees and the fees and expenses of the arbitral tribunal. The ICSID Tribunal was constituted on July 6, 2009. The arbitral tribunal issued its decision in favor of jurisdiction on December 30, 2010.
Separately, the government of Venezuela had claimed that three cement transportation vessels, which the former CEMEX Venezuela transferred to a third party before the expropriation, continue to be the property of the former CEMEX Venezuela and obtained interim measures before Venezuelan courts barring further transfer or disposition of those vessels. The government of Venezuela attempted to enforce these interim measures in the courts of Panama, and on October 13, 2010, the Panamanian Supreme Civil Court confirmed its prior rejection of such attempt to give the Venezuelan interim measures legal effect in Panama. In December of 2010, the Venezuelan Attorney General’s office filed a complaint before the Maritime Court of the First Instance, Caracas, again seeking an order for the transfer of the vessels and damages for the allegedly unlawful deprivation of Venezuela’s use and enjoyment of the vessels.
On November 30, 2011, following negotiations with the government of Venezuela and its public entity Corporación Socialista de Cemento, S.A., a settlement agreement was reached between CEMEX Caracas and the government of Venezuela that closed on December 13, 2011. Under this settlement agreement, CEMEX Caracas received compensation for the expropriation of CEMEX Venezuela in the form of (i) a cash payment of approximately U.S.$240 million and (ii) notes issued by Petróleos de Venezuela, S.A. (“PDVSA”) which nominal value and interest income to maturity totaled U.S.$360 million. Additionally, as part of the settlement, claims, including the above referenced claim regarding the three transportation vessels, among all parties and
 
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their affiliates were released, and all intercompany payments due (approximately U.S.$154 million) from or to CEMEX Venezuela to and from CEMEX affiliates, as the case may be, were cancelled. As a result of this settlement agreement, CEMEX Caracas and the government of Venezuela agreed to withdraw its ICSID arbitration.
Colombian Construction Claims. On August 5, 2005, the Urban Development Institute (Instituto de Desarrollo Urbano), or UDI, and an individual filed a lawsuit in the Fourth Anti-Corruption Court of Bogotá ( Fiscalía Cuarta Anticorrupción de Bogotá ) against a subsidiary of CEMEX Colombia claiming that it was liable, along with the other members of the  Asociación Colombiana de Productores de Concreto , or ASOCRETO, an association formed by the ready-mix concrete producers in Colombia, for the premature distress of the concrete slabs of the  Autopista Norte  trunk line of the Transmilenio bus rapid transit system of Bogotá in which ready-mix concrete and flowable fill supplied by CEMEX Colombia and other ASOCRETO members was used. The plaintiffs alleged that the base material supplied for the road construction failed to meet the quality standards offered by CEMEX Colombia and the other ASOCRETO members and/or that they provided insufficient or inaccurate information in connection with the product. The plaintiffs were seeking the repair of the concrete slabs in a manner which guarantees their service during the 20-year period for which they were originally designed, and estimate that the cost of such repair could have been approximately 100 billion Colombian Pesos (approximately U.S.$50.88 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). The lawsuit was filed within the context of a criminal investigation against a former director and two officers of the UDI, the builder, the auditor and two ASOCRETO officers. On January 21, 2008, a court issued an order, sequestering the El Tunjuelo quarry, as security for payment of a possible future money judgment against CEMEX Colombia. The court determined that in order to lift this attachment and prevent further attachments, CEMEX Colombia was required to deposit 337.8 billion Colombian Pesos (approximately U.S.$171.88 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00) in cash instead of posting an insurance policy to secure such recovery. CEMEX Colombia appealed this decision and the Superior Court of Bogotá ( Tribunal Superior de Bogotá ) allowed CEMEX to present an insurance policy in the amount of 20 billion Colombian Pesos (approximately U.S.$10.18 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). CEMEX gave the aforementioned security and, on July 27, 2009, the court lifted the attachment on the quarry.
On October 10, 2012 the court issued a first instance judgment pursuant to which the accusation made against the ASOCRETO officers was nullified. The judgment also convicted a former UDI director, the builder’s legal representatives and the auditor to a prison term of 85 months and a fine of 32 million Colombian Pesos (approximately U.S.$16,282.34 as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). As a consequence of the nullification, the judge ordered a restart of the proceeding against the ASOCRETO officers. The UDI and other parties to the judicial proceeding appealed the first instance judgment and on August 30, 2013 the Superior Court of Bogotá resolved to reduce the prison term imposed to the former UDI director and the UDI officers to 60 months and imposed a fine equivalent to 8.8 million Colombian Pesos (approximately U.S.$4,477.64 as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). Additionally, the UDI officers were sentenced to severally pay the amount of 108,000 million Colombian Pesos (approximately U.S.$54.95 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00) for the damages in the concrete slabs of the Transmilenio bus rapid transit system. Additionally, the Superior Court of Bogotá overturned the penalty imposed to the builder’s legal representatives and auditor because the criminal action against them was time barred. Furthermore, the Superior Court of Bogotá revoked the annulment in favor of the ASOCRETO officers and ordered the first instance judge to render a judgment regarding the ASOCRETO officers’ liability or lack thereof. At this stage of the proceedings, as of March 31, 2014, we are not able to assess the likelihood of an adverse result or, due to the number of defendants, the potential damages which could be borne by CEMEX Colombia.
In addition, as a consequence of the premature distress of the concrete slabs of the Autopista Norte trunk line of the Transmilenio bus rapid transit system, six actions were brought against CEMEX Colombia. The Cundinamarca Administrative Court ( Tribunal Administrativo de Cundinamarca ) nullified five of these actions and currently, only one remains outstanding. In addition, the UDI filed another action alleging that CEMEX Colombia made deceiving advertisements on the characteristics of the flowable fill used in the construction of the
 
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line. CEMEX Colombia participated in this project solely and exclusively as supplier of the ready-mix concrete and flowable fill, which were delivered and received to the satisfaction of the contractor, fulfilling all the required technical specifications. CEMEX Colombia neither participated in nor had any responsibility on the design, sourcing of materials or their corresponding technical specifications or construction. At this stage of the proceedings, as of March 31, 2014, we are not able to assess the likelihood of an adverse result, but if adversely resolved, it could have a material adverse impact on our results of operations, liquidity and financial condition.
Croatian Concession Litigation. After an extended consultation period, in April 2006, the cities of Kaštela and Solin in Croatia published their respective Master (physical) Plans defining the development zones within their respective municipalities, adversely impacting the mining concession granted to Cemex Hrvatska d.d. (“CEMEX Croatia”), our subsidiary in Croatia, by the Government of Croatia in September 2005. During the consultation period, CEMEX Croatia submitted comments and suggestions to the Master Plans, but these were not taken into account or incorporated into the Master Plans by Kaštela and Solin. Most of these comments and suggestions were intended to protect and preserve the rights of CEMEX Croatia’s mining concession. Immediately after publication of the Master Plans, CEMEX Croatia filed a series of lawsuits and legal actions before the local and federal courts to protect its acquired rights under the mining concessions, including: (i) on May 17, 2006, a constitutional appeal before the constitutional court in Zagreb, seeking a declaration by the court concerning CEMEX Croatia’s constitutional claim for decrease and obstruction of rights earned by investment and seeking prohibition of implementation of the Master Plans; this appeal is currently under review by the constitutional court in Croatia, and we cannot predict when it will be resolved; and (ii) on May 17, 2006, an administrative proceeding before an administrative court seeking a declaration from the Government of Croatia confirming that CEMEX Croatia acquired rights under the mining concessions. The administrative court subsequently ruled in favor of CEMEX Croatia, validating the legality of the mining concession granted to CEMEX Croatia by the Government of Croatia, in September 2005. As of March 31, 2014, we had not yet been notified of an official declaration from the constitutional court regarding the question of whether the cities of Solin and Kaštela, within the scope of their Master Plans, can unilaterally change the borders of exploited fields. We believe that a declaration of the constitutional court will enable us to seek compensation for the losses caused by the proposed border changes. On June 15, 2012, we were notified that the case had been transferred from the constitutional court to the administrative court as a result of a new law that places the administrative courts in charge of disputes relating to environmental planning. In February 2014, the administrative court requested CEMEX Croatia to declare if it is still interested in proceeding with the concession litigation and if so, to provide additional clarification and documentation to support such claims. As of March 31, 2014, CEMEX Croatia is preparing the requested clarification and documentation to submit before the administrative court. In order to alleviate the adverse impact of the Master Plans, as of March 31, 2014, we are in the process of negotiating a new revised mining concession.
Florida Litigation Relating to the Brooksville South Project. In November 2008, AMEC/Zachry, the general contractor for the Brooksville South expansion project in Florida, filed a lawsuit against CEMEX Florida in Florida State Court in Orlando (Complex Commercial Litigation Division), alleging delay damages, seeking an equitable adjustment to the Design/Build contract and payment of change orders. AMEC/Zachry sought U.S.$60.0 million as compensation. In February 2009, AMEC/Zachry filed an amended complaint asserting a claim by AMEC E&C Services, Inc. against CEMEX Materials, LLC (“CEMEX Materials”) as the guarantor of the Design/Build contract. CEMEX Florida answered the suit, denying any breach of contract and asserting affirmative defenses and counterclaims against AMEC/Zachry for breach of contract. CEMEX Florida also asserted certain claims against AMEC, plc as the guarantor for the contract and FLSmidth, Inc. (“FLS”) as the equipment manufacturer. After an extensive motion practice and discovery phase of the case, the parties to this proceeding have entered into a settlement. The settlement of this matter did not have a material adverse impact on our results of operations, liquidity and financial condition.
Panamanian Height Restriction Litigation. On July 30, 2008, the Panamanian Authority of Civil Aeronautics (Autoridad de Aeronáutica Civil) , or AAC, denied a request by our subsidiary Cemento Bayano to erect structures above the permitted height restriction applicable to certain areas surrounding Calzada Larga Airport. This height restriction is set according to applicable legal regulations and reaches the construction area of our cement plant’s second line. According to design plans, ten of the planned structures would exceed the permitted height. Cemento
 
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Bayano has formally requested the above-mentioned authority to reconsider its denial. On October 14, 2008, the AAC granted permission to construct the tallest building of the second line, under the following conditions: that (a) Cemento Bayano would assume any liability arising out of any incident or accident caused by the construction of such building; and (b) there would be no further permissions for additional structures. Cemento Bayano filed an appeal with respect to the second condition and has submitted a request for permission in respect to the rest of the structures. On March 13, 2009, the AAC issued a ruling stating that (a) should an accident occur in the perimeter of the Calzada Larga Airport, an investigation shall be conducted in order to determine the cause and further responsibility; and (b) there will be no further permissions for additional structures of the same height as the tallest structure already granted. Therefore, additional permits may be obtained as long as the structures are lower than the tallest building, on a case-by-case analysis to be conducted by the authority. On June 11, 2009, the AAC issued a ruling denying a permit for additional structures above the permitted height restriction applicable to certain areas surrounding Calzada Larga Airport. On June 16, 2009, Cemento Bayano requested the abovementioned authority to reconsider its denial. As of March 31, 2014, the AAC had not yet issued a ruling pursuant to our request for reconsideration, and we continue to monitor our request. At this stage, we are not able to determine if the AAC will issue a favorable decision to our request for reconsideration or if such denial would have a material adverse impact on our results of operations, liquidity and financial condition. We are also not able to assess the likelihood of any incident or accident occurring as a result of the construction of the second line of our cement plant and the responsibility, if any, that would be allocated to Cemento Bayano, but if any major incident or accident were to occur and if Cemento Bayano were to be held liable, any responsibility that is formally allocated to Cemento Bayano could have a material adverse impact on our results of operations, liquidity and financial condition.
Texas General Land Office Litigation. The Texas General Land Office (the “GLO”) alleged that CEMEX Construction Materials South, LLC failed to pay approximately U.S.$550 million in royalties related to mining by CEMEX and its predecessors since the 1940s on lands that, when transferred originally by the State of Texas, contained reservation of mineral rights. The petition filed by the GLO also sought injunctive relief, although the State did not pursue such relief. On December 17, 2009, the Texas state district court granted CEMEX’s motion for summary judgment finding that the GLO’s claims had no merit. The GLO filed a Motion for Reconsideration that was denied by the court. The court severed the parties’ ancillary claims, including CEMEX’s counter claims and third-party claims against Texas Land Commissioner Jerry Patterson and the State’s trespass to try title claim against CEMEX, from the case’s central claims of breach of contract, conversion and injunction, holding that these ancillary claims should be held in abeyance until resolution of the GLO’s appeal. The GLO filed its appeal on March 25, 2010. Both parties submitted briefs and the Court of Appeals heard oral arguments on May 3, 2011. On August 31, 2011, the El Paso Court of Appeals reversed the trial court’s judgment and rendered judgment in favor of the State of Texas with respect to the ownership of the materials on the lands mined by CEMEX and its predecessors in interest. On November 16, 2011, CEMEX petitioned the Texas Supreme Court for review of the El Paso Court of Appeals’ decision. On February 23, 2012, the GLO and CEMEX entered into an agreement to settle all claims, including claims for past royalties, without any admission of liability by CEMEX. Pursuant to the settlement, CEMEX will pay U.S.$750,000 in five equal installments of U.S.$150,000 per year and has entered into a royalty mining lease at the royalty rate required by the Texas Natural Resources Code on a going forward basis, beginning in September 2012. Further, CEMEX’s pending appeal to the Texas Supreme Court has been withdrawn and all ancillary claims that were held in abeyance have been dismissed. As of March 31, 2014, we do not expect a material adverse impact on our results of operations, liquidity and financial condition as a result of this settlement.
Strabag Arbitration. Following an auction process, CEMEX (through its subsidiary RMC Holding B.V.) entered into a share purchase agreement, dated July 30, 2008 (the “SPA”), to sell its operations in Austria (then consisting of 26 aggregates and 41 ready-mix concrete plants) and Hungary (then consisting of 6 aggregates, 29 ready-mix concrete and 4 paving stone plants) to Strabag SE, one of Europe’s leading construction and building materials groups (“Strabag”), for €310 million (approximately U.S.$427.05 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00). On July 1, 2009, Strabag gave notice of its purported rescission of the SPA, arguing that the antitrust condition precedent under the SPA had not been satisfied before the contractual cut-off date of June 30, 2009. On the same day, CEMEX notified Strabag that CEMEX considered their purported rescission invalid. CEMEX rescinded the SPA with effect from September 16, 2009 and on
 
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October 19, 2009, we (through RMC Holding B.V.) filed a claim against Strabag before the International Arbitration Court of the International Chamber of Commerce, requesting a declaration that Strabag’s rescission of the SPA was invalid, that CEMEX’s rescission was lawful and effective and claiming damages in a substantial amount. On December 23, 2009, Strabag filed its answer to CEMEX’s request for arbitration asking the tribunal to dismiss the claim and also filed a counterclaim. The arbitral tribunal was constituted on February 16, 2010 and after a series of procedural hearings and submissions by both parties a final award dated May 29, 2012 was notified to CEMEX on June 1, 2012. According to this final award, the arbitral tribunal declared Strabag’s rescission of the SPA unlawful and ineffective, and ordered Strabag to pay CEMEX: (i) damages in the amount of €30 million (approximately U.S.$41.33 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00) with interest thereon from the date of the Request for Arbitration (October 19, 2009) until payment in full at the rate of 8.32% per annum; (ii) default interest for the period of July 7, 2009 through September 16, 2009 in the amount of approximately €5 million (approximately U.S.$6.89 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00) with interest thereon from the date of the statement of claim (June 30, 2010) until payment in full at the rate of 4% per annum; (iii) U.S.$250,000 as partial compensation for CEMEX’s ICC costs of arbitration and (iv) €750,551 (approximately U.S.$1.03 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00) as compensation for CEMEX’s legal costs incurred in the proceedings. Also, Strabag’s counterclaim was dismissed. Strabag filed an annulment action before the Swiss Federal Court on July 2, 2012.
In relation to the annulment process with the Swiss Federal Court, on July 20, 2012, Strabag paid us, through RMC Holdings B.V., the amounts ordered by the arbitral tribunal on its final award dated May 29, 2012 (principal plus surplus accrued interest) totaling approximately €43 million (approximately U.S.$59.24 million as of March 31, 2014, based on an exchange rate of €0.7259 to U.S.$1.00) and U.S.$250,521, and, in order to secure the potential obligation for RMC Holdings B.V. to repay these amounts to Strabag in the event that the Swiss Federal Supreme Court resolved to annul the May 29, 2012 final award, RMC Holdings B.V. pledged in favor of Strabag 496,355 shares (representing approximately a 33% stake) in its subsidiary CEMEX Austria AG. On September 6, 2012, we presented our reply to the annulment action before the Swiss Federal Court. The Swiss Federal Court rendered its judgment on February 20, 2013, rejecting the annulment action brought by Strabag and ordering Strabag to bear the Court costs amounting to CHF100,000 (approximately U.S.$113,071.01 as of March 31, 2014, based on an exchange rate of CHF0.8844 to U.S.$1.00) and to compensate RMC Holdings B.V. with an amount of CHF200,000 (approximately U.S.$226,142.02 as of March 31, 2014, based on an exchange rate of CHF0.8844 to U.S.$1.00) for costs incurred in the proceedings. As a result, the pledge made in favor of Strabag was cancelled on March 4, 2013.
Colombian Water Use Litigation. On June 5, 2010, the District of Bogotá’s Environmental Secretary ( Secretaría Distrital de Ambiente de Bogotá ), or the Environmental Secretary, issued a temporary injunction suspending all mining activities at CEMEX Colombia’s El Tunjuelo quarry, located in Bogotá, Colombia. As part of the temporary injunction, Holcim Colombia and Fundación San Antonio (local aggregates producers which also have mining activities located in the same area as the El Tunjuelo quarry) were ordered to suspend mining activities in that area. The Environmental Secretary alleged that during the past 60 years, CEMEX Colombia and the other companies illegally changed the course of the Tunjuelo River, used the percolating waters without permission and improperly used the edge of the river for mining activities. In connection with the temporary injunction, on June 5, 2010, CEMEX Colombia received a formal notification from the Environmental Secretary informing it of the initiation of proceedings to impose fines against CEMEX Colombia. CEMEX Colombia has requested that the temporary injunction be revoked, arguing that its mining activities are supported by all authorizations required pursuant to the applicable environmental laws and that all the environmental impact statements submitted by CEMEX Colombia have been reviewed and authorized by the Ministry of Environment and Sustainable Development ( Ministerio de Ambiente y Desarrollo Sostenible ). On June 11, 2010, the local authorities in Bogotá, in compliance with the Environmental Secretary’s decision, sealed off the mine to machinery and prohibited the extraction of our aggregates inventory. Although there is not an official quantification of the possible fine, the District of Bogotá’s environmental secretary has publicly declared that the fine could be as much as 300 billion Colombian Pesos (approximately U.S.$152.65 million as of March 31, 2014, based on an exchange rate of 1,965.32 Colombian Pesos to U.S.$1.00). The temporary injunction does not
 
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currently compromise the production and supply of ready-mix concrete to any of our clients in Colombia. At this stage, as of March 31, 2014, we are not able to assess the likelihood of an adverse result, but if adversely resolved, it could have a material adverse impact on our results of operations, liquidity and financial condition.
Israeli Class Action Litigation. On June 21, 2012, one of our subsidiaries in Israel was notified about an application for the approval of a class action suit against it. The application was filed by a homeowner who built his house with concrete supplied by our Israeli subsidiary in October 2010. According to the application, the plaintiff claims that the concrete supplied to him did not meet with the “Israel Standard for Concrete Strength No. 118” and that, as a result, our Israeli subsidiary acted unlawfully toward all of its customers who requested a specific type of concrete but that received concrete that did not comply with the Israeli standard requirements. As per the application, the plaintiff claims that the supply of the alleged non-conforming concrete has caused financial and non-financial damages to those customers, including the plaintiff. We presume that the class action would represent the claim of all the clients who purchased the alleged non-conforming concrete from our Israeli subsidiary during the past 7 years, the limitation period according to applicable laws in Israel. The damages that could be sought amount to approximately 276 million Israeli Shekels (approximately U.S.$79.15 million as of March 31, 2014, based on an exchange rate of 3.487 Israeli Shekels to U.S.$1.00). Our Israeli subsidiary submitted a formal response to the corresponding court. Both parties presented their preliminary arguments in a hearing held on November 4, 2013. The next hearing has been scheduled for April 28, 2014. As of March 31, 2014, our subsidiary in Israel is not able to assess the likelihood of the class action application being approved or, if approved, of an adverse result, but if adversely resolved, we do not believe the final resolutions would have a material adverse impact on our results of operations, liquidity and financial condition.
Egypt Share Purchase Agreement. On September 13, 2012, the first instance court of Assiut, Egypt issued a judgment (the “First Instance Judgment”) to (i) annul the Share Purchase Agreement signed in November 1999 between CEMEX and state-owned Metallurgical Industries Company pursuant to which CEMEX acquired a controlling interest in ACC; and (ii) reinstate former employees to their former jobs at ACC. The First Instance Judgment was notified to ACC on September 19, 2012. On October 18, 2012, ACC filed an appeal against the First Instance Judgment, which was followed by Metallurgical Industries Company’s appeal filed on October 20, 2012. Hearings with the Appeals Court in Assiut, Egypt (the “Appeals Court”) were held on December 19, 2012, January 22, 2013, April 16, 2013, June 16, 2013, September 14, 2013, October 23, 2013 and November 17, 2013. At the November 17, 2013 hearing the Assiut court decided to join the appeals filed by ACC and Metallurgical Industries Company and adjourned the session to January 20, 2014 to render judgment. On January 20, 2014, the Appeals Court issued a judgment (the “Appeal Judgment”) accepting the appeals, revoking the First Instance Judgment, ruling for non-qualitative jurisdiction of the first instance court to review the case and referred the matter to the administrative court in Assiut, Egypt (the “Administrative Court”) for a hearing to be held on March 16, 2014, which was rescheduled to April 19, 2014, and which was further rescheduled to May 17, 2014 because the case file was not timely referred to the Administrative Court. Furthermore, the Appeals Court ruled that each of ACC and Metallurgical Industries Company should bear the appeal expenses and attorney fees. On March 12, 2014, ACC filed an appeal before the Cassation Court against the part of the Appeal Judgment that refers to the referral of the case to the Administrative Court and payment of the appeal expenses and attorney fees, and requested a suspension of the Appeal Judgment execution in respect to these matters until the Cassation Court renders its judgment. On April 22, 2014, the Presidential Decree on Law No. 32 of 2014 (“Law 32/2014”), which regulates legal actions to challenge agreements entered into by the Egyptian State (including its ministries, departments, special budget entities, local administrative units, authorities and state-participated companies) and third parties, was published in the Official Gazette, becoming effective as of April 23, 2014, but subject to its presentation, discussion and approval by the House of Representatives once it has been elected. As per the provisions of Law 32/2014, and considering certain exceptions, only the parties to these agreements have standing to challenge the validity of an agreement. We are currently analyzing the effects of Law 32/2014, which we currently expect will result in the dismissal of these proceedings in favor of ACC, without nullification of the Share Purchase Agreement, such that this matter should not have an adverse impact on our results of operations, liquidity and financial condition unless Law 32/2014 is not presented, discussed and ratified by the House of Representatives.
 
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South Louisiana Flood Protection Authority-East Claim. On July 24, 2013 a Petition for Damages and Injunctive Relief was filed by the South Louisiana Flood Protection Authority-East (“SLFPAE”) in the Civil District Court for the Parish of Orleans, State of Louisiana, against approximately 100 defendants including CEMEX, Inc. SLFPAE is seeking compensation for and the restoration of certain coastal lands near New Orleans alleged to have been damaged by activities related to oil and gas exploration and production since the early 1900’s. CEMEX, Inc., which was previously named Southdown, Inc., may have acquired liabilities, to the extent there may be any, in connection with oil and gas operations that were divested in the late 1980’s. The matter was recently removed to the United States District Court for the Eastern District of Louisiana and a motion by the Plaintiffs to remand to State Court is pending. As of March 31, 2014, we do not have sufficient information to assess the likelihood of an adverse result or, because of the number of defendants, the potential damages which could be borne by CEMEX, Inc., if any, or if such damages, if any, would have or not a material adverse impact on our results of operations, liquidity and financial condition.
As of March 31, 2014, we are involved in various legal proceedings involving product warranty claims, environmental claims, indemnification claims relating to acquisitions and similar types of claims brought against us that have arisen in the ordinary course of business. We believe we have made adequate provisions to cover both current and contemplated general and specific litigation risks, and we believe these matters will be resolved without any significant effect on our operations, financial position and results of operations. We are sometimes able to make and disclose reasonable estimates of the expected loss or range of possible loss, as well as disclose any provision accrued for such loss. However, for a limited number of ongoing legal proceedings, we may not be able to make a reasonable estimate of the expected loss or range of possible loss or may be able to do so but believe that disclosure of such information on a case-by-case basis would seriously prejudice our position in the ongoing legal proceedings or in any related settlement discussions. Accordingly, in these cases, we have disclosed qualitative information with respect to the nature and characteristics of the contingency, but have not disclosed the estimate of the range of potential loss.
Item 4A—Unresolved Staff Comments
Not applicable.
Item 5—Operating and Financial Review and Prospects
Cautionary Statement Regarding Forward-Looking Statements
This annual report contains forward-looking statements within the meaning of the U.S. federal securities laws. We intend these forward-looking statements to be covered by the safe harbor provisions for forward-looking statements in the U.S. federal securities laws. In some cases, these statements can be identified by the use of forward-looking words such as “may,” “should,” “could,” “anticipate,” “estimate,” “expect,” “plan,” “believe,” “predict,” “potential” and “intend” or other similar words. These forward-looking statements reflect our current expectations and projections about future events based on our knowledge of present facts and circumstances and assumptions about future events. These statements necessarily involve risks and uncertainties that could cause actual results to differ materially from our expectations. Some of the risks, uncertainties and other important factors that could cause results to differ, or that otherwise could have an impact on us or our subsidiaries, include:
 
 	•	 	the cyclical activity of the construction sector;	
 
 	•	 	competition;	
 
 	•	 	general political, economic and business conditions in the markets in which we operate;	
 
 	•	 	the regulatory environment, including environmental, tax, antitrust and acquisition-related rules and regulations;	
 
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 	•	 	our ability to satisfy our obligations under the Facilites Agreement entered into with our major creditors and our obligations under the indentures that govern the Senior Secured Notes and our other debt instruments;	
 
 	•	 	our ability to consummate asset sales and to achieve cost-savings from our cost-reduction initiative and implement our global pricing initiatives for our products;	
 
 	•	 	weather conditions;	
 
 	•	 	natural disasters and other unforeseen events; and	
 
 	•	 	other risks and uncertainties described under “Item 3—Key Information—Risk Factors” and elsewhere in this annual report.	
Readers are urged to read this annual report and carefully consider the risks, uncertainties and other factors that affect our business. The information contained in this annual report is subject to change without notice, and we are not obligated to publicly update or revise forward-looking statements. Readers should review future reports filed by us with the SEC.
This annual report also includes statistical data regarding the production, distribution, marketing and sale of cement, ready-mix concrete, clinker and aggregates. We generated some of this data internally, and some was obtained from independent industry publications and reports that we believe to be reliable sources. We have not independently verified this data nor sought the consent of any organizations to refer to their reports in this annual report.
Overview
The following discussion should be read in conjunction with our consolidated financial statements included elsewhere in this annual report. Our financial statements have been prepared in accordance with IFRS.
The regulations of the SEC do not require foreign private issuers that prepare their financial statements on the basis of IFRS (as published by IASB) to reconcile such financial statements to U.S. GAAP. As such, while we had in the past reconciled our consolidated financial statements prepared in accordance with MFRS to U.S. GAAP, those reconciliations are no longer presented in our filings with the SEC. Any references to accounting treatments under MFRS or U.S. GAAP relate solely to the application of MFRS or U.S. GAAP to our historical consolidated financial statements.
The percentage changes in cement sales volumes described in this annual report for our operations in a particular country or region include the number of tons of cement and/or the number of cubic meters of ready-mix concrete sold to our operations in other countries and regions. Likewise, unless otherwise indicated, the net sales financial information presented in this annual report for our operations in each country or region includes the Mexican Peso amount of sales derived from sales of cement and ready-mix concrete to our operations in other countries and regions, which have been eliminated in the preparation of our consolidated financial statements included elsewhere in this annual report.
 
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The following table sets forth selected consolidated financial information as of December 31, 2013 and 2012 and for each of the three years ended December 31, 2013 by principal geographic segment expressed as an approximate percentage of our total consolidated group. We operate in countries and regions with economies in different stages of development and structural reform and with different levels of fluctuation in exchange rates, inflation and interest rates. These economic factors may affect our results of business, financial condition and results of operations, depending upon the depreciation or appreciation of the exchange rate of each country and region in which we operate compared to the Mexican Peso and the rate of inflation of each of these countries and regions.

 	 	Net Sales For the Period Ended
December 31,	 	 	Operating Earnings Before Other
Expenses, Net For the Period Ended
December 31,	 	 	Total Assets at
December 31,	 	
 	 	2011(1)	 	 	2012(1)	 	 	2013(1)	 	 	  2011(2)  	 	 	  2012(2)  	 	 	  2013(2)  	 	 	2012(2)	 	 	2013(2)	 	
Mexico	 	 	21	% 	 	 	21	% 	 	 	20	% 	 	 	109	% 	 	 	79	% 	 	 	53	% 	 	 	17	% 	 	 	15	% 	
United States	 	 	16	% 	 	 	19	% 	 	 	20	% 	 	 	(67	)% 	 	 	(36	)% 	 	 	(15	)% 	 	 	43	% 	 	 	42	% 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	8	% 	 	 	7	% 	 	 	7	% 	 	 	(1	)% 	 	 	5	% 	 	 	1	% 	 	 	6	% 	 	 	6	% 	
Germany	 	 	8	% 	 	 	7	% 	 	 	7	% 	 	 	2	% 	 	 	(2	)% 	 	 	1	% 	 	 	3	% 	 	 	3	% 	
France	 	 	7	% 	 	 	6	% 	 	 	6	% 	 	 	9	% 	 	 	4	% 	 	 	4	% 	 	 	3	% 	 	 	3	% 	
Rest of Northern Europe	 	 	7	% 	 	 	6	% 	 	 	6	% 	 	 	5	% 	 	 	6	% 	 	 	2	% 	 	 	3	% 	 	 	3	% 	
The Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	4	% 	 	 	2	% 	 	 	2	% 	 	 	8	% 	 	 	4	% 	 	 	(1	)% 	 	 	5	% 	 	 	5	% 	
Egypt	 	 	3	% 	 	 	3	% 	 	 	3	% 	 	 	20	% 	 	 	11	% 	 	 	10	% 	 	 	2	% 	 	 	1	% 	
Rest of the Mediterranean	 	 	4	% 	 	 	4	% 	 	 	5	% 	 	 	6	% 	 	 	4	% 	 	 	5	% 	 	 	1	% 	 	 	2	% 	
SAC	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	5	% 	 	 	6	% 	 	 	6	% 	 	 	22	% 	 	 	27	% 	 	 	25	% 	 	 	3	% 	 	 	4	% 	
Rest of SAC	 	 	7	% 	 	 	8	% 	 	 	7	% 	 	 	25	% 	 	 	22	% 	 	 	20	% 	 	 	4	% 	 	 	3	% 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	2	% 	 	 	2	% 	 	 	3	% 	 	 	3	% 	 	 	4	% 	 	 	4	% 	 	 	2	% 	 	 	2	% 	
Rest of Asia	 	 	1	% 	 	 	1	% 	 	 	1	% 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	1	% 	 	 	—  	  	
Corporate and Other Operations	 	 	7	% 	 	 	8	% 	 	 	7	% 	 	 	(41	)% 	 	 	(28	)% 	 	 	(9	)% 	 	 	7	% 	 	 	11	% 	
Combined	 	 	202,260	 	 	 	209,912	 	 	 	209,506	 	 	 	11,862	 	 	 	17,001	 	 	 	19,504	 	 	 	478,797	 	 	 	496,130	 	
Eliminations	 	 	(12,373	) 	 	 	(12,876	) 	 	 	(13,845	) 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated	 	 	189,887	 	 	 	197,036	 	 	 	195,661	 	 	 	11,862	 	 	 	17,001	 	 	 	19,504	 	 	 	478,797	 	 	 	496,130	 	

(1)	Percentages by reporting segment are determined before eliminations resulting from consolidation.	
(2)	Percentages by reporting segment are determined after eliminations resulting from consolidation.	
Critical Accounting Policies
The preparation of financial statements in accordance with IFRS principles requires management to make estimates and assumptions that affect reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenues and expenses during the period. These assumptions are reviewed on an ongoing basis using available information. Actual results could differ from these estimates.
The main items subject to estimates and assumptions by management include, among others, impairment tests of long-lived assets, allowances for doubtful accounts and inventories, recognition of deferred income tax
 
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assets, as well as the measurement of financial instruments at fair value, and the assets and liabilities related to employee benefits. Significant judgment by management is required to appropriately assess the amounts of these assets and liabilities.
Identified below are the accounting policies we have applied under IFRS that are critical to understanding our overall financial reporting.
Income Taxes
Our operations are subject to taxation in many different jurisdictions throughout the world. Under IFRS, we recognize deferred tax assets and liabilities using a balance sheet methodology which requires a determination of the temporary differences resulting from comparing the book and taxable values of assets and liabilities, considering tax loss carrying forwards as well as other recoverable tax and credits, to the extent that it is probable that future taxable profits will be available against which they can be utilized. Our worldwide tax position is highly complex and subject to numerous laws that require interpretation and application and that are not consistent among the countries in which we operate. Significant judgment is required to appropriately assess the amounts of tax assets and liabilities. We expect to recover or settle the carrying amount of our assets and liabilities at the end of the reporting period. If this determination cannot be made, a valuation allowance is established to reduce the carrying value of the asset.
For the recognition of deferred tax assets derived from net operating losses and their corresponding valuation reserve, we make an assessment of:
(a) the aggregate amount of self-determined tax loss carryforwards included in our income tax returns in each country where we consider, based on available evidence, that the tax authorities would not reject such self-determined tax loss carryforwards; and
(b) the likelihood of the recoverability of such tax loss carryforwards prior to their expiration through an analysis of estimated future taxable income.
If we consider that it is more likely than not that the tax authorities would reject a self-determined deferred tax asset, we would decrease such deferred tax assets. Likewise, if we consider that we would not be able to use a deferred tax carryforward asset before its expiration, we would increase our valuation reserve. Both situations would result in additional income tax expense in the income statement for the period in which such determination is made.
We consider all available positive and negative evidence including factors such as market conditions, industry analysis, our expansion plans, projected taxable income, carryforward periods, current tax structure, potential changes or adjustments in tax structure, tax planning strategies, future reversals of existing temporary differences, etc., in the determination of whether it is probable that such deferred tax assets will ultimately be realized.
Every reporting period, we analyze our actual results versus our estimates and adjust our tax asset valuations as necessary. If actual results vary from our estimates, the deferred tax asset and/or valuations may be affected and necessary adjustments will be made based on relevant information. Any adjustments recorded will affect our net income in such period.
The income tax effects from an uncertain tax position are recognized when it is more-likely-than-not that the position will be sustained based on its technical merits and assuming that the tax authorities will examine each position and have full knowledge of all relevant information, and they are measured using a cumulative probability model. Each position has been considered on its own, regardless of its relation to any other broader tax settlement. The more-likely-than-not threshold represents a positive assertion by management that we are
 
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entitled to the economic benefits of a tax position. If a tax position is not considered more-likely-than-not to be sustained, no benefits of the position are recognized. Our policy is to recognize interest and penalties related to unrecognized tax benefits as part of the income tax in the consolidated statements of operations.
Our overall strategy is to structure our worldwide operations to minimize or defer the payment of income taxes on a consolidated basis. Many of the activities we undertake in pursuing this tax reduction strategy are highly complex and involve interpretations of tax laws and regulations in multiple jurisdictions and are subject to review by the relevant taxing authorities. It is possible that the taxing authorities could challenge our application of these regulations to our operations and transactions. The taxing authorities have in the past challenged interpretations that we have made and have assessed additional taxes. Although we have, from time to time, paid some of these additional assessments, in general, we believe that these assessments have not been material and that we have been successful in sustaining our positions. No assurance can be given, however, that we will continue to be as successful as we have been in the past or that pending appeals of current tax assessments will be judged in our favor.
Derivative financial instruments
In compliance with the guidelines established by our risk management committee and the restrictions in our debt agreements and debt instruments, we use derivative financial instruments such as interest rate and currency swaps, currency and equity forward arrangements, and other instruments, in order to change the risk profile associated with changes in interest rates, the foreign exchange rates of debt agreements, or both, as an alternative source of financing, and as hedges of: (i) highly probable forecasted transactions, (ii) purchases of certain commodities, and (iii) our net assets in foreign subsidiaries. These instruments have been negotiated with institutions with significant financial capacity; therefore, we consider the risk of non-compliance with the obligations agreed upon by such counterparties to be minimal.
Derivative financial instruments are recognized as assets or liabilities in the balance sheet at their estimated fair values, and the changes in such fair values are recognized in the statements of operations within “Other financial expense, net” for the period in which they occur, except for changes in the fair value of derivative instruments associated with cash flow hedges, in which case, such changes in fair value are recognized in stockholders’ equity, and are reclassified to earnings as the interest expense of the related debt is accrued, in the case of interest rate swaps, or when the underlying products are consumed in the case of contracts on the price of raw materials and commodities. Likewise, in hedges of the net investment in foreign subsidiaries, changes in fair value are recognized in stockholders’ equity as part of the foreign currency translation result, which reversal to earnings would take place upon disposal of the foreign investment. During the reported periods, we have not designated derivative financing instruments as cash flows or fair value hedges. See note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report. Derivative instruments are negotiated with institutions with significant financial capacity; therefore, we believe the risk of non-performance of the obligations agreed to by such counterparties to be minimal.
Accrued interest generated by derivative financial instruments, when applicable, is recognized as financial expense, adjusting the effective interest rate of the related debt.
Pursuant to their recognition at fair value under IFRS, our balance sheets and statements of operations are subject to volatility arising from variations in interest rates, exchange rates, share prices and the counterparty’s credit risk, among other conditions established in our derivative financial instruments. The estimated fair value under IFRS represents the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date, considering the counterparty’s credit risk in the valuation, that is, an exit price or a market-based measurement.
The concept of exit value is premised on the existence of a market and market participants for the specific asset or liability. When there is no market and/or market participants willing to make a market, IFRS establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy
 
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gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to measurements involving significant unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are as follows:
 
 	•	 	Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that we have the ability to access at the measurement date. A quote price in an active market provides the most reliable evidence of fair value and is used without adjustment to measure fair value whenever available.	
 
 	•	 	Level 2 inputs are inputs other than quoted prices in active markets that are observable for the asset or liability, either directly or indirectly, and are used mainly to determine the fair value of securities, investments or loans that are not actively traded. Level 2 inputs included equity prices, certain interest rates and yield curves, implied volatility, credit spreads and other market corroborated inputs, including inputs extrapolated from other observable inputs. In the absence of Level 1 inputs CEMEX determined fair values by iteration of the applicable Level 2 inputs, the number of securities and/or the other relevant terms of the contract, as applicable.	
 
 	•	 	Level 3 inputs are unobservable inputs for the asset or liability. We use unobservable inputs to determine fair values, to the extent there are no Level 1 or Level 2 inputs, in valuation models such as Black-Scholes, binomial, discounted cash flows or multiples of Operative EBITDA, including risk assumptions consistent with what market participants would use to arrive at fair value.	
Significant judgment and estimates by management are required to appropriately identify the corresponding level of fair value applicable to each derivative financing transaction, as well as to assess the amounts of the resulting assets and liabilities, mainly in respect of level 2 and level 3 fair values, in order to account for the effects of derivative financial instruments in the financial statements. See note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report.
The estimated fair values of derivative financial instruments fluctuate over time determined by measuring the effect of future relevant economic variables according to the yield curves shown in the market as of the reporting date. These values should be viewed in relation to the fair values of the underlying instruments or transactions, and as part of our overall exposure to fluctuations in foreign exchange rates, interest rates and prices of shares. The notional amounts of derivative financial instruments do not necessarily represent amounts exchanged by the parties and, therefore, are not a direct measure of our exposure through our use of derivatives. The amounts exchanged are determined on the basis of the notional amounts and other variables included in the derivative instruments.
Impairment of long-lived assets
Our balance sheet reflects significant amounts of long-lived assets (including property, machinery and equipment, intangible assets of definite life and other investments) associated with our operations throughout the world. Many of these amounts have resulted from past acquisitions, which have required us to reflect these assets at their fair market values at the dates of acquisition. According to their characteristics and the specific accounting rules related to them, we assess the recoverability of our long-lived assets at least once a year, normally during the fourth quarter, as is the case for goodwill, or whenever events or circumstances arise that we believe trigger a requirement to review such carrying values, as is the case with property, machinery and equipment and intangible assets of definite life.
Property, machinery and equipment, intangible assets of definite life and other investments are tested for impairment upon the occurrence of factors such as the occurrence of a significant adverse event, changes in our operating environment, changes in projected use or in technology, as well as expectations of lower operating results for each cash generating unit, in order to determine whether their carrying amounts may not be recovered. In such cases, an impairment loss is recorded in the income statements for the period when such determination is made within “Other expenses, net.” The impairment loss of an asset results from the excess of the asset’s carrying amount over its recoverable amount, corresponding to the higher of the fair value of the asset, less costs to sell such asset, and the asset’s value in use, the latter represented by the net present value of estimated cash flows related to the use and eventual disposal of the asset.
 
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Goodwill and other intangible assets of indefinite life are tested for impairment when required due to significant adverse changes or at least once a year, during the last quarter of such year, by determining the recoverable amount of the group of cash-generating units (“CGUs”) to which goodwill balances have been allocated, which consists of the higher of such group of CGUs fair value, less cost to sell and its value in use, represented by the discounted amount of estimated future cash flows to be generated by such CGUs to which goodwill has been allocated. Other intangible assets of indefinite life may be tested at the CGU or group of CGUs level, depending on their allocation. We determine discounted cash flows generally over periods of 5 years. In specific circumstances, when, according to our experience, actual results for a given cash-generating unit do not fairly reflect historical performance and most external economic variables provide the Company with confidence that a reasonably determinable improvement in the mid-term is expected in their operating results, management uses cash flow projections over a period of up to 10 years, to the extent we have detailed, explicit and reliable financial forecasts and is confident and can demonstrate its ability, based on past experience, to forecast cash flows accurately over that longer period. The number of additional periods above the standard period of 5 years of cash flow projections up to 10 years is determined by the extent to which future expected average performance resembles the historical average performance. If the value in use of a group of CGUs to which goodwill has been allocated is lower than its corresponding carrying amount, we determine the fair value of our reporting units using methodologies generally accepted in the market to determine the value of entities, such as multiples of Operating EBITDA and by reference to other market transactions, among others. An impairment loss under IFRS is recognized within other expenses, net, if the recoverable amount is lower than the net book value of the group of CGUs to which goodwill has been allocated. Impairment charges recognized on goodwill are not reversed in subsequent periods.
For the years ended December 31, 2011, 2012 and 2013, the geographic segments we reported in note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report, each integrated by groups of CGUs to which goodwill has been allocated for purposes of testing goodwill for impairment. In arriving at this conclusion, we considered: (a) that after the acquisition, goodwill was allocated at the level of the geographic operating segment; (b) that the operating components that comprise the reported segment have similar economic characteristics; (c) that the reported segments are used by us to organize and evaluate its activities in its internal information system; (d) the homogenous nature of the items produced and traded in each operative component, which are all used by the construction industry; (e) the vertical integration in the value chain of the products comprising each component; (f) the type of clients, which are substantially similar in all components, (g) the operative integration among components; and (h) the compensation system of specific county is based on the consolidated results of the geographic segment and not on the particular results of the components. In addition, the country level represents the lowest level within CEMEX at which goodwill is monitored for internal management purposes.
Significant judgment by management is required to appropriately assess the fair values and values in use of these assets. Impairment tests are significantly sensitive to, among other factors, the estimation of future prices of our products, the development of operating expenses, local and international economic trends in the construction industry, the long-term growth expectations in the different markets as well as the discount rates and the growth rates in perpetuity applied. For purposes of estimating future prices, we use, to the extent available, historical data plus the expected increase or decrease according to information issued by trusted external sources, such as national construction or cement producer chambers and/or in governmental economic expectations. Operating expenses are normally measured as a constant proportion of revenues, following past experience. However, such operating expenses are also reviewed considering external information sources in respect to inputs that behave according to international prices, such as gas and oil. We use specific pre-tax discount rates for each group of CGUs to which goodwill is allocated, which are applied to pre-tax cash flows. The amounts of estimated undiscounted cash flows are significantly sensitive to the growth rate in perpetuity applied. Likewise, the amounts of discounted estimated future cash flows are significantly sensitive to the weighted average cost of capital (discount rate) applied. The higher the growth rate in perpetuity applied, the higher the amount obtained of undiscounted future cash flows by group of CGUs obtained. Conversely, the higher the discount rate applied, the lower the amount obtained of discounted estimated future cash flows by group of CGUs obtained. Additionally, we monitor the lives assigned to these long-lived assets for purposes of depreciation and amortization, when applicable. This determination is subjective and is integral to the determination of whether impairment has occurred.
 
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During the last quarter of 2011, 2012 and 2013, we performed our annual goodwill impairment test. Based on these analyses, in 2013 and 2012 we did not determine impairment losses of goodwill, whereas, in 2011, we determined an impairment loss of goodwill for approximately Ps145 million (U.S.$12 million) associated with our groups of CGUs to which goodwill has been allocated in Latvia, representing 100% of the goodwill balance associated with such country. The estimated impairment loss was mainly attributable to market dynamics in this country and its position in the business economic cycle, generating that the net book value exceeded its respective recoverable amount. See note 15C to our 2013 audited consolidated financial statements included elsewhere in this annual report.
Pre tax discount rates and long-term growth rates used in the reporting units that represent most of the consolidated balance of goodwill under IFRS in 2011, 2012 and 2013 are as follows:

 	 	Discount rates	 	Growth rates	
Reporting units	 	2011	 	2012	 	2013	 	2011	 	2012	 	2013	
United States	 	10.7%	 	9.9%	 	9.8%	 	2.5%	 	2.5%	 	2.5%	
Spain	 	12.0%	 	11.5%	 	11.4%	 	2.5%	 	2.5%	 	2.3%	
Mexico	 	11.4%	 	10.7%	 	10.9%	 	2.5%	 	3.0%	 	3.8%	
Colombia	 	11.6%	 	10.7%	 	10.9%	 	2.5%	 	3.5%	 	4.2%	
France	 	11.5%	 	10.3%	 	10.7%	 	2.5%	 	1.9%	 	1.7%	
United Arab Emirates	 	13.9%	 	13.3%	 	12.2%	 	2.5%	 	3.6%	 	3.4%	
United Kingdom	 	11.0%	 	10.3%	 	10.5%	 	2.5%	 	2.7%	 	2.1%	
Egypt	 	13.0%	 	13.5%	 	13.0%	 	2.5%	 	4.0%	 	4.0%	
Range of discount rates in other countries	 	11.8%—14.0%	 	11.1%—13.3%	 	11.0%—12.3%	 	2.50%	 	3.4%—4.0%	 	2.4%—5.0%	
As of December 31, 2013, the discount rates we used in our cash flow projections changed slightly from the values determined in 2012, in each case, mainly as a result of variations in the country specific sovereign yield as compared to the prior year. In respect to long-term growth rates, following general practice under IFRS, beginning in 2012, we started the use of country specific rates, which are mainly obtained from the Consensus Economics, a compilation of analysts’ forecast worldwide, or from the International Monetary Fund when the first are not available for a specific country.
In connection with our assumptions included in the table above, as of December 31, 2011, 2012 and 2013, we performed sensitivity analyses to changes in assumptions, affecting the value in use of all groups of cash-generating units with an independent reasonable possible increase of 1% in the pre-tax discount rate, and an independent possible decrease of 1% in the long-term growth rate. In addition, we performed cross-check analyses for reasonableness of our results using multiples of Operating EBITDA. In order to arrive at these multiples, which represent a reasonableness check of our discounted cash flow model; we determined a weighted average of multiples of Operating EBITDA to enterprise value observed in the industry. The average multiple was then applied to a stabilized amount of Operating EBITDA and the result was compared to the corresponding carrying amount for each group of cash-generating units to which goodwill has been allocated. As of December 31, 2012 and 2013, we considered an industry weighted average Operating EBITDA multiple of 10.3 times in both periods. Our own EBITDA multiples to enterprise value as of the same dates were 10.6 times in 2012 and 11.6 times in 2013. The lowest multiple observed in our benchmark as of December 31, 2012 and 2013 was 7.2 times in both periods, and the highest was 21.3 times and 20.9 times, respectively.
 
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As of December 31, 2013, none of our sensitivy analyses resulted in a relative impairment risk in our operating segments. As of December 31, 2012, the impairment charges resulting from the sensitivity analyses that would have resulted from an independent change of each one of the variables and/or by the use of multiples of Operating EBITDA, regarding the operating segment that presented a relative impairment risk, would have been as follows:

As of December 31, 2012	  	 	 	  	Sensitivity analysis of described change in assumptions	 	  	 	 	 	
(Amounts in millions)	  	 	 	  	Recognized impairment
charges	 	  	Discount rate
+ 1pt	 	  	Long-term growth rate
- 1pt	 	  	Multiples of Operating
EBITDA	 	 	
 	  	 	 	  	 	 	  	 	 	  	 	 	  	 	 	 	 	 	 	
Spain	  	U.S.$	 	  	  	 	—  	  	  	 	99	 	  	 	—  	  	  	 	39	 	 	 	 	 	
United Arab Emirates	  	 	 	 	  	 	—  	  	  	 	8	 	  	 	—  	  	  	 	—  	  	 	 	 	 	
Nonetheless, we will continue to monitor the evolution of the specific cash-generating units to which goodwill has been allocated that presented relative goodwill impairment risk and, in the event that the relevant economic variables and the related cash flows projections would be negatively affected, it may result in a goodwill impairment loss in the future.
We mantain a market capitalization significantly lower than our levels prior to the 2008 global crisis, which we believe is due to factors such as: a) the contraction of the construction industry in the United States, which has experienced a continued slow recovery after the 2008 crisis, that has significantly affected our operations in such country and consequently our overall generation of cash flows; b) our significant amount of consolidated debt and our operating since August 2009 under the 2009 Financing Agreement (see note 16A to our 2013 audited consolidated financial statements included elsewhere in this annual report), has also significantly affected our valuation, considering the high uncertainty perceived by stakeholders regarding our odds of successfully achieving the different milestones established with our main creditors; and c) the transfer of capital during the last few years, mainly due to high volatility generated by continued liquidity problems in certain European countries, from variable income securities in developing countries such as Mexico to fixed income securities in developed countries such as the United States. The market price of CEMEX, S.A.B. de C.V.’s CPOs has recovered significantly after we entered into the Facilities Agreement (see note 16A to our 2013 audited consolidated financial statements included elsewhere in this annual report). In U.S. Dollar terms, our market capitalization increased by approximately 25% in 2013 compared to 2012, to approximately U.S.$13.5 billion (Ps176.1 billion).
Goodwill allocated to the United States accounted for approximately 77% of our total amount of consolidated goodwill as of December 31, 2012 and 2013. In connection with our determination of value in use relative to our groups of CGUs in the United States as of December 31, 2013 and 2012, we have considered several factors, such as the historical performance of such operating segment, including operating losses in recent years, the long-term nature of our investment, the recent signs of recovery in the construction industry, the significant economic barriers for new potential competitors considering the high investment required, and the lack of susceptibility of the industry to technology improvements or alternate construction products, among other factors. We has also considered recent developments in our operations in the United States, such as the 7%, 20% and 8% increases in ready-mix concrete volumes in 2011, 2012 and 2013, respectively, and the 3%, 4% and 6% increases in 2011, 2012 and 2013, respectively, of ready-mix concrete prices, respectively, which are key drivers for cement consumption and our profitability, and which trends are expected to continue over the next few years, as anticipated in our cash flow projections.
In addition, as mentioned above, we performed a reasonableness test of the estimated value in use by performing a sensitivity analysis on key cash flow assumptions, and estimated the recoverable amount by using the method of multiples of Operating EBITDA.
 
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Based on the above, considering economic assumptions that were verified for reasonableness with information generated by external sources, to the extent available, the value in use of the our operating segment in the United States exceeded the respective carrying amount for goodwill impairment test purposes as of December 31, 2012 and 2013. The additional sensitivity analyses were as follows:

 	 	 	 	2012	 	 	2013	 	
Basic test	 	U.S.$	 	 	3,933	 	 	 	5,275	 	
Sensitivity to plus 1 percent point in discount rate	 	 	 	 	1,390	 	 	 	1,131	 	
Sensitivity to minus 1 percent point in long-term growth	 	 	 	 	2,574	 	 	 	2,263	 	
Excess of multiples of Operating EBITDA over carrying amount	 	 	 	 	1,106	 	 	 	1,878	 	
As of December 31, 2012 and 2013, we consider that our combination of discount rate and long-term growth rate applied in the base model for our group of cash-generating units in the United States to which goodwill has been allocated reflect the particular risk factors existing as of the date of analysis.
In addition, we have significant balances of property, machinery and equipment. During 2011, 2012 and 2013, we recognized impairment losses of property, plant and equipment, mainly in connection with the permanent closing of operating assets for an aggregate amount of approximately Ps 1,249 million (U.S.$89 million), Ps542 million (U.S.$41 million) and Ps1,358 million (U.S.$106 million), respectively. See note 14 to our 2013 audited consolidated financial statements included elsewhere in this annual report.
As of December 31, 2012 and 2013, the consolidated balances of property, machinery and equipment, net, represented approximately 44.5% and 41.5%, respectively, of our total consolidated assets. Property, machinery and equipment are tested for impairment upon the occurrence of factors, such as a significant adverse event, changes in our operating environment, changes in projected use or in technology, as well as expectations of lower operating results for each CGU, in order to determine whether their carrying amounts may not be recovered. In such cases, an impairment loss is recorded in the income statements for the period when such determination is made within “Other expenses, net.” The impairment loss of an asset results from the excess of such asset’s carrying amount over its recoverable amount, corresponding to the higher of the fair value of the asset, less costs to sell such asset, and the asset’s value in use, the latter represented by the net present value of estimated cash flows related to the use and eventual disposal of the asset. Significant judgment by management is required to appropriately assess the fair values and values in use of these assets. The main assumptions utilized to develop these estimates are a discount rate that reflects the risk of the cash flows associated with the assets evaluated and the estimations of generation of future income. Those assumptions are evaluated for reasonableness by comparing such discount rates to available market information and by comparing to third-party expectations of industry growth, such as governmental agencies or industry chambers of commerce.
As a result of impairment tests conducted on several cash-generating units considering certain triggering events, mainly: a) the closing and/or reduction of operations of cement and ready-mix concrete plants resulting from adjusting our supply to current demand conditions and b) the transferring of installed capacity to more efficient plants, for the years ended December 31, 2013 and 2012, we adjusted the related fixed assets to their estimated value in use in those circumstances in which the assets would continue in operation based on estimated cash flows during their remaining useful life, or to their realizable value, in case of permanent shut down, and recognized impairment losses in the following countries for the following amounts:

 	  	For the Year Ended December 31,	 	
 	  	2012	 	  	2013	 	
 	  	(in millions of Mexican Pesos)	 	
Spain	  	 	Ps—  	  	  	 	Ps  917	 	
Puerto Rico	  	 	—  	  	  	 	187	 	
United States	  	 	71	 	  	 	134	 	
Germany	  	 	128	 	  	 	59	 	
Mexico	  	 	203	 	  	 	36	 	
Latvia	  	 	38	 	  	 	2	  	
Ireland	  	 	64	 	  	 	—  	  	
Other countries	  	 	38	  	  	 	23	  	
 	  	 	 	 	  	 	 	 	
 	  	 	Ps542	 	  	 	Ps1,358	 	

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Valuation reserves on accounts receivable and inventories
On a periodic basis, we analyze the recoverability of our accounts receivable and our inventories (supplies, raw materials, work-in-process and finished goods), in order to determine if due to credit risk or other factors in the case of our receivables and due to weather or other conditions in the case of our inventories, some receivables may not be recovered or certain materials in our inventories may not be utilizable in the production process or for sale purposes. If we determine such a situation exists, book values related to the non-recoverable assets are adjusted and charged to the income statement through an increase in the doubtful accounts reserve or the inventory obsolescence reserve, as appropriate. These determinations require substantial management judgment and are highly complex when considering the various countries in which we have operations, each having its own economic circumstances that require continuous monitoring, and our numerous plants, deposits, warehouses and quarries. As a result, final losses from doubtful accounts or inventory obsolescence could differ from our estimated reserves.
Asset retirement obligations
We recognize unavoidable obligations, legal or constructive, to restore operating sites upon retirement of long-lived assets at the end of their useful lives are measured at the net present value of estimated future cash flows to be incurred in the restoration process, and are initially recognized against the related assets’ book value. The increase to the assets’ book value is depreciated during its remaining useful life. The increase of the liability, related to the passage of time is charged to the line item “Other financial expenses, net.” Adjustments to the liability for changes in estimations are recognized against fixed assets, and depreciation is modified prospectively.
Asset retirement obligations are related mainly to future costs of demolition, cleaning and reforestation, so that at the end of their operation, raw materials extraction sites, maritime terminals and other production sites are left in acceptable condition. Significant management judgment is required in assessing the estimated cash outflows that will be disbursed upon retirement of the related assets. See notes 17 and 24 to our 2013 audited consolidated financial statements included elsewhere in this annual report.
Transactions in our own stock
From time to time we have entered into various transactions involving our own stock. These transactions have been designed to achieve various financial goals but were primarily executed to give us a means of satisfying future transactions that may require us to deliver significant numbers of shares of our own stock. These transactions are described in detail in the notes to our 2013 audited consolidated financial statements included elsewhere in this annual report. We have viewed these transactions as hedges against future exposure even though they do not meet the definition of hedges under accounting principles. There is significant management judgment necessary to properly account for these transactions, as the obligations underlying the related transactions are required to be reflected at market value, with the changes in such value reflected in our income statement, including the mandatory convertible securities embedded and our optional convertible notes. These transactions raise the possibility that we could be required to reflect losses on the transactions in our own shares without having a converse reflection of gains on the transactions under which we would deliver such shares to others. See note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report.
Emission rights
In some of the countries where we operate, such as in countries of the European Union, governments have established mechanisms aimed at reducing CO2 by means of which, industries releasing CO2 must submit to the environmental authorities at the end of a compliance period, emission rights for a volume equivalent to the tons of CO2 released. Since the mechanism for emissions reduction in the European Union has been in operation, a certain number of emission rights based on historical levels have been granted by the environmental authorities
 
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to industries free of cost. Therefore, companies are required to buy additional emission rights to meet any deficit between actual CO2 emissions during the compliance period and emission rights held. Companies with surplus emission rights can also dispose of such surpluses in the market. In addition, the UNFCCC grants CERs to qualified CO2 emission reduction projects. CERs may be used in specified proportions to settle emission rights obligations in the European Union. We actively participate in the development of projects aimed to reduce CO2 emissions. Some of these projects have been awarded with CERs.
In the absence of an IFRS that defines the accounting treatment for these schemes, we account for the effects associated with CO2 emission reduction mechanisms as follows:
 
 	•	 	Emission rights granted by governments are not recognized in the balance sheet considering their cost is zero.	
 
 	•	 	Revenues from the sale of any surplus of emission rights are recognized decreasing cost of sales; in the case of forward sale transactions, revenues are recognized upon physical delivery of the emission certificates.	
 
 	•	 	Emission rights and/or CERs acquired to hedge current CO2 emissions are recognized as intangible assets at cost, and are further amortized to cost of sales during the compliance period. In the case of forward purchases, assets are recognized upon physical reception of the emission certificates.	
 
 	•	 	We accrue a provision against cost of sales when the estimated annual emissions of CO2 are expected to exceed the number of emission rights, net of any benefit obtained through swap transactions of emission rights for CERs.	
 
 	•	 	CERs received from the UNFCCC are recognized as intangible assets at their development cost, which are attributable mainly to legal expenses incurred with authorities in the process of obtaining such CERs.	
 
 	•	 	We do not maintain emission rights, CERs and/or forward transaction with trading purposes.	
The combined effect of the use of alternate fuels that help reduce the emission of CO2 and the downturn in produced cement volumes in the EU, has generated a surplus of emission rights held over the estimated CO2 emissions in recent years. From the consolidated surplus of emission rights, during 2011, we sold an aggregate amount of approximately 13.4 million certificates, receiving revenues of approximately Ps1,518 million (U.S.$122 million), respectively. During 2012 and 2013, there were no sales of emission rights.
Significant judgment by management is required to appropriately assess estimated CO2 emissions and resulting excesses or deficit of allowances.
Revenue recognition
We consolidated net sales represent the value, before tax on sales, of products and services sold by consolidated subsidiaries as a result of ordinary activities, after the elimination of related parties transactions and are quantified at the fair value of the consideration received or receivable, decreased by any trade discounts or volume rebates granted to customers.
Revenue from the sale of goods and services is recognized when goods are delivered or services are rendered to customers, there is no condition or uncertainty implying a reversal thereof, and they have assumed the risk of loss. Revenues from trading activities, in which we acquire finished goods from a third party and subsequently we sell the goods to another third party, are recognized on a gross basis, considering that we assume the total risk of property on the goods purchased and we are not acting as agent or broker.
Revenue and costs associated with construction contracts are recognized in the period in which the work is performed by reference to the stage of completion of the contract activity at the end of the period, considering
 
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that the following have been defined: (a) each party’s enforceable rights regarding the asset to be constructed; (b) the consideration to be exchanged; (c) the manner and terms of settlement; (d) actual cost incurred and contract costs required to complete the asset are effectively controlled; and (e) it is probable that the economic benefits associated with the contract will flow to us.
The percentage of completion of construction contracts represents the proportion that contract costs incurred for work performed to date bear to the estimated total contract costs or the surveys of work performed or the physical proportion of the contract work completed, whichever better reflects the percentage of completion under the specific circumstances. Progress payments and advances received from customers do not reflect the work performed and are recognized as a short or long term advanced payments, as appropriate.
Results of Operations
Consolidation of Our Results of Operations
Our audited consolidated financial statements, included elsewhere in this annual report, include those subsidiaries in which we hold a controlling interest or which we otherwise control. Control exists when we have the power, directly or indirectly, to govern the administrative, financial and operating policies of an entity in order to obtain benefits from its activities.
Investments in associates are accounted for by the equity method, when we have significant influence, which is generally presumed with a minimum equity interest of 20% unless it is proven that we have significant influence with a lower percentage. Under the equity method, after acquisition, the investment’s original cost is adjusted for the proportional interest of the holding company in the associate’s equity and earnings, considering the effects of inflation.
All significant balances and transactions between related parties have been eliminated in consolidation.
For the periods ended December 31, 2011, 2012 and 2013, our consolidated results reflect the following transactions:
 
 	•	 	In November 2012, CEMEX Latam, a then wholly-owned subsidiary of CEMEX España, completed the sale of newly issued common shares in the CEMEX Latam Offering, representing approximately 26.65% of CEMEX Latam’s outstanding common shares. CEMEX Latam is the main holding company for CEMEX’s operations in Brazil, Colombia, Costa Rica, Guatemala, Nicaragua, Panama and El Salvador. CEMEX recognized within “Other equity reserves” a gain of approximately U.S. $630 million (approximately Ps8,096 million). See “—Investments, Acquisitions and Divestitures—Divestitures” for additional information regarding the CEMEX Latam Offering.	
 
 	•	 	In October 2012, Corporación Cementera Latinoamericana, S.L.U. (Sociedad Unipersonal), an indirect subsidiary of CEMEX España, completed the acquisition of the 49% non-controlling interest in CEMEX Guatemala, S.A., CEMEX’s subsidiary in Guatemala, in a private transaction for approximately U.S.$54 million (approximately Ps694 million), recognizing within “Other equity reserves” a loss of approximately U.S.$32 million (approximately Ps411 million).	
 
 	•	 	On May 17, 2012, through a public tender offer commenced on March 12, 2012, and after compliance with applicable regulations in Ireland, Readymix Investments, an indirect subsidiary of CEMEX España, acquired the 38.8% interest in Readymix plc, our main subsidiary in Ireland, that had not been owned by us for approximately €11 million (U.S.$15 million or Ps187 million), for €0.25 per share in cash. The listing and trading of Readymix plc’s shares on the Irish Stock Exchange was cancelled beginning on May 18, 2012.	
 
 	•	 	In August 2011, as a result of Ready Mix USA’s exercise of its put option (see note 15B to our 2013 audited consolidated financial statements included elsewhere in this annual report), and after performance of the obligations by both parties under the put option agreement, effective as of	
 
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 	August 1, 2011, through the payment of approximately U.S.$352 million (approximately Ps4,914 million), we acquired our former joint venture partner’s interests in CEMEX Southeast, LLC and Ready Mix USA, LLC, including a non-compete and a transition services agreement. In accordance with the joint venture agreements, from the date on which Ready Mix USA exercised its put option until the date we acquired Ready Mix USA’s interest, Ready Mix USA continued to control and manage Ready Mix USA, LLC. Nonetheless, based on IAS 27, considering the existence of a settlement price that could have been paid any time until September 30, 2011 at our election, Ready Mix USA LLC’s balance sheet was consolidated as of March 31, 2011 and its operating results beginning April 1, 2011. Upon consolidation, the purchase price was assigned to each joint venture in proportion to our relative contribution interest in CEMEX Southeast, LLC and Ready Mix USA, LLC considering the original fair values as of the dates of the agreements in 2005. We fully consolidated the acquisition of the minority interest in CEMEX Southeast, LLC, as of the acquisition date, and Ready Mix USA, LLC generated an aggregate gain of approximately U.S.$24 million (approximately Ps316 million), which was recognized within “Other expenses, net.” During 2012 after the completion of the purchase price allocation, there were changes in the values of certain assets and liabilities, none of which were individually significant, which decreased the aggregate gain on purchase by approximately U.S.$1 million (approximately Ps13 million). Our 2012 20-F includes the balance sheet of Ready Mix USA, LLC as of December 31, 2012, based on the best estimate of its net asset’s fair value as of the acquisition date of approximately Ps4,487 million, including cash and cash equivalents for approximately Ps912 million and debt for approximately Ps1,352 million, and its results of operations for the nine-month period ended December  31, 2011.	
Selected Consolidated Statement of Operations Data
The following table sets forth our selected consolidated statement of operations data for each of the three years ended December 31, 2011, 2012 and 2013 expressed as a percentage of net sales.

 	  	Year Ended December 31,	 	
 	  	2011	 	 	2012	 	 	2013	 	
Net sales	  	 	100	% 	 	 	100	% 	 	 	100	% 	
Cost of sales	  	 	(71.7	) 	 	 	(70.4	) 	 	 	(68.9	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	28.3	 	 	 	29.6	 	 	 	31.1	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Administrative and selling expenses	  	 	(13.5	) 	 	 	(12.1	) 	 	 	(12.3	) 	
Distribution expenses	  	 	(8.5	) 	 	 	(8.9	) 	 	 	(8.8	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Total administrative, selling and distribution expenses	  	 	(22.0	) 	 	 	(21.0	) 	 	 	(21.1	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Operating earnings before other expenses, net	  	 	6.3	 	 	 	8.6	 	 	 	10.0	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Other expenses, net	  	 	(2.8	) 	 	 	(2.8	) 	 	 	(2.5	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Operating earnings	  	 	3.5	 	 	 	5.8	 	 	 	7.5	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Financial expense	  	 	(8.9	) 	 	 	(9.4	) 	 	 	(10.2	) 	
Other financial (expense) income, net	  	 	(1.2	) 	 	 	0.5	 	 	 	0.9	 	
Equity in (loss) gain of associates	  	 	(0.1	) 	 	 	0.4	 	 	 	0.1	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Loss before income tax	  	 	(6.7	) 	 	 	(2.7	) 	 	 	(1.7	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Income taxes	  	 	(6.4	) 	 	 	(3.1	) 	 	 	(3.2	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Consolidated net loss	  	 	(13.1	) 	 	 	(5.8	) 	 	 	(4.9	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Non-controlling interest net income	  	 	—  	  	 	 	0.3	 	 	 	0.6	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Controlling interest net loss	  	 	(13.1	) 	 	 	(6.1	) 	 	 	(5.5	) 	

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Year Ended December 31, 2013 Compared to Year Ended December 31, 2012
Summarized in the table below are the percentage (%) increases (+) and decreases (-) for the year ended December 31, 2013 compared to the year ended December 31, 2012 in our domestic cement and ready-mix concrete sales volumes, as well as export sales volumes of cement and domestic cement and ready-mix concrete average prices for each of our geographic segments. The table below and the other volume data presented by geographic segment in this “—Selected Consolidated Statement of Operations Data” section are presented before eliminations resulting from consolidation (including those shown on note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report).

 	  	Domestic Sales
Volumes	 	 	Export Sales
Volumes	 	 	Average Domestic Prices in
Local Currency(1)	 	
 	  	 	 	 	Ready-Mix	 	 	 	 	 	 	 	 	Ready-Mix	 	
Geographic Segment	  	Cement	 	 	Concrete	 	 	Cement	 	 	Cement	 	 	Concrete	 	
Mexico	  	 	-8	% 	 	 	-6	% 	 	 	+6	% 	 	 	-3	% 	 	 	Flat	  	
United States	  	 	+5	% 	 	 	+8	% 	 	 	—  	  	 	 	+3	% 	 	 	+6	% 	
Northern Europe	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	  	 	+7	% 	 	 	+4	% 	 	 	—  	  	 	 	-3	% 	 	 	+2	% 	
Germany	  	 	+1	% 	 	 	-4	% 	 	 	-9	% 	 	 	-1	% 	 	 	+5	% 	
France	  	 	—  	  	 	 	-6	% 	 	 	—  	  	 	 	—  	  	 	 	+2	% 	
Rest of Northern Europe(2)	  	 	-10	% 	 	 	-4	% 	 	 	-7	% 	 	 	+5	% 	 	 	+1	% 	
Mediterranean	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	  	 	-28	% 	 	 	-27	% 	 	 	-13	% 	 	 	+5	% 	 	 	-5	% 	
Egypt	  	 	+7	% 	 	 	-11	% 	 	 	—  	  	 	 	+14	% 	 	 	+15	% 	
Rest of the Mediterranean(3)	  	 	-2	% 	 	 	+15	% 	 	 	+100	% 	 	 	-2	% 	 	 	+8	% 	
SAC	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	  	 	+1	% 	 	 	+8	% 	 	 	—  	  	 	 	+5	% 	 	 	+8	% 	
Rest of SAC(4)	  	 	+5	% 	 	 	-4	% 	 	 	—  	  	 	 	-2	% 	 	 	+4	% 	
Asia	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	  	 	+8	% 	 	 	—  	  	 	 	-28	% 	 	 	+5	% 	 	 	—  	  	
Rest of Asia(5)	  	 	-4	% 	 	 	-12	% 	 	 	—  	  	 	 	+9	% 	 	 	+4	% 	
 
N/A = Not Applicable
 
(1)	Represents the average change in domestic cement and ready-mix concrete prices in local currency terms. For purposes of a geographic segment consisting of a region, the average prices in local currency terms for each individual country within the region are first translated into U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which is translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the weighted average change of prices in U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which represent the weighted average change of prices in Euros) based on total sales volumes in the region.	
(2)	Refers primarily to operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland.	
(3)	Includes mainly the operations in Croatia, the UAE and Israel.	
(4)	Includes the operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala, and small ready-mix concrete operations Argentina.	
(5)	Includes primarily our operations in Thailand, Bangladesh, China and Malaysia.	
On a consolidated basis, our cement sales volumes decreased approximately 1%, from 65.8 million tons in 2012 to 65 million tons in 2013, and our ready-mix concrete sales volumes remained flat at approximately 54.9 million cubic meters in 2012 and 2013. Our net sales decreased approximately 1%, from Ps197 billion in 2012 to Ps195.7 billion in 2013, and our operating earnings before other expenses, net, increased approximately 15%, from Ps17 billion in 2012 to Ps19.5 billion in 2013.
 
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The following tables present selected financial information of net sales and operating earnings before other expenses, net, for each of our geographic segments for the years ended December 31, 2013 and 2012. The net sales information in the table below is presented before eliminations resulting from consolidation (including those shown on note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report). Variations in net sales determined on the basis of Mexican Pesos include the appreciation or depreciation which occurred during the period between the local currencies of the countries in the regions vis-à-vis the Mexican Peso; therefore, such variations differ substantially from those based solely on the countries’ local currencies:

Geographic Segment	  	Variation
in Local
Currency(1)	 	 	Approximate
Currency
Fluctuations
Net of
inflation effect	 	 	Variation
in Mexican
Pesos	 	 	Net Sales
For the Year Ended
December 31,	 	 	
 	  	 	 	 	 	 	 	 	 	 	2012	 	 	2013	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	(in millions of Mexican Pesos)	 	 	 	 	 	 	 	 	 	
Mexico	  	 	-8	% 	 	 	—  	  	 	 	-8	% 	 	 	Ps 44,412	 	 	 	Ps 40,932	 	 	 	 	 	 	 	 	 	
United States	  	 	+8	% 	 	 	-2	% 	 	 	+6	% 	 	 	40,319	 	 	 	42,582	 	 	 	 	 	 	 	 	 	
Northern Europe	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	  	 	+2	% 	 	 	-4	% 	 	 	-2	% 	 	 	14,620	 	 	 	14,368	 	 	 	 	 	 	 	 	 	
Germany	  	 	-6	% 	 	 	+1	% 	 	 	-5	% 	 	 	14,406	 	 	 	13,715	 	 	 	 	 	 	 	 	 	
France	  	 	Flat	  	 	 	+1	% 	 	 	+1	% 	 	 	13,324	 	 	 	13,393	 	 	 	 	 	 	 	 	 	
Rest of Northern Europe(2)	  	 	-7	% 	 	 	+3	% 	 	 	-4	% 	 	 	12,778	 	 	 	12,250	 	 	 	 	 	 	 	 	 	
Mediterranean	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	  	 	-21	% 	 	 	+1	% 	 	 	-20	% 	 	 	4,841	 	 	 	3,856	 	 	 	 	 	 	 	 	 	
Egypt	  	 	+16	% 	 	 	-19	% 	 	 	-3	% 	 	 	6,382	 	 	 	6,162	 	 	 	 	 	 	 	 	 	
Rest of the Mediterranean(3)	  	 	+19	% 	 	 	-2	% 	 	 	+17	% 	 	 	8,160	 	 	 	9,517	 	 	 	 	 	 	 	 	 	
SAC	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	  	 	+18	% 	 	 	-7	% 	 	 	+11	% 	 	 	11,932	 	 	 	13,203	 	 	 	 	 	 	 	 	 	
Rest of SAC(4)	  	 	+2	% 	 	 	-8	% 	 	 	-6	% 	 	 	16,450	 	 	 	15,527	 	 	 	 	 	 	 	 	 	
Asia	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	  	 	+12	% 	 	 	-4	% 	 	 	+8	% 	 	 	4,704	 	 	 	5,067	 	 	 	 	 	 	 	 	 	
Rest of Asia(5)	  	 	-2	% 	 	 	-2	% 	 	 	-4	% 	 	 	2,430	 	 	 	2,330	 	 	 	 	 	 	 	 	 	
Others(6)	  	 	-9	% 	 	 	+19	% 	 	 	+10	% 	 	 	15,154	 	 	 	16,604	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net sales before eliminations	  	 	 	 	 	 	 	 	 	 	Flat	  	 	 	Ps 209,912	 	 	 	Ps 209,506	 	 	 	 	 	 	 	 	 	
Eliminations from consolidation	  	 	 	 	 	 	 	 	 	 	 	 	 	 	(12,876	) 	 	 	(13,845	) 	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated net sales	  	 	 	 	 	 	 	 	 	 	-1	% 	 	 	Ps 197,036	 	 	 	Ps 195,661	 	 	 	 	 	 	 	 	 	

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Geographic Segment	 	Variation
in Local
Currency(1)	 	 	Approximate
Currency
Fluctuations
Net of
inflation effect	 	 	Variation
in Mexican
Pesos	 	 	Operating Earnings (Loss)
Before Other Expenses, Net
For the Year Ended
December 31,	 	 	
 	 	 	 	 	 	 	 	 	 	 	2012	 	 	2013	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	(in millions of Mexican Pesos)	 	 	 	 	 	 	 	 	 	
Mexico	 	 	-24	% 	 	 	—  	  	 	 	-24	% 	 	 	Ps 13,403	 	 	 	Ps 10,247	 	 	 	 	 	 	 	 	 	
United States	 	 	+54	% 	 	 	-2	% 	 	 	+52	% 	 	 	(6,059	) 	 	 	(2,906	) 	 	 	 	 	 	 	 	 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	-98	% 	 	 	+11	% 	 	 	-87	% 	 	 	914	 	 	 	123	 	 	 	 	 	 	 	 	 	
Germany	 	 	+154	% 	 	 	+5	% 	 	 	+159	% 	 	 	(311	) 	 	 	183	 	 	 	 	 	 	 	 	 	
France	 	 	-2	% 	 	 	—  	  	 	 	-2	% 	 	 	759	 	 	 	742	 	 	 	 	 	 	 	 	 	
Rest of Northern Europe(2)	 	 	-52	% 	 	 	—  	  	 	 	-52	% 	 	 	879	 	 	 	421	 	 	 	 	 	 	 	 	 	
Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	–142	% 	 	 	–1	% 	 	 	-141	% 	 	 	659	 	 	 	(269	) 	 	 	 	 	 	 	 	 	
Egypt	 	 	+19	% 	 	 	-19	% 	 	 	Flat	  	 	 	1,917	 	 	 	1,911	 	 	 	 	 	 	 	 	 	
Rest of the Mediterranean(3)	 	 	+51	% 	 	 	-5	% 	 	 	+46	% 	 	 	762	 	 	 	1,109	 	 	 	 	 	 	 	 	 	
SAC	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	+17	% 	 	 	-7	% 	 	 	+10	% 	 	 	4,509	 	 	 	4,964	 	 	 	 	 	 	 	 	 	
Rest of SAC(4)	 	 	+16	% 	 	 	-11	% 	 	 	+5	% 	 	 	3,656	 	 	 	3,843	 	 	 	 	 	 	 	 	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	+39	% 	 	 	+4	% 	 	 	+43	% 	 	 	596	 	 	 	853	 	 	 	 	 	 	 	 	 	
Rest of Asia(5)	 	 	+249	% 	 	 	-140	% 	 	 	+109	% 	 	 	35	 	 	 	73	 	 	 	 	 	 	 	 	 	
Others(6)	 	 	-9	% 	 	 	+71	% 	 	 	+62	% 	 	 	(4,718	) 	 	 	(1,790	) 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating earnings before other expenses, net	 	 	 	 	 	 	 	 	 	 	+15	% 	 	 	Ps 17,001	 	 	 	Ps 19,504	 	 	 	 	 	 	 	 	 	

“—” = Not Applicable
 
(1)	Represents the variation in local currency terms. For purposes of a geographic segment consisting of a region, the variation in local currency terms for each individual country within the region are first translated into U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which is translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the change in U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which represent the change in Euros), net, in the region.	
(2)	Refers primarily to operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland.	
(3)	Includes mainly the operations in Croatia, the UAE and Israel.	
(4)	Includes the operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala, and small ready-mix concrete operations Argentina.	
(5)	Includes primarily our operations in Thailand, Bangladesh, China and Malaysia.	
(6)	Our Others segment refers to: (i) cement trade maritime operations, (ii) our information technology solutions business (Neoris N.V.), (iii) CEMEX, S.A.B. de C.V. and other corporate entities and (iv) other minor subsidiaries with different lines of business.	
Net sales. Our consolidated net sales decrease approximately 1%, from Ps197.0 billion in 2012 to Ps195.7 billion in 2013. The decrease was primarily attributable to lower volumes and prices from our operations in Mexico and Spain, partially mitigated by higher volumes and prices in local currency terms in the United States and Colombia. Set forth below is a quantitative and qualitative analysis of the various factors affecting our net sales on a geographic segment basis. The discussion of volume data and net sales information below are presented before eliminations resulting from consolidation (including those shown on note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report).
 
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Mexico
Our domestic cement sales volumes from our operations in Mexico decreased approximately 8% in 2013 compared to 2012, and ready-mix concrete sales volumes decreased approximately 6% over the same period. Our net sales from our operations in Mexico represented approximately 20% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. The decrease in domestic cement and ready-mix concrete sales volumes were primarily attributable to homebuilder´s working capital financial constraints and high levels of inventories, resulting in lower demand in residential sector. The decrease in sales volumes was partially offset by positive performance in the industrial and commercial sectors and infrastructure spending accelerated during the second half of 2013. Our cement export volumes of our operations in Mexico, which represented approximately 7% of our Mexican cement sales volumes for the year ended December 31, 2013, increased approximately 6% in 2013 compared to 2012, primarily as a result of higher export volumes to South America, Central American and the Caribbean, and the United States. Of our total cement export volumes from our operations in Mexico during 2013, approximately 17% was shipped to the United States, 19% to Central America and the Caribbean and 64% to South America. Our average sales price of domestic cement from our operations in Mexico decreased approximately 3%, in Mexican Peso terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete remained flat, in Mexican Peso terms, over the same period. For the year ended December 31, 2013, cement represented approximately 52%, ready-mix concrete approximately 24% and our aggregates and other businesses approximately 24% of our net sales from our operations in Mexico before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes and domestic cement average sale prices, our net sales in Mexico, in Mexican Peso terms, decreased approximately 8% in 2013 compared to 2012.
United States
Our domestic cement sales volumes from our operations in the United States increased approximately 5% in 2013 compared to 2012, and ready-mix concrete sales volumes increased approximately 8% over the same period. The increases in domestic cement and ready-mix concrete sales volumes of our operations in the U.S. resulted primarily from the strong fundamentals such as high affordability, large pent-up demand and low levels of inventories that continued to be the main driver of the demand in the residential sector. In addition, the industrial and commercial sectors also contributed favorably to demand growth and the infrastructure sector showed a slight improvement in highway spending. Our operations in the United States represented approximately 20% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average domestic cement sales price of our operations in the United States increased approximately 3%, in U.S. Dollar terms, in 2013 compared to 2012, and our average ready-mix concrete sales prices increased approximately 6%, in U.S. Dollar terms, over the same period. For the year ended December 31, 2013, cement represented approximately 29%, ready-mix concrete approximately 35% and our aggregates and other businesses approximately 36% of net sales from our operations in the United States before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement and ready-mix concrete sales volumes as well as the increase in average domestic cement and ready-mix concrete sales prices, net sales from our operations in the United States, in U.S. Dollar terms, increased approximately 8% in 2013 compared to 2012.
Northern Europe
In 2013, our operations in the Northern Europe region consisted of our operations in the United Kingdom, Germany and France, which represent the most significant operations in this region, in addition to our Rest of Northern Europe segment, which refers primarily to our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland. Our net sales from our
 
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operations in the Northern Europe region represented approximately 26% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2013, our operations in the Northern Europe region represented approximately 15% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the Northern Europe region.
United Kingdom
Our domestic cement sales volumes from our operations in the United Kingdom increased approximately 7% in 2013 compared to 2012, and ready-mix concrete sales volumes increased approximately 4% over the same period. The increases in domestic cement and ready-mix concrete sales volumes resulted primarily from the improved macroeconomic conditions that contributed to higher activity in the country. In addition, the residential sector continued driving the demand for our products, which benefited from the governmental incentives to promote home ownership. Our operations in the United Kingdom represented approximately 7% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the United Kingdom decreased approximately 3%, in Pound terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 2%, in Pound terms, over the same period. For the year ended December 31, 2013, cement represented approximately 16%, ready-mix concrete approximately 27% and our aggregates and other businesses approximately 57% of net sales from our operations in the United Kingdom before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement and ready-mix concrete sales volumes and average ready-mix concrete sales prices, partially offset by the decrease in domestic cement average sales prices, net sales from our operations in the United Kingdom, in Pound terms, increased approximately 2% in 2013 compared to 2012.
Germany
Our domestic cement sales volumes from our operations in Germany increased approximately 1% in 2013 compared to 2012, and ready-mix concrete sales volumes decreased approximately 4% over the same period. The decrease in ready-mix concrete sales volumes resulted primarily from adverse weather conditions that mitigated the demand for our products. The decrease in ready-mix concrete sales volumes, was partially offset by low unemployment and mortgage rates, as well as higher wages and salaries that contributed to an increase activity in the residential sector, which was the main driver of demand for our products. Moreover, the performance of the infrastructure sector remained stable. Our cement export volumes of our operations in Germany, which represented approximately 29% of our Germany cement sales volumes for the year ended December 31, 2013, decreased approximately 9% in 2013 compared to 2012, primarily as a result of lower export volumes to Europe. Our operations in Germany represented approximately 7% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Germany decreased approximately 1%, in Euro terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 5%, in Euro terms, over the same period. For the year ended December 31, 2013, cement represented approximately 26%, ready-mix concrete approximately 37% and our aggregates and other businesses approximately 37% of net sales from our operations in Germany before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decrease in ready-mix concrete sales volumes and domestic cement sales price, partially offset by the increases in domestic cement sales volumes and ready-mix concrete average sales prices, net sales from our operations in Germany, in Euro terms, decreased approximately 6% in 2013 compared to 2012.
 
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France
Our ready-mix concrete sales volumes from our operations in France decreased approximately 6% in 2013 compared to 2012. The decrease in ready-mix concrete sales volumes resulted primarily from a high level of unemployment, a less attractive buy-to-let program and limited credit availability which affected the performance in the residential sector. In contrast, the activity in the industrial and commercial sectors, especially in industrial buildings, mitigated the decline in volumes. The infrastructure activity continues to be supported by a number of ongoing highway and high-speed-railway projects. Our operations in France represented approximately 6% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of ready-mix concrete of our operations in France increased approximately 2%, in Euro terms, in 2013 compared to 2012. For the year ended December 31, 2013, ready-mix concrete represented approximately 71% and our aggregates and other businesses approximately 29% of net sales from our operations in France before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decrease in ready-mix concrete sales volumes, offset by the increase in ready-mix concrete average sales prices, net sales from our operations in France, in Euro terms, remained flat in 2013 compared to 2012.
Rest of Northern Europe
In 2013, our operations in our Rest of Northern Europe segment consisted primarily of our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland. Our domestic cement sales volumes of our operations in our Rest of Northern Europe segment decreased approximately 10% in 2013 compared to 2012, and ready-mix concrete sales volumes decreased approximately 4% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes resulted primarily from lower activity in the infrastructure sector as well as high levels of unemployment and limited credit availability in the residential sector, mainly in Poland. Our cement export volumes of our operations in the Rest of Northern Europe, which represented approximately 24% of our Rest of Northern Europe cement sales volumes for the year ended December 31, 2013, decreased approximately 7% in 2013 compared to 2012, primarily as a result of lower export volumes to Europe and Asia. Our net sales from our operations in our Rest of Northern Europe segment represented approximately 6% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of Northern Europe segment increased approximately 5%, in Euro terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 1%, in Euro terms, over the same period. For the year ended December 31, 2013, cement represented approximately 39%, ready-mix concrete approximately 41% and our aggregates and other businesses approximately 20% of net sales from our operations in our Rest of Northern Europe segment before intra-sector eliminations within the segment and before eliminations resulting from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes, partially mitigated by increases in average sales prices, net sales in our Rest of Northern Europe segment, in Euro terms, decreased approximately 7% in 2013 compared to 2012.
The Mediterranean
In 2013, our operations in the Mediterranean region consisted of our operations in Spain and Egypt, which represent the most significant operations in this region, in addition to our Rest of the Mediterranean segment, which includes mainly our operations in Croatia, the UAE and Israel. Our net sales from our operations in the Mediterranean region represented approximately 10% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2013, our operations in the Mediterranean region represented approximately 8% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the Mediterranean region.
 
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Spain
Our domestic cement sales volumes from our operations in Spain decreased approximately 28% in 2013 compared to 2012, while ready-mix concrete sales volumes decreased approximately 27% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes resulted primarily from government spending cuts that kept infrastructure activity at low levels and a gradual reduction in home inventories in the residential sector, while house prices showed signs of stabilization. Our operations in Spain represented approximately 2% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our cement export volumes of our operations in Spain, which represented approximately 48% of our Spain cement sales volumes for the year ended December 31, 2013, decreased approximately 13% in 2013 compared to 2012, primarily as a result of lower export volumes to Africa and Europe. Of our total cement export volumes of our operations in Spain during 2013, approximately 10% to Central America and the Caribbean, approximately 24% was shipped to Europe and to the Middle East and approximately 66% to Africa. Our average sales price of domestic cement of our operations in Spain increases approximately 5%, in Euro terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete decreases approximately 5%, in Euro terms, over the same period. For the year ended December 31, 2013, cement represented approximately 71%, ready-mix concrete approximately 16% and our aggregates and other businesses approximately 13% of net sales from our operations in Spain before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes and ready-mix average sales prices, partially offset by increase in our domestic cement sales prices, net sales from our operations in Spain, in Euro terms, decreased approximately 21% in 2013 compared to 2012.
Egypt
Our domestic cement sales volumes from our operations in Egypt increased approximately 7% in 2013 compared to 2012, while ready-mix concrete sales volumes decreased approximately 11% over the same period. The increase in domestic cement sales volumes resulted primarily from the informal residential sector that continues to be the main driver of demand. Our net sales from our operations in Egypt represented approximately 3% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms. Our average sales price of domestic cement increased approximately 14%, in Egyptian pound terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 15%, in Egyptian pound terms, over the same period. For the year ended December 31, 2013, cement represented approximately 91%, ready-mix concrete approximately 6% and our aggregates and other businesses approximately 3% of net sales from our operations in Egypt before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement sales volumes and domestic cement and ready-mix concrete average sale prices, partially offset by the decrease in ready-mix concrete sales volumes, our net sales in Egypt, in Egyptian pound terms, increased approximately 16% in 2013 compared to 2012.
Rest of the Mediterranean
In 2013, our operations in our Rest of the Mediterranean segment consisted mainly of our operations in Croatia, the UAE and Israel. Our domestic cement sales volumes of our operations in our Rest of the Mediterranean segment decreased approximately 2% in 2013 compared to 2012, and ready-mix concrete sales volumes increased approximately 15% over the same period. The decrease in domestic cement sales volumes resulted primarily from lower construction levels. The increase in ready-mix concrete sales volumes, resulted primary from higher volumes in Croatia, market reactivation in UAE and strong demand in the residential and infrastructure sectors in Israel. Our cement export volumes of our operations in the Rest of the Mediterranean, which represented approximately 44% of our Rest of the Mediterranean cement sales volumes for the year ended December 31, 2013, increased significantly in 2013 compared to 2012, primarily as a result of higher export
 
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volumes to Middle East and South American. Our net sales from our operations in our Rest of the Mediterranean segment represented approximately 5% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of the Mediterranean decreased approximately 2%, in U.S. Dollar terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 8%, in U.S. Dollar terms, over the same period. For the year ended December 31, 2013, cement represented approximately 20%, ready-mix concrete approximately 58% and our aggregates and other businesses approximately 22% of our net sales from our operations in our Rest of the Mediterranean segment before intra-sector eliminations within the segment and before eliminations resulting from consolidation, as applicable.
As a result of the increases in ready-mix concrete sales volumes and ready-mix concrete average sale prices, partially offset by decreases in domestic cement sale volumes and domestic cement average sale prices, net sales in our Rest of the Mediterranean segment, in U.S. Dollar terms, increased approximately 19% in 2013 compared to 2012.
South America and the Caribbean
In 2013, our operations in the South America and the Caribbean region consisted of our operations in Colombia, which represents the most significant operation in this region, in addition to our Rest of South America and the Caribbean segment, which includes our operations in Costa Rica, Guatemala, Panama, Nicaragua, Puerto Rico, the Dominican Republic, Jamaica and other countries in the Caribbean, as well as small ready-mix concrete operations in Argentina. Some of these trading operations in the Caribbean region consist of the resale of cement produced by our operations in Mexico. Our net sales from our operations in the South America and the Caribbean region represented approximately 13% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2013, our operations in the South America and the Caribbean region represented approximately 7% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the South America and the Caribbean region.
Colombia
Our domestic cement volumes from our operations in Colombia increased approximately 1% in 2013 compared to 2012, and ready-mix concrete sales volumes increased approximately 8% over the same period. The increases in domestic cement and ready-mix concrete sales volumes resulted primarily from the government-sponsored free-home program, a driver of demand in the residential sector. The positive economic outlook, higher investor confidence and new trade agreements were factors that continued to support the favorable trend in the industrial and commercial sectors. Our net sales from our operations in Colombia represented approximately 6% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Colombia increased approximately 5% in Colombian Peso terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 8% in Colombian Peso terms, over the same period. For the year ended December 31, 2013, cement represented approximately 58%, ready-mix concrete approximately 29% and our aggregates and other businesses approximately 13% of our net sales from our operations in Colombia before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement and ready-mix concrete sales volumes and domestic cement and ready-mix concrete average sales prices, net sales of our operations in Colombia, in Colombian Peso terms, increased approximately 18% in 2013 compared to 2012.
 
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Rest of South America and the Caribbean
For the year ended December 31, 2013, our operations in our Rest of South America and the Caribbean segment included our operations in Costa Rica, Guatemala, Panama, Nicaragua, Puerto Rico, the Dominican Republic, Jamaica and other countries in the Caribbean, and small ready-mix concrete operations in Argentina. Our domestic cement volumes from our operations in our Rest of South America and the Caribbean segment increased approximately 5% in 2013 compared to 2012, and ready-mix concrete sales volumes decreased approximately 4% over the same period. The increase in domestic cement volumes resulted primarily from higher consumption levels due to projects in Panama, Costa Rica and Nicaragua. The decrease in ready-mix concrete sales volumes resulted primarily from lower construction levels caused by cuts in public spending and the culmination of commercial and infrastructure projects in Dominican Republic, Puerto Rico and Costa Rica. Our net sales from our operations in our Rest of South America and the Caribbean segment represented approximately 7% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of South America and the Caribbean segment decreased approximately 2% in U.S. Dollar terms, in 2013 compared to 2012, and our average sales price of ready-mix concrete increased approximately 4% in U.S. Dollar terms, over the same period. For the year ended December 31, 2013, cement represented approximately 74% ready-mix concrete approximately 19% and our other businesses approximately 7% of net sales from our operations in our Rest of South America and the Caribbean segment before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement sales volumes and ready-mix concrete average sales price, partially offset by the decrease in ready-mix concrete sales volumes and domestic cement average sales prices, net sales of our operations in our Rest of South America and the Caribbean segment, in U.S. Dollar terms, increased approximately 2% in 2013 compared to 2012.
Asia
For the year ended December 31, 2013, our operations in the Asia region consisted of our operations in the Philippines, which represent the most significant operation in this region, in addition to our Rest of Asia segment, which includes our operations in Malaysia, Thailand, Bangladesh and China. Our net sales from our operations in the Asia region represented approximately 4% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2013, our operations in the Asia region represented approximately 2% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the Asia region.
The Philippines
Our domestic cement volumes from our operations in the Philippines increased approximately 8% in 2013 compared to 2012. The increase in domestic cement sales volumes resulted primarily from favorable economic conditions such as a stable level of inflation and mortgage rates, healthy remittances inflows that contributed to an increase in the activity in the residential sector. In addition, the infrastructure and industrial and commercial sectors continued with their positive performance. Our cement export volumes of our operations in Philippines, which represented approximately 1% of our Philippines cement sales volumes for the year ended December 31, 2013, decreased approximately 28% in 2013 compared to 2012, primarily as a result of lower export volumes to Asia. Our net sales from our operations in the Philippines represented approximately 3% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Philippines increased approximately 5% in Philippine Peso terms, in 2013 compared to 2012. For the year ended December 31, 2013, cement represented approximately 100% of our net sales from our operations in the Philippines before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
 
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As a result of the increases in domestic cement sales volumes and average sales price, net sales of our operations in the Philippines, in Philippine Peso terms, increased approximately 12% in 2013 compared to 2012.
Rest of Asia
For the year ended December 31, 2013, our operations in our Rest of Asia segment included our operations in Malaysia, Thailand, Bangladesh and China. Our domestic cement sales volumes from our operations in our Rest of Asia segment decreased approximately 4% in 2013 compared to 2012, and ready-mix concrete sales volumes decreased approximately 12% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes resulted primarily from unfavorable market conditions that caused lower construction levels in our markets. Our net sales from our operations in our Rest of Asia segment represented approximately 1% of our total net sales for the year ended December 31, 2013, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement increased approximately 9% in U.S. Dollar terms, in 2013 compared to 2012, and the average sales price of ready-mix concrete increased approximately 4%, in U.S. Dollar terms, over the same period. For the year ended December 31, 2013, cement represented approximately 41% ready-mix concrete approximately 49% and our other businesses approximately 10% of net sales from our operations in our Rest of Asia segment before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes, offset by the increases in domestic cement and ready-mix concrete average sales price, net sales from our operations in our Rest of Asia segment, in U.S. Dollar terms, decreased approximately 2% in 2013 compared to 2012.
Others
Our Others segment refers to: (i) cement trade maritime operations, (ii) our information technology solutions business (Neoris N.V.), (iii) CEMEX, S.A.B. de C.V. and other corporate entities and (iv) other minor subsidiaries with different lines of business. Net sales from our Others segment decreased approximately 9% before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable, in 2013 compared to 2012, in U.S. Dollar terms. The decrease in net sales in our Others segment primarily was a result of lower trading operations and others, such as transport, asphalt, concrete products and multiproducts. For the year ended December 31, 2013, our trading operations represented approximately 44% and our information technology solutions company represented approximately 18% of our net sales in our Others segment.
Cost of Sales. Our cost of sales, including depreciation, decreased approximately 3% from Ps138.7 billion in 2012 to Ps134.8 billion in 2013. As a percentage of net sales, cost of sales decreased from 70.4% in 2012 to 68.9% in 2013. The decrease in cost of sales as a percentage of net sales resulted primarily from a reduction in workforce and other cost reduction initiatives. In our cement and aggregates business, we have several producing plants and many selling points. Our cost of sales includes freight expenses of raw materials used in our producing plants and delivery expenses of our ready-mix concrete business. However, our costs of sales excludes (i) expenses related to personnel and equipment comprising our selling network and those expenses related to warehousing at the points of sale, which were included as part of our administrative and selling expenses line item in the amount of approximately Ps7.9 billion in 2012 and Ps8.1 billion in 2013; and (ii) freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ facilities, which are included as part of our distribution expenses line item (except for distribution or delivery expenses related to our ready-mix concrete business, which are included in our cost of sales), and which, for the years ended December 31, 2012 and 2013, represented Ps17.6 billion and Ps17.2 billion, respectively.
Gross Profit. For the reasons explained above, our gross profit increased approximately 4% from approximately Ps58.3 billion in 2012 to approximately Ps60.9 billion in 2013. As a percentage of net sales, gross profit increased from approximately 29.6% in 2012 to 31.1% in 2013. In addition, our gross profit may not be directly comparable to those of other entities that include all their freight expenses in cost of sales. As described
 
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above, we include freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations within distribution expenses, which in aggregate represented costs of approximately Ps17.6 billion in 2012 and approximately Ps17.2 billion in 2013.
Operating Earnings Before Other Expenses, Net. For the reasons mentioned above, our operating earnings before other expenses, net, increased approximately 15% from approximately Ps17.0 billion in 2012 to approximately Ps19.5 billion in 2013. As a percentage of net sales, operating earnings before other expenses, net, increased from approximately 8.6% in 2012 to 10.0% in 2013. Additionally, set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our operating earnings before other expenses, net, on a geographic segment basis.
Mexico
Our operating earnings before other expenses, net, from our operations in Mexico decreased approximately 24%, in Mexican Peso terms, from operating earnings before other expenses, net, of approximately Ps13.4 billion in 2012 to operating earnings before other expenses, net, of approximately Ps10.3 billion in 2013. The decrease resulted primarily from lower domestic cement and ready-mix concrete sales volumes and domestic cement average sales prices caused by lower demand in the residential sector.
United States
Our operating loss before other expenses, net, from our operations in the United States decreased approximately 54% in U.S. Dollar terms. The decrease resulted primarily from higher domestic cement and ready-mix concrete sales volumes and domestic cement and ready-mix concrete average sale prices, driven by the growth demand in the residential, industrial and commercial sectors.
Northern Europe
United Kingdom
Our operating earnings before other expenses, net, from our operations in the United Kingdom decreased 98% in Pound terms. The decrease resulted primarily from the net gain in operating results due to changes in defined benefit plans of approximately Ps1,914 million (U.S.$146 million) recognized during 2012.
Germany
Our operating loss before other expenses, net, from our operations in Germany decreased significantly in Euro terms. The decrease resulted primarily from higher ready-mix concrete sales volumes and sales prices as well as our cost reduction initiatives.
France
Our operating earnings before other expenses, net, from our operations in France decreased approximately 2% in Euro terms. The decrease resulted primarily from lower ready-mix concrete sales volumes caused by a slowdown in the residential, industrial and commercial sectors.
Rest of Northern Europe
Our operating earnings before other expenses, net, from our operations in our Rest of Northern Europe segment decreased approximately 52% in Euro terms. The decrease resulted primarily from lower domestic cement and ready-mix concrete sales volumes as a result of lower activity in the infrastructure and residential sectors.
 
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The Mediterranean
Spain
Our operating earnings before other expenses, net, from our operations in Spain decreased significantly in Euro terms. The decrease resulted primarily from lower domestic cement and ready-mix concrete sales volumes mainly driven by government spending cuts in the infrastructure sector and continued unfavorable market conditions.
Egypt
Our operating earnings before other expenses, net, from our operations in Egypt increased 19% in Egypt Pound terms. The increase resulted from higher domestic cement sales volumes, as well as higher domestic cement and ready-mix concrete sales price, partially mitigated by a decrease in ready-mix concrete sales volumes.
Rest of the Mediterranean
Our operating earnings before other expenses, net, from our operations in our Rest of the Mediterranean segment increased approximately 51% in U.S. Dollar terms. The increase resulted primarily from higher ready-mix concrete sales volumes and average sales prices, mainly driven by strong demand in residential and infrastructure projects in Israel and favorable market conditions in Croatia and the UAE.
South America and the Caribbean
Colombia
Our operating earnings before other expenses, net, from our operations in Colombia increased approximately 17% in Colombian Peso terms. The increase resulted primarily from higher domestic cement and ready-mix concrete sales volumes as well as higher average sales prices, driven by the continued favorable trend in the residential, industrial and commercial sectors supported by the positive economic outlook and investor confidence.
Rest of South America and the Caribbean
Our operating earnings before other expenses, net, from our operations in our Rest of South America and the Caribbean segment increased approximately 16% in U.S. Dollar terms. The increase resulted primarily from higher domestic cement volumes and ready-mix concrete sales prices, driven by higher consumption levels due to current projects, despite of the culmination of others.
Asia
The Philippines
Our operating earnings before other expenses, net, from our operations in the Philippines increased approximately 39% in Philippine Peso terms. The increase resulted primarily from higher domestic cement sales volumes and average sales prices caused by favorable economic conditions and positive performance in all sectors.
Rest of Asia
Our operating earnings before other expenses, net, from our operations in our Rest of Asia segment increased significantly in U.S. Dollar terms. The increase resulted primarily from increases in domestic cement and ready-mix concrete average sales prices, as well as our cost reduction initiatives.
 
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Others
Our operating loss before other expenses, net, from our operations in our Others segment decreased approximately 62% in Mexican Peso terms, from an operating loss before other expenses, net, of approximately Ps4.7 billion in 2012 to an operating loss before other expenses, net, of approximately Ps1.8 billion in 2013. The decrease resulted primarily from a decrease in trading operations and others, such as transport, asphalt, concrete products and multiproducts.
Other Expenses, Net. Our other expenses, net, decreased approximately 11%, in Mexican Peso terms, from approximately Ps5.5 billion in 2012 to approximately Ps4.9 billion in 2013. The decrease resulted primarily from one-time restructuring costs in connection with a 10-year services agreement with IBM incurred during last year. The decrease was partially offset by an increase in fixed asset sales, net, in 2013 compared with 2012.
The most significant items included under this caption for the years ended December 31, 2012 and 2013 are as follows:

 	  	For the Year Ended December 31,	 	
 	  	2012	 	 	2013	 	
 	  	(in millions of Mexican Pesos)	 	
Restructuring costs	  	 	Ps(3,079	) 	 	 	Ps   (963	) 	
Impairment losses	  	 	(1,661	) 	 	 	(1,591	) 	
Charitable contributions	  	 	(100	) 	 	 	(25	) 	
Results from sales of assets and others, net	  	 	(650	) 	 	 	(2,324	) 	
 	  	 	 	 	 	 	 	 	
 	  	 	Ps(5,490)	  	 	 	Ps(4,903	) 	
 	  	 	 	 	 	 	 	 	
Financial Items
Pursuant to IFRS, financial items include:
 
 	•	 	financial or interest expense on borrowed funds;	
 
 	•	 	financial income on cash and cash equivalents;	
 
 	•	 	changes in the fair value resulting from the valuation of financial instruments, including derivative instruments and marketable securities;	
 
 	•	 	foreign exchange gains or losses associated with monetary assets and liabilities denominated in foreign currencies; and	
 
 	•	 	accretion result from assets and liabilities and others.	

 	  	Year Ended December 31,	 	 	
 	  	2012	 	 	2013	 	 	 	
 	  	(in millions of Mexican Pesos)	 	 	 	
Financial items:	  	 	 	 	 	 	 	 	 	 	
Financial expense	  	 	Ps(18,511	) 	 	 	Ps(19,937	) 	 	 	
Other financial income (expense), net:	  	 	 	 	 	 	 	 	 	 	
Financial income	  	 	620	 	 	 	424	 	 	 	
Results from financial instruments	  	 	178	 	 	 	2,075	 	 	 	
Foreign exchange results	  	 	1,142	 	 	 	57	 	 	 	
Effects of net present value on assets and liabilities and others, net	  	 	(963	) 	 	 	(850	) 	 	 	
 	  	 	 	 	 	 	 	 	 	 	
 	  	 	Ps(17,534	) 	 	 	Ps(18,231	) 	 	 	

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Our financial items in 2013, which comprises financial expense and other financial (expense) income, net, as reported in our statements of operations, increased 4% from a loss of approximately Ps17.5 billion in 2012 to a loss of approximately Ps18.2 billion in 2013. The components of the change are shown above.
Our financial expense increased approximately 8%, from approximately Ps18.5 billion in 2012 to approximately Ps19.9 billion in 2013, primarily attributable to our liability management activities, through which we replaced debt with shorter term maturities with mostly fixed coupon bonds of longer term maturities.
Our other financial income (expense), net, comprises our financial income which decreased approximately 32%, from Ps620 million in 2012 to Ps424 million in 2013. Our result from financial instruments increased significantly from a gain of approximately Ps178 million in 2012 to a gain of approximately Ps2,075 million in 2013, primarily attributable to valuations of equity derivatives related to shares of CEMEX, S.A.B. de C.V. Our foreign exchange result decreased significantly, from a gain of approximately Ps1.1 billion in 2012 to a gain of approximately Ps57 million in 2013. The decrease was primarily attributable to the depreciation of the Mexican Peso and Euro against the U.S. Dollar. The accretion expense, which represents the effects on our net assets and liabilities recognized at amortized cost due to the passage of time, decreased by approximately 12% from an expense of approximately Ps963 million in 2012 to an expense of Ps850 million in 2013.
Derivative Financial Instruments. For the years ended December 31, 2012 and 2013, our derivative financial instruments that had a potential impact on our other financial income (expense) consisted of equity forward contracts, a forward instrument over the Total Return Index of the Mexican Stock Exchange, interest rate derivatives related to energy projects, conversion options embedded in the 2010 Optional Convertible Subordinated Notes and the 2011 Optional Convertible Subordinated Notes until December 31, 2012 and since then, the conversion option embedded in the Mandatory Convertible Securities, as discussed in note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report.
For the year ended December 31, 2013, our gain from our financial instruments increased significantly for the reasons described above. See “—Liquidity and Capital Resources—Our Equity Forward Arrangements.”
Income Taxes. Our income tax effect in the statement of operations, which is primarily comprised of current income taxes plus deferred income taxes, increased approximately 3% from an expense of approximately Ps6.0 billion in 2012 to an expense of Ps6.2 billion in 2013.
The increase in the income tax expense is mainly attributable to our current income tax expense, which decreased from an income of approximately Ps6.2 billion in 2012 to an expense of approximately Ps14.2 billion in 2013, resulting primarily from the income tax expense generated by the new rules enacted for the disconnection of the tax consolidation regime in Mexico.
Our deferred tax expense decreased from an expense of approximately Ps12.2 billion in 2012 to an income of approximately Ps8.0 billion in 2013. Our deferred tax benefit was primarily attributable to the recognition of certain deferred tax assets associated with tax loss carryforwards considering new projections of estimated taxable income in our Mexican operations. See note 19B and 19D to our 2013 audited consolidated financial statements included elsewhere in this annual report.
For each of the years ended December 31, 2012 and 2013, our approximate statutory income tax rate was 30%. Our effective tax rate in 2012 resulted in a negative tax rate of 114.1%, considering a loss before income tax of approximately Ps5.3 billion, while our effective tax rate in 2013 resulted in a negative tax rate of 182.6%, considering a loss before income tax of approximately Ps3.4 billion. See “Item 3—Key Information—Risk Factors—Certain Mexican tax matters may have an adverse effect on our cash flow, financial condition and net income.”
Consolidated Net Loss. For the reasons described above, our consolidated net loss (before deducting the portion allocable to non-controlling interest) for 2013 decreased 15%, from a consolidated net loss of approximately Ps11.3 billion in 2012 to a consolidated net loss of approximately Ps9.6 billion in 2013.
 
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Non-controlling Interest Net Income. Changes in non-controlling interest net income in any period reflect changes in the percentage of the stock of our subsidiaries held by non-associated third parties as of the end of each month during the relevant period and the consolidated net loss attributable to those subsidiaries. Non-controlling interest net gain increased, from Ps662 million in 2012 to Ps1,223 million in 2013, primarily attributable to the net income of the consolidated entities in which others have a non-controlling interest, mainly those related with CEMEX Latam Offering.
Controlling Interest Net Loss. Controlling interest net loss represents the difference between our consolidated net loss and non-controlling interest net income, which is the portion of our consolidated net loss attributable to those of our subsidiaries in which non-associated third parties hold interests. Controlling interest net loss decreased 10%, from a net loss of approximately Ps12.0 billion in 2012 to a controlling interest net loss of approximately Ps10.8 billion in 2013.
Year Ended December 31, 2012 Compared to Year Ended December 31, 2011
Summarized in the table below are the percentage (%) increases (+) and decreases (-) for the year ended December 31, 2012 compared to the year ended December 31, 2011 in our domestic cement and ready-mix concrete sales volumes, as well as export sales volumes of cement and domestic cement and ready-mix concrete average prices for each of our geographic segments. The table below and the other volume data presented by geographic segment in this “—Selected Consolidated Statement of Operations Data” section are presented before eliminations resulting from consolidation (including those shown on note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report).

 	  	Domestic Sales
Volumes	 	 	Export Sales
Volumes	 	 	Average Domestic Prices in
Local Currency(1)	 	
Geographic Segment	  	Cement	 	 	Ready-Mix
Concrete	 	 	Cement	 	 	Cement	 	 	Ready-Mix
Concrete	 	
Mexico	  	 	-1	% 	 	 	-2	% 	 	 	+62	% 	 	 	+3	% 	 	 	+5	% 	
United States	  	 	+14	% 	 	 	+20	% 	 	 	—  	  	 	 	+1	% 	 	 	+4	% 	
Northern Europe	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	  	 	-7	% 	 	 	-12	% 	 	 	—  	  	 	 	+3	% 	 	 	+2	% 	
Germany	  	 	-10	% 	 	 	-5	% 	 	 	—  	  	 	 	+3	% 	 	 	+1	% 	
France	  	 	N/A	  	 	 	-5	% 	 	 	—  	  	 	 	N/A	  	 	 	+2	% 	
Rest of Northern Europe(2)	  	 	-18	% 	 	 	-10	% 	 	 	—  	  	 	 	-9	% 	 	 	-9	% 	
The Mediterranean	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	  	 	-40	% 	 	 	-43	% 	 	 	-21	% 	 	 	+2	% 	 	 	+3	% 	
Egypt	  	 	-10	% 	 	 	+2	% 	 	 	—  	  	 	 	-2	% 	 	 	-11	% 	
Rest of the Mediterranean(3)	  	 	-17	% 	 	 	+2	% 	 	 	—  	  	 	 	-5	% 	 	 	-1	% 	
SAC	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	  	 	+5	% 	 	 	+14	% 	 	 	—  	  	 	 	+19	% 	 	 	+20	% 	
Rest of SAC(4)	  	 	+7	% 	 	 	-4	% 	 	 	—  	  	 	 	+2	% 	 	 	+9	% 	
Asia	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	  	 	+15	% 	 	 	—  	  	 	 	-92	% 	 	 	+7	% 	 	 	—  	  	
Rest of Asia(5)	  	 	+3	% 	 	 	-18	% 	 	 	—  	  	 	 	+3	% 	 	 	Flat	  	
 
“—” = Not Applicable
 
(1)	Represents the average change in domestic cement and ready-mix concrete prices in local currency terms. For purposes of a geographic segment consisting of a region, the average prices in local currency terms for each individual country within the region are first translated into U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which is translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the weighted average change of prices in U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which represent the weighted average change of prices in Euros) based on total sales volumes in the region.	
 
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(2)	Refers primarily to operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland.	
(3)	Includes mainly the operations in Croatia, the UAE and Israel.	
(4)	Includes the operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala, and small ready-mix concrete operations Argentina.	
(5)	Includes primarily our operations in Thailand, Bangladesh, China and Malaysia.	
On a consolidated basis, our cement sales volumes decreased approximately 1%, from 66.8 million tons in 2011 to 65.8 million tons in 2012, and our ready-mix concrete sales volumes remained flat at 54.9 million cubic meters in each of 2011 and 2012. Our net sales increased approximately 4%, from Ps189.9 billion in 2011 to Ps197.0 billion in 2012, and our operating earnings before other expenses, net increased approximately 43%, from Ps11.8 billion in 2011 to Ps17.0 billion in 2012.
The following tables present selected financial information of net sales and operating earnings before other expenses, net for each of our geographic segments for the years ended December 31, 2012 and 2011. The net sales information in the table below is presented before eliminations resulting from consolidation (including those shown on note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report). Variations in net sales determined on the basis of Mexican Pesos include the appreciation or depreciation which occurred during the period between the local currencies of the countries in the regions vis-à-vis the Mexican Peso; therefore, such variations differ substantially from those based solely on the countries’ local currencies:

Geographic Segment	  	Variation
in Local
Currency(1)	 	 	Approximate
Currency
Fluctuations,
Net of Inflation
Effects	 	 	Variations
in Mexican
Pesos	 	 	Net Sales
For the Year Ended
December 31,	 	 	
 	  	 	 	 	 	 	 	 	 	 	2011	 	 	2012	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	(in millions of Mexican Pesos)	 	 	 	 	 	 	 	 	 	
Mexico	  	 	+2	% 	 	 	—  	  	 	 	+2	% 	 	 	Ps 43,361	  	 	 	Ps44,412	  	 	 	 	 	 	 	 	 	
United States	  	 	+17	% 	 	 	+6	% 	 	 	+23	% 	 	 	32,759	  	 	 	40,319	  	 	 	 	 	 	 	 	 	
Northern Europe	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	  	 	-12	% 	 	 	+5	% 	 	 	-7	% 	 	 	15,757	  	 	 	14,620	  	 	 	 	 	 	 	 	 	
Germany	  	 	-7	% 	 	 	-3	% 	 	 	-10	% 	 	 	15,975	  	 	 	14,406	  	 	 	 	 	 	 	 	 	
France	  	 	-4	% 	 	 	-2	% 	 	 	-6	% 	 	 	14,170	  	 	 	13,324	  	 	 	 	 	 	 	 	 	
Rest of Northern Europe(2)	  	 	-9	% 	 	 	-2	% 	 	 	-11	% 	 	 	14,278	  	 	 	12,778	  	 	 	 	 	 	 	 	 	
The Mediterranean	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	  	 	-31	% 	 	 	-1	% 	 	 	-32	% 	 	 	7,142	  	 	 	4,841	  	 	 	 	 	 	 	 	 	
Egypt	  	 	-8	% 	 	 	+6	% 	 	 	-2	% 	 	 	6,516	  	 	 	6,382	  	 	 	 	 	 	 	 	 	
Rest of the Mediterranean(3)	  	 	Flat	  	 	 	+5	% 	 	 	+5	% 	 	 	7,762	  	 	 	8,160	  	 	 	 	 	 	 	 	 	
SAC	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	  	 	+29	% 	 	 	+11	% 	 	 	+40	% 	 	 	8,533	  	 	 	11,932	  	 	 	 	 	 	 	 	 	
Rest of SAC(4)	  	 	+11	% 	 	 	—  	  	 	 	+11	% 	 	 	14,852	  	 	 	16,450	  	 	 	 	 	 	 	 	 	
Asia	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	  	 	+17	% 	 	 	+10	% 	 	 	+27	% 	 	 	3,701	  	 	 	4,704	  	 	 	 	 	 	 	 	 	
Rest of Asia(5)	  	 	-11	% 	 	 	+5	% 	 	 	-6	% 	 	 	2,597	  	 	 	2,430	  	 	 	 	 	 	 	 	 	
Others(6)	  	 	-17	% 	 	 	+19	% 	 	 	+2	% 	 	 	14,857	  	 	 	15,154	  	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net sales before eliminations	  	 	 	 	 	 	 	 	 	 	+4	% 	 	 	Ps202,260	  	 	 
 	Ps
209,912	  
  	 	 	 	 	 	 	 	 	
Eliminations from consolidation	  	 	 	 	 	 	 	 	 	 	 	 	 	 	(12,373	) 	 	 	(12,876	) 	 	 	 	 	 	 	 	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated net sales	  	 	 	 	 	 	 	 	 	 	+4	% 	 	 	Ps189,887	  	 	 	Ps197,036	  	 	 	 	 	 	 	 	 	

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Geographic Segment	 	Variations
in Local
Currency(1)	 	 	Approximate
Currency
Fluctuations,
Net of Inflation
Effects	 	 	Variations
in Mexican
Pesos	 	 	Operating Earnings (Loss)
Before Other Expenses, Net
For the Year Ended
December 31,	 	 	
 	 	 	 	 	 	 	 	 	 	 	2011	 	 	2012	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	(in millions of Mexican Pesos)	 	 	 	 	 	 	 	 	 	
Mexico	 	 	+4	% 	 	 	—  	  	 	 	+4	% 	 	 	Ps12,934	  	 	 	Ps13,403	  	 	 	 	 	 	 	 	 	
United States	 	 	+31	% 	 	 	-8	% 	 	 	+23	% 	 	 	(7,920	) 	 	 	(6,059	) 	 	 	 	 	 	 	 	 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	+695	% 	 	 	+27	% 	 	 	+722	% 	 	 	(147	) 	 	 	914	  	 	 	 	 	 	 	 	 	
Germany	 	 	-262	% 	 	 	+4	% 	 	 	-258	% 	 	 	197	  	 	 	(311	) 	 	 	 	 	 	 	 	 	
France	 	 	-27	% 	 	 	-1	% 	 	 	-28	% 	 	 	1,054	  	 	 	759	  	 	 	 	 	 	 	 	 	
Rest of Northern Europe(2)	 	 	+41	% 	 	 	-4	% 	 	 	+37	% 	 	 	640	  	 	 	879	  	 	 	 	 	 	 	 	 	
The Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	-26	% 	 	 	—  	  	 	 	-26	% 	 	 	894	  	 	 	659	  	 	 	 	 	 	 	 	 	
Egypt	 	 	-18	% 	 	 	-3	% 	 	 	-21	% 	 	 	2,422	  	 	 	1,917	  	 	 	 	 	 	 	 	 	
Rest of the Mediterranean(3)	 	 	+4	% 	 	 	+8	% 	 	 	+12	% 	 	 	681	  	 	 	762	  	 	 	 	 	 	 	 	 	
SAC	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	+68	% 	 	 	+8	% 	 	 	+76	% 	 	 	2,568	  	 	 	4,509	  	 	 	 	 	 	 	 	 	
Rest of SAC(4)	 	 	+39	% 	 	 	-16	% 	 	 	+23	% 	 	 	2,966	  	 	 	3,656	  	 	 	 	 	 	 	 	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	+35	% 	 	 	+31	% 	 	 	+66	% 	 	 	358	  	 	 	596	  	 	 	 	 	 	 	 	 	
Rest of Asia(5)	 	 	-46	% 	 	 	+15	% 	 	 	-31	% 	 	 	51	  	 	 	35	  	 	 	 	 	 	 	 	 	
Others(6)	 	 	-17	% 	 	 	+19	% 	 	 	+2	% 	 	 	(4,836	) 	 	 	(4,718	) 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating earnings before other expenses, net	 	 	 	 	 	 	 	 	 	 	+43	% 	 	 	Ps11,862	  	 	 	Ps17,001	  	 	 	 	 	 	 	 	 	

“—” = Not Applicable
 
(1)	Represents the average change in domestic cement and ready-mix concrete prices in local currency terms. For purposes of a geographic segment consisting of a region, the average prices in local currency terms for each individual country within the region are first translated into U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which is translated first into Euros) at the exchange rates in effect as of the end of the reporting period. Variations for a region represent the weighted average change of prices in U.S. Dollar terms (except for the Rest of Northern Europe and the Rest of the Mediterranean regions, which represent the weighted average change of prices in Euros) based on total sales volumes in the region.	
(2)	Refers primarily to operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland.	
(3)	Includes mainly the operations in Croatia, the UAE and Israel.	
(4)	Includes the operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala, and small ready-mix concrete operations Argentina.	
(5)	Includes primarily our operations in Thailand, Bangladesh, China and Malaysia.	
(6)	Our Others segment refers to: (i) cement trade maritime operations, (ii) our information technology solutions business (Neoris N.V.), (iii) CEMEX, S.A.B. de C.V. and other corporate entities and (iv) other minor subsidiaries with different lines of business.	
Net sales. Our consolidated net sales increased approximately 4%, from Ps189.9 billion in 2011 to Ps197.0 billion in 2012. The increase was primarily attributable to higher prices in local currency terms in most of our regions, and the favorable effect of foreign exchange fluctuations to the Mexican Peso, partially mitigated by lower volumes from our operations in the Northern Europe and the Mediterranean regions. Set forth below is a quantitative and qualitative analysis of the various factors affecting our net sales on a geographic segment basis. The discussion of volume data and net sales information below are presented before eliminations resulting from consolidation (including those shown on note 4 to our 2013 audited consolidated financial statements included elsewhere in this annual report).
 
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Mexico
Our domestic cement sales volumes from our operations in Mexico decreased approximately 1% in 2012 compared to 2011, and ready-mix concrete sales volumes decreased approximately 2% over the same period. Our net sales from our operations in Mexico represented approximately 21% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. The decreases in domestic cement and ready-mix concrete sales volumes were primarily attributable to homebuilder’s working capital financing constraints, high levels of inventories and a decline in remittances, resulting in lower demand in the residential sector. In addition, private consumption and manufacturing activity were the main drivers of the demand in the industrial and commercial sector. Our cement export volumes of our operations in Mexico, which represented approximately 6% of our Mexican cement sales volumes for the year ended December 31, 2012, increased approximately 62% in 2012 compared to 2011, primarily as a result of higher export volumes to South America, Central America and the Caribbean. Of our total cement export volumes from our operations in Mexico during 2012, approximately 17% was shipped to the United States, 31% to Central America and the Caribbean and 52% to South America. Our average sales price of domestic cement from our operations in Mexico increased approximately 3%, in Mexican Peso terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 5%, in Mexican Peso terms, over the same period. For the year ended December 31, 2012, cement represented approximately 53%, ready-mix concrete approximately 24% and our aggregates and other businesses approximately 23% of our net sales from our operations in Mexico before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes, offset by the increases in domestic cement and ready-mix concrete average sales prices, our net sales in Mexico, in Mexican Peso terms, increased approximately 2% in 2012 compared to 2011.
United States
Our domestic cement sales volumes from our operations in the United States, which include cement purchased from our other operations, increased approximately 14% in 2012 compared to 2011, and ready-mix concrete sales volumes increased approximately 20% over the same period. The increases in domestic cement and ready-mix concrete sales volumes of our operations in the U.S. resulted primarily from improved demand from most of our markets. Low interest rates, affordability of housing at a record high and a return to low levels of inventories led to higher activity in the residential sector. In addition, demand from the industrial and commercial sector was strong during the year, while demand from the infrastructure structure improved marginally. Our operations in the United States represented approximately 19% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement of our operations in the United States increased approximately 1%, in U.S. Dollar terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 4%, in U.S. Dollar terms, over the same period. For the year ended December 31, 2012, cement represented approximately 28%, ready-mix concrete approximately 33% and our aggregates and other businesses approximately 39% of net sales from our operations in the United States before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement and ready-mix concrete sales volumes and average sale prices, net sales from our operations in the United States, in U.S. Dollar terms, increased approximately 17% in 2012 compared to 2011.
Northern Europe
In 2012, our operations in the Northern Europe region consisted of our operations in the United Kingdom, Germany and France, which represent the most significant operations in this region, in addition to our Rest of Northern Europe segment, which refers primarily to our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland. Our net sales from our
 
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operations in the Northern Europe region represented approximately 26% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2012, our operations in the Northern Europe region represented approximately 15% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the Northern Europe region.
United Kingdom
Our domestic cement sales volumes from our operations in the United Kingdom decreased approximately 7% in 2012 compared to 2011, and ready-mix concrete sales volumes decreased approximately 12% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes resulted primarily from the economic recession and cuts in public spending, which led to lower construction levels. In addition, limited credit availability restricted the activity in the residential sector, while the performance of the industrial and commercial sector remained weak. Our operations in the United Kingdom represented approximately 7% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the United Kingdom increased approximately 3%, in Pound terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 2%, in Pound terms, over the same period. For the year ended December 31, 2012, cement represented approximately 16%, ready-mix concrete approximately 26% and our aggregates and other businesses approximately 58% of net sales from our operations in the United Kingdom before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes, partially offset by the increases in domestic cement and ready-mix concrete average sales prices, net sales from our operations in the United Kingdom, in Pound terms, decreased approximately 12% in 2012 compared to 2011.
Germany
Our domestic cement sales volumes from our operations in Germany decreased approximately 10% in 2012 compared to 2011, and ready-mix concrete sales volumes in those operations decreased approximately 5% over the same period. The decrease in domestic cement and ready-mix concrete sales volumes resulted primarily from a slowdown in the economy. Demand for building materials during 2012 was driven by the residential sector, which maintained favorable momentum with low mortgage rates and low levels of unemployment. Meanwhile, a reduction in government spending negatively affected the infrastructure sector, while bottlenecks in the construction industry and adverse weather conditions continued to restrict construction work and increased the backlog of projects. Our operations in Germany represented approximately 7% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Germany increased approximately 3%, in Euro terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 1%, in Euro terms, over the same period. For the year ended December 31, 2012, cement represented approximately 25%, ready-mix concrete approximately 35% and our aggregates and other businesses approximately 40% of net sales from our operations in Germany before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes, partially offset by the increases in domestic cement and ready-mix concrete average sales prices, net sales from our operations in Germany, in Euro terms, decreased approximately 7% in 2012 compared to 2011.
France
Our ready-mix concrete sales volumes from our operations in France decreased approximately 5% in 2012 compared to 2011. The decrease in ready-mix concrete sales volumes resulted primarily from a decline in demand in the residential sector that was mainly attributable to the elimination of tax incentives and limited
 
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credit availability. Despite deteriorated market conditions, the residential sector continued to be the main driver of consumption. Our operations in France represented approximately 6% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of ready-mix concrete of our operations in France increased approximately 2%, in Euro terms, in 2012 compared to 2011. For the year ended December 31, 2012, ready-mix concrete represented approximately 72% and our aggregates and other businesses approximately 28% of net sales from our operations in France before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decrease in ready-mix concrete sales volumes, partially offset by the increase in ready-mix concrete average sales price, net sales from our operations in France, in Euro terms, decreased approximately 4% in 2012 compared to 2011.
Rest of Northern Europe
In 2012, our operations in our Rest of Northern Europe segment consisted primarily of our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland. Our domestic cement sales volumes of our operations in our Rest of Northern Europe segment decreased approximately 18% in 2012 compared to 2011, and ready-mix concrete sales volumes decreased approximately 10% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes resulted primarily from harsh weather conditions and a slowdown of the economy, which led to low levels of investment and consumption. Our net sales from our operations in our Rest of Northern Europe segment represented approximately 6% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of Northern Europe segment decreased approximately 9%, in Euro terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete decreased approximately 9%, in Euro terms, over the same period. For the year ended December 31, 2012, cement represented approximately 36%, ready-mix concrete approximately 43% and our aggregates and other businesses approximately 21% of net sales from our operations in our Rest of Northern Europe segment before intra-sector eliminations within the segment and before eliminations resulting from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes and average sales prices, net sales in our Rest of Northern Europe segment, in Euro terms, decreased approximately 9% in 2012 compared to 2011.
The Mediterranean
In 2012, our operations in the Mediterranean region consisted of our operations in Spain and Egypt, which represent the most significant operations in this region, in addition to our Rest of the Mediterranean segment, which includes mainly our operations in Croatia, the UAE and Israel. Our net sales from our operations in the Mediterranean region represented approximately 9% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2012, our operations in the Mediterranean region represented approximately 8% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the Mediterranean region.
Spain
Our domestic cement sales volumes from our operations in Spain decreased approximately 40% in 2012 compared to 2011, while ready-mix concrete sales volumes decreased approximately 43% over the same period. The decreases in domestic cement and ready-mix concrete sales volumes resulted primarily from the adverse economic conditions. The performance of the residential sector remained negatively affected by high inventories and limited credit availability. In addition, continued fiscal austerity measures resulted in very low levels of
 
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infrastructure spending. Our operations in Spain represented approximately 2% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our cement export volumes of our operations in Spain, which represented approximately 43% of our Spain cement sales volumes for the year ended December 31, 2012, decreased approximately 21% in 2012 compared to 2011, primarily as a result of lower export volumes to Africa and Europe. Of our total cement export volumes of our operations in Spain during 2012, approximately 26% was shipped to Europe and the Middle East, approximately 3% to Central America and the Caribbean and approximately 71% to Africa. Our average sales price of domestic cement of our operations in Spain increased approximately 2%, in Euro terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 3%, in Euro terms, over the same period. For the year ended December 31, 2012, cement represented approximately 70%, ready-mix concrete approximately 18% and our aggregates and other businesses approximately 12% of net sales from our operations in Spain before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement and ready-mix concrete sales volumes, partially offset by the increases in domestic cement and ready-mix concrete average sales prices, net sales from our operations in Spain, in Euro terms, decreased approximately 31% in 2012 compared to 2011.
Egypt
Our domestic cement sales volumes from our operations in Egypt decreased approximately 10% in 2012 compared to 2011, while ready-mix concrete sales volumes increased approximately 2% over the same period. The decrease in domestic cement sales volumes resulted primarily from decreased infrastructure spending, while the informal residential sector continued to be the main driver of demand. An effort from developers to complete unfinished projects increased the activity in the residential sector during the second half of the year; however, investments in projects in the infrastructure sector remained on hold. Our net sales from our operations in Egypt represented approximately 3% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms. Our average sales price of domestic cement of our operations in Egypt decreased by approximately 2%, in Egyptian pound terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete decreased approximately 11%, in Egyptian pound terms, over the same period. For the year ended December 31, 2012, cement represented approximately 84%, ready-mix concrete approximately 7% and our aggregates and other businesses approximately 9% of net sales from our operations in Egypt before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the decreases in domestic cement sales volumes and domestic cement and ready-mix concrete average sales prices, partially offset by the increase in ready-mix concrete sales volumes, our net sales in Egypt, in Egyptian pound terms, decreased approximately 8% in 2012 compared to 2011.
Rest of the Mediterranean
In 2012, our operations in our Rest of the Mediterranean segment consisted mainly of our operations in Croatia, the UAE and Israel. Our domestic cement sales volumes of our operations in our Rest of the Mediterranean segment decreased approximately 17% in 2012 compared to 2011, and ready-mix concrete sales volumes increased approximately 2% over the same period. The decrease in domestic cement sales volumes resulted primarily from lower construction levels due to cuts in public spending, adverse weather conditions and lower internal consumption. Our net sales from our operations in our Rest of the Mediterranean segment represented approximately 4% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of the Mediterranean decreased approximately 5%, in U.S. Dollar terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete decreased approximately 1%, in U.S. Dollar terms, over the same period. For the year ended December 31, 2012, cement represented approximately 21%, ready-mix concrete approximately 55% and our aggregates and other businesses
 
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approximately 24% of our net sales from our operations in our Rest of the Mediterranean segment before intra-sector eliminations within the segment and before eliminations resulting from consolidation, as applicable.
As a result of the decreases in domestic cement sales volumes and domestic cement and ready-mix concrete average sales prices, offset by the increase in ready-mix concrete sales volumes, net sales in our Rest of the Mediterranean segment, in U.S. Dollar terms, remained flat in 2012 compared to 2011.
South America and the Caribbean
In 2012, our operations in the South America and the Caribbean region consisted of our operations in Colombia, which represents the most significant operation in this region, in addition to our Rest of South America and the Caribbean segment, which includes our operations in Costa Rica, Guatemala, Panama, Nicaragua, Puerto Rico, the Dominican Republic, Jamaica and other countries in the Caribbean, as well as small ready-mix concrete operations in Argentina. Some of these trading operations in the Caribbean region consist of the resale of cement produced by our operations in Mexico. Our net sales from our operations in the South America and the Caribbean region represented approximately 14% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2012, our operations in the South America and the Caribbean region represented approximately 7% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the South America and the Caribbean region.
Colombia
Our domestic cement volumes from our operations in Colombia increased approximately 5% in 2012 compared to 2011, and ready-mix concrete sales volumes increased approximately 14% over the same period. The increases in domestic cement and ready-mix concrete sales volumes resulted primarily from higher infrastructure sector activity, which benefited from ongoing projects and the initiation of new road projects towards the end of the year. The residential sector showed signs of recovery, mainly in low income housing due to the start of a support government program. In addition, higher confidence levels and favorable expectations for new trade agreements resulted in increased investment levels, primarily in warehouses and commercial buildings, which improved the performance of the industrial and commercial sector. Our net sales from our operations in Colombia represented approximately 6% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in Colombia increased approximately 19%, in Colombian Peso terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 20%, in Colombian Peso terms, over the same period. For the year ended December 31, 2012, cement represented approximately 58%, ready-mix concrete approximately 27% and our aggregates and other businesses approximately 15% of our net sales from our operations in Colombia before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement and ready-mix concrete sales volumes and average sales prices, net sales from our operations in Colombia, in Colombian Peso terms, increased approximately 29% in 2012 compared to 2011.
Rest of South America and the Caribbean
For the year ended December 31, 2012, our operations in our Rest of South America and the Caribbean segment included our operations in Costa Rica, Guatemala, Panama, Nicaragua, Puerto Rico, the Dominican Republic, Jamaica and other countries in the Caribbean, and small ready-mix concrete operations in Argentina. Our domestic cement volumes from our operations in our Rest of South America and the Caribbean segment increased approximately 7% in 2012 compared to 2011, and ready-mix concrete sales volumes decreased approximately 4% over the same period. This resulted primarily from new infrastructure and commercial
 
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projects, mainly in Panama and Costa Rica, offset by the completion of infrastructure projects in the Dominican Republic and Nicaragua. Our net sales from our operations in our Rest of South America and the Caribbean segment represented approximately 8% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of South America and the Caribbean segment increased approximately 2%, in U.S. Dollar terms, in 2012 compared to 2011, and our average sales price of ready-mix concrete increased approximately 9%, in U.S. Dollar terms, over the same period. For the year ended December 31, 2012, cement represented approximately 73%, ready-mix concrete approximately 19% and our other businesses approximately 8% of net from our operations in our Rest of South America and the Caribbean segment before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement volumes and domestic cement and ready-mix concrete average sales prices, partially offset by the decrease in ready-mix concrete sales volumes, net sales from our operations in our Rest of South America and the Caribbean segment, in U.S. Dollar terms, increased approximately 11% in 2012 compared to 2011.
Asia
For the year ended December 31, 2012, our operations in the Asia region consisted of our operations in the Philippines, which represent the most significant operation in this region, in addition to our Rest of Asia segment, which includes our operations in Malaysia, Thailand, Bangladesh and China. Our net sales from our operations in the Asia region represented approximately 3% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. As of December 31, 2012, our operations in the Asia region represented approximately 3% of our total assets. Set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our net sales for our main operations in the Asia region.
The Philippines
Our domestic cement volumes from our operations in the Philippines increased approximately 15% in 2012 compared to 2011. The increase in domestic cement sales volumes resulted primarily from the increase in public and private spending activities. Stable levels of inflation and mortgage rates, as well as inflows from remittances, contributed to the growth in the residential sector. In addition, the industrial and commercial sector continued to grow during the same period. Our net sales from our operations in the Philippines represented approximately 2% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in the Philippines increased approximately 7%, in Philippine Peso terms, in 2012 compared to 2011. For the year ended December 31, 2012, cement represented approximately 100% of our net sales from our operations in the Philippines before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in domestic cement sales volumes and average sales price, net sales from our operations in the Philippines, in Philippine Peso terms, increased approximately 17% in 2012 compared to 2011.
Rest of Asia
For the year ended December 31, 2012, our operations in our Rest of Asia segment included our operations in Malaysia, Thailand, Bangladesh and China. Our domestic cement volumes from our operations in our Rest of Asia segment increased approximately 3% in 2012 compared to 2011, and ready-mix concrete sales volumes decreased approximately 18% over the same period resulted primarily from a decline in all of our markets mainly in China. Our net sales from our operations in our Rest of Asia segment represented approximately 1% of our total net sales for the year ended December 31, 2012, in Mexican Peso terms, before eliminations resulting from consolidation. Our average sales price of domestic cement from our operations in our Rest of Asia segment
 
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increased approximately 3%, in U.S. Dollar terms, in 2012 compared to 2011, and the average sales price of ready-mix concrete remained flat, in U.S. Dollar terms, over the same period. For the year ended December 31, 2012, cement represented approximately 39%, ready-mix concrete approximately 53% and our other businesses approximately 8% of net sales from our operations in our Rest of Asia segment before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable.
As a result of the increases in our domestic cement sales volumes and domestic cement average sales price, offset by the decrease in ready-mix concrete sales volumes, net sales from our operations in our Rest of Asia segment, in U.S. Dollar terms, decreased approximately 11% in 2012 compared to 2011.
Others
Our Others segment refers to: (i) cement trade maritime operations, (ii) our information technology solutions business (Neoris N.V.), (iii) CEMEX, S.A.B. de C.V. and other corporate entities and (iv) other minor subsidiaries with different lines of business. Net sales from our Others segment decreased approximately 17% before intra-sector eliminations within the segment and before eliminations from consolidation, as applicable, in 2012 compared to 2011, in U.S. Dollar terms, primarily as a result of a decrease in worldwide cement volumes and a decrease in our other business, such as transport, public works, and coating and surfacing operations, partially offset by an increase in cement average sale price. For the year ended December 31, 2012, our trading operations’ net sales represented approximately 37% and our information technology solutions company 21% of our Others segment’s net sales.
Cost of Sales. Our cost of sales, including depreciation, increased approximately 2%, from Ps136.2 billion in 2011 to Ps138.7 billion in 2012, primarily due to higher electric power and raw material costs. As a percentage of net sales, cost of sales decreased from 71.7% in 2011 to 70.4% in 2012, mainly as a result of savings from our cost reduction initiatives and lower fuel costs. In our cement and aggregates business, we have several producing plants and many selling points. Our cost of sales includes freight expenses of raw materials used in our producing plants. However, our costs of sales excludes (i) expenses related to personnel and equipment comprising our selling network and those expenses related to warehousing at the points of sale, which were included as part of our administrative and selling expenses line item in the amount of approximately Ps8.1 billion in 2011 and Ps7.9 billion in 2012; and (ii) freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations, which were included as part of our distribution expenses line item (except for distribution or delivery expenses related to our ready-mix concrete business, which are included in our cost of sales), and which, for the years ended December 31, 2011 and 2012, represented Ps16.2 billion and Ps17.6 billion, respectively.
Gross Profit. For the reasons explained above, our gross profit increased approximately 9%, from approximately Ps53.7 billion in 2011 to approximately Ps58.3 billion in 2012. As a percentage of net sales, gross profit increased from approximately 28.3% in 2011 to 29.6% in 2012. In addition, our gross profit may not be directly comparable to those of other entities that include all their freight expenses in cost of sales. As described above, we include freight expenses of finished products from our producing plants to our points of sale and from our points of sale to our customers’ locations within distribution expenses, which in aggregate represented costs of approximately Ps16.2 billion in 2011 and approximately Ps17.6 billion in 2012.
Operating Earnings Before Other Expenses, Net. For the reasons mentioned above, our operating earnings before other expenses, net increased approximately 43%, from approximately Ps11.9 billion in 2011 to approximately Ps17.0 billion in 2012. As a percentage of net sales, operating earnings before other expenses, net increased from approximately 6.2% in 2011 to 8.6% in 2012. Additionally, set forth below is a quantitative and qualitative analysis of the effects of the various factors affecting our operating earnings before other expenses, net on a geographic segment basis.
 
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Mexico
Our operating earnings before other expenses, net from our operations in Mexico increased approximately 4%, in Mexican Peso terms, from operating earnings before other expenses, net of approximately Ps12.9 billion in 2011 to operating earnings before other expenses, net of approximately Ps13.4 billion in 2012. The increase resulted primarily from higher domestic cement and ready-mix concrete average sale prices, private consumption and manufacturing activity.
United States
Our operating loss before other expenses, net from our operations in the United States decreased approximately 23%, in Mexican Peso terms, from an operating loss before other expenses, net of approximately Ps7.9 billion in 2011 to an operating loss before other expenses, net of approximately Ps6.1 billion in 2012. The decrease resulted primarily from higher domestic cement and ready-mix concrete sale volumes and average sale prices, driven by the improvement in demand in most of our markets.
Northern Europe
United Kingdom
Our operating loss before other expenses, net from our operations in the United Kingdom decreased significantly, in Mexican Peso terms, from an operating loss before other expenses, net of approximately Ps147 million in 2011 to an operating earnings before other expenses, net of approximately Ps914 million in 2012. The increase resulted primarily from the changes to defined benefits plans, which led to a curtailment event and also affected prior service costs, generating a net gain in the operating results for 2012 of approximately Ps1,914 million (U.S.$146 million).
Germany
Our operating earnings before other expenses, net from our operations in Germany decreased significantly, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps197 million in 2011 to an operating loss before other expenses, net of approximately Ps311 million in 2012. The decrease resulted primarily from lower domestic cement and ready-mix concrete sales volumes caused by a slowdown in the economic environment.
France
Our operating earnings before other expenses, net from our operations in France decreased approximately 28%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps1,054 million in 2011 to an operating earnings before other expenses, net of approximately Ps759 million in 2012. The decrease resulted primarily from lower ready-mix concrete sale volumes caused by the decline in demand in the residential sector.
Rest of Northern Europe
Our operating earnings before other expenses, net from our operations in our Rest of Northern Europe segment increased approximately 37%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps640 million in 2011 to an operating earnings before other expenses, net of approximately Ps879 million in 2012. The increase resulted primarily from production cost reductions in all of our markets in the region.
 
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The Mediterranean
Spain
Our operating earnings before other expenses, net from our operations in Spain decreased approximately 26%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps894 million in 2011 to an operating earnings before other expenses, net of approximately Ps659 million in 2012. The decrease resulted primarily from lower domestic cement and ready-mix concrete sale volumes caused by adverse economic conditions that affected the performance of the residential sector.
Egypt
Our operating earnings before other expenses, net from our operations in Egypt decreased approximately 21%, in Mexican Peso terms, from operating earnings before other expenses, net of approximately Ps2.4 billion in 2011 to operating earnings before other expenses, net of approximately Ps1.9 billion in 2012. The decrease resulted primarily from a decline in domestic cement and ready-mix concrete sale volumes and average sales prices, caused by a decrease in infrastructure spending.
Rest of the Mediterranean
Our operating earnings before other expenses, net from our operations in our Rest of the Mediterranean segment increased approximately 12%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps681 million in 2011 to an operating earnings before other expenses, net of approximately Ps762 million in 2012. The increase resulted primarily from higher domestic cement and ready-mix concrete sale volumes and average sale prices in Israel, as well as production cost reductions in Israel.
South America and the Caribbean
Colombia
Our operating earnings before other expenses, net from our operations in Colombia increased approximately 76%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps2.6 billion in 2011 to an operating earnings before other expenses, net of approximately Ps4.5 billion in 2012. The increase resulted primarily from higher domestic cement and ready-mix sale concrete sale volumes and average sale prices driven by infrastructure sector activity and residential sector recovery.
Rest of South America and the Caribbean
Our operating earnings before other expenses, net from our operations in our Rest of South America and the Caribbean segment increased approximately 23%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps3.0 billion in 2011 to an operating earnings before other expenses, net of approximately Ps3.7 billion in 2012. The increase resulted primarily from higher domestic cement sale volumes and domestic cement and ready-mix sale concrete average sale prices driven by new infrastructure and commercial projects.
Asia
The Philippines
Our operating earnings before other expenses, net from our operations in the Philippines increased approximately 66%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps358 million in 2011 to an operating earnings before other expenses, net of approximately Ps596 million in 2012. The increase resulted primarily from higher domestic cement sale volumes and average sale prices driven by a positive trend in the industrial, commercial and residential sectors.
 
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Rest of Asia
Our operating earnings before other expenses, net from our operations in our Rest of Asia segment decreased approximately 31%, in Mexican Peso terms, from an operating earnings before other expenses, net of approximately Ps51 million in 2011 to an operating earnings before other expenses, net of approximately Ps35 million in 2012. The decrease resulted primarily from a decline in ready-mix-concrete sale volumes partially offset by an increase in domestic cement sale volumes and average sale prices due to the decrease in project contracts and higher production costs in some countries.
Others
Our operating loss before other expenses, net from our operations in our Others segment decreased approximately 2%, in Mexican Peso terms, from an operating loss before other expenses, net of approximately Ps4.8 billion in 2011 to an operating loss before other expenses, net of approximately Ps4.7 billion in 2012. The increase resulted primarily from a decrease in worldwide cement volumes and a decrease in our other business, such as transport, public works, and coating and surfacing operations, partially offset by an increase in cement average sale price.
Other Expenses, Net. Our other expenses, net increased approximately 5%, in Mexican Peso terms, from approximately Ps5.2 billion in 2011 to approximately Ps5.5 billion in 2012. The increase resulted primarily from one-time restructuring costs of approximately Ps1,818 million in connection with a 10-year services agreement with IBM. See note 6 to our 2013 audited consolidated financial statements included elsewhere in this annual report. The increase was partially offset by the net effect of the compensation received as a result of the resolution of our legal proceeding with Strabag (see “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings—Other Legal Proceedings—Strabag Arbitration”) and by a decrease in impairment losses in 2012 compared with 2011.
The most significant items included under this caption for the years ended December 31, 2011 and 2012 are as follows:

 	  	For the Year Ended December 31,	 	
 	  	        2011        	 	 	        2012        	 	
 	  	(in millions of Mexican Pesos)	 	
Impairment losses	  	 	Ps(1,751	) 	 	 	Ps(1,661	) 	
Restructuring costs	  	 	(1,959	) 	 	 	(3,079	) 	
Charitable contributions	  	 	(140	) 	 	 	(100	) 	
Results from sales of assets and others, net	  	 	(1,383	) 	 	 	(650	) 	
 	  	 	 	 	 	 	 	 	
 	  	 	Ps(5,233	) 	 	 	Ps(5,490	) 	
 	  	 	 	 	 	 	 	 	
Financial Items
Pursuant to IFRS, financial items include:
 
 	•	 	financial or interest expense on borrowed funds;	
 
 	•	 	financial income on cash and cash equivalents;	
 
 	•	 	changes in the fair value resulting from the valuation of financial instruments, including derivative instruments and marketable securities;	
 
 	•	 	foreign exchange gains or losses associated with monetary assets and liabilities denominated in foreign currencies; and	
 
 	•	 	accretion result from assets and liabilities and others.	
 
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 	  	For the Year
Ended December 31,	 	
 	  	2011	 	 	2012	 	
 	  	(in millions of Mexican Pesos)	 	
Financial Items:	  	 	 	 	 	 	 	 	
Financial expense	  	 	Ps(16,878	) 	 	 	Ps(18,511	) 	
Other financial (expense) income, net:	  	 	 	 	 	 	 	 	
Financial income	  	 	489	  	 	 	620	  	
Results from financial instruments	  	 	(76	) 	 	 	178	  	
Foreign exchange result	  	 	(1,919	) 	 	 	1,142	  	
Effects of net present value on assets and liabilities and others, net	  	 	(708	) 	 	 	(963	) 	
 	  	 	 	 	 	 	 	 	
 	  	 	Ps(19,092	) 	 	 	Ps(17,534	) 	
 	  	 	 	 	 	 	 	 	
Our aggregate financial items in 2012, which comprises financial expense and other financial (expense) income, net, as reported in our statements of operations, was a loss of approximately Ps17.5 billion, a decrease from a loss of approximately Ps19.1 billion in 2011. The components of the change are shown above.
Our financial expense increased approximately 10%, from approximately Ps16.9 billion in 2011 to approximately Ps18.5 billion in 2012, primarily attributable to the issuance of fixed rate instruments to prepay debt under 2009 Financial Agreement, including our senior secured notes.
Our other financial (expense) income, net comprises our financial income which increased 27%, from Ps489 million in 2011 to Ps620 million in 2012, primarily attributable to the interest earned from temporary investments. Our loss from our financial instruments decreased significantly from a loss of approximately Ps76 million in 2011 to a gain of approximately Ps178 million in 2012, primarily attributable to the disposal of notes issued by PDVSA (see “—CEMEX Venezuela”) in which CEMEX recognized a net gain of approximately Ps169 million, including the effects recognized within other comprehensive income in prior years, and gains in our investments in private funds, partially offset by a negative valuation of derivatives related to shares of CEMEX, S.A.B. de C.V. Our foreign exchange result increased significantly, from a loss of approximately Ps1.9 billion in 2011 to a gain of approximately Ps1.1 billion in 2012, primarily attributable to the appreciation of the Euro, Mexican Peso and the Colombian Peso against the U.S. Dollar. The accretion expense, which represents the effects on our net assets and liabilities recognized at amortized cost due to the passage of time, increased from an expense of approximately Ps708 million in 2011 to an expense of Ps963 million in 2012.
Derivative Financial Instruments. For the years ended December 31, 2011 and 2012, our derivative financial instruments that had a potential impact on our other financial income (expense) consisted of equity forward contracts, a forward instrument over the Total Return Index of the Mexican Stock Exchange, interest rate derivatives related to energy projects and conversion options embedded in the 2010 Optional Convertible Subordinated Notes and the 2011 Optional Convertible Subordinated Notes, as discussed in note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report.
For the year ended December 31, 2012, our loss from our financial instruments decreased significantly for the reasons described above. See “—Liquidity and Capital Resources—Our Equity Forward Arrangements.”
Income Taxes. Our income tax effect in the statement of operations, which is primarily comprised of current income taxes plus deferred income taxes, decreased from an expense of approximately Ps12.1 billion in 2011 to an expense of Ps6.0 billion in 2012. This decrease is mainly attributable to our current income tax expense, which decreased from an expense of approximately Ps14.3 billion in 2011 to an income of approximately Ps6.2 billion in 2012, resulting primarily from: a) an income tax benefit related to the expiration of the statute of limitations of uncertain tax positions for approximately Ps120 million in 2011 as compared to approximately Ps1,599 million in 2012 and b) an income tax benefit due to the reduction and settlements of uncertain tax
 
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positions of approximately Ps2,634 million in 2011 as compared to Ps18,654 million in 2012, mainly attributed to a decree published by the Mexican authorities that granted an amnesty of certain tax proceedings of up to 80%, and the current situation of the tax uncertainties in Spain that have been re-measured.
Our deferred tax benefit decreased from a benefit of approximately Ps2.2 billion in 2011 to an expense of approximately Ps12.2 billion in 2012. The decrease in our deferred tax benefit was primarily attributable to the cancellation of deferred tax assets associated with tax loss carryforwards in Spain. See note 19 to our 2013 audited consolidated financial statements included elsewhere in this annual report. For each of the years ended December 31, 2011 and 2012, our approximate statutory income tax rate was 30%.
Our effective tax rate in 2011 resulted in a negative tax rate of 94.8%, considering a loss before income tax of approximately Ps12.8 billion, while our effective tax rate in 2012 resulted in a negative tax rate of 114.1%, considering a loss before income tax of approximately Ps5.3 billion. See “Item 3—Key Information—Risk Factors—Certain Mexican tax matters may have an adverse effect on our cash flow, financial condition and net income.”
Consolidated Net Loss. For the reasons described above, our consolidated net loss (before deducting the portion allocable to non-controlling interest) for 2012 decreased 55%, from a consolidated net loss of approximately Ps24.9 billion in 2011 to a consolidated net loss of approximately Ps11.3 billion in 2012.
Non-controlling Interest Net Income. Changes in non-controlling interest net income in any period reflect changes in the percentage of the stock of our subsidiaries held by non-associated third parties as of the end of each month during the relevant period and the consolidated net loss attributable to those subsidiaries. Non-controlling interest net gain increased, from a gain of Ps21 million in 2011 to a gain of Ps662 million in 2012, primarily attributable to the CEMEX Latam Offering, partially offset by our acquisition of the 49% non-controlling interest in an indirect holding company of Global Cement, S.A. during October, 2012 in a private transaction and the 38.8% acquisition of a non-controlling interest in Readymix Investments, an indirect subsidiary of CEMEX España, through a public tender offer commenced on March 12, 2012.
Controlling Interest Net Loss. Controlling interest net loss represents the difference between our consolidated net loss and non-controlling interest net loss, which is the portion of our consolidated net loss attributable to those of our subsidiaries in which non-associated third parties hold interests. Controlling interest net loss decreased 52%, from a net loss of approximately Ps25.0 billion in 2011 to a controlling interest net loss of approximately Ps12.0 billion in 2012.
Liquidity and Capital Resources
Operating Activities
We have satisfied our operating liquidity needs primarily through operations of our subsidiaries and expect to continue to do so for both the short and long-term. Although cash flow from our operations has historically met our overall liquidity needs for operations, servicing debt and funding capital expenditures and acquisitions, our subsidiaries are exposed to risks from changes in foreign currency exchange rates, price and currency controls, interest rates, inflation, governmental spending, social instability and other political, economic and/or social developments in the countries in which we operate, any one of which may materially increase our net loss and reduce cash from operations. Consequently, in order to meet our liquidity needs, we also rely on cost-cutting and operating improvements to optimize capacity utilization and maximize profitability, as well as borrowing under credit facilities, proceeds of debt and equity offerings, and proceeds from asset sales. Our consolidated net cash flows provided by operating activities before interest, coupons on Perpetual Debentures and income taxes paid in cash were approximately Ps23.9 billion in 2011, Ps30.2 billion in 2012 and Ps27.0 billion in 2013. See our statement of cash flows included elsewhere in this annual report. CEMEX management is of the opinion that working capital is sufficient for our present requirements.
 
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Sources and Uses of Cash
Our review of sources and uses of resources below refers to nominal amounts included in our statement of cash flows for 2011, 2012 and 2013.
Our primary sources and uses of cash during the years ended December 31, 2011, 2012 and 2013 were as follows:

 	  	For the year ended December 31,	 	
 	  	2011	 	 	2012	 	 	2013	 	
 	  	(in millions of Mexican Pesos)	 	
Operating Activities	  	 	 	 	 	 	 	 	 	 	 	 	
Consolidated net loss	  	 	(24,932	) 	 	 	(11,338	) 	 	 	(9,611	) 	
Non-cash items	  	 	49,601	  	 	 	43,608	  	 	 	40,738	  	
Changes in working capital, excluding income taxes	  	 	(727	) 	 	 	(2,048	) 	 	 	(4,082	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash flow provided by operating activities before interest, coupons on Perpetual Debentures and income taxes	  	 	23,942	 	 	 	30,222	 	 	 	27,045	 	
Financial expense paid in cash including coupons on Perpetual Debentures and income taxes	  	 	(17,130	) 	 	 	(24,273	) 	 	 	(25,775	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash flows provided by operating activities	  	 	6,812	 	 	 	5,949	 	 	 	1,270	 	
Investing Activities	  	 	 	 	 	 	 	 	 	 	 	 	
Property, machinery and equipment, net	  	 	(3,524	) 	 	 	(5,922	) 	 	 	(5,570	) 	
Disposal (acquisition) of subsidiaries and associates, net	  	 	1,232	  	 	 	(895	) 	 	 	1,259	  	
Other long term assets and others, net	  	 	474	  	 	 	4,258	  	 	 	(1,085	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash flows used in investing activities	  	 	(1,818	) 	 	 	(2,559	) 	 	 	(5,396	) 	
Financing Activities	  	 	 	 	 	 	 	 	 	 	 	 	
Issuance of common stock	  	 	11	  	 	 	—  	  	 	 	—  	  	
Issuance of common stock by subsidiaries	  	 	—  	  	 	 	12,442	  	 	 	—  	  	
Derivative financial instruments	  	 	(5,464	) 	 	 	1,633	  	 	 	(256	) 	
Issuance (repayment) of debt, net	  	 	5,702	  	 	 	(17,239	) 	 	 	5,933	  	
Securitization of trade receivables	  	 	2,890	  	 	 	(193	) 	 	 	(1,854	) 	
Non-current liabilities, net	  	 	1,430	  	 	 	(1,679	) 	 	 	(568	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Net cash flows provided by (used in) financing activities	  	 	4,569	 	 	 	(5,036	) 	 	 	3,255	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Increase (decrease) in cash and cash equivalents	  	 	9,563	  	 	 	(1,646	) 	 	 	(871	) 	
Cash conversion effect, net	  	 	(1,789	) 	 	 	(2,004	) 	 	 	3,569	  	
Cash and cash equivalents at beginning of period	  	 	8,354	  	 	 	16,128	  	 	 	12,478	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents at the end of period	  	 	Ps16,128	  	 	 	Ps12,478	  	 	 	Ps15,176	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	
2013. During 2013, including the positive foreign currency effect of our initial balances of cash and cash equivalents generated during the period of approximately Ps3.6 billion, there was an increase in cash and cash equivalents of approximately Ps2.7 billion. This increase was generated by our net cash flows provided by operating activities, which, after financial expense, Perpetual Debentures coupons and income taxes paid in cash of approximately Ps25.8 billion, amounted to approximately Ps1.3 billion, and by our net cash flows provided by financing activities of approximately Ps3.3 billion, partially offset by our net cash flows in investing activities of approximately Ps5.4 billion.
For the year ended December 31, 2013, our net cash flows provided by operating activities included cash flows applied in working capital of approximately Ps4.1 billion, which was primarily comprised of cash flows applied in trade accounts receivable, other accounts receivable and other assets, inventories and other accounts payable and accrued expenses for an aggregate amount of approximately Ps5.7 billion, partially offset by cash flows originated by trade accounts payables for an aggregate amount of approximately Ps1.6 billion.
 
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During 2013, our net cash flows provided by operating activities after financial expense, Perpetual Debentures coupons and income taxes paid in cash of approximately Ps1.3 billion, our net resources generated by financing activities of approximately Ps3.3 billion, which include issuance of our debt, net, for an aggregate amount of approximately Ps5.9 billion, partially offset by our cash flows used in the securitization of trade receivables, derivative financial instruments and non-current liabilities for an aggregate amount of approximately Ps2.6 billion, were disbursed mainly in connection with capital expenditures of approximately Ps5.6 billion.
2012. During 2012, including the negative foreign currency effect of our initial balances of cash and cash equivalents generated during the period of approximately Ps2.0 billion, there was a decrease in cash and cash equivalents of approximately Ps3.7 billion. This decrease was generated by our net cash flows used in financing activities of approximately Ps5.0 billion and our net cash flows applied in investing activities of approximately Ps2.6 billion, partially offset by our net cash flows generated by operating activities, which after financial expenses, Perpetual Debentures coupons and income taxes paid in cash of approximately Ps24.3 billion, amounted to approximately Ps5.9 billion.
For the year ended December 31, 2012, our net cash flows provided by operating activities included cash flows included cash flows applied in working capital of approximately Ps2.0 billion, which was primarily comprised of cash flows applied to other accounts payable and accrued expenses, other accounts receivable and other assets and trade payables, for an aggregate amount of approximately Ps6.4 billion, partially offset by cash flows originated by trade receivables, net, and inventories for an aggregate amount of approximately Ps4.4 billion.
During 2012, our net cash flows provided by operating activities after financial expense, Perpetual Debentures coupons and income taxes paid in cash of approximately Ps5.9 billion, our net resources applied in financing activities of approximately Ps5.0 billion, which include payments to our debt for an aggregate amount of approximately Ps17.2 billion, partially offset by our cash flows provided by the issuance of common stock by subsidiaries for an aggregate amount of approximately Ps12.4 billion, related mainly in connection with CEMEX Latam outstanding common shares and cash flows generated by other long-term assets and others, net, for an aggregate amount of approximately Ps4.2 billion, were disbursed mainly in connection with capital expenditures of approximately Ps5.9 billion.
2011. During 2011, including the negative foreign currency effect of our initial balances of cash and cash equivalents generated during the period of approximately Ps1.8 billion, there was an increase in cash and cash equivalents of approximately Ps7.8 billion. This increase was generated by net cash flows provided by operating activities, which after financial expenses, Perpetual Debentures coupons and income taxes paid in cash of approximately Ps17.1 billion amounted to approximately Ps6.8 billion, and net cash flows provided by financing activities of approximately Ps4.6 billion, partially offset by our net cash flows used in investing activities of approximately Ps1.8 billion.
For the year ended December 31, 2011, our net cash flows provided by operating activities included cash flows applied in working capital of approximately Ps727 million, which was primarily composed by cash flows applied to trade receivables, net, inventories and trade payables for an aggregate amount of approximately Ps3.2 billion, partially offset by cash flows originated by other accounts receivable and other assets, and other accounts payable and accrued expenses for an aggregate amount of approximately Ps2.5 billion.
During 2011, our net cash flows generated by operating activities after financial expenses, Perpetual Debentures coupons and income taxes paid in cash of approximately Ps6.8 billion, our net resources provided by financing activities of approximately Ps4.6 billion, which include payments of our derivative financial instruments for an aggregate amount of approximately Ps5.5 billion related primarily to the purchase of a capped call and the settlement of options based on our ADSs, and cash flows provided by other long-term assets and others, net, and disposal of subsidiaries and associates, net for an aggregate amount of approximately Ps1.7 billion, were disbursed mainly in connection with capital expenditures of approximately Ps3.5 billion.
 
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As of December 31, 2013, we had the following lines of credit, the majority of which are subject to the bank’s availability at annual interest rates ranging between approximately 2.25% and 8.33%, depending on the negotiated currency:

 	  	Lines of Credit	 	  	Available	 	
 	  	(in millions of Mexican Pesos)	 	
Other lines of credit in foreign subsidiaries	  	 	6,441	 	  	 	4,892	 	
Other lines of credit from banks	  	 	3,712	 	  	 	3,676	 	
Capital Expenditures
Our capital expenditures incurred for the years ended December 31, 2012 and 2013, and our expected capital expenditures during 2014, which include an allocation to 2014 of a portion of our total future committed amount, are as follows:

 	  	Actual For the Year
Ended December 31,
Actual	 	  	Estimated
in 2013	 	
 	  	2012	 	  	2013	 	  	 	 	
 	  	(in millions of U.S. Dollars)	 	
Mexico	  	 	98	  	  	 	86	  	  	 	79	  	
United States	  	 	149	  	  	 	160	  	  	 	211	  	
Northern Europe	  	 	 	 	  	 	 	 	  	 	 	 	
United Kingdom	  	 	43	 	  	 	44	 	  	 	34	 	
Germany	  	 	35	 	  	 	37	 	  	 	29	 	
France	  	 	21	 	  	 	28	 	  	 	20	 	
Rest of Northern Europe(1)	  	 	48	 	  	 	32	 	  	 	30	 	
The Mediterranean	  	 	 	 	  	 	 	 	  	 	 	 	
Spain	  	 	21	 	  	 	10	 	  	 	12	 	
Egypt	  	 	26	 	  	 	24	 	  	 	26	 	
Rest of Mediterranean(2)	  	 	24	 	  	 	23	 	  	 	21	 	
SAC	  	 	 	 	  	 	 	 	  	 	 	 	
Colombia	  	 	81	 	  	 	60	 	  	 	30	 	
Rest of SAC(3)	  	 	38	 	  	 	52	 	  	 	31	 	
Asia	  	 	 	 	  	 	 	 	  	 	 	 	
Philippines	  	 	19	 	  	 	39	 	  	 	54	 	
Rest of Asia(4)	  	 	5	 	  	 	6	 	  	 	5	 	
Others	  	 	1	  	  	 	5	  	  	 	63	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	
Total consolidated	  	 	609	  	  	 	606	  	  	 	645	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	
Of which	  	 	 	 	  	 	 	 	  	 	 	 	
Expansion capital expenditures	  	 	178	 	  	 	117	 	  	 	140	 	
Base capital expenditures	  	 	431	 	  	 	489	 	  	 	505	 	
 
(1)	Refers mainly to our operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia as well as trading activities in Scandinavia and Finland.	
(2)	Includes our operations in Croatia, the UAE and Israel.	
(3)	Includes our operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala and small ready-mix concrete operations in Argentina.	
(4)	Includes our operations in Thailand, Bangladesh, China and Malaysia.	
For the years ended December 31, 2012 and 2013, we recognized U.S.$609 million and U.S.$606 million in capital expenditures, respectively. As of December 31, 2013, in connection with our significant projects, we had contractually committed capital expenditures of approximately U.S.$645 million, including our capital
 
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expenditures estimated to be incurred during 2014. This amount is expected to be incurred during 2014, based on the evolution of the related projects. Pursuant to the Facilities Agreement, we are prohibited from making aggregate annual capital expenditures in excess of U.S.$800 million (excluding certain capital expenditures, joint venture investments and acquisitions by CEMEX Latam and its subsidiaries, which capital expenditures, joint venture investments and acquisitions at any time then incurred are in the aggregate not to exceed U.S.$350 million (or its equivalent)).
Our Indebtedness
As of December 31, 2013, we had approximately Ps230,298 million (U.S.$17,647 million) (principal amount Ps235,688 million (U.S.$18,060 million)) of total debt plus other financial obligations, which does not include approximately Ps6,223 million (U.S.$477 million) of Perpetual Debentures. See notes 16A, 16B and 20D to our 2013 audited consolidated financial statements included elsewhere in this annual report. Of our total debt plus other financial obligations, approximately 4.1% were short-term (including current maturities of long-term debt) and 95.9% were long-term. As of December 31, 2013, approximately 86% of our total debt plus other financial obligations was Dollar-denominated, approximately 11% was Euro-denominated, approximately 3% was Mexican Peso-denominated and immaterial amounts were denominated in other currencies.
On August 14, 2009, we entered into the 2009 Financing Agreement, which extended the final maturities of approximately U.S.$15 billion in syndicated and bilateral loans and private placement notes to February 14, 2014. On July 5, 2012, we launched the Exchange Offer and Consent Request, to eligible creditors under the 2009 Financing Agreement, pursuant to which eligible creditors were requested to consent to the Amendment Consents. In addition, we offered to exchange the indebtedness owed to the Participating Creditors for (i) new loans (or, in the case of the private placement notes, new private placement notes) or (ii) up to U.S.$500 million of our September 2012 Notes, in each case, in transactions exempt from registration under the Securities Act.
On September 17, 2012, we successfully completed the Refinancing Transaction, and we and certain of our subsidiaries entered into (a) the Amendment and Restatement Agreement, pursuant to which the Amendment Consents with respect to the 2009 Financing Agreement were given effect, and (b) the Facilities Agreement, pursuant to which we were deemed to borrow loans from those Participating Creditors participating in the Exchange Offer and Consent Request in principal amounts equal to the principal amounts of indebtedness subject to the 2009 Financing Agreement that was extinguished by such Participating Creditors. As a result of the Refinancing Transaction, participating creditors received (i) approximately U.S.$6.155 billion in aggregate principal amount of new loans and new private placement notes and (ii) U.S.$500 million aggregate principal amount of the September 2012 Notes. In addition, approximately U.S.$525 million aggregate principal amount of loans and private placement notes remained outstanding under the 2009 Financing Agreement as of September 17, 2012. The aggregate principal amount of loans and private placement notes outstanding under the 2009 Financing Agreement was subsequently repaid in full, as a result of prepayments made in accordance with the Facilities Agreement. Considering that the relevant economic terms of the new debt instruments are not substantially different from those of the original loans and private placements, the aforementioned exchange of debt as part of the refinancing process did not result in the extinguishment of the original financial liabilities under IFRS; therefore, there were no effects in profit or loss. CEMEX adjusted the carrying amount of the financial liability by approximately U.S.$116 million in relation to the fees and cost incurred during the refinancing process, and those costs, together with any remaining costs relative to the 2009 Financing Agreement will be amortized over the remaining term of the Facilities Agreement.
As part of the Facilities Agreement, we pledged under pledge agreements or transferred to a trustee under a security trust, as collateral, the Collateral, and all proceeds of the Collateral, to secure our payment obligations under the Facilities Agreement and under several other financing arrangements. These subsidiaries whose shares were pledged or transferred as part of the Collateral collectively own, directly or indirectly, substantially all our operations worldwide. See “Item 3—Key Information—Risk Factors—We pledged the capital stock of subsidiaries that represent substantially all of our business as collateral to secure our payment obligations under
 
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the Facilities Agreement, the Senior Secured Notes and other financing arrangements.” Upon completion of the Refinancing Transaction, the collateral securing the 2009 Financing Agreement and other obligations secured by such collateral was released.
As of December 31, 2013, we had an aggregate principal amount of outstanding debt under the Facilities Agreement of approximately Ps54,024 million (U.S.$4,140 million) (principal amount Ps55,147 million (U.S.$4,226 million)), all of which matures in 2017. However, if we are unable to comply with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, the maturity date of our indebtedness under the Facilities Agreement will spring-back to earlier dates. See “Item 3—Key Information—Risk Factors—If we are unable to comply with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, the maturity date of our indebtedness under the Facilities Agreement will automatically reset, or ‘spring-back’ to earlier dates.”
For a discussion of restrictions and covenants under the Facilities Agreement, see “Item 3—Key Information—Risk Factors—The Facilities Agreement contains several restrictions and covenants. Our failure to comply with such restrictions and covenants could have a material adverse effect on us.”
For a description of the Senior Secured Notes, see “—Summary of Material Contractual Obligations and Commercial Commitments—Senior Secured Notes.”
Some of our subsidiaries and special purpose vehicles have issued or provided guarantees of certain of our indebtedness, as indicated in the table below and as adjusted to give effect to the Recent Financing Transactions.

 	  	Senior Secured
Notes(3)	 	  	Facilities
Agreement	 	  	Perpetual
Debentures	 	  	CBs(3)	 	
 	  	U.S.$10,225 million
(Ps133,437
million) (principal
amount U.S.$10,323
million (Ps134,709
million))	 	  	U.S.$4,140
Million
(Ps54,024
million) (principal
amount U.S.$4,226
million (Ps55,147
million))	 	  	U.S.$710
Million
(Ps9,270
million)	 	  	U.S.$45
million
(Ps589
million)	 	
Amount outstanding as of December 31, 2013(1)(2)	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	 	 	 	 	
CEMEX, S.A.B. de C.V.	  	ü	 	  	  	ü	 	  	  	ü	 	  	  	ü	 	  	
CEMEX España	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX México	  	ü	 	  	  	ü	 	  	  	ü	 	  	  	ü	 	  	
New Sunward	  	ü	 	  	  	ü	 	  	  	ü	 	  	  	 	 	 	
CEMEX Corp.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX Finance LLC	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX Research Group AG	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX Shipping B.V.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX Asia B.V.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX France	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX UK	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
Cemex Egyptian Investments B.V.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
Cemex Egyptian Investments II B.V.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
CEMEX Concretos, S.A. de C.V.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	 	 	 	
Empresas Tolteca de México, S.A. de C.V.	  	ü	 	  	  	ü	 	  	  	 	 	 	  	ü	 	  	
C5 Capital (SPV) Ltd.	  	 	 	 	  	 	 	 	  	ü	 	  	  	 	 	 	
C8 Capital (SPV) Ltd.	  	 	 	 	  	 	 	 	  	ü	 	  	  	 	 	 	
C10 Capital (SPV) Ltd.	  	 	 	 	  	 	 	 	  	ü	 	  	  	 	 	 	
C10-EURCapital (SPV) Ltd.	  	 	 	 	  	 	 	 	  	ü	 	  	  	 	 	 	
 
(1)	Includes Senior Secured Notes, Perpetual Debentures and Eurobonds held by CEMEX, as applicable.	
(2)	CEMEX Finance LLC previously did not provide guarantees for the May 2010 Notes, January 2011 Notes, Additional May 2010 Notes, Additional January 2011 Notes, March 2012 Notes, September 2012 Notes,	
 
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 	March 2013 Notes, August 2013 Notes or October 2013 Notes. On April 1, 2014, concurrently with the completion of the offering of the April 2014 Notes, CEMEX Finance LLC entered into supplemental indentures to the indentures governing such notes pursuant to which it provided guarantees for such notes.	
(3)	Includes long-term secured CBs.	
Most of our outstanding indebtedness has been incurred to finance our acquisitions and to finance our capital expenditure programs. Historically, we have addressed our liquidity needs (including funds required to make scheduled principal and interest payments, refinance debt, and fund working capital and planned capital expenditures) with operating cash flow, securitizations, borrowings under credit facilities, proceeds of debt and equity offerings and proceeds from asset sales.
The moderate growth of the global economic environment and its adverse effects on our operating results may negatively affect our credit rating and the market value of CEMEX, S.A.B. de C.V.’s common stock, CPOs and ADSs. If current economic pressures continue or worsen, we may be dependent on the issuance of equity as a source to repay our existing indebtedness, including indebtedness under the Facilities Agreement. Although we have been able to raise debt, equity and equity-linked capital in the recent past, previous conditions in the capital markets in 2008 and 2009 were such that traditional sources of capital were not available to us on reasonable terms or at all. As a result, we cannot assure you that we will be able to successfully raise additional debt or equity capital on terms that are favorable to us or at all.
If the global economic environment deteriorates and our operating results worsen significantly, if we were unable to complete debt or equity offerings or if the proceeds of any divestitures and/or our cash flow or capital resources prove inadequate, we could face liquidity problems and may not be able to comply with our upcoming principal payments under our indebtedness or refinance our indebtedness. If we are unable to comply with our upcoming principal maturities under our indebtedness, or refinance or extend maturities of our indebtedness, our debt could be accelerated. Acceleration of our debt would have a material adverse effect on our business and financial condition.
We and our subsidiaries have sought and obtained waivers and amendments to several of our debt instruments relating to a number of financial ratios in the past. Our ability to comply with these ratios may be affected by current global economic conditions and volatility in foreign exchange rates and the financial and capital markets. We may need to seek waivers or amendments in the future. However, we cannot assure you that any future waivers or amendments, if requested, will be obtained. If we or our subsidiaries are unable to comply with the provisions of our debt instruments, and are unable to obtain a waiver or amendment, the indebtedness outstanding under such debt instruments could be accelerated. Acceleration of these debt instruments would have a material adverse effect on our financial condition.
Relevant Transactions Related to Our Indebtedness During 2013
As of December 31, 2013, as adjusted to give effect to the Recent Financing Transactions, we had approximately Ps226,920 million (U.S.$17,388 million) (principal amount Ps232,099 million (U.S.$17,785 million)) of total debt plus other financial obligations, which does not include approximately Ps6,223 million (U.S.$477 million) of Perpetual Debentures. Our financing activities through December 31, 2012 are described in the 2012 20-F. The following is a description of our most relevant transactions related to our indebtedness in 2013:
 
 	•	 	On March 25, 2013, CEMEX issued U.S.$600 million aggregate principal amount of the March 2013 Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. In connection with this issuance, CEMEX commenced a tender offer to purchase up to €200 million aggregate principal amount of Eurobonds. The tender offer expired on March 25, 2013 and resulted in the purchase of approximately €183 million aggregate principal amount of Eurobonds.	
 
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 	CEMEX used the remainder of the net proceeds from the offering of the March 2013 Notes for general corporate purposes, including the repayment in full of the remaining indebtedness under CEMEX’s 2009 Financing Agreement of approximately U.S.$55 million.	
 
 	•	 	On August 12, 2013, CEMEX issued U.S.$1.0 billion aggregate principal amount of the August 2013 Notes in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. In connection with this issuance, CEMEX commenced a tender offer that expired on August 30, 2013 and resulted in the purchase of U.S.$925 million aggregate principal amount of December 2009 U.S. Dollar Notes.	
 
 	•	 	On October 2, 2013, CEMEX issued U.S.$1.5 billion aggregate principal amount of October 2013 Notes, consisting of U.S.$1.0 billion aggregate principal amount of October 2013 Fixed Rate Notes and U.S.$500 million aggregate principal amount of October 2013 Floating Rate Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. In connection with this issuance, CEMEX commenced tender offers to purchase any and all December 2009 U.S. Dollar Notes and up to €220 million aggregate principal amount of December 2009 Euro Notes. The tender offers expired on October 23, 2013 and resulted in the purchase of approximately U.S.$470 million aggregate amount of December 2009 U.S. Dollar Notes and approximately €181 principal amount of December 2009 Euro Notes. On December 14, 2013, CEMEX subsequently redeemed all of the approximately U.S.$355 million aggregate principal amount of December 2009 U.S. Dollar Notes remaining outstanding and approximately €39 million aggregate principal amount of December 2009 Euro Notes. CEMEX used the remainder of the net proceeds from the offering of the October 2013 Notes for general corporate purposes, including to reserve €247,442,000 to repay the Eurobonds at their maturity, which repayment was completed on March 5, 2014.	
We used a substantial portion of the proceeds from these transactions to repay and refinance indebtedness, to improve our liquidity position and for general corporate purposes. Through these and prior refinancing transactions, taken together with the Recent Financing Transactions (see “Item 3—Key Information—Summary of Most Important Transactions since the 2009 Refinancing”), we have addressed all maturities under the 2009 Financing Agreement and have addressed all maturities under the Facilities Agreement until February 14, 2017.
Our Other Financial Obligations
Other financial obligations in the consolidated balance sheet as of December 31, 2012 and 2013 are detailed as follows:

 	 	December 31, 2012	 	 	December 31, 2013	 	
 	 	Short-
term	 	 	Long-
term	 	 	Total	 	 	Short-
term	 	 	Long-
term	 	 	Total	 	
I. Convertible Subordinated Notes due 2018	 	 	Ps    —  	  	 	 	7,100	 	 	 	7,100	 	 	 	Ps    —  	  	 	 	7,565	 	 	 	7,565	 	
II. Convertible Subordinated Notes due 2016	 	 	—  	  	 	 	10,768	 	 	 	10,768	 	 	 	—  	  	 	 	11,551	 	 	 	11,551	 	
III. 2010 Optional Convertible Subordinated Notes	 	 	—  	  	 	 	8,397	 	 	 	8,397	 	 	 	—  	  	 	 	8,919	 	 	 	8,919	 	
IV. Mandatory Convertible Securities	 	 	152	 	 	 	1,561	 	 	 	1,713	 	 	 	177	 	 	 	1,392	 	 	 	1,569	 	
V. Liabilities secured with accounts receivable	 	 	6,013	 	 	 	2,500	 	 	 	8,513	 	 	 	4,471	 	 	 	2,500	 	 	 	6,971	 	
VI. Capital leases	 	 	813	 	 	 	2,587	 	 	 	3,400	 	 	 	920	 	 	 	1,823	 	 	 	2,743	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	 	Ps6,978	 	 	 	32,913	 	 	 	39,891	 	 	 	Ps5,568	 	 	 	33,750	 	 	 	39,318	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
As mentioned in note 2L to our 2013 audited consolidated financial statements included elsewhere in this annual report, financial instruments convertible into CEMEX, S.A.B. de C.V.’s CPOs and/or ADSs contain components of both liability and equity, which are recognized differently depending on whether the instrument is mandatorily convertible, or is optionally convertible by election of the note holders, as well as the currency in which the instrument is denominated.
 
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2011 Optional Convertible Subordinated Notes
On March 15, 2011, CEMEX, S.A.B. de C.V. closed the offering of U.S.$978 million (Ps11,632 million) aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016 and U.S.$690 million (Ps8,211 million) aggregate principal amount of 3.75% Convertible Subordinated Notes due 2018. The aggregate principal amounts reflect the full exercise of the U.S.$177.5 million and U.S.$90 million over-allotment option granted to the relevant initial purchasers of the 3.25% Convertible Subordinated Notes due 2016 and the 3.75% Convertible Subordinated Notes due 2018, respectively. The 2011 Optional Convertible Subordinated Notes are subordinated to all of CEMEX’s liabilities and commitments. The initial conversion price was equivalent to an approximate 30% premium to the closing price of our ADSs on March 9, 2011, and the notes are convertible into our ADSs, at any time after June 30, 2011. A portion of the net proceeds from this transaction were used to fund the purchase of capped call transactions. During 2013 and 2012, changes in the fair value of these capped call transactions generated a gain of approximately U.S.$127 million (Ps1,663 million) and a gain of approximately U.S.$155 million (Ps1,973 million), respectively, which were recognized within “Other financial income (expense), net” in the statements of operations (see note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report), which are generally expected to reduce the potential dilution cost to CEMEX, S.A.B. de C.V. upon future conversion of the 2011 Optional Convertible Subordinated Notes. As a result of the issuance, substantially all the new shares approved at CEMEX, S.A.B. de C.V.’s extraordinary shareholders’ meeting on February 24, 2011 (see note 20 to our 2013 audited consolidated financial statements included elsewhere in this annual report) were reserved by CEMEX, S.A.B. de C.V. to satisfy conversion of these notes. After antidilution adjustments, the conversion rate as of December 31, 2013 was 99.6866 ADSs per U.S.$1,000 principal amount of such notes and as of March 20, 2014, has been further adjusted to 103.6741 ADSs per U.S.$1,000 principal amount of such notes, reflecting the issuance of CPOs in connection with the recapitalization of earnings approved by shareholders at the 2013 annual general ordinary shareholders’ meeting held on March 20, 2014. Effective January 1, 2013, in connection with the change in CEMEX, S.A.B. de C.V.’s functional currency, the conversion options embedded in the 2016 Convertible Notes and the 2018 Convertible Notes ceased to be treated as stand-alone derivatives at fair value through profit or loss. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity. Changes in fair value of such conversion options generated a loss in 2012 for approximately U.S.$243 million (Ps3,078 million) (see note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report).
2010 Optional Convertible Subordinated Notes
On March 30, 2010, CEMEX, S.A.B. de C.V. issued U.S.$715 million (Ps8,837 million) aggregate principal amount of 4.875% Optional Convertible Subordinated Notes due 2015, including the full exercise of the U.S.$65 million over-allotment option granted to the initial purchasers of the notes. The 2010 Optional Convertible Subordinated Notes are subordinated to all of CEMEX’s liabilities and commitments. The holders of the 2010 Optional Convertible Subordinated Notes have the option to convert their notes for our ADSs at a conversion price per ADS 30% higher than the ADS price at the pricing of the transaction. In connection with the offering, CEMEX, S.A.B. de C.V. entered into a capped call transaction expected to generally reduce the potential dilution cost to CEMEX, S.A.B. de C.V. upon future conversion of the 2015 Notes. During 2013 and 2012, changes in the fair value of this capped call transaction generated a gain of approximately U.S.$36 million (Ps465 million) and a gain of approximately U.S.$47 million (Ps594 million), respectively, which were recognized within “Other financial income (expense), net” in the statements of operations (see note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report). After antidilution adjustments, the conversion rate as of December 31, 2013 was 86.0316 ADSs per U.S.$1,000 principal amount of such notes and as of March 20, 2014, has been further adjusted to 89.4729 ADSs per U.S.$1,000 principal amount of such notes, reflecting the issuance of CPOs in connection with the recapitalization of earnings approved by shareholders at the 2013 annual general ordinary shareholders’ meeting held on March 20, 2014. Effective January 1, 2013, in connection with the change in CEMEX, S.A.B. de C.V.’s functional currency, the conversion options embedded in the 2016 Convertible Notes and the 2018 Convertible Notes ceased to be treated as stand-alone derivatives at fair value through profit or loss. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity. Changes in fair value of the conversion option generated a loss in 2012 for approximately U.S.$56 million
 
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(Ps708 million) (see note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report). In February 2014, CEMEX amended the terms of the capped call options related to its 2010 Optional Convertible Subordinated Notes and, separately, in March 2014, holders of U.S.$280,387,000 in aggregate principal amount of the 2010 Optional Convertible Subordinated Notes converted their 2010 Optional Convertible Subordinated Notes in exchange for approximately 27.73 million of CEMEX, S.A.B. de C.V.’s ADSs pursuant to the Private Inducements.
Mandatory Convertible Securities
In December 2009, CEMEX, S.A.B. de C.V. completed its offer to exchange marketable notes issued in Mexico with maturities between 2010 and 2013, into Mandatory Convertible Securities for approximately Ps4,126 million (U.S.$315 million). Reflecting antidilution adjustments, at their scheduled conversion in 2019 or earlier if the price of the CPO reaches approximately Ps30.68, the securities will be mandatorily convertible into approximately 202 million CPOs at a conversion price of approximately Ps20.45 per CPO. During their tenure, the securities bear interest at an annual rate of 10% interest payable quarterly. Holders have an option to voluntarily convert their securities, after the first anniversary of their issuance, on any interest payment date into CPOs. The equity component, represented by the fair value of the conversion options of the issuance date of Ps1,971 million was recognized within “Other equity reserves.” See note 16B to our 2013 audited consolidated financial statements included elsewhere in this annual report. Effective January 1, 2013, in connection with the change in CEMEX, S.A.B. de C.V.’s functional currency, the conversion option embedded in these securities as of January 1, 2013, started to be treated as stand-alone derivative liability at fair value through profit or loss, recognizing an initial effect of Ps365 million. Changes in fair value of the conversion option generated a loss of Ps135 million (U.S.$10 million) in 2013.
Our Receivables Financing Arrangements
Our subsidiaries in the United States, Mexico and France (which incorporated the sale of trade receivables in the United Kingdom) are parties to sales of trade accounts receivable programs with financial institutions, referred to as securitization programs. As of December 31, 2012 and 2013, trade accounts receivable include receivables of Ps10,792 million (U.S.$840 million) and Ps8,487 million (U.S.$650 million), respectively. Under these programs, our subsidiaries effectively surrender control associated with the trade accounts receivable sold and there is no guarantee or obligation to reacquire the assets. However, we retain certain residual interest in the programs and/or maintain continuing involvement with the accounts receivable; therefore, the amounts received are recognized within “Other financial obligations.” Trade accounts receivable qualifying for sale exclude amounts over certain days past due or concentrations over certain limits to any customer, according to the terms of the programs. The portion of the accounts receivable sold maintained as reserves amounted to Ps2,280 million and Ps1,516 million as of December 31, 2012 and 2013, respectively. Therefore, the funded amount to CEMEX was Ps6,971 million (U.S.$534 million) in 2013 and Ps8,512 million (U.S.$662 million) in 2012. The discount granted to the acquirers of the trade accounts receivable is recorded as financial expense and amounted to approximately Ps368 million (U.S.$28 million) and Ps317 million (U.S.$25 million) in 2012 and 2013, respectively. Our securitization programs are negotiated for specific periods and may be renewed at their maturity. The securitization program outstanding as of December 31, 2013 in the United States matures in May 2015. The securitization programs in France and the United Kingdom were extended in March 2014 and mature in March 2015. In April 2014, CEMEX refinanced its securitization program in Mexico with a final maturity in March 2017.
Capital leases
As of December 31, 2012 and 2013, we held several operating buildings and mainly mobile equipment, under capital lease contracts for a total of approximately U.S.$154 million (Ps2,025 million) and U.S.$11 million (Ps141 million), respectively. Future payments associated with these contracts are presented in note 23E to our 2013 audited consolidated financial statements included elsewhere in this annual report.
 
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Our Equity Forward Arrangements
In connection with the sale of CPOs of Axtel (note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report) and in order to maintain exposure to changes in the price of such entity, in March 2008, we entered into a forward contract to be settled in cash over the price of 59.5 million CPOs of Axtel (59.5 million CPO with each counterparty), which was originally set to mature in April 2011. During 2009, in order to reset the exercise price included in the contract, we instructed the counterparties to definitively dispose of the deposits in margin accounts for approximately Ps207 million, and each of the counterparties exercised an option to maintain the contract over their respective 59.5 million CPOs of Axtel until October 2011. During 2010, one of the counterparties further extended the maturity of 50% of the notional amount of this forward contract to April 2012. In addition, during 2011, the other counterparty further extended the maturity of its contract also until April 2012. In March 2012, CEMEX renewed the forward contract to be settled in cash over the price of 59.5 CPOs of Axtel, which is extended until October 2015. Changes in the fair value of this instrument generated losses of approximately U.S.$7 million (Ps100 million) in 2012, and gains of approximately U.S.$6 million (Ps76 million) in 2013.
Perpetual Debentures
As of December 31, 2012 and 2013, non-controlling interest stockholders’ equity included approximately U.S.$473 million (Ps6,078 million) and U.S.$477 million (Ps6,223 million), respectively, representing the notional amount of the Perpetual Debentures. The Perpetual Debentures have no fixed maturity date and do not represent a contractual payment obligation for us. Based on their characteristics, the Perpetual Debentures, issued through special purpose vehicles, or SPVs, qualify as equity instruments under IFRS and are classified within non-controlling interest as they were issued by consolidated entities, considering that there is no contractual obligation to deliver cash or any other financial asset, the Perpetual Debentures do not have any maturity date, meaning that they were issued to perpetuity, and, if the conditions to interest deferred are satisfied, we have the unilateral right to defer indefinitely the payment of interest due on the Perpetual Debentures. Issuance costs, as well as the interest expense, which is accrued based on the principal amount of the Perpetual Debentures, are included within “Other equity reserves” and represented expenses of approximately Ps453 million and Ps405 million in 2012 and 2013, respectively. The different SPVs were established solely for purposes of issuing the Perpetual Debentures and are included in our 2013 audited consolidated financial statements included elsewhere in this annual report. As of December 31, 2013, the Perpetual Debentures were as follows:

Issuer	 	Issuance date	 	Nominal Amount
at Issuance
Date
(in millions)	 	 	Nominal amount
Outstanding as of
December 31, 2013
(in millions)(2)	 	 	Repurchase option	 	Interest
rate	 	
C10-EUR Capital
(SPV) Ltd.	 	May 2007	 	€	 	 	730	  	 	€	 	 	64	  	 	Tenth anniversary	 	 	6.277	% 	
C8 Capital (SPV) Ltd.	 	February 2007	 	U.S.$	 	 	750	  	 	U.S.$	 	 	137	 	 	Eighth anniversary	 	 	6.640	% 	
C5 Capital
(SPV) Ltd.(1)	 	December 2006	 	U.S.$	 	 	350	  	 	U.S.$	 	 	69	 	 	Fifth anniversary	 	 

 	LIBOR +

4.277	  

% 	
C10 Capital
(SPV) Ltd.	 	December 2006	 	U.S.$	 	 	900	  	 	U.S.$	 	 	183	 	 	Tenth anniversary	 	 	6.722	% 	
 
(1)	We are not permitted to call these Perpetual Debentures under the Facilities Agreement. As of December 31, 2012 and 2013, 3-month LIBOR was approximately 0.306% and 0.246%.	
(2)	Excludes the notional amount of Perpetual Debentures held by subsidiaries, acquired in December 2012 through a series of asset swaps. See notes 16A and 20D to our 2013 audited consolidated financial statements included elsewhere in this annual report.	
 
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Stock Repurchase Program
Under Mexican law, CEMEX, S.A.B. de C.V.’s shareholders may authorize a stock repurchase program at CEMEX, S.A.B. de C.V.’s annual general ordinary shareholders’ meeting. Unless otherwise instructed by CEMEX, S.A.B. de C.V.’s shareholders, we are not required to purchase any minimum number of shares pursuant to such program.
In connection with CEMEX, S.A.B. de C.V.’s 2011, 2012 and 2013 annual general ordinary shareholders’ meetings held on February 23, 2012, March 21, 2013 and March 20, 2014, respectively, no stock repurchase program has been proposed between February 2011 and the date of this annual report. Subject to certain exceptions, we are not permitted to repurchase shares of our capital stock under the Facilities Agreement and the indentures governing the Senior Secured Notes.
Research and Development, Patents and Licenses, etc.
Headed by CEMEX Research Group AG (“CEMEX Research Group”), research and development (“R&D”) is increasingly assuming a key role as it is recognized as an important contributor to CEMEX’s comprehensive pricing strategy for CEMEX’s products. Through the development of innovative technologies, services, and commercial models, CEMEX is leveraging its know-how based assets to create an important differentiation in its offerings to customers in a broad range of markets with unique challenges. Focus is placed on creating tangible value for our customers by making their business more profitable, but more importantly, as leaders in the industry, there is an underlying mission for CEMEX to elevate and accelerate the industry’s evolution in order to achieve greater sustainability, increase engagement in social responsibility and provoke an important leap in its technological advancement.
CEMEX’s R&D initiatives are globally led, coordinated and managed by CEMEX Research Group, which encompasses the areas of Technology, Energy & Sustainability, Business Process & IT, Innovation, and Commercial & Logistics. The Vice Presidency of Technology (the “VPT”) is responsible for developing new products for our cement, ready-mix concrete, aggregate and admixture businesses as well as introduce novel and/or improved processing and manufacturing technology for all of the CEMEX’s core businesses. Additionally, the VPT also develops and proposes construction solutions through the integration of the aforementioned technologies. The Energy and Sustainability departments are dedicated to operational efficiencies leading to reduction of costs and enhancing the environmental impact through the usage of alternative or biomass fuels, and energy management systems. For example, we have developed processes and products that allow us to reduce heat consumption in our kilns, which in turn reduces energy costs. Global products/brands have been conceptualized and engineered to positively impact the jobsite safety, promote efficient construction practices, sensibly preserve natural resources vital to life, lower carbon foot-print and improve the quality of life in rapidly transforming cities. Underlying CEMEX’s R&D philosophy, is a growing culture of collaboration, where the Innovation Team brings about its research to identify novel collaboration practices, and mobilize its adoption within CEMEX.
There are nine laboratories supporting the CEMEX’s R&D efforts under a collaboration network. Eight of the laboratories are strategically located in close proximity to our plants, and assist the operating subsidiaries with troubleshooting, optimization techniques and quality assurance methods. The laboratory located in Switzerland is continually improving and consolidating our research and development efforts in the areas of cement, concrete, aggregates, admixtures, mortar and asphalt technology, as well as in energy management. In addition, CEMEX Research Group actively registers patents and pending applications in many of the countries in which CEMEX operates. Patents and trade secrets are managed strategically in order to ensure an important technology lock-ins associated with CEMEX technology.
Our Information Technology divisions develop information management systems and software relating to cement and ready-mix concrete operational practices, automation and maintenance. These systems have helped us to better serve our clients with respect to purchasing, delivery and payment. More importantly, thanks to the activities of the Process and IT area, CEMEX is continuously improving and innovating its business processes to adapt it to the dynamically evolving markets, and better serve the needs.
 
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R&D activities comprise part of the daily routine of the departments and divisions mentioned above; therefore, the costs associated with such activities are expensed as incurred. However, the costs incurred in the development of software for internal use are capitalized and amortized in operating results over the estimated useful life of the software, which is approximately five years.
In 2011, 2012 and 2013, the total combined expense of the technology and energy departments in CEMEX, which includes all significant R&D activities, amounted to approximately Ps487 million (U.S.$39 million), Ps514 million (U.S.$40 million) and Ps494 million (U.S.$38 million), respectively.
Trend Information
Other than as disclosed elsewhere in this annual report, we are not aware of any trends, uncertainties, demands, commitments or events for the year ended December 31, 2013 that are reasonably likely to have a material and adverse effect on our net sales, income, profitability, liquidity or capital resources, or that would cause the disclosed financial information to be not necessarily indicative of future results of operations or financial conditions.
Summary of Material Contractual Obligations and Commercial Commitments
The 2009 Financing Agreement
On August 14, 2009, we entered into the 2009 Financing Agreement. The 2009 Financing Agreement extended the final maturities of approximately U.S.$15 billion in syndicated and bilateral loans and private placement notes to February 14, 2014, providing for a semi-annual amortization schedule, and, prior to giving effect to the Refinancing Transaction, we had reduced indebtedness under the 2009 Financing Agreement by approximately U.S.$7.2 billion. Upon completion of the Refinancing Transaction, the collateral securing the 2009 Financing Agreement and other obligations secured by such collateral was released. In March 2013, we repaid the 2009 Financing Agreement in full.
The Facilities Agreement
As a result of the Refinancing Transaction, on September 17, 2012, we entered into the Facilities Agreement. See “—Liquidity and Capital Resources—Our Indebtedness.” As of December 31, 2013, we had an aggregate principal amount of outstanding debt under the Facilities Agreement of approximately Ps54,024 million (U.S.$4,140 million) (principal amount Ps55,147 million (U.S.$4,226 million)), all of which matures in 2017. Additionally, if we are unable to comply with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, the maturity date of our indebtedness under the Facilities Agreement will spring-back to earlier dates. See “Item 3—Key Information—Risk Factors—If we are unable to comply with the milestones for addressing the maturities of certain indebtedness pursuant to the Facilities Agreement, the maturity date of our indebtedness under the Facilities Agreement will automatically reset, or ‘spring-back’ to earlier dates.”
The Facilities Agreement is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
For a discussion of restrictions and covenants under the Facilities Agreement, see “Item 3—Key Information—Risk Factors—The Facilities Agreement contains several restrictions and covenants. Our failure to comply with such restrictions and covenants could have a material adverse effect on us.”
Senior Secured Notes
The indentures governing the Senior Secured Notes impose significant operating and financial restrictions on us. These restrictions will limit our ability, among other things, to: (i) incur debt; (ii) pay dividends on stock;
 
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(iii) redeem stock or redeem subordinated debt; (iv) make investments; (v) sell assets, including capital stock of subsidiaries; (vi) guarantee indebtedness; (vii) enter into agreements that restrict dividends or other distributions from restricted subsidiaries; (viii) enter into transactions with affiliates; (ix) create or assume liens; (x) engage in mergers or consolidations; and (xi) enter into a sale of all or substantially all of our assets.
May 2010 Notes. On May 12, 2010, CEMEX España, acting through its Luxembourg branch, issued U.S.$1,067,665,000 aggregate principal amount of its 9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020, or the May 2010 U.S. Dollar Notes, and €115,346,000 aggregate principal amount of its 8.875% Euro-Denominated Senior Secured Notes due 2017, or the May 2010 Euro Notes and, together with the May 2010 U.S. Dollar Notes, the May 2010 Notes, in exchange for a majority in principal amount of the then outstanding Perpetual Debentures pursuant to exchange offers, in private transactions exempt from registration pursuant to Section 4(2) of the Securities Act and Regulation S under the Securities Act. In addition, on March 4, 2011, CEMEX España, acting through its Luxembourg branch, issued an additional U.S.$125,331,000 aggregate principal amount of its May 2010 U.S. Dollar Notes, in exchange for €119,350,000 aggregate principal amount of the Euro-Denominated 6.277% Fixed-to-Floating Rate Callable Perpetual Debentures issued by C10-EUR Capital (SPV), pursuant to an exchange offer, in a private transaction exempt from registration pursuant to Regulation S under the Securities Act. CEMEX, S.A.B. de C.V., CEMEX México, New Sunward, CEMEX Asia B.V. (“CEMEX Asia”), CEMEX Concretos, S.A. de C.V. (“CEMEX Concretos”), CEMEX Corp., CEMEX Finance LLC, Cemex Egyptian Investments B.V. (“CEMEX Egyptian Investments”), Cemex Egyptian Investments II B.V. (“CEMEX Egyptian Investments II”), CEMEX France, CEMEX Research Group, CEMEX Shipping B.V. (“CEMEX Shipping”), CEMEX UK and Empresas Tolteca de México, S.A. de C.V. (“Empresas Tolteca”) have fully and unconditionally guaranteed the performance of all obligations of CEMEX España under the May 2010 Notes, on a senior basis. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
January 2011 Notes. On January 11, 2011, CEMEX, S.A.B. de C.V. issued U.S.$1.0 billion aggregate principal amount of its 9.000% Senior Secured Notes due 2018, or the January 2011 Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. On July 11, 2011, CEMEX, S.A.B. de C.V. issued an additional U.S.$650 million aggregate principal amount of its January 2011 Notes. CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX, S.A.B. de C.V. under the January 2011 Notes on a senior basis. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
April 2011 Notes. On April 5, 2011, CEMEX, S.A.B. de C.V. issued U.S.$800 million aggregate principal amount of its Floating Rate Senior Secured Notes due 2015, or the April 2011 Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX, S.A.B. de C.V. under the April 2011 Notes on a senior basis. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
March 2012 Notes. On March 28, 2012, CEMEX España, acting through its Luxembourg branch, issued U.S.$703,861,000 aggregate principal amount of its 9.875% U.S. Dollar-Denominated Senior Secured Notes due 2019 and €179,219,000 aggregate principal amount of its 9.875% Euro-Denominated Senior Secured Notes Due 2019, or together, the March 2012 Notes, in exchange for Perpetual Debentures and Eurobonds pursuant to separate private placement exchange offers directed to the holders of Perpetual Debentures and Eurobonds, in transactions exempt from registration pursuant to Section 4(2) of the Securities Act. Such exchange offers were made within the United States only to “qualified institutional buyers” (as defined in Rule 144A under the
 
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Securities Act), and outside the United States to persons that are not “U.S. persons,” as such term is defined in Rule 902(k) of Regulation S under the Securities Act and who participated in the transactions in accordance with Regulation S. CEMEX, S.A.B. de C.V., CEMEX México, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX España under the March 2012 Notes on a senior basis. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
September 2012 Notes. In connection with the Refinancing Transaction, on September 17, 2012, CEMEX, S.A.B. de C.V. issued U.S.$500 million aggregate principal amount of its 9.50% Senior Secured Notes due 2018, or the September 2012 Notes, to participating creditors that elected to receive the September 2012 Notes in place of all or a portion of their indebtedness subject to the 2009 Financing Agreement. CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX, S.A.B. de C.V. under the September 2012 Notes on a senior basis. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
October 2012 Notes. On October 12, 2012, our subsidiary, CEMEX Finance LLC, issued U.S.$1.5 billion aggregate principal amount of its 9.375% Senior Secured Notes due 2022, or the October 2012 Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. CEMEX, S.A.B. de C.V., CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX Finance LLC under the October 2012 Notes on a senior basis. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
March 2013 Notes. On March 25, 2013, CEMEX, S.A.B. de C.V. issued U.S.$600 million aggregate principal amount of its 5.875% Senior Secured Notes due 2019, or the March 2013 Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX, S.A.B. de C.V. under the March 2013 Notes. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
August 2013 Notes. On August 12, 2013, CEMEX S.A.B. de C.V. issued U.S.$1.0 billion of aggregate principal amount of its 6.5% Senior Secured Notes due in 2019, or the August 2013 Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group AG, CEMEX Shipping and CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX, S.A.B. de C.V. under the August 2013 Notes. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
October 2013 Notes. On October 2, 2013, CEMEX S.A.B. de C.V. issued U.S.$1.0 billion aggregate principal amount of its 7.25% Senior Secured Notes due in 2021 and U.S.$500 million aggregate amount of its Floating Rate Senior Secured Notes due in 2018, or together, the October 2013 Notes, in transactions exempt
 
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from registration pursuant to Rule 144A and Regulation S under the Securities Act. CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Finance LLC, CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group AG, CEMEX Shipping and CEMEX UK and Empresas Tolteca have fully and unconditionally guaranteed the performance of all obligations of CEMEX, S.A.B. de C.V. under the October 2013 Notes. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
April 2014 Notes. On April 1, 2014, CEMEX Finance LLC issued U.S.$1.0 billion aggregate principal amount of its 6.000% U.S. Dollar-Denominated Senior Secured Notes due 2024, or the April 2014 U.S. Dollar Notes, and €400 million aggregate principal amount of its 5.250% Euro-Denominated Senior Secured Notes due 2021, or the April 2014 Euro Notes and, together with the April 2014 U.S. Dollar Notes, the April 2014 Notes, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. CEMEX, S.A.B. de C.V., CEMEX México, CEMEX España, New Sunward, CEMEX Asia, CEMEX Concretos, CEMEX Corp., CEMEX Egyptian Investments, CEMEX Egyptian Investments II, CEMEX France, CEMEX Research Group, CEMEX Shipping, CEMEX UK, Empresas Tolteca and CEMEX Finance LLC have fully and unconditionally guaranteed the performance of all obligations of CEMEX Finance LLC under the April 2014 Notes. The payment of principal, interest and premium, if any, on such notes is secured by a first-priority security interest over the Collateral and all proceeds of such Collateral.
Mandatory Convertible Securities
On December 10, 2009, CEMEX, S.A.B. de C.V. issued approximately Ps4,126 million (approximately U.S.$315 million) in Mandatory Convertible Securities, in exchange for marketable notes maturing on or before December 31, 2012, pursuant to an exchange offer conducted in Mexico, in transactions exempt from registration pursuant to Regulation S under the Securities Act. The Mandatory Convertible Securities are mandatorily convertible into newly issued CPOs at a conversion price per CPO (calculated as the volume-weighted average price of the CPO for the ten trading days prior to the closing of the exchange offer multiplied by a conversion premium of approximately 1.65), accrue interest, payable in cash, at 10% per annum, provide for the payment of a cash penalty fee, equal to approximately one year of interest, upon the occurrence of certain anticipated conversion events, and mature on November 28, 2019. After antidilution adjustments, the conversion rate as of December 31, 2013 was 435.1874 CPOs per each obligation, equivalent to a conversion price of approximately Ps20.45 per CPO and as of March 20, 2014, has been further adjusted to 452.5949 CPOs per each obligations, reflecting the issuance of CPOs in connection with the recapitalization of earnings approved by shareholders at the 2013 annual general ordinary shareholders’ meeting held on March 20, 2014.
Optional Convertible Subordinated Notes
2010 Optional Convertible Subordinated Notes. On March 30, 2010, CEMEX, S.A.B. de C.V. issued U.S.$715 million aggregate principal amount of its 4.875% Convertible Subordinated Notes due 2015, or the 2010 Optional Convertible Subordinated Notes, including the initial purchasers’ exercise in full of their over-allotment option, in transactions exempt from registration pursuant to Rule 144A under the Securities Act. The conversion rate at issuance was 73.5402 ADSs per U.S.$1,000 principal amount of 2010 Optional Convertible Subordinated Notes. After antidilution adjustments, the conversion rate as of December 31, 2013 was 86.0316 ADSs per U.S.$1,000 principal amount of such notes and as of March 20, 2014, has been further adjusted to 89.4729 ADSs per U.S.$1,000 principal amount of such notes, reflecting the issuance of CPOs in connection with the recapitalization of earnings approved by shareholders at the 2013 annual general ordinary shareholders’ meeting held on March 20, 2014. We used a portion of the net proceeds from the offering of the 2010 Optional Convertible Subordinated Notes to fund the purchase of a capped call transaction, which are expected generally to reduce the potential cost to CEMEX upon future conversion of the 2010 Optional Convertible Subordinated Notes. In February 2014, CEMEX amended the terms of the capped call options related to its 2010 Optional Convertible Subordinated Notes and, separately, in March 2014, holders of
 
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U.S.$280,387,000 in aggregate principal amount of the 2010 Optional Convertible Subordinated Notes converted their 2010 Optional Convertible Subordinated Notes in exchange for approximately 27.73 million of CEMEX, S.A.B. de C.V.’s ADSs pursuant to the Private Inducements.
2011 Optional Convertible Subordinated Notes. On March 15, 2011, CEMEX, S.A.B. de C.V. issued U.S.$977.5 million aggregate principal amount of its 3.25% Convertible Subordinated Notes due 2016 and U.S.$690 million aggregate principal amount of its 3.75% Convertible Subordinated Notes due 2018, or together, the 2011 Optional Convertible Subordinated Notes, including the initial purchasers’ exercise in full of their over-allotment options, in transactions exempt from registration pursuant to Rule 144A and Regulation S under the Securities Act. The 2011 Optional Convertible Subordinated Notes are convertible into a fixed number of ADSs, at any time after June 30, 2011 and are subject to antidilution adjustments. The initial conversion price for the 2011 Optional Convertible Subordinated Notes was equivalent to approximately U.S.$11.28 per ADS, a 30% premium to the closing price of ADSs on March 9, 2011. After antidilution adjustments, the conversion rate as of December 31, 2013 was 99.6866 ADSs per U.S.$1,000 principal amount of such notes and as of March 20, 2014, has been further adjusted to 103.6741 ADSs per U.S.$1,000 principal amount of such notes, reflecting the issuance of CPOs in connection with the recapitalization of earnings approved by shareholders at the 2013 annual general ordinary shareholders’ meeting held on March 20, 2014. We used a portion of the net proceeds from the offering of the 2011 Optional Convertible Subordinated Notes to fund the purchase of capped call transactions, which are expected generally to reduce the potential cost to CEMEX upon future conversion of the 2011 Optional Convertible Subordinated Notes.
Commercial Commitments
As of December 31, 2012 and 2013, we had commitments for the purchase of raw materials for an approximate amount of U.S.$127 million and U.S.$107 million, respectively.
On July 27, 2012, we entered into a Master Professional Services Agreement with IBM. This agreement provides the framework for our contracting for IBM to provide us with the following services: information technology, application development and maintenance, finance and accounting outsourcing, human resources administration and contact center services. The agreement provides for these services to be provided to us from July 27, 2012 until August 31, 2022, unless earlier terminated. Our minimum required payments to IBM under the agreement are approximately U.S.$50 million per year. We will have the right to adjust the cost and quality of the services every two years if it is determined that they do not meet certain benchmarks. We may terminate the agreement (or a portion of it) at our discretion and without cause at any time by providing at least six-months’ notice to IBM and paying termination charges consisting of IBM’s unrecovered investment and breakage and wind-down costs. In addition, we may terminate the agreement (or a portion of it) for cause without paying termination charges. Other termination rights may be available to us for a termination charge that will vary with the reason for termination. IBM may terminate the agreement if we (i) fail to make payments when due or (ii) become bankrupt and do not pay in advance for the services.
In September 2006, in order to take advantage of the high wind potential in the “Tehuantepec Isthmus,” we and ACCIONA formed an alliance to develop a wind farm project for the generation of 250 megawatts in the Mexican state of Oaxaca. We acted as promoter of the project, which was named EURUS. ACCIONA provided the required financing, constructed the facility and currently owns and operates the wind farm. The operation of the 167 wind turbines on the farm commenced on November 15, 2009. The agreements between us and ACCIONA established that our plants in Mexico will acquire a portion of the energy generated by the wind farm for a period of at least 20 years, which began in February 2010, when EURUS reached the committed limit capacity. For the years ended December 31, 2012 and 2013, EURUS supplied approximately 29.1% and 25.8%, respectively, of our overall electricity needs in Mexico during such years.
In 2007, CEMEX Ostzement GmbH (“COZ”), our subsidiary in Germany, entered into a long-term energy supply contract with Vattenfall Europe New Energy Ecopower (“VENEE”), pursuant to which VENEE committed to supply energy to our Rüdersdorf plant for a period of 15 years starting on January 1, 2008. Based
 
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on the contract, each year COZ has the option to fix in advance the volume of energy that it will acquire from VENEE, with the option to adjust the purchase amount one time on a monthly and quarterly basis. According to the contract, COZ acquired (unaudited) approximately 27 MW in 2011, 2012, and 2013, COZ expects to acquire 27 MW per year for 2014, and expects to acquire between 26 and 28 MW per year starting in 2015 and thereafter. The contract, which establishes a price mechanism for the energy acquired, based on the price of energy future contracts quoted on the European Energy Exchange, did not require initial investments and was expected to be performed at a future date. Based on its terms, this contract qualified as a financial instrument under IFRS. However, as the contract is for CEMEX’s own use and CEMEX sells any energy surplus as soon as actual energy requirements are known, regardless of changes in prices and thereby avoiding any intention of trading in energy, such contract is not recognized at its fair value.
In 1999, we entered into agreements with an international partnership, which financed, built and operated an electrical energy generating plant in Mexico called Termoeléctrica del Golfo (“TEG”). In 2007, the original operator was replaced. Pursuant to the agreement, we would purchase the energy generated from TEG for a term of not less than 20 years, which started in April 2004 and that was further extended until 2027 with the change of operator. In addition, we committed to supply TEG and another third-party electrical energy generating plant adjacent to TEG all fuel necessary for their operations, a commitment that has been hedged through four 20-year agreements entered with Petróleos Mexicanos (“PEMEX”), which terminate in 2024. Consequently, for the last 3 years, CEMEX intends to purchase the required fuel in the market. For the years ended December 31, 2013, 2012 and 2011, TEG supplied approximately 70.9%, 67.8% and 69.1%, respectively, of our overall electricity needs during such year for our cement plants in Mexico.
In regards with the above, in March 1998 and July 1999, we signed contracts with PEMEX providing that beginning in April 2004 PEMEX’s refineries in Cadereyta and Madero City would supply us with a combined volume of approximately 1.75 million tons of pet coke per year. As per the pet coke contracts with PEMEX, 1.2 million tons of the contracted volume will be allocated to TEG and the other energy producer and the remaining volume will be allocated to our operations in Mexico. By entering into the pet coke contracts with PEMEX, we expect to have a consistent source of pet coke throughout the 20-year term.
Contractual Obligations
As of December 31, 2012 and 2013, we had material contractual obligations as set forth in the table below.

 	 	As of December 31, 2012	 	 	As of December 31, 2013	 	
Obligations	 	Total	 	 	Less than 1
year	 	 	1-3
year	 	 	3-5
year	 	 	More than
5 years	 	 	Total	 	
 	 	 	 	 	(in millions of U.S. Dollars)	 	
Long-term debt	 	 	U.S.$    13,857	 	 	 	296	 	 	 	765	 	 	 	7,236	 	 	 	6,330	 	 	 	14,627	 	
Capital lease obligations(1)	 	 	361	 	 	 	58	 	 	 	91	 	 	 	61	 	 	 	82	 	 	 	292	 	
Convertible notes(2)	 	 	2,177	 	 	 	14	 	 	 	1,603	 	 	 	625	 	 	 	27	 	 	 	2,269	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total debt and other financial obligations(3)	 	 	16,395	 	 	 	368	 	 	 	2,459	 	 	 	7,922	 	 	 	6,439	 	 	 	17,189	 	
Operating leases(4)	 	 	413	 	 	 	111	 	 	 	157	 	 	 	87	 	 	 	47	 	 	 	402	 	
Interest payments on debt(5)	 	 	5,366	 	 	 	1,037	 	 	 	2,052	 	 	 	2,004	 	 	 	1,196	 	 	 	6,289	 	
Pension plans and other benefits(6)	 	 	1,653	 	 	 	168	 	 	 	320	 	 	 	334	 	 	 	925	 	 	 	1,747	 	
Purchases of raw materials(7)	 	 	127	 	 	 	68	 	 	 	39	 	 	 	—  	  	 	 	—  	  	 	 	107	 	
Purchases of fuel and energy(8)	 	 	3,539	 	 	 	218	 	 	 	443	 	 	 	442	 	 	 	2,278	 	 	 	3,381	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total contractual obligations	 	 	U.S.$    27,493	 	 	 	1,970	 	 	 	5,470	 	 	 	10,789	 	 	 	10,885	 	 	 	29,114	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total contractual obligations (Mexican Pesos)	 	 	Ps  353,285	 	 	 	25,709	 	 	 	71,384	 	 	 	140,796	 	 	 	142,049	 	 	 	379,938	 	

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(1)	Represents nominal cash flows. As of December 31, 2013, the net present value of future payments under such leases is approximately U.S.$210 million (Ps2,743 million), of which, approximately U.S.$28 million (Ps365 million) refers to payments from 1 to 3 years, approximately U.S.32 million (Ps418 million) refers to payments from 3 to 5 years and approximately U.S.$80 million (Ps1,040 million) refers to payments of more than 5 years.	
(2)	Refers to the Mandatory Convertible Securities described herein and assumes repayment at maturity and no conversion of the notes.	
(3)	The schedule of debt payments, which includes current maturities, does not consider the effect of any refinancing of debt that may occur during the following years. In the past, CEMEX has replaced its long-term obligations for others of a similar nature.	
(4)	The amounts for operating leases have been determined on the basis of nominal cash flows. we have operating leases, primarily for operating facilities, cement storage and distribution facilities and certain transportation and other equipment, under which annual rental payments are required plus the payment of certain administrative, selling and distribution expenses. Rental expense was U.S.$156 million (Ps2,003 million) in 2012 and U.S.$126 million (Ps1,647 million) in 2013.	
(5)	Estimated cash flows on floating rate denominated debt were determined using the interest rates in effect as of December 31, 2012 and 2013.	
(6)	Represents estimated annual payments under these benefits for the next 10 years (see note 18 to our 2013 audited consolidated financial statements included elsewhere in this annual report). Future payments include the estimate of new retirees during such future years.	
(7)	Future payments for the purchase of raw materials are presented on the basis of contractual nominal cash flows.	
(8)	Future nominal payments of energy were estimated on the basis of an aggregate average expected consumption of approximately 3,147.8 GWh per year using the future prices of energy established in the contracts for each period. Future payments also include our commitments for the purchase of fuel.	
Off-Balance Sheet Arrangements
We do not have any off-balance sheet arrangements that are reasonably likely to have a material effect on our financial condition, operating results and liquidity or capital resources.
Qualitative and Quantitative Market Disclosure
Our Derivative Financial Instruments
For the year ended December 31, 2012, we had a net loss related to the recognition of changes in fair values of derivative financial instruments of approximately Ps98 million (U.S.$8 million). For the year ended December 31, 2013, we had a net gain related to the recognition of changes in fair values of derivative financial instruments of approximately Ps2,126 million (U.S.$163 million).
Since the beginning of 2009, with the exception of our capped call transaction entered into in March 2010 and March 2011, we have been reducing the aggregate notional amount of our derivatives, thereby reducing the risk of cash margin calls. This initiative has included closing substantially all notional amounts of derivative instruments related to our debt (currency and interest rate derivatives) and the settlement of our inactive derivative financial instruments (see note 16D to our 2013 audited consolidated financial statements included elsewhere in this annual report), which we finalized during April 2009. The Facilities Agreement significantly restricts our ability to enter into derivative transactions.
We use derivative financial instruments in order to change the risk profile associated with changes in interest rates and foreign exchange rates of debt agreements, as a vehicle to reduce financing costs, as an alternative source of financing, and as hedges of: (i) highly probable forecasted transactions, (ii) our net assets in foreign subsidiaries and (iii) future exercises of options under our executive stock option programs. Before
 
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entering into any transaction, we evaluate, by reviewing credit ratings and our business relationship according to our policies, the creditworthiness of the financial institutions and corporations that are prospective counterparties to our derivative financial instruments. We select our counterparties to the extent we believe that they have the financial capacity to meet their obligations in relation to these instruments. Under current financial conditions and volatility, we cannot assure that risk of non-compliance with the obligations agreed to with such counterparties is minimal.
The fair value of derivative financial instruments is based on estimated settlement costs or quoted market prices and supported by confirmations of these values received from the counterparties to these financial instruments. The notional amounts of derivative financial instrument agreements are used to measure interest to be paid or received and do not represent the amount of exposure to credit loss.

 	  	At December 31, 2012	 	 	At December 31, 2013	 	  	Maturity Date	 	
 	  	Notional
amount	 	  	Estimated
Fair value	 	 	Notional
amount	 	  	Estimated
Fair value	 	  	 	 	
 	  	(in millions of U.S. Dollars)	 	  	 	 	
Interest Rate Swaps	  	 	181	 	  	 	49	 	 	 	174	 	  	 	33	 	  	 	September 2022	  	
Equity forwards on third-party shares	  	 	27	 	  	 	—  	  	 	 	27	 	  	 	1	 	  	 	October 2013	  	
Forward instruments over indexes	  	 	5	 	  	 	—  	  	 	 	—  	  	  	 	—  	  	  	 	July 2013	  	
Options on our own shares	  	 	2,743	 	  	 	(138	) 	 	 	2,383	 	  	 	408	 	  	 	March 2015 -March 2018	  	
Our Interest Rate Swaps. As of December 31, 2012 and 2013, we had an interest rate swap maturing in September 2022 with notional amounts of U.S.$181 million and U.S.$174 million, respectively, negotiated to exchange floating for fixed rates in connection with agreements we entered into for the acquisition of electric energy in Mexico. For more information, see note 23C to our 2013 audited consolidated financial statements included elsewhere in this annual report. As of December 31, 2012 and 2013, the fair value of the swap represented assets of approximately U.S.$49 million and U.S.$33 million, respectively. Pursuant to this instrument, during the tenure of the swap and based on its notional amount, we will receive a fixed rate of 5.4% and will pay a LIBOR, which is the international reference for debt denominated in U.S. Dollars. As of December 31, 2012 and 2013, LIBOR was 0.50825% and 0.348%, respectively. Changes in the fair value of interest rate swaps, generated losses of approximately U.S.$12 million (Ps150 million ) in 2011, U.S.$2 million (Ps35 million) in 2012 and U.S.$16 million (Ps207 million) in 2013, which were recognized in the statement of operations for each year.
Our Equity Forwards on Third-Party Shares. As of December 31, 2012 and 2013, we had forward contracts to be settled in cash over the price of 59.5 million CPOs in both years. The contract matures in October 2015. Changes in the fair value of this instrument generated losses of approximately U.S.$35 million (Ps437million ) in 2011 and U.S.$7 million (Ps100 million) in 2012 and a gain of approximately U.S.$6 million (Ps76 million) in 2013, which were recognized in the statement of operations for each year. See “—Liquidity and Capital Resources—Our Equity Forward Arrangements.”
Our Forward Instruments Over Indexes. As of December 31, 2012, CEMEX held forward derivative instruments over the TRI (Total Return Index) of the Mexican Stock Exchange, which matured in April 2013. By means these instrument, CEMEX maintained exposure to increases or decreases of such index. TRI expresses the market return on stocks based on market capitalization of the issuers comprising the index. Changes in the fair value of these instruments generated a loss of approximately U.S.$1 million (Ps13 million) in 2011, a gain of approximately U.S.$1 million (Ps13 million) in 2012 and a gain of approximately U.S.$0.3 million (Ps5 million) in 2013, which were recognized in the statement of operations for each year.
Our Options on Our Own Shares. On March 15, 2011, in connection with the offering of the 2011 Optional Convertible Subordinated Notes and to effectively increase the conversion price for CEMEX, S.A.B. de C.V.’s CPOs under such notes, CEMEX, S.A.B. de C.V. entered into capped call transactions after antidilution adjustments over approximately 166 million ADSs (97 million ADSs maturing in March 2016 and 69 million ADSs maturing in March 2018), by means of which, for the 3.25% Convertible Subordinated Notes due 2016, at
 
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maturity of the notes in March 2016, if the price per ADS is above U.S.$10.0314, we will receive in cash the difference between the market price of the ADS and U.S.$10.0314, with a maximum appreciation per ADS of U.S.$4.6299. Likewise, for the 3.75% Convertible Subordinated Notes due 2018, at maturity of the notes in March 2018, if the price per ADS is above U.S.$10.0314, we will receive in cash the difference between the market price of the ADS and U.S.$10.0314, with a maximum appreciation per ADS of U.S.$6.1732. We paid a total premium of approximately U.S.$222 million. As of December 31, 2012 and 2013, the fair value of such options represented an asset of approximately U.S.$226 million (Ps2,899 million) and U.S.$353 million (Ps4,607 million), respectively. During 2011, 2012 and 2013, changes in the fair value of this contract generated a loss of approximately U.S.$153 million (Ps1,906 million), a gain of approximately U.S.$155 million (Ps1,973 million) and a gain U.S.$127 million (Ps1,663 million), respectively, which were recognized in the statements of operations for each year. In addition, until December 31, 2012 considering that the currency in which the notes are denominated and the functional currency of the issuer differed, CEMEX, S.A.B. de C.V. separated the conversion options embedded in the 2016 Convertible Notes and the Convertible 2018 Notes and recognized them at fair value, which as of December 31, 2012, resulted in a liability of approximately U.S.$301 million (Ps3,862 million). Changes in fair value of the conversion options generated a gain of approximately U.S.$279 million (Ps3,482 million) in 2011 and a loss in 2012 for approximately U.S.$243 million (Ps3,078 million), which were recognized in the statement of operations for each year. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity.
On March 30, 2010, after antidiluton adjustments in connection with the offering of the 2010 Optional Convertible Subordinated Notes and to effectively increase the conversion price for CEMEX, S.A.B. de C.V.’s CPOs under such notes, CEMEX, S.A.B. de C.V. entered into a capped call transaction over approximately 62 million ADSs maturing in March 2015, by means of which, at maturity of the notes, if the price per ADS is above U.S.$11.6236, we will receive in cash the difference between the market price of the ADS and U.S.$11.6236, with a maximum appreciation per ADS of U.S.$4.4706. We paid a premium of approximately U.S.$105 million. As of December 31, 2012 and 2013, the fair value of such options represented an asset of approximately U.S.$58 million (Ps751 million) and U.S.$94 million (Ps1,228 million), respectively. During 2011, 2012 and 2013, changes in the fair value of this contract generated a loss of approximately U.S.$79 million (Ps984 million), a gain of approximately U.S.$47 million (Ps594 million) and a gain of approximately U.S.$36 million (Ps465 million), respectively, which were recognized within “Other financial income (expense), net” in the statements of operations for each year. In addition, until December 31, 2012 considering that the currency in which the notes are denominated and the functional currency of the issuer differed, CEMEX, S.A.B. de C.V. separated the conversion option embedded in the 2015 Convertible Notes and recognized it at fair value, which as of December 31, 2012, resulted in a liability of approximately U.S.$64 million (Ps828 million). Changes in fair value of the conversion options generated a gain of approximately U.S.$97 million (Ps1,211 million) in 2011, a loss in 2012 for approximately U.S.$56 million (Ps708 million), which were recognized in the statement of operations for each year. As mentioned in the paragraph above, effective January 1, 2013, the conversion option embedded in the 2010 Optional Convertible Notes ceased to be treated as stand-alone derivative at fair value through the statement of operations. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity. In February 2014, we amended the terms of the capped call options related to our 2010 Optional Convertible Notes.
Conversely, in connection with the Mandatory Convertible Securities (see note 16B to our 2013 audited consolidated financial statements included elsewhere in this annual report), and considering the aforementioned change in CEMEX, S.A.B. de C.V.’s functional currency effective January 1, 2013 and that the currency in which such Mandatory Convertible Securities are denominated and the functional currency of the issuer differ, we separate now the conversion option embedded in such instruments and recognizes it at fair value, which as of December 31, 2013, resulted in a liability of approximately U.S.$39 million (Ps506 million). Changes in fair value of the conversion option generated in 2013 a loss of approximately U.S.$10 million (Ps135 million).
As of December 31, 2012, we had granted a guarantee for a notional amount of approximately U.S.$360 million in connection with put option transactions on CEMEX, S.A.B. de C.V.’s CPOs entered into by Citibank
 
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with a Mexican trust that we established on behalf of our Mexican pension fund and certain of our directors and current and former employees in April 2008, as described in notes 16D and 23C to our 2013 audited consolidated financial statements included elsewhere in this annual report. The fair value of such guarantee, net of deposits in margin accounts, represented a liability of approximately U.S.$58 million (Ps740 million) in 2012. As of December 31, 2011 and 2012, cash deposits in margin accounts were approximately U.S.$225 million (Ps3,141 million) and U.S.$76 million (Ps975 million). As of April 17, 2013, the notional amount of the guarantee was completely closed as a result of the unwinding of 100% of the original underlying amount of put options over CPOs of CEMEX, S.A.B. de C.V. Cash and cash deposits in margin accounts, after deducting the proceeds from the sale of securities that track the performance of the Mexican Stock Exchange and CEMEX, S.A.B. de C.V.’s CPOs held by the Mexican trust in an aggregate amount of approximately U.S.$112 million, were used to settle the unwinding of these put options.
Interest Rate Risk, Foreign Currency Risk and Equity Risk
Interest Rate Risk. The table below presents tabular information of our fixed and floating rate long-term foreign currency-denominated debt as of December 31, 2013. Average floating interest rates are calculated based on forward rates in the yield curve as of December 31, 2013. Future cash flows represent contractual principal payments. The fair value of our floating rate long-term debt is determined by discounting future cash flows using borrowing rates available to us as of December 31, 2013 and is summarized as follows:

 	  	Expected maturity dates as of December 31, 2013	 	  	Fair
Value	 	
Long-Term Debt(1)	  	2014	 	 	2015	 	 	2016	 	 	2017	 	 	After
2018	 	 	Total	 	  	 	 	
 	  	(In millions of U.S. Dollars, except percentages)	 	
Variable rate	  	U.S.$	758	  	 	 	4	  	 	 	4,156	  	 	 	500	  	 	 	—  	  	 	U.S.$	5,418	  	  	U.S.$	5,626	  	
Average interest rate	  	 	4.59	% 	 	 	5.76	% 	 	 	6.92	% 	 	 	7.93	% 	 	 	4.58	% 	 	 	 	 	  	 	 	 	
Fixed rate	  	U.S.$	3	  	 	 	—  	  	 	 	456	  	 	 	2,124	  	 	 	6,330	  	 	U.S.$	8,913	  	  	U.S.$	10,076	  	
Average interest rate	  	 	8.50	% 	 	 	8.50	% 	 	 	8.50	% 	 	 	8.50	% 	 	 	8.28	% 	 	 	 	 	  	 	 	 	
 
(1)	The information above includes the current maturities of the long-term debt. Total long-term debt as of December 31, 2013 does not include our other financial obligations and the Perpetual Debentures for an aggregate amount of U.S.3,490 million (Ps45,541 million) issued by consolidated entities. See notes 16B and 20D to our 2013 audited consolidated financial statements included elsewhere in this annual report.	
As of December 31, 2013, we were subject to the volatility of floating interest rates, which, if such rates were to increase, may adversely affect our financing cost and our net income. As of December 31, 2013, 38% of our foreign currency-denominated long-term debt bears floating rates at a weighted average interest rate of LIBOR plus 458 basis points. See note 16 to our 2013 audited consolidated financial statements included elsewhere in this annual report.
Foreign Currency Risk. Due to our geographic diversification, our revenues are generated in various countries and settled in different currencies. However, some of our production costs, including fuel and energy, and some of our cement prices, are periodically adjusted to take into account fluctuations in the U.S. Dollar/Mexican Peso exchange rate. For the year ended December 31, 2013, approximately 20% of our net sales, before eliminations resulting from consolidation, were generated in Mexico, 20% in the United States, 7% in the United Kingdom, 7% in Germany, 6% in France, 6% in our Rest of Northern Europe geographic segment, 2% in Spain, 3% in Egypt, 5% in our Rest of the Mediterranean segment, 6% in Colombia, 7% in our Rest of South America and the Caribbean segment, 4% in Asia and 7% from our Other operations.
As of December 31, 2013, approximately 86% of our total debt plus other financial obligations was U.S. Dollar-denominated, approximately 11% was Euro-denominated, approximately 3% was Mexican Peso-denominated and immaterial amounts were denominated in other currencies, which does not include approximately Ps6,223 million (U.S.$477 million) of Perpetual Debentures; therefore, we had a foreign currency exposure arising from the debt plus other financial obligations denominated in U.S. Dollars, and the debt and
 
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other financial obligations denominated in Euros, versus the currencies in which our revenues are settled in most countries in which we operate. We cannot guarantee that we will generate sufficient revenues in Euros from our operations in Spain, Germany, France and the Rest of Northern Europe to service these obligations. As of December 31, 2012 and 2013, CEMEX had not implemented any derivative financing hedging strategy to address this foreign currency risk.
Equity Risk. As described above, we have entered into equity forward contracts on Axtel shares. Upon liquidation, the equity forward contracts provide for cash settlement and the effects are recognized in the statement of operations as part of “Other financial income (expense), net.” At maturity, if these forward contracts are not settled or replaced, or if we default on these agreements, our counterparties may sell the shares of the underlying contracts. Under these equity forward contracts, there is a direct relationship in the change in the fair value of the derivative with the change in value of the underlying asset.
As of December 31, 2013, the potential change in the fair value of these contracts that would result from a hypothetical, instantaneous decrease of 10% in the market price of Axtel CPOs would be a loss of approximately U.S.$2 million (Ps28 million).
In addition, we have entered into forward contracts on the TRI of the Mexican Stock Exchange through which we maintained exposure to changes of such index, until maturity in April 2013 and July 2013. Upon liquidation, these forward contracts provide for cash settlement of the estimated fair value and the effects are recognized in the statement of operations. Under these equity forward contracts, there is a direct relationship in the change in the fair value of the derivative with the change in value of the TRI of the Mexican Stock Exchange. See “—Qualitative and Quantitative Market Disclosure—Our Derivative Financial Instruments—Our Forward Instruments Over Indexes.”
In connection with the offering of the 2010 Optional Convertible Subordinated Notes and the 2011 Optional Convertible Subordinated Notes issued in March 2010 and March 2011, respectively, we entered into capped call transactions with the financial institutions involved on those transactions or their affiliates. See “—Qualitative and Quantitative Market Disclosure—Our Derivative Financial Instruments—Our Options on Our Own Shares.”
As of December 31, 2013 and 2012, the potential change in the fair value of our options (capped call) and the put option transaction based on the price of CEMEX, S.A.B. de C.V.’s CPOs that would result from a hypothetical, instantaneous decrease of 10% in the market price of CEMEX, S.A.B. de C.V.’s CPOs, with all other variables held constant, would have increased our net loss for 2012 and 2013 by approximately U.S.$76 million (Ps971 million) and U.S.$89 million (Ps1,155 million), respectively, as a result of additional negative changes in fair value associated with these contracts. A 10% hypothetical increase in the CPO price would generate approximately the opposite effect.
In addition, even though the changes in fair value of our embedded conversion options in the convertible notes affect the statements of operations, they do not imply any risk or variability in cash flows, considering that through their exercise, we will settle a fixed amount of debt with a fixed amount of shares. As of December 31, 2013 and 2012, after considering in the convertible notes the effects related with the change in CEMEX, S.A.B. de C.V.’s functional currency in 2013, the potential change in the fair value of these embedded conversion options that would result from a hypothetical, instantaneous decrease of 10% in the market price of CEMEX, S.A.B. de C.V.’s CPOs, with all other variables held constant, would have decreased our net loss for 2012 and 2013 by approximately U.S.$89 million (Ps1,148 million) and U.S.$8 million (Ps102 million), respectively, as a result of additional positive changes in fair value associated with this option. A 10% hypothetical increase in the CPO price would generate approximately the opposite effect.
Liquidity risk. The requirement of margin calls based on the relevant master agreements under our derivative instruments can have a significant negative effect on our liquidity position and can impair our ability to service our debt and fund our capital expenditures. In addition to the current amount of margin calls previously described as of December 31, 2013 referring to our derivative financial instrument positions of approximately
 
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U.S.$7 million (Ps95 million). The potential requirement as of December 31, 2013 for additional margin calls that would result from a hypothetical instantaneous decrease of 10% in the prices of Axtel shares and CEMEX CPOs would not be significant.
Investments, Acquisitions and Divestitures
The transactions described below represent our principal investments, acquisitions and divestitures completed during 2011, 2012 and 2013.
Investments and Acquisitions
On June 3, 2013, we announced that we expect to invest approximately U.S.$100 million (approximately 700 million Egyptian Pounds) to improve our operations in Egypt and to continue supporting the country’s housing, commercial and infrastructure development. A sizable percentage of the investment will be used by the company to increase our capacity to use coal and pet coke as energy sources in our Assiut cement plant. We also expect to install new waste co-processing and environmental equipment in the plant to continue reducing our emissions and to increase its alternative fuels usage.
On May 30, 2013, we announced plans to expand the production capacity at our Odessa, Texas cement plant by 345,000 metric tons to nearly 900,000 metric tons per year in order to keep pace with growing demand in the West Texas market led mainly by the oil and gas industry. The demand for specialty cement products used in well construction for the oil and gas industry is growing as a result of the use of more efficient extraction technologies, such as horizontal drilling and hydraulic fracturing. Oil wells using this technology typically reach depths of thousands of feet. Specialty well cement is required for the complex application and extreme conditions to which these wells are exposed.
In October 2012, Corporación Cementera Latinoamericana, S.L.U. (Sociedad Unipersonal), an indirect subsidiary of CEMEX España, completed the acquisition of the 49% non-controlling interest in CEMEX Guatemala, S.A., our main operating subsidiary in Guatemala, in a private transaction for approximately U.S.$54 million (approximately Ps694 million), recognizing within “Other equity reserves” a loss of approximately U.S.$32 million (approximately Ps411 million).
On May 17, 2012, through a public tender offer commenced on March 12, 2012, and after compliance with applicable regulations in the Republic of Ireland, Readymix Investments, an indirect subsidiary of CEMEX España, acquired the 38.8% non-controlling interest in Readymix plc, our main operating subsidiary in the Republic of Ireland, for approximately €11 million (U.S.$15 million or Ps187 million), for €0.25 per share in cash. The listing and trading of Readymix plc’s shares on the Irish Stock Exchange was cancelled beginning on May 18, 2012.
On July 1, 2005, we and Ready Mix USA, a privately owned ready-mix concrete producer with operations in the southeastern United States, established two joint ventures, CEMEX Southeast, LLC, a cement company, and Ready Mix USA LLC, a ready-mix concrete company, to serve the construction materials market in the southeast region of the United States.
Pursuant to the terms of the limited liability company agreements, Ready Mix USA had a put option right, which, upon exercise, required us to acquire Ready Mix USA’s interest in CEMEX Southeast, LLC and Ready Mix USA LLC. As a result of Ready Mix USA’s exercise of its put option (see note 15B to our 2013 audited consolidated financial statements included elsewhere in this annual report), and after performance of the obligations by both parties under the put option agreement, effective as of August 1, 2011, through the payment of approximately U.S.$352 million (approximately Ps4,914 million), we acquired our former joint venture partner’s interests in CEMEX Southeast, LLC and Ready Mix USA, LLC, including a non-compete and a transition services agreement. In accordance with the joint venture agreements, from the date on which Ready Mix USA exercised its put option until the date we acquired Ready Mix USA’s interest, Ready Mix USA
 
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continued to control and manage Ready Mix USA, LLC. Nonetheless, based on IAS 27, considering the existence of a settlement price that could have been paid any time until September 30, 2011 at our election, Ready Mix USA LLC’s balance sheet was consolidated as of March 31, 2011 and its operating results beginning April 1, 2011. Upon consolidation, the purchase price was assigned to each joint venture in proportion to our relative contribution interest in CEMEX Southeast, LLC and Ready Mix USA, LLC considering the original fair values as of the dates of the agreements in 2005. We fully consolidated the acquisition of the minority interest in CEMEX Southeast, LLC, as of the acquisition date, and Ready Mix USA, LLC generated an aggregate gain of approximately U.S.$24 million (approximately Ps316 million), which was recognized within “Other expenses, net.” During 2012, after the completion of the purchase price allocation, there were changes in the values of certain assets and liabilities, none of which were individually significant, which decreased the aggregate gain on purchase by approximately U.S.$1 million (approximately Ps13 million).
Ready Mix USA, LLC’s net assets as of December 31, 2013, CEMEX consolidated net assets of approximately Ps6,180 million, including cash and cash equivalents for approximately Ps6 million and debt for approximately Ps2,883 million.
Our total additions in property, machinery and equipment, as reflected in our 2013 audited consolidated financial statements (see note 14 to our 2013 audited consolidated financial statements included elsewhere in this annual report), excluding acquisitions of equity interests in subsidiaries and associates and including capital leases, was approximately U.S.$468 million in 2011, U.S.$609 million in 2012, and U.S.$606 million in 2013. This capital expenditure in property, machinery and equipment has been applied to the construction and upgrade of plants and equipment and the maintenance of plants and equipment, including environmental controls and technology updates. As of the date of this annual report, we have allocated approximately U.S.$58 million of our U.S.$645 million 2014 budget to continue with this effort.
Divestitures
During 2013 we sold assets for approximately U.S.$172 million comprised in part by real estate, non-core businesses and equipment.
In November 2012, CEMEX Latam, a then wholly-owned subsidiary of CEMEX España, completed the sale of newly issued common shares in the CEMEX Latam Offering, representing approximately 26.65% of CEMEX Latam’s outstanding common shares. CEMEX Latam’s common shares are listed on the Colombian Stock Exchange ( Bolsa de Valores de Colombia S.A. ). The net proceeds to CEMEX Latam from the offering were approximately U.S.$960 million, after deducting underwriting discounts, commissions and offering expenses. CEMEX Latam used the net proceeds to repay a portion of the indebtedness owed to us, which we used for general corporate purposes, including the repayment of indebtedness. CEMEX Latam is the main holding company for CEMEX’s operations in Brazil, Colombia, Costa Rica, Guatemala, Nicaragua, Panama and El Salvador. As of December 31, 2013, CEMEX España owned approximately 73.35% of CEMEX Latam’s outstanding common shares, excluding shares held in treasury.
During 2011 we sold assets for approximately U.S.$225 million comprised in part by real estate, non-core businesses and equipment.
Recent Developments
Recent Developments Relating to Our Operations
Mexican Integration Initiative
Historically, CEMEX’s business in Mexico had been primarily run by three subsidiaries, CEMEX México, CEMEX Concretos and CEMEX Agregados, S.A. de C.V. (“CEMEX Agregados”). In line with the intention to increase operational efficiency, starting the first quarter of 2014, CEMEX launched an initiative within its
 
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Mexican business which involved concentrating the majority of the operations of the Mexican business under a single entity. Under the Mexican business structure, separate CEMEX entities in Mexico serviced different lines of business (e.g. cement, concrete and aggregates). CEMEX has begun the integration of these lines of business (e.g. the production and commercial and administrative activities related to the sale of cement, ready-mix concrete, aggregates and other construction materials in Mexico) into one entity, CEMEX, S.A.B. de C.V. This single entity is capable of providing customers from all end-user segments (including distributors, builders and manufacturers) with a full service platform in Mexico. As a result, CEMEX, S.A.B. de C.V. will be the single entity under which the Mexican business will be operated, predominantly by leasing assets in Mexico (including relevant property, plant and equipment) mainly from CEMEX México, CEMEX Concretos and CEMEX Agregados. An administrative trust incorporated pursuant to the laws of Mexico will manage the lease payments and engage in other activities as permitted by the laws of Mexico and our debt agreements. CEMEX, S.A.B. de C.V. will continue to consolidate all of our companies. The required shareholders’ and creditors’ approvals have been obtained.
Recent Developments Relating to Our Shareholders
2013 Shareholders’ Meetings
On March 20, 2014, CEMEX, S.A.B. de C.V. held its 2013 annual general ordinary shareholders’ meeting at which its shareholders approved, among other items, (i) an increase in the variable portion of CEMEX, S.A.B. de C.V.’s capital stock of up to 1,404,099,228 shares (equivalent to 468,033,076 CPOs or approximately 46.8 million ADSs) paid with a charge to retained earnings; (ii) an increase in the variable portion of CEMEX, S.A.B. de C.V.’s capital stock through the issuance of up to 387 million shares (equivalent to 129 million CPOs or 12.9 million ADSs), such shares to be kept in CEMEX, S.A.B. de C.V.’s treasury and to be used to preserve the rights of note holders pursuant to the outstanding Mandatory Convertible Securities and the 2010 Optional Convertible Subordinated Notes and 2011 Optional Convertible Subordinated Notes; and (iii) a reduction in the variable portion of CEMEX, S.A.B. de C.V.’s capital stock through the cancellation of 6,219,606 shares (equivalent to approximately 2 million CPOs or approximately 200,000 ADSs).
In addition, on March 20, 2014, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting at which its shareholders approved, among other items, the board of directors’ proposal to expand the corporate purpose of CEMEX, S.A.B. de C.V. so that, aside from being a holding company, CEMEX, S.A.B. de C.V. can undertake operating activities related to the production and commercialization of cement, ready-mix concrete and aggregates.
Recent Developments Relating to Our Indebtedness
Private Inducements for 2010 Optional Convertible Subordinated Notes
On February 28, 2014, CEMEX, S.A.B. de C.V. entered into private conversion agreements with certain institutional holders of its 2010 Optional Convertible Subordinated Notes pursuant to which such holders converted U.S.$280,387,000 in aggregate principal amount of the 2010 Optional Convertible Subordinated Notes in exchange for approximately 27.73 million of CEMEX, S.A.B. de C.V.’s ADSs. Following the closing of the Private Inducements in March 2014, U.S.$434,613,000 aggregate principal amount of the 2010 Optional Convertible Subordinated Notes remained outstanding.
Repayment of Eurobonds
On March 5, 2014, CEMEX Finance Europe B.V. repaid the remaining €247,442,000 aggregate principal amount outstanding of its Eurobonds at their maturity using a portion of the proceeds from the October 2013 Notes.
 
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2015 Capped Call Amendment
On January 13, 2014, considering its short term maturity and using prevailing market valuation of the instrument, CEMEX, S.A.B. de C.V. initiated a process to amend the terms of its capped call options to be settled in 2015 that were purchased in connection with the issuance of its 2010 Optional Convertible Subordinated Notes. The execution of this amendment, which does not require any cash payments, was finalized in February 2014. As a result of this amendment, CEMEX, S.A.B. de C.V. has the right to receive the market value of approximately 7.7 million of ADSs through the same number of zero-strike call options maturing in March 2015, which will be marked-to-market through profit or loss prospectively.
Offering of April 2014 U.S. Dollar Notes and April 2014 Euro Notes
On April 1, 2014, CEMEX Finance LLC issued U.S.$1.0 billion aggregate principal amount of its April 2014 U.S. Dollar Notes and €400 million aggregate principal amount of its April 2014 Euro Notes. The net proceeds from the offering of the April 2014 U.S. Dollar Notes of approximately U.S.$995 million and the offering of the April 2014 Euro Notes of approximately €398 million were used to fund the April 2014 Tender Offer and the December 2009 Euro Notes Redemption, with the remainder to be used for general corporate purposes, including to fund May 2010 Euro Notes Redemption.
April 2014 Tender Offer
On April 9, 2014, CEMEX Finance LLC completed the purchase of U.S.$597,153,000 aggregate principal amount of May 2010 U.S. Dollar Notes and U.S.$482,847,000 aggregate principal amount of January 2011 Notes through the April 2014 Tender Offer using a portion of the proceeds from the issuance of the April 2014 Notes, which May 2010 U.S. Dollar Notes and January 2011 Notes were immediately cancelled. Following the settlement of the April 2014 Tender Offer, U.S.$595,843,000 aggregate principal amount of May 2010 U.S. Dollar Notes and U.S.$1,167,153,000 aggregate principal amount of January 2011 Notes remained outstanding.
December 2009 Euro Notes Redemption
On April 25, 2014, CEMEX Finance LLC completed the redemption of the remaining €130,000,000 aggregate principal amount of its December 2009 Euro Notes using a portion of the proceeds from the issuance of the April 2014 Euro Notes.
May 2010 Euro Notes Redemption
On April 1, 2014, CEMEX España, acting through its Luxembourg branch, issued a notice to redeem the €115,346,000 remaining aggregate principal amount outstanding of its May 2010 Euro Notes. CEMEX España expects to complete the May 2010 Euro Notes Redemption on May 12, 2014 using a portion of the proceeds from the issuance of the April 2014 Euro Notes.
Recent Developments Relating to Our Competitors
Proposed Merger of Holcim Ltd. and Lafarge S.A.
On April 7, 2014, Holcim and Lafarge, two of our largest global competitors, announced their intention to combine their two companies through a merger, with the resulting company to be named LafargeHolcim. As of the date of this annual report, we cannot predict what impact the proposed merger would have on our operations, on the prices for our products, on the entrance of new competitors in the markets in which we compete with Holcim and Lafarge, on our competitive position in the markets in which we operate, the price of our shares or our previously announced proposed transactions with Holcim in Europe. We also cannot predict whether the proposed merger will be completed on the terms announced or at all.
 
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Item 6—Directors, Senior Management and Employees
Senior Management and Directors
Senior Management
Set forth below is the name and position of each member of our senior management team as of the date of this annual report. The terms of office of the senior managers are indefinite.

Name, Position (Age)	  	Experience	
Lorenzo H. Zambrano Treviño,
Chief Executive Officer (70)	  	Joined CEMEX in 1968. During his career with CEMEX, Mr. Zambrano has been involved in all operational aspects of our business. He held several positions in CEMEX prior to his appointment as Director of Operations in 1981. In 1985, Mr. Zambrano was appointed chief executive officer, and in 1995 he was elected chairman of the board of directors. Mr. Zambrano is a graduate of Instituto Tecnológico y de Estudios Superiores de Monterrey, A.C., or ITESM, with a degree in mechanical engineering and administration and has an M.B.A. from Stanford University.	
 	  	 
Mr. Zambrano has been a member of our board of directors since 1979 and chairman of our board of directors since 1995. He is a member of the board of directors of Cementos Chihuahua, IBM, Enseñanza e Investigación Superior, A.C. and Museo de Arte Contemporáneo de Monterrey A.C. (MARCO). Mr. Zambrano participated in the chairman’s Council of Daimler Chrysler AG until July 2005, was a member of the Stanford University’s Graduate School of Business Advisory Council until 2006, of the board of directors of Vitro, S.A.B. de C.V. until 2007, of the board of directors of Alfa, S.A.B. de C.V., or Alfa, until 2008, of the board of directors of Grupo Televisa, S.A.B. and Banamex until April 2009 and of the board of directors of Fomento Económico Mexicano S.A.B. de C.V., or FEMSA and the international advisory board of Citigroup until 2011 and served as chairman of the board of directors of Enseñanza e Investigación Superior, A.C., which manages ITESM, until February 2012.	
 	  	 
In recognition of his business and philanthropic record, Mr. Zambrano has received several awards and recognitions, including the Woodrow Wilson Center’s Woodrow Wilson Award for Corporate Citizenship, the America’s Society Gold Medal Distinguished Service Award, and Stanford University’s Graduate School of Business Alumni Association’s Ernest C. Arbuckle Award.	
 	  	 
Mr. Zambrano is a first cousin of Rogelio Zambrano Lozano, a second cousin of Roberto Luis Zambrano Villarreal and second uncle of Tomás Milmo Santos, all members of our board of directors.	
 
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Name, Position (Age)	  	Experience	
Juan Romero Torres,
President CEMEX México (57)	  	Joined CEMEX in 1989 and has occupied several senior management positions, including president of CEMEX Colombia, president of our operations in Mexico, president of the South America and the Caribbean region and president of our former Europe, Middle East, Africa and Asia region. He is currently president of our operations in Mexico and is also in charge of our global technology area. Mr. Romero graduated from Universidad de Comillas in Spain, where he studied law and economic and enterprise sciences.	
 	  	 
Mr. Romero was appointed vice-president and representative of the board of directors of the Cement National Chamber ( Cámara Nacional del Cemento ) in June 2011 and member of the board of directors of Cementos Chihuahua in April 2011.	
 	 	
Jaime Gerardo Elizondo Chapa,
President CEMEX South America and the Caribbean (50)	  	Joined CEMEX in 1985 and since then he has headed several operations, including Panama, Colombia, Venezuela, and, more recently, Mexico. He is the current president of CEMEX South America (including Central America) and the Caribbean, and is also in charge of the company’s global procurement area. Mr. Elizondo has served as a member of the board of directors of Cementos Chihuahua, as president and vice-president of the Cement National Chamber ( Cámara Nacional del Cemento ) and as president of the Transformation Industry Chamber of Nuevo León ( Cámara de la Industria de la Transformación de Nuevo León ). Mr. Elizondo is currently the chairman of CEMEX Latam’s board of directors. He graduated with a BS in chemical and system engineering and an MBA from ITESM.	
 	 	
Ignacio Madridejos Fernández,
President CEMEX Northern Europe (48)	  	Joined CEMEX in 1996 and, after holding management positions in the strategic planning area, he headed CEMEX’s operations in Egypt, Spain, and Western Europe. He is currently president of CEMEX Northern Europe, and is also responsible for our global energy and sustainability area. Mr. Madridejos Fernández is also a member of the board of CEMEX Latam. He has served as a member of the board of directors of COMAC ( Comercial de Materiales de Construcción S.L. ), member of the board and president of OFICEMEN ( Agrupación de Fabricantes de Cemento de España ), member of the board of IECA ( Instituto Español del Cemento y sus Aplicaciones ), president of CEMA ( Fundación Laboral del Cemento y el Medioambiente ), patron of the Junior Achievement Foundation, vice-president and chairman of CEMBUREAU (European Cement Association). He graduated with a degree in civil engineering from the Polytechnic University of Madrid and holds an M.B.A. from Stanford University.	
 	 	
Jaime Muguiro Domínguez,
President CEMEX Mediterranean (45)	  	Joined CEMEX in 1996, and held several executive positions in the areas of strategic planning, business development, ready-mix concrete, aggregates, and human resources. More recently, he headed CEMEX’s operations in Egypt. He is currently	
 
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Name, Position (Age)	  	Experience	
 	  	president of CEMEX Mediterranean, which includes operations in Spain, Egypt, Croatia and the Middle East, and a member of CEMEX Latam’s board of directors. He graduated with a management degree from San Pablo CEU University, and holds a law degree from the Complutense University of Madrid and an M.B.A. from the Massachusetts Institute of Technology.	
 	 	
Karl H. Watson Jr.,
President CEMEX USA (49)	  	Joined CEMEX in 2007, after a successful career of more than 19 years in the building materials industry. Since then, he has held several senior positions in our operations in Florida and the Eastern region of the United States. Before joining CEMEX, he headed the ready-mix concrete and concrete products divisions of Rinker in the United States and Australia. He is currently president of CEMEX USA. Mr. Watson served as chairman of the Florida Concrete and Products Association from 2008 to 2009 and was appointed chairman of the NRMCA from 2010 to 2011 and member of the executive committee of the Portland Cement Association from 2011 to 2013. He holds a B.S. from the Palm Beach Atlantic University and an M.B.A. from the University of Nova Southeastern, both in Florida.	
 	 	
Joaquín Miguel Estrada Suarez,
President CEMEX Asia (50)	  	Joined CEMEX in 1992 and has held several executive positions, including head of operations in Egypt and Spain, as well as head of trading for Europe, the Middle East and Asia. He is currently president of CEMEX Asia and is also responsible for our global trading activities. From 2008 to 2011, he served as a member of the board of directors of COMAC ( Comercial de Materiales de Construcción S.L. ), president and member of the board of OFICEMEN ( Agrupación de Fabricantes de Cemento de España ), and member of the board of IECA ( Instituto Español del Cemento y sus Aplicaciones ), he was also the president of CEMA ( Fundación Laboral del Cemento y el Medioambiente ) from 2010 to 2011. He graduated with a degree in economics from the University of Zaragoza and holds an M.B.A. from the Instituto de Empresa.	
 	 	
Fernando A. González Olivieri,
Executive Vice President of Finance and Administration and Chief Financial Officer (59)	  	Joined CEMEX in 1989, and has served as corporate vice-president of strategic planning from 1994 to 1998, president of CEMEX Venezuela from 1998 to 2000, president of CEMEX Asia from 2000 to May 2003, and president of the South American and the Caribbean region from May 2003 to February 2005. In March 2005, he was appointed president of the expanded European Region, in February 2007, president of our former Europe, Middle East, Africa, Asia and Australia Region, and, in May 2009, executive vice president of planning and development. In February 2010, Mr. Gonzalez was appointed executive vice president of planning and finance and in 2011 he was appointed executive vice president of finance (chief financial officer) and administration. He is a member of the board of directors of Cementos Chihuahua. Mr. González earned his B.A. and M.B.A. degrees from ITESM.	
 
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Name, Position (Age)	  	Experience	
Juan Pablo San Agustín Rubio,
Executive Vice President of Strategic Planning and New Business Development (45)	  	Joined CEMEX in 1994 and has held executive positions in the strategic planning, continuous improvement, e-business, and marketing areas. He is currently executive vice president of strategic planning and new business development and vice president of the board of directors of CEMEX Latam. He graduated with a B.S. from the Universidad Metropolitana and holds an International M.B.A. from the Instituto de Empresa.	
 	 	
Luis Hernández Echávez,
Executive Vice President of Organization and Human Resources (50)	  	Joined CEMEX in 1996, and has held senior management positions in the strategic planning and human resources areas. He is currently executive vice president of organization and human resources. He graduated with a degree in civil engineering from ITESM, and holds a master’s degree in civil engineering and an M.B.A. from the University of Texas at Austin. Mr. Hernández is also a member of the board of directors of Universidad Regiomontana, A.C. and an alternate director of Cementos Chihuahua.	
 	 	
Francisco Javier Garza Zambrano,
Vice Chairman of the Board of CEMEX México, Chairman of CEMEX Latin America Advisory Board and Advisor to the CEO on Institutional Relations (58)	  	Joined CEMEX in 1988 and has served as director of trading from 1988 to 1992, president of CEMEX USA from 1992 to 1994, president of CEMEX Venezuela from 1994 to 1996 and Cemento Bayano from 1995 to 1996, president of CEMEX México and CEMEX USA from 1996 to 1998, president of the our former North American region and trading from 1998 to 2009 and, in 2009, he was appointed president of our former Americas region until 2011. In 2011, he was appointed vice chairman of the board of CEMEX México, chairman of the Advisory Board of CEMEX Latin America and advisor to the CEO on Institutional Relations.	
 	  	 
Mr. Garza Zambrano is a member of the board of directors of Universidad Regiomontana, A.C. (“UR”) and of the board of directors of Cementos Chihuahua. He is a graduate in business administration from ITESM and has an M.B.A. from the Johnson School of Management at Cornell University in 1982.	
 	 	
Víctor Manuel Romo Muñoz,
Executive Advisor to the Chairman and CEO (56)	  	Joined CEMEX in 1985 and has served as director of administration of CEMEX España from 1992 to 1994, general director of administration and finance of CEMEX España from 1994 to 1996, president of CEMEX Venezuela from 1996 to 1998, president of our former South American and the Caribbean region from 1998 to May 2003, and executive vice president of administration from May 2003 to April 2011. In April 2011, he was appointed executive advisor to the chairman and chief executive officer of CEMEX. He is a member of the board of directors of Cementos Chihuahua. Mr. Romo is a certified public accountant and received a master’s degree in administration and finance from ITESM. Previously, he worked for Alfa from 1979 to 1985.	
 
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Name, Position (Age)	  	Experience	
Rafael Garza Lozano,
Chief Accounting Officer (50)	  	Joined CEMEX in 1985 and has served as chief accounting officer since 1999. Mr. Garza is a certified public accountant and received a master’s degree in administration and finance from ITESM. He also attended executive programs at ITAM, IPADE and Harvard University. He is currently a member of the board of directors of Consejo Mexicano para la Investigación y Desarrollo de Normas de Información Financiera, or CINIF, of UR and an alternate director of Cementos Chihuahua.	
 	 	
Ramiro G. Villarreal Morales,
General Counsel (66)	  	Joined CEMEX in 1987 and has served as general counsel since then, and also has served as secretary of our board of directors since 1995. He is a member of the board of directors of UR. He is a graduate of the Universidad Autónoma de Nuevo León with a degree in law. He also received a master of science degree in finance from the University of Wisconsin. Prior to joining CEMEX, he served as assistant general director of Grupo Financiero Banpais from 1985 to 1987.	
 	  	 
Mr. Villarreal is a member of the board of directors of Vinte Viviendas Integrales, S.A.P.I. de C.V., a real estate development company, and an alternate member of the boards of directors of Cementos Chihuahua and Axtel. Mr. Villarreal is also a member of the board of directors of UR and, until February 2012, he was the secretary of the board of directors of Enseñanza e Investigación Superior, A.C., which manages ITESM.	
Board of Directors
Bernardo Quintana Isaac was a member of CEMEX, S.A.B. de C.V.’s board of directors. Mr. Quintana Isaac was not elected as a director at CEMEX, S.A.B. de C.V.’s 2012 annual shareholders’ meeting held on March 21, 2013 and no longer serves on the board of directors. Set forth below are the names of the current members of CEMEX, S.A.B. de C.V.’s board of directors, elected at CEMEX, S.A.B. de C.V.’s 2013 annual shareholders’ meeting held on March 20, 2014. At this shareholders’ meeting, no alternate directors were elected. Members of CEMEX, S.A.B. de C.V.’s board of directors serve for one-year terms.

Name (Age)	  	Experience	
Lorenzo H. Zambrano Treviño,
Chairman (70)	  	See “—Senior Management.”	
 	 	
Armando J. García Segovia (62)	  	Mr. García has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 1983. He initially joined CEMEX in 1975 and rejoined CEMEX in 1985. He served as director of operational and strategic planning from 1985 to 1988, director of operations from 1988 to 1991, director of corporate services and affiliate companies from 1991 to 1994, director of development from 1994 to 1996, general director of development from 1996 to 2000, executive vice president of development from 2000 to May 2009, and executive vice president for technology, energy and sustainability from May 2009 to March 2010. He is a graduate of ITESM with a degree	
 
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Name (Age)	  	Experience	
 	  	in mechanical engineering and administration and received an M.B.A. from the University of Texas. He was employed at Cydsa, S.A. from 1979 to 1981 and at Conek, S.A. de C.V. from 1981 to 1985.	
 	  	 
He also serves as a member of the board of directors of Cementos Chihuahua. He was also vice president of COPARMEX, member of the board and former chairman of the Private Sector Center for Sustainable Development Studies ( Centro de Estudios del Sector Privado para el Desarrollo Sustentable),  former chairman of Centro Patronal de Nuevo León (now COPARMEX NL), he was chairman and member of the board of Gas Industrial de Monterrey, S.A. de C.V. and member of the board of the World Environmental Center. Currently, he is a member of the board of directors of Hoteles City Express, S.A.P.I. de C.V. and of Innovación y Conveniencia, S.A. de C.V. formerly known as Grupo Chapa, S.A. de C.V., and the chairman of the board of the Engineering School of ITESM. He is also a member of the board of Universidad de Monterrey, A.C., Unidos para la Conservación, Pronatura Noreste, A.C., Consejo Consultivo de Flora y Fauna del Estado de Nuevo León, and Parques y Vida Silvestre de Nuevo León He is also founder and chairman of the board of Comenzar de Nuevo, A.C. He is a first cousin of Rodolfo García Muriel, a member of our board of directors.	
 	 	
Rodolfo García Muriel (68)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 1985 and member of CEMEX, S.A.B. de C.V.’s finance committee since 2009. He is the chief executive officer of Compañía Industrial de Parras, S.A. de C.V. He is a member of the board of directors of Inmobiliaria Romacarel, S.A.P.I. de C.V., Comfort Jet, S.A. de C.V., and member of the regional board of Banamex. Mr. García Muriel is also vice president of the Textile Industry National Chamber ( Cámara Nacional de la Industria Textil ). Mr. García Muriel holds a degree in electric mechanical engineering from the Universidad Iberoamericana. He is a first cousin of Armando J. García Segovia, a member of CEMEX, S.A.B. de C.V.’s board of directors.	
 	 	
Rogelio Zambrano Lozano (57)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 1987 and president of CEMEX, S.A.B. de C.V.’s finance committee since 2009. He is also a member of the advisory board of Banamex, Zona Norte, and member of the boards of directors of Carza, S.A. de C.V., Plaza Sésamo, S.A. de C.V., and ITESM. He is a graduate in industrial engineering from ITESM and holds an M.B.A. from the Wharton Business School of Pennsylvania University. He is a first cousin of Lorenzo H. Zambrano, chairman of CEMEX, S.A.B. de C.V.’s board of directors and our chief executive officer and uncle of Tomás Milmo Santos, a member of CEMEX, S.A.B. de C.V.’s board of directors.	
 
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Name (Age)	  	Experience	
Roberto Luis Zambrano Villarreal (68)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 1987. He was president of CEMEX, S.A.B. de C.V.’s audit committee from 2002 to 2006, president of CEMEX, S.A.B. de C.V.’s corporate practices and audit committee from 2006 to 2009, and president of CEMEX, S.A.B. de C.V.’s new audit committee since 2009. He is also a member of the board of directors of CEMEX México. He is chairman of the board of directors of Desarrollo Integrado, S.A. de C.V., Administración Ficap, S.A. de C.V., Aero Zano, S.A. de C.V., Ciudad Villamonte, S.A. de C.V., Focos, S.A. de C.V., C & I Capital, S.A. de C.V., Industrias Diza, S.A. de C.V., Inmobiliaria Sanni, S.A. de C.V., Inmuebles Trevisa, S.A. de C.V., Servicios Técnicos Hidráulicos, S.A. de C.V., Mantenimiento Integrado, S.A. de C.V., Pilatus PC-12 Center de México, S.A. de C.V., and Pronatura, A.C. He is a member of the board of directors of S.L.I. de México, S.A. de C.V., and Compañía de Vidrio Industrial, S.A. de C.V. Mr. Zambrano Villarreal is a graduate in mechanical engineering and administration from the ITESM. He is the second cousin of Lorenzo H. Zambrano, chief executive officer and chairman of CEMEX, S.A.B. de C.V.’s board of directors.	
 	 	
Dionisio Garza Medina (60)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 1995 and president of CEMEX, S.A.B. de C.V.’s corporate practices committee since 2009. He is chairman of the board of Tenedora TOPAZ, S.A.P.I. de C.V. He was a member of the board of Alfa until February 2013 and chairman and chief executive officer until March 2010. Mr. Garza Medina is a member of the advisory committee of the David Rockefeller Center for Latin American Studies at Harvard and chairman of the Advisory Council of Stanford University’s School of Engineering. Additionally, Mr. Garza Medina was the chairman of the board of the Universidad de Monterrey, A.C. until April 2012. Mr. Garza Medina holds an industrial engineering degree and a master degree in industrial engineering from Stanford University and an M.B.A. from Harvard University.	
 	 	
Tomás Milmo Santos (49)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 2006 and member of CEMEX, S.A.B. de C.V.’s finance committee since 2009. Mr. Milmo Santos served as an alternate member of CEMEX, S.A.B. de C.V.’s board of directors from 2001 to 2006. He is chief executive officer and chairman of the board of directors of Axtel, a telecommunications company that operates in the local, long distance and data transfer market and subscription-based television services. He is also a member of the board of directors of CEMEX México, Promotora Ambiental, S.A., ITESM and chairman of the board of directors of Tec Salud and Alianza Educativa por Nuevo León. He graduated with a degree in economics from Stanford University. Mr. Milmo Santos is the second nephew of Lorenzo H. Zambrano, chief executive officer and chairman of CEMEX, S.A.B. de C.V.’s board of directors.	
 
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Name (Age)	  	Experience	
José Manuel Rincón Gallardo Purón (71)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors since 2003. He is also a member of CEMEX, S.A.B. de C.V.’s audit committee, where he qualifies as a “financial expert” for purposes of the Sarbanes-Oxley Act of 2002. He is president of the board of directors and a member of the audit committee of Sonoco de México S.A. de C.V., member of the board of directors and audit committees of Banamex, Grupo Herdez, S.A. de C.V., General de Seguros, S.A.B., Kansas City Southern and Grupo Aeroportuario del Pacífico, S.A. de C.V., and member of the board of directors of Laboratorios Sanfer-Hormona. Mr. Rincón Gallardo is a member of the Instituto Mexicano de Contadores Públicos, A.C., he was a managing partner of KPMG Mexico, and was member of the board of directors of KPMG United States and KPMG International. He is also a member of the corporate practices committee of Consejo Coordinador Empresarial. He is a certified public accountant from the Universidad Nacional Autónoma de México.	
 	 	
Francisco Javier Fernández Carbajal (59)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors and member of CEMEX, S.A.B. de C.V.’s finance committee since February 2012, and a member of CEMEX, S.A.B. de C.V.’s corporate practices committee since March 2013. Mr. Fernández is currently the chairman of the board of directors of Primero Fianzas, S.A. de C.V. He is also chief executive officer of Servicios Administrativos Contry, S.A. de C.V. and a proprietary investing advisor and consultant in investment banking operations since January 2002. He has served as chief executive officer of Corporate Development at Grupo Financiero BBVA Bancomer, S.A. de C.V., after holding several positions in BBVA Bancomer since 1991. Furthermore, Mr. Fernández is a member of the board of directors of FEMSA, Visa Inc., Fresnillo PLC and Alfa. He graduated with a degree in electric mechanical engineering from ITESM and also holds an M.B.A. from Harvard Business School.	
 	 	
Rafael Rangel Sostmann (72)	  	Has been a member of CEMEX, S.A.B. de C.V.’s board of directors and member of CEMEX, S.A.B. de C.V.’s corporate practices committee since 2009 and member of CEMEX, S.A.B. de C.V.’s audit committee since 2010. Mr. Rangel Sostmann was president of ITESM from 1985 to 2011. He is also a member of the board of directors of the Coca-Cola Foundation in Mexico and New York University’s research area. He also served as president and chief executive officer of the Monterrey Tech Foundation from October 2011 to March 2012. Since 2013, Mr. Rangel Sostmann has been the special advisor to the president of the Arizona State University. He graduated with a degree in electric mechanical engineering from ITESM and also holds a masters degree in mechanical engineering and a doctor’s degree from University of Wisconsin.	
 
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Board Practices
In compliance with the Mexican securities market law, which was enacted on December 28, 2005 and became effective on June 28, 2006, CEMEX, S.A.B. de C.V.’s shareholders approved, at a general extraordinary meeting held on April 27, 2006, a proposal to amend various articles of CEMEX, S.A.B. de C.V.’s by-laws, or  estatutos sociales , in order to improve our standards of corporate governance and transparency, among other matters. The amendments include outlining the fiduciary duties of the members of CEMEX, S.A.B. de C.V.’s board of directors, who are now required:
 
 	•	 	to perform their duties in a value-creating manner for the benefit of CEMEX without favoring a specific shareholder or group of shareholders;	
 
 	•	 	to act diligently and in good faith by adopting informed decisions; and	
 
 	•	 	to comply with their duty of care and loyalty, abstaining from engaging in illicit acts or activities.	
The Mexican securities market law also eliminated the position of statutory examiner, whose duties of surveillance are now the responsibility of the board of directors, fulfilled through the corporate practices and the audit committees, as well as through the external auditor who audits the entity’s financial statements, each within its professional role. With its surveillance duties, CEMEX, S.A.B. de C.V.’s board of directors is no longer in charge of managing CEMEX; instead, this is the responsibility of CEMEX, S.A.B. de C.V.’s chief executive officer.
Pursuant to the Mexican securities market law and CEMEX, S.A.B. de C.V.’s by-laws, at least 25% of its directors must qualify as independent directors.
CEMEX, S.A.B. de C.V. has not entered into any service contracts with its directors that provide for benefits upon termination of employment.
The Audit Committee, the Corporate Practices Committee and the Finance Committee
The Mexican securities market law required CEMEX, S.A.B. de C.V. to create a corporate practices committee comprised entirely of independent directors, in addition to its then existing audit committee. In compliance with such requirement, in 2006 CEMEX, S.A.B. de C.V. increased the responsibilities of its audit committee and changed its name to “corporate practices and audit committee.” To further enhance the effectiveness of its corporate governance, at CEMEX, S.A.B. de C.V.’s annual shareholders meeting of April 23, 2009, CEMEX, S.A.B. de C.V.’s shareholders approved the division of this committee into two committees with different members and responsibilities, the audit committee and the corporate practices committee. In addition, at an annual general ordinary shareholders’ meeting held on April 29, 2010, CEMEX, S.A.B. de C.V.’s shareholders approved the creation of the finance committee.
CEMEX, S.A.B. de C.V.’s audit committee is responsible for:
 
 	•	 	evaluating our internal controls and procedures, and identifying deficiencies;	
 
 	•	 	following up with corrective and preventive measures in response to any non-compliance with our operation and accounting guidelines and policies;	
 
 	•	 	evaluating the performance of our external auditors;	
 
 	•	 	describing and valuing non-audit services performed by our external auditor;	
 
 	•	 	reviewing CEMEX, S.A.B. de C.V.’s financial statements;	
 
 	•	 	assessing the effects of any modifications to the accounting policies approved during any fiscal year;	
 
 	•	 	overseeing measures adopted as a result of any observations made by CEMEX, S.A.B. de C.V.’s shareholders, directors, executive officers, employees or any third parties with respect to accounting,	
 
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 	internal controls and internal and external audit, as well as any complaints regarding management irregularities, including anonymous and confidential methods for addressing concerns raised by employees; and	
 
 	•	 	analyzing the risks identified by CEMEX, S.A.B. de C.V.’s independent auditors, accounting, internal control and process assessment areas.	
CEMEX, S.A.B. de C.V.’s corporate practices committee is responsible for:
 
 	•	 	evaluating the hiring, firing and compensation of CEMEX, S.A.B. de C.V.’s chief executive officer;	
 
 	•	 	reviewing the hiring and compensation policies for CEMEX, S.A.B. de C.V.’s executive officers;	
 
 	•	 	reviewing related party transactions;	
 
 	•	 	reviewing policies regarding use of corporate assets;	
 
 	•	 	reviewing unusual or material transactions;	
 
 	•	 	evaluating waivers granted to our directors or executive officers regarding seizure of corporate opportunities; and	
 
 	•	 	identifying, evaluating and following up on the operating risks affecting the company and its subsidiaries.	
CEMEX, S.A.B. de C.V.’s finance committee is responsible for:
 
 	•	 	evaluating the company’s financial plans; and	
 
 	•	 	reviewing the company’s financial strategy and its implementation.	
Under CEMEX, S.A.B. de C.V.’s bylaws and the Mexican securities market law, all members of the corporate practices committee and the audit committee, including their presidents, are required to be independent directors. The president of the audit committee, the corporate practices committee and the finance committee shall be appointed and removed from his or her position only by the general shareholders meeting, and the rest of the members may only be removed by a resolution of the general shareholders meeting or of the board of directors.
Set forth below are the names of the members of CEMEX, S.A.B. de C.V.’s current audit committee, corporate practices committee and finance committee. The terms of the members of the committees are indefinite. José Manuel Rincón Gallardo qualifies as an “audit committee financial expert” for purposes of the Sarbanes Oxley Act of 2002. See “Item 16A—Audit Committee Financial Expert.”

Audit Committee:	  	 	
 	 	
Roberto Zambrano Villarreal, President	  	See “—Board of Directors.”	
José Manuel Rincón Gallardo	  	See “—Board of Directors.”	
Rafael Rangel Sostmann	  	See “—Board of Directors.”	
 	 	
Corporate Practices Committee:	  	 	
 	 	
Dionisio Garza Medina, President	  	See “—Board of Directors.”	
Francisco Javier Fernández Carbajal	  	See “—Board of Directors.”	
Rafael Rangel Sostmann	  	See “—Board of Directors.”	
 	 	
Finance Committee:	  	 	
 	 	
Rogelio Zambrano Lozano, President	  	See “—Board of Directors.”	
Rodolfo García Muriel	  	See “—Board of Directors.”	
Francisco Javier Fernández Carbajal	  	See “—Board of Directors.”	
Tomás Milmo Santos	  	See “—Board of Directors.”	
 
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Compensation of CEMEX, S.A.B. de C.V.’s Directors and Members of Our Senior Management
For the year ended December 31, 2013, the aggregate amount of compensation we paid, or our subsidiaries paid, to all members of our board of directors, alternate members of our board of directors and senior managers, as a group, was approximately U.S.$39 million. Approximately U.S.$24.9 million of this amount was paid as base compensation, including approximately U.S.$8.7 million of a bonus pool to key executives base on our operating performance and U.S.$2.5 million to provide pension, retirement or similar benefits. In addition, approximately U.S.$14.2 million of the aggregate amount corresponds to stock-based compensation, including approximately U.S.$5.6 million related to the bonus pool to key executives based on our operating performance and approximately U.S.$3 million of compensation earned under the program that is linked to the fulfillment of certain performance conditions and that is payable through March 2015 to then still active members of CEMEX, S.A.B. de C.V.´s board of directors and top management executives. During 2013, we issued 12.6 million of CPOs to this group pursuant to the Restricted Stock Incentive Plan, or RSIP, described below under “—Restricted Stock Incentive Plan (RSIP).”
CEMEX, Inc. ESOP
As a result of the acquisition of CEMEX, Inc. (formerly Southdown, Inc.) in November 2000, we established a stock option program for CEMEX, Inc.’s executives to purchase CEMEX, S.A.B. de C.V.’s ADSs. The options granted under the program have a fixed exercise price in U.S. Dollars equivalent to the average market price of one ADS during a six-month period before the grant date and have a 10-year term. Twenty-five percent of the options vested annually during the first four years after their grant date. The options are covered using shares currently owned by our subsidiaries, thus potentially increasing stockholders’ equity and the number of shares outstanding. As of December 31, 2013, options to acquire 472,045 ADSs remained outstanding under this program. These options have a weighted average exercise price of approximately U.S$1.55 per CPO, or U.S$15.49 per ADS. As of December 31, 2013, the outstanding options under this program had a remaining tenure of approximately 0.8 years.
The November 2001 Voluntary Exchange Program
In November 2001, we implemented a voluntary exchange program to offer participants in our then existing stock option program new options in exchange for their existing options. The new options have an escalating strike price in U.S. Dollars increasing at a 7% annual rate. As of December 31, 2013, this program was totally vested.
The 2004 Voluntary Early Exercise Program
In December 2004, we offered participants in our then existing stock options programs new options, conditioned on the participants exercising and receiving the intrinsic value of their existing options. As a result of this program, we granted a total of 139,151,236 new options. The new options had an initial strike price of U.S.$7.4661 per CPO, which was U.S.$0.50 above the closing CPO market price on the date on which the old options were exercised, and which increased at a rate of 5.5% per annum. All gains from the exercise of these new options would be paid in restricted CPOs. The restrictions would be removed gradually within a period of between two and four years, depending on the exercise date.
Of the 139,151,236 new options, 120,827,370 would be automatically exercised if the closing CPO market price reached U.S.$8.50, while the remaining 18,323,866 options did not have an automatic exercise threshold. Holders of these options were entitled to receive an annual payment of U.S.$0.10 net of taxes per option outstanding as of the payment date until exercise or maturity of the options or until the closing CPO market price reached U.S.$8.50, which payment was scheduled to grow annually at a 10% rate.
On June 17, 2005, the closing CPO market price reached U.S.$8.50, and, as a result, all outstanding options subject to automatic exercise were automatically exercised and the annual payment to which holders of the remaining options were entitled was terminated. As of December 31, 2013, options to acquire 15,022,272 CPOs under this program were non-vested.
 
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For accounting purposes under IFRS, as of December 31, 2013, we accounted for the options granted under the February 2004 voluntary exchange program by means of the fair value method through earnings. See notes 2S and 21 to our 2013 audited consolidated financial statements included elsewhere in this annual report.
Consolidated Employee Stock Option Information
Stock options activity during 2012 and 2013, the balance of options outstanding as of December 31, 2012 and 2013 and other general information regarding our stock option programs, is presented in note 21 to our 2013 audited consolidated financial statements included elsewhere in this annual report.
As of December 31, 2013, the following employee stock options to purchase our securities were outstanding:

Title of security underlying options	  	Number of CPOs
or CPO
equivalents
underlying options	 	  	Expiration
Date	 	  	Range of exercise
prices per CPO
or CPO
equivalent	 	
CEMEX, Inc. ESOP	  	 	4,720,450	  	  	 	2014-2015	  	  	U.S.$	 	  	  	 	1.0-1.6	  	
Restricted Stock Incentive Plan (RSIP)
Since January 2005, we have been changing our long-term variable compensation programs from stock option grants to restricted stock awards under a RSIP. Under the terms of the RSIP, eligible employees are allocated a specific number of restricted CPOs as variable compensation to be vested over a four-year period. Before 2006, we distributed annually to a trust an amount in cash sufficient to purchase in the market, on behalf of each eligible employee, 25% of such employee’s allocated number of CPOs. During 2006, in order to reduce the volatility of our RSIP, we began to distribute annually an amount in cash sufficient to purchase 100% of the allocated CPOs for each eligible employee. Although the vesting period of the restricted CPOs and other features of the RSIP did not change as a result of this new policy, the nominal amount of annual compensation received by eligible employees increased in proportion to the additional number of CPOs received as a result of the new policy. The CPOs purchased by the trust was held in a restricted account by the trust on behalf of each employee for four years. At the end of each year during such four-year period, the restrictions lapsed with respect to 25% of the allocated CPOs and such CPOs became freely transferable and subject to withdrawal from the trust.
Starting in 2009, we made additional changes to the mechanism for granting the RSIP, but the benefits remained the same as in previous years. First, CPOs are no longer purchased in the open market, but instead CEMEX, S.A.B. de C.V. issues new CPOs to cover the RSIP. Second, CEMEX, S.A.B. de C.V. now issues the RSIP in four blocks of 25% per year. The total number of CEMEX, S.A.B. de C.V.’s CPOs granted during 2013 was approximately 47 million, of which approximately 14,1 million were related to senior management and the board of directors. In 2013, approximately 49.9 million CPOs were issued, representing the first 25% of the 2013 program, representing the second 25% of the 2012 program, the third 25% of the 2011 program and the final 25% of the 2010 program. Of these 49.9 million CPOs, approximately 12.6 million corresponded to senior management and the board of directors. See note 25 to our consolidated financial statements included elsewhere in this annual report.
Employees
As of December 31, 2013, we had approximately 43,087 employees worldwide, which represented a decrease of approximately 2% from December 31, 2012. We reduced our headcount by approximately 29.8% as a result of the implementation of our global cost-reduction program since 2007, as part of our ongoing efforts to align our company with new market conditions, lower costs and increase our efficiency.
 
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The following table sets forth the number of our full-time employees and a breakdown of their geographic location as of December 31, 2011, December 31, 2012 and December 31, 2013:

Location	  	2011	 	  	2012	 	  	2013	 	
Mexico	  	 	12,036	 	  	 	11,108	 	  	 	11,064	 	
United States	  	 	8,391	 	  	 	9,846	 	  	 	9,483	 	
Northern Europe	  	 	 	 	  	 	 	 	  	 	 	 	
United Kingdom	  	 	3,259	 	  	 	3,072	 	  	 	2,866	 	
Germany	  	 	3,010	 	  	 	2,907	 	  	 	2,426	 	
France	  	 	1,933	 	  	 	1,915	 	  	 	1,865	 	
Rest of Northern Europe	  	 	3,510	 	  	 	3,299	 	  	 	2,893	 	
The Mediterranean	  	 	 	 	  	 	 	 	  	 	 	 	
Spain	  	 	2,228	 	  	 	1,798	 	  	 	1,652	 	
Egypt	  	 	644	 	  	 	637	 	  	 	644	 	
Rest of the Mediterranean	  	 	2,093	 	  	 	2,056	 	  	 	2,137	 	
SAC	  	 	 	 	  	 	 	 	  	 	 	 	
Colombia	  	 	1,875	 	  	 	2,157	 	  	 	2,732	 	
Rest of SAC	  	 	3,806	 	  	 	3,911	 	  	 	4,147	 	
Asia	  	 	 	 	  	 	 	 	  	 	 	 	
Philippines	  	 	549	 	  	 	555	 	  	 	623	 	
Rest of Asia	  	 	770	 	  	 	644	 	  	 	555	 	
Employees in Mexico have collective bargaining agreements on a plant-by-plant basis, which are renewable on an annual basis with respect to salaries and on a biannual basis with respect to benefits. During 2013, more than 196 contracts with different labor unions were renewed.
Approximately 28% of our employees in the United States are represented by unions, with the largest number being members of the International Brotherhood of Teamsters, the Laborers’ Union of North America, the International Brotherhood of Boilermakers and the International Union of Operating Engineers. Collective bargaining agreements are in effect or are being negotiated at many of our U.S. plants and have various expiration dates through December 14, 2020.
Our Spanish union employees have company collective bargaining agreements that are renewable every two to three years on a legal entity and business basis. Some employees in the ready-mix concrete, mortar, aggregates and transport sectors have industry collective bargaining agreements. Executive compensation in Spain is subject to our institutional policies and influenced by the local labor market.
In the United Kingdom, our cement manufacturing and cement logistics operations have collective bargaining agreements with the Unite union. The rest of our operations in the United Kingdom are not part of collective bargaining agreements; however, there are local agreements for consultation and employee representation with Unite union, and the GMB union.
In Germany, most of our employees work under collective bargaining agreements with the Industriegewerkschaft Bauen Agrar Umwelt—IG B.A.U. union. In addition to the collective bargaining agreements, there are internal company agreements, negotiated between the workers council and the company itself.
In France, less than 5% of our employees are members of one of the five main unions. At least one representative from one of five main unions is represented in our French subsidiaries, mainly in the following legal entities: Cemex Granulats, Cemex Bétons Ile de France, Cemex Bétons Rhône Alpes Auvergne, Cemex Bétons Sud Est and Cemex Granulats Rhône Méditérranée. All agreements are negotiated with unions and non-union representatives elected in the local workers council (Comité d’Entreprise) for periods of four years. The last elections took place in April 2010 and the next one will be in April 2014.
 
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In Egypt, approximately 95% of our employees are affiliated to Assiut Cement Company’s union (“ACC’s Union”), which is a member of Egypt’s General Union of Building Materials. ACC’s Union represents these employees in any collective negotiation, agreement or dispute.
In Israel, approximately 84% of our employees in Lime & Stone Production Company Ltd., one of our operating subsidiaries in Israel, or 27% of all of our employees in Israel, are represented by Histadrut, Israel’s largest labor union. These employees work under special collective bargaining agreements which are renewable on an annual basis with respect to salaries and benefits and every one or two years with respect to retirement and dismissal terms.
In the Philippines, approximately 34% of the cement operation employees of APO and Solid are members of either one of four labor unions that are affiliated with a national federation. Each labor union has a collective bargaining agreement with either APO or Solid. Each of the collective bargaining agreements has a term of five years, with the economic terms negotiated in the third and fifth years. We consider our relationships with the labor unions representing these employees to be satisfactory.
In Colombia, there are three regional sectionals of a single union that represents our employees at the Caracolito, Bucaramanga and Cúcuta cement plants. There are also collective agreements with non-union workers at the Santa Rosa cement plant, all ready-mix concrete and aggregates plants and all logistics operations in Colombia. Overall, we consider our relationships with labor unions representing our employees to be satisfactory.
In Panama, approximately 52% of our workforce is member of a union named Sindicato de Trabajadores de Cemento Bayano  (SITRACEB), which is a legal entity registered before the Panamanian Ministry of Labor. The union’s board of directors is elected every two to four years through a general voting process. The collective bargaining agreement that is currently in full force and effect was entered into on January 2011 and expires in 2015.
Share Ownership
As of March 31, 2014, our senior management and directors and their immediate families owned, collectively, approximately 2.44% of CEMEX, S.A.B. de C.V.’s outstanding shares, including shares underlying stock options and restricted CPOs under our ESOPs. This percentage does not include shares held by the extended families of members of our senior management and directors, since, to the best of our knowledge, no voting arrangements or other agreements exist with respect to those shares. As of March 31, 2014, no individual director or member of our senior management beneficially owned one percent or more of any class of CEMEX, S.A.B. de C.V.’s outstanding capital stock and each such individual’s share ownership has not been previously disclosed to shareholders or otherwise made public.
Item 7—Major Shareholders and Related Party Transactions
Major Shareholders
Based upon information contained in Amendment No. 2 to a statement on Schedule 13G filed with the SEC on January 10, 2014, as of December 31, 2013, BlackRock Inc. beneficially owned 1,229,127,394 CPOs, representing approximately 10.5% of CEMEX, S.A.B. de C.V.’s outstanding capital stock as of March 31, 2014. BlackRock Inc. does not have voting rights different from our other non-Mexican holders of CPOs. As required by CEMEX, S.A.B. de C.V.’s by-laws, CEMEX, S.A.B. de C.V.’s board of directors is required to approve Blackrock Inc.’s beneficial ownership of CEMEX, S.A.B. de C.V.’s outstanding capital stock. Pursuant to the authorizations by CEMEX, S.A.B. de C.V.’s Board of Directors, BlackRock, Inc. is authorized to acquire up to 13% of CEMEX, S.A.B. de C.V.’s capital stock.
As of March 31, 2014, CEMEX, S.A.B. de C.V.’s outstanding capital stock consisted of 23,401,653,774 Series A shares and 11,700,826,887 Series B shares, in each case including shares held by our subsidiaries.
 
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Additionally, at CEMEX, S.A.B. de C.V.’s 2013 ordinary shareholders meeting held on March 20, 2014, CEMEX, S.A.B. de C.V.’s shareholders approved the issuance of 936,066,152 Series A shares and 468,033,076 Series B shares to be allocated to shareholders on a pro rata basis pursuant to such approval. These shares became part of CEMEX, S.A.B. de C.V’s outstanding capital stock on April 25, 2014.
As of March 31, 2014, a total of 23,346,455,772 Series A shares and 11,673,277,886 Series B shares outstanding were held by the CPO trust. Each CPO represents two Series A shares and one Series B share. A portion of the CPOs is represented by ADSs. Under the terms of the CPO trust agreement, non-Mexican holders of CPOs and ADSs have no voting rights with respect to the A shares underlying those CPOs and ADSs. All ADSs are deemed to be held by non-Mexican nationals. At every shareholders’ meeting, the A shares held in the CPO trust are voted as expressed by the shareholders representing the majority of the capital stock entitled to vote.
Other than BlackRock Inc. and the CPO trust, we are not aware of any person that is the beneficial owner of five percent or more of any class of CEMEX, S.A.B. de C.V.’s voting securities.
As of March 31, 2014, through CEMEX, S.A.B. de C.V.’s subsidiaries, we owned approximately 17.6 million CPOs, representing approximately 0.2% of CEMEX, S.A.B. de C.V.’s outstanding CPOs and approximately 0.2% of CEMEX, S.A.B. de C.V.’s outstanding voting stock. These CPOs are voted at the direction of our management. CEMEX, S.A.B. de C.V.’s voting rights over those CPOs are the same as those of any other CPO holder. As of the same date, we did not hold any CPOs in derivative instruments hedging expected cash flows of stock options exercises.
CEMEX, S.A.B. de C.V.’s provide that its board of directors must authorize in advance any transfer of voting shares of its capital stock that would result in any person’s, or group’s acting in concert, becoming a holder of 2% or more of CEMEX, S.A.B. de C.V.’s voting shares.
Mexican securities regulations provide that our majority-owned subsidiaries may neither directly or indirectly invest in CEMEX, S.A.B. de C.V.’s CPOs nor other securities representing CEMEX, S.A.B. de C.V.’s capital stock. The Mexican securities authority could require any disposition of the CPOs or of other securities representing our capital stock so owned and/or impose fines on us if it were to determine that the ownership of CEMEX, S.A.B. de C.V.’s CPOs or of other securities representing CEMEX, S.A.B. de C.V.’s capital stock by CEMEX, S.A.B. de C.V.’s subsidiaries, in most cases, negatively affects the interests of CEMEX, S.A.B. de C.V.’s shareholders. Notwithstanding the foregoing, the exercise of all rights pertaining to CEMEX, S.A.B. de C.V.’s CPOs or to other securities representing our capital stock in accordance with the instructions of CEMEX, S.A.B. de C.V.’s subsidiaries does not violate any provisions of CEMEX, S.A.B. de C.V.’s bylaws or the bylaws of its subsidiaries. The holders of these CPOs or of other securities representing CEMEX, S.A.B. de C.V.’s capital stock are entitled to exercise the same rights relating to their CPOs or their other securities representing CEMEX, S.A.B. de C.V.’s capital stock, including all voting rights, as any other holder of the same series.
As of March 31, 2014, we had 680 ADS holders of record, representing 5,086,532,170 CPOs, or approximately 43.47% of CEMEX, S.A.B. de C.V.’s outstanding capital stock as of such date.
Related Party Transactions
Mr. Lorenzo H. Zambrano, chairman of CEMEX, S.A.B. de C.V.’s board of directors and our chief executive officer, is a member of the board of directors of IBM. On July 30, 2012, we entered into a Master Professional Services Agreement with IBM pursuant to which, in the ordinary course of business, IBM provides CEMEX with business processes services and IT, including: data processing services (back office) in finance, accounting and human resources; as well as IT infrastructure services, support and maintenance of IT applications in the countries in which CEMEX operates.
 
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Mr. Karl H. Watson Jr. is the president of CEMEX USA. In the ordinary course of business, CEMEX USA’s operations pay fees for freight services to Florida Aggregate Transport, a Florida based vendor. Karl H. Watson Jr.’s stepbrother is part of Florida Aggregate Transport’s ownership and senior management. The amounts for these services, which are negotiated on market terms, are not significant to CEMEX USA’s operations.
Francisco Javier Fernández Carbajal, a member of CEMEX, S.A.B. de C.V.’s board of directors, is also a member of the board of directors of FEMSA, a large multinational beverage company. In addition, José Antonio Fernández Carbajal, the brother of Francisco Javier Fernández Carbajal, is the president and chief executive officer of FEMSA. In the ordinary course of business, we pay and receive various amounts to and from FEMSA for products and services for varying amounts on market terms.
Except as disclosed in the preceding paragraph, from January 1, 2010 through the date of this annual report, we did not have any other outstanding loans to any of our directors or members of senior management.
Item 8—Financial Information
Consolidated Financial Statements and Other Financial Information
See “Item 18—Financial Statements” and “Index to Consolidated Financial Statements.”
Legal Proceedings
See “Item 4—Information on the Company—Regulatory Matters and Legal Proceedings.”
Dividends
A declaration of any dividend is made by CEMEX, S.A.B. de C.V.’s shareholders at a general ordinary meeting. Any dividend declaration is usually based upon the recommendation of CEMEX, S.A.B. de C.V.’s board of directors. However, CEMEX, S.A.B. de C.V.’s shareholders are not obligated to approve the board’s recommendation. CEMEX, S.A.B. de C.V. may only pay dividends from retained earnings included in financial statements that have been approved by CEMEX, S.A.B. de C.V.’s shareholders and after all losses have been paid for, a legal reserve equal to 5% of its paid-in capital has been created and CEMEX, S.A.B. de C.V.’s shareholders have approved the relevant dividend payment. See “Item 10—Additional Information—Taxation—Mexican Tax Considerations.” Since CEMEX, S.A.B. de C.V. conducts its operations through its subsidiaries, it has no significant assets of its own except for its investments in those subsidiaries. Consequently, CEMEX, S.A.B. de C.V.’s ability to pay dividends to its shareholders is dependent upon its ability to receive funds from its subsidiaries in the form of dividends, management fees, or otherwise. The Facilities Agreement and the indentures governing the Senior Secured Notes effectively prohibit CEMEX, S.A.B. de C.V. from declaring and paying cash dividends or making other cash distributions to its shareholders. See “Item 3—Key Information—Risk Factors—CEMEX, S.A.B. de C.V.’s ability to repay debt and pay dividends depends on our subsidiaries’ ability to transfer income and dividends to us.”
The recommendation of CEMEX, S.A.B. de C.V.’s board of directors as to whether to pay and the amount of any annual dividends has been and will continue to be, in absence of contractual restrictions to pay or declare dividends, based upon, among other things, earnings, cash flow, capital requirements, contractual restrictions, and our financial condition and other relevant factors.
Owners of ADSs on the applicable record date will be entitled to receive any dividends payable in respect of the A shares and the B shares underlying the CPOs represented by those ADSs; however, as permitted by the deposit agreement pursuant to which CEMEX, S.A.B. de C.V.’s ADSs are issued, CEMEX, S.A.B. de C.V. may instruct the ADS depositary not to extend the option to elect to receive cash in lieu of the stock dividend to the holders of ADSs. The ADS depositary will fix a record date for the holders of ADSs in respect of each dividend distribution. Unless otherwise stated, the ADS depositary has agreed to convert cash dividends received by it in
 
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respect of the A shares and the B shares underlying the CPOs represented by ADSs from Mexican Pesos into U.S. Dollars and, after deduction or after payment of expenses of the ADS depositary, to pay those dividends to holders of ADSs in U.S. Dollars. CEMEX, S.A.B. de C.V. cannot assure holders of its ADSs that the ADS depositary will be able to convert dividends received in Mexican Pesos into U.S. Dollars.
CEMEX, S.A.B. de C.V. did not declare a dividend for fiscal years 2011, 2012 and 2013.
Significant Changes
Except as described herein, no significant change has occurred since the date of our consolidated financial statements included elsewhere in this annual report.
Item 9—Offer and Listing
Market Price Information
CEMEX, S.A.B. de C.V.’s CPOs are listed on the Mexican Stock Exchange and trade under the symbol “CEMEX.CPO.” CEMEX, S.A.B. de C.V.’s ADSs, each of which currently represents ten CPOs, are listed on the New York Stock Exchange (“NYSE”) and trade under the symbol “CX.” The following table sets forth, for the periods indicated, the reported highest and lowest market quotations in nominal Mexican Pesos for CPOs on the Mexican Stock Exchange and the high and low sales prices in U.S. Dollars for ADSs on the NYSE.

 	  	CPOs(1)	 	  	ADSs	 	
Calendar Period	  	High	 	  	Low	 	  	High	 	  	Low	 	
Yearly	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
2009.	  	 	19.19	 	  	 	6.16	 	  	 	14.58	 	  	 	3.94	 	
2010.	  	 	16.16	 	  	 	9.59	 	  	 	12.60	 	  	 	7.46	 	
2011.	  	 	13.60	 	  	 	3.25	 	  	 	11.15	 	  	 	2.27	 	
2012	  	 	12.93	 	  	 	7.00	 	  	 	10.14	 	  	 	4.94	 	
2013	  	 	16.16	 	  	 	12.58	 	  	 	12.71	 	  	 	9.14	 	
 	 	 	 	 	
Quarterly	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
2012	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
First quarter	  	 	11.05	 	  	 	7.25	 	  	 	8.67	 	  	 	5.30	 	
Second quarter	  	 	9.99	 	  	 	7.00	 	  	 	7.88	 	  	 	4.94	 	
Third quarter	  	 	11.18	 	  	 	8.45	 	  	 	8.74	 	  	 	6.28	 	
Fourth quarter	  	 	12.93	 	  	 	10.71	 	  	 	10.14	 	  	 	8.07	 	
2013	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
First quarter	  	 	15.55	 	  	 	12.59	 	  	 	12.47	 	  	 	9.83	 	
Second quarter	  	 	15.41	 	  	 	12.58	 	  	 	12.71	 	  	 	9.14	 	
Third quarter	  	 	16.16	 	  	 	13.33	 	  	 	12.53	 	  	 	10.17	 	
Fourth quarter	  	 	15.43	 	  	 	13.05	 	  	 	11.86	 	  	 	9.81	 	
2014	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
First quarter	  	 	17.97	  	  	 	14.96	  	  	 	13.51	  	  	 	11.44	  	
 	 	 	 	 	
Monthly	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
2013-2014	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
October	  	 	15.17	 	  	 	13.47	 	  	 	11.49	 	  	 	10.47	 	
November	  	 	14.53	 	  	 	13.05	 	  	 	11.06	 	  	 	9.81	 	
December	  	 	15.43	 	  	 	14.16	 	  	 	11.86	 	  	 	10.68	 	
January	  	 	17.48	  	  	 	14.96	  	  	 	13.16	  	  	 	11.44	  	
February	  	 	17.97	  	  	 	16.13	  	  	 	13.51	  	  	 	11.78	  	
March	  	 	17.38	  	  	 	15.85	  	  	 	13.20	  	  	 	11.97	  	
April(2)	  	 	18.50	  	  	 	16.41	  	  	 	14.37	  	  	 	12.56	  	
 
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Source: Based on data of the Mexican Stock Exchange and the NYSE.
(1)	As of December 31, 2013, approximately 99.76%of CEMEX, S.A.B. de C.V.’s outstanding share capital was represented by CPOs.	
(2)	CPO and ADS prices are through April 21, 2014.	
On April 21, 2014, the last reported closing price for CPOs on the Mexican Stock Exchange was Ps17.00 per CPO, and the last reported closing price for ADSs on the NYSE was U.S.$13.00 per ADS.
Item 10—Additional Information
Articles of Association and By-laws
General
Pursuant to the requirements of Mexican corporations law, CEMEX, S.A.B. de C.V.’s articles of association and by-laws (estatutos sociales), have been registered with the Mercantile Section of the Public Registry of Property and Commerce in Monterrey, Nuevo Leon, Mexico, under entry number 21, since June 11, 1920.
CEMEX, S.A.B. de C.V. is a holding company engaged directly or indirectly, through its operating subsidiaries, primarily in the production, distribution, marketing and sale of cement, ready-mix concrete and clinker. CEMEX, S.A.B. de C.V.’s objectives and purposes can be found in article 2 of CEMEX, S.A.B. de C.V.’s by-laws.
CEMEX, S.A.B. de C.V. has two series of common stock, the Series A common stock, with no par value, or A shares, which can only be owned by Mexican nationals, and the Series B common stock, with no par value, or B shares, which can be owned by both Mexican and non-Mexican nationals. CEMEX, S.A.B. de C.V.’s by-laws state that the A shares may not be held by non-Mexican individuals, corporations, groups, units, trusts, associations or governments that are foreign or have participation by foreign governments or their agencies. CEMEX, S.A.B. de C.V.’s by-laws also state that the A shares shall at all times account for a minimum of 64% of CEMEX, S.A.B. de C.V.’s total outstanding voting stock and that the B shares shall at all times account for a minimum of 36% of CEMEX, S.A.B. de C.V.’s total outstanding voting stock. Other than as described herein, holders of the A shares and the B shares have the same rights and obligations.
In 1994, CEMEX, S.A.B. de C.V. changed from a fixed capital corporation to a variable capital corporation in accordance with Mexican corporation law. As a result, CEMEX, S.A.B. de C.V. established a fixed capital account and a variable capital account and issued one share of variable capital stock of the same series for each eight shares of fixed capital stock held by any shareholder. Each of our fixed and variable capital accounts is comprised of A shares and B shares. Under the Mexican securities market law and CEMEX, S.A.B. de C.V.’s by-laws, holders of shares representing variable capital are not entitled to withdraw those shares.
Shareholder authorization is required to increase or decrease either the fixed capital account or the variable capital account. Shareholder authorization to increase or decrease the fixed capital account must be obtained at an extraordinary meeting of shareholders. Shareholder authorization to increase or decrease the variable capital account must be obtained at an ordinary general meeting of shareholders.
On September 15, 1999, CEMEX, S.A.B. de C.V.’s shareholders approved a stock split, and for every one of CEMEX, S.A.B. de C.V.’s shares of any series CEMEX, S.A.B. de C.V. issued two Series A shares and one Series B share. Concurrently with this stock split, CEMEX, S.A.B. de C.V. also consummated an exchange offer to exchange new CPOs and new ADSs representing the new CPOs for CEMEX, S.A.B. de C.V.’s then existing A shares, B shares and ADSs, and converted CEMEX, S.A.B. de C.V.’s then existing CPOs into the new CPOs.
On June 1, 2001, the Mexican securities market law was amended, among other, to increase the protection granted to minority shareholders of Mexican listed companies and to commence bringing corporate governance procedures of Mexican listed companies in line with international standards.
 
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On February 6, 2002, the Mexican securities authority (Comisión Nacional Bancaria y de Valores) issued an official communication authorizing the amendment of CEMEX, S.A.B. de C.V.’s by-laws to incorporate additional provisions to comply with the then new provisions of the Mexican securities market law. Following approval from CEMEX, S.A.B. de C.V.’s shareholders at the 2002 annual shareholders’ meeting, CEMEX, S.A.B. de C.V. amended and restated its by-laws to incorporate these additional provisions, which consist of, among other things, protective measures to prevent share acquisitions, hostile takeovers, and direct or indirect changes of control. As a result of the amendment and restatement of CEMEX, S.A.B. de C.V.’s by-laws, the expiration of CEMEX, S.A.B. de C.V.’s corporate term of existence was extended from 2019 to 2100.
On March 19, 2003, the Mexican securities authority issued new regulations designed to (i) further implement minority rights granted to shareholders by the Mexican securities market law and (ii) simplify and consolidate in a single document provisions relating to securities offerings and periodic reports by Mexican-listed companies.
On April 24, 2003, CEMEX, S.A.B. de C.V.’s shareholders approved changes to its by-laws, incorporating additional provisions and removing some restrictions. The changes that are still in force are as follows:
 
 	•	 	The limitation on CEMEX, S.A.B. de C.V.’s variable capital was removed. Formerly, CEMEX, S.A.B. de C.V.’s variable capital was limited to ten times CEMEX, S.A.B. de C.V.’s minimum fixed capital.	
 
 	•	 	Increases and decreases in CEMEX, S.A.B. de C.V.’s variable capital now require the notarization of the minutes of the ordinary general shareholders’ meeting that authorize such increase or decrease, as well as the filing of these minutes with the Mexican National Securities Registry ( Registro Nacional de Valores ), except when such increase or decrease results from (i) shareholders exercising their redemption rights or (ii) stock repurchases.	
 
 	•	 	The cancellation of registration of our shares in the Securities Section of the Mexican National Securities Registry now involves an amended procedure, which is described below under “—Repurchase Obligation.” In addition, any amendments to the article containing these provisions no longer require the consent of the Mexican securities authority and 95% approval by shareholders entitled to vote.	
At a general extraordinary shareholders’s meeting of held on April 28, 2005, CEMEX, S.A.B. de C.V.’s shareholders approved a two-for-one stock split, which became effective on July 1, 2005. In connection with this stock split, each of CEMEX, S.A.B. de C.V.’s existing Series A shares was surrendered in exchange for two new Series A shares, and each of CEMEX, S.A.B. de C.V.’s existing Series B shares was surrendered in exchange for two new Series B shares. Concurrent with this stock split, we authorized the amendment of the CPO trust agreement pursuant to which CEMEX, S.A.B. de C.V.’s CPOs are issued to provide for the substitution of two new CPOs for each of CEMEX, S.A.B. de C.V.’s existing CPOs, with each new CPO representing two new Series A shares and one new Series B share. The number of CEMEX, S.A.B. de C.V.’s existing ADSs did not change as a result of the stock split. Instead, the ratio of CPOs to ADSs was modified so that each existing ADS represented ten new CPOs following the stock split and the CPO trust amendment.
On December 30, 2005, a Mexican securities market law was published to continue bringing corporate governance requirements of Mexican listed companies in line with international standards. This new law includes provisions increasing disclosure information requirements, improving minority shareholder rights, and strengthening corporate governance standards including the introduction of new requirements and fiduciary duties (duties of care and loyalty), applicable to each director, officer, external auditor and major shareholder of publicly traded companies. The law also provides that each member of the audit committee must be an independent director, and requires the creation of corporate governance committees integrated by independent directors as well. In addition, the law clarifies directors’ duties, specifies safe harbors for directors’ actions, clarifies what is deemed as a conflict of interest and clarifies what are the confidentiality obligations for directors.
 
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Under the new Mexican securities market law, CEMEX, S.A.B. de C.V. was required to adopt specific amendments to its by-laws within 180 days of the effective date of the new law. Following approval from CEMEX, S.A.B. de C.V.’s shareholders at its 2005 annual a general extraordinary shareholders’ meeting held on April 27, 2006, CEMEX, S.A.B. de C.V. amended and restated its by-laws to incorporate these amendments. The amendments to CEMEX, S.A.B. de C.V.’s by-laws became effective on July 3, 2006. The most significant of these amendments were as follows:
 
 	•	 	The change of its corporate name from CEMEX, S.A. de C.V. to CEMEX, S.A.B. de C.V., which means that it is now called a publicly traded company ( sociedad anónima bursátil  or S.A.B.).	
 
 	•	 	The creation of a corporate practices committee, which is a new committee of CEMEX, S.A.B. de C.V.’s board of directors and which is comprised exclusively of independent directors.	
 
 	•	 	The elimination of the position of statutory examiner (comisario) and the assumption of its responsibilities by the board of directors through the audit committee and the new corporate practices committee, as well as through the external auditor who audits CEMEX, S.A.B. de C.V.’s financial statements, each within its professional role.	
 
 	•	 	The express attribution of certain duties (such as the duty of loyalty and the duty of care) and liabilities on members of the board of directors as well as on certain senior executive officers.	
 
 	•	 	The implementation of a mechanism for claims of a breach of a director’s or officer’s duties, to be brought by us or by holders of 5% or more of CEMEX, S.A.B. de C.V.’s shares.	
 
 	•	 	The chief executive officer is now the person in charge of managing the company; previously, this was the duty of the board of directors. The board of directors now supervises the chief executive officer.	
 
 	•	 	Shareholders are given the right to enter into certain agreements with other shareholders.	
At the 2005 annual general ordinary shareholders’ meeting held on April 27, 2006, CEMEX, S.A.B. de C.V.’s shareholders approved a new stock split, which became effective on July 17, 2006. In connection with this new two-for-one stock split, each of its existing Series A shares was surrendered in exchange for two new Series A shares, and each of its existing Series B shares was surrendered in exchange for two new Series B shares. Concurrent with this stock split, we authorized the amendment of the CPO trust agreement pursuant to which CEMEX, S.A.B. de C.V.’s CPOs are issued to provide for the substitution of two new CPOs for each of its existing CPOs, with each new CPO representing two new Series A shares and one new Series B share. In connection with the stock split and at our request, Citibank, N.A., as depositary for the ADSs, distributed one additional ADS for each ADS outstanding as of the record date for the stock split. The ratio of CPOs to ADSs did not change as a result of the stock split; each ADS continued to represent ten CPOs following the stock split and the CPO trust amendment. The proportional equity interest participation of existing shareholders did not change as a result of this stock split.
On September 4, 2009, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting in which its shareholders approved an increase in the variable portion of its capital stock of up to 4.8 billion shares (equivalent to 1.6 billion CPOs or 160 million ADSs). Pursuant to the resolution approved by CEMEX, S.A.B. de C.V.’s shareholders, the subscription and payment of the new shares represented by CPOs may occur through a public offer of CPOs and/or issuance of convertible bonds within a period of 24 months. On September 28, 2009, CEMEX, S.A.B. de C.V. sold a total of 1,495,000,000 CPOs, directly or in the form of ADSs, in a global offering for approximately U.S.$1,782 billion in net proceeds. On November 11, 2009, CEMEX, S.A.B. de C.V. launched an exchange offer in México, in transactions exempt from registration pursuant to Regulation S under the Securities Act, directed to holders of CBs, in order to exchange such CBs for the Mandatory Convertible Securities. Pursuant to the exchange offer, on December 10, 2009, CEMEX, S.A.B. de C.V. issued approximately Ps4.1 billion (approximately U.S.$334 million at the Mexican Peso/U.S. Dollar CEMEX accounting rate on December 31, 2010) in Mandatory Convertible Securities in exchange for CBs. On March 30, 2010, CEMEX, S.A.B. de C.V.’s closed the offering of U.S.$715 million aggregate principal amount of its 2010 Optional Convertible Subordinated Notes.
 
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On February 24, 2011, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting in which its shareholders approved an increase in the variable portion of its capital stock of up to 6 billion shares (equivalent to 2 billion CPOs or 200 million ADSs). Pursuant to the resolution approved by CEMEX, S.A.B. de C.V.’s shareholders, the subscription and payment of the new shares represented by CPOs may occur through a public offer of CPOs and/or issuance of convertible bonds and, until then, these shares will be kept in our treasury. In addition, on February 24, 2011, CEMEX, S.A.B. de C.V. held its annual general ordinary shareholders’ meeting in which its shareholders approved an increase in the variable portion of its capital stock of up to 60 million shares (equivalent to 20 million CPOs or 2 million ADSs). These shares will be kept in CEMEX, S.A.B. de C.V.’s treasury and will be used to preserve the rights of note holders pursuant to the issuance of convertible notes. On March 15, 2011, CEMEX, S.A.B. de C.V.’s closed the offering of U.S.$1,667,500,000 aggregate principal amount of its 2011 Optional Convertible Subordinated Notes.
As of December 31, 2013, CEMEX, S.A.B. de C.V.’s common stock was represented as follows:

Shares(1)	  	Series A(2)	 	  	Series B(3)	 	
Subscribed and paid shares	  	 	22,847,063,194	 	  	 	11,423,531,597	 	
Unissued shares authorized for stock compensation programs	  	 	1,055,956,580	 	  	 	527,978,290	 	
Shares that guarantee the issuance of convertible securities(4)	  	 	6,408,438,520	 	  	 	3,204,219,260	 	
Shares authorized for the issuance of stock or convertible securities(5)	  	 	4,146,404	 	  	 	2,073,202	 	
 	  	 	 	 	  	 	 	 	
 	  	 	30,315,604,698	 	  	 	15,157,802,349	 	
 
(1)	As of December 31, 2013, 13,068,000.000 shares correspond to the fixed portion, and 32,405,407,047 shares correspond to the variable portion.	
(2)	Series “A” or Mexican shares must represent at least 64% of CEMEX’s capital stock.	
(3)	Series “B” or free subscription shares must represent at most 36% of CEMEX’s capital stock.	
(4)	Shares that guarantee the conversion of the Mandatory Convertible Securities, the 2010 Optional Convertible Subordinated Notes and 2011 Optional Convertible Subordinated Notes.	
(5)	Shares authorized for the issuance of stock through a public offer or through the issuance of convertible securities.	
On March 20, 2014, CEMEX, S.A.B. de C.V. held its 2013 annual general ordinary shareholders’ meeting in which its shareholders approved, among other items, (i) an increase in the variable portion of CEMEX, S.A.B. de C.V.’s capital stock of up to 1,404,099,228 shares (equivalent to 468,033,076 CPOs or approximately 46.8 million ADSs) paid with a charge to retained earnings; (ii) an increase in the variable portion of CEMEX, S.A.B. de C.V.’s capital stock through the issuance of up to 387 million shares (equivalent to 129 million CPOs or 12.9 million ADSs), such shares to be kept in CEMEX, S.A.B. de C.V.’s treasury and to be used to preserve the rights of note holders pursuant to the outstanding Mandatory Convertible Securities, the 2010 and 2011 Optional Convertible Subordinated Notes; and (iii) a reduction in the variable portion of CEMEX, S.A.B. de C.V.’s capital stock through the cancellation of 6,219,606 shares (equivalent to approximately 2 million CPOs or approximately 200,000 ADSs).
In addition, on March 20, 2014, CEMEX, S.A.B. de C.V. held an extraordinary shareholders’ meeting at which its shareholders approved, among other items, the board of directors’ proposal to expand the corporate purpose of CEMEX, S.A.B. de C.V. so that, aside from being a holding company, CEMEX, S.A.B. de C.V. can undertake operating activities related to the production and commercialization of cement, ready-mix concrete and aggregates.
CEMEX, S.A.B. de C.V. did not declare a dividend for fiscal years 2011, 2012 and 2013. See “Item 8—Financial Information—Dividends” for a description of CEMEX, S.A.B. de C.V.’s policy on dividend distributions and dividend restrictions.
 
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At each of CEMEX, S.A.B. de C.V.’s 2011, 2012 and 2013 annual general ordinary shareholders’ meetings, held on February 23, 2012, March 21, 2013 and March 20, 2014, respectively, CEMEX, S.A.B. de C.V.’s shareholders approved a recapitalization of retained earnings. New CPOs issued pursuant to each such recapitalization were allocated to shareholders on a pro-rata basis. As a result, shares equivalent to approximately 418.7 million CPOs, approximately 437.4 million CPOs and approximately 468 million CPOs were allocated to shareholders on a pro-rata basis in connection with the 2011, 2012 and 2013 recapitalizations, respectively. In each case, CPO holders received one new CPO for each 25 CPOs held and ADS holders received one new ADS for each 25 ADSs held. There was no cash distribution and no entitlement to fractional shares.
Changes in Capital Stock and Preemptive Rights
Subject to certain exceptions referred below, CEMEX, S.A.B. de C.V.’s by-laws allow for a decrease or increase in its capital stock if it is approved by its shareholders at a shareholders’ meeting. Additional shares of CEMEX, S.A.B. de C.V.’s capital stock, having no voting rights or limited voting rights, are authorized by its by-laws and may be issued upon the approval of its shareholders at a shareholders’ meeting, with the prior approval of the Mexican securities authority.
CEMEX, S.A.B. de C.V.’s by-laws provide that, subject to certain exceptions, shareholders have preemptive rights with respect to the class and in proportion to the number of shares of our capital stock they hold, in connection with any capital increase in the number of outstanding A shares, B shares, or any other existing series of shares, as the case may be. Subject to certain requirements: (i) under article 53 of the Mexican securities market law, this preemptive right to subscribe is not applicable to increases of CEMEX, S.A.B. de C.V.’s capital through public offers; and (ii) under article 210 bis of the General Law of Negotiable Instruments and Credit Operations ( Ley General de Titulos y Operaciones de Credito ), this preemptive right to subscribe is not applicable when issuing shares under convertible notes. Preemptive rights give shareholders the right, upon any issuance of shares by us, to purchase a sufficient number of shares to maintain their existing ownership percentages. Preemptive rights must be exercised within the period and under the conditions established for that purpose by the shareholders, and CEMEX, S.A.B. de C.V.’s by-laws and applicable law provide that this period must be 15 days following the publication of the notice of the capital increase in the Official Gazette of the State of Nuevo León ( Periódico Oficial del Estado de Nuevo León ) or any major newspaper published and distributed in the City of Monterrey, Nuevo León, México.
Holders of ADSs that are U.S. persons or are located in the United States may be restricted in their ability to participate in the exercise of such pre-emptive rights. See “Item 3—Key Information—Risk Factors—Preemptive rights may be unavailable to ADS holders.”
Pursuant to the CEMEX, S.A.B. de C.V. by-laws, significant acquisitions of shares of CEMEX, S.A.B. de C.V.’s capital stock and changes of control of CEMEX, S.A.B. de C.V. require prior approval from CEMEX, S.A.B. de C.V.’s board of directors. CEMEX, S.A.B. de C.V.’s board of directors must authorize in advance any transfer of, or creation of any encumbrance or lien on, voting shares of CEMEX, S.A.B. de C.V.’s capital stock that would result in any person or group becoming a holder of 2% of more of CEMEX, S.A.B. de C.V.’s shares. The CEMEX, S.A.B. de C.V. board of directors shall consider the following when determining whether to authorize such transfer of voting shares: a) the type of investors involved; b) whether the acquisition would result in the potential acquirer exercising a significant influence or being able to obtain control; c) whether all applicable rules and CEMEX, S.A.B. de C.V.’s by-laws have been observed by the potential acquirer; d) whether the potential acquirers are our competitors and whether there is a risk of affecting market competition, or the potential acquirers could have access to confidential and privileged information; e) the morality and economic solvency of the potential acquirers; f) the protection of minority rights and the rights of our employees; and g) whether an adequate base of investors would be maintained. If the CEMEX, S.A.B. de C.V. board of directors denies the authorization, or the requirements established in CEMEX, S.A.B. de C.V.’s by-laws are not complied with, the persons involved in the transfer shall not be entitled to exercise the voting rights corresponding to the transferred shares, and such shares shall not be taken into account for the determination of the quorums of
 
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attendance and voting at shareholders’ meetings, nor shall the transfers be recorded in our share registry and the registry undertaken by S.D. Indeval, Institucion para el Deposito de Valores, S.A. de C.V., or Indeval, the Mexican securities depositary, shall not have any effect.
Any acquisition of shares of CEMEX, S.A.B. de C.V.’s capital stock representing 30% or more of its capital stock by a person or group of persons requires prior approval from CEMEX, S.A.B. de C.V.’s board of directors and, in the event approval is granted, the acquirer has an obligation to make a public offer to purchase all of the outstanding shares of CEMEX, S.A.B. de C.V.’s capital stock. In the event the requirements for significant acquisitions of shares of CEMEX, S.A.B. de C.V.’s capital stock are not met, the persons acquiring such shares will not be entitled to any corporate rights with respect to such shares, such shares will not be taken into account for purposes of determining a quorum for shareholders’ meetings, CEMEX, S.A.B. de C.V. will not record such persons as holders of such shares in its share registry, and the registry undertaken by the Indeval shall not have any effect.
CEMEX, S.A.B. de C.V.’s by-laws require the stock certificates representing shares of its capital stock to make reference to the provisions in its by-laws relating to the prior approval of the CEMEX, S.A.B. de C.V. board of directors for significant share transfers and the requirements for recording share transfers in its share registry. In addition, shareholders are responsible for informing CEMEX, S.A.B. de C.V. within five business days whenever their shareholdings exceed 5%, 10%, 15%, 20%, 25% and 30% of CEMEX, S.A.B. de C.V.’s capital stock. If a person acquires beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934) of 20% or more in voting power of the outstanding voting stock of CEMEX, S.A.B. de C.V., a change of control will be deemed to have occurred under the Facilities Agreement and other debt agreements of CEMEX; provided that the acquisition of beneficial ownership of capital stock of CEMEX, S.A.B. de C.V. by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a change of control as described herein.
CEMEX, S.A.B. de C.V. is required to maintain a share registry to record the names, nationalities and domiciles of all significant shareholders, and any shareholder that meets or exceeds these thresholds must be recorded in this registry if such shareholder is to be recognized or represented at any shareholders’ meeting. If a shareholder fails to inform CEMEX, S.A.B. de C.V. of its shareholdings reaching a threshold as described above, we will not record the transactions that cause such threshold to be met or exceeded in CEMEX, S.A.B. de C.V.’s share registry, and such transaction will have no legal effect and will not be binding on us.
CEMEX, S.A.B. de C.V.’s by-laws also require that its shareholders comply with legal provisions regarding acquisitions of securities and certain shareholders’ agreements that require disclosure to the public.
Repurchase Obligation
In accordance with Mexican securities regulations, CEMEX, S.A.B. de C.V. is obligated to make a public offer for the purchase of stock to its shareholders if CEMEX, S.A.B. de C.V.’s registration with the Mexican securities registry is canceled, either by resolution of its shareholders or by an order of the Mexican securities authority. The minimum price at which we must purchase the stock is the higher of:
 
 	•	 	the weighted average price per share based on the weighted average trading price of CEMEX, S.A.B. de C.V.’s CPOs on the Mexican Stock Exchange during the latest period of 30 trading days preceding the date of the offer, for a period not to exceed six months; or	
 
 	•	 	the book value per share, as reflected in the last quarterly report filed with the Mexican securities authority and the Mexican Stock Exchange before the date of the offer.	
CEMEX, S.A.B. de C.V.’s board of directors shall prepare and disclose to the public through the Mexican Stock Exchange, within ten business days after the day the public offer begins, and after consulting the corporate practices committee, its opinion regarding the price of the offer and any conflicts of interests that each of its members may have regarding such offer. This opinion may be accompanied by an additional opinion issued by an independent expert that we may hire.
 
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Following the cancellation of CEMEX, S.A.B. de C.V.’s registration with the Mexican securities registry, it must place in a trust set up for that purpose for a six-month period an amount equal to that required to purchase the remaining shares held by investors who did not participate in the offer.
Shareholders’ Meetings and Voting Rights
Shareholders’ meetings may be called by:
 
 	•	 	CEMEX, S.A.B. de C.V.’s board of directors or the corporate practices committee or the audit committee;	
 
 	•	 	shareholders representing at least 10% of outstanding and fully paid shares, by requesting that it to the chairman of CEMEX, S.A.B. de C.V.’s board of directors or CEMEX, S.A.B. de C.V.’s corporate practices committee and audit committee;	
 
 	•	 	any shareholder (i) if no meeting has been held for two consecutive years or when the matters referred to in Article 181 of the Mexican corporations law have not been dealt with, or (ii) when, for any reason, the required quorum for valid sessions of the corporate practices committee and audit committee was not reached and the board of directors failed to make the appropriate provisional appointments; or	
 
 	•	 	a Mexican court of competent jurisdiction, in the event CEMEX, S.A.B. de C.V.’s board of directors or the corporate practices committee and audit committee do not comply with the valid shareholders’ request described above.	
Notice of shareholders’ meetings must be published in the Official Gazette of the State of Nuevo León (Periódico Oficial del Estado de Nuevo León ), Mexico or any major newspaper published and distributed in the City of Monterrey, Nuevo León, Mexico. The notice must be published at least 15 days prior to the date of any shareholders’ meeting. Consistent with Mexican law, CEMEX, S.A.B. de C.V.’s by-laws further require that all information and documents relating to the shareholders’ meeting be available to shareholders from the date the notice of the meeting is published.
General shareholders’ meetings can be ordinary or extraordinary. At every general shareholders’ meeting, each qualified holder of A shares and B shares is entitled to one vote per share. Shareholders may vote by proxy duly appointed in writing. Under the CPO trust agreement, holders of CPOs who are not Mexican nationals cannot exercise voting rights corresponding to the A shares represented by their CPOs, in which case, the CPO trustee will vote the underlying A shares in the same manner as the holders of the majority of the voting shares.
An annual general ordinary shareholders’ meeting must be held during the first four months after the end of each of CEMEX, S.A.B. de C.V.’s fiscal year to consider the approval of a report of its board of directors regarding CEMEX, S.A.B. de C.V.’s performance and its financial statements for the preceding fiscal year and to determine the allocation of profits from the preceding year. In addition, CEMEX, S.A.B. de C.V.’s annual general ordinary shareholders’ meeting must:
 
 	•	 	review the annual reports of CEMEX, S.A.B. de C.V.’ corporate practices committee and audit committee, its chief executive officer, and its board of directors;	
 
 	•	 	elect, remove, or substitute the members of CEMEX, S.A.B. de C.V.’s board of directors;	
 
 	•	 	determine the level of independence of the members of CEMEX, S.A.B. de C.V.’s board of directors;	
 
 	•	 	elect or remove the chairman of CEMEX, S.A.B. de C.V.’s audit and corporate practices committees;	
 
 	•	 	approve any transaction that represents 20% or more of CEMEX, S.A.B. de C.V. consolidated assets; and	
 
 	•	 	resolve any issues not reserved for extraordinary shareholders’ meetings.	
 
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A general extraordinary shareholders’ meeting may be called at any time to deal with any of the matters specified by Article 182 of the Mexican corporations law, which include, among other things:
 
 	•	 	extending CEMEX, S.A.B. de C.V.’s corporate existence;	
 
 	•	 	CEMEX, S.A.B. de C.V.’s voluntary dissolution;	
 
 	•	 	increasing or reducing CEMEX, S.A.B. de C.V.’s fixed capital stock;	
 
 	•	 	changing CEMEX, S.A.B. de C.V.’s corporate purpose;	
 
 	•	 	changing CEMEX, S.A.B. de C.V.’s country of incorporation;	
 
 	•	 	changing CEMEX, S.A.B. de C.V.’s form of organization;	
 
 	•	 	a proposed merger;	
 
 	•	 	issuing preferred shares;	
 
 	•	 	redeeming CEMEX, S.A.B. de C.V.’s own shares;	
 
 	•	 	any amendment to CEMEX, S.A.B. de C.V.’s by-laws; and	
 
 	•	 	any other matter for which a special quorum is required by law or by CEMEX, S.A.B. de C.V.’s by-laws.	
In order to vote at a meeting of shareholders, shareholders must (i) appear on the list that Indeval and the Indeval participants holding shares on behalf of the shareholders prepare prior to the meeting or must deposit prior to that meeting, or (ii) prior to the meeting, deposit the certificates representing their shares at CEMEX, S.A.B. de C.V.’s offices or in a Mexican credit institution or brokerage house that operates in accordance with applicable laws in Mexico. The certificate of deposit with respect to the share certificates must be presented to CEMEX, S.A.B. de C.V.’s company secretary at least 48 hours before a meeting of shareholders. CEMEX, S.A.B. de C.V.’s company secretary verifies that the person in whose favor any certificate of deposit was issued is named in CEMEX, S.A.B. de C.V.’s share registry and issues an admission pass authorizing that person’s attendance at the meeting of shareholders.
CEMEX, S.A.B. de C.V.’s by-laws provide that a shareholder may only be represented by proxy in a shareholders’ meeting with a duly completed form provided by CEMEX, S.A.B. de C.V. authorizing the proxy’s presence. In addition, CEMEX, S.A.B. de C.V.’s by-laws require that the secretary acting at the shareholders’ meeting publicly affirm the compliance by all proxies with this requirement. A shareholders’ resolution is required to take action on any matter presented at a shareholders’ meeting.
At an ordinary meeting of shareholders, the affirmative vote of the holders of a majority of the shares present at the meeting is required to adopt a shareholders’ resolution. At an extraordinary meeting of shareholders, the affirmative vote of at least 50% of the capital stock is required to adopt a shareholders’ resolution, except that when amending Article 7 (with respect to measures limiting shareholding ownership), Article 10 (relating to the register of shares and significant participations) or Article 22 (specifying the impediments to being appointed a member of CEMEX, S.A.B. de C.V.’s board of directors) of CEMEX, S.A.B. de C.V.’s by-laws, the affirmative vote of at least 75% of the voting stock is needed.
The attendance quorum for a general ordinary meeting of shareholders upon the first call, is 50% of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares, and for the second call is any number of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares. If the quorum is not met upon the first call, a subsequent meeting may be called and the quorum for the second ordinary meeting is any number of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares represented at the meeting. The attendance quorum for the extraordinary shareholders’ meeting upon the first call, is 75% of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares, upon the second and subsequent calls is 50% of CEMEX, S.A.B. de C.V.’s outstanding and fully paid shares.
 
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Rights of Minority Shareholders
At CEMEX, S.A.B. de C.V.’s annual general ordinary shareholders’ meeting, any shareholder or group of shareholders representing 10% or more of its voting stock has the right to appoint or remove one member of CEMEX, S.A.B. de C.V.’s board of directors, in addition to the directors appointed by the majority. Such appointment may only be revoked by other shareholders when the appointment of all other directors is also revoked.
CEMEX, S.A.B. de C.V.’s by-laws provide that holders of at least 10% of its capital stock are entitled to demand the postponement of the voting on any resolution of which they deem they have not been sufficiently informed.
Under Mexican law, holders of at least 20% of CEMEX, S.A.B. de C.V.’s outstanding capital stock entitled to vote on a particular matter may oppose any resolution at a shareholders’ meeting, by filing a petition for a court order to suspend the resolution temporarily with a court of law within 15 days after the adjournment of the meeting at which that action was taken and showing that the challenged action violates Mexican law or CEMEX, S.A.B. de C.V.’s by-laws and provided the opposing shareholders deliver a bond to the court to secure payment of any damages that we suffer as a result of suspending the resolution in the event that the court ultimately rules against the opposing shareholders. Relief under these provisions is only available to holders who were entitled to vote on, or whose rights as shareholders were adversely affected by, the challenged shareholder action and whose shares were not represented when the action was taken or, if represented, voted against it.
Under Mexican law, an action for civil liabilities against directors may be initiated by a shareholders’ resolution for violation of their duty of loyalty to shareholders. In the event shareholders decide to bring an action of this type, the persons against whom that action is brought will immediately cease to be directors. Additionally, shareholders representing not less than 33% of the outstanding shares may directly exercise that action against the directors; provided that:
 
 	•	 	those shareholders shall not have voted against exercising such action at the relevant shareholders’ meeting; and	
 
 	•	 	the claim covers all of the damage alleged to have been caused to us and not merely the damage suffered by the plaintiffs.	
Under CEMEX, S.A.B. de C.V.’s by-laws, shareholders representing 5% or more of its outstanding capital stock may initiate actions exclusively on behalf of CEMEX, S.A.B. de C.V. against members of its board of directors, its corporate practices committee and audit committee, its chief executive officer, or any relevant executives, for breach of their duty of care or duty of loyalty to shareholders or for committing illicit acts or activities. The only requirement is that the claim covers all of the damage alleged to have been caused to us or any entities on which we have a significant influence and not merely the damage suffered by the plaintiffs. Actions initiated on these grounds have a five-year statute of limitations from the day of the act or action that caused the damage.
Any recovery of damages with respect to these actions will be for CEMEX, S.A.B. de C.V.’s benefit and not that of the shareholders bringing the action.
Registration and Transfer
CEMEX, S.A.B. de C.V.’s common stock is evidenced by share certificates in registered form with registered dividend coupons attached. Shareholders who have not deposited their shares into the CPO trust may hold their shares in the form of physical certificates or through institutions that have accounts with Indeval. Accounts may be maintained at Indeval by brokers, banks and other entities approved by the Mexican securities authority. CEMEX, S.A.B. de C.V. maintains a stock registry, and, in accordance with Mexican law, only those holders listed in CEMEX, S.A.B. de C.V.’s stock registry and those holding certificates issued by Indeval and by Indeval participants indicating ownership are recognized as CEMEX, S.A.B. de C.V. shareholders.
 
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Pursuant to Mexican law, any transfer of shares must be registered in CEMEX, S.A.B. de C.V.’s stock registry, if effected physically, or through book entries that may be tracked back from CEMEX, S.A.B. de C.V.’s stock registry to the records of Indeval.
Redemption
CEMEX, S.A.B. de C.V.’s capital stock is subject to redemption upon approval of our shareholders at an extraordinary shareholders’ meeting.
Share Repurchases
If approved by CEMEX, S.A.B. de C.V.’s shareholders at a general shareholders’ meeting, we may purchase CEMEX, S.A.B. de C.V.’s outstanding shares. The economic and voting rights corresponding to repurchased shares cannot be exercised during the period the shares are owned by us and the shares will be deemed outstanding for purposes of calculating any quorum or vote at any shareholders’ meeting. We may also repurchase our equity securities on the Mexican Stock Exchange at the then prevailing market prices in accordance with Mexican securities law. If we intend to repurchase shares representing more than 1% of CEMEX, S.A.B. de C.V.’s outstanding shares at a single trading session, we must inform the public of such intention at least ten minutes before submitting our bid. If we intend to repurchase shares representing 3% or more of CEMEX, S.A.B. de C.V.’s outstanding shares during a period of 20 trading days, we are required to conduct a public tender offer for such shares. We must conduct share repurchases through the person or persons approved by CEMEX, S.A.B. de C.V.’s board of directors, through a single broker dealer during the relevant trading session, and without submitting bids during the first and the last 30 minutes of each trading session. We must inform the Mexican Stock Exchange of the results of any share repurchase no later than the business day following any such share repurchase.
Directors’ and Shareholders’ Conflict of Interest
Under Mexican law, any shareholder who has a conflict of interest with CEMEX, S.A.B. de C.V. with respect to any transaction is obligated to disclose such conflict and is prohibited from voting on that transaction. A shareholder who violates this prohibition may be liable for damages if the relevant transaction would not have been approved without that shareholder’s vote.
Under Mexican law, any director who has a conflict of interest with CEMEX, S.A.B. de C.V. in any transaction must disclose that fact to the other directors and is prohibited from participating and being present during the deliberations and voting on that transaction. A director who violates this prohibition will be liable for damages and lost profits. Additionally, CEMEX, S.A.B. de C.V.’s directors may not represent shareholders in our shareholders’ meetings.
Withdrawal Rights
Whenever CEMEX, S.A.B. de C.V.’s shareholders approve a change of corporate purpose, change of nationality or transformation from one form of corporate organization to another, Mexican law provides that any shareholder entitled to vote on that change who has voted against it may withdraw from CEMEX, S.A.B. de C.V. and receive an amount equal to the book value (in accordance with the latest balance sheet approved by the annual general ordinary shareholders’ meeting) attributable to such shareholder’s shares, provided that such shareholder exercises that right within 15 days following the meeting at which the change was approved.
Dividends
At the annual general ordinary shareholders’ meeting, CEMEX, S.A.B. de C.V.’s board of directors submits, for approval by its shareholders, its financial statements together with a report on them prepared by its board of directors and the statutory auditors. CEMEX, S.A.B. de C.V.’s shareholders, once they have approved
 
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the financial statements, determine the allocation of our net income, after provision for income taxes, legal reserve and statutory employee profit sharing payments, for the preceding year. All shares of CEMEX, S.A.B. de C.V.’s capital stock outstanding at the time a dividend or other distribution is declared are entitled to share equally in that dividend or other distribution.
Liquidation Rights
In the event CEMEX, S.A.B. de C.V. is liquidated, the surplus assets remaining after payment of all its creditors will be divided among CEMEX, S.A.B. de C.V.’s shareholders in proportion to the respective shares held by them. The liquidator may, with the approval of CEMEX, S.A.B. de C.V.’s shareholders, distribute the surplus assets in kind among CEMEX, S.A.B. de C.V.’s shareholders, sell the surplus assets and divide the proceeds among CEMEX, S.A.B. de C.V.’s shareholders or put the surplus assets to any other uses agreed to by a majority of CEMEX, S.A.B. de C.V.’s shareholders voting at an extraordinary shareholders’ meeting.
Differences Between Our Corporate Governance Practices and NYSE Standards for Domestic Companies
For a description of significant ways in which CEMEX, S.A.B. de C.V.’s corporate governance practices differ from those required of domestic companies under NYSE standards, see “Item 16G—Corporate Governance.”
Material Contracts
On March 14, 2006, CEMEX, S.A.B. de C.V. registered a Ps5 billion revolving promissory note program (programa dual revolvente de certificados bursátiles ) with the Mexican securities authority. CEMEX, S.A.B. de C.V. has subsequently increased the authorized amount under this program. On March 31, 2011, we received authorization from the Mexican securities authority for a Ps10 billion revolving promissory note program, which authorization is valid until March 31, 2015.
On December 18, 2006, CEMEX, through two special purpose vehicles, issued two tranches of fixed-to-floating rate callable Perpetual Debentures. C5 Capital (SPV) Limited issued U.S.$350 million original principal amount of Perpetual Debentures under the first tranche, with the issuer having the option to redeem such Perpetual Debentures on December 31, 2011 and on each interest payment date thereafter, of which U.S.$69 million principal amount were outstanding as of December 31, 2013 (excluding Perpetual Debentures held by us). C10 Capital (SPV) Limited issued U.S.$900 million original principal amount of Perpetual Debentures under the second tranche, with the issuer having the option to redeem such Perpetual Debentures on December 31, 2016 and on each interest payment date thereafter, of which U.S.$183 million principal amount were outstanding as of December 31, 2013 (excluding Perpetual Debentures held by us). Both tranches pay coupons denominated in U.S. Dollars at a fixed rate until the call date and at a floating rate thereafter. On February 12, 2007, CEMEX, through a special purpose vehicle, issued a third tranche of fixed-to-floating rate callable Debentures. C8 Capital (SPV) Limited issued U.S.$750 million original principal amount of Perpetual Debentures under this third tranche, with the issuer having the option to redeem such Perpetual Debentures on December 31, 2014 and on each interest payment date thereafter, of which U.S.$137 million principal amount were outstanding as of December 31, 2013 (excluding Perpetual Debentures held by us). This third tranche also pays coupons denominated in U.S. Dollars at a fixed rate until the call date and at a floating rate thereafter. On May 9, 2007, CEMEX, through a special purpose vehicle, issued a fourth tranche of fixed-to-floating rate callable Perpetual Debentures. C10-EUR Capital (SPV) Limited issued €730 million original principal amount of Perpetual Debentures under this fourth tranche, with the issuer having the option to redeem such Perpetual Debentures on June 30, 2017 and on each interest payment date thereafter, of which €64 million principal amount were outstanding as of December 31, 2013 (excluding Perpetual Debentures held by us). This fourth tranche pays coupons denominated in Euros at a fixed rate until the call date and at a floating rate thereafter. Due to their perpetual nature and optional deferral of coupons, these transactions, in accordance with IFRS, qualify as equity.
 
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For a description of the material terms relating to the Mandatory Convertible Securities, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Mandatory Convertible Securities.”
For a description of the material terms relating to the 2010 Optional Convertible Subordinated Notes and 2011 Optional Convertible Subordinated Notes, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Convertible Subordinated Notes.”
For a description of the material terms relating to the Facilities Agreement, see “Item 5—Operating and Financial Review and Prospects—Liquidity and Capital Resources—Our Indebtedness.” In connection with our entry into the Facilities Agreement, we also entered into the related Ancillary Agreement, dated as of September 17, 2012, Irrevocable Administration Trust Agreement, dated as of September 17, 2012, USPP Note Purchase Agreement, dated as of September 17, 2012 and USPP Note Guarantee, dated as of September 17, 2012, as well as the Intercreditor Agreement, dated as of September 17, 2012, Dutch law Share Pledge, dated as of September 17, 2012, Swiss law Share Pledge, dated as of September 17, 2012, Spanish law Share Pledge, dated as of November 8, 2012, and Mexican law Security Trust Agreement, dated as of September 17, 2012, relating to the Collateral.
For a description of the material terms relating to the Senior Secured Notes, see “Item 5—Operating and Financial Review and Prospects—Summary of Material Contractual Obligations and Commercial Commitments—Senior Secured Notes.”
Exchange Controls
See “Item 3—Key Information—Mexican Peso Exchange Rates.”
Taxation
Mexican Tax Considerations
General
The following is a summary of certain Mexican federal income tax considerations relating to the ownership and disposition of CEMEX, S.A.B. de C.V.’s CPOs or ADSs.
This summary is based on Mexican income tax law that is in effect on the date of this annual report, which is subject to change. This summary is limited to non-residents of Mexico, as defined below, who own CEMEX, S.A.B. de C.V.’s CPOs or ADSs. This summary does not address all aspects of Mexican income tax law. Holders are urged to consult their tax counsel as to the tax consequences that the purchase, ownership and disposition of CEMEX, S.A.B. de C.V.’s CPOs or ADSs, may have.
For purposes of Mexican taxation, an individual is a resident of Mexico if he or she has established his or her home in Mexico. If the individual also has a home in another country, he or she will be considered a resident of Mexico if his or her center of vital interests is in Mexico. Under Mexican law, an individual’s center of vital interests is in Mexico if, among other things:
 
 	•	 	more than 50% of the individual’s total income in the relevant year comes from Mexican sources; or	
 
 	•	 	the individual’s main center of professional activities is in Mexico.	
Mexican nationals that are employed by the Mexican government are deemed residents of Mexico, even if his or her center of vital interests is located outside of Mexico. Unless otherwise proven, Mexican nationals are deemed residents of Mexico for tax purposes.
 
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A legal entity is a resident of Mexico if it is organized under the laws of Mexico or if it maintains the principal administration of its business or the effective location of its management in Mexico.
A Mexican citizen is presumed to be a resident of Mexico for tax purposes unless such person or entity can demonstrate otherwise. If a legal entity or an individual is deemed to have a permanent establishment in Mexico for tax purposes, all income attributable to such permanent establishment will be subject to Mexican taxes, in accordance with relevant tax provisions.
Individuals or legal entities that cease to be residents of Mexico must notify the tax authorities within 15 business days before their change of residency.
A non-resident of Mexico is a legal entity or individual that does not satisfy the requirements to be considered a resident of Mexico for Mexican federal income tax purposes.
Taxation of Dividends
Dividends from earnings generated before January 1, 2014, either in cash or in any other form, paid to non-residents of Mexico with respect to A shares or B shares represented by the CPOs (or in the case of holders who hold CPOs represented by ADSs), will not be subject to withholding tax in Mexico.
As a result of the enactment of certain tax provisions in Mexico, as of January 1, 2014, dividends in cash from identified pre-tax retained earnings generated after January 1, 2014 will be subject to a 10% withholding tax.
Disposition of CPOs or ADSs
As a result of the enactment of certain tax provisions in Mexico, as of January 1, 2014, in the case of individuals, capital gains of shares issued by Mexican companies in the Mexican Stock Exchange will be subject to a 10% withholding tax which will be withheld by the intermediary acting as a withholding agent. If the individual is a tax resident in a country with a tax treaty in force with Mexico such individual will not be subject to any withholding tax.
Gains on the sale or disposition of CPOs by a holder who is a non-resident of Mexico will not be subject to any Mexican tax if the sale is carried out through the Mexican Stock Exchange or other recognized securities market, as determined by Mexican tax authorities. Gains realized on sales or other dispositions of CPOs by non-residents of Mexico made in other circumstances would be subject to Mexican income tax. However, gains on the sale or disposition of ADSs by a holder who is a non-resident of Mexico will not be subject to Mexican tax.
Under the terms of the Convention Between the United States and Mexico for Avoidance of Double Taxation and Prevention of Fiscal Evasion with Respect to Income Taxes, and a Protocol thereto, the Tax Treaty, gains obtained by a U.S. Shareholder eligible for benefits under the Tax Treaty on the disposition of CPOs will not generally be subject to Mexican tax, provided that such gains are not attributable to a permanent establishment of such U.S. Shareholder in Mexico and that the eligible U.S. Shareholder did not own, directly or indirectly, 25% or more of our outstanding stock during the 12-month period preceding the disposition. In the case of non-residents of Mexico eligible for the benefits of a tax treaty, gains derived from the disposition of ADSs or CPOs may also be exempt, in whole or in part, from Mexican taxation under a treaty to which Mexico is a party.
Deposits and withdrawals of ADSs will not give rise to any Mexican tax or transfer duties.
The term U.S. Shareholder shall have the same meaning ascribed below under the section “—U.S. Federal Income Tax Considerations.”
 
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Estate and Gift Taxes
There are no Mexican inheritance or succession taxes applicable to the ownership, transfer or disposition of ADSs or CPOs by holders that are non-residents of Mexico, although gratuitous transfers of CPOs may, in some circumstances, cause a Mexican federal tax to be imposed upon a recipient. There are no Mexican stamp, issue, registration or similar taxes or duties payable by holders of ADSs or CPOs.
U.S. Federal Income Tax Considerations
General
The following is a summary of the material U.S. federal income tax consequences relating to the ownership and disposition of CEMEX, S.A.B. de C.V.’s CPOs and ADSs.
This summary is based on provisions of the U.S. Internal Revenue Code, or the Code, of 1986, as amended, U.S. Treasury regulations promulgated under the Code, and administrative rulings, and judicial interpretations of the Code, all as in effect on the date of this annual report and all of which are subject to change, possibly retroactively. This summary is limited to U.S. Shareholders (as defined below) who hold our ADSs or CPOs, as the case may be, as capital assets. This summary does not discuss all aspects of U.S. federal income taxation which may be important to an investor in light of its individual circumstances, for example, an investor subject to special tax rules (e.g., banks, thrifts, real estate investment trusts, regulated investment companies, insurance companies, dealers in securities or currencies, expatriates, tax-exempt investors, persons who own 10% or more of our voting stock, or holders whose functional currency is not the Dollar or U.S. Shareholders who hold a CPO or an ADS as a position in a “straddle,” as part of a “synthetic security” or “hedge,” as part of a “conversion transaction” or other integrated investment, or as other than a capital asset). In addition, this summary does not address any aspect of state, local or foreign taxation.
For purposes of this summary, a “U.S. Shareholder” means a beneficial owner of CPOs or ADSs, who is for U.S. federal income tax purposes:
 
 	•	 	an individual who is a citizen or resident of the United States for U.S. federal income tax purposes;	
 
 	•	 	a corporation or other entity taxable as a corporation that is created or organized in the United States or under the laws of the United States or any political subdivision thereof;	
 
 	•	 	an estate the income of which is subject to U.S. federal income tax regardless of its source; or	
 
 	•	 	a trust that (i) is subject to the primary supervision of a court within the United States and with respect to which one or more U.S. persons are authorized to control all substantial decisions or (ii) has a valid election in effect under applicable U.S. Treasury regulations to be treated as a United States person.	
If a partnership (including any entity treated as a partnership for U.S. federal income tax purposes) is the beneficial owner of CPOs or ADSs, the U.S. federal income tax treatment of a partner in such partnership will generally depend upon the status of the partner and the activities of the partnership. A partner in a partnership that is the beneficial owner of CPOs or ADSs is urged to consult its own tax advisor regarding the associated tax consequences.
U.S. Shareholders should consult their own tax advisors as to the particular tax consequences to them under United States federal, state and local, and foreign laws relating to the ownership and disposition of CEMEX, S.A.B. de C.V.’s CPOs and ADSs.
Ownership of CPOs or ADSs in general
In general, for U.S. federal income tax purposes, U.S. Shareholders who own ADSs will be treated as the beneficial owners of the CPOs represented by those ADSs, and each CPO will represent a beneficial interest in two A shares and one B share.
 
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Taxation of distributions with respect to CPOs and ADSs
A distribution of cash or property with respect to the A shares or B shares represented by CPOs, including CPOs represented by ADSs, generally will be treated as a dividend to the extent paid out of our current or accumulated earnings and profits, as determined under U.S. federal income tax principles, and will be includible in the gross income of a U.S. Shareholder as foreign source “passive” income on the date the distribution is received by the CPO trustee or successor thereof. Any such dividend will not be eligible for the dividends-received deduction allowed to corporate U.S. Shareholders. To the extent, if any, that the amount of any distribution by us exceeds our current and accumulated earnings and profits as determined under U.S. federal income tax principles, it will be treated first as a tax-free return of the U.S. Shareholder’s adjusted tax basis in the CPOs or ADSs, as applicable, and thereafter as capital gain.
The gross amount of any dividends paid in Mexican Pesos will be includible in the income of a U.S. Shareholder in a Dollar amount calculated by reference to the exchange rate in effect the day the Mexican Pesos are received by the CPO trustee or successor thereof whether or not the Mexican Pesos are converted into Dollars on that day. Generally, any gain or loss resulting from currency exchange fluctuations during the period from the date the dividend payment is includible in income to the date such payment is converted into Dollars will be treated as ordinary income or loss. Such gain or loss will generally be income from sources within the United States for foreign tax credit limitation purposes.
Dividend income is generally taxed as ordinary income. However, a maximum United States federal income tax rate of 15 percent will apply to “qualified dividend income” received by U.S. Shareholders that are individuals (as well as certain trusts and estates) in taxable years beginning after January 1, 2013, provided that certain holding period requirements are met (individuals in the top tax bracket will pay United States federal income tax at a rate of 23.8 percent (20 percent plus a 3.8 percent Medicare surtax)). “Qualified dividend income” includes dividends paid on shares of “qualified foreign corporations” if, among other things: (i) the shares of the foreign corporation are readily tradable on an established securities market in the United States, or (ii) the foreign corporation is eligible with respect to substantially all of its income for the benefits of a comprehensive income tax treaty with the United States which contains an exchange of information program.
We believe that we are a “qualified foreign corporation” because (i) the ADSs trade on the New York Stock Exchange and (ii) we are eligible for the benefits of the comprehensive income tax treaty between Mexico and the United States which includes an exchange of information program. Accordingly, we believe that any dividends we pay should constitute “qualified dividend income” for United States federal income tax purposes. We cannot assure you, however, that we will continue to be considered a “qualified foreign corporation” and that our dividends will continue to be “qualified dividend income.”
Taxation of capital gains on disposition of CPOs or ADSs
The sale, exchange, redemption, or other disposition of CPOs or ADSs will result in the recognition of gain or loss by a U.S. Shareholder for U.S. federal income tax purposes in an amount equal to the difference between the amount realized on the disposition and the U.S. Shareholder’s tax basis in the CPOs or ADSs, as applicable. Such gain or loss will be long-term capital gain or loss if the U.S. Shareholder’s holding period for the CPOs or ADSs exceeds one year at the time of disposition. Long-term capital gain recognized by a U.S. Shareholder that is an individual (as well as certain trusts and estates) upon the sale or exchange of CPOs or ADSs in a taxable year which begins after January 1, 2013 generally will be subject to a maximum United States federal income tax rate of 15 percent (individuals in the top tax bracket will pay United States federal income tax at a rate of 23.8 percent (20 percent plus a 3.8 percent Medicare surtax)). The deduction of capital losses is subject to limitations. Gain from the disposition of CPOs or ADSs generally will be treated as a U.S. source for foreign tax credit purposes; losses generally will be allocated against U.S. source income. Deposits and withdrawals of CPOs by U.S. Shareholders in exchange for ADSs will not result in the realization of gain or loss for U.S. federal income tax purposes.
 
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United States backup withholding and information reporting
A U.S. Shareholder may, under certain circumstances, be subject to information reporting with respect to some payments to that U.S. Shareholder such as dividends or the proceeds of a sale or other disposition of the CPOs or ADSs. Backup withholding at a rate of 31 percent also may apply to amounts paid to such holder unless such holder (i) is a corporation or comes within certain exempt categories and demonstrates this fact when so required, or (ii) provides a correct taxpayer identification number and otherwise complies with applicable requirements of the backup withholding rules. Backup withholding is not an additional tax. Amounts withheld as backup withholding may be creditable against the U.S. Shareholder’s federal income tax liability, and the U.S. Shareholder may obtain a refund of any excess amounts withheld under the backup withholding rules by filing the appropriate claim for refund with the Internal Revenue Service (“IRS”) and timely furnishing any required information.
Pursuant to the Hiring Incentives to Restore Employment Act enacted on March 18, 2010, an individual U.S. Shareholder may be required to submit to the IRS certain information with respect to his or her beneficial ownership of CPOs or ADSs, unless such CPOs or ADSs are held on his or her behalf by a U.S. financial institution. The law also imposes penalties if an individual U.S. Shareholder is required to submit such information to the IRS and fails to do so. U.S. Shareholders should consult their tax advisors regarding the application of the new law in their particular circumstances.
Documents on Display
We are subject to the informational requirements of the Securities Exchange Act of 1934 and, in accordance with these requirements, file reports and information statements and other information with the SEC. These reports and information statements and other information filed by us with the SEC can be inspected and copied at the public reference room of the SEC at 100 F Street, N.E., Washington, D.C. 20549.
In reviewing the agreements included as exhibits to this annual report, please remember they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements.
The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
 
 	•	 	should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;	
 
 	•	 	have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;	
 
 	•	 	may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and	
 
 	•	 	were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.	
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time.
Additionally, we provide notifications of news, announcements regarding our financial performance or other material information, including SEC filings, investor events, press and earnings releases as part of our investor relations website (http://www.cemex.com/InvestorCenter.aspx). The content of our website is not incorporated by reference into this annual report or in any other report or document we file or furnish with the SEC, and any references to our website are intended to be inactive textual references only.
Item 11—Qualitative and Quantitative Disclosures About Market Risk
See “Item 5—Operating and Financial Review and Prospects—Qualitative and Quantitative Market Disclosure—Our Derivative Financial Instruments.”
 
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Item 12—Description of Securities Other than Equity Securities
Item 12A—Debt Securities
Not applicable.
Item 12B—Warrants and Rights
Not applicable.
Item 12C—Other Securities
Not applicable
Item 12D—American Depositary Shares
Depositary Fees and Charges
Under the terms of the Deposit Agreement for CEMEX, S.A.B. de C.V.’s ADSs, an ADS holder may have to pay the following service fees to the depositary:

Services	 	Fees	
Issuance of ADSs upon deposit of eligible securities	 	Up to 5¢ per ADS issued.	
Surrender of ADSs for cancellation and withdrawal of deposited securities	 	Up to 5¢ per ADS surrendered.	
Exercise of rights to purchase additional ADSs	 	Up to 5¢ per ADS issued.	
Distribution of cash (i.e., upon sale of rights and other entitlements)	 	Up to 2¢ per ADS held.	
An ADS holder also is responsible to pay fees and expenses incurred by the ADS depositary and taxes and governmental charges including, but not limited to:
 
 	•	 	transfer and registration fees charged by the registrar and transfer agent for eligible and deposited securities, such as upon deposit of eligible securities and withdrawal of deposited securities;	
 
 	•	 	expenses incurred for converting foreign currency into Dollars;	
 
 	•	 	expenses for cable, telex and fax transmissions and for delivery of securities;	
 
 	•	 	expenses incurred in connection with compliance with exchange control regulations and other applicable regulatory requirements;	
 
 	•	 	fees and expenses incurred in connection with the delivery of deposited securities; and	
 
 	•	 	taxes and duties upon the transfer of securities, such as when eligible securities are deposited or withdrawn from deposit.	
We have agreed to pay some of the other charges and expenses of the ADS depositary. Note that the fees and charges that a holder of ADSs is required to pay may vary over time and may be changed by us and by the ADS depositary. ADS holders will receive notice of the changes. The fees described above may be amended from time to time.
Depositary Payments for the year ended December 31, 2013
In 2013, we received approximately U.S.$1,930,568.99 (after applicable U.S. taxes) from our Depositary Bank, Citibank, N.A., to reimburse us for contributions towards our investor relations activities (including but not limited to investor meetings, conferences, and fees to investor relations service vendors), and other miscellaneous expenses related to the listing of our ADSs on the NYSE.
 
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PART II
Item 13—Defaults, Dividend Arrearages and Delinquencies
None.
Item 14—Material Modifications to the Rights of Security Holders and Use of Proceeds
None.
Item 15—Controls and Procedures
Disclosure Controls and Procedures
Our management has evaluated, with the participation of our Chief Executive Officer and Executive Vice President of Finance and Administration, the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) under the Securities Exchange Act of 1934) as of the end of the period covered by this report, and has concluded that our disclosure controls and procedures were effective as of December 31, 2013.
Management’s Annual Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining adequate internal control over financial reporting, (as defined in Rule 13a-15(f) under the Securities Exchange Act of 1934). Under the supervision and with the participation of our management, including our Chief Executive Officer and principal financial and accounting officers, we conducted an evaluation of the effectiveness of our internal control over financial reporting as of December 31, 2013 using criteria established in “Internal Control—Integrated Framework (1992)” issued by the Committee of Sponsoring Organizations of the Treadway Commission. Based on this evaluation, our management has concluded that internal control over financial reporting was effective as of December 31, 2013.
KPMG Cárdenas Dosal, S.C., the registered public accounting firm that audited our financial statements included elsewhere in this annual report, has issued an attestation report on our internal control over financial reporting, which is included in page F-3 of this report.
Attestation Report of the Registered Public Accounting Firm
KPMG Cárdenas Dosal, S.C.’s report on our internal control over financial reporting appears on page F-3 of this report, and is incorporated herein by reference.
Changes in Internal Control Over Financial Reporting
On July 27, 2012, we reached a strategic agreement with IBM, expected to improve some of our business processes. This agreement implies the transfer of internal controls for some of our transactional processes. During 2013, we maintained monitoring controls over transferred processes and observed no material change in the related internal controls. Accordingly, during 2014, we will continue monitoring the effects that this change may have in all our internal controls related to the processes included in the agreement.
We have not identified other changes in our internal control over financial reporting during 2013 that could have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting.
 
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Item 16—[RESERVED]
Item 16A—Audit Committee Financial Expert
Our board of directors has determined that it has at least one “audit committee financial expert” (as defined in Item 16A of Form 20-F) serving on its audit committee. Mr.  José Manuel Rincón Gallardo meets the requisite qualifications.
Item 16B—Code of Ethics
We have adopted a written code of ethics that applies to all our senior executives, including our principal executive officer, principal financial officer and principal accounting officer.
You may view our code of ethics in the corporate governance section of our website (www.cemex.com), or you may request a copy of our code of ethics, at no cost, by writing to or telephoning us as follows:
CEMEX, S.A.B. de C.V.
Avenida Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León, México 66265.
Attn: Luis Hernández
Telephone: +52 81 8888-8888
Item 16C—Principal Accountant Fees and Services
Audit Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us approximately Ps198 million in fiscal year 2013 in connection with the professional services rendered for the audit of our annual financial statements and services normally provided by them relating to statutory and regulatory filings or engagements. In fiscal year 2012, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide billed us approximately Ps185 million for these services.
Audit-Related Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide billed us approximately Ps8 million in fiscal year 2013 for assurance and related services reasonably related to the performance of our audit. In fiscal year 2012, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us approximately Ps13 million for audit-related services.
Tax Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us approximately Ps14 million in fiscal year 2013 for tax compliance, tax advice and tax planning. In fiscal year 2012, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide billed us approximately Ps12 million for tax-related services.
All Other Fees: KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide billed us Ps26 million in fiscal year 2013 for products and services other than those comprising audit fees, audit-related fees and tax fees. In fiscal year 2012, KPMG Cárdenas Dosal, S.C. in Mexico and KPMG firms worldwide charged us approximately Ps19 million for products and services in this category. These fees relate mainly to services provided by KPMG to us with respect to our due diligence activities around the world.
Audit Committee Pre-Approval Policies and Procedures
Our audit committee is responsible, among other things, for the appointment, compensation and oversight of our external auditors. To assure the independence of our independent auditors, our audit committee pre-approves annually a catalog of specific audit and non-audit services in the categories Audit Services, Audit-Related Services, Tax-Related Services, and Other Services that may be performed by our auditors, as well as the
 
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budgeted fee levels for each of these categories. All other permitted services must receive a specific approval from our audit committee. Our external auditor periodically provides a report to our audit committee in order for our audit committee to review the services that our external auditor is providing, as well as the status and cost of those services.
During 2013, there were no services provided to us by our external auditors that were performed pursuant to the de minimis exception.
Item 16D—Exemptions from the Listing Standards for Audit Committees
Not applicable.
Item 16E—Purchases of Equity Securities by the Issuer and Affiliated Purchasers
Not applicable.
Item 16F—Change in Registrant’s Certifying Accountant
Not applicable.
Item 16G—Corporate Governance
Section 303A.11 of the NYSE Listed Company Manual (“LCM”) requires that listed foreign private issuers, such as CEMEX, disclose any significant ways in which their corporate governance practices differ from those followed by U.S. companies under NYSE listing standards.
CEMEX’s corporate governance practices are governed by its bylaws, by the corporate governance provisions set forth in the  Ley del Mercado de Valores  (the “Mexican Securities Market Law”), the  Circular de Emisoras  (the “Mexican Regulation for Issuers”) issued by the  Comisión Nacional Bancaria y de Valores  (the “Mexican Banking and Securities Commission”) and the  Reglamento Interior de la Bolsa Mexicana de Valores  (the “Mexican Stock Exchange Rules”) (the Mexican Securities Market Law, the Mexican Regulation for Issuers and the Mexican Stock Exchange Rules, collectively the “Mexican Laws and Regulations”), and by applicable U.S. securities laws. CEMEX is also subject to the rules of the NYSE to the extent they apply to foreign private issuers. Except for those specific rules, foreign private issuers are permitted to follow home country practice in lieu of the provisions of Section 303A of the LCM.
CEMEX, on a voluntary basis, also complies with the Código de Mejores Prácticas Corporativas (the “Mexican Code of Best Corporate Practices”) as indicated below, which was promulgated by a committee established by the  Consejo Coordinador Empresarial  (“Mexican Corporate Coordination Board”). The Mexican Corporate Coordination Board provides recommendations for better corporate governance practices for listed companies in Mexico, and the Mexican Code of Best Corporate Practices has been endorsed by the Mexican Banking and Securities Commission.
 
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The following is a summary of significant ways in which our corporate governance practices differ from those required to be followed by U.S. domestic companies under the NYSE’s listing standards.

NYSE LISTING STANDARDS	  	CEMEX CORPORATE GOVERNANCE PRACTICE	
303A.01	  	 	
 	 	
Listed companies must have a majority of independent directors.	  	Pursuant to the Mexican securities market law, CEMEX, S.A.B. de C.V. is required to have a board of directors with a maximum of 21 members, 25% of whom must be independent. Determination as to the independence of CEMEX, S.A.B. de C.V.’s directors is made upon their election by CEMEX, S.A.B. de C.V.’s shareholders at the corresponding meeting. Currently, CEMEX, S.A.B. de C.V.’s Board of Directors has 10 members, of which more than 25% are independent under the Mexican Securities Market Law.	
 	 	
 	  	The Mexican Securities Market Law sets forth, in article 26, the definition of “independence,” which differs from the one set forth in Section 303A.02 of the LCM. Generally, under the Mexican Securities Market Law, a director is not independent if such director is an employee or officer of the company or its subsidiaries; an individual that has significant influence over the company or its subsidiaries; a shareholder that is part of a group that controls the company; or, if there exist certain relationships between a company and a director, entities with which the director is associated or family members of the director.	
 	 	
303A.03	  	 	
 	 	
Non-management directors must meet at regularly executive sessions without management.	  	Under CEMEX, S.A.B. de C.V.’s bylaws and the Mexican Laws and Regulations, our non-management and independent directors are not required to meet in executive sessions. Our Board of Directors must meet at least once every three months.	
 	 	
303A.04	  	 	
 	 	
Listed companies must have a nominating/corporate governance committee composed of independent directors.	  	Under CEMEX, S.A.B. de C.V.’s bylaws and the Mexican Laws and Regulations, we are not required to have a nominating committee. We do not have such a committee.
 
Our Corporate Practices Committee operates pursuant to the provisions of the Mexican securities market law and CEMEX, S.A.B. de C.V.’s bylaws. Our Corporate Practices Committee is composed of 3 independent directors.
 
Our Corporate Practices Committee is responsible for evaluating the performance of our executive officers; reviewing related party transactions; reviewing the compensation paid to executive officers; evaluating any waivers granted to directors or executive officers for their taking of corporate opportunities; and carrying out the activities described under Mexican law.
 
Our Corporate Practices Committee meets as required by CEMEX, S.A.B. de C.V.’s bylaws and by the Mexican Laws and Regulations.	
 
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NYSE LISTING STANDARDS	  	CEMEX CORPORATE GOVERNANCE PRACTICE	
303A.05	  	 	
 	 	
Listed companies must have a compensation committee composed of independent directors. Compensation committee members must satisfy additional independence requirements specific to compensation committee membership.	  	Under CEMEX, S.A.B. de C.V.’s bylaws and the Mexican Laws and Regulations, we are not required to have a compensation committee. We do not have such committee.	
 	 	
303A.06	  	 	
 	 	
Listed companies must have an audit committee that satisfies the requirements of Rule 10A-3 under the Exchange Act.	  	CEMEX, S.A.B. de C.V.’s Audit Committee operates pursuant to the provisions of the Mexican Securities Market Law and CEMEX, S.A.B. de C.V.’s bylaws.
 
CEMEX, S.A.B. de C.V.’s Audit Committee is composed of 3 members. According to CEMEX, S.A.B. de C.V.’s by-laws, all of the members must be independent.
 
CEMEX, S.A.B. de C.V.’s Audit Committee is responsible for evaluating the company’s internal controls and procedures, identifying any material deficiencies it finds; following up with any corrective or preventive measures adopted with respect to the non-compliance with the operation and accounting guidelines and policies; evaluating the performance of the external auditors; describing and valuating those non-audit services rendered by the external auditor; reviewing the company’s financial statements; assessing the effects of any modifications to the accounting policies approved during a fiscal year; overseeing measures adopted as result of any observations made by shareholders, directors, executive officers, employees or any third parties with respect to accounting, internal controls and internal and external audit, as well as any complaints regarding irregularities on management, including anonymous and confidential methods for addressing concerns raised by employees; assuring the execution of resolutions adopted at shareholders’ or board of directors’ meetings.
 
CEMEX, S.A.B. de C.V.’s Board of Directors has determined that it has an “audit committee financial expert,” for purposes of the Sarbanes-Oxley Act of 2002, serving on its Audit Committee.
 
CEMEX, S.A.B. de C.V.’s Audit Committee meets as required by CEMEX, S.A.B. de C.V.’s bylaws and by the Mexican Laws and Regulations.	
 	 	
303A.09	  	 	
 	 	
Listed companies must adopt and disclose corporate governance guidelines.	  	Under CEMEX, S.A.B. de C.V.’s bylaws and the Mexican Laws and Regulations, we are not required to adopt corporate governance guidelines, but, on an annual basis, we file a report with the Mexican Stock Exchange regarding our compliance with the Mexican Code of Best Corporate Practices.	
 
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NYSE LISTING STANDARDS	  	CEMEX CORPORATE GOVERNANCE PRACTICE	
303A.10	  	 	
 	 	
Listed companies must adopt and disclose a code of business conduct and ethics for directors, officers and employees, and promptly disclose any waivers of the code for directors or executive officers.	  	CEMEX, S.A.B. de C.V. has adopted a written code of ethics that applies to all of our employees, including our principal executive officer, principal financial officer and principal accounting officer.	
 	 	
Equity compensation plans	  	 	
 	 	
Equity compensation plans require shareholder approval, subject to limited exemptions.	  	Shareholder approval is not expressly required under CEMEX, S.A.B. de C.V.’s bylaws for the adoption and amendment of an equity compensation plan. No equity compensation plans have been submitted for approval by our shareholders.	
Item 16H—Mine Safety Disclosure
The information concerning mine safety violations and other regulatory matters required by Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act is included in Exhibit 15.1 to this annual report on Form 20-F.
 
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PART III
Item 17—Financial Statements
Not applicable.
Item 18—Financial Statements
See pages F-1 through F-109, incorporated herein by reference.
Item 19—Exhibits

1.1	  	Amended and Restated By-laws of CEMEX, S.A.B. de C.V.(j)	
 	 	
2.1	  	Form of Trust Agreement between CEMEX, S.A.B. de C.V., as founder of the trust, and Banco Nacional de México, S.A. regarding the CPOs.(b)	
 	 	
2.1.1	  	Amendment Agreement to the Trust Agreement dated November 21, 2002, between CEMEX, S.A.B. de C.V., as founder of the trust, and Banco Nacional de México, S.A. regarding the CPOs.(c)	
 	 	
2.1.2	  	English Translation of Amendment Agreement to the Trust Agreement dated January 8, 2007, between CEMEX, S.A.B. de C.V., as founder of the trust, and Banco Nacional de México, S.A. regarding the CPOs.(j)	
 	 	
2.2	  	Form of CPO Certificate.(j)	
 	 	
2.3	  	Form of Second Amended and Restated Deposit Agreement (A and B share CPOs), dated August 10, 1999, among CEMEX, S.A.B. de C.V., Citibank, N.A. and holders and beneficial owners of American Depositary Shares.(b)	
 	 	
2.3.1	  	Amendment No. 1 to the Second Amended and Restated Deposit Agreement, dated as of July 1, 2005, by and among CEMEX, S.A.B. de C.V., Citibank, N.A., as Depositary, and all holders and beneficial owners from time to time of American Depositary Shares evidenced by American Depositary Receipts issued thereunder, including the form of ADR attached thereto.(e)	
 	 	
2.3.2	  	Letter Agreement, dated October 12, 2007, by and between CEMEX, S.A.B. de C.V. and Citibank, N.A., as Depositary, supplementing the Second Amended and Restated Deposit Agreement, as amended, to enable the Depositary to establish a direct registration system for the ADSs.(e)	
 	 	
2.3.3	  	Letter Agreement, dated March 30, 2010 by and between CEMEX, S.A.B. de C.V. and Citibank, N.A., as Depositary, supplementing the Second Amended and Restated Deposit Agreement, as amended, to set forth the terms upon which CEMEX, S.A.B. de C.V. is to deposit CPOs upon conversion of the 4.875% Subordinated Convertible Notes due 2015, and the Depositary is to issue ADSs upon deposit of such CPOs.(i)	
 	 	
2.3.4	  	Letter Agreement, dated March 30, 2010 by and between CEMEX, S.A.B. de C.V. and Citibank, N.A., as Depositary, supplementing the Second Amended and Restated Deposit Agreement, as amended, to set forth the terms upon which CEMEX, S.A.B. de C.V. is to establish a restricted ADS series.(i)	
 	 	
2.3.5	  	Letter Agreement, dated March 15, 2011 by and between CEMEX, S.A.B. de C.V. and Citibank, N.A., as Depositary, supplementing the Second Amended and Restated Deposit Agreement, as amended, to set forth the terms upon which CEMEX, S.A.B. de C.V. is to deposit CPOs upon conversion of the 3.25% Subordinated Convertible Notes due 2016 and 3.75% Subordinated Convertible Notes due 2018, and the Depositary is to issue ADSs upon deposit of such CPOs.(i)	
 	 	
2.3.6	  	Letter Agreement, dated March 15, 2011 by and between CEMEX, S.A.B. de C.V. and Citibank, N.A., as Depositary, supplementing the Second Amended and Restated Deposit Agreement, as amended, to set forth the terms upon which CEMEX, S.A.B. de C.V. is to establish a restricted ADS series.(i)	
 
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2.4	  	Form of American Depositary Receipt evidencing American Depositary Shares.(h)	
 	 	
2.5	  	Form of Certificate for shares of Series A Common Stock of CEMEX, S.A.B. de C.V.(j)	
 	 	
2.6	  	Form of Certificate for shares of Series B Common Stock of CEMEX, S.A.B. de C.V.(j)	
 	 	
4.1	  	Note Indenture, Dated as of December 18, 2006, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$350,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.1.1	  	First Supplemental Note Indenture, dated as of August 10, 2009, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, supplementing the Note Indenture, dated as of December 18, 2006, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$350,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.1.2	  	Second Supplemental Note Indenture, dated as of May 12, 2010, by and among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, The Bank of New York Mellon, as trustee, Swap 5 Capital (SPV) Limited and C5 Capital (SPV) Limited., supplementing the Note Indenture, dated as of December 18, 2006, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$350,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.2	  	Note Indenture, dated as of December 18, 2006, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$900,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.2.1	  	First Supplemental Note Indenture, dated as of August 10, 2009, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, supplementing the Note Indenture, dated as of December 18, 2006, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$900,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.2.2	  	Second Supplemental Note Indenture, dated as of May 12, 2010, by and among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, The Bank of New York Mellon, as trustee, Swap 10 Capital (SPV) Limited and C10 Capital (SPV) Limited., supplementing the Note Indenture, dated as of December 18, 2006, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$900,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 
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4.3	  	Note Indenture, dated as of February 12, 2007, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$750,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.3.1	  	First Supplemental Note Indenture, dated as of August 10, 2009, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, supplementing the Note Indenture, dated as of February 12, 2007, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$750,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.3.2	  	Second Supplemental Note Indenture, dated as of May 12, 2010, by and among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, The Bank of New York Mellon, as trustee, Swap 8 Capital (SPV) Limited and 8 Capital (SPV) Limited., supplementing the Note Indenture, dated as of February 12, 2007, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S.$750,000,000 aggregate principal amount of Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.4	  	Note Indenture, dated as of May 9, 2007, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S. €730,000,000 Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.4.1	  	First Supplemental Note Indenture, dated as of August 10, 2009, by and among New Sunward Holding Financial Ventures B.V., as issuer, and CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., and New Sunward Holding B.V., as guarantors and the Bank of New York, as trustee, supplementing the Note Indenture, dated as of May 9, 2007, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S. €730,000,000 Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.4.2	  	Second Supplemental Note Indenture, dated as of May 12, 2010, by and among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, The Bank of New York Mellon, as trustee, Swap C10-EUR Capital (SPV) Limited and C10-EUR Capital (SPV) Limited., supplementing the Note Indenture, dated as of February 12, 2007, among New Sunward Holding Financial Ventures B.V., as issuer, CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V. and New Sunward Holding B.V., as guarantors, and The Bank of New York Mellon, as trustee, relating to New Sunward Holding Financial Ventures B.V.’s U.S. €730,000,000 Callable Perpetual Dual-Currency Notes.(e)	
 	 	
4.5	  	Indenture, dated December 10, 2009, by and among CEMEX, S.A.B. de C.V., as issuer, Banco Mercantil de Norte Sociedad Anonima, Institución de Banca Múltiple, Grupo Financiero Banorte, as common representative and calculation agent, in connection with the issuance of Mandatory Convertible Bonds.(e)	
 
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4.6	  	Indenture, dated December 14, 2009, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of €350,000,000 9.625% Senior Secured Notes Due 2017.(e)	
 	 	
4.6.1	  	Supplemental Indenture No. 1, dated September 17, 2012, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.625% Senior Secured Notes Due 2017.(h)	
 	 	
4.6.2	  	Supplemental Indenture No. 2, dated June 6, 2013, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.625% Senior Secured Notes Due 2017.(j)	
 	 	
4.7	  	Master Terms and Conditions Agreement, dated March 24, 2010, by and between Citibank, N.A. and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$715,000,000 aggregate principal amount of 4.875% Convertible Subordinated Notes due 2015.(e)	
 	 	
4.7.1	  	Amendment and Restatement Agreement, dated January 10, 2014, by and between Citibank, N.A. and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$715,000,000 aggregate principal amount of 4.875% Convertible Subordinated Notes due 2015.(j)	
 	 	
4.8	  	Security Agreement, dated March 30, 2010, by and between Citibank, N.A. and CEMEX, S.A.B. de C.V. relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$715,000,000 aggregate principal amount of 4.875% Convertible Subordinated Notes due 2015.(e)	
 	 	
4.9	  	Collateral Agreement, dated March 30, 2010, among Citibank, N.A., CEMEX, S.A.B. de C.V. and Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex, División Fiduciaria relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$715,000,000 aggregate principal amount of 4.875% Convertible Subordinated Notes due 2015.(e)	
 	 	
4.10	  	Indenture, dated March 30, 2010, CEMEX, S.A.B. de C.V., as issuer, The Bank of New York Mellon, as trustee, and The Bank of New York Mellon S.A., Institución de Banca Múltiple, as Mexican trustee, in connection with the issuance of U.S.$715,000,000 aggregate principal amount of 4.875% Convertible Subordinated Notes due 2015.(e)	
 	 	
4.11	  	Indenture, dated May 12, 2010, among CEMEX España, acting through its Luxembourg branch, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$1,067,665,000 aggregate principal amount of 9.25% U.S. Dollar-Denominated Senior Secured Notes Due 2020 and €115,346,000 aggregate principal amount of the 8.875% Euro-Denominated Senior Secured Notes Due 2017.(h)	
 	 	
4.11.1	  	Supplemental Indenture No. 1, dated September 17, 2012, among CEMEX España, acting through its Luxembourg branch, as issuer, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.25% U.S. Dollar-Denominated Senior Secured Notes Due 2020 and 8.875% Euro-Denominated Senior Secured Notes Due 2017.(h)	
 	 	
4.11.2	  	Supplemental Indenture No. 2, dated March 25, 2013, among CEMEX España, acting through its Luxembourg branch, as issuer, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.25% U.S. Dollar-Denominated Senior Secured Notes Due 2020 and 8.875% Euro-Denominated Senior Secured Notes Due 2017.(h)	
 	 	
4.11.3	  	Supplemental Indenture No. 3, dated June 6, 2013, among CEMEX España, acting through its Luxembourg branch, as issuer, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.25% U.S. Dollar-Denominated Senior Secured Notes Due 2020 and 8.875% Euro-Denominated Senior Secured Notes Due 2017.(j)	
 
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4.11.4	  	Supplemental Indenture No. 4, dated April 1, 2014, among CEMEX España, acting through its Luxembourg branch, as issuer, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.25% U.S. Dollar-Denominated Senior Secured Notes Due 2020 and 8.875% Euro-Denominated Senior Secured Notes Due 2017.(j)	
 	 	
4.12	  	Indenture, dated January 11, 2011, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$1,000,000,000 aggregate principal amount of 9.000% Senior Secured Notes due 2018.(f)	
 	 	
4.12.1	  	Supplemental Indenture No. 1, dated July 11, 2011, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$650,000,000 aggregate principal amount of 9.000% Senior Secured Notes due 2018.(g)	
 	 	
4.12.2	  	Supplemental Indenture No. 2, dated September 17, 2012, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.000% Senior Secured Notes due 2018.(h)	
 	 	
4.12.3	  	Supplemental Indenture No. 3, dated March 25, 2013, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.000% Senior Secured Notes due 2018.(h)	
 	 	
4.12.4	  	Supplemental Indenture No. 4, dated June 6, 2013, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.000% Senior Secured Notes due 2018.(j)	
 	 	
4.12.5	  	Supplemental Indenture No. 5, dated April 1, 2014, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.000% Senior Secured Notes due 2018.(j)	
 	 	
4.13	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between Citibank, N.A. and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$800,000,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016.(f)	
 	 	
4.14	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between JPMorgan Chase Bank, National Association, London Branch and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$800,000,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016.(f)	
 	 	
4.15	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between BNP Paribas and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$600,000,000 aggregate principal amount of 3.75% Convertible Subordinated Notes due 2018.(f)	
 	 	
4.16	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between Bank of America, N.A. and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$800,000,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016 and U.S.$600,000,000 aggregate principal amount of 3.75% Convertible Subordinated Notes due 2018.(f)	
 	 	
4.17	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between The Royal Bank of Scotland plc and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$800,000,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016.(f)	
 
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4.18	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between HSBC Bank USA, National Association and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$800,000,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016.(f)	
 	 	
4.19	  	Master Terms and Conditions Agreement, dated March 9, 2011, by and between Banco Santander, S.A. and CEMEX, S.A.B. de C.V., relating to the capped call transaction entered into in connection with issuance by CEMEX, S.A.B. de C.V. of U.S.$800,000,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016 and U.S.$600,000,000 aggregate principal amount of 3.75% Convertible Subordinated Notes due 2018.(f)	
 	 	
4.20	  	Indenture, dated March 15, 2011, CEMEX, S.A.B. de C.V., as issuer, The Bank of New York Mellon, as trustee, and The Bank of New York Mellon S.A., Institución de Banca Múltiple, as Mexican trustee, in connection with the issuance of U.S.$977,500,000 aggregate principal amount of 3.25% Convertible Subordinated Notes due 2016.(j)	
 	 	
4.21	  	Indenture, dated March 15, 2011, CEMEX, S.A.B. de C.V., as issuer, The Bank of New York Mellon, as trustee, and The Bank of New York Mellon S.A., Institución de Banca Múltiple, as Mexican trustee, in connection with the issuance of U.S.$690,000,000 aggregate principal amount of 3.75% Convertible Subordinated Notes due 2018.(j)	
 	 	
4.22	  	Indenture, dated April 5, 2011, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$800,000,000 aggregate principal amount of Floating Rate Senior Secured Notes due 2015.(f)	
 	 	
4.22.1	  	Supplemental Indenture No. 1, dated September 17, 2012, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its Floating Rate Senior Secured Notes due 2015.(h)	
 	 	
4.22.2	  	Supplemental Indenture No. 2, dated March 25, 2013, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its Floating Rate Senior Secured Notes due 2015.(h)	
 	 	
4.22.3	  	Supplemental Indenture No. 3, dated June 6, 2013, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its Floating Rate Senior Secured Notes due 2015.(j)	
 	 	
4.22.4	  	Supplemental Indenture No. 4, dated April 1, 2014, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its Floating Rate Senior Secured Notes due 2015.(j)	
 	 	
4.23	  	Indenture, dated March 28, 2012, among CEMEX España, acting through its Luxembourg branch, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$703,861,000 aggregate principal amount of 9.875% U.S. Dollar-Denominated Senior Secured Notes due 2019 and €179,219,000 aggregate principal amount of 9.875% Euro-Denominated Senior Secured Notes due 2019.(g)	
 	 	
4.23.1	  	Supplemental Indenture No. 1, dated September 17, 2012, among CEMEX España, acting through its Luxembourg branch, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.875% U.S. Dollar-Denominated Senior Secured Notes due 2019 and 9.875% Euro-Denominated Senior Secured Notes due 2019.(h)	
 	 	
4.23.2	  	Supplemental Indenture No. 2, dated March 25, 2013, among CEMEX España, acting through its Luxembourg branch, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.875% U.S. Dollar-Denominated Senior Secured Notes due 2019 and 9.875% Euro-Denominated Senior Secured Notes due 2019.(h)	
 
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4.23.3	  	Supplemental Indenture No. 3, dated June 6, 2013, among CEMEX España, acting through its Luxembourg branch, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.875% U.S. Dollar-Denominated Senior Secured Notes due 2019 and 9.875% Euro-Denominated Senior Secured Notes due 2019.(j)	
 	 	
4.23.4	  	Supplemental Indenture No. 4, dated April 1, 2014, among CEMEX España, acting through its Luxembourg branch, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.875% U.S. Dollar-Denominated Senior Secured Notes due 2019 and 9.875% Euro-Denominated Senior Secured Notes due 2019.(j)	
 	 	
4.24	  	Facilities Agreement for CEMEX, S.A.B. de C.V. and certain of its subsidiaries, dated September 17, 2012, with the financial institutions, noteholders and other entities named therein as Original Creditors and Citibank International plc acting as Agent and Wilmington Trust (London) Limited acting as Security Agent.(h)	
 	 	
4.24.1	  	Amendment Agreement, dated October 16, 2013, between CEMEX, S.A.B. de C.V., acting for itself and as agent on behalf of each other Obligor, and Citibank International plc, acting for itself and as Agent on behalf of the Finance Parties, relating to the Facilities Agreement.(j)	
 	 	
4.25	  	Intercreditor Agreement, dated September 17, 2012, by and among Citibank International plc, as Facilities Agent, The Facilities Agreement Creditors (as named therein), CEMEX, S.A.B. de C.V. and certain of its subsidiaries, as Original Borrowers, Original Guarantors and Original Security Providers and Intra-Group Lenders, Wilmington Trust (London) Limited, acting as Security Agent, and others.(h)	
 	 	
4.26	  	Dutch law Share Pledge over the registered shares in New Sunward Holding B.V., dated September 17, 2012, between Corporación Gouda S.A. de C.V., Mexcement Holdings, S.A. de C.V., CEMEX International Finance Company and CEMEX TRADEMARKS HOLDING Ltd. (as Pledgors) and Wilmington Trust (London) Limited (as Pledgee).(h)	
 	 	
4.27	  	Swiss law Share Pledge over 1,938,958,014 shares in CEMEX TRADEMARKS HOLDING Ltd., dated September 17, 2012, between CEMEX, S.A.B de C.V., theretoCEMEX México, S.A. de C.V., Interamerican Investments Inc. Empresas Tolteca de México, S.A. de C.V. (as Pledgors) and Wilmington Trust (London) Limited (as trustee, relating to its Floating Rate Senior Secured Notes due 2015.(iPledgee).(h)	
 	 	
4.28	  	Spanish law Share Pledge over the shares in CEMEX España, dated November 8, 2012, between New Sunward Holding B.V., CEMEX, S.A.B de C.V., CEMEX España, S.A. and Wilmington Trust (London) Limited (as Security Agent).(h)	
 	 	
4.29	  	English translation of Mexican law Security Trust Agreement, dated September 17, 2012, entered into by CEMEX, S.A.B de C.V., Empresas Tolteca de Mexico, S.A. de C.V., Impra Café S.A. de C.V., Interamerican Investments Inc., Centro Distribuidor de Cemento, S.A. de C.V. and CEMEX México, S.A. de C.V., regarding the shares of each of them owns in: CEMEX México, S.A. de C.V.; Centro Distribuidor de Cemento S.A. de C.V.; Corporación Gouda S.A. de C.V.; and Mexcement Holdings, S.A. de C.V.(h)	
 	 	
4.30	  	Ancillary Agreement, dated as of September 17, 2012, among CEMEX, S.A.B. de C.V., certain subsidiaries of CEMEX, S.A.B. de C.V., certain creditors party to the 2009 Financing Agreement, dated August 14, 2009 (as amended), Citibank International PLC, as administrative agent, and Citibank International PLC, as exchange agent.(h)	
 	 	
4.31	  	Facilities Agreement for CEMEX, S.A.B. de C.V. and certain of its subsidiaries, dated September 17, 2012, with the financial institutions, noteholders and other entities named therein as Original Creditors and Citibank International plc acting as Agent and Wilmington Trust (London) Limited acting as Security Agent.(i)	
 
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4.32	  	English translation of Irrevocable Administration Trust Agreement with Reversion Rights No. 111523-3, dated as of September 17, 2012, by and among CEMEX, S.AB. de C.V. and certain of its subsidiaries, as the settlors and second beneficiaries, Banco Nacional de México, S.A., as trustee, and Wilmington Trust Company (London) Limited, as first beneficiary, and CEMEX, S.A.B. de C.V. and certain other of its subsidiaries, as counterparties.(h)	
 	 	
4.33	  	USPP Note Purchase Agreement, dated as of September 17, 2012, among CEMEX Finance LLC and each of the purchasers thereunder, for $106,586,333.79 aggregate principal amount of 9.66% senior notes due 2017.(h)	
 	 	
4.34	  	USPP Note Guarantee, dated as of September 17, 2012, by CEMEX España, S.A. in favor of the holders of notes under the Note Purchase Agreement,dated as of September 17, 2012.(h)	
 	 	
4.35	  	Indenture, dated September 17, 2012, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and Computershare Trust Company, N.A., as trustee, in connection with the issuance of U.S.$500,000,000 aggregate principal amount of 9.50% Senior Secured Notes due 2018.(h)	
 	 	
4.35.1	  	Supplemental Indenture No. 1, dated June 6, 2013, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and Computershare Trust Company, N.A., trustee, relating to its 9.50% Senior Secured Notes due 2018.(j)	
 	 	
4.35.2	  	Supplemental Indenture No. 2, dated April 1, 2014, among CEMEX, S.A.B de C.V., as issuer, the Note Guarantors party thereto and Computershare Trust Company, N.A., trustee, relating to its 9.50% Senior Secured Notes due 2018.(j)	
 	 	
4.36	  	Indenture, dated October 12, 2012, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$1,500,000,000 aggregate principal amount of 9.375% Senior Secured Notes due 2022.(h)	
 	 	
4.36.1	  	Supplemental Indenture No. 1, dated June 6, 2013, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 9.375% Senior Secured Notes due 2022.(j)	
 	 	
4.37	  	Mexican law Security Trust Agreement, dated September 17, 2012, entered into by CEMEX, S.A.B de C.V., Empresas Tolteca de Mexico, S.A. de C.V., Impra Café S.A. de C.V., Interamerican Investments Inc., Centro Distribuidor de Cemento, S.A. de C.V. and CEMEX México, regarding the shares of each of them owns in: CEMEX México; Centro Distribuidor de Cemento S.A. de C.V.; Corporación Gouda S.A. de C.V.; and Mexcement Holdings, S.A. de C.V.(i)	
 	 	
4.38	  	Indenture, dated March 25, 2013, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$600,000,000 aggregate principal amount of 5.875% Senior Secured Notes due 2019.(h)	
 	 	
4.38.1	  	Supplemental Indenture No. 1, dated June 6, 2013, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 5.875% Senior Secured Notes due 2019.(j)	
 	 	
4.38.2	  	Supplemental Indenture No. 2, dated April 1, 2014, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 5.875% Senior Secured Notes due 2019.(j)	
 	 	
4.39	  	English translation of Accession Deed, dated March 25, 2013, issued by The Bank of New York Mellon, as Trustee, and CEMEX España, S.A., concerning the shares of CEMEX España, S.A. relating to the issuance by CEMEX, S.A.B. de C.V. of U.S.$600,000,000 aggregate principal amount of 5.875% Senior Secured Notes due 2019.(h)	
 	 	
4.40	  	Indenture, dated August 12, 2013, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$1,000,000,000 aggregate principal amount of 6.500% Senior Secured Notes due 2019.(j)	
 
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  4.40.1	  	Supplemental Indenture No. 1, dated April 1, 2014, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 6.500% Senior Secured Notes due 2019.(j)	
 	 	
  4.41	  	English translation of Accession Deed, dated August 12, 2013, issued by The Bank of New York Mellon, as Trustee, and CEMEX España, S.A., concerning the shares of CEMEX España, S.A. relating to the issuance by CEMEX, S.A.B. de C.V. of U.S.$1,000,000,000 aggregate principal amount of 6.500% Senior Secured Notes due 2019.(j)	
 	 	
  4.42	  	Indenture, dated October 2, 2013, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$1,000,000,000 aggregate principal amount of 7.250% Senior Secured Notes due 2021.(j)	
 	 	
  4.42.1	  	Supplemental Indenture No. 1, dated April 1, 2014, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its 7.250% Senior Secured Notes due 2021.(j)	
 	 	
  4.43	  	English translation of Accession Deed, dated October 2, 2013, issued by The Bank of New York Mellon, as Trustee, and CEMEX España, S.A., concerning the shares of CEMEX España, S.A relating to the issuance by CEMEX, S.A.B. de C.V. of U.S.$1,000,000 aggregate principal amount of 7.250% Senior Secured Notes due 2021.(j)	
 	 	
  4.44	  	Indenture, dated October 2, 2013, among CEMEX S.A.B. de C.V, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$500,000,000 aggregate principal amount of Floating Rate Senior Secured Notes due 2018.(j)	
 	 	
  4.44.1	  	Supplemental Indenture No. 1, dated April 1, 2014, among CEMEX, S.A.B. de C.V., as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, relating to its Floating Rate Senior Secured Notes due 2018.(j)	
 	 	
  4.45	  	English Translation of Accession Deed, dated October 2, 2013, issued by The Bank of New York Mellon, as Trustee, and CEMEX España, S.A., concerning the shares of CEMEX España, S.A. relating to the issuance by CEMEX, S.A.B. de C.V. of U.S.$500,000,000 aggregate principal amount of Floating Rate Senior Secured Notes due 2018.(j)	
 	 	
  4.46	  	Indenture, dated April 1, 2014, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto and The Bank of New York Mellon, as trustee, in connection with the issuance of U.S.$1,000,000,000 aggregate principal amount of 6.000% U.S. Dollar-Denominated Senior Secured Notes due 2024.(j)	
 	 	
  4.47	  	English Translation of Accession Deed, dated April 1, 2014, issued by The Bank of New York Mellon, as Trustee, and CEMEX España, S.A., concerning the shares of CEMEX España, S.A. relating to the issuance by CEMEX Finance LLC of U.S.$1,000,000,000 aggregate principal amount of 6.000% U.S. Dollar-Denominated Senior Secured Notes due 2024.(j)	
 	 	
  4.48	  	Indenture, dated April 1, 2014, among CEMEX Finance LLC, as issuer, the Note Guarantors party thereto, The Bank of New York Mellon, as trustee, and The Bank of New York Mellon, London Branch, as paying agent and transfer agent, in connection with the issuance of €400,000,000 aggregate principal amount of 5.250% Euro-Denominated Senior Secured Notes due 2021.(j)	
 	 	
  4.49	  	English Translation of Accession Deed, dated April 1, 2014, issued by The Bank of New York Mellon, as Trustee, and CEMEX España, S.A., concerning the shares of CEMEX España, S.A. relating to the issuance by CEMEX Finance LLC of €400,000,000 aggregate principal amount of 5.250% Euro-Denominated Senior Secured Notes due 2021.(j)	
 	 	
  4.50	  	Trust Deed, dated February 28, 2007, among CEMEX Finance Europe B.V., as issuer, and several initial purchasers, relating to the issuance by CEMEX Finance Europe B.V. of €900,000,000 aggregate principal amount of 4.75% Notes due 2014.(d)	
 	 	
  8.1	  	List of subsidiaries of CEMEX, S.A.B. de C.V.(j)	
 	 	
12.1	  	Certification of the Principal Executive Officer of CEMEX, S.A.B. de C.V. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.(j)	
 
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12.2	  	Certification of the Principal Financial Officer of CEMEX, S.A.B. de C.V. pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.(j)	
 	 	
13.1	  	Certification of the Principal Executive and Financial Officers of CEMEX, S.A.B. de C.V. pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.(j)	
 	 	
14.1	  	Consent of KPMG Cárdenas Dosal, S.C. to the incorporation by reference into the effective registration statements of CEMEX, S.A.B. de C.V. under the Securities Act of their report with respect to the consolidated financial statements of CEMEX, S.A.B. de C.V., which appears in this Annual Report on Form 20-F.(j)	
 	 	
15.1	  	Mine safety and health administration safety data.(j)	
 
(a)	Incorporated by reference to Form 6-K of CEMEX, S.A.B. de C.V., filed with the SEC on March 8, 2011.	
(b)	Incorporated by reference to the Registration Statement on Form F-4 of CEMEX, S.A.B. de C.V. (Registration No. 333-10682), filed with the SEC on August 10, 1999.	
(c)	Incorporated by reference to the 2002 annual report on Form 20-F of CEMEX, S.A.B. de C.V. filed with the SEC on April 8, 2003.	
(d)	Incorporated by reference to the 2006 annual report on Form 20-F of CEMEX, S.A.B. de C.V. filed with the SEC on June 27, 2007.	
(e)	Incorporated by reference to the 2009 annual report on Form 20-F of CEMEX, S.A.B. de C.V. filed with the SEC on June 30, 2010.	
(f)	Incorporated by reference to the 2010 annual report on Form 20-F of CEMEX, S.A.B. de C.V. filed with the SEC on June 16, 2011.	
(g)	Incorporated by reference to the 2011 annual report on Form 20-F of CEMEX, S.A.B. de C.V. filed with the SEC on April 30, 2012.	
(h)	Incorporated by reference to the 2012 annual report on Form 20-F of CEMEX, S.A.B. de C.V. filed with the SEC on April 23, 2013.	
(i)	Incorporated by reference to the Registration Statement on Form F-6 of CEMEX, S.A.B. de C.V. (Registration No. 333-174743), filed with the SEC on June 6, 2011.	
(j)	Filed herewith.	
In reviewing the agreements included as exhibits to this annual report, please remember they are included to provide you with information regarding their terms and are not intended to provide any other factual or disclosure information about us or the other parties to the agreements.
The agreements may contain representations and warranties by each of the parties to the applicable agreement. These representations and warranties have been made solely for the benefit of the other parties to the applicable agreement and:
 
 	•	 	should not in all instances be treated as categorical statements of fact, but rather as a way of allocating the risk to one of the parties if those statements prove to be inaccurate;	
 
 	•	 	have been qualified by disclosures that were made to the other party in connection with the negotiation of the applicable agreement, which disclosures are not necessarily reflected in the agreement;	
 
 	•	 	may apply standards of materiality in a way that is different from what may be viewed as material to you or other investors; and	
 
 	•	 	were made only as of the date of the applicable agreement or such other date or dates as may be specified in the agreement and are subject to more recent developments.	
Accordingly, these representations and warranties may not describe the actual state of affairs as of the date they were made or at any other time.
 
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SIGNATURES
CEMEX, S.A.B. de C.V. hereby certifies that it meets all of the requirements for filing on Form 20-F and that it has duly caused and authorized the undersigned to sign this annual report on its behalf.

CEMEX, S.A.B. de C.V.	
 	 	
By:	 	    /s/ Lorenzo H. Zambrano	
Name:	 	    Lorenzo H. Zambrano	
Title:	 	    Chief Executive Officer	
Date: April 28, 2014
 
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INDEX TO AUDITED CONSOLIDATED FINANCIAL STATEMENTS

CEMEX, S.A.B. de C.V. and subsidiaries:	  	 	 	 	
 	 	
Report of Independent Registered Public Accounting Firm – KPMG Cárdenas Dosal, S.C.	  	 	F-2	  	
 	 	
Internal Control Report of Independent Registered Public Accounting Firm – KPMG Cárdenas Dosal, S.C.	  	 	F-3	  	
 	 	
Audited Consolidated Statements of Operations for the years ended December 31, 2013, 2012 and 2011	  	 	F-4	  	
 	 	
Audited Consolidated Statements of Comprehensive Loss for the years ended December 31, 2013, 2012 and 2011	  	 	F-5	  	
 	 	
Audited Consolidated Balance Sheets as of December 31, 2013 and 2012	  	 	F-6	  	
 	 	
Audited Consolidated Statements of Cash Flows for the years ended December 31, 2013, 2012 and 2011	  	 	F-7	  	
 	 	
Audited Consolidated Statements of Changes in Stockholders’ Equity for the years ended December  31, 2013, 2012 and 2011	  	 	F-8	  	
 	 	
Notes to the Audited Consolidated Financial Statements	  	 	F-9	  	
 
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REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders
CEMEX, S.A.B. de C.V.:
We have audited the accompanying consolidated balance sheets of CEMEX, S.A.B. de C.V. and subsidiaries (the Company) as of December 31, 2013 and 2012, and the related consolidated statements of operations, comprehensive loss, changes in stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2013. These consolidated financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of CEMEX, S.A.B. de C.V. and subsidiaries as of December 31, 2013 and 2012, and the results of their operations and their cash flows for each of the years in the three-year period ended December 31, 2013, in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), CEMEX, S.A.B. de C.V. and subsidiaries’ internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control – Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO), and our report dated April 28, 2014 expressed an unqualified opinion on the effectiveness of the Company’s internal control over financial reporting.
KPMG Cardenas Dosal, S.C.
/s/ Luis Gabriel Ortiz Esqueda
Monterrey, N.L., Mexico
April 28, 2014
 
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INTERNAL CONTROL REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders
CEMEX, S.A.B. de C.V.:
We have audited CEMEX, S.A.B. de C.V. and subsidiaries’ (the Company) internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control – Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO). CEMEX, S.A.B. de C.V. and subsidiaries’ management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Annual Report on Internal Control over Financial Reporting. Our responsibility is to express an opinion on the Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audit also included performing such other procedures as we considered necessary in the circumstances. We believe that our audit provides a reasonable basis for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, CEMEX, S.A.B. de C.V. and subsidiaries maintained, in all material respects, effective internal control over financial reporting as of December 31, 2013, based on criteria established in Internal Control – Integrated Framework (1992) issued by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
We also have audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States), the consolidated balance sheets of CEMEX, S.A.B. de C.V. and subsidiaries as of December 31, 2013 and 2012, and the related consolidated statements of operations, comprehensive loss, changes in stockholders’ equity, and cash flows for each of the years in the three-year period ended December 31, 2013, and our report dated April 28, 2014 expressed an unqualified opinion on those consolidated financial statements.
KPMG Cardenas Dosal, S.C.
/s/ Luis Gabriel Ortiz Esqueda
Monterrey, N.L., Mexico
April 28, 2014
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Consolidated Statements of Operations
(Millions of Mexican pesos, except for loss per share)

 	  	 	  	Years ended December 31,	 	
 	  	Note	  	2013	 	 	2012	 	 	2011	 	
Net sales	  	3	  	Ps	 	 	195,661	  	 	 	197,036	  	 	 	189,887	  	
Cost of sales	  	2R	  	 	 	 	(134,774	) 	 	 	(138,706	) 	 	 	(136,181	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Gross profit	  	 	  	 	 	 	60,887	  	 	 	58,330	  	 	 	53,706	  	
Administrative and selling expenses	  	 	  	 	 	 	(24,142	) 	 	 	(23,749	) 	 	 	(25,674	) 	
Distribution expenses	  	 	  	 	 	 	(17,241	) 	 	 	(17,580	) 	 	 	(16,170	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	2R	  	 	 	 	(41,383	) 	 	 	(41,329	) 	 	 	(41,844	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating earnings before other expenses, net 1	  	 	  	 	 	 	19,504	  	 	 	17,001	  	 	 	11,862	  	
Other expenses, net	  	6	  	 	 	 	(4,903	) 	 	 	(5,490	) 	 	 	(5,233	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Operating earnings 2 	  	 	  	 	 	 	14,601	  	 	 	11,511	  	 	 	6,629	  	
Financial expense	  	16	  	 	 	 	(19,937	) 	 	 	(18,511	) 	 	 	(16,878	) 	
Other financial income (expense), net	  	7	  	 	 	 	1,706	  	 	 	977	  	 	 	(2,214	) 	
Equity in gain (loss) of associates	  	13A	  	 	 	 	229	  	 	 	728	  	 	 	(334	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Loss before income tax	  	 	  	 	 	 	(3,401	) 	 	 	(5,295	) 	 	 	(12,797	) 	
Income tax	  	19	  	 	 	 	(6,210	) 	 	 	(6,043	) 	 	 	(12,135	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
CONSOLIDATED NET LOSS	  	 	  	 	 	 	(9,611	) 	 	 	(11,338	) 	 	 	(24,932	) 	
Non-controlling interest net income	  	 	  	 	 	 	1,223	  	 	 	662	  	 	 	21	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
CONTROLLING INTEREST NET LOSS	  	 	  	Ps	 	 	(10,834	) 	 	 	(12,000	) 	 	 	(24,953	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
BASIC LOSS PER SHARE	  	22	  	Ps	 	 	(0.29	) 	 	 	(0.33	) 	 	 	(0.69	) 	
DILUTED LOSS PER SHARE	  	22	  	Ps	 	 	(0.29	) 	 	 	(0.33	) 	 	 	(0.69	) 	
 
1	The line item “Operating earnings before other expenses, net” was titled by CEMEX until the year ended December 31, 2011 as “Operating income” (note 2A).	
2	The line item “Operating earnings” was titled by CEMEX until the year ended December 31, 2011 as “Operating income after other expenses, net” (note 2A).	
The accompanying notes are part of these consolidated financial statements.
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Consolidated Statements of Comprehensive Loss
(Millions of Mexican pesos)

 	  	 	  	Years ended December 31,	 	
 	  	Note	  	2013	 	 	2012	 	 	2011	 	
CONSOLIDATED NET LOSS	  	 	  	Ps	 	  	 	 	(9,611	) 	 	 	(11,338	) 	 	 	(24,932	) 	
Items that will not be reclassified subsequently to profit or loss	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Actuarial losses	  	18	  	 	 	 	 	 	(391	) 	 	 	(754	) 	 	 	(801	) 	
Income tax recognized directly in other comprehensive income	  	19	  	 	 	 	 	 	(122	) 	 	 	263	  	 	 	271	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	 	  	 	 	 	 	 	(513	) 	 	 	(491	) 	 	 	(530	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Items that will be reclassified subsequently to profit or loss when specific conditions are met	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Effects from available-for-sale investments	  	13B	  	 	 	 	 	 	80	  	 	 	(44	) 	 	 	(93	) 	
Currency translation of foreign subsidiaries	  	20B	  	 	 	 	 	 	952	  	 	 	(7,324	) 	 	 	11,359	  	
Income tax recognized directly in other comprehensive income	  	19	  	 	 	 	 	 	(1,085	) 	 	 	(3,639	) 	 	 	4,631	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	 	  	 	 	 	 	 	(53	) 	 	 	(11,007	) 	 	 	15,897	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Other comprehensive (loss) income	  	 	  	 	 	 	 	 	(566	) 	 	 	(11,498	) 	 	 	15,367	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
TOTAL COMPREHENSIVE LOSS	  	 	  	 	 	 	 	 	(10,177	) 	 	 	(22,836	) 	 	 	(9,565	) 	
Non-controlling interest comprehensive income	  	 	  	 	 	 	 	 	892	  	 	 	662	  	 	 	21	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
CONTROLLING INTEREST COMPREHENSIVE LOSS	  	 	  	Ps	 	  	 	 	(11,069	) 	 	 	(23,498	) 	 	 	(9,586	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are part of these consolidated financial statements.
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Consolidated Balance Sheets
(Millions of Mexican pesos)

 	  	 	  	December 31,	 	
 	  	Note	  	2013	 	 	2012	 	
ASSETS	  	 	  	 	 	 	 	 	 	 	 	 	
CURRENT ASSETS	  	 	  	 	 	 	 	 	 	 	 	 	
Cash and cash equivalents	  	8	  	Ps	 	 	15,176	 	 	 	12,478	 	
Trade receivables less allowance for doubtful accounts	  	9	  	 	 	 	25,971	 	 	 	23,698	 	
Other accounts receivable	  	10	  	 	 	 	7,010	 	 	 	6,239	 	
Inventories, net	  	11	  	 	 	 	16,985	 	 	 	16,485	 	
Other current assets	  	12	  	 	 	 	3,906	 	 	 	4,396	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
Total current assets	  	 	  	 	 	 	69,048	 	 	 	63,296	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
NON-CURRENT ASSETS	  	 	  	 	 	 	 	 	 	 	 	 	
Investments in associates	  	13A	  	 	 	 	9,022	 	 	 	7,979	 	
Other investments and non-current accounts receivable	  	13B	  	 	 	 	12,060	 	 	 	8,410	 	
Property, machinery and equipment, net	  	14	  	 	 	 	205,717	 	 	 	213,075	 	
Goodwill and intangible assets, net	  	15	  	 	 	 	174,940	 	 	 	172,990	 	
Deferred income taxes	  	19B	  	 	 	 	25,343	 	 	 	13,047	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
Total non-current assets	  	 	  	 	 	 	427,082	 	 	 	415,501	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
TOTAL ASSETS	  	 	  	Ps	 	 	496,130	 	 	 	478,797	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
LIABILITIES AND STOCKHOLDERS’ EQUITY	  	 	 	 	 	 	 	 	 	 	
CURRENT LIABILITIES	  	 	  	 	 	 	 	 	 	 	 	 	
Short-term debt including current maturities of long-term debt	  	16A	  	Ps	 	 	3,959	 	 	 	596	 	
Other financial obligations	  	16B	  	 	 	 	5,568	 	 	 	6,978	 	
Trade payables	  	 	  	 	 	 	22,202	 	 	 	20,516	 	
Income tax payable	  	 	  	 	 	 	9,779	 	 	 	6,736	 	
Other accounts payable and accrued expenses	  	17	  	 	 	 	18,054	 	 	 	18,967	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
Total current liabilities	  	 	  	 	 	 	59,562	 	 	 	53,793	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
NON-CURRENT LIABILITIES	  	 	  	 	 	 	 	 	 	 	 	 	
Long-term debt	  	16A	  	 	 	 	187,021	 	 	 	177,539	 	
Other financial obligations	  	16B	  	 	 	 	33,750	 	 	 	32,913	 	
Employee benefits	  	18	  	 	 	 	14,073	 	 	 	13,460	 	
Deferred income taxes	  	19B	  	 	 	 	18,315	 	 	 	12,861	 	
Other non-current liabilities	  	17	  	 	 	 	35,091	 	 	 	32,604	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
Total non-current liabilities	  	 	  	 	 	 	288,250	 	 	 	269,377	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
TOTAL LIABILITIES	  	 	  	 	 	 	347,812	 	 	 	323,170	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
STOCKHOLDERS’ EQUITY	  	 	  	 	 	 	 	 	 	 	 	 	
Controlling interest:	  	 	  	 	 	 	 	 	 	 	 	 	
Common stock and additional paid-in capital	  	20A	  	 	 	 	88,943	 	 	 	118,068	  	
Other equity reserves	  	20B	  	 	 	 	15,037	 	 	 	12,514	 	
Retained earnings	  	20C	  	 	 	 	40,233	 	 	 	22,557	 	
Net loss	  	 	  	 	 	 	(10,834	) 	 	 	(12,000	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
Total controlling interest	  	 	  	 	 	 	133,379	 	 	 	141,139	 	
Non-controlling interest and perpetual debentures	  	20D	  	 	 	 	14,939	 	 	 	14,488	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
TOTAL STOCKHOLDERS’ EQUITY	  	 	  	 	 	 	148,318	 	 	 	155,627	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
TOTAL LIABILITIES AND STOCKHOLDERS’ EQUITY	  	 	  	Ps	 	 	496,130	 	 	 	478,797	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	
The accompanying notes are part of these consolidated financial statements.
 
F-6

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Consolidated Statements of Cash Flows
(Millions of Mexican pesos)

 	  	 	  	 	 	 	Years ended December 31,	 	
 	  	Notes	  	 	 	 	2013	 	 	2012	 	 	2011	 	
OPERATING ACTIVITIES	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated net loss	  	 	  	Ps	 	  	 	 	(9,611	) 	 	 	(11,338	) 	 	 	(24,932	) 	
Non-cash items:	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Depreciation and amortization of assets	  	5	  	 	 	 	 	 	14,459	  	 	 	17,505	  	 	 	17,848	  	
Impairment losses	  	6	  	 	 	 	 	 	1,591	  	 	 	1,661	  	 	 	1,751	  	
Equity in gain (loss) of associates	  	13A	  	 	 	 	 	 	(229	) 	 	 	(728	) 	 	 	334	  	
Other expenses (income), net	  	 	  	 	 	 	 	 	476	  	 	 	1,593	  	 	 	(1,559	) 	
Financial items, net	  	 	  	 	 	 	 	 	18,231	  	 	 	17,534	  	 	 	19,092	  	
Income taxes	  	19	  	 	 	 	 	 	6,210	  	 	 	6,043	  	 	 	12,135	  	
Changes in working capital, excluding income taxes	  	 	  	 	 	 	 	 	(4,082	) 	 	 	(2,048	) 	 	 	(727	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash flow provided by operating activities before interest, coupons on perpetual debentures and income taxes	  	 	  	 	 	 	 	 	27,045	  	 	 	30,222	  	 	 	23,942	  	
Financial expense paid in cash including coupons on perpetual debentures	  	20D	  	 	 	 	 	 	(19,110	) 	 	 	(19,564	) 	 	 	(13,352	) 	
Income taxes paid in cash	  	 	  	 	 	 	 	 	(6,665	) 	 	 	(4,709	) 	 	 	(3,778	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash flows provided by (used in) operating activities	  	 	  	 	 	 	 	 	1,270	  	 	 	5,949	  	 	 	6,812	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
INVESTING ACTIVITIES	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Property, machinery and equipment, net	  	14	  	 	 	 	 	 	(5,570	) 	 	 	(5,922	) 	 	 	(3,524	) 	
Disposal (acquisition) of subsidiaries and associates, net	  	13, 15	  	 	 	 	 	 	1,259	  	 	 	(895	) 	 	 	1,232	  	
Intangible assets and other deferred charges	  	15	  	 	 	 	 	 	(1,203	) 	 	 	(438	) 	 	 	(932	) 	
Long term assets and others, net	  	 	  	 	 	 	 	 	118	  	 	 	4,696	  	 	 	1,406	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash flows used in investing activities	  	 	  	 	 	 	 	 	(5,396	) 	 	 	(2,559	) 	 	 	(1,818	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
FINANCING ACTIVITIES	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Issuance of common stock	  	20A	  	 	 	 	 	 	—  	  	 	 	—  	  	 	 	11	  	
Issuance of common stock by subsidiaries	  	20D	  	 	 	 	 	 	—  	  	 	 	12,442	  	 	 	—  	  	
Derivative instruments	  	 	  	 	 	 	 	 	(256	) 	 	 	1,633	  	 	 	(5,464	) 	
Issuance (repayment) of debt, net	  	16A	  	 	 	 	 	 	5,933	  	 	 	(17,239	) 	 	 	5,702	  	
Securitization of trade receivables	  	 	  	 	 	 	 	 	(1,854	) 	 	 	(193	) 	 	 	2,890	  	
Non-current liabilities, net	  	 	  	 	 	 	 	 	(568	) 	 	 	(1,679	) 	 	 	1,430	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net cash flows provided by (used in) financing activities	  	 	  	 	 	 	 	 	3,255	  	 	 	(5,036	) 	 	 	4,569	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Increase (decrease) in cash and cash equivalents	  	 	  	 	 	 	 	 	(871	) 	 	 	(1,646	) 	 	 	9,563	  	
Cash conversion effect, net	  	 	  	 	 	 	 	 	3,569	  	 	 	(2,004	) 	 	 	(1,789	) 	
Cash and cash equivalents at beginning of year	  	 	  	 	 	 	 	 	12,478	  	 	 	16,128	  	 	 	8,354	 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
CASH AND CASH EQUIVALENTS AT END OF YEAR	  	8	  	Ps	 	  	 	 	15,176	  	 	 	12,478	  	 	 	16,128	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Changes in working capital, excluding income taxes:	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Trade receivables, net	  	 	  	Ps	 	  	 	 	(2,187	) 	 	 	2,956	  	 	 	(2,211	) 	
Other accounts receivable and other assets	  	 	  	 	 	 	 	 	(1,033	) 	 	 	(2,010	) 	 	 	1,306	  	
Inventories	  	 	  	 	 	 	 	 	(616	) 	 	 	1,412	  	 	 	(575	) 	
Trade payables	  	 	  	 	 	 	 	 	1,620	  	 	 	(424	) 	 	 	(454	) 	
Other accounts payable and accrued expenses	  	 	  	 	 	 	 	 	(1,866	) 	 	 	(3,982	) 	 	 	1,207	  	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Changes in working capital, excluding income taxes	  	 	  	Ps	 	  	 	 	(4,082	) 	 	 	(2,048	) 	 	 	(727	) 	
 	  	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are part of these consolidated financial statements.
 
F-7

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Statements of Changes in Stockholders’ Equity
(Millions of Mexican pesos)

 	  	 	  	 	 	 	 	 	  	Additional
paid-in	 	 	Other
equity	 	 	 	 	 	Total
controlling	 	 	 	 	 	Total
stockholders’	 	 	
 	  	 	  	 	 	 	Common	 	  	 	 	 	 	 	 	Retained	 	 	 	 	 	Non-controlling	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Notes	  	 	 	 	stock	 	  	capital	 	 	reserves	 	 	earnings	 	 	interest	 	 	interest	 	 	equity	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2010	  	 	  	Ps	 	  	 	 	4,132	  	  	 	104,590	  	 	 	(842	) 	 	 	55,864	  	 	 	163,744	  	 	 	19,443	  	 	 	183,187	  	 	 	 	 	 	 	 	 	
Net loss	  	 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	—  	  	 	 	(24,953	) 	 	 	(24,953	) 	 	 	21	  	 	 	(24,932	) 	 	 	 	 	 	 	 	 	
Total other items of comprehensive income	  	 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	15,367	  	 	 	—  	  	 	 	15,367	  	 	 	—  	  	 	 	15,367	  	 	 	 	 	 	 	 	 	
Capitalization of retained earnings	  	20A	  	 	 	 	 	 	3	  	  	 	4,213	  	 	 	—  	  	 	 	(4,216	) 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	 	 	 	 	 	 	
Stock-based compensation	  	20A, 21	  	 	 	 	 	 	—  	  	  	 	506	  	 	 	—  	  	 	 	—  	  	 	 	506	  	 	 	—  	  	 	 	506	  	 	 	 	 	 	 	 	 	
Effects of perpetual debentures	  	20D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	827	  	 	 	—  	  	 	 	827	  	 	 	(3,221	) 	 	 	(2,394	) 	 	 	 	 	 	 	 	 	
Changes in non-controlling interest	  	20D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	(387	) 	 	 	—  	  	 	 	(387	) 	 	 	359	  	 	 	(28	) 	 	 	 	 	 	 	 	 	
 	  	 	  	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2011	  	 	  	Ps	 	  	 	 	4,135	  	  	 	109,309	  	 	 	14,965	  	 	 	26,695	  	 	 	155,104	  	 	 	16,602	  	 	 	171,706	  	 	 	 	 	 	 	 	 	
Net loss	  	 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	—  	  	 	 	(12,000	) 	 	 	(12,000	) 	 	 	662	  	 	 	(11,338	) 	 	 	 	 	 	 	 	 	
Total other items of comprehensive loss	  	 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	(11,498	) 	 	 	—  	  	 	 	(11,498	) 	 	 	—  	  	 	 	(11,498	) 	 	 	 	 	 	 	 	 	
Capitalization of retained earnings	  	20A	  	 	 	 	 	 	4	 	  	 	4,134	 	 	 	—  	  	 	 	(4,138	) 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	 	 	 	 	 	 	
Stock-based compensation	  	20A, 21	  	 	 	 	 	 	—  	  	  	 	486	 	 	 	136	  	 	 	—  	  	 	 	622	  	 	 	—  	  	 	 	622	  	 	 	 	 	 	 	 	 	
Effects of perpetual debentures	  	20D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	1,227	  	 	 	—  	  	 	 	1,227	  	 	 	(7,004	) 	 	 	(5,777	) 	 	 	 	 	 	 	 	 	
Changes in non-controlling interest	  	20D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	7,684	  	 	 	—  	  	 	 	7,684	  	 	 	4,228	  	 	 	11,912	  	 	 	 	 	 	 	 	 	
 	  	 	  	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2012	  	 	  	Ps	 	  	 	 	4,139	  	  	 	113,929	  	 	 	12,514	  	 	 	10,557	  	 	 	141,139	  	 	 	14,488	  	 	 	155,627	  	 	 	 	 	 	 	 	 	
Net loss	  	 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	—  	  	 	 	(10,834	) 	 	 	(10,834	) 	 	 	1,223	  	 	 	(9,611	) 	 	 	 	 	 	 	 	 	
Total other items of comprehensive loss	  	 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	(235	) 	 	 	—  	  	 	 	(235	) 	 	 	(331	) 	 	 	(566	) 	 	 	 	 	 	 	 	 	
Change in the Parent Company’s functional currency	  	2D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	3,027	  	 	 	—  	  	 	 	3,027	  	 	 	—  	  	 	 	3,027	  	 	 	 	 	 	 	 	 	
Restitution of retained earnings	  	20C	  	 	 	 	 	 	—  	  	  	 	(35,667	) 	 	 	—  	  	 	 	35,667	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	 	 	 	 	 	 	
Capitalization of retained earnings	  	20A	  	 	 	 	 	 	4	  	  	 	5,987	  	 	 	—  	  	 	 	(5,991	) 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	 	 	 	 	 	 	
Stock-based compensation	  	20A, 21	  	 	 	 	 	 	—  	  	  	 	551	  	 	 	136	  	 	 	—  	  	 	 	687	  	 	 	—  	  	 	 	687	  	 	 	 	 	 	 	 	 	
Effects of perpetual debentures	  	20D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	(405	) 	 	 	—  	  	 	 	(405	) 	 	 	—  	  	 	 	(405	) 	 	 	 	 	 	 	 	 	
Changes in non-controlling interest	  	20D	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	(441	) 	 	 	(441	) 	 	 	 	 	 	 	 	 	
 	  	 	  	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at December 31, 2013	  	 	  	Ps	 	  	 	 	4,143	  	  	 	84,800	  	 	 	15,037	  	 	 	29,399	  	 	 	133,379	  	 	 	14,939	  	 	 	148,318	  	 	 	 	 	 	 	 	 	
 	  	 	  	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The accompanying notes are part of these consolidated financial statements
 
F-8

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
1)	DESCRIPTION OF BUSINESS	
CEMEX, S.A.B. de C.V., a public stock corporation with variable capital (S.A.B. de C.V.) organized under the laws of the United Mexican States, or Mexico, is currently a holding company (parent) of entities whose main activities are oriented to the construction industry, through the production, marketing, distribution and sale of cement, ready-mix concrete, aggregates and other construction materials.
CEMEX, S.A.B. de C.V. was founded in 1906 and was registered with the Mercantile Section of the Public Register of Property and Commerce in Monterrey, N.L., Mexico in 1920 for a period of 99 years. In 2002, this period was extended to the year 2100. The shares of CEMEX, S.A.B. de C.V. are listed on the Mexican Stock Exchange (“MSE”) as Ordinary Participation Certificates (“CPOs”). Each CPO represents two series “A” shares and one series “B” share of common stock of CEMEX, S.A.B. de C.V. In addition, CEMEX, S.A.B. de C.V.’s shares are listed on the New York Stock Exchange (“NYSE”) as  American Depositary Shares  (“ADSs”) under the symbol “CX.” Each ADS represents ten CPOs.
The terms “CEMEX, S.A.B. de C.V.” and/or the “Parent Company” used in these accompanying notes to the financial statements refer to CEMEX, S.A.B. de C.V. without its consolidated subsidiaries. The terms the “Company” or “CEMEX” refer to CEMEX, S.A.B. de C.V. together with its consolidated subsidiaries. These consolidated financial statements were issued by the Company’s management on January 31, 2014, and were further authorized by the Stockholders’ Meeting of CEMEX, S.A.B. de C.V. on March 20, 2014.
 
2)	SIGNIFICANT ACCOUNTING POLICIES	
 
2A)	BASIS OF PRESENTATION AND DISCLOSURE	
In November 2008, the Mexican National Banking and Exchange Commission (Comisión Nacional Bancaria y de Valores or “CNBV”) issued regulations requiring registrants whose shares are listed on the MSE, to begin preparing their consolidated financial statements using International Financial Reporting Standards (“IFRS”), as issued by the International Accounting Standards Board (“IASB”), beginning no later than January 1, 2012 and to stop using Mexican Financial Reporting Standards (“MFRS”). In connection with this requirement, CEMEX’s consolidated financial statements as of December 31, 2013 and 2012 and for the years ended December 31, 2013, 2012 and 2011, were prepared in accordance with IFRS as issued by the IASB.
On January 26, 2012, CEMEX issued its last consolidated financial statements under MFRS, which were as of December 31, 2011 and 2010 and for the years ended December 31, 2011, 2010 and 2009. These financial statements were used to comply with CEMEX’s financial information requirements before the issuance on April 8, 2012 of its 2011 annual report with the CNBV and its 2011 annual report on Form 20-F with the U.S. Securities and Exchange Commission (“SEC”). In addition, for purposes of preparing its 2011 annual reports with the CNBV and the SEC, on April 27, 2012, CEMEX issued its first financial statements under IFRS, which were as of December 31, 2011 and 2010 and as of January 1, 2010 and for the years ended December 31, 2011 and 2010 (not included in this report), in which CEMEX described the options it made in the migration to IFRS and the effects that such migration had on (i) CEMEX’s opening balance sheet as of January 1, 2010, according to IFRS 1,  First time adoption  (“IFRS 1”), (ii) CEMEX’s balance sheets as of December 31, 2011 and 2010, and (iii) CEMEX’s statements of operations, statements of comprehensive loss and statements of cash flows for the years ended December 31, 2011 and 2010, in each case, as compared to CEMEX’s previously reported amounts under MFRS.
Definition of terms
When reference is made to pesos or “Ps” it means Mexican pesos. The amounts in the financial statements and the accompanying notes are stated in millions, except when references are made to loss per share and/or prices per
 
F-9

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Definition of terms – continued
 
share. When reference is made to “US$” or “dollars”, it means millions of dollars of the United States of America (“United States”). When reference is made to “£” or “pounds”, it means millions of British pounds sterling. When reference is made to “€” or “Euros”, it means millions of the currency in circulation in a significant number of European Union (“EU”) countries. When it is deemed relevant, certain amounts presented in the notes to the financial statements include between parentheses a convenience translation into dollars, into pesos, or both, as applicable. These translations should not be construed as representations that the amounts in pesos or dollars, as applicable, actually represent those peso or dollar amounts or could be converted into pesos or dollars at the rate indicated. As of December 31, 2013 and 2012, translations of pesos into dollars and dollars into pesos, were determined for balance sheet amounts using the closing exchange rates of Ps13.05 and Ps12.85 pesos per dollar, respectively, and for statements of operations amounts, using the average exchange rates of Ps12.85, Ps13.15 and Ps12.48 pesos per dollar for 2013, 2012 and 2011, respectively. When the amounts between parentheses are the peso and the dollar, the amounts were determined by translating the foreign currency amount into dollars using the closing exchange rates at year-end, and then translating the dollars into pesos as previously described.
Statements of operations
In CEMEX’s statements of operations for the years ended December 31, 2013, 2012 and 2011, the line item currently titled “Operating earnings before other expenses, net” was previously titled until December 31, 2011 as “Operating income,” and the line item currently titled “Operating earnings” was previously titled until December 31, 2011 as “Operating income after other expenses, net.” CEMEX made these changes to comply with industry practice when filing financial statements under IFRS with the SEC based on the guidance set forth in paragraph 56 of the Basis for Conclusions of IAS 1,  Presentation of Financial Statements  (“IAS 1”). However, such changes in line-item titles do not represent any change in CEMEX’s accounting practices, policies or methodologies under IFRS as compared to prior years before 2011. Consequently, the line items “Operating earnings before other expenses, net” and “Operating earnings” are directly comparable with the line items “Operating income” and “Operating income after other expenses, net” respectively, as presented in financial statements issued until December 31, 2011.
The line item “Other expenses, net” in the statements of operations consists primarily of revenues and expenses not directly related to CEMEX’s main activities, or which are of an unusual and/or non-recurring nature, including impairment losses of long-lived assets, results on disposal of assets and restructuring costs, among others (note 6).
Statements of other comprehensive income (loss)
For the years ended December 31, 2013, 2012 and 2011, based on IAS 1, CEMEX presents line items for amounts of other comprehensive income (loss) in the period grouped into those that, in accordance with other IFRSs: a) will not be reclassified subsequently to profit or loss; and b) will be reclassified subsequently to profit or loss when specific conditions are met.
Statements of cash flows
The statements of cash flows present cash inflows and outflows, excluding unrealized foreign exchange effects, as well as the following transactions that did not represent sources or uses of cash:
 
•	 	In 2013, the increase in investments in associates for Ps712, related to CEMEX’s joint venture Concrete Supply Co., LLC. (note 13A). As part of the agreement CEMEX contributed cash of approximately US$4;	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Statements of cash flows – continued
 
•	 	In 2013, the decrease in other non-current liabilities for approximately Ps4,325 before a deferred tax liability of approximately Ps1,298, as a result of the change in the functional currency at the Parent Company (note 16B);	
 
•	 	In 2012, the exchange of approximately US$452 (48%) of CEMEX’s then outstanding perpetual debentures and of approximately €470 (53%) of CEMEX’s then outstanding Euro-denominated 4.75% notes due 2014, for new Euro-denominated notes for €179 and new Dollar-denominated notes for US$704. In 2011, the exchange of a portion of CEMEX’s perpetual debentures for new notes for US$125 (note 16A). These exchanges represented net increases in debt of Ps4,111 in 2012 and Ps1,486 in 2011, reductions in equity’s non controlling interest of Ps5,808 in 2012 and Ps1,937 in 2011 and increases in equity’s controlling interest of Ps1,680 in 2012 and Ps446 in 2011;	
 
•	 	In 2013, 2012 and 2011, the increases in property, plant and equipment for approximately Ps141, Ps2,025 and Ps1,519, respectively, a decrement in debt for approximately Ps657 and an increase for approximately Ps1,401 and Ps1,558, respectively, associated with the negotiation of capital leases during the year (note 16B);	
 
•	 	In 2011, the increase in debt for Ps1,352 related mainly to the acquisition of Ready Mix USA LLC (note 15B);	
 
•	 	In 2013, 2012 and 2011, the increases in common stock and additional paid-in capital associated with: (i) the capitalization of retained earnings for Ps5,991, Ps4,138 and Ps4,216, respectively (note 20A); and (ii) CPOs issued as part of the executive stock-based compensation for Ps551, Ps486 and Ps495, respectively (note 20A).	
 
2B)	PRINCIPLES OF CONSOLIDATION	
Effective January 1, 2013, IFRS 10, Consolidated financial statements (“IFRS 10”), which establishes the concept of control as the determining factor in whether an entity should be included within the consolidated financial statements, replaced the consolidation requirements in IAS 27,  Consolidated and separate financial statements , and in SIC 12,  Consolidation – Special Purpose Entities . According to IFRS 10, the consolidated financial statements include those of CEMEX, S.A.B. de C.V. and those of the entities, including Special Purpose Entities (“SPEs”), in which the Parent Company exercises control, by means of which the Parent Company is exposed, or has rights, to variable returns from its involvement with the investee and has the ability to affect those returns through its power over the investee. Among other factors, control is evidenced when the Parent Company: a) holds directly or through subsidiaries, more than 50% of an entity’s common stock; b) has the power, directly or indirectly, to govern the administrative, financial and operating policies of an entity, or c) is the primary receptor of the risks and rewards of a SPE. The adoption of IFRS 10 did not represent any significant impact on CEMEX’s consolidated financial statements. Balances and operations between related parties are eliminated in consolidation.
Pursuant to IAS 28, Investments in associates and joint ventures (“IAS 28”), investments in associates are accounted for by the equity method when CEMEX has significant influence, which is generally presumed with a minimum equity interest of 20%, unless it is proven in unusual cases that CEMEX has significant influence with a lower percentage. The equity method reflects in the financial statements the investment’s original cost and the proportional interest of the holding company in the associate’s equity and earnings after acquisition, considering, if applicable, the effects of inflation. Effective January 1, 2013, IFRS 11,  Joint arrangements  (“IFRS 11”), pursuant to which the classification of a joint arrangement is made by assessing its resulting rights and
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Principles	of consolidation – continued	
 
obligations, replaced the accounting rules for these arrangements set forth by IAS 28. According to IFRS 11, the financial statements of joint ventures, which are those joint arrangements in which CEMEX and other third-party investors have agreed to exercise joint control and have rights to the net assets of the arrangement, are recognized under the equity method, whereas, the financial statements of joint operations, in which the parties that have joint control of the arrangement have rights to the assets and obligations for the liabilities relating to the arrangement, are proportionally consolidated line-by-line. The adoption of IFRS 11 did not represent any significant impact on CEMEX’s consolidated financial statements. The equity method is discontinued when the carrying amount of the investment, including any long-term interest in the associate or joint venture, reaches zero, unless CEMEX has incurred or guaranteed additional obligations of the associate or joint venture.
Other investments of a permanent nature where CEMEX holds equity interests of less than 20% and/or there is no significant influence are carried at their historical cost.
 
2C)	USE OF ESTIMATES AND CRITICAL ASSUMPTIONS	
The preparation of financial statements in accordance with IFRS principles requires management to make estimates and assumptions that affect reported amounts of assets and liabilities and the disclosure of contingent assets and liabilities at the date of the financial statements, as well as the reported amounts of revenues and expenses during the period. These assumptions are reviewed on an ongoing basis using available information. Actual results could differ from these estimates.
The main items subject to estimates and assumptions by management include, among others, impairment tests of long-lived assets, allowances for doubtful accounts and inventories, recognition of deferred income tax assets, as well as the measurement of financial instruments at fair value, and the assets and liabilities related to employee benefits. Significant judgment by management is required to appropriately assess the amounts of these assets and liabilities.
 
2D)	FOREIGN CURRENCY TRANSACTIONS AND TRANSLATION OF FOREIGN CURRENCY FINANCIAL STATEMENTS	
According to IAS 21, The effects of changes in foreign exchange rates (“IAS 21”), transactions denominated in foreign currencies are recorded in the functional currency at the exchange rates prevailing on the dates of their execution. Monetary assets and liabilities denominated in foreign currencies are translated into the functional currency at the exchange rates prevailing at the balance sheet date, and the resulting foreign exchange fluctuations are recognized in earnings, except for exchange fluctuations arising from: 1) foreign currency indebtedness directly related to the acquisition of foreign entities; and 2) fluctuations associated with related parties’ balances denominated in foreign currency, which settlement is neither planned nor likely to occur in the foreseeable future and as a result, such balances are of a permanent investment nature. These fluctuations are recorded against “Other equity reserves”, as part of the foreign currency translation adjustment (note 20B) until the disposal of the foreign net investment, at which time, the accumulated amount is recycled through the statement of operations as part of the gain or loss on disposal.
The financial statements of foreign subsidiaries, as determined using their respective functional currency, are translated to pesos at the closing exchange rate for balance sheet accounts and at the closing exchange rates of each month within the period for statements of operations accounts. The functional currency is that in which each consolidated entity primarily generates and expends cash. The corresponding translation adjustment is included
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Foreign	currency transactions and translation of foreign currency financial statements – continued	
 
within “Other equity reserves” and is presented in the statement of other comprehensive income (loss) for the period as part of the foreign currency translation adjustment (note 20B) until the disposal of the net investment in the foreign subsidiary. As permitted by IFRS 1, in its opening balance sheet under IFRS as of January 1, 2010, CEMEX elected to reset to zero all cumulative foreign currency translation adjustments determined under MFRS. Consequently, upon disposal of the foreign operations, those effects determined before the migration to IFRS will not be considered in the determination of disposal gains or losses. Considering guidance in IAS 21 and changing circumstances on the net monetary position in foreign currencies of the Parent Company, resulting mainly from: a) a significant decrease in tax liabilities denominated in Mexican Pesos; b) a significant increase in its U.S. Dollar-denominated debt and other financial obligations; and c) the increase in U.S. Dollar-denominated intra-group administrative expenses associated with the externalization of major back office activities with IBM (note 23C); effective as of January 1, 2013, CEMEX, S.A.B. de C.V., on a stand-alone basis, prospectively changed its functional currency from the Mexican Peso to the U.S. Dollar. The aforementioned change has no effect on the functional currencies of other consolidated entities. Moreover, the reporting currency for the individual and consolidated financial statements of the Parent Company continues to be the Mexican Peso. The main effects in the Parent Company’s-only financial statements beginning on January 1, 2013, associated with the change in functional currency, as compared to prior years are: i) all transactions, revenues and expenses in any currency are recognized in U.S. Dollars at the exchange rates prevailing at their execution dates; ii) monetary balances of CEMEX, S.A.B. de C.V. denominated in U.S. Dollars will not generate foreign currency fluctuations, while monetary balances in Mexican Pesos and other non-U.S. Dollar-denominated balances will now generate foreign currency fluctuations through the statement of operations; and iii) the conversion option embedded in the Parent Company’s mandatory convertible notes denominated in pesos are now treated as a stand-alone derivative instrument with changes in fair value through the statement of operations (notes 16B and 16D), the options embedded in the Parent Company’s optional convertible notes denominated in dollars ceased to be treated as stand-alone derivatives, recognizing its fair value as an equity component (notes 16B and 16D). Based on IFRS, prior period financial statements were not restated.
During the reported periods, there were no subsidiaries whose functional currency was the currency of a hyperinflationary economy, which is generally considered to exist when the cumulative inflation rate over the last three years is approaching, or exceeds, 100%. In a hyperinflationary economy, the accounts of the subsidiary’s statements of operations should be restated to constant amounts as of the reporting date, in which case, both the balance sheet accounts and the statements of operations accounts would be translated to pesos at the closing exchange rates of the year.
The most significant closing exchange rates and the approximate average exchange rates for balance sheet accounts and income statement accounts, as of December 31 2013, 2012 and 2011, were as follows:

 	  	2013 	 	  	2012 	 	  	2011 	 	
Currency	  	Closing	 	  	Average	 	  	Closing	 	  	Average	 	  	Closing	 	  	Average	 	
Dollar	  	 	13.0500	 	  	 	12.8500	 	  	 	12.8500	 	  	 	13.1500	 	  	 	13.9600	 	  	 	12.4800	 	
Euro	  	 	17.9554	 	  	 	17.1079	 	  	 	16.9615	 	  	 	16.9688	 	  	 	18.1017	 	  	 	17.4204	 	
British Pound Sterling	  	 	21.6167	 	  	 	20.1106	 	  	 	20.8841	 	  	 	20.9373	 	  	 	21.6939	 	  	 	20.0321	 	
Colombian Peso	  	 	0.0068	 	  	 	0.0068	 	  	 	0.0073	 	  	 	0.0073	 	  	 	0.0072	 	  	 	0.0067	 	
Egyptian Pound	  	 	1.8750	 	  	 	1.8600	 	  	 	2.0233	 	  	 	2.1590	 	  	 	2.3151	 	  	 	2.0952	 	
Philippine Peso	  	 	0.2940	 	  	 	0.3014	 	  	 	0.3130	 	  	 	0.3125	 	  	 	0.3184	 	  	 	0.2886	 	
The financial statements of foreign subsidiaries are initially translated from their functional currencies into dollars and subsequently into pesos. Therefore, the foreign exchange rates presented in the table above between
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Foreign	currency transactions and translation of foreign currency financial statements – continued	
 
the functional currency and the peso represent the exchange rates resulting from this methodology. The peso to U.S. dollar exchange rate used by CEMEX is an average of free market rates available to settle its foreign currency transactions. No significant differences exist, in any case, between the foreign exchange rates used by CEMEX and those exchange rates published by the Mexican Central Bank.
 
2E)	CASH AND CASH EQUIVALENTS (note 8)	
The balance in this caption is comprised of available amounts of cash and cash equivalents, mainly represented by highly-liquid short-term investments, which are easily convertible into cash, and which are not subject to significant risks of changes in their values, including overnight investments, which yield fixed returns and have maturities of less than three months from the investment date. These fixed-income investments are recorded at cost plus accrued interest. Other investments which are easily convertible into cash are recorded at their market value. Gains or losses resulting from changes in market values and accrued interest are included in the statements of operations as part of other financial income (expense), net.
The amount of cash and cash equivalents in the balance sheet includes restricted cash and investments, comprised of deposits in margin accounts that guarantee several of CEMEX’s obligations, to the extent that the restriction will be lifted in less than three months from the balance sheet date. When the restriction period is greater than three months, such restricted cash and investments are not considered cash equivalents and are included within short-term or long-term “Other accounts receivable,” as appropriate. When contracts contain provisions for net settlement, these restricted amounts of cash and investments are offset against the liabilities that CEMEX has with its counterparties.
 
2F)	TRADE ACCOUNTS RECEIVABLE AND OTHER CURRENT ACCOUNTS RECEIVABLE (notes 9, 10)	
According to IAS 39, Financial instruments: recognition and measurement (“IAS 39”), items under this caption are classified as “loans and receivables”, with no explicit cost, which are recorded at their amortized cost, which is represented by the net present value of the consideration receivable or payable as of the transaction date. Due to their short-term nature, CEMEX initially recognizes these receivables at the original invoiced amount less an estimate of doubtful accounts. Allowances for doubtful accounts as well as impairment of other current accounts receivable are recognized against administrative and selling expenses.
Trade receivables sold under securitization programs, in which CEMEX maintains a residual interest in the trade accounts receivable sold in case of recovery failure, as well as continued involvement in such assets, do not qualify for derecognition and are maintained on the balance sheet.
 
2G)	INVENTORIES (note 11)	
Inventories are valued using the lower of cost and net realizable value. The cost of inventories includes expenditures incurred in acquiring the inventories, production or conversion costs and other costs incurred in bringing them to their existing location and condition. CEMEX analyzes its inventory balances to determine if, as a result of internal events, such as physical damage, or external events, such as technological changes or market conditions, certain portions of such balances have become obsolete or impaired. When an impairment situation arises, the inventory balance is adjusted to its net realizable value, whereas, if an obsolescence situation occurs, the inventory obsolescence reserve is increased. In both cases, these adjustments are recognized against the results for the period. Advances to suppliers of inventory are presented as part of other short-term accounts receivable.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
2H)	OTHER INVESTMENTS AND NON-CURRENT RECEIVABLES (note 13B)	
As part of the category of “loans and receivables” under IAS 39, non-current accounts receivable, as well as investments classified as held to maturity are initially recognized at their amortized cost. Subsequent changes in net present value are recognized in the statements of operations as part of other financial income (expenses), net.
Investments in financial instruments held for trading, as well as those investments available for sale, classified under IAS 39, are recognized at their estimated fair value, in the first case through the statements of operations as part of other financial income (expenses), net, and in the second case, changes in valuation are recognized as part of other comprehensive income (loss) of the period within other equity reserves until their time of disposition, when all valuation effects accrued in equity are reclassified to other financial income (expenses), net in the statements of operations. These investments are tested for impairment upon the occurrence of a significant adverse change or at least once a year during the last quarter.
 
2I)	PROPERTY, MACHINERY AND EQUIPMENT (note 14)	
Property, machinery and equipment are recognized at their acquisition or construction cost, as applicable, less accumulated depreciation and accumulated impairment losses. Depreciation of fixed assets is recognized as part of cost and operating expenses (note 5), and is calculated using the straight-line method over the estimated useful lives of the assets, except for mineral reserves, which are depleted using the units-of-production method.
As of December 31, 2013, the maximum average useful lives by category of fixed assets were as follows:

 	  	Years	 	
Administrative buildings	  	 	35	 	
Industrial buildings	  	 	33	 	
Machinery and equipment in plant	  	 	18	 	
Ready-mix trucks and motor vehicles	  	 	8	  	
Office equipment and other assets	  	 	6	 	
CEMEX capitalizes, as part of the related cost of fixed assets, interest expense from existing debt during the construction or installation period of significant fixed assets, considering CEMEX’s corporate average interest rate and the average balance of investments in process for the period.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Property,	machinery and equipment – continued	
 
Based on IFRIC 20, Stripping costs in the production phase of a surface mine (“IFRIC 20”), beginning January 1, 2013, all waste removal costs or stripping costs incurred in the operative phase of a surface mine that result in improved access to mineral reserves are recognized as part of the carrying amount of the related quarries. The capitalized amounts are further amortized over the expected useful life of exposed ore body based on the units of production method. Until December 31, 2012, only initial stripping costs were capitalized, while ongoing stripping costs in the same quarry were expensed as incurred. As mandatory, IFRIC 20 was adopted retroactively as of January 1, 2011, consequently, the consolidated balance sheet as of December 31, 2012 and the consolidated statements of operations for the years ended December 31, 2012 and 2011 included as part of these consolidated financial statements were restated as a result of the adoption of IFRIC 20. The effects were not significant. As of December 31, 2011, the main effects in the relevant line items of CEMEX’s consolidated balance sheet were as follows:

(Millions of pesos)	  	 	 	 	As originally
reported	 	  	As restated	 	  	Adjustment	 	
Other current assets	  	Ps	 	  	 	 	3,953	  	  	 	3,951	  	  	 	(2	) 	
Other investments and non-current accounts receivable	  	 	 	 	 	 	10,595	  	  	 	10,385	  	  	 	(210	) 	
Plant, machinery and equipment, net	  	 	 	 	 	 	233,709	  	  	 	234,342	  	  	 	633	  	
Goodwill and intangible assets, net	  	 	 	 	 	 	189,062	  	  	 	188,644	  	  	 	(418	) 	
Total controlling interest	  	 	 	 	 	 	155,101	  	  	 	155,104	  	  	 	(3	) 	
Costs incurred in respect of operating fixed assets that result in future economic benefits, such as an extension in their useful lives, an increase in their production capacity or in safety, as well as those costs incurred to mitigate or prevent environmental damage, are capitalized as part of the carrying amount of the related assets. The capitalized costs are depreciated over the remaining useful lives of such fixed assets. Periodic maintenance on fixed assets is expensed as incurred. Advances to suppliers of fixed assets are presented as part of other long-term accounts receivable.
 
2J)	BUSINESS COMBINATIONS, GOODWILL, OTHER INTANGIBLE ASSETS AND DEFERRED CHARGES (note 15)	
Business combinations are recognized using the purchase method, by allocating the consideration transferred to assume control of the entity to all assets acquired and liabilities assumed, based on their estimated fair values as of the acquisition date. Intangible assets acquired are identified and recognized at fair value. Any unallocated portion of the purchase price represents goodwill, which is not amortized and is subject to periodic impairment tests (note 2K), can be adjusted for any correction to the preliminary assessment given to the assets acquired and/or liabilities assumed within the twelve-month period after purchase. Costs associated with the acquisition are expensed in the statements of operations as incurred.
CEMEX capitalizes intangible assets acquired, as well as costs incurred in the development of intangible assets, when future economic benefits associated with the assets are identified and there is evidence of control over such benefits. Intangible assets are presented at their acquisition or development cost. Such assets are classified as having a definite or indefinite life; the latter are not amortized since the period cannot be accurately established in which the benefits associated with such intangibles will terminate. Amortization of intangible assets of definite life is calculated under the straight-line method and recognized as part of costs and operating expenses (note 5).
Startup costs are recognized in the statements of operations as they are incurred. Costs associated with research and development activities (“R&D activities”), performed by CEMEX to create products and services, as well as
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Business	combinations, goodwill, other intangible assets and deferred charges – continued	
 
to develop processes, equipment and methods to optimize operational efficiency and reduce costs, are recognized in the operating results as incurred. The Technology and Energy departments in CEMEX undertake all significant R&D activities as part of their daily activities. In 2013, 2012 and 2011, total combined expenses of these departments were approximately Ps494 (US$38), Ps514 (US$40) and Ps487 (US$39), respectively. Development costs are capitalized only if they meet the definition of intangible asset mentioned above.
Direct costs incurred in the development stage of computer software for internal use are capitalized and amortized through the operating results over the useful life of the software, which on average is approximately 5 years.
Costs incurred in exploration activities such as payments for rights to explore, topographical and geological studies, as well as trenching, among other items incurred to assess the technical and commercial feasibility of extracting a mineral resource, which are not significant to CEMEX, are capitalized when future economic benefits associated with such activities are identified. When extraction begins, these costs are amortized during the useful life of the quarry based on the estimated tons of material to be extracted. When future economic benefits are not achieved, any capitalized costs are subject to impairment.
CEMEX’s extraction rights have maximum useful lives that range from 30 to 100 years, depending on the sector, and the expected life of the related reserves. As of December 31, 2013, except for extraction rights and/or as otherwise indicated, CEMEX’s intangible assets are amortized on a straight line basis over their useful lives that range on average from 3 to 20 years.
 
2K)	IMPAIRMENT OF LONG LIVED ASSETS (notes 14, 15)	
Impairment of property, machinery and equipment, intangible assets of definite life and other investments
Property, machinery and equipment, intangible assets of definite life and other investments are tested for impairment upon the occurrence of factors such as the occurrence of a significant adverse event, changes in CEMEX’s operating environment, changes in projected use or in technology, as well as expectations of lower operating results for each cash generating unit, in order to determine whether their carrying amounts may not be recovered. In such cases, an impairment loss is recorded in the income statements for the period when such determination is made within “Other expenses, net.” The impairment loss of an asset results from the excess of the asset’s carrying amount over its recoverable amount, corresponding to the higher of the fair value of the asset, less costs to sell such asset, and the asset’s value in use, the latter represented by the net present value of estimated cash flows related to the use and eventual disposal of the asset.
Significant judgment by management is required to appropriately assess the fair values and values in use of these assets. The main assumptions utilized to develop these estimates are a discount rate that reflects the risk of the cash flows associated with the assets evaluated and the estimations of generation of future income. Those assumptions are evaluated for reasonableness by comparing such discount rates to available market information and by comparing to third-party expectations of industry growth, such as governmental agencies or industry chambers of commerce.
Goodwill and intangible assets of indefinite life
Goodwill and other intangible assets of indefinite life are tested for impairment when required due to significant adverse changes or at least once a year, during the last quarter of such year, by determining the recoverable amount of the group of cash-generating units (“CGUs”) to which goodwill balances have been allocated, which
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Goodwill and intangible assets of indefinite life – continued
 
consists of the higher of such group of CGUs fair value, less cost to sell and its value in use, represented by the discounted amount of estimated future cash flows to be generated by such CGUs to which goodwill has been allocated. Other intangible assets of indefinite life may be tested at the CGU or group of CGUs level, depending on their allocation. CEMEX determines discounted cash flows generally over periods of 5 years. In specific circumstances, when, according to CEMEX’s experience, actual results for a given cash-generating unit do not fairly reflect historical performance and most external economic variables provide the Company with confidence that a reasonably determinable improvement in the mid-term is expected in their operating results, management uses cash flow projections over a period of up to 10 years, to the extent CEMEX has detailed, explicit and reliable financial forecasts and is confident and can demonstrate its ability, based on past experience, to forecast cash flows accurately over that longer period. The number of additional periods above the standard period of 5 years of cash flow projections up to 10 years is determined by the extent to which future expected average performance resembles the historical average performance. If the value in use of a group of CGUs to which goodwill has been allocated is lower than its corresponding carrying amount, CEMEX determines the fair value of such group of CGUs using methodologies generally accepted in the market to determine the value of entities, such as multiples of Operating EBITDA and by reference to other market transactions, among others. An impairment loss is recognized within other expenses, net, if the recoverable amount is lower than the net book value of the group of CGUs to which goodwill has been allocated. Impairment charges recognized on goodwill are not reversed in subsequent periods.
The geographic operating segments reported by CEMEX (note 4), represent CEMEX’s groups of CGUs to which goodwill has been allocated for purposes of testing goodwill for impairment. In arriving at this conclusion, CEMEX considered: a) that after the acquisition, goodwill was allocated at the level of the geographic operating segment; b) that the operating components that comprise the reported segment have similar economic characteristics; c) that the reported segments are used by CEMEX to organize and evaluate its activities in its internal information system; d) the homogeneous nature of the items produced and traded in each operative component, which are all used by the construction industry; e) the vertical integration in the value chain of the products comprising each component; f) the type of clients, which are substantially similar in all components; g) the operative integration among components; and h) that the compensation system of a specific country is based on the consolidated results of the geographic segment and not on the particular results of the components. In addition, the country level represents the lowest level within CEMEX at which goodwill is monitored for internal management purposes.
Impairment tests are significantly sensitive to, among other factors, the estimation of future prices of CEMEX’s products, the development of operating expenses, local and international economic trends in the construction industry, the long-term growth expectations in the different markets, as well as the discount rates and the growth rates in perpetuity applied. For purposes of estimating future prices, CEMEX uses, to the extent available, historical data plus the expected increase or decrease according to information issued by trusted external sources, such as national construction or cement producer chambers and/or in governmental economic expectations. Operating expenses are normally measured as a constant proportion of revenues, following past experience. However, such operating expenses are also reviewed considering external information sources in respect to inputs that behave according to international prices, such as gas and oil. CEMEX uses specific pre-tax discount rates for each group of CGUs to which goodwill is allocated, which are applied to discount pre-tax cash flows. The amounts of estimated undiscounted cash flows are significantly sensitive to the growth rate in perpetuity applied. Likewise, the amounts of discounted estimated future cash flows are significantly sensitive to the weighted average cost of capital (discount rate) applied. The higher the growth rate in perpetuity applied, the higher the amount of undiscounted future cash flows by group of CGUs obtained. Conversely, the higher the discount rate applied, the lower the amount of discounted estimated future cash flows by group of CGUs obtained.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
2L)	FINANCIAL LIABILITIES, DERIVATIVE FINANCIAL INSTRUMENTS AND FAIR VALUE MEASUREMENTS (note 16)	
Debt
Bank loans and notes payable are recognized at their amortized cost. Interest accrued on financial instruments is recognized in the balance sheet within “Other accounts payable and accrued expenses” against financial expense. During the reported periods, CEMEX did not have financial liabilities voluntarily recognized at fair value or associated to fair value hedge strategies with derivative financial instruments. Direct costs incurred in debt issuances or borrowings, as well as debt refinancing or non-substantial modifications to debt agreements that did not represent an extinguishment of debt, are capitalized as part of the related debt’s carrying amount and amortized as interest expense as part of the effective interest rate of each transaction over its maturity. These costs include commissions and professional fees. Costs incurred in the extinguishment of debt, as well as debt refinancing or modifications to debt agreements when the new instrument is substantially different to the old instrument according to a qualitative and quantitative analysis, are recognized in the statements of operations within “financial expense” as incurred.
Capital leases
Capital leases, in which CEMEX has substantially all risks and rewards associated with the ownership of an asset, are recognized as financing liabilities against a corresponding fixed asset for the lesser of the market value of the leased asset and the net present value of future minimum payments, using the contract’s implicit interest rate to the extent available, or the incremental borrowing cost. Among other elements, the main factors that determine a capital lease are: a) if ownership title of the asset is transferred to CEMEX at the expiration of the contract; b) if CEMEX has a bargain purchase option to acquire the asset at the end of the lease term; c) if the lease term covers the majority of the useful life of the asset; and/or d) if the net present value of minimum payments represents substantially all the fair value of the related asset at the beginning of the lease.
Financial instruments with components of both liabilities and equity
Based on IAS 32, Financial instruments: presentation (“IAS 32”) and IAS 39, when a financial instrument contains components of both liability and equity, such as a note that at maturity is convertible into a fixed number of CEMEX’s shares and the currency in which the instrument is denominated is the same as the functional currency of the issuer, each component is recognized separately in the balance sheet according to the specific characteristics of each transaction. In the case of instruments mandatorily convertible into shares of the issuer, the liability component represents the net present value of interest payments on the principal amount using a market interest rate, without assuming any early conversion, and is recognized within “Other financial obligations,” whereas the equity component represents the difference between the principal amount and the liability component, and is recognized within “Other equity reserves” net of commissions. In the case of instruments that are optionally convertible into a fixed number of shares, the liability component represents the difference between the principal amount and the fair value of the conversion option premium, which reflects the equity component (note 2P). When the transaction is denominated in a currency different than the functional currency of the issuer, the conversion option is accounted for as a derivative financial instrument at fair value in the statements of operations.
Derivative financial instruments
CEMEX recognizes all derivative instruments as assets or liabilities in the balance sheet at their estimated fair values, and the changes in such fair values are recognized in the statements of operations within “Other financial expense, net” for the period in which they occur, except for changes in fair value of derivative instruments
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Derivative financial instruments – continued
 
associated with cash flow hedges, in which case, such changes in fair value are recognized in stockholders’ equity, and are reclassified to earnings as the interest expense of the related debt is accrued, in the case of interest rate swaps, or when the underlying products are consumed in the case of contracts on the price of raw materials and commodities. Likewise, in hedges of the net investment in foreign subsidiaries, changes in fair value are recognized in stockholders’ equity as part of the foreign currency translation result (note 2D), which reversal to earnings would take place upon disposal of the foreign investment. During the reported periods, CEMEX has not designated any derivative instruments in fair value hedges. Derivative instruments are negotiated with institutions with significant financial capacity; therefore, CEMEX believes the risk of non-performance of the obligations agreed to by such counterparties to be minimal.
Accrued interest generated by interest rate derivative instruments, when applicable, is recognized as financial expense in the relevant period, adjusting the effective interest rate of the related debt.
CEMEX reviews its different contracts to identify the existence of embedded derivatives. Identified embedded derivatives are analyzed to determine if they need to be separated from the host contract and recognized in the balance sheet as assets or liabilities, applying the same valuation rules used for other derivative instruments.
Put options granted for the purchase of non-controlling interests and associates
Represent agreements by means of which CEMEX commits to acquire, in case the counterparty exercises its right to sell at a future date at a predefined price formula or at fair market value, the shares of a non-controlling interest in a subsidiary of CEMEX or an associate. In respect of a put option granted for the purchase of a non-controlling interest in a CEMEX subsidiary, to the extent CEMEX should settle the obligation in cash or through the delivery of other financial asset, CEMEX recognizes a liability for the net present value of the redemption amount as of the financial statements’ date against the controlling interest within stockholders’ equity. A liability is not recognized as a result of an option granted for the purchase of a non-controlling interest when the redemption amount is determined at fair market value at the exercise date and CEMEX has the election to settle using its own shares.
In respect of a put option granted for the purchase of an associate, CEMEX would recognize a liability against a loss in the statements of operations whenever the estimated purchase price exceeds the fair value of the net assets to be acquired by CEMEX, had the counterparty exercised its right to sell.
Fair value measurements
CEMEX applies the guidance of IFRS 13, Fair value measurements (“IFRS 13”) for its fair value measurements of financial assets and financial liabilities recognized or disclosed at fair value. IFRS 13 does not require fair value measurements in addition to those already required or permitted by other IFRSs and is not intended to establish valuation standards or affect valuation practices outside financial reporting. Under IFRS 13, fair value represents an “Exit Value,” which is the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date, considering the counterparty’s credit risk in the valuation.
The concept of exit value is premised on the existence of a market and market participants for the specific asset or liability. When there is no market and/or market participants willing to make a market, IFRS 13 establishes a fair value hierarchy that prioritizes the inputs to valuation techniques used to measure fair value. The hierarchy
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Fair value measurements – continued
 
gives the highest priority to unadjusted quoted prices in active markets for identical assets or liabilities (Level 1 measurements) and the lowest priority to measurements involving significant unobservable inputs (Level 3 measurements). The three levels of the fair value hierarchy are as follows:
 
•	 	Level 1 inputs are quoted prices (unadjusted) in active markets for identical assets or liabilities that CEMEX has the ability to access at the measurement date. A quote price in an active market provides the most reliable evidence of fair value and is used without adjustment to measure fair value whenever available.	
 
•	 	Level 2 inputs are inputs other than quoted prices in active markets that are observable for the asset or liability, either directly or indirectly, and are used mainly to determine the fair value of securities, investments or loans that are not actively traded. Level 2 inputs included equity prices, certain interest rates and yield curves, implied volatility, credit spreads and other market corroborated inputs, including inputs extrapolated from other observable inputs. In the absence of Level 1 inputs CEMEX determined fair values by iteration of the applicable Level 2 inputs, the number of securities and/or the other relevant terms of the contract, as applicable.	
 
•	 	Level 3 inputs are unobservable inputs for the asset or liability. CEMEX used unobservable inputs to determine fair values, to the extent there are no Level 1 or Level 2 inputs, in valuation models such as Black-Scholes, binomial, discounted cash flows or multiples of Operative EBITDA, including risk assumptions consistent with what market participants would use to arrive at fair value.	
 
2M)	PROVISIONS	
CEMEX recognizes provisions when it has a legal or constructive obligation resulting from past events, whose resolution would imply cash outflows or the delivery of other resources owned by the Company. As of December 31, 2013 and 2012 some significant proceedings that gave rise to a portion of the carrying amount of CEMEX’s other current and non-current liabilities and provisions are detailed in note 24A.
Restructuring (note 17)
CEMEX recognizes provisions for restructuring costs only when the restructuring plans have been properly finalized and authorized by management, and have been communicated to the third parties involved and/or affected by the restructuring prior to the balance sheet date. These provisions may include costs not associated with CEMEX’s ongoing activities.
Asset retirement obligations (note 17)
Unavoidable obligations, legal or constructive, to restore operating sites upon retirement of long-lived assets at the end of their useful lives are measured at the net present value of estimated future cash flows to be incurred in the restoration process, and are initially recognized against the related assets’ book value. The increase to the assets’ book value is depreciated during its remaining useful life. The increase in the liability related to the passage of time is charged to the line item “Other financial expenses, net.” Adjustments to the liability for changes in estimations are recognized against fixed assets, and depreciation is modified prospectively. These obligations are related mainly to future costs of demolition, cleaning and reforestation, so that quarries, maritime terminals and other production sites are left in acceptable condition at the end of their operation.
Costs related to remediation of the environment (notes 17 and 24)
Provisions associated with environmental damage represent the estimated future cost of remediation, which are recognized at their nominal value when the time schedule for the disbursement is not clear, or when the
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Costs related to remediation of the environment – continued
 
economic effect for the passage of time is not significant; otherwise, such provisions are recognized at their discounted values. Reimbursements from insurance companies are recognized as assets only when their recovery is practically certain. In that case, such reimbursement assets are not offset against the provision for remediation costs.
Contingencies and commitments (notes 23 and 24)
Obligations or losses related to contingencies are recognized as liabilities in the balance sheet when present obligations exist resulting from past events that are expected to result in an outflow of resources and the amount can be measured reliably. Otherwise, a qualitative disclosure is included in the notes to the financial statements. The effects of long-term commitments established with third parties, such as supply contracts with suppliers or customers, are recognized in the financial statements on an incurred or accrued basis, after taking into consideration the substance of the agreements. Relevant commitments are disclosed in the notes to the financial statements. The Company does not recognize contingent revenues, income or assets, unless their realization is virtually certain.
 
2N)	PENSIONS AND POSTRETIREMENT EMPLOYEE BENEFITS (note 18)	
Defined contribution pension plans
The costs of defined contribution pension plans are recognized in the operating results as they are incurred. Liabilities arising from such plans are settled through cash transfers to the employees’ retirement accounts, without generating future obligations.
Defined benefit pension plans, other postretirement benefits and termination benefits
Based on IAS 19, Employee benefits (“IAS19”), CEMEX recognizes the costs associated with employees’ benefits for: a) defined benefit pension plans; and b) other postretirement benefits, basically comprised of health care benefits, life insurance and seniority premiums, granted by CEMEX and/or pursuant to applicable law. These costs are recognized as services are rendered, based on actuarial estimations of the benefits’ present value with the advice of external actuaries. The actuarial assumptions consider the use of nominal rates. For certain pension plans, irrevocable trust funds have been created to cover future benefit payments (“plan assets”). These plan assets are valued at their estimated fair value at the balance sheet date. On January 1, 2013, as a result of amendments to IAS 19: a) a single rate is used for the determination of the expected return on plan assets and the discount of the benefits obligation to present value; b) a net interest is recognized on the net defined benefit liability (liability minus plan assets), instead of an interest cost on the liability and a separate return on plan assets, as it was determined until December 31, 2012; and c) all actuarial gains and losses for the period are recognized as part of other comprehensive income or loss, thereby, eliminating the option to defer the recognition of gains and losses, known as the “corridor method”, which was not applied by CEMEX. Until December 31, 2012, the expected rates of return on plan assets were determined based on market prices prevailing on the calculation date, applicable to the period over which the obligation were expected to be settled. As a result of the adoption of the amendments to IAS 19 on January 1, 2013, CEMEX restated its consolidated balance sheet as of December 31, 2012 and its consolidated statements of operations for the years ended December 31, 2012 and 2011. The effects were not significant.
Termination benefits, not associated with a restructuring event, which mainly represent severance payments by law, are recognized in the operating results for the period in which they are incurred.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Defined benefit pension plans, other postretirement benefits and termination benefits – continued
 
The service cost, corresponding to the increase in the obligation for additional benefits earned by employees during the period, is recognized within operating costs and expenses. The net interest is recognized within “Other financial expenses, net.”
The effects from modifications to the pension plans that affect the cost of past services are recognized within operating costs and expenses during the periods in which such modifications become effective with respect to the employees, or without delay if changes are effective immediately. Likewise, the effects from curtailments and/or settlements of obligations occurring during the period, associated with events that significantly reduce the cost of future services and/or reduce significantly the population subject to pension benefits, respectively, are recognized within operating costs and expenses.
As mentioned above, the actuarial gains and losses, related to differences between the projected and real actuarial assumptions at the end of the period, as well as the difference between the expected and real return on plan assets, are recognized in the period in which they are incurred as part of other comprehensive income or loss for the period within stockholders’ equity.
 
2O)	INCOME TAXES (note 19)	
Based on IAS 12, Income taxes (“IAS 12”), the effects reflected in the statements of operations for income taxes include the amounts incurred during the period and the amounts of deferred income taxes, determined according to the income tax law applicable to each subsidiary. Consolidated deferred income taxes represent the addition of the amounts determined in each subsidiary by applying the enacted statutory income tax rate to the total temporary differences resulting from comparing the book and taxable values of assets and liabilities, considering tax loss carryforwards as well as other recoverable taxes and tax credits, to the extent that it is probable that future taxable profits will be available against which they can be utilized. The measurement of deferred income taxes reflects the tax consequences that follow the manner in which CEMEX expects, at the end of the reporting period, to recover or settle the carrying amount of its assets and liabilities. Deferred income taxes for the period represent the difference between balances of deferred income at the beginning and the end of the period. Deferred income tax assets and liabilities relating to different tax jurisdictions are not offset. According to IFRS, all items charged or credited directly in stockholders’ equity or as part of other comprehensive income or loss for the period are recognized net of their current and deferred income tax effects. The effect of a change in enacted statutory tax rates is recognized in the period in which the change is officially enacted.
Deferred tax assets are reviewed at each reporting date and are reduced to the extent that it is not considered probable that the related tax benefit will be realized. In conducting such assessment, CEMEX analyzes the aggregate amount of self-determined tax loss carryforwards included in its income tax returns in each country where CEMEX believes, based on available evidence, that the tax authorities would not reject such tax loss carryforwards; and the likelihood of the recoverability of such tax loss carryforwards prior to their expiration through an analysis of estimated future taxable income. If CEMEX believes that it is probable that the tax authorities would reject a self-determined deferred tax asset, it would decrease such asset. Likewise, if CEMEX believes that it would not be able to use a tax loss carryforward before its expiration or any other deferred tax asset, CEMEX would not recognize such deferred tax asset. Both situations would result in additional income tax expense for the period in which such determination is made. In order to determine whether it is probable that deferred tax assets will ultimately be realized, CEMEX takes into consideration all available positive and negative evidence, including factors such as market conditions, industry analysis, expansion plans, projected taxable income, carryforward periods, current tax structure, potential changes or adjustments in tax structure, tax
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Income	taxes – continued	
 
planning strategies, future reversals of existing temporary differences, etc. Likewise, every reporting period, CEMEX analyzes its actual results versus the Company’s estimates, and adjusts, as necessary, its tax asset valuations. If actual results vary from CEMEX’s estimates, the deferred tax asset and/or valuations may be affected and necessary adjustments will be made based on relevant information. Any adjustments recorded will affect CEMEX’s statements of operations in such period.
The income tax effects from an uncertain tax position are recognized when it is more-likely-than-not that the position will be sustained based on its technical merits and assuming that the tax authorities will examine each position and have full knowledge of all relevant information, and they are measured using a cumulative probability model. Each position has been considered on its own, regardless of its relation to any other broader tax settlement. The more-likely-than-not threshold represents a positive assertion by management that CEMEX is entitled to the economic benefits of a tax position. If a tax position is not considered more-likely-than-not to be sustained, no benefits of the position are recognized. CEMEX’s policy is to recognize interest and penalties related to unrecognized tax benefits as part of the income tax in the consolidated statements of operations.
 
2P)	STOCKHOLDERS’ EQUITY	
Common stock and additional paid-in capital (note 20A)
These items represent the value of stockholders’ contributions, and include increases related to the capitalization of retained earnings and the recognition of executive compensation programs in CEMEX’s CPOs as well as decreases associated with the restitution of retained earnings.
Other equity reserves (note 20B)
This caption groups the cumulative effects of items and transactions that are, temporarily or permanently, recognized directly to stockholders’ equity, and includes the elements presented in the statements of comprehensive income (loss). Comprehensive income (loss) for the period includes, in addition to net income (loss), certain changes in stockholders’ equity during a period that do not result from investments by owners and distributions to owners. The most significant items within “Other equity reserves” during the reported periods are as follows:
Items of “Other equity reserves” included within other comprehensive loss:
 
•	 	Currency translation effects from the translation of foreign subsidiaries’ financial statements, net of: a) exchange results from foreign currency debt directly related to the acquisition of foreign subsidiaries; and b) exchange results from foreign currency related parties balances that are of a long-term investment nature (note 2D);	
 
•	 	The effective portion of the valuation and liquidation effects from derivative instruments under cash flow hedging relationships, which are recorded temporarily in stockholders’ equity (note 2L);	
 
•	 	Changes in fair value during the tenure of available-for-sale investments until their disposal (note 2H); and	
 
•	 	Current and deferred income taxes during the period arising from items whose effects are directly recognized in stockholders’ equity.	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Other equity reserves – continued
 
Items of “Other equity reserves” not included in comprehensive loss:
 
•	 	Effects related to controlling stockholders’ equity for changes or transactions affecting non-controlling interest stockholders in CEMEX’s consolidated subsidiaries;	
 
•	 	Effects attributable to controlling stockholders’ equity for financial instruments issued by consolidated subsidiaries that qualify for accounting purposes as equity instruments, such as the interest expense paid on perpetual debentures;	
 
•	 	The equity component determined upon issuance of convertible securities or upon classification, which are mandatorily or optionally convertible into shares of the Parent Company (note 16B) and that qualify under IFRS as instruments having components of liability and equity (note 2L). Upon conversion, this amount will be reclassified to common stock and additional paid-in capital; and	
 
•	 	The cancellation of the Parent Company’s shares held by consolidated entities.	
Retained earnings (note 20C)
Retained earnings represent the cumulative net results of prior accounting periods, net of: a) dividends declared to stockholders; b) recapitalizations of retained earnings; c) the effects generated form initial adoption of IFRS as of January 1, 2010 according to IFRS 1; and d) when applicable, the restitution of retained earnings from other line items within stockholder’s equity.
Non-controlling interest and perpetual debentures (note 20D)
This caption includes the share of non-controlling stockholders in the results and equity of consolidated subsidiaries. This caption also includes the nominal amount as of the balance sheet date of financial instruments (perpetual notes) issued by consolidated entities that qualify as equity instruments considering that there is: a) no contractual obligation to deliver cash or another financial asset; b) no predefined maturity date; and c) a unilateral option to defer interest payments or preferred dividends for indeterminate periods.
 
2Q)	REVENUE RECOGNITION (note 3)	
CEMEX’s consolidated net sales represent the value, before tax on sales, of revenues originated by products and services sold by consolidated subsidiaries as a result of their ordinary activities, after the elimination of transactions between related parties, and are quantified at the fair value of the consideration received or receivable, decreased by any trade discounts or volume rebates granted to customers.
Revenue from the sale of goods and services is recognized when goods are delivered or services are rendered to customers, there is no condition or uncertainty implying a reversal thereof, and they have assumed the risk of loss. Revenue from trading activities, in which CEMEX acquires finished goods from a third party and subsequently sells the goods to another third-party, are recognized on a gross basis, considering that CEMEX assumes the total risk on the goods purchased, not acting as agent or broker.
Revenue and costs associated with construction contracts are recognized in the period in which the work is performed by reference to the percentage or stage of completion of the contract at the end of the period, considering that the following have been defined: a) each party’s enforceable rights regarding the asset to be
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Revenue	recognition – continued	
 
constructed; b) the consideration to be exchanged; c) the manner and terms of settlement; d) actual costs incurred and contract costs required to complete the asset are effectively controlled; and e) it is probable that the economic benefits associated with the contract will flow to the entity.
The percentage of completion of construction contracts represents the proportion that contract costs incurred for work performed to date bear to the estimated total contract costs or the surveys of work performed or the physical proportion of the contract work completed, whichever better reflects the percentage of completion under the specific circumstances. Progress payments and advances received from customers do not reflect the work performed and are recognized as a short or long term advanced payments, as appropriate.
 
2R)	COST OF SALES, ADMINISTRATIVE AND SELLING EXPENSES AND DISTRIBUTION EXPENSES	
Cost of sales represents the production cost of inventories at the moment of sale. Such cost of sales includes depreciation, amortization and depletion of assets involved in production and expenses related to storage in production plants. Cost of sales excludes expenses related to personnel, equipment and services involved in sale activities and storage of product at points of sales, which are included as part of the administrative and selling expenses. Cost of sales includes freight expenses of raw material in plants and delivery expenses of CEMEX’s ready-mix concrete business, but excludes freight expenses of finished products between plants and points of sale and freight expenses between points of sales and the customers’ facilities, which are included as part of the distribution expenses line item. For the years ended December 31, 2013, 2012 and 2011, selling expenses included as part of the selling and administrative expenses line item amounted to Ps8,120, Ps7,946 and Ps8,079, respectively.
 
2S)	EXECUTIVE STOCK-BASED COMPENSATION (note 21)	
Based on IFRS 2, Share-based payments (“IFRS 2”), stock awards based on shares of CEMEX granted to executives are defined as equity instruments when services received from employees are settled by delivering CEMEX’s shares; or as liability instruments when CEMEX commits to make cash payments to the executives on the exercise date of the awards based on changes in CEMEX’s own stock (intrinsic value). The cost of equity instruments represents their estimated fair value at the date of grant and is recognized in the statements of operations during the period in which the exercise rights of the employees become vested. In respect of liability instruments, these instruments are valued at their estimated fair value at each reporting date, recognizing the changes in fair value through the operating results. CEMEX determines the estimated fair value of options using the binomial financial option-pricing model.
 
2T)	EMISSION RIGHTS	
In some of the countries where CEMEX operates, such as EU countries, governments have established mechanisms aimed at reducing carbon dioxide emissions (“CO2”) by means of which industries releasing CO2 must submit to the environmental authorities at the end of a compliance period emission rights for a volume equivalent to the tons of CO2 released. Since the mechanism for emissions reduction in the EU has been in operation, a certain number of emission rights based on historical levels have been granted by the relevant environmental authorities to the different industries free of cost. Therefore, companies have to buy additional emission rights to meet deficits between actual CO2 emissions during the compliance period and emission rights actually held, or they can dispose of any surplus of emission rights in the market. In addition, the United Nations
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Emission rights – continued	 	
 
Framework Convention on Climate Change (“UNFCCC”) grants Certified Emission Reductions (“CERs”) to qualified CO2 emission reduction projects. CERs may be used in specified proportions to settle emission rights obligations in the EU. CEMEX actively participates in the development of projects aimed to reduce CO2 emissions. Some of these projects have been awarded with CERs.
In the absence of an IFRS that defines an accounting treatment for these schemes, CEMEX accounts for the effects associated with CO2 emission reduction mechanisms as follows:
 
•	 	Emission rights granted by governments are not recognized in the balance sheet considering that their cost is zero.	
 
•	 	Revenues from the sale of any surplus of emission rights are recognized by decreasing cost of sales; in the case of forward sale transactions, revenues are recognized upon physical delivery of the emission certificates.	
 
•	 	Emission rights and/or CERs acquired to hedge current CO2 emissions are recognized as intangible assets at cost, and are further amortized to cost of sales during the compliance period. In the case of forward purchases, assets are recognized upon physical reception of the emission certificates.	
 
•	 	CEMEX accrues a provision against cost of sales when the estimated annual emissions of CO2 are expected to exceed the number of emission rights, net of any benefit obtained through swap transactions of emission rights for CERs.	
 
•	 	CERs received from the UNFCCC are recognized as intangible assets at their development cost, which are attributable mainly to legal expenses incurred in the process of obtaining such CERs.	
 
•	 	CEMEX does not maintain emission rights, CERs and/or forward transactions with trading purposes.	
The combined effect of the use of alternate fuels that help reduce the emission of CO2, and the downturn in produced cement volumes in the EU, generated a surplus of emission rights held over the estimated CO2 emissions in the recent years. From the consolidated surplus of emission rights, during 2011, CEMEX sold an aggregate amount of approximately 13.4 million certificates, receiving revenues of approximately Ps1,518. During 2013 and 2012, there were no sales of emission rights.
 
2U)	CONCENTRATION OF CREDIT	
CEMEX sells its products primarily to distributors in the construction industry, with no specific geographic concentration within the countries in which CEMEX operates. As of and for the years ended December 31, 2013, 2012 and 2011, no single customer individually accounted for a significant amount of the reported amounts of sales or in the balances of trade receivables. In addition, there is no significant concentration of a specific supplier relating to the purchase of raw materials.
 
2V)	NEWLY ISSUED IFRS NOT YET ADOPTED	
There are a number of IFRS issued as of the date of issuance of these financial statements but which have not yet been adopted, which are listed below. Except as otherwise indicated, CEMEX expects to adopt these IFRS when they become effective.
 
•	 	During 2012 and 2013, the IASB issued IFRS 9, Financial instruments: classification and measurement (“IFRS 9”), which as issued, reflects the first part of Phase 1 of the IASB’s project to replace IAS 39. In subsequent phases, the IASB will address impairment methodology, derecognition and hedge accounting. IFRS 9 requires	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Newly issued IFRS not yet adopted – continued	 	
 
 	an entity to recognize a financial asset or a financial liability in its statement of financial position when, and only when, the entity becomes party to the contractual provisions of the instrument. At initial recognition, an entity shall measure a financial asset or financial liability at its fair value plus or minus, in the case of a financial asset or financial liability not at fair value through profit or loss, transaction costs that are directly attributable to the acquisition or issue of the financial asset or financial liability. IFRS 9 is effective for annual periods beginning on or after January 1, 2015, with early adoption permitted. CEMEX does not consider that current IFRS 9 will have a significant effect on the classification and measurement of CEMEX’s financial assets and financial liabilities. Nonetheless, CEMEX will evaluate the impact and will quantify the effect together with the other phases, when issued, to make a comprehensive analysis.	
 
•	 	In December 2011, the IASB amended IAS 32 for disclosure requirements for the offsetting of assets and liabilities on the statement of financial position. The amended standard requires entities to disclose both gross information and net information about both instruments and transactions eligible for offset in the statement of financial position and instruments and transactions subject to an agreement similar to a master netting arrangement. The scope includes derivatives, sale and repurchase agreements and reverse sale and repurchase agreements and securities borrowing and securities lending agreements. The amendments to IAS 32 are effective beginning January 1, 2014 and require retrospective application. CEMEX is currently evaluating the impact of adopting this amended standard; nonetheless, CEMEX does not expect that the adoption of this amended standard will have a significant impact on its consolidated financial statements.	
 
3)	REVENUES AND CONSTRUCTION CONTRACTS	
For the years ended December 31, 2013, 2012 and 2011, net sales, after sales and eliminations between related parties resulting from consolidation, were as follows:

(Millions of Mexican pesos)	  	 	 	2013	 	  	2012	 	  	2011	 	
From the sale of goods associated to CEMEX’s main activities 1	  	Ps	 	 	187,335	  	  	 	189,219	  	  	 	182,835	  	
From the sale of services 2	  	 	 	 	2,523	  	  	 	2,574	  	  	 	2,531	  	
From the sale of other goods and services 3	  	 	 	 	5,803	  	  	 	5,243	  	  	 	4,521	  	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	
 	  	Ps	 	 	195,661	  	  	 	197,036	  	  	 	189,887	  	

1	Includes revenues generated under construction contracts as presented in the table below.	
2	Refers mainly to revenues generated by Neoris N.V., a subsidiary involved in providing information technology solutions and services.	
3	Refers mainly to revenues generated by minor subsidiaries operating in different lines of business.	
For the years ended December 31, 2013, 2012 and 2011, revenues and costs related to construction contracts in progress were as follows:

(Millions of Mexican pesos)	  	 	 	 	Recognized
to date  1	 	 	2013	 	 	2012	 	 	2011	 	
Revenue from construction contracts included in consolidated net sales 2 	  	Ps	 	  	 	 	3,698	  	 	 	1,319	  	 	 	180	  	 	 	1,027	  	
Costs incurred in construction contracts included in consolidated cost of sales  3	  	 	 	 	 	 	(2,695	) 	 	 	(1,144	) 	 	 	(80	) 	 	 	(895	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Construction contracts operating profit	  	Ps	 	  	 	 	1,003	  	 	 	175	  	 	 	100	  	 	 	132	  	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Revenues	and construction contracts – continued	
 
1	Revenues and costs recognized from inception of the contracts until December 31, 2013 in connection with those projects still in progress.	
2	Revenues from construction contracts during 2013, 2012 and 2011, determined under the percentage of completion method, were mainly obtained in Mexico and 2013 in Colombia.	
3	Refers to actual costs incurred during the periods. The oldest contract in progress as of December 31, 2013 started in 2010.	
As of December 31, 2013 and 2012, amounts receivable for progress billings to customers of construction contracts and/or advances received by CEMEX from these customers were not significant.
 
4)	SELECTED FINANCIAL INFORMATION BY GEOGRAPHIC OPERATING SEGMENT	
CEMEX applies IFRS 8, Operating Segments (“IFRS 8”), for the disclosure of its operating segments, which are defined as the components of an entity that engage in business activities from which they may earn revenues and incur expenses, whose operating results are regularly reviewed by the entity’s top management to make decisions about resources to be allocated to the segments and assess their performance, and for which discrete financial information is available.
CEMEX’s main activities are oriented to the construction industry segment through the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates and other construction materials. CEMEX operates geographically on a regional basis. Beginning in April 2011, CEMEX’s operations were reorganized into six geographical regions, each under the supervision of a regional president: 1) Mexico, 2) United States, 3) Northern Europe, 4) Mediterranean, 5) South America and the Caribbean (“SAC”), and 6) Asia. Each regional president supervises and is responsible for all the business activities in the countries comprising the region. These activities refer to the production, distribution, marketing and sale of cement, ready-mix concrete, aggregates and other construction materials, the allocation of resources and the review of their performance and operating results. All regional presidents report directly to CEMEX’s Chief Executive Officer. The country manager, who is one level below the regional president in the organizational structure, reports the performance and operating results of its country to the regional president, including all the operating sectors. CEMEX’s top management internally evaluates the results and performance of each country and region for decision-making purposes and allocation of resources, following a vertical integration approach considering: a) that the operating components that comprise the reported segment have similar economic characteristics; b) that the reported segments are used by CEMEX to organize and evaluate its activities in its internal information system; c) the homogeneous nature of the items produced and traded in each operative component, which are all used by the construction industry; d) the vertical integration in the value chain of the products comprising each component; e) the type of clients, which are substantially similar in all components; f) the operative integration among components; and g) that the compensation system of a specific country is based on the consolidated results of the geographic segment and not on the particular results of the components. In accordance with this approach, in CEMEX’s daily operations, management allocates economic resources and evaluates operating results on a country basis rather than on an operating component basis.
Based on IFRS 8 and considering the financial information that is regularly reviewed by CEMEX’s top management, each of the six geographic regions in which CEMEX operates and the countries that comprise such regions represent reportable operating segments. However, for disclosure purposes in the notes to the financial statements, considering similar regional and economic characteristics and/or the fact that certain countries do not exceed the materiality thresholds included in IFRS 8 to be reported separately, such countries have been
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Selected	financial information by geographic operating segment – continued	
 
aggregated and presented as single line items as follows: a) “Rest of Northern Europe” is mainly comprised of CEMEX’s operations in Ireland, the Czech Republic, Austria, Poland, Hungary and Latvia, as well as trading activities in Scandinavia and Finland; b) “Rest of Mediterranean” is mainly comprised of CEMEX’s operations in Croatia, the United Arab Emirates and Israel; c) “Rest of South America and the Caribbean” or “Rest of SAC” is mainly comprised of CEMEX’s operations in Costa Rica, Panama, Puerto Rico, the Dominican Republic, Nicaragua, Jamaica and other countries in the Caribbean, Guatemala, and small ready-mix concrete operations in Argentina; and d) “Rest of Asia” is mainly comprised of CEMEX’s operations in Thailand, Bangladesh, China and Malaysia. The segment “Others” refers to: 1) cement trade maritime operations, 2) Neoris N.V., CEMEX’s subsidiary involved in the development of information technology solutions, 3) the Parent Company and other corporate entities, and 4) other minor subsidiaries with different lines of business.
The main indicator used by CEMEX’s management to evaluate the performance of each country is “Operating EBITDA”, representing operating earnings before other expenses, net, plus depreciation and amortization, considering that such amount represents a relevant measure for CEMEX’s management as an indicator of the ability to internally fund capital expenditures, as well as a widely accepted financial indicator to measure CEMEX’s ability to service or incur debt (note 16). Operating EBITDA should not be considered as an indicator of CEMEX’s financial performance, as an alternative to cash flow, as a measure of liquidity, or as being comparable to other similarly titled measures of other companies. This indicator, which is presented in the selected financial information by geographic operating segment, is consistent with the information used by CEMEX’s management for decision-making purposes. The accounting policies applied to determine the financial information by geographic operating segment are consistent with those described in note 2. CEMEX recognizes sales and other transactions between related parties based on market values.
Selected information of the consolidated statements of operations by geographic operating segment for the years ended December 31, 2013, 2012 and 2011 was as follows:

2013	 	 	 	Net sales
(including
related
parties)	 	 	Less:
Related
parties	 	 	Net
sales	 	 	Operating
EBITDA	 	 	Less:
depreciation
and
amortization	 	 	Operating
earnings
before other
expenses, net	 	 	Other
expenses,
net	 	 	Financial
expense	 	 	Other
financing
items, net	 	
Mexico	 	Ps	 	 	40,932	 	 	 	(1,507	) 	 	 	39,425	 	 	 	12,740	 	 	 	2,493	 	 	 	10,247	 	 	 	(721	) 	 	 	(337	) 	 	 	206	 	
United States	 	 	 	 	42,582	 	 	 	(128	) 	 	 	42,454	 	 	 	2,979	 	 	 	5,885	 	 	 	(2,906	) 	 	 	(359	) 	 	 	(501	) 	 	 	(129	) 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	 	 	14,368	 	 	 	—  	  	 	 	14,368	 	 	 	1,005	 	 	 	882	 	 	 	123	 	 	 	(258	) 	 	 	(113	) 	 	 	(220	) 	
Germany	 	 	 	 	13,715	 	 	 	(976	) 	 	 	12,739	 	 	 	826	 	 	 	643	 	 	 	183	 	 	 	(80	) 	 	 	(11	) 	 	 	(125	) 	
France	 	 	 	 	13,393	 	 	 	—  	  	 	 	13,393	 	 	 	1,274	 	 	 	532	 	 	 	742	 	 	 	(160	) 	 	 	(61	) 	 	 	(22	) 	
Rest of Northern Europe	 	 	 	 	12,250	 	 	 	(822	) 	 	 	11,428	 	 	 	1,310	 	 	 	889	 	 	 	421	 	 	 	(115	) 	 	 	(13	) 	 	 	(141	) 	
Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	 	 	3,856	 	 	 	(203	) 	 	 	3,653	 	 	 	360	 	 	 	629	 	 	 	(269	) 	 	 	(1,439	) 	 	 	(55	) 	 	 	11	 	
Egypt	 	 	 	 	6,162	 	 	 	3	 	 	 	6,165	 	 	 	2,373	 	 	 	462	 	 	 	1,911	 	 	 	(144	) 	 	 	(15	) 	 	 	55	  	
Rest of Mediterranean	 	 	 	 	9,517	 	 	 	(91	) 	 	 	9,426	 	 	 	1,334	 	 	 	225	 	 	 	1,109	 	 	 	(12	) 	 	 	(49	) 	 	 	30	 	
South America and the Caribbean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	 	 	13,203	 	 	 	—  	  	 	 	13,203	 	 	 	5,449	 	 	 	485	 	 	 	4,964	 	 	 	(87	) 	 	 	(177	) 	 	 	(183	) 	
Rest of SAC	 	 	 	 	15,527	 	 	 	(1,843	) 	 	 	13,684	 	 	 	4,518	 	 	 	675	 	 	 	3,843	 	 	 	(345	) 	 	 	(49	) 	 	 	(11	) 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	 	 	5,067	 	 	 	—  	  	 	 	5,067	 	 	 	1,173	 	 	 	320	 	 	 	853	 	 	 	12	 	 	 	(3	) 	 	 	38	 	
Rest of Asia	 	 	 	 	2,330	 	 	 	—  	  	 	 	2,330	 	 	 	153	 	 	 	80	 	 	 	73	 	 	 	57	 	 	 	(12	) 	 	 	29	 	
Others	 	 	 	 	16,604	 	 	 	(8,278	) 	 	 	8,326	 	 	 	(1,531	) 	 	 	259	 	 	 	(1,790	) 	 	 	(1,252	) 	 	 	(18,541	) 	 	 	2,168	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total	 	Ps	 	 	209,506	 	 	 	(13,845	) 	 	 	195,661	 	 	 	33,963	 	 	 	14,459	 	 	 	19,504	 	 	 	(4,903	) 	 	 	(19,937	) 	 	 	1,706	 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Selected	information of the consolidated statements of operations by geographic operating segment  – continued	

2012	 	 	 	 	Net sales
(including
related
parties)	 	 	Less:
Related
parties	 	 	Net sales	 	 	Operating
EBITDA	 	 	Less:
depreciation
and
amortization	 	 	Operating
earnings
before other
expenses, net	 	 	Other
expenses,
net	 	 	Financial
expense	 	 	Other
financing
items, net	 	
Mexico	 	Ps	 	  	 	 	44,412	 	 	 	(1,425	) 	 	 	42,987	 	 	 	16,048	 	 	 	2,645	 	 	 	13,403	 	 	 	(94	) 	 	 	(438	) 	 	 	(84	) 	
United States	 	 	 	 	 	 	40,319	 	 	 	(122	) 	 	 	40,197	 	 	 	405	 	 	 	6,464	 	 	 	(6,059	) 	 	 	(967	) 	 	 	(617	) 	 	 	(159	) 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	 	 	 	 	14,620	 	 	 	—  	  	 	 	14,620	 	 	 	1,910	 	 	 	996	 	 	 	914	 	 	 	(297	) 	 	 	(244	) 	 	 	(701	) 	
Germany	 	 	 	 	 	 	14,406	 	 	 	(953	) 	 	 	13,453	 	 	 	704	 	 	 	1,015	 	 	 	(311	) 	 	 	(258	) 	 	 	(18	) 	 	 	(170	) 	
France	 	 	 	 	 	 	13,324	 	 	 	—  	  	 	 	13,324	 	 	 	1,340	 	 	 	581	 	 	 	759	 	 	 	(156	) 	 	 	(68	) 	 	 	13	 	
Rest of Northern Europe	 	 	 	 	 	 	12,778	 	 	 	(806	) 	 	 	11,972	 	 	 	1,797	 	 	 	918	 	 	 	879	 	 	 	440	 	 	 	(119	) 	 	 	56	 	
Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	 	 	 	 	4,841	 	 	 	(155	) 	 	 	4,686	 	 	 	1,349	 	 	 	690	 	 	 	659	 	 	 	(1,443	) 	 	 	(111	) 	 	 	944	 	
Egypt	 	 	 	 	 	 	6,382	 	 	 	(190	) 	 	 	6,192	 	 	 	2,473	 	 	 	556	 	 	 	1,917	 	 	 	(203	) 	 	 	(9	) 	 	 	82	 	
Rest of Mediterranean	 	 	 	 	 	 	8,160	 	 	 	(37	) 	 	 	8,123	 	 	 	1,069	 	 	 	307	 	 	 	762	 	 	 	(112	) 	 	 	(47	) 	 	 	(91	) 	
South America and the Caribbean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	 	 	 	 	11,932	 	 	 	—  	  	 	 	11,932	 	 	 	4,905	 	 	 	396	 	 	 	4,509	 	 	 	31	 	 	 	(139	) 	 	 	348	 	
Rest of SAC	 	 	 	 	 	 	16,450	 	 	 	(1,851	) 	 	 	14,599	 	 	 	4,417	 	 	 	761	 	 	 	3,656	 	 	 	(70	) 	 	 	(62	) 	 	 	5	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	 	 	 	 	4,704	 	 	 	—  	  	 	 	4,704	 	 	 	901	 	 	 	305	 	 	 	596	 	 	 	27	 	 	 	(3	) 	 	 	(11	) 	
Rest of Asia	 	 	 	 	 	 	2,430	 	 	 	—  	  	 	 	2,430	 	 	 	110	 	 	 	75	 	 	 	35	 	 	 	13	 	 	 	(13	) 	 	 	—  	  	
Others	 	 	 	 	 	 	15,154	 	 	 	(7,337	) 	 	 	7,817	 	 	 	(2,922	) 	 	 	1,796	 	 	 	(4,718	) 	 	 	(2,401	) 	 	 	(16,623	) 	 	 	745	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total	 	Ps	 	  	 	 	209,912	 	 	 	(12,876	) 	 	 	197,036	 	 	 	34,506	 	 	 	17,505	 	 	 	17,001	 	 	 	(5,490	) 	 	 	(18,511	) 	 	 	977	 	

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
2011	 	 	 	 	Net sales
(including
related
parties)	 	 	Less:
Related
parties	 	 	Net sales	 	 	Operating
EBITDA	 	 	Less:
depreciation
and
amortization	 	 	Operating
earnings
before other
expenses, net	 	 	Other
expenses,
net	 	 	Financial
expense	 	 	Other
financing
items, net	 	
Mexico	 	Ps	 	  	 	 	43,361	 	 	 	(924	) 	 	 	42,437	 	 	 	15,328	 	 	 	2,394	 	 	 	12,934	 	 	 	(747	) 	 	 	(538	) 	 	 	590	 	
United States	 	 	 	 	 	 	32,759	 	 	 	(86	) 	 	 	32,673	 	 	 	(1,033	) 	 	 	6,887	 	 	 	(7,920	) 	 	 	(322	) 	 	 	(440	) 	 	 	(132	) 	
Northern Europe	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
United Kingdom	 	 	 	 	 	 	15,757	 	 	 	—  	  	 	 	15,757	 	 	 	1,072	 	 	 	1,219	 	 	 	(147	) 	 	 	(257	) 	 	 	(333	) 	 	 	(99	) 	
Germany	 	 	 	 	 	 	15,975	 	 	 	(1,015	) 	 	 	14,960	 	 	 	1,250	 	 	 	1,053	 	 	 	197	 	 	 	(236	) 	 	 	(53	) 	 	 	(130	) 	
France	 	 	 	 	 	 	14,170	 	 	 	—  	  	 	 	14,170	 	 	 	1,659	 	 	 	605	 	 	 	1,054	 	 	 	(171	) 	 	 	(78	) 	 	 	7	 	
Rest of Northern Europe	 	 	 	 	 	 	14,278	 	 	 	(650	) 	 	 	13,628	 	 	 	1,723	 	 	 	1,083	 	 	 	640	 	 	 	(1,127	) 	 	 	(65	) 	 	 	(227	) 	
Mediterranean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Spain	 	 	 	 	 	 	7,142	 	 	 	(108	) 	 	 	7,034	 	 	 	1,583	 	 	 	689	 	 	 	894	 	 	 	(498	) 	 	 	(679	) 	 	 	301	 	
Egypt	 	 	 	 	 	 	6,516	 	 	 	(13	) 	 	 	6,503	 	 	 	2,895	 	 	 	473	 	 	 	2,422	 	 	 	(71	) 	 	 	(5	) 	 	 	—  	  	
Rest of Mediterranean	 	 	 	 	 	 	7,762	 	 	 	(39	) 	 	 	7,723	 	 	 	967	 	 	 	286	 	 	 	681	 	 	 	(121	) 	 	 	(28	) 	 	 	(35	) 	
South America and the Caribbean	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Colombia	 	 	 	 	 	 	8,533	 	 	 	—  	  	 	 	8,533	 	 	 	3,020	 	 	 	452	 	 	 	2,568	 	 	 	(302	) 	 	 	(135	) 	 	 	(168	) 	
Rest of SAC	 	 	 	 	 	 	14,852	 	 	 	(1,689	) 	 	 	13,163	 	 	 	3,881	 	 	 	915	 	 	 	2,966	 	 	 	(240	) 	 	 	(44	) 	 	 	9	 	
Asia	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Philippines	 	 	 	 	 	 	3,701	 	 	 	(44	) 	 	 	3,657	 	 	 	617	 	 	 	259	 	 	 	358	 	 	 	(53	) 	 	 	(6	) 	 	 	7	 	
Rest of Asia	 	 	 	 	 	 	2,597	 	 	 	—  	  	 	 	2,597	 	 	 	155	 	 	 	104	 	 	 	51	 	 	 	(34	) 	 	 	(2	) 	 	 	(11	) 	
Others	 	 	 	 	 	 	14,857	 	 	 	(7,805	) 	 	 	7,052	 	 	 	(3,407	) 	 	 	1,429	 	 	 	(4,836	) 	 	 	(1,054	) 	 	 	(14,472	) 	 	 	(2,326	) 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total	 	Ps	 	  	 	 	202,260	 	 	 	(12,373	) 	 	 	189,887	 	 	 	29,710	 	 	 	17,848	 	 	 	11,862	 	 	 	(5,233	) 	 	 	(16,878	) 	 	 	(2,214	) 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
The information of equity in income of associates by geographic Operating segment for the years ended December 31, 2013, 2012 and 2011 is included in the note 13A.
 
F-31

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
As of December 31, 2013 and 2012, selected balance sheet information by geographic segment was as follows:

2013	  	 	 	 	Investments
in associates	 	  	Other segment
assets	 	  	Total
assets	 	  	Total
liabilities	 	  	Net assets
by segment	 	 	Additions to
fixed assets  1	 	
Mexico	  	Ps	 	  	 	 	821	 	  	 	75,948	 	  	 	76,769	 	  	 	16,230	 	  	 	60,539	 	 	 	1,182	 	
United States	  	 	 	 	 	 	920	 	  	 	205,487	 	  	 	206,407	 	  	 	11,259	 	  	 	195,148	 	 	 	2,237	 	
Northern Europe	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
United Kingdom	  	 	 	 	 	 	190	 	  	 	28,512	 	  	 	28,702	 	  	 	12,710	 	  	 	15,992	 	 	 	567	 	
Germany	  	 	 	 	 	 	59	 	  	 	12,845	 	  	 	12,904	 	  	 	6,891	 	  	 	6,013	 	 	 	556	 	
France	  	 	 	 	 	 	539	 	  	 	14,629	 	  	 	15,168	 	  	 	4,839	 	  	 	10,329	 	 	 	482	 	
Rest of Northern Europe	  	 	 	 	 	 	74	 	  	 	18,089	 	  	 	18,163	 	  	 	4,400	 	  	 	13,763	 	 	 	505	 	
Mediterranean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Spain	  	 	 	 	 	 	15	 	  	 	23,362	  	  	 	23,377	  	  	 	2,539	 	  	 	20,838	  	 	 	151	 	
Egypt	  	 	 	 	 	 	—  	  	  	 	7,498	 	  	 	7,498	 	  	 	3,402	 	  	 	4,096	 	 	 	314	 	
Rest of Mediterranean	  	 	 	 	 	 	6	 	  	 	10,646	 	  	 	10,652	 	  	 	3,711	 	  	 	6,941	 	 	 	299	 	
South America and the Caribbean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Colombia	  	 	 	 	 	 	—  	  	  	 	17,285	 	  	 	17,285	 	  	 	9,948	 	  	 	7,337	 	 	 	934	 	
Rest of South America and the Caribbean	  	 	 	 	 	 	24	 	  	 	16,681	 	  	 	16,705	 	  	 	3,233	 	  	 	13,472	 	 	 	594	 	
Asia	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Philippines	  	 	 	 	 	 	3	 	  	 	7,716	 	  	 	7,719	 	  	 	1,296	 	  	 	6,423	 	 	 	451	 	
Rest of Asia	  	 	 	 	 	 	—  	  	  	 	2,116	 	  	 	2,116	 	  	 	711	 	  	 	1,405	 	 	 	74	 	
Others	  	 	 	 	 	 	6,371	 	  	 	46,294	 	  	 	52,665	 	  	 	266,643	 	  	 	(213,978	) 	 	 	63	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	Ps	 	  	 	 	9,022	 	  	 	487,108	 	  	 	496,130	 	  	 	347,812	 	  	 	148,318	 	 	 	8,409	 	

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
2012	  	 	 	 	Investments
in associates	 	  	Other segment
assets	 	  	Total
assets	 	  	Total
liabilities	 	  	Net assets
by segment	 	 	Additions to
fixed assets  1	 	
Mexico	  	Ps	 	  	 	 	834	 	  	 	78,229	 	  	 	79,063	 	  	 	18,483	 	  	 	60,580	 	 	 	2,157	 	
United States	  	 	 	 	 	 	187	 	  	 	207,553	 	  	 	207,740	 	  	 	10,105	 	  	 	197,635	 	 	 	2,719	 	
Northern Europe	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
United Kingdom	  	 	 	 	 	 	496	 	  	 	28,408	 	  	 	28,904	 	  	 	11,594	 	  	 	17,310	 	 	 	598	 	
Germany	  	 	 	 	 	 	86	 	  	 	12,568	 	  	 	12,654	 	  	 	6,727	 	  	 	5,927	 	 	 	527	 	
France	  	 	 	 	 	 	526	 	  	 	13,427	 	  	 	13,953	 	  	 	4,986	 	  	 	8,967	 	 	 	397	 	
Rest of Northern Europe	  	 	 	 	 	 	78	 	  	 	17,538	 	  	 	17,616	 	  	 	4,107	 	  	 	13,509	 	 	 	723	 	
Mediterranean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Spain	  	 	 	 	 	 	56	 	  	 	22,366	 	  	 	22,422	 	  	 	2,856	 	  	 	19,566	 	 	 	348	 	
Egypt	  	 	 	 	 	 	—  	  	  	 	7,208	 	  	 	7,208	 	  	 	3,548	 	  	 	3,660	 	 	 	281	 	
Rest of Mediterranean	  	 	 	 	 	 	7	 	  	 	10,073	 	  	 	10,080	 	  	 	3,275	 	  	 	6,805	 	 	 	320	 	
South America and the Caribbean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Colombia	  	 	 	 	 	 	—  	  	  	 	16,160	 	  	 	16,160	 	  	 	9,252	 	  	 	6,908	 	 	 	1,456	 	
Rest of South America and the Caribbean	  	 	 	 	 	 	23	 	  	 	16,764	 	  	 	16,787	 	  	 	3,856	 	  	 	12,931	 	 	 	516	 	
Asia	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Philippines	  	 	 	 	 	 	3	 	  	 	7,758	 	  	 	7,761	 	  	 	1,382	 	  	 	6,379	 	 	 	246	 	
Rest of Asia	  	 	 	 	 	 	—  	  	  	 	2,801	 	  	 	2,801	 	  	 	865	 	  	 	1,936	 	 	 	77	 	
Others	  	 	 	 	 	 	5,683	 	  	 	29,965	 	  	 	35,648	 	  	 	242,134	 	  	 	(206,486	) 	 	 	100	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	Ps	 	  	 	 	7,979	 	  	 	470,818	 	  	 	478,797	 	  	 	323,170	 	  	 	155,627	 	 	 	10,465	 	

1	In 2013 and 2012, the total “Additions to fixed assets “includes capital expenditures of approximately Ps7,769 and Ps7,899, respectively (note 14).	
Total consolidated liabilities as of December 31, 2013 and 2012 included debt of Ps190,980 and Ps178,135, respectively. Of such balances, as of December 31, 2013 and 2012, 49% and 29% was in the Parent Company, 17% and 18% was in Spain, 32% and 51% was in finance subsidiaries in the Netherlands, Luxembourg and the United States, and 2% and 2% was in other countries, respectively. As mentioned above, the Parent Company and the finance subsidiaries mentioned above are included within the segment “Others”.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Net sales by product and geographic segment for the years ended December 31, 2013, 2012 and 2011 were as follows:

2013	  	 	 	 	Cement	 	  	Concrete	 	  	Aggregates	 	  	Others	 	  	Eliminations	 	 	Net sales	 	
Mexico	  	Ps	 	  	 	 	26,497	 	  	 	12,228	 	  	 	2,580	 	  	 	9,924	 	  	 	(11,804	) 	 	 	39,425	 	
United States	  	 	 	 	 	 	15,296	 	  	 	18,589	 	  	 	8,764	 	  	 	10,793	 	  	 	(10,988	) 	 	 	42,454	 	
Northern Europe	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
United Kingdom	  	 	 	 	 	 	3,387	 	  	 	5,699	 	  	 	4,856	 	  	 	6,952	 	  	 	(6,526	) 	 	 	14,368	 	
Germany	  	 	 	 	 	 	4,460	 	  	 	6,386	 	  	 	3,972	 	  	 	2,524	 	  	 	(4,603	) 	 	 	12,739	 	
France	  	 	 	 	 	 	—  	  	  	 	11,244	 	  	 	4,378	 	  	 	189	 	  	 	(2,418	) 	 	 	13,393	 	
Rest of Northern Europe	  	 	 	 	 	 	5,377	 	  	 	5,775	 	  	 	2,186	 	  	 	619	 	  	 	(2,529	) 	 	 	11,428	 	
Mediterranean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Spain	  	 	 	 	 	 	3,057	 	  	 	678	 	  	 	174	 	  	 	368	 	  	 	(624	) 	 	 	3,653	 	
Egypt	  	 	 	 	 	 	5,718	 	  	 	403	 	  	 	18	 	  	 	128	 	  	 	(102	) 	 	 	6,165	 	
Rest of Mediterranean	  	 	 	 	 	 	2,122	 	  	 	6,214	 	  	 	1,438	 	  	 	911	 	  	 	(1,259	) 	 	 	9,426	 	
South America and the Caribbean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Colombia	  	 	 	 	 	 	8,847	 	  	 	4,474	 	  	 	1,358	 	  	 	630	 	  	 	(2,106	) 	 	 	13,203	 	
Rest of South America and the Caribbean	  	 	 	 	 	 	12,677	 	  	 	3,240	 	  	 	651	 	  	 	552	 	  	 	(3,436	) 	 	 	13,684	 	
Asia	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Philippines	  	 	 	 	 	 	5,040	 	  	 	10	 	  	 	—  	  	  	 	23	 	  	 	(6	) 	 	 	5,067	 	
Rest of Asia	  	 	 	 	 	 	977	 	  	 	1,166	 	  	 	143	 	  	 	101	 	  	 	(57	) 	 	 	2,330	 	
Others	  	 	 	 	 	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	16,605	 	  	 	(8,279	) 	 	 	8,326	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	Ps	 	  	 	 	93,455	 	  	 	76,106	 	  	 	30,518	 	  	 	50,319	 	  	 	(54,737	) 	 	 	195,661	 	

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
2012	  	 	 	 	Cement	 	  	Concrete	 	  	Aggregates	 	  	Others	 	  	Eliminations	 	 	Net sales	 	
Mexico	  	Ps	 	  	 	 	29,229	 	  	 	12,927	 	  	 	2,478	 	  	 	10,090	 	  	 	(11,737	) 	 	 	42,987	 	
United States	  	 	 	 	 	 	14,372	 	  	 	16,653	 	  	 	8,215	 	  	 	11,204	 	  	 	(10,247	) 	 	 	40,197	 	
Northern Europe	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
United Kingdom	  	 	 	 	 	 	3,404	 	  	 	5,628	 	  	 	5,064	 	  	 	7,345	 	  	 	(6,821	) 	 	 	14,620	 	
Germany	  	 	 	 	 	 	4,546	 	  	 	6,264	 	  	 	3,882	 	  	 	3,283	 	  	 	(4,522	) 	 	 	13,453	 	
France	  	 	 	 	 	 	—  	  	  	 	11,181	 	  	 	4,112	 	  	 	312	 	  	 	(2,281	) 	 	 	13,324	 	
Rest of Northern Europe	  	 	 	 	 	 	5,103	 	  	 	6,066	 	  	 	2,155	 	  	 	892	 	  	 	(2,244	) 	 	 	11,972	 	
Mediterranean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Spain	  	 	 	 	 	 	3,829	 	  	 	965	 	  	 	316	 	  	 	397	 	  	 	(821	) 	 	 	4,686	 	
Egypt	  	 	 	 	 	 	5,461	 	  	 	463	 	  	 	24	 	  	 	525	 	  	 	(281	) 	 	 	6,192	 	
Rest of Mediterranean	  	 	 	 	 	 	1,910	 	  	 	5,130	 	  	 	1,187	 	  	 	1,018	 	  	 	(1,122	) 	 	 	8,123	 	
South America and the Caribbean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Colombia	  	 	 	 	 	 	8,911	 	  	 	4,102	 	  	 	1,351	 	  	 	897	 	  	 	(3,329	) 	 	 	11,932	 	
Rest of South America and the Caribbean	  	 	 	 	 	 	12,832	 	  	 	3,337	 	  	 	619	 	  	 	703	 	  	 	(2,892	) 	 	 	14,599	 	
Asia	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Philippines	  	 	 	 	 	 	4,702	 	  	 	—  	  	  	 	1	 	  	 	2	 	  	 	(1	) 	 	 	4,704	 	
Rest of Asia	  	 	 	 	 	 	954	 	  	 	1,320	 	  	 	102	 	  	 	92	 	  	 	(38	) 	 	 	2,430	 	
Others	  	 	 	 	 	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	15,153	 	  	 	(7,336	) 	 	 	7,817	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	Ps	 	  	 	 	95,253	 	  	 	74,036	 	  	 	29,506	 	  	 	51,913	 	  	 	(53,672	) 	 	 	197,036	 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Net	sales by product and geographic segment – continued	

2011	  	 	 	 	Cement	 	  	Concrete	 	  	Aggregates	 	  	Others	 	  	Eliminations	 	 	Net sales	 	
Mexico	  	Ps	 	  	 	 	28,215	 	  	 	12,618	 	  	 	2,387	 	  	 	10,477	 	  	 	(11,260	) 	 	 	42,437	 	
United States	  	 	 	 	 	 	11,772	 	  	 	11,811	 	  	 	6,868	 	  	 	10,213	 	  	 	(7,991	) 	 	 	32,673	 	
Northern Europe	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
United Kingdom	  	 	 	 	 	 	3,377	 	  	 	5,942	 	  	 	5,315	 	  	 	8,714	 	  	 	(7,591	) 	 	 	15,757	 	
Germany	  	 	 	 	 	 	5,156	 	  	 	6,797	 	  	 	4,143	 	  	 	3,609	 	  	 	(4,745	) 	 	 	14,960	 	
France	  	 	 	 	 	 	—  	  	  	 	11,853	 	  	 	4,092	 	  	 	362	 	  	 	(2,137	) 	 	 	14,170	 	
Rest of Northern Europe	  	 	 	 	 	 	6,155	 	  	 	6,917	 	  	 	2,184	 	  	 	1,207	 	  	 	(2,835	) 	 	 	13,628	 	
Mediterranean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Spain	  	 	 	 	 	 	5,567	 	  	 	1,676	 	  	 	647	 	  	 	441	 	  	 	(1,297	) 	 	 	7,034	 	
Egypt	  	 	 	 	 	 	5,917	 	  	 	490	 	  	 	26	 	  	 	197	 	  	 	(127	) 	 	 	6,503	 	
Rest of Mediterranean	  	 	 	 	 	 	2,015	 	  	 	4,801	 	  	 	1,092	 	  	 	304	 	  	 	(489	) 	 	 	7,723	 	
South America and the Caribbean	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Colombia	  	 	 	 	 	 	6,600	 	  	 	2,779	 	  	 	486	 	  	 	774	 	  	 	(2,106	) 	 	 	8,533	 	
Rest of South America and the Caribbean	  	 	 	 	 	 	11,164	 	  	 	3,037	 	  	 	449	 	  	 	813	 	  	 	(2,300	) 	 	 	13,163	 	
Asia	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Philippines	  	 	 	 	 	 	3,699	 	  	 	—  	  	  	 	—  	  	  	 	3	 	  	 	(45	) 	 	 	3,657	 	
Rest of Asia	  	 	 	 	 	 	843	 	  	 	1,524	 	  	 	200	 	  	 	122	 	  	 	(92	) 	 	 	2,597	 	
Others	  	 	 	 	 	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	14,689	 	  	 	(7,637	) 	 	 	7,052	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	 	 	 	 	
Total	  	Ps	 	  	 	 	90,480	 	  	 	70,245	 	  	 	27,889	 	  	 	51,925	 	  	 	(50,652	) 	 	 	189,887	 	

5)	DEPRECIATION AND AMORTIZATION	
Depreciation and amortization recognized during 2013, 2012 and 2011 is detailed as follows:

 	  	 	 	 	2013	 	  	2012	 	  	2011	 	
Depreciation and amortization expense related to assets used in the production process	  	Ps	 	  	 	 	13,048	 	  	 	14,182	 	  	 	14,247	 	
Depreciation and amortization expense related to assets used in administrative and selling activities	  	 	 	 	 	 	1,411	 	  	 	3,323	 	  	 	3,601	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	
 	  	 	Ps	  	 	 	14,459	 	  	 	17,505	 	  	 	17,848	 	

6)	OTHER EXPENSES, NET	
Other expenses, net in 2013, 2012 and 2011, consisted of the following:

 	  	 	 	 	2013	 	 	2012	 	 	2011	 	
Restructuring costs	  	Ps	 	  	 	 	(963	) 	 	 	(3,079	) 	 	 	(1,959	) 	
Impairment losses (notes 12, 13B, 14 and 15)	  	 	 	 	 	 	(1,591	) 	 	 	(1,661	) 	 	 	(1,751	) 	
Charitable contributions	  	 	 	 	 	 	(25	) 	 	 	(100	) 	 	 	(140	) 	
Results from the sale of assets and others, net	  	 	 	 	 	 	(2,324	) 	 	 	(650	) 	 	 	(1,383	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	  	 	 	(4,903	) 	 	 	(5,490	) 	 	 	(5,233	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
During 2012, in connection with the 10-year services agreement with IBM (note 23C), CEMEX recognized one-time restructuring costs of approximately US$138 (Ps1,818), of which, approximately US$54 (Ps710) are related to severance payments for termination of employees’ employment. In 2013, 2012 and 2011, restructuring costs mainly refer to severance payments.
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
7)	OTHER FINANCIAL INCOME (EXPENSES), NET	
Other financial income (expenses), net in 2013, 2012 and 2011, is detailed as follows:

 	  	 	 	 	2013	 	 	2012	 	 	2011	 	
Financial income	  	Ps	 	  	 	 	424	 	 	 	620	 	 	 	489	 	
Results from financial instruments, net (notes 13B and 16D)	  	 	 	 	 	 	2,075	 	 	 	178	 	 	 	(76	) 	
Foreign exchange results	  	 	 	 	 	 	57	 	 	 	1,142	 	 	 	(1,919	) 	
Effects of net present value on assets and liabilities and others, net	  	 	 	 	 	 	(850	) 	 	 	(963	) 	 	 	(708	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	  	 	 	1,706	 	 	 	977	 	 	 	(2,214	) 	

8)	CASH AND CASH EQUIVALENTS	
As of December 31, 2013 and 2012, consolidated cash and cash equivalents consisted of:

 	  	 	 	2013	 	  	2012	 	
Cash and bank accounts	  	Ps	 	 	5,007	 	  	 	7,581	 	
Fixed-income securities and other cash equivalents 1	  	 	 	 	10,169	 	  	 	4,897	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	15,176	 	  	 	12,478	 	

1	As of December 31, 2013, this caption included approximately Ps3,734 of cash that will be used for payment of CEMEX Finance Europe B.V.’s 4.75% notes due on March 2014. As of December 31, 2013 and 2012, this caption included restricted deposits related to insurance contracts of approximately Ps34 and Ps239, respectively.	
Based on net settlement agreements, the balance of cash and cash equivalents excludes deposits in margin accounts that guarantee several obligations of CEMEX of approximately Ps564 in 2013 and Ps1,782 in 2012, which were offset against the corresponding obligations of CEMEX with the counterparties, considering CEMEX’s right, ability and intention to settle the amounts on a net basis.
 
9)	TRADE ACCOUNTS RECEIVABLE	
As of December 31, 2013 and 2012, consolidated trade accounts receivable consisted of:

 	  	 	 	2013	 	 	2012	 	
Trade accounts receivable	  	Ps	 	 	27,775	 	 	 	25,464	 	
Allowances for doubtful accounts	  	 	 	 	(1,804	) 	 	 	(1,766	) 	
 	  	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	25,971	 	 	 	23,698	 	
 	  	 	 	 	 	 	 	 	 	 	
As of December 31, 2013 and 2012, trade accounts receivable include receivables of Ps8,487 (US$650) and Ps10,792 (US$840), respectively, that were sold under outstanding securitization programs for the sale of trade accounts receivable and/or factoring programs with recourse in Mexico, the United States, France and the United Kingdom. Under the outstanding securitization programs, CEMEX effectively surrenders control associated with the trade accounts receivable sold and there is no guarantee or obligation to reacquire the assets. However, CEMEX retains certain residual interest in the programs and/or maintains continuing involvement with the
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Trade	accounts receivable – continued	
 
accounts receivable; therefore, the amounts received are recognized within “Other financial obligations.” Trade accounts receivable qualifying for sale exclude amounts over certain days past due or concentrations over certain limits to any one customer, according to the terms of the programs. The portion of the accounts receivable sold maintained as reserves amounted to Ps1,516 in 2013 and Ps2,280 in 2012. Therefore, the funded amount to CEMEX was Ps6,971 (US$534) in 2013 and Ps8,512 (US$662) in 2012, representing the amounts recognized within Other financial obligations. The discount granted to the acquirers of the trade accounts receivable is recorded as financial expense and amounted to approximately Ps317 (US$25) in 2013, Ps368 (US$28) in 2012 and Ps390 (US$31) in 2011. CEMEX’s securitization programs are negotiated for specific periods and may be renewed at their maturity. The securitization programs outstanding as of December 31, 2013 in Mexico, the United States, France and the United Kingdom mature in October 2015, May 2015, March 2014 and March 2014, respectively.
Allowances for doubtful accounts are established according to the credit history and risk profile of each customer. Changes in the valuation of this caption allowance for doubtful accounts in 2013, 2012 and 2011, were as follows:

 	  	 	 	2013	 	 	2012	 	 	2011	 	
Allowances for doubtful accounts at beginning of period	  	Ps	 	 	1,766	 	 	 	2,171	 	 	 	2,246	 	
Charged to selling expenses	  	 	 	 	561	 	 	 	372	 	 	 	338	 	
Deductions	  	 	 	 	(587	) 	 	 	(595	) 	 	 	(695	) 	
Business combinations	  	 	 	 	—  	  	 	 	—  	  	 	 	82	 	
Foreign currency translation effects	  	 	 	 	64	 	 	 	(182	) 	 	 	200	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Allowances for doubtful accounts at end of period	  	Ps	 	 	1,804	 	 	 	1,766	 	 	 	2,171	 	

10)	OTHER ACCOUNTS RECEIVABLE	
As of December 31, 2013 and 2012, consolidated other accounts receivable consisted of:

 	  	 	 	2013	 	  	2012	 	
Non-trade accounts receivable 1	  	Ps	 	 	2,683	 	  	 	2,321	 	
Interest and notes receivable 2	  	 	 	 	1,952	 	  	 	2,721	 	
Loans to employees and others	  	 	 	 	154	 	  	 	171	 	
Refundable taxes	  	 	 	 	2,221	 	  	 	1,026	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	7,010	 	  	 	6,239	 	

1	Non-trade accounts receivable are mainly attributable to the sale of assets.	
2	Includes Ps174 in 2013 and Ps171 in 2012, representing the short-term portion of a restricted investment related to coupon payments under CEMEX’s perpetual debentures (note 20D).	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
11)	INVENTORIES	
As of December 31, 2013 and 2012, the consolidated balance of inventories was summarized as follows:

 	  	 	 	2013	 	 	2012	 	
Finished goods	  	Ps	 	 	6,153	 	 	 	5,934	 	
Work-in-process	  	 	 	 	2,825	 	 	 	2,819	 	
Raw materials	  	 	 	 	3,121	 	 	 	2,980	 	
Materials and spare parts	  	 	 	 	4,683	 	 	 	4,523	 	
Inventory in transit	  	 	 	 	689	 	 	 	820	 	
Allowance for obsolescence	  	 	 	 	(486	) 	 	 	(591	) 	
 	  	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	16,985	 	 	 	16,485	 	
 	  	 	 	 	 	 	 	 	 	 	
For the years ended December 31, 2013, 2012 and 2011, CEMEX recognized in the statements of operations, inventory impairment losses of approximately Ps6, Ps44 and Ps19, respectively.
 
12)	OTHER CURRENT ASSETS	
As of December 31, 2013 and 2012, consolidated other current assets consisted of:

 	  	 	 	2013	 	  	2012	 	
Advance payments	  	Ps	 	 	2,296	 	  	 	2,203	 	
Assets held for sale	  	 	 	 	1,610	 	  	 	2,193	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	3,906	 	  	 	4,396	 	
 	  	 	 	 	 	 	  	 	 	 	
As of December 31, 2013 and 2012, the caption of advance payments included advances to suppliers of inventory that were not significant (note 2G). Assets held for sale are stated at their estimated realizable value and include real estate properties received in payment of trade receivables as well as other assets held for sale.
During 2013, 2012 and 2011, CEMEX recognized within “Other expenses, net” impairment losses in connection with assets held for sale for approximately Ps56, Ps595 and, Ps190, respectively. Of such 2012 impairment losses, approximately Ps123(US$9) related to the amount of goodwill that was written-off due to the decision to classification of these assets as held for sale (note 15A).
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
13)	INVESTMENTS IN ASSOCIATES AND OTHER INVESTMENTS AND NON-CURRENT ACCOUNTS RECEIVABLE	
 
13A)	INVESTMENTS IN ASSOCIATES	
As of December 31, 2013 and 2012, the main investments in common shares of associates were as follows:

 	 	Activity	 	Country	 	%	 	  	2013	 	 	2012	 	
Control Administrativo Mexicano, S.A. de C.V.	 	Cement	 	Mexico	 	 	49.0	 	  	Ps	 	 	4,420	 	 	 	4,471	 	
Concrete Supply Co. LLC	 	Concrete	 	United States	 	 	40.0	 	  	 	 	 	712	 	 	 	—  	  	
Cancem, S.A. de C.V.	 	Cement	 	Mexico	 	 	10.3	 	  	 	 	 	476	 	 	 	476	 	
Akmenes Cementas AB	 	Cement	 	Lithuania	 	 	37.8	 	  	 	 	 	551	 	 	 	399	 	
ABC Capital, S.A. Institución de Banca Múltiple	 	Financing	 	Mexico	 	 	49.0	 	  	 	 	 	411	 	 	 	369	 	
Trinidad Cement Ltd	 	Cement	 	Trinidad and Tobago	 	 	20.0	 	  	 	 	 	307	 	 	 	252	 	
Société Méridionale de Carrières	 	Aggregates	 	France	 	 	33.3	 	  	 	 	 	228	 	 	 	213	 	
Société d’Exploitation de Carrières	 	Aggregates	 	France	 	 	50.0	 	  	 	 	 	163	 	 	 	172	 	
Lehigh White Cement Company	 	Cement	 	United States	 	 	24.5	 	  	 	 	 	184	 	 	 	162	 	
Industrias Básicas, S.A.	 	Cement	 	Panama	 	 	25.0	 	  	 	 	 	128	 	 	 	121	 	
Société des Ciments Antillais	 	Cement	 	French Antilles	 	 	26.0	 	  	 	 	 	74	 	 	 	70	 	
 	 	 	 	 	 	 	
Other companies	 	—  	 	—  	 	 	—  	  	  	 	 	 	1,368	 	 	 	1,274	 	
 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	 	 	 	  	Ps	 	 	9,022	 	 	 	7,979	 	
 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	
Out of which:	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	
Book value at acquisition date	 	 	 	 	 	 	 	 	  	Ps	 	 	3,236	 	 	 	2,420	 	
Changes in stockholders’ equity	 	 	 	 	 	 	 	 	  	 	 	 	5,786	 	 	 	5,559	 	
 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	
As of December 31, 2013 and 2012, there were no written put options granted by CEMEX for the purchase of investments in associates.
During 2013, with the aim of improving its strategic position in Lithuania, CEMEX increased by approximately 4% its equity interest in Akmenes Cementas AB for approximately US$8. In addition, as of December 31, 2013, CEMEX holds approximately 11.8% of preferred shares that have no voting rights of Akmenes Cements AB.
In September 2013, CEMEX entered into contribution agreements with Concrete Supply Holding Company (“CSH”). The agreements established a new limited liability company, Concrete Supply Company LLC (“CSC LLC”). As a result, CEMEX recognized assets at fair value for approximately Ps54 (Ps712) which represented the assets contributed to CSC LLC, giving CEMEX a 40% non-controlling interest in CSC LLC. CSH also contributed ready mix assets to CSC LLC with a fair value of approximately Ps87 (Ps1,147). CSC LLC was formed for the purpose of engaging in the production, sale and distribution of ready-mix concrete within North and South Carolina, United States.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Investments	in associates – continued	
 
Equity in net income (loss) of associates by geographic operating segment in 2013, 2012 and 2011 is detailed as follows:

 	  	 	 	2013 1	 	 	2012	 	 	2011	 	
Mexico	  	Ps	 	 	(6	) 	 	 	92	 	 	 	(53	) 	
United States	  	 	 	 	91	 	 	 	343	 	 	 	(204	) 	
Northern Europe	  	 	 	 	111	 	 	 	157	 	 	 	146	 	
Mediterranean	  	 	 	 	16	 	 	 	(90	) 	 	 	(8	) 	
Corporate and Others	  	 	 	 	17	 	 	 	226	 	 	 	(215	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	229	 	 	 	728	 	 	 	(334	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Combined condensed balance sheet information of CEMEX’s associates as of December 31, 2013 and 2012 is set forth below:

 	  	 	 	2013 1	 	  	2012	 	
Current assets	  	Ps	 	 	14,192	 	  	 	14,302	 	
Non-current assets	  	 	 	 	37,974	 	  	 	38,533	 	
 	  	 	 	 	 	 	  	 	 	 	
Total assets	  	 	 	 	52,166	 	  	 	52,835	 	
 	  	 	 	 	 	 	  	 	 	 	
Current liabilities	  	 	 	 	5,465	 	  	 	7,546	 	
Non-current liabilities	  	 	 	 	17,531	 	  	 	17,420	 	
 	  	 	 	 	 	 	  	 	 	 	
Total liabilities	  	 	 	 	22,996	 	  	 	24,966	 	
 	  	 	 	 	 	 	  	 	 	 	
Total net assets	  	Ps	 	 	29,170	 	  	 	27,869	 	
 	  	 	 	 	 	 	  	 	 	 	
Combined selected information of the statements of operations of CEMEX’s associates in 2013, 2012 and 2011 is set forth below:

 	  	 	 	2013 1	 	  	2012	 	  	2011	 	
Sales	  	Ps	 	 	19,966	 	  	 	11,693	 	  	 	15,736	 	
Operating earnings	  	 	 	 	2,024	 	  	 	1,160	 	  	 	1,118	 	
Income (loss) before income tax	  	 	 	 	928	 	  	 	531	 	  	 	(846	) 	
Net income (loss)	  	 	 	 	455	 	  	 	517	 	  	 	(402	) 	
 
1	The combined condensed selected information of balance sheet and statements of operations of CEMEX’s associates presented in the tables above does not include the balances and operations of the newly created joint venture CSC LLC as of and for the three-month period ended December 31, 2013.	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
13B)	OTHER INVESTMENTS AND NON-CURRENT ACCOUNTS RECEIVABLE	
As of December 31, 2013 and 2012, consolidated other investments and non-current accounts receivable were summarized as follows:

 	  	 	 	2013	 	  	2012	 	
Non-current portion of valuation of derivative financial instruments	  	Ps	 	 	6,274	 	  	 	4,279	 	
Non-current accounts receivable and other investments1	  	 	 	 	4,983	 	  	 	3,554	 	
Investments available-for-sale2	  	 	 	 	340	 	  	 	211	 	
Investments held for trading3	  	 	 	 	463	 	  	 	366	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	12,060	 	  	 	8,410	 	

1	Includes, among other items: a) advances to suppliers of fixed assets of approximately Ps138 in 2013 and Ps86 in 2012; and b) the non-current portion of a restricted investment used to pay coupons under the perpetual debentures (note 20D), of approximately Ps326 in 2013 and Ps490 in 2012. CEMEX recognized impairment losses of non-current accounts receivable in the United States of approximately Ps14 in 2013 and Ps90 in 2012, and in the Caribbean and in the United States of approximately Ps167 in 2011 (note 6).	
2	This line item includes: a) an investment in CPOs of Axtel, S.A.B. de C.V. (“Axtel”) of approximately Ps340 in 2013 and Ps 211 in 2012.	
3	This line item refers to investments in private funds. In 2013 and 2012, no contributions were made to such private funds.	
 
14)	PROPERTY, MACHINERY AND EQUIPMENT, NET	
As of December 31, 2013 and 2012, consolidated property, machinery and equipment, net and the changes in such line item during 2013, 2012 and 2011, were as follows:

 	  	 	 	2013	 	
 	  	 	 	Land and
mineral
reserves  1	 	 	Building 1	 	 	Machinery and
equipment  2	 	 	Construction in
progress	 	 	Total	 	
Cost at beginning of period	  	Ps	 	 	76,620	 	 	 	40,316	 	 	 	176,720	 	 	 	14,276	 	 	 	307,932	 	
Accumulated depreciation and depletion	  	 	 	 	(7,681	) 	 	 	(12,703	) 	 	 	(74,473	) 	 	 	—  	  	 	 	(94,857	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net book value at beginning of period	  	 	 	 	68,939	 	 	 	27,613	 	 	 	102,247	 	 	 	14,276	 	 	 	213,075	 	
Capital expenditures	  	 	 	 	961	 	 	 	632	 	 	 	6,176	 	 	 	—  	  	 	 	7,769	 	
Additions through capital leases	  	 	 	 	—  	  	 	 	38	 	 	 	103	 	 	 	—  	  	 	 	141	 	
Stripping costs	  	 	 	 	499	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	499	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total additions	  	 	 	 	1,460	 	 	 	670	 	 	 	6,279	 	 	 	—  	  	 	 	8,409	 	
Disposals3	  	 	 	 	(1,014	) 	 	 	(471	) 	 	 	(1,465	) 	 	 	(10	) 	 	 	(2,960	) 	
Reclassifications4	  	 	 	 	(317	) 	 	 	(98	) 	 	 	(246	) 	 	 	(4	) 	 	 	(665	) 	
Depreciation and depletion for the period	  	 	 	 	(1,501	) 	 	 	(1,873	) 	 	 	(9,758	) 	 	 	—  	  	 	 	(13,132	) 	
Impairment losses	  	 	 	 	(240	) 	 	 	(96	) 	 	 	(1,022	) 	 	 	—  	  	 	 	(1,358	) 	
Foreign currency translation effects	  	 	 	 	(587	) 	 	 	1,129	 	 	 	3,251	 	 	 	(1,445	) 	 	 	2,348	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Cost at end of period	  	 	 	 	75,415	 	 	 	41,531	 	 	 	179,905	 	 	 	12,817	 	 	 	309,668	 	
Accumulated depreciation and depletion	  	 	 	 	(8,675	) 	 	 	(14,657	) 	 	 	(80,619	) 	 	 	—  	  	 	 	(103,951	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net book value at end of period	  	Ps	 	 	66,740	 	 	 	26,874	 	 	 	99,286	 	 	 	12,817	 	 	 	205,717	 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Property,	machinery and equipment, net – continued	

 	  	 	 	 	2012	 	 	 	 	
 	  	 	 	 	Land and
mineral
reserves  1	 	 	Building 1	 	 	Machinery and
equipment  2	 	 	Construction in
progress	 	 	Total	 	 	2011	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Cost at beginning of period	  	Ps	 	  	 	 	82,098	 	 	 	43,824	  	 	 	183,682	 	 	 	14,976	 	 	 	324,580	 	 	 	292,343	 	
Accumulated depreciation and depletion	  	 	 	 	 	 	(6,146	) 	 	 	(11,911	) 	 	 	(72,180	) 	 	 	—  	  	 	 	(90,237	) 	 	 	(71,072	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net book value at beginning of period	  	 	 	 	 	 	75,952	 	 	 	31,913	  	 	 	111,502	 	 	 	14,976	 	 	 	234,343	 	 	 	221,271	 	
Capital expenditures	  	 	 	 	 	 	1,339	 	 	 	1,579	  	 	 	4,981	 	 	 	—  	  	 	 	7,899	 	 	 	5,943	 	
Additions through capital leases	  	 	 	 	 	 	—  	  	 	 	813	  	 	 	1,212	 	 	 	—  	  	 	 	2,025	 	 	 	1,519	 	
Stripping costs	  	 	 	 	 	 	439	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	439	 	 	 	963	 	
Capitalization of financial expense	  	 	 	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	102	 	 	 	102	 	 	 	115	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total additions	  	 	 	 	 	 	1,778	 	 	 	2,392	  	 	 	6,193	 	 	 	102	 	 	 	10,465	 	 	 	8,540	 	
Disposals3	  	 	 	 	 	 	(1,548	) 	 	 	(397	) 	 	 	(1,451	) 	 	 	15	 	 	 	(3,381	) 	 	 	(2,829	) 	
Reclassifications4	  	 	 	 	 	 	(742	) 	 	 	(97	) 	 	 	(261	) 	 	 	(2	) 	 	 	(1,102	) 	 	 	—  	  	
Business combinations (note 15A)	  	 	 	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	5,166	 	
Depreciation and depletion for the period	  	 	 	 	 	 	(1,437	) 	 	 	(1,691	) 	 	 	(11,264	) 	 	 	—  	  	 	 	(14,392	) 	 	 	(14,769	) 	
Impairment losses	  	 	 	 	 	 	(131	) 	 	 	(31	) 	 	 	(380	) 	 	 	—  	  	 	 	(542	) 	 	 	(1,249	) 	
Foreign currency translation effects	  	 	 	 	 	 	(4,933	) 	 	 	(4,476	) 	 	 	(2,092	) 	 	 	(815	) 	 	 	(12,316	) 	 	 	18,213	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Cost at end of period	  	 	 	 	 	 	76,620	 	 	 	40,316	  	 	 	176,720	 	 	 	14,276	 	 	 	307,932	 	 	 	324,580	 	
Accumulated depreciation and depletion	  	 	 	 	 	 	(7,681	) 	 	 	(12,703	) 	 	 	(74,473	) 	 	 	—  	  	 	 	(94,857	) 	 	 	(90,237	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net book value at end of period	  	Ps	 	  	 	 	68,939	 	 	 	27,613	  	 	 	102,247	 	 	 	14,276	 	 	 	213,075	 	 	 	234,343	 	

 
1	Includes corporate buildings and related land sold to financial institutions during 2013, 2012 and 2011, which were leased back, without incurring any change in the carrying amount of such assets or gain or loss on the transactions. The aggregate carrying amount of these assets as of December 31, 2013 and 2012 was approximately Ps2,210 and Ps1,657, respectively.	
2	Includes assets, mainly mobile equipment, acquired in through capital leases, which carrying amount as of December 31, 2013 and 2012 was approximately Ps141 and Ps2,025, respectively.	
3	In 2013, the sales of non-strategic fixed assets in Mexico, the United States and the United Kingdom for Ps680, Ps702 and Ps920, respectively. In 2012, includes sales of non-strategic fixed assets in the United States, the United Kingdom and Mexico for Ps384, Ps1,129 and Ps1,160, respectively. In 2011, includes sales of non-strategic fixed assets in the United Kingdom, Mexico and the United States for Ps424, Ps567 and Ps968, respectively.	
4	In 2013, as described in note 13A, CEMEX contributed fixed assets to its associate Concrete Supply Co., LLC for approximately Ps445. In 2012, due to decision to dispose of certain components of CGUs in the United States, CEMEX reclassified approximately Ps1,102 of fixed assets associated with such CGUs to assets held for sale (note 12). The reclassified assets were recognized at fair value less cost to sale. In 2011, refers to the capitalization of advances to suppliers of fixed assets during the period.	
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Property,	machinery and equipment, net – continued	
 
CEMEX has significant balances of property, machinery and equipment. As of December 31, 2013 and 2012, the consolidated balances of property, machinery and equipment, net, represented approximately 41.5% and 44.5%, respectively, of CEMEX’s total consolidated assets. As a result of impairment tests conducted on several CGUs considering certain triggering events, mainly: a) the closing and/or reduction of operations of cement and ready-mix concrete plants resulting from adjusting the supply to current demand conditions; and b) the transferring of installed capacity to more efficient plants, for the years ended December 31, 2013, 2012 and 2011, CEMEX adjusted the related fixed assets to their estimated value in use in those circumstances in which the assets would continue in operation based on estimated cash flows during the remaining useful life, or to their realizable value, in case of permanent shut down, and recognized impairment losses (note 2K) during 2013, 2012 and 2011 in the following countries and for the following amounts:

 	  	 	 	2013	 	  	2012	 	  	2011	 	
Spain	  	Ps	 	 	917	 	  	 	—  	  	  	 	—  	  	
Puerto Rico	  	 	 	 	187	 	  	 	—  	  	  	 	—  	  	
United States	  	 	 	 	134	 	  	 	71	 	  	 	11	 	
Germany	  	 	 	 	59	 	  	 	128	 	  	 	21	 	
Mexico	  	 	 	 	36	 	  	 	203	 	  	 	101	 	
Latvia	  	 	 	 	2	 	  	 	38	 	  	 	68	 	
Ireland	  	 	 	 	—  	  	  	 	64	 	  	 	790	 	
United Kingdom	  	 	 	 	—  	  	  	 	—  	  	  	 	84	 	
Colombia	  	 	 	 	—  	  	  	 	—  	  	  	 	46	 	
Other countries	  	 	 	 	23	 	  	 	38	 	  	 	128	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	
 	  	Ps	 	 	1,358	 	  	 	542	 	  	 	1,249	 	

15)	GOODWILL AND INTANGIBLE ASSETS	
 
15A)	BALANCES AND CHANGES DURING THE PERIOD	
As of December 31, 2013 and 2012, consolidated goodwill, intangible assets and deferred charges were summarized as follows:

 	 	 	 	 	2013	 	 	 	 	 	2012	 	
 	 	 	 	 	Cost	 	 	Accumulated
amortization	 	 	Carrying
amount	 	 	 	 	 	Cost	 	 	Accumulated
amortization	 	 	Carrying
amount	 	
Intangible assets of indefinite useful life:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Goodwill	 	Ps	 	  	 	 	144,457	 	 	 	—  	  	 	 	144,457	 	 	Ps	 	  	 	 	142,444	 	 	 	—  	  	 	 	142,444	 	
Intangible assets of definite useful life:	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Extraction rights	 	 	 	 	 	 	27,550	 	 	 	(2,554	) 	 	 	24,996	 	 	 	 	 	 	 	27,416	 	 	 	(2,242	) 	 	 	25,174	 	
Industrial property and trademarks	 	 	 	 	 	 	248	 	 	 	(108	) 	 	 	140	 	 	 	 	 	 	 	429	 	 	 	(76	) 	 	 	353	 	
Customer relationships	 	 	 	 	 	 	4,829	 	 	 	(3,090	) 	 	 	1,739	 	 	 	 	 	 	 	4,862	 	 	 	(2,606	) 	 	 	2,256	 	
Mining projects	 	 	 	 	 	 	1,562	 	 	 	(221	) 	 	 	1,341	 	 	 	 	 	 	 	1,379	 	 	 	(300	) 	 	 	1,079	 	
Others intangible assets	 	 	 	 	 	 	7,023	 	 	 	(4,756	) 	 	 	2,267	 	 	 	 	 	 	 	14,068	 	 	 	(12,384	) 	 	 	1,684	 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Ps	 	  	 	 	185,669	 	 	 	(10,729	) 	 	 	174,940	 	 	Ps	 	  	 	 	190,598	 	 	 	(17,608	) 	 	 	172,990	 	

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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Balances	and changes during the period – continued	
 
The amortization of intangible assets of definite useful life was approximately Ps1,327 in 2013, Ps3,113 in 2012 and Ps3,079 in 2011, and was recognized within operating costs and expenses.
 
Goodwill	 	 	
Changes in consolidated goodwill in 2013, 2012 and 2011 were as follows:

 	  	 	 	 	2013	 	  	2012	 	 	2011	 	
Balance at beginning of period	  	Ps	 	  	 	 	142,444	 	  	 	152,674	 	 	 	135,822	 	
Business combinations	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	14	 	
Disposals and cancellations 1 	  	 	 	 	 	 	—  	  	  	 	(323	) 	 	 	—  	  	
Reclassification to assets held for sale 2 	  	 	 	 	 	 	—  	  	  	 	(212	) 	 	 	—  	  	
Impairment losses (note 15C) 3 	  	 	 	 	 	 	—  	  	  	 	—  	  	 	 	(145	) 	
Foreign currency translation effects	  	 	 	 	 	 	2,013	 	  	 	(9,695	) 	 	 	16,983	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	
Balance at end of period	  	Ps	 	  	 	 	144,457	 	  	 	142,444	 	 	 	152,674	 	

1	In 2012, due to the decision to sell certain milling assets from CEMEX’s operations in Spain to its operations in Colombia, CEMEX cancelled approximately Ps323 of goodwill in Spain associated with the original acquisition of the entity that held the assets against other expenses, net.	
2	In 2012, due to the classification of certain CGUs in the United States to assets held for sale, considering the historical average Operating EBITDA generation of such CGUs, CEMEX allocated approximately Ps212 of goodwill related to the groups of CGUs to which goodwill had been allocated in such country to the fair value less cost to sale associated with such assets recognized in assets held for sale (note 12).	
3	Based on impairment tests made during the last quarter of each year, in 2011 CEMEX recognized within “Other expenses, net” goodwill impairment losses in connection with the CGUs to which goodwill had been allocated in Latvia for approximately Ps145 (US$12). The impairment losses in such country represented 100% of the amount of goodwill allocated to such CGUs. In 2013 and 2012, there were no impairment losses of goodwill (note 15C).	
Intangible assets of definite life
Changes in intangible assets of definite life in 2013, 2012 and 2011 were as follows:

 	  	 	 	 	2013	 	
 	  	 	 	 	Extraction
rights	 	 	Industrial
property and
trademarks	 	 	Customer
relations	 	 	Mining
projects	 	 	Others 1	 	 	Total	 	
Balance at beginning of period	  	Ps	 	  	 	 	25,174	 	 	 	353	 	 	 	2,256	 	 	 	1,079	 	 	 	1,684	 	 	 	30,546	 	
Additions (disposals), net1	  	 	 	 	 	 	(110	) 	 	 	(69	) 	 	 	(9	) 	 	 	537	 	 	 	185	 	 	 	534	 	
Amortization	  	 	 	 	 	 	(447	) 	 	 	(295	) 	 	 	(498	) 	 	 	(53	)	 	 	(34	) 	 	 	(1,327	) 	
Reclassification to assets held for sale	  	 	 	 	 	 	—  	  	 	 	—  	  	 	 	(13	) 	 	 	—  	  	 	 	(35	) 	 	 	(48	) 	
Impairment losses	  	 	 	 	 	 	—  	  	 	 	(5	) 	 	 	(29	) 	 	 	—  	  	 	 	(129	) 	 	 	(163	) 	
Foreign currency translation effects	  	 	 	 	 	 	379	 	 	 	156	 	 	 	32	 	 	 	(222	) 	 	 	596	 	 	 	941	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at the end of period	  	Ps	 	  	 	 	24,996	 	 	 	140	 	 	 	1,739	 	 	 	1,341	 	 	 	2,267	 	 	 	30,483	 	

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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Intangible assets of definite life – continued

 	  	 	 	 	2012	 	 	 	 	
 	  	 	 	 	Extraction
rights	 	 	Industrial
property and
trademarks	 	 	Customer
relations	 	 	Mining
projects	 	 	Others 1	 	 	Total	 	 	2011	 	
Balance at beginning of period	  	Ps	 	  	 	 	27,307	 	 	 	1,012	 	 	 	2,848	 	 	 	1,487	 	 	 	3,317	 	 	 	35,971	 	 	 	34,249	 	
Business combinations	  	 	 	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	6	 	
Additions (disposals), net  1	  	 	 	 	 	 	(48	) 	 	 	(513	) 	 	 	134	 	 	 	194	 	 	 	(267	) 	 	 	(500	) 	 	 	621	 	
Amortization	  	 	 	 	 	 	(446	) 	 	 	(373	) 	 	 	(512	) 	 	 	(69	) 	 	 	(1,713	) 	 	 	(3,113	) 	 	 	(3,079	) 	
Impairment losses	  	 	 	 	 	 	(42	) 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	(69	) 	 	 	(111	) 	 	 	—  	  	
Foreign currency translation effects	  	 	 	 	 	 	(1,597	) 	 	 	227	 	 	 	(214	) 	 	 	(533	) 	 	 	416	 	 	 	(1,701	) 	 	 	4,174	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at the end of period	  	Ps	 	  	 	 	25,174	 	 	 	353	 	 	 	2,256	 	 	 	1,079	 	 	 	1,684	 	 	 	30,546	 	 	 	35,971	 	

1	As of December 31, 2013 and 2012, “Others” includes the carrying amount of internal-use software of approximately Ps984 and Ps204, respectively. Capitalized direct costs incurred in the development stage of internal-use software, such as professional fees, direct labor and related travel expenses, amounted to approximately Ps562 in 2013, Ps352 in 2012 and Ps501 in 2011.	
When impairment indicators exist, for each intangible asset, CEMEX determines its projected revenue streams over the estimated useful life of the asset. In order to obtain discounted cash flows attributable to each intangible asset, such revenues are adjusted for operating expenses, changes in working capital and other expenditures, as applicable, and discounted to net present value using the risk adjusted discount rate of return. Significant management judgment is necessary to determine the appropriate valuation method and estimates under the key assumptions, among which are: a) the useful life of the asset; b) the risk adjusted discount rate of return; c) royalty rates; and d) growth rates. Assumptions used for these cash flows are consistent with internal forecasts and industry practices.
The fair values of intangible assets are very sensitive to changes in the significant assumptions used in their calculation. Certain key assumptions are more subjective than others. In respect of trademarks, CEMEX considers that the most subjective key assumption in the determination of revenue streams is the royalty rate. In respect of extraction rights and customer relationships, the most subjective assumptions are revenue growth rates and estimated useful lives. CEMEX validates its assumptions through benchmarking with industry practices and the corroboration of third party valuation advisors.
 
15B)	MAIN ACQUISITIONS AND DIVESTITURES DURING THE REPORTED PERIODS	
In August 2013, CEMEX and Holcim Ltd. (“Holcim”), a global producer of building materials based in Switzerland, reached an agreement in principle, to conduct a series of related transactions by means of which: a) in the Czech Republic, CEMEX would acquire all of Holcim’s assets, including a cement plant, four aggregates quarries and 17 ready-mix plants; b) in Germany, CEMEX would sell to Holcim its assets in the western part of the country, consisting of one cement plant, two cement grinding mills, one slag granulator, 22 aggregates quarries and 79 ready-mix plants, while CEMEX would maintain its operations in the north, east and south of the country; and c) in Spain, Holcim would contribute all its operations in the country to CEMEX España Operaciones, S.L. (“CEMEX España Operaciones”), CEMEX’s operating subsidiary in the country, in exchange for approximately 25% of the resulting combined entity’s common stock, reflecting the relative estimated fair
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Main	acquisitions and divestitures during the reported periods – continued	
 
value of the net assets to be contributed, while CEMEX would hold a 75% equity interest in CEMEX España Operaciones. As part of all the above transactions, CEMEX would receive €70 million (US$96 million) in cash, reflecting certain fair value differences between the net assets to be sold, against the contribution to be received and the net assets to be acquired, as well as the sale of certain other assets and the rendering of services during the transition process. As of December 31, 2013, the execution of the transactions are subject to various conditions precedent, including among others, negotiation of final binding agreements and the review and authorization of the European Commission and the Czech Office for the Protection of Competition (the “Authorities”), which at this stage, are pending and are expected during the third quarter of 2014. Nonetheless, CEMEX cannot predict if Authorities may extend the review period or if it would permit the transactions as proposed by CEMEX and Holcim, or if it would require certain modifications thereof. Considering that the conclusion of the aforementioned transactions are still subject to final binding agreements and that the required authorizations from the Authorities are out of the control of CEMEX and Holcim, and such approval could require changes to the proposed transaction or its withdrawal, as of December 31, 2013, the related CEMEX’s net assets in Germany were not treated as assets held for disposal.
On November 15, 2012, as described in note 20D, and giving effect to the put option granted to the initial purchasers in December 2012, CEMEX sold a non-controlling interest of 26.65% in CEMEX Latam Holdings, S.A, a direct subsidiary of CEMEX España S.A, (“CEMEX España”) for a net amount of approximately US$960 (Ps12,336).
On October 12, 2012, in a private transaction, CEMEX made the final payment in connection with the acquisition, initiated in April 2012 from third parties, of the 49% non-controlling interest in an indirect holding company of Global Cement, S.A., which on May 23, 2013 changed its name to CEMEX Guatemala, S.A., CEMEX’s main operating subsidiary in Guatemala, for a total amount including the final payment of approximately US$54 (Ps694), recognizing within “Other equity reserves” an amount of approximately US$32 (Ps411).
On May 17, 2012, through a public tender offer commenced on March 12, 2012, and after compliance with applicable regulations in the Republic of Ireland, Readymix Investments, an indirect subsidiary of CEMEX España, acquired all the shares of Readymix plc (“Readymix”), CEMEX’s main operating subsidiary in the Republic of Ireland, for €0.25 per share in cash. The acquisition price for the 38.8% non-controlling interest in Readymix was approximately €11 (US$15 or Ps187). The listing and trading of Readymix’s shares on the Irish Stock Exchange was cancelled beginning on May 18, 2012.
In 2005, CEMEX and Ready Mix USA formed two joint ventures: a) CEMEX Southeast, LLC, a joint venture that was 50.01% owned and consolidated by CEMEX, and was comprised of the Demopolis cement plant in Alabama and the Clinchfield cement plant in Georgia, with a combined annual installed capacity of 1.7 million tons, and 12 cement terminals; and b) Ready Mix USA LLC, a joint venture that was 50.01% owned and consolidated by Ready Mix USA, and was comprised of 10 sand and gravel pits, 149 concrete plants and 20 block plants located in the states of Arkansas, Mississippi, Tennessee, Alabama, Georgia, and Florida.
Starting on June 30, 2008, Ready Mix USA had the right, but not the obligation, to sell (or put) its interests in both joint ventures to CEMEX. On September 30, 2010, Ready Mix USA exercised this put option. As a result of Ready Mix USA’s exercise of its put option and after performance of the obligations by both parties under the put option agreement, on August 12, 2011, through the payment of approximately US$352 (Ps4,914), CEMEX
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Main	acquisitions and divestitures during the reported periods – continued	
 
acquired its former joint venture partner’s interests in CEMEX Southeast, LLC and Ready Mix USA, LLC, including a non-compete and a transition services agreement. In accordance with the joint venture agreements, from the date in which Ready Mix USA exercised its put option until CEMEX’s acquisition date, Ready Mix USA continued to control and manage Ready Mix USA, LLC. Nonetheless, based on IAS 27, and considering the existence of a settlement price that could have been paid any time until September 30, 2011 at CEMEX election and potential voting rights, Ready Mix USA LLC was consolidated beginning March 31, 2011. Upon consolidation, the purchase price was assigned to each joint venture proportionately to CEMEX’s relative contribution interest in CEMEX Southeast, LLC and Ready Mix USA, LLC, considering the original fair values as of the dates of the 2005 agreements. During 2011, the acquisition of the non-controlling interest in CEMEX Southeast, LLC, fully consolidated by CEMEX as of the acquisition date, and the non-controlling interest in Ready Mix USA, LLC, generated a gain of approximately US$24 (Ps316) resulting mainly to the measurement at fair value of CEMEX’s previously held equity interest in Ready Mix USA, LLC, and was recognized within “Other expenses, net.” The consolidated statement of operations for 2011 included the results of operations of Ready Mix USA, LLC for the nine-month period ended December 31, 2011. During 2012, after conclusion of the purchase price allocation, there were changes in the value of certain assets and liabilities, none of which were individually significant, which decreased the aforementioned aggregate gain on purchase by approximately US$1 (Ps13).
 
15C)	ANALYSIS OF GOODWILL IMPAIRMENT	
As of December 31, 2013 and 2012, goodwill balances allocated by operating segment were as follows:

 	  	 	 	2013	 	  	2012	 	
United States	  	Ps	 	 	111,064	 	  	 	109,326	 	
Mexico	  	 	 	 	6,399	 	  	 	6,369	 	
Northern Europe	  	 	 	 	 	 	  	 	 	 	
United Kingdom	  	 	 	 	4,559	 	  	 	4,462	 	
France	  	 	 	 	3,638	 	  	 	3,451	 	
Czech Republic 	  	 	 	 	428	 	  	 	419	 	
Mediterranean	  	 	 	 	 	 	  	 	 	 	
Spain	  	 	 	 	8,845	 	  	 	8,660	 	
United Arab Emirates	  	 	 	 	1,370	 	  	 	1,339	 	
Egypt	  	 	 	 	231	 	  	 	231	 	
SA&C	  	 	 	 	 	 	  	 	 	 	
Colombia	  	 	 	 	5,289	 	  	 	5,510	 	
Dominican Republic	  	 	 	 	215	 	  	 	201	 	
Rest of SA&C 1	  	 	 	 	743	 	  	 	733	 	
Asia	  	 	 	 	 	 	  	 	 	 	
Philippines	  	 	 	 	1,317	 	  	 	1,389	 	
Others	  	 	 	 	 	 	  	 	 	 	
Other reporting units2	  	 	 	 	359	 	  	 	354	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	144,457	 	  	 	142,444	 	

1	This caption refers to the operating segments in the Caribbean, Argentina, Costa Rica and Panama.	
2	This caption is primarily associated with Neoris N.V., CEMEX’s subsidiary involved in the sale of information technology solutions and services.	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Analysis	of goodwill impairment – continued	
 
The geographic operating segments reported by CEMEX (note 4) represent CEMEX’s groups of CGUs to which goodwill has been allocated for purposes of testing goodwill for impairment. Correspondingly, each of CEMEX’s geographic operating segments is comprised of CEMEX’s operations in a country. Each country or operating segment is, in turn, comprised of a lower level of cash-generating units, which are not larger than an operating segment, identified by CEMEX as geographical zones within the country in which all main business activities are conducted. For purposes of goodwill impairment tests, all cash-generating units within a country are aggregated, as goodwill is allocated at that level. In order to arrive at these conclusions, CEMEX evaluated: a) that after the acquisition, goodwill is allocated at the level of the reportable operating segment and represents the lowest level within CEMEX at which goodwill is monitored for internal management purposes and reflects the way CEMEX manages its operations and allocates resources; b) that the cash-generating units that comprise the reported segment have similar economic characteristics; c) that the reported segments are used by CEMEX to organize and evaluate its activities in its internal information systems; d) the homogeneous nature of the items produced and traded in each cash-generating unit, which are all used by the construction industry; e) the vertical integration in the value chain of the products comprising each component; f) the type of clients, which are substantially similar in all components; g) the operative integration among components; and h) that the compensation system of a specific country is based on the consolidated results of the geographic operating segment and not on the particular results of the components. Considering materiality for disclosure purposes, in note 15C, certain balances of goodwill were presented for Rest of Northern Europe or Rest of South America and the Caribbean, but this does not represent that goodwill was tested at a level higher than for operations in an individual country.
Impairment tests are significantly sensitive to, among other factors, the estimation of future prices of CEMEX’s products, the development of operating expenses, local and international economic trends in the construction industry, the long-term growth expectations in the different markets, as well as the discount rates and the long-term growth rates applied. CEMEX’s cash flow projections to determine the value in use of its CGUs to which goodwill has been allocated consider the use of long-term economic assumptions. CEMEX believes that its discounted cash flow projections and the discount rates used reasonably reflect current economic conditions at the time of the calculations, considering, among other factors that: a) the cost of capital reflects current risks and volatility in the markets; and b) the cost of debt represents the average of industry specific interest rates observed in recent transactions. Other key assumptions used to determine CEMEX’s discounted cash flows are volume and price increases or decreases by main product during the projected periods. Volume increases or decreases generally reflect forecasts issued by trustworthy external sources, occasionally adjusted based on CEMEX’s actual backlog, experience and judgment considering its concentration in certain sectors, while price changes normally reflect the expected inflation in the respective country. Operating costs and expenses during all periods are maintained as a fixed percent of revenues considering historic performance.
During the last quarter of 2013, 2012 and 2011, CEMEX performed its annual goodwill impairment test. Based on these analyses, in 2013 and 2012 CEMEX did not determine impairment losses of goodwill, whereas, in 2011, CEMEX determined impairment losses of goodwill for approximately Ps145 (US$12), associated with CEMEX’s groups of CGUs to which goodwill has been allocated in Latvia representing 100% of the goodwill balance associated with such country. The estimated impairment loss was mainly attributable to market dynamics in this country and its position in the business economic cycle, generating that the net book value exceeded its respective recoverable amount.
 
F-47

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Analysis	of goodwill impairment – continued	
 
As of December 31, 2013, 2012 and 2011, CEMEX’s pre-tax discount rates and long-term growth rates used to determine the discounted cash flows in the group of CGUs with the main goodwill balances, were as follows:

 	 	Discount rates	 	Growth rates	
Groups of CGUs	 	2013	 	2012	 	2011	 	2013	 	2012	 	2011	
United States	 	9.8%	 	9.9%	 	10.7%	 	2.5%	 	2.5%	 	2.5%	
Spain	 	11.4%	 	11.5%	 	12.0%	 	2.3%	 	2.5%	 	2.5%	
Mexico	 	10.9%	 	10.7%	 	11.4%	 	3.8%	 	3.0%	 	2.5%	
Colombia	 	10.9%	 	10.7%	 	11.6%	 	4.2%	 	3.5%	 	2.5%	
France	 	10.7%	 	10.3%	 	11.5%	 	1.7%	 	1.9%	 	2.5%	
United Arab Emirates	 	12.2%	 	13.3%	 	13.9%	 	3.4%	 	3.6%	 	2.5%	
United Kingdom	 	10.5%	 	10.3%	 	11.0%	 	2.1%	 	2.7%	 	2.5%	
Egypt	 	13.0%	 	13.5%	 	13.0%	 	4.0%	 	4.0%	 	2.5%	
Range of discount rates in other countries	 	11.0% – 12.3%	 	11.1% – 13.3%	 	11.8% – 14.0%	 	2.4% – 5.0%	 	3.4% – 4.0%	 	2.5%	
As of December 31, 2013, the discount rates used by CEMEX in its cash flows projections changed slightly from the values determined in 2012, in each case, mainly as a result of variations in the country specific sovereign yield as compared to the prior year. In respect to long-term growth rates, following general practice under IFRS, beginning in 2012, CEMEX started the use of country specific rates, which are mainly obtained from the Consensus Economics, a compilation of analyst´ forecast worldwide, or from the International Monetary Fund when the first are not available for a specific country.
In connection with CEMEX’s assumptions included in the table above, CEMEX made sensitivity analyses to changes in assumptions, affecting the value in use of all groups of CGUs with an independent reasonable possible increase of 1% in the pre-tax discount rate, and an independent possible decrease of 1% in the long-term growth rate. In addition, CEMEX performed cross-check analyses for reasonableness of its results using multiples of Operating EBITDA. In order to arrive at these multiples, which represent a reasonableness check of CEMEX’s discounted cash flow model, CEMEX determined a weighted average of multiples of Operating EBITDA to enterprise value observed in the industry. The average multiple was then applied to a stabilized amount of Operating EBITDA and the result was compared to the corresponding carrying amount for each group of CGUs to which goodwill has been allocated. As of December 31, 2013 and 2012, CEMEX considered an industry weighted average Operating EBITDA multiple of approximately 10.3 times, in both periods. CEMEX’s own Operating EBITDA multiple as of the same dates was 11.6 times in 2013 and 10.6 times in 2012. The lowest multiple observed in CEMEX’s benchmark as of December 31, 2013 and 2012 was 7.2 times, in both periods, and the highest being 20.9 times and 21.3 times, respectively.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Analysis	of goodwill impairment – continued	
 
As of December 31, 2013, none of CEMEX’s sensitivity analyses resulted in a relative impairment risk in CEMEX´s operating segments. As of December 31, 2012, the impairment charges resulting from the sensitivity analyses that would have resulted from an independent change of each one of the variables and/or by the use of multiples of Operating EBITDA, regarding the operating segment that presented a relative impairment risk, would have been as follows:

As of December 31, 2012	  	 	 	Sensitivity analysis of described change in assumptions	 	  	 	 	
(Amounts in millions)	  	 	 	Recognized impairment
charges	 	  	Discount rate
+ 1pt	 	  	Long-term
growth rate - 1pt	 	  	Multiples of
Operating EBITDA	 	
Spain	  	US$	 	 	—  	  	  	 	99	 	  	 	—  	  	  	 	39	 	
United Arab Emirates	  	 	 	 	—  	  	  	 	8	 	  	 	—  	  	  	 	—  	  	
Nonetheless, CEMEX will continue to monitor the evolution of the specific CGUs to which goodwill has been allocated that have presented relative goodwill impairment risk in any of the reported periods and, in the event that the relevant economic variables and the related cash flows projections would be negatively affected, it may result in a goodwill impairment loss in the future.
CEMEX maintains a market capitalization significantly lower than its levels prior to the 2008 global crisis, which CEMEX believes is due to factors such as: a) the contraction of the global construction industry and mainly in the United States, which has experienced a continued slow recovery after the crisis of 2008, that has significantly affected CEMEX’s operations in such country and consequently its overall generation of cash flows; b) CEMEX’s significant amount of consolidated debt and its operation since August 2009 under the Financing Agreement as refinanced by the Facilities Agreement (note 16A), has also significantly affected CEMEX’s valuation, considering the high uncertainty perceived by stakeholders regarding CEMEX’s odds of successfully achieving the different milestones established with its main creditors; and c) the transfer of capital during the last few years, mainly due to high volatility generated by continued liquidity problems in certain European countries, from variable income securities in developing countries such as Mexico to fixed income securities in developed countries such as the United States. The market price of CEMEX’s CPO has recovered significantly after CEMEX entering into the Facilities Agreement in September 2012. In dollar terms, CEMEX’s market capitalization increased by approximately 91% in 2012 compared to 2011, to approximately US$10.8 billion (Ps138.5 billion), and further increased approximately 25% in 2013 compared to 2012 to approximately US$ 13.5 billion (Ps176.1 billion),
Goodwill allocated to the United States accounted for approximately 77% of CEMEX’s total amount of consolidated goodwill as of December 31, 2013 and 2012. In connection with CEMEX’s determination of value in use relative to its groups of CGUs in the United States as of December 31, 2013 and 2012, CEMEX has considered several factors, such as the historical performance of such operating segment, including operating losses in recent years, the long-term nature of CEMEX’s investment, the recent signs of recovery in the construction industry, the significant economic barriers for new potential competitors considering the high investment required, and the lack of susceptibility of the industry to technology improvements or alternate construction products, among other factors. CEMEX has also considered recent developments in its operations in the United States, such as the increases in ready-mix concrete volumes of approximately 8% in 2013, 20% in 2012 and 7% in 2011, and the increases in ready-mix concrete prices of approximately 6% in 2013, 4% in 2012 and 3% in 2011, which are key drivers for cement consumption and CEMEX’s profitability, and which trends are expected to continue over the next few years, as anticipated in CEMEX’s cash flow projections.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Analysis	of goodwill impairment – continued	
 
In addition, as mentioned above, CEMEX performed a reasonableness test of the estimated value in use by performing a sensitivity analysis on key cash flow assumptions, and estimated the recoverable amount by using the method of multiples of Operating EBITDA.
Based on the above, considering economic assumptions that were verified for reasonableness with information generated by external sources, to the extent available, the value in use of the CEMEX’s operating segment in the United States exceeded the respective carrying amount for goodwill impairment test purposes as of December 31, 2013 and 2012. The additional sensitivity analyses were as follows:

Excess of value in use over carrying amount	  	 	 	 	2013	 	  	2012	 	
Basic test	  	US$	 	  	 	 	5,275	 	  	 	3,933	 	
Sensitivity to plus 1 percent point in discount rate	  	 	 	 	 	 	1,131	 	  	 	1,390	 	
Sensitivity to minus 1 percent point in long-term growth	  	 	 	 	 	 	2,263	 	  	 	2,574	 	
Excess of multiples of Operating EBITDA over carrying amount	  	 	 	 	 	 	1,878	 	  	 	1,106	 	
As of December 31, 2013 and 2012, CEMEX considers that its combination of discount rate and long-term growth rate applied in the base model for its group of CGUs in the United States to which goodwill has been allocated reflect the particular risk factors existing as of the date of analysis.
 
16)	FINANCIAL INSTRUMENTS	
 
16A)	SHORT-TERM AND LONG-TERM DEBT	
As of December 31, 2013 and 2012, CEMEX´s consolidated debt summarized by interest rates and currencies, was as follow:

 	  	 	 	2013	 	  	 	 	2012	 	
 	  	 	 	Short-Term	 	 	Long-Term	 	 	Total	 	  	 	 	Short-Term	 	 	Long-Term	 	 	Total	 	
Floating rate debt	  	Ps	 	 	82	 	 	 	70,707	 	 	 	70,789	  	  	Ps	 	 	81	 	 	 	62,664	 	 	 	62,745	 	
Fixed rate debt	  	 	 	 	3,877	 	 	 	116,314	 	 	 	120,191	 	  	 	 	 	515	 	 	 	114,875	 	 	 	115,390	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	3,959	 	 	 	187,021	 	 	 	190,980	  	  	Ps	 	 	596	 	 	 	177,539	 	 	 	178,135	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Effective rate 1	  	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	
Floating rate	  	 	 	 	3.9	% 	 	 	4.9	% 	 	 	 	 	  	 	 	 	5.5	% 	 	 	5.2	% 	 	 	 	 	
Fixed rate	  	 	 	 	4.7	% 	 	 	8.5	% 	 	 	 	 	  	 	 	 	4.7	% 	 	 	9.0	% 	 	 	 	 	

 	 	 	 	2013	 	 	 	 	2012	 	
Currency	 	 	 	Short-term	 	 	Long-term	 	 	Total	 	 	Effective rate 1	 	 	 	 	Short-Term	 	 	Long-Term	 	 	Total	 	 	Effective rate 1	 	
Dollars	 	Ps	 	 	125	 	 	 	163,632	 	 	 	163,757	 	 	 	7.2	% 	 	Ps	 	 	486	 	 	 	144,582	 	 	 	145,068	 	 	 	7.8	% 	
Euros	 	 	 	 	3,765	 	 	 	20,895	 	 	 	24,660	 	 	 	6.2	% 	 	 	 	 	46	 	 	 	30,461	 	 	 	30,507	 	 	 	5.9	% 	
Pesos	 	 	 	 	—  	  	 	 	2,413	 	 	 	2,413	 	 	 	7.4	% 	 	 	 	 	15	 	 	 	2,392	 	 	 	2,407	 	 	 	8.8	% 	
Other currencies	 	 	 	 	69	 	 	 	81	 	 	 	150	 	 	 	4.7	% 	 	 	 	 	49	 	 	 	104	 	 	 	153	 	 	 	4.6	% 	
 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	Ps	 	 	3,959	 	 	 	187,021	 	 	 	190,980	 	 	 	 	 	 	Ps	 	 	596	 	 	 	177,539	 	 	 	178,135	 	 	 	 	 	

1	Represents the weighted average effective interest rate.	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Short-term	and long-term debt – continued	
 
As of December 31, 2013 and 2012, CEMEX´s consolidated debt summarized by type of instrument, was as follow:

2013	  	 	 	Short-
term	 	  	Long-
term	 	 	2012	  	 	 	Short-
term	 	  	Long-
term	 	
Bank loans	  	 	 	 	 	 	  	 	 	 	 	Bank loans	  	 	 	 	 	 	  	 	 	 	
Loans in Mexico, 2014 to 2017	  	Ps	 	 	—  	  	  	 	1,090	 	 	Loans in Mexico, 2013 to 2014	  	Ps	 	 	—  	  	  	 	1,088	  	
Loans in foreign countries, 2014 to 2018	  	 	 	 	6	 	  	 	1,234	 	 	Loans in foreign countries, 2013 to 2018	  	 	 	 	2	  	  	 	3,770	  	
Syndicated loans, 2014 to 2017	  	 	 	 	—  	  	  	 	53,102	 	 	Syndicated loans, 2013 to 2014	  	 	 	 	—  	  	  	 	49,972	  	
 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	
 	  	 	 	 	6	 	  	 	55,426	 	 	 	  	 	 	 	2	  	  	 	54,830	  	
 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	
Notes payable	  	 	 	 	 	 	  	 	 	 	 	Notes payable	  	 	 	 	 	 	  	 	 	 	
Notes payable in Mexico, 2014 to 2017	  	 	 	 	—  	  	  	 	589	  	 	Notes payable in Mexico, 2013 to 2017	  	 	 	 	—  	  	  	 	568	  	
Medium-term notes, 2014 to 2022	  	 	 	 	—  	  	  	 	132,702	 	 	Medium-term notes, 2013 to 2020	  	 	 	 	—  	  	  	 	120,535	  	
Other notes payable, 2014 to 2025	  	 	 	 	87	 	  	 	2,170	  	 	Other notes payable, 2013 to 2025	  	 	 	 	80	  	  	 	2,120	  	
 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	
 	  	 	 	 	87	 	  	 	135,461	 	 	 	  	 	 	 	80	  	  	 	123,223	 	
 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	
Total bank loans and notes payable	  	 	 	 	93	 	  	 	190,887	 	 	Total bank loans and notes payable	  	 	 	 	82	  	  	 	178,053	  	
Current maturities	  	 	 	 	3,866	 	  	 	(3,866	) 	 	Current maturities	  	 	 	 	514	  	  	 	(514	) 	
 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	3,959	 	  	 	187,021	  	 	 	  	Ps	 	 	596	  	  	 	177,539	  	
 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	 	 	  	 	 	 	
Changes in consolidated debt for the years ended December 31, 2013, 2012 and 2011 were as follows:

 	  	 	 	2013	 	 	2012	 	 	2011	 	
Debt at beginning of year	  	Ps	 	 	178,135	 	 	 	208,471	 	 	 	194,394	 	
Proceeds from new debt instruments	  	 	 	 	40,661	 	 	 	33,468	 	 	 	33,591	 	
Debt repayments	  	 	 	 	(31,913	) 	 	 	(52,699	) 	 	 	(44,368	) 	
Issuance of debt in exchange for perpetual notes	  	 	 	 	—  	  	 	 	4,123	 	 	 	1,491	 	
Increase (decrease) from business combinations	  	 	 	 	—  	  	 	 	—  	  	 	 	1,352	 	
Foreign currency translation and inflation effects	  	 	 	 	4,097	 	 	 	(15,228	) 	 	 	22,011	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Debt at end of year	  	Ps	 	 	190,980	 	 	 	178,135	 	 	 	208,471	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
The most representative exchange rates for the financial debt are as follows:

 	  	April 24, 2014	 	  	2013	 	  	2012	 	  	2011	 	
Mexican pesos per dollar	  	 	13.10	  	  	 	13.05	 	  	 	12.85	 	  	 	13.96	 	
Euros per dollar	  	 	0.7230	  	  	 	0.7268	 	  	 	0.7576	 	  	 	0.7712	 	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Short-term	and long-term debt – continued	
 
The maturities of consolidated long-term debt as of December 31, 2013, were as follows:

 	  	 	 	2013	 	
2015	  	Ps	 	 	9,928	 	
2016	  	 	 	 	55	 	
2017	  	 	 	 	60,194	 	
2018	  	 	 	 	34,236	 	
2019 and thereafter.	  	 	 	 	82,608	 	
 	  	 	 	 	 	 	
 	  	Ps	 	 	187,021	 	
 	  	 	 	 	 	 	
As of December 31, 2013, CEMEX had the following lines of credit, the majority of which are subject to the banks’ availability, at annual interest rates ranging between 2.25% and 8.33%, depending on the negotiated currency:

 	  	 	 	Lines of credit	 	  	Available	 	
Other lines of credit in foreign subsidiaries	  	Ps	 	 	6,441	 	  	 	4,892	 	
Other lines of credit from banks	  	 	 	 	3,712	 	  	 	3,676	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	10,153	 	  	 	8,568	 	

Relevant	 	debt transactions during 2013, 2012 and 2011	
On December 14, 2013, subsequent to the tender offers of September 25 described below, CEMEX S.A.B. de C.V. completed the redemption of all of the outstanding US$355 principal amount of 9.50% Senior Secured Notes due 2016 (the “2016 Notes”) and the redemption of approximately €39 of the outstanding €169 aggregate principal amount of 9.625% Senior Secured Notes due 2017 (the “2017 Notes”), both issued by CEMEX Finance LLC, its indirect subsidiary. CEMEX redeemed the 2016 Notes at a price of 1,047.50 dollars per 1 thousand dollars principal amount of 2016 Notes redeemed, or approximately US$372 in total, and redeemed the 2017 Notes at a price of 1,048.125 euros per 1 thousand euros principal amount of 2017 Notes redeemed, or approximately €41 in total. CEMEX did not incur any early termination penalties in connection with the redemption of the 2016 Notes or 2017 Notes beyond the premium reflected in the redemption price described above.
On September 25, 2013, in connection with the proceeds obtained from the issuance of US$1.5 billion combined aggregate principal amount of the New Notes described below, CEMEX commenced independent tender offers to purchase any and all of US$825 aggregate principal amount outstanding of the 2016 Notes and to purchase up to €150 of the €350 aggregate principal amount outstanding of the 2017 Notes. The remainder was used for general corporate purposes, including to repay at maturity the 4.75% Notes due 2014, issued by CEMEX Finance Europe B.V., and/or to repay its other indebtedness. The cap amount on the 2017 Notes tender offer was further increased on October 3, 2013 to €220, while all other terms and conditions of the offer remained unchanged. The tender offers expired on October 23, 2013 and resulted in the purchase of approximately US$470 principal amount of 2016 Notes and approximately €181 principal amount of 2017 Notes. Holders whose 2016 Notes and 2017 Notes tendered were accepted for purchased received a base compensation of 32.50 dollars per 1 thousand dollars principal amount of 2016 Notes and 33.50 euros per 1 thousand euros principal amount of 2017 Notes, respectively, of which, those holders of the 2016 Notes and the 2017 Notes that tendered at or prior to 5:00 p.m.,
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Relevant debt transactions during 2013, 2012 and 2011 – continued
 
New York City time, on October 8, 2013, received an additional early tender payment of 30 dollars per 1 thousand dollars principal amount of 2016 Notes and of 30 euros per 1 thousand euros principal amount of 2017 Notes, respectively. As a result of the tender offers of the 2016 Notes and the 2017 Notes, CEMEX paid a combined amount of premiums, including fees and costs incurred during the tender offers of approximately US$45 (Ps591), of which, approximately US$32 (Ps418) associated with the portion of the 2016 Notes and the 2017 Notes that were extinguished in accordance with IFRS were recognized in the statement of operations in 2013 as part of the financial expense, net. Moreover, proportional fees and costs related to the issuance of the 2016 Notes and the 2017 Notes for approximately US$1 (Ps14) that were pending for amortization were recognized in the statement of operations in 2013 as part of financial expense. In addition, approximately US$13 (Ps173), corresponding to the portion of the premium of the 2016 Notes tendered that were treated as a refinancing under IFRS by considering that: a) the relevant economic terms of the Fixed Rate Notes and the 2016 Notes were not substantially different; and b) final holders of the Fixed Rate Notes were the same of such portion of the 2016 Notes, adjusted the carrying amount of the Fixed Rate Notes, and such amount, together with any remaining costs pending for amortization relative to the 2016 Notes and the 2017 Notes will be amortized over the remaining term of each instrument. Giving effect to the results of the tender offers, the principal amounts the outstanding of the 2016 Notes and the 2017 Notes were approximately US$355 and €169 (US$232), respectively.
On September 25, 2013, CEMEX announced the issuance of US$1.0 billion of 7.25% senior secured notes due in January 2021 (the “Fixed Rate Notes”) and US$400 of floating rate senior secured notes due in October 2018 (the “Floating Rate Notes” and, together with the Fixed Rate Notes, the “New Notes”) denominated in U.S. dollars. On September 27, CEMEX announced the issuance of US$100 additional Floating Rate Notes, which are also part of the New Notes. The Fixed Rate Notes were issued at par and are callable commencing on January 15, 2018. The Floating Rate Notes bear interest at a floating rate equal to three-month LIBOR plus 4.75% (475 basis points) and are callable all, but not less than all, at any day after the interest payment date immediately preceding the maturity date. The closing of the offerings occurred on October 2, 2013, after satisfaction of customary closing conditions. The New Notes share the collateral pledged for the benefit of the lenders under CEMEX’s Facilities Agreement, dated as of September 17, 2012, and other secured obligations having the benefit of such collateral, and are guaranteed by CEMEX México, S.A. de C.V., CEMEX Concretos, S.A. de C.V., Empresas Tolteca de México, S.A. de C.V., New Sunward Holding B.V., CEMEX España, Cemex Asia B.V., CEMEX Corp., Cemex Egyptian Investments B.V., Cemex Egyptian Investments II B.V., CEMEX France Gestion (S.A.S.), Cemex Research Group AG, Cemex Shipping B.V. and CEMEX UK. Fees and costs related to the issuance of the New Notes for approximately US$6 (Ps78) adjusted the carrying amount of such facilities, and such amount is amortized over the remaining term of each instrument.
On August 5, 2013, in connection with the issuance of US$1.0 billion principal amount of the 2019 Notes described below, CEMEX commenced a tender offer to purchase up to US$925 of the then outstanding 2016 Notes. The tender offer expired on August 30, 2013 and resulted in the purchase of US$925 principal amount of 2016 Notes. Holders whose 2016 Notes tendered were accepted for purchase received a base compensation of 45 dollars per 1 thousand dollars principal amount of 2016 Notes, of which, those holders of the 2016 Notes that tendered at or prior to 5:00 p.m., New York City time, on August 16, 2013, received an additional early tender payment of 30 dollars per 1 thousand dollars principal amount of 2016 Notes. As a result of this tender offer of the 2016 Notes, CEMEX paid a total, including fees and costs incurred during the tender offer of approximately US$70 (Ps917), of which, approximately US$52 (Ps678) associated with the portion of the 2016 Notes that were extinguished in accordance with IFRS were recognized in the statement of operations in 2013 as part of financial expense. Moreover, proportional fees and costs related to the issuance of the 2016 Notes for approximately US$2 (Ps21) that were pending for amortization were recognized in the statement of operations in 2013 as part of
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Relevant debt transactions during 2013, 2012 and 2011 – continued
 
financial expense. In addition, approximately US$18 (Ps239), corresponding to the portion of the premium of the 2016 Notes tendered that were treated as a refinancing under IFRS by considering that: a) the relevant economic terms of the 2019 Notes and the 2016 Notes were not substantially different; and b) the final holders of the 2019 Notes were the same of such portion of the 2016 Notes, adjusted the carrying amount of the 2019 Notes, and such amount, together with any remaining costs pending for amortization relative to the 2016 Notes are amortized over the remaining term of the 2019 Notes.
On August 5, 2013, CEMEX announced the issuance of US$1.0 billion of 6.5% senior secured notes due in December 2019 (the “December 2019 Notes”) denominated in U.S. dollars. The 2019 Notes were issued at par and are callable commencing on December 10, 2017. The closing of the offering occurred on August 12, 2013, after satisfaction of customary closing conditions. The December 2019 Notes share the collateral pledged for the benefit of the lenders under CEMEX’s Facilities Agreement, dated as of September 17, 2012, and other secured obligations having the benefit of such collateral, and are guaranteed by CEMEX México, S.A. de C.V., CEMEX Concretos, S.A. de C.V., Empresas Tolteca de México, S.A. de C.V., New Sunward Holding B.V., CEMEX España, Cemex Asia B.V., CEMEX Corp., Cemex Egyptian Investments B.V., Cemex Egyptian Investments II B.V., CEMEX France Gestion (S.A.S.), Cemex Research Group AG, Cemex Shipping B.V. and CEMEX UK. CEMEX used approximately US$996 of net proceeds from the offering to purchase US$925 of the 2016 Notes as described above, and the remainder for general corporate purposes, including the repayment of other indebtedness. Fees and costs related to the issuance of the December 2019 Notes for approximately US$4 (Ps52) adjusted the carrying amount of such facility and are amortized over the remaining term of the December 2019 Notes.
On March 14, 2013, CEMEX announced the issuance of US$600 of 5.875% senior secured notes due in March 2019 (the “March 2019 Notes”) denominated in U.S. dollars. The March 2019 Notes were issued at par and are callable commencing on March 25, 2016. The closing of the offering occurred on March 25, 2013, after satisfaction of customary closing conditions. The March 2019 Notes share the collateral pledged for the benefit of the lenders under CEMEX’s Facilities Agreement, dated as of September 17, 2012, and other secured obligations having the benefit of such collateral, and are guaranteed by CEMEX México, S.A. de C.V., CEMEX Concretos, S.A. de C.V., Empresas Tolteca de México, S.A. de C.V., New Sunward Holding B.V., CEMEX España, CEMEX Asia B.V., CEMEX Corp., CEMEX Egyptian Investments B.V., CEMEX Egyptian Investments II B.V., CEMEX France Gestion (S.A.S.), CEMEX Research Group AG, CEMEX Shipping B.V. and CEMEX UK. CEMEX used approximately US$596 of net proceeds from the offering for the repayment of US$55 of the remaining indebtedness under CEMEX’s 2009 Financing Agreement, dated August 2009, as amended, the purchase of €183 of 4.75% Notes due in 2014, issued by CEMEX Finance Europe B.V., and the remainder for general corporate purposes, including the repayment of other indebtedness. Fees and costs related to the issuance of the March 2019 Notes for approximately US$4 (Ps47) adjusted the carrying amount of such facility and are amortized over the remaining term of the March 2019 Notes.
On September 17, 2012, CEMEX concluded the refinancing process of a substantial portion of its then outstanding debt under the Financing Agreement, as amended on several dates during 2009, 2010, 2011 and finally on September 17, 2012 (the “Financing Agreement”), with the completion of the Exchange Offer on September 17, 2012, as further described in this note 16.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Relevant debt transactions during 2013, 2012 and 2011 – continued
 
On September 17, 2012, in connection with the Facilities Agreement described elsewhere in this note 16A, CEMEX issued US$500 aggregate principal amount of 9.5% senior secured notes due in 2018 (the “September 2012 Notes”). The September 2012 Notes were issued in exchange for loans and private placements outstanding under the Financing Agreement.
On October 12, 2012, through its subsidiary CEMEX Finance LLC, CEMEX closed the offering of US$1,500 aggregate principal amount of 9.375% senior secured notes due in 2022 (the “October 2012 Notes”). The October 2012 Notes, which were issued at par and will be callable commencing on their 5th anniversary, are unconditionally guaranteed by CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., CEMEX España, New Sunward Holding B.V., CEMEX Concretos, S.A. de C.V., CEMEX Corp. and Empresas Tolteca de México, S.A. de C.V., as well as by CEMEX Research Group AG, CEMEX Shipping B.V., CEMEX Asia B.V., CEMEX France Gestion (S.A.S.), CEMEX UK, and CEMEX Egyptian Investments B.V. ( jointly the “New Guarantors”), which also guarantee debt under the Facilities Agreement. The net proceeds from the offering, approximately US$1,489, were used to repay indebtedness under the Facilities Agreement, which allowed CEMEX to achieve the first debt repayment milestone of March 2013 and the reduction in the interest rate under such agreement by 25 basis points, as detailed in other section of this note 16A.
On March 23, 2012, through several exchange offers made on a private placement basis by CEMEX España’s Luxembourg branch, CEMEX finalized the issuance of: a) approximately €179 aggregate principal amount of 9.875% Euro-denominated senior secured notes due 2019; and b) approximately US$704 aggregate principal amount of 9.875% Dollar-denominated senior secured notes due 2019 (collectively, the “March 2012 Notes”), in exchange for approximately €470, or 53%, of its then outstanding Euro-denominated 4.75% notes due 2014, and approximately US$452, or 48%, in several series of its then aggregate outstanding perpetual debentures (note 20D). The March 2012 Notes are unconditionally guaranteed by CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., New Sunward Holding B.V. and the New Guarantors and share the same collateral that secures the Facilities Agreement and other senior secured debt having the benefit of such collateral. As a result of the private exchanges, CEMEX generated in 2012 a gain of approximately US$131 (Ps1,680), representing the difference between the notional amount of the March 2012 Notes, and the several series of the reacquired and cancelled perpetual debentures, which was recognized within “Other equity reserves.”
During December 2011, CEMEX exchanged through market transactions a financial assets held in its portfolio of long-term investments for perpetual debentures and debt instruments issued by CEMEX subsidiaries. In addition, during the same month, CEMEX received from a third party, as a settlement of an account receivable, the equity interest of an entity whose assets where mainly comprised by perpetual debentures and debt instruments issued by CEMEX subsidiaries. As a result, as of December 31, 2011, CEMEX cancelled in its balance sheet a portion of several series of its subsidiaries’ debt instruments, held by the newly acquired entity and its other subsidiaries, for an aggregate notional amount of approximately Ps977, as well as portions of several series of perpetual debentures (note 20D) for an aggregate notional amount of approximately Ps3,029, among others. Considering the difference between the fair value of the instruments and their notional amount, as part of this cancellation, CEMEX recognized in 2011 a gain, net of certain commissions, of approximately Ps1,630, of which, approximately Ps239 associated with CEMEX’s debt instruments, was recognized within other expenses, net, and approximately Ps1,391 associated with the perpetual debentures, was recognized in stockholders’ equity as part of other equity reserves.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Relevant debt transactions during 2013, 2012 and 2011 – continued
 
On July 11, 2011, CEMEX, S.A.B. de C.V. closed the reopening of the January 2011 Notes, described below, and issued US$650 aggregate principal amount of additional notes at 97.616% of face value plus any accrued interest. CEMEX used the net proceeds from the reopening for general corporate purposes and the repayment of debt, including debt under the Financing Agreement.
On April 5, 2011, CEMEX, S.A.B. de C.V. closed the offering of US$800 aggregate principal amount of floating rate senior secured notes due in 2015 (the “April 2011 Notes”), which were issued at 99.001% of face value. The April 2011 Notes bear interest at a floating rate equal to three-month LIBOR plus 5% (500 basis points) and are callable all, but not less than all, at any day after the first interest payment date immediately preceding the maturity date. The April 2011 Notes are unconditionally guaranteed by CEMEX México, S.A. de C.V., New Sunward Holding B.V., CEMEX España and the New Guarantors. The net proceeds from the offering, approximately US$788, were used to repay indebtedness under the Financing Agreement.
On March 4, 2011, a CEMEX subsidiary closed a private exchange transaction whereby it exchanged approximately €119 aggregate principal amount of 6.277% perpetual debentures for approximately US$125 (Ps1,491) aggregate principal amount of new 9.25% Dollar-denominated senior secured notes due 2020, described below. As a result of the private exchange, approximately €119 in aggregate principal amount of the 6.277% Perpetual Debentures were cancelled, generating in 2011 a gain of approximately Ps446, representing the difference between the notional amount of the reacquired perpetual debentures and the new senior secured notes, which was recognized within “Other equity reserves.”
On January 11, 2011, CEMEX, S.A.B. de C.V. closed the offering of US$1,000 aggregate principal amount of its 9.0% senior secured notes due in 2018 (the “January 2011 Notes”), which were issued at 99.364% of face value, and are callable beginning on their fourth anniversary. The January 2011 Notes share the collateral pledged to the lenders under the Facilities Agreement and other senior secured indebtedness having the benefit of such collateral, and are guaranteed by CEMEX México, S.A. de C.V., New Sunward Holding B.V., CEMEX España and the New Guarantors.
 
Facilities	 	Agreement and Financing Agreement	
On August 14, 2009, CEMEX, S.A.B. de C.V. and certain subsidiaries entered into the original Financing Agreement with its major creditors, by means of which the maturities of approximately US$14,961 (Ps195,839) (amount determined in accordance with the contracts) of syndicated and bilateral loans, private placement notes and other obligations were extended, providing for a semi-annual amortization schedule. The Financing Agreement is guaranteed by CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., New Sunward Holding B.V., CEMEX España, CEMEX Concretos, S.A. de C.V., CEMEX Corp., CEMEX Inc., CEMEX Finance LLC and Empresas Tolteca de México, S.A. de C.V. As of December 31, 2011, after the application of the proceeds from several refinancing transactions, the application of the net proceeds obtained from the sale of assets, and an equity offering of CEMEX, S.A.B. de C.V. in 2009, the remaining debt balance under the Financing Agreement was approximately US$7,195 (Ps100,442). Considering certain prepayments by December 31, 2011 of debt under the Financing Agreement, CEMEX avoided an increase in the interest rate of debt under such agreement of 0.5%. Until its maturity, the Financing Agreement did not provide for any further increases in the interest rate associated with a certain amount of prepayments.
On September 17, 2012, CEMEX completed a refinancing process of a substantial portion of its then outstanding debt under the Financing Agreement, as amended on several dates, with a then outstanding balance of
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Facilities Agreement and Financing Agreement – continued
 
approximately US$7,195, with payments due of approximately US$488 in December 2013 and US$6,707 at final maturity in February 2014. Pursuant to CEMEX’s exchange proposal (the “Exchange Offer”), creditors were invited to exchange their existing exposures under the existing Financing Agreement into one or a combination of the following instruments: a) new loans (“New Loans”) or private placement notes (“New USPP Notes”), as applicable, or b) up to US$500 in new 9.5% notes (the “September 2012 Notes”) to be issued by CEMEX maturing in June 2018, having terms substantially similar to those of senior secured notes previously issued by CEMEX, S.A.B. de C.V. and/or its subsidiaries. The September 2012 Notes were allocated pro rata to the participating creditors of the Financing Agreement in the Exchange Offer that elected to receive the September 2012 Notes in the Exchange Offer. Financing Agreement creditors accepting certain amendments, including the elimination of the benefit of the security package among others, received an amendment fee of 20 basis points (“bps”) calculated on the amount of their existing exposures under such agreement.
Pursuant to the Exchange Offer, participating creditors representing approximately 92.7% of the aggregate principal amount of debt outstanding under the existing Financing Agreement agreed exchange their existing loans and private placement notes and to receive in place thereof: a) approximately US$6,155 in aggregate principal amount of New Loans with an initial interest rate of LIBOR plus 525 bps (subject to decrease depending on certain prepayments), and new USPP Notes with an initial interest rate of 9.66% (subject to decrease depending on certain prepayments), issued pursuant to a new agreement (the “Facilities Agreement”) dated as of September 17, 2012, and with a final maturity on February 14, 2017, and an exchange fee of 80 bps calculated on the amount of their existing exposures under the Financing Agreement that were exchanged and for which New Loans or New USPP Notes were issued in place thereof; and b) US$500 of the September 2012 Notes, issued pursuant to an indenture dated as of September 17, 2012. Approximately US$525 aggregate principal amount of loans and U.S. Dollar private placement notes remained outstanding after the Exchange Offer under the existing Financing Agreement, as amended, after the Exchange Offer. Considering that the relevant economic terms of the new debt instruments are not substantially different from those of the original loans and private placements, the aforementioned exchange of debt as part of the refinancing process did not result in the extinguishment of the original financial liabilities under IFRS; therefore, there were no effects in profit or loss. CEMEX adjusted the carrying amount of the financial liability for approximately US$116 in relation to the fees and cost incurred during the refinancing process, and those costs, together with any remaining costs relative to the Financing Agreement will be amortized over the remaining term of the Facilities Agreement. As of December 31, 2012, after the application of proceeds resulting from the CEMEX Latam initial offering (note 20D), the aggregate principal amount of loans and U.S. dollar private placement notes under the amended Financing Agreement was US$55 (Ps707), with a final maturity on February 14, 2014. This amount was repaid in March 2013 with proceeds from the issuance of the March 2019 Notes.
The Facilities Agreement required CEMEX to make the following amortization payments: (i) US$500 on February 14, 2014, (ii) US$250 on June 30, 2016, and (iii) US$250 on December 31, 2016. The Facilities Agreement also provides that CEMEX must: (a) repay at least US$1,000 of the indebtedness under the Facilities Agreement on or prior to March 31, 2013 (or a date falling no more than 90 days thereafter, if agreed to by two thirds of the participating creditors under the Facilities Agreement), or the maturity date of the indebtedness under the Facilities Agreement will become due on February 14, 2014; (b) on or before March 5, 2014, in case CEMEX does not redeem, purchase, repurchase, refinance or extend the maturity date of 100% of the notes issued by CEMEX Finance Europe B.V. and guaranteed by CEMEX España to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become March 5, 2014; (c) on or before March 15, 2015, in case CEMEX does not redeem, convert into equity, purchase, repurchase, refinance or extend the maturity date of 100% of the 2015 Convertible Subordinated Notes to a
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Facilities Agreement and Financing Agreement – continued
 
maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become March 15, 2015; (d) on or before September 30, 2015, in case CEMEX does not redeem or extend the maturity date of 100% of the April 2011 Notes to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become September 30, 2015; (e) on or before March 15, 2016, in case CEMEX does not redeem, convert into equity, purchase, repurchase, refinance or extend the maturity date of 100% of the 2016 Convertible Subordinated Notes to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become March 15, 2016; and (f) on or before December 14, 2016, in case CEMEX does not redeem or extend the maturity date of 100% of the December 2009 Notes to a maturity date falling after December 31, 2017, or the maturity date of the indebtedness under the Facilities Agreement will become December 14, 2016.
For the initial US$1,000 repayment, at its sole discretion, CEMEX had the right to: a) sell minority stakes in CEMEX’s operations; b) sell selected assets in the United States; c) sell selected assets in Europe; and/or d) sale of other non-core assets. If during the Facilities Agreement term CEMEX pays down US$1,500 and US$2,000 of aggregate principal amount under the Facilities Agreement, the interest rate under the outstanding amount of the New Notes would be reduced to LIBOR plus 500 bps and LIBOR plus 450 bps, respectively, and in the New USPP Notes would be reduced to 9.41% and 8.91%, respectively.
As of December 31, 2012, CEMEX achieved the US$1,000 repayment milestone of March 2013, and the debt amortization requirements under the Facilities Agreement through and including the amortization on December 15, 2016; with US$4,187 remaining outstanding with a final maturity in February 2017. As a result of the prepayments, the interest rate on the New Loans under the Facilities Agreement was reduced to LIBOR plus 450 bps and on the New USPP Notes was reduced to 8.91%.
As mentioned above, the debt under the Facilities Agreement is guaranteed by the same entities that guaranteed the debt under the Financing Agreement, and additionally by the New Guarantors. The amended Financing Agreement and certain other precedent facilities did not receive guarantees from the New Guarantors. The debt under the Facilities Agreement (together with all other senior capital markets debt issued or guaranteed by CEMEX, and certain other precedent facilities) is also secured by a first-priority security interest in: (a) substantially all the shares of CEMEX México, S.A. de C.V.; Centro Distribuidor de Cemento, S.A. de C.V.; Corporación Gouda, S.A. de C.V.; Mexcement Holdings, S.A. de C.V.; New Sunward Holding B.V.; CEMEX Trademarks Holding Ltd. and CEMEX España (the “Collateral”), and (b) all proceeds of such Collateral. Effective December 1, 2013, Corporación Gouda, S.A. de C.V. and Mexcement Holdings, S.A. de C.V. together with other Mexican subsidiaries merge into Centro Distribuidor de Cemento, S.A. de C.V. being Centro Distribuidor de Cemento, S.A. de C.V. the successor and surviving entity and universal successor that assumed all the obligations of the merged entities. On December 3, 2013, Centro Distribuidor de Cemento, S.A. de C.V. changed its name to CEMEX Operaciones México, S.A. de C.V.
Pursuant to the Facilities Agreement, CEMEX is prohibited from making aggregate annual capital expenditures in excess of US$800 (excluding certain capital expenditures, and, joint venture investments and acquisitions by CEMEX Latam and its subsidiaries, which capital expenditures, joint venture investments and acquisitions at any time then incurred are subject to a separate aggregate limit of US$350 (or its equivalent)). In the Facilities Agreement, and subject in each case to the permitted negotiated amounts and other exceptions, CEMEX is also subject to a number of negative covenants that, among other things, restrict or limit its ability to: (i) create liens; (ii) incur additional debt; (iii) change CEMEX’s business or the business of any obligor or material subsidiary (in
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Facilities Agreement and Financing Agreement – continued
 
each case, as defined in the Facilities Agreement); (iv) enter into mergers; (v) enter into agreements that restrict its subsidiaries’ ability to pay dividends or repay intercompany debt; (vi) acquire assets; (vii) enter into or invest in joint venture agreements; (viii) dispose of certain assets; (ix) grant additional guarantees or indemnities; (x) declare or pay cash dividends or make share redemptions; (xi) issue shares; (xii) enter into certain derivatives transactions; (xiii) exercise any call option in relation to any perpetual bonds CEMEX issues unless the exercise of the call options does not have a materially negative impact on its cash flow; and (xiv) transfer assets from subsidiaries or more than 10% of shares in subsidiaries into or out of CEMEX España or its subsidiaries if those assets or subsidiaries are not controlled by CEMEX España or any of its subsidiaries.
The Facilities Agreement also contains a number of affirmative covenants that, among other things, require CEMEX to provide periodic financial information to its lenders. However, a number of those covenants and restrictions will automatically cease to apply or become less restrictive if (i) CEMEX’s consolidated leverage ratio for the two most recently completed semi-annual testing periods is less than or equal to 3.5 times; and (ii) no default under the Facilities Agreement is continuing. Restrictions that will cease to apply when CEMEX satisfies such conditions include the capital expenditure limitations mentioned above and several negative covenants, including limitations on CEMEX’s ability to declare or pay cash dividends and distributions to shareholders, limitations on CEMEX’s ability to repay existing financial indebtedness, certain asset sale restrictions, the quarterly cash balance sweep, certain mandatory prepayment provisions, and restrictions on exercising call options in relation to any perpetual bonds CEMEX issues (provided that creditors will continue to receive the benefit of any restrictive covenants that other creditors receive relating to other financial indebtedness of CEMEX in excess of US$75). At such time, several baskets and caps relating to negative covenants will also increase, including permitted financial indebtedness, permitted guarantees and limitations on liens. However, CEMEX cannot assure that it will be able to meet the conditions for these restrictions to cease to apply prior to the final maturity date under the Facilities Agreement.
In addition, the Facilities Agreement contains events of default, some of which may be outside of CEMEX’s control. CEMEX cannot assure that it will be able to meet any or all of the above milestones for repaying indebtedness pursuant the Facilities Agreement or redeeming, converting into equity, purchasing, repurchasing or extending the maturities of CEMEX’s other indebtedness. Failure to meet any of these milestones will result in a spring back of the maturity date of CEMEX’s indebtedness under the Facilities Agreement, and CEMEX cannot assure that at such time it will be able to repay such indebtedness. Moreover, CEMEX cannot assure that it will be able to comply with the restrictive covenants and limitations contained in the Facilities Agreement. CEMEX’s failure to comply with such covenants and limitations could result in an event of default, which could materially and adversely affect CEMEX’s business and financial condition.
 
Financial	 	Covenants	
The Facilities Agreement requires the compliance with financial ratios calculated on a consolidated basis, which mainly include: a) the ratio of net debt to operating EBITDA (“leverage ratio”); and b) the ratio of operating EBITDA to interest expense (“coverage ratio”). Pursuant to the Facilities Agreement, beginning on September 17, 2012, at each compliance date, financial ratios should be calculated according to the formulas established in the debt contracts using the consolidated amounts under IFRS. During 2011, financial ratios were calculated according to the formulas established in the Financing Agreement using the consolidated amounts under MFRS. The determinations of financial ratios require in most cases pro forma  adjustments, according to the definitions of the contracts that differed from terms defined under IFRS and MFRS.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Financial Covenants – continued
 
Based on the Facilities Agreement, CEMEX must comply with consolidated financial ratios and tests under IFRS, including a coverage ratio for each period of four consecutive fiscal quarters (measured semi-annually) of not less than (i) 1.50 times for the period ending on December 31, 2012 up to and including the period ending on June 30, 2014, (ii) 1.75 times from the period ending on December 31, 2014 up to and including the period ending on June 30, 2015, (iii) 1.85 times for the period ending on December 31, 2015, (iv) 2.0 times for the period ending on June 30, 2016, and (v) 2.25 times for the period ending on December 31, 2016. In addition, the Facilities Agreement allows CEMEX a maximum consolidated leverage ratio for each period of four consecutive fiscal quarters (measured semi-annually) not to exceed: (i) 7.0 times for each period from the period ending on December 31, 2012 up to and including the period ending on December 31, 2013, (ii) 6.75 times for the period ending on June 30, 2014, (iii) 6.5 times for the period ending on December 31, 2014, (iv) 6.0 times for the period ending on June 30, 2015, (v) 5.5 times for the period ending on December 31, 2015, (vi) 5.0 times for the period ending on June 30, 2016, and (vii) 4.25 times for the period ending on December 31, 2016. Applicable during 2011 and resulting from the amendments made to the original Financing Agreement on October 25, 2010; CEMEX had to comply with consolidated financial ratios and tests under MFRS, including a coverage ratio of not less than 1.75 times for the period ended on December 31, 2011. In addition, the maximum leverage ratio must not have exceeded 7.0 times for the period ending December 31, 2011.
CEMEX’s ability to comply with these ratios may be affected by economic conditions and volatility in foreign exchange rates, as well as by overall conditions in the financial and capital markets. For the compliance periods ended as of December 31, 2013, 2012 and 2011, taking into account the Facilities Agreement and the amended Financing Agreement, as applicable, and based on its IFRS and MFRS amounts, as applicable, CEMEX, S.A.B. de C.V. and its subsidiaries were in compliance with the financial covenants imposed by its debt contracts.
The main consolidated financial ratios as of December 31, 2013, 2012 and 2011 were as follows:

 	  	 	  	IFRS Consolidated
financial ratios	 	  	MFRS Consolidated
financial ratios	 	
 	  	 	  	2013	 	  	2012	 	  	2011	 	
Leverage ratio 1, 2	  	Limit
Calculation	  	 
 	=< 7.00
5.49	  
  	  	 
 	=< 7.00
5.44	  
  	  	 
 	=< 7.00
6.64	  

Coverage ratio3	  	Limit
Calculation	  	 
 	> 1.50
2.11	  
  	  	 
 	> 1.50
2.10	  
  	  	 
 	> 1.75
1.88	  

1	The leverage ratio is calculated in pesos by dividing “funded debt” by pro forma Operating EBITDA for the last twelve months as of the calculation date. Funded debt equals debt, as reported in the balance sheet excluding finance leases, plus perpetual debentures and guarantees, plus or minus the fair value of derivative financial instruments, as applicable, among other adjustments	
2	Pro forma Operating EBITDA represents, all calculated in pesos, Operating EBITDA for the last twelve months as of the calculation date, plus the portion of Operating EBITDA referring to such twelve-month period of any significant acquisition made in the period before its consolidation in CEMEX, minus Operating EBITDA referring to such twelve-month period of any significant disposal that had already been liquidated.	
3	The coverage ratio is calculated in pesos using the amounts from the financial statements, by dividing the pro forma operating EBITDA by the financial expense for the last twelve months as of the calculation date. Financial expense includes interest accrued on the perpetual debentures.	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Financial Covenants – continued
 
Based on its financial forecasts, for 2014 and going forward, CEMEX believes that it will continue to comply with its covenants under its Facilities Agreement, CEMEX expects to benefit from cost savings programs implemented during 2013 and prior years that may offset the unfavorable market conditions in some of its key markets and increasing costs for key inputs such as energy. Furthermore, CEMEX will continue as appropriate its asset disposal plan in place which, as in prior years, is expected to support CEMEX’s efforts to reduce its overall debt.
CEMEX will classify all of its outstanding debt as current debt in its balance sheet if: 1) as of any relevant measurement date on which CEMEX fails to comply with the financial ratios agreed upon pursuant to the Facilities Agreement; or 2) as of any date prior to a subsequent measurement date on which CEMEX expects not to be in compliance with its financial ratios agreed upon under the Facilities Agreement, in the absence of: a) amendments and/or waivers covering the next succeeding 12 months; b) high probability that the violation will be cured during any agreed upon remediation period and be sustained for the next succeeding 12 months; and/or c) a signed refinancing agreement to refinance the relevant debt on a long-term basis. Moreover, concurrent with the aforementioned classification of debt in the short-term, the noncompliance of CEMEX with the financial ratios agreed upon pursuant to the Facilities Agreement or, in such event, the absence of a waiver of compliance or a negotiation thereof, after certain procedures upon CEMEX’s lenders’ request, they would call for the acceleration of payments due under the Facilities Agreement. That scenario will have a material adverse effect on CEMEX’s liquidity, capital resources and financial position.
 
16B)	OTHER FINANCIAL OBLIGATIONS	
As of December 31, 2013 and 2012, other financial obligations in the consolidated balance sheet are detailed as follows:

 	  	 	 	2013	 	  	 	 	 	2012	 	
 	  	 	 	Short-term	 	 	Long-term	 	 	Total	 	  	 	 	 	Short-term	 	 	Long-term	 	 	Total	 	
I. Convertible subordinated notes due 2018	  	Ps	 	 	—  	  	 	 	7,565	 	 	 	7,565	 	  	Ps	 	  	 	 	—  	  	 	 	7,100	 	 	 	7,100	 	
I. Convertible subordinated notes due 2016	  	 	 	 	—  	  	 	 	11,551	 	 	 	11,551	 	  	 	 	 	 	 	—  	  	 	 	10,768	 	 	 	10,768	 	
II. Convertible subordinated notes due 2015	  	 	 	 	—  	  	 	 	8,919	 	 	 	8,919	 	  	 	 	 	 	 	—  	  	 	 	8,397	 	 	 	8,397	 	
III. Mandatory convertible securities 2019	  	 	 	 	177	 	 	 	1,392	 	 	 	1,569	 	  	 	 	 	 	 	152	 	 	 	1,561	 	 	 	1,713	 	
IV. Liabilities secured with accounts receivable	  	 	 	 	4,471	 	 	 	2,500	 	 	 	6,971	 	  	 	 	 	 	 	6,013	 	 	 	2,500	 	 	 	8,513	 	
V. Capital Leases	  	 	 	 	920	 	 	 	1,823	 	 	 	2,743	 	  	 	 	 	 	 	813	 	 	 	2,587	 	 	 	3,400	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	5,568	 	 	 	33,750	 	 	 	39,318	 	  	Ps	 	  	 	 	6,978	 	 	 	32,913	 	 	 	39,891	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Financial instruments convertible into CEMEX’s shares contain components of liability and equity, which are recognized differently depending upon the currency in which the instrument is denominated and the functional currency of the issuer (note 2L).
 
I.	 	Optional convertible subordinated notes due in 2016 and 2018	
On March 15, 2011, CEMEX, S.A.B. de C.V. closed the offering of US$978 (Ps11,632) aggregate principal amount of 3.25% convertible subordinated notes due in 2016 (the “2016 Convertible Notes”) and US$690 (Ps8,211) aggregate principal amount of 3.75% convertible subordinated notes due in 2018 (the “2018 Convertible Notes”). The notes are subordinated to all of CEMEX’s liabilities and commitments. The notes are
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
I.	 	Optional convertible subordinated notes due in 2016 and 2018 – continued	
 
convertible into a fixed number of CEMEX’s ADSs, at the holder’s election, at any time after June 30, 2011 and are subject to antidilution adjustments. As of December 31, 2013 and 2012, the conversion price per ADS was approximately US10.03 and US$10.43, respectively. A portion of the net proceeds from this transaction were used to fund the purchase of capped call transactions (note 16D), which are generally expected to reduce the potential dilution cost to CEMEX, S.A.B. de C.V. upon the potential conversion of such notes. The fair value of the conversion option as of the issuance date amounted to approximately Ps3,959, which considering the then functional currency of the issuer, was recognized until December 31, 2012 as a derivative instrument through profit or loss (note 16D). Changes in fair value of the conversion option generated a loss of Ps1,094 (US$88) in 2012 and a gain of Ps167 (US$13) in 2011, recognized within other financial (expense) income, net. Effective January 1, 2013, in connection with the change of the Parent Company’s functional currency described in note 2D, which among other effects aligned the functional currency of the issuer with the currency in which the instruments are denominated, the conversion options embedded in the 2016 Convertible Notes and the 2018 Convertible Notes ceased to be treated as stand-alone derivatives at fair value through profit or loss. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity. After antidilution adjustments, the conversion rate as of December 31, 2013 and 2012 was 99.6866 ADS and 95.8525 ADS, respectively, per each 1 thousand dollars principal amount of such notes.
 
II.	 	Optional convertible subordinated notes due in 2015	
On March 30, 2010, CEMEX, S.A.B. de C.V. issued US$715 (Ps8,837) aggregate principal amount of 4.875% Optional Convertible Subordinated Notes due 2015 (the “2015 Convertible Notes”). The notes are subordinated to all of CEMEX’s liabilities and commitments. The notes are convertible into a fixed number of CEMEX’s ADSs, at the holder’s election, and are subject to antidilution adjustments. As of December 31, 2013 and 2012, the conversion price per ADS was approximately US$11.62 and US$12.09, respectively. Concurrent with the offering, a portion of the proceeds were used to enter into a capped call transaction that was expected to generally reduce the potential dilution cost to CEMEX, S.A.B. de C.V. upon the potential conversion of the notes (note 16D). The fair value of the conversion option as of the issuance date amounted to Ps1,232, which considering the then functional currency of the issuer was recognized until December 31, 2012 as a derivative instrument through profit or loss (note 16D). Changes in fair value of the conversion option generated a loss of Ps114 (US$9) in 2012 and a gain of Ps39 (US$3) in 2011, recognized within other financial (expense) income, net. Effective January 1, 2013, in connection with the change of the Parent Company’s functional currency described in note 2D, which among other effects aligned the functional currency of the issuer with the currency in which the instrument is denominated, the conversion option embedded in the 2015 Convertible Notes ceased to be treated as stand-alone derivative at fair value through the statement of operations. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity. After antidilution adjustments, the conversion rate as of December 31, 2013 and 2012 was 86.0316 ADS and 82.7227 ADS, respectively, per each 1 thousand dollars principal amount of such notes.
 
III.	 	Mandatorily convertible securities due in 2019	
In December 2009, CEMEX, S.A.B. de C.V. completed its offer to exchange marketable notes issued in Mexico with maturities between 2010 and 2012, into mandatorily convertible securities for approximately Ps4,126 (US$315). Reflecting antidilution adjustments, at their scheduled conversion in 2019 or earlier if the price of the CPO reaches approximately Ps30.68 the securities will be mandatorily convertible into approximately 202 million CPOs at a conversion price of approximately Ps20.45 per CPO. During their tenure, the securities
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
III.	 	Mandatorily convertible securities due in 2019 – continued	
 
bear interest at an annual rate of 10% payable quarterly. Holders have an option to voluntarily convert their securities, after the first anniversary of their issuance, on any interest payment date into CPOs. Considering the then functional currency of the issuer, the equity component represented by the fair value of the conversion option as of the issuance date of Ps1,971 was recognized within “Other equity reserves.” Effective January 1, 2013, in connection with the change of the Parent Company’s functional currency, the conversion option embedded in these securities started to be treated as a stand-alone derivative liability at fair value through profit or loss, recognizing an initial effect of Ps365. Changes in fair value of the conversion option generated a loss of Ps135 (US$10) in 2013.
 
IV.	 	Liabilities secured with accounts receivable	
As mentioned in note 9, as of December 31, 2013 and 2012, CEMEX maintained securitization programs for the sale of trade accounts receivable established in Mexico, the United States, France and the United Kingdom, by means of which, CEMEX effectively surrenders control associated with the trade accounts receivable sold and there is no guarantee or obligation to reacquire the assets. However, CEMEX retains certain residual interest in the programs and/or maintains continuing involvement with the accounts receivable. Based on IAS 39, CEMEX recognizes cash flows received, that is the funded amounts of the trade receivables sold within “Other financial obligations”, and maintains the receivables sold in the balance sheet.
 
V.	 	Capital leases	
CEMEX has several operating and administrative assets, including buildings and mobile equipment, under capital lease contracts. Future payments associated with these contracts are presented in note 23E.
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
16C)	FAIR VALUE OF FINANCIAL INSTRUMENTS	
Financial assets and liabilities
CEMEX’s carrying amounts of cash, trade accounts receivable, other accounts receivable, trade accounts payable, other accounts payable and accrued expenses, as well as short-term debt, approximate their corresponding estimated fair values due to the short-term maturity and revolving nature of these financial assets and liabilities. Temporary investments (cash equivalents) and certain long-term investments are recognized at fair value, considering to the extent available, quoted market prices for the same or similar instruments. The estimated fair value of CEMEX’s long-term debt is level 2, and is either based on estimated market prices for such or similar instruments, considering interest rates currently available for CEMEX to negotiate debt with the same maturities, or determined by discounting future cash flows using market-based interest rates currently available to CEMEX. As of December 31, 2013 and 2012, the carrying amounts of financial assets and liabilities and their respective fair values were as follows:

 	  	 	 	2013	 	  	 	 	2012	 	
 	  	 	 	Carrying
amount	 	  	Fair
value	 	  	 	 	Carrying
amount	 	  	Fair
value	 	
Financial assets	  	 	 	 	 	 	  	 	 	 	  	 	 	 	 	 	  	 	 	 	
Derivative instruments (notes 13B)	  	Ps	 	 	6,274	 	  	 	6,274	 	  	Ps	 	 	4,279	 	  	 	4,279	 	
Other investments and non-current accounts receivable (note 13B)	  	 	 	 	5,786	 	  	 	5,586	 	  	 	 	 	4,131	 	  	 	3,931	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	12,060	 	  	 	11,860	 	  	Ps	 	 	8,410	 	  	 	8,210	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	 	 	  	 	 	 	
Financial liabilities	  	 	 	 	 	 	  	 	 	 	  	 	 	 	 	 	  	 	 	 	
Long-term debt (note 16A)	  	 	 	 	187,021	 	  	 	201,040	 	  	 	 	 	177,539	 	  	 	188,128	 	
Other financial obligations (note 16B)	  	 	 	 	33,750	 	  	 	48,106	 	  	 	 	 	32,913	 	  	 	42,651	 	
Derivative instruments (notes 16D and 17)	  	 	 	 	508	 	  	 	508	 	  	 	 	 	5,451	 	  	 	5,451	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	221,279	 	  	 	249,654	 	  	Ps	 	 	215,903	 	  	 	236,230	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	 	 	  	 	 	 	
Fair Value Hierarchy
As mentioned in note 2L, CEMEX applies IFRS 13 for fair value measurements of financial assets and financial liabilities recognized or disclosed at fair value. Assets and liabilities carried at fair value in the consolidated balance sheets as of December 31, 2013 and 2012 are included in the following fair value hierarchy categories:

2013	  	 	 	Level 1	 	  	Level 2	 	  	Level 3	 	  	Total	 	
Assets measured at fair value	  	Ps	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Derivative instruments (notes 13B)	  	 	 	 	—  	  	  	 	6,274	 	  	 	—  	  	  	 	6,274	 	
Investments available-for-sale (note 13B)	  	 	 	 	340	 	  	 	—  	  	  	 	—  	  	  	 	340	 	
Investments held for trading (note 13B)	  	 	 	 	—  	  	  	 	463	 	  	 	—  	  	  	 	463	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	  	Ps	 	 	340	 	  	 	6,737	 	  	 	—  	  	  	 	7,077	 	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Liabilities measured at fair value	  	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Derivative instruments (notes 16D and 17)	  	Ps	 	 	—  	  	  	 	508	 	  	 	—  	  	  	 	508	 	

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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Fair Value Hierarchy – continued

2012	  	 	 	 	Level 1	 	  	Level 2	 	  	Level 3	 	  	Total	 	
Assets measured at fair value	  	Ps	 	  	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Derivative instruments (notes 13B)	  	 	 	 	 	 	—  	  	  	 	4,279	 	  	 	—  	  	  	 	4,279	 	
Investments available-for-sale (note 13B)	  	 	 	 	 	 	211	 	  	 	—  	  	  	 	—  	  	  	 	211	 	
Investments held for trading (note 13B)	  	 	 	 	 	 	—  	  	  	 	366	 	  	 	—  	  	  	 	366	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	  	Ps	 	  	 	 	211	 	  	 	4,645	 	  	 	—  	  	  	 	4,856	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Liabilities measured at fair value	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Derivative instruments (notes 16D and 17)	  	Ps	 	  	 	 	—  	  	  	 	5,451	 	  	 	—  	  	  	 	5,451	 	

16D)	DERIVATIVE FINANCIAL INSTRUMENTS	
During the reported periods, in compliance with the guidelines established by its Risk Management Committee and the restrictions set forth by its debt agreements, CEMEX held interest rate swaps, as well as forward contracts and other derivative instruments on CEMEX, S.A.B. de C.V.’s own shares and third parties’ shares, with the objective of, as the case may be: a) changing the risk profile associated with the price of raw materials and other energy projects; and b) other corporate purposes.
As of December 31, 2013 and 2012, the notional amounts and fair values of CEMEX’s derivative instruments were as follows:

 	  	 	 	 	2013	 	  	2012	 	
(U.S. dollars millions)	  	 	 	 	Notional
amount	 	  	Fair
value	 	  	Notional
amount	 	  	Fair
value	 	
I. Interest rate swaps	  	US$	 	  	 	 	174	 	  	 	33	 	  	 	181	 	  	 	49	 	
II. Equity forwards on third party shares	  	 	 	 	 	 	27	 	  	 	1	 	  	 	27	 	  	 	—  	  	
III. Forward instruments over indexes	  	 	 	 	 	 	—  	  	  	 	—  	  	  	 	5	 	  	 	—  	  	
IV. Options on CEMEX’s own shares	  	 	 	 	 	 	2,383	 	  	 	408	 	  	 	2,743	 	  	 	(138	)	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	  	US$	 	  	 	 	2,584	 	  	 	442	 	  	 	2,956	 	  	 	(89	)	
 	  	 	 	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
The fair values determined by CEMEX for its derivative financial instruments are Level 2. There is no direct measure for the risk of CEMEX or its counterparties in connection with the derivative instruments. Therefore, the risk factors applied for CEMEX’s assets and liabilities originated by the valuation of such derivatives were extrapolated from publicly available risk discounts for other public debt instruments of CEMEX and its counterparties.
The caption “Other financial income (expenses), net” includes gains and losses related to the recognition of changes in fair values of the derivative instruments during the applicable period and that represented a net gain of approximately Ps2,126 (US$163) in 2013 and a loss of approximately Ps98 (US$8) in 2012 and a gain of approximately Ps329 (US$26) in 2011. As of December 31, 2013 and 2012, pursuant to net balance settlement agreements, cash deposits in margin accounts that guaranteed obligations through derivative financial instruments were offset with the fair value of the derivative instruments for approximately Ps95 (US$7) and Ps1,168 (US$91), respectively.
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Derivative financial instruments – continued	 	
 
The estimated fair value of derivative instruments fluctuates over time and is determined by measuring the effect of future relevant economic variables according to the yield curves shown in the market as of the reporting date. These values should be analyzed in relation to the fair values of the underlying transactions and as part of CEMEX’s overall exposure attributable to fluctuations in interest rates and foreign exchange rates. The notional amounts of derivative instruments do not represent amounts exchanged by the parties, and consequently, there is no direct measure of CEMEX’s exposure to the use of these derivatives. The amounts exchanged are determined based on the basis of the notional amounts and other terms included in the derivative instruments.
 
I.	 	Interest rate swap contracts	
As of December 31, 2013 and 2012, CEMEX had an interest rate swap maturing in September 2022 associated with agreements entered into by CEMEX for the acquisition of electric energy in Mexico (note 23C), which fair value represented assets of approximately US$33 and US$49, respectively. Pursuant to this instrument, during the tenure of the swap and based on its notional amount, CEMEX will receive a fixed rate of 5.4% and will pay LIBOR, which is the international reference rate for debt denominated in U.S. dollars. As of December 31, 2013 and 2012, LIBOR was 0.3480% and 0.50825%, respectively. Changes in the fair value of this interest rate swap generated losses of approximately US$16 (Ps207) in 2013, US$2 (Ps35) in 2012 and US$12 (Ps150) in 2011, recognized in the statements of operations for each year.
 
II.	 	Equity forwards in third party shares	
As of December 31, 2013 and 2012, CEMEX had a forward contract to be settled in cash over the price of 59.5 million CPOs of Axtel in both years. The contract matures in October 2015. This contract is intended to maintain the exposure to changes in the price of such entity. Changes in the fair value of this instrument generated gains of approximately US$6 (Ps76) in 2013 and losses of approximately US$7 (Ps100) in 2012 and US$35 (Ps437) in 2011, recognized in the statements of operations for each period.
 
III.	 	Forward instruments over indexes	
As of December 31, 2012, CEMEX held forward derivative instruments over the TRI (Total Return Index) of the Mexican Stock Exchange, which were terminated during 2013. By means of these instruments, CEMEX maintained exposure to increases or decreases of such index. TRI expresses the market return on stocks based on market capitalization of the issuers comprising the index. Changes in the fair value of these instruments generated a gain of approximately US$0.3 (Ps5) in 2013, a gain of US$1 (Ps13) in 2012 and a loss of approximately US$1 (Ps13) in 2011, recognized in the statements of operations for each year.
 
IV.	 	Options on CEMEX’s own shares	
On March 15, 2011, in connection with the offering of the 2016 Convertible Notes and the 2018 Convertible Notes and to effectively increase the conversion price for CEMEX’s CPOs under such notes, CEMEX, S.A.B. de C.V. entered into a capped call transaction, after antidilution adjustments, over approximately 166 million ADSs (97 million ADS maturing in March 2016 and 69 million ADSs maturing in March 2018), by means of which, for the 2016 Convertible Notes, at maturity of the notes in March 2016, if the price per ADS is above US$10.0314, CEMEX will receive in cash the difference between the market price of the ADS and US$10.0314, with a maximum appreciation per ADS of US$4.6299. Likewise, for the 2018 Convertible Notes, at maturity of the
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
IV.	 	Options on CEMEX’s own shares – continued	
 
notes in March 2018, if the price per ADS is above US$10.0314, CEMEX will receive in cash the difference between the market price of the ADS and US$10.0314, with a maximum appreciation per ADS of US$6.1732. CEMEX paid a total premium of approximately US$222. As of December 31, 2013 and 2012, the fair value of such options represented an asset of approximately US$353 (Ps4,607) and US$226 (Ps2,899), respectively. During 2013, 2012 and 2011, changes in the fair value of these instruments generated a gain of approximately US$127 (Ps1,663) and a gain of approximately US$155 (Ps1,973) and a loss of approximately US$153 (Ps1,906), respectively, recognized within “Other financial income (expense), net” in the statements of operations. In addition, until December 31, 2012 considering that the currency in which the notes are denominated and the functional currency of the issuer differed, CEMEX separated the conversion options embedded in the 2016 Convertible Notes and the Convertible 2018 Notes and recognized them at fair value, which as of December 31, 2012, resulted in a liability of approximately US$Ps301 (Ps3,862). Changes in fair value of the conversion options generated a loss in 2012 for approximately US$243 (Ps3,078) and a gain in 2011 of approximately US$279 (Ps3,482). Effective January 1, 2013, in connection with the change of the Parent Company’s functional currency described in note 2D, which among other effects aligned the functional currency of the issuer with the currency in which the instruments are denominated, the conversion options embedded in the 2016 Convertible Notes and the 2018 Convertible Notes ceased to be treated as stand-alone derivatives at fair value through the statement of operations. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity.
On March 30, 2010, in connection with the offering of the 2015 Convertible Notes and to effectively increase the conversion price for CEMEX’s CPOs under such notes, CEMEX, S.A.B. de C.V. entered into a capped call transaction, after antidilution adjustments over approximately 62 million ADSs maturing in March 2015, by means of which, at maturity of the notes, CEMEX expected that if the price per ADS was above US$11.6236, CEMEX would receive in cash the difference between the market price of the ADS and US$11.6236, with a maximum appreciation per ADS of US$4.4706. CEMEX paid a premium of approximately US$105. On January 13, 2014, CEMEX initiated amendments to this transaction (note 26). As of December 31, 2013 and 2012, the fair value of such options represented an asset of approximately US$94 (Ps1,228) and US$58 (Ps751), respectively. During 2013, 2012 and 2011, changes in the fair value of this contract generated a gain of approximately US$36 (Ps465), a gain of approximately US$47 (Ps594) and a loss of approximately US$79 (Ps984), respectively, which were recognized within “Other financial income (expense), net” in the statements of operations. In addition, until December 31, 2012, considering that the currency in which the notes are denominated and the functional currency of the issuer differed, CEMEX separated the conversion option embedded in the 2015 Convertible Notes and recognized it at fair value, which as of December 31, 2012, resulted in a liability of approximately US$64 (Ps828). Changes in fair value of the conversion option generated a loss of approximately US$56 (Ps708) in 2012 and a gain of approximately US$97 (Ps1,211) in 2011. As mentioned in the paragraph above, effective January 1, 2013, the conversion option embedded in the 2015 Convertible Notes ceased to be treated as stand-alone derivative at fair value through the statement of operations. The liability accrued until December 31, 2012 was cancelled against stockholders’ equity.
Conversely, in connection with the mandatorily convertible securities (note 16B); considering i) the aforementioned change in the functional currency of the Parent Company effective January 1, 2013 and ii) that the currency in which such mandatorily convertible securities are denominated and the functional currency of the issuer differ, CEMEX separated now the conversion option embedded in such instruments and recognizes it at fair value, which as of December 31, 2013, resulted in a liability of approximately US$39 (Ps506). Changes in fair value of the conversion option generated in 2013 a loss of approximately US$10 (Ps135).
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
IV.	 	Options on CEMEX’s own shares – continued	
 
As of December 31, 2012, as described in note 23C, CEMEX had granted a guarantee for a notional amount of approximately US$360, in connection with put option transactions on CEMEX’s CPOs entered into by Citibank with a Mexican trust that CEMEX established on behalf of its Mexican pension fund and certain of CEMEX’s directors and current and former employees in April 2008, which fair value as of December 31, 2012, net of deposits in margin accounts, represented a liability of approximately US$58 (Ps740). Between January and April 2013, the notional amount of the guarantee was gradually unwound. Changes in fair value were recognized in the statements of operations within “Other financial income (expense), net,” representing a gain of approximately US$22 (Ps284) in 2013, a gain of approximately US$95 (Ps1,198) in 2012 and a loss of approximately US$92 (Ps1,145) in 2011. As of December 31, 2012, cash deposits in margin accounts associated with this transaction were approximately US76 (Ps975).
 
16E)	RISK MANAGEMENT	
Since the beginning of 2009, with the exception of the capped call transactions entered into in March 2010 and March 2011 in connection with CEMEX’s 2015 Convertible Notes, 2016 Convertible Notes and 2018 Convertible Notes (notes 16B, 16D and 26), CEMEX has been reducing the aggregate notional amount of its derivatives, thereby reducing the risk of cash margin calls. This initiative has included closing substantially all notional amounts of derivative instruments related to CEMEX’s debt (currency and interest rate derivatives), which was finalized during April 2009. The Facilities Agreement significantly restricts CEMEX’s ability to enter into derivative transactions.
 
Interest	 	rate risk	
Interest rate risk is the risk that the fair value or future cash flows of a financial instrument will fluctuate because of changes in market interest rates, which only affects CEMEX’s results if the fixed-rate long-term debt is measured at fair value.
All of CEMEX’s fixed-rate long-term debt is carried at amortized cost and therefore is not subject to interest rate risk. CEMEX’s exposure to the risk of changes in market interest rates relates primarily to its long-term debt obligations with floating interest rates. As of December 31, 2013 and 2012, CEMEX was subject to the volatility of floating interest rates, which, if such rates were to increase, may adversely affect its financing cost and increase its net loss. CEMEX manages its interest rate risk by balancing its exposure to fixed and variable rates while attempting to reduce its interest costs.
As of December 31, 2013 and 2012, approximately 38% and 35%, respectively, of CEMEX’s long-term debt was denominated in floating rates at a weighted average interest rate of LIBOR plus 458 basis points in 2013 and 456 basis points in 2012. As of December 31, 2013 and 2012, if interest rates at that date had been 0.5% higher, with all other variables held constant, CEMEX’s net loss for 2013 and 2012 would have increased by approximately US$27 (Ps354) and US$25 (Ps315), respectively, as a result of higher interest expense on variable rate denominated debt.
 
Foreign	 	currency risk	
Foreign currency risk is the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in foreign exchange rates. CEMEX’s exposure to the risk of changes in foreign exchange rates relates primarily to its operating activities. Due to its geographic diversification, CEMEX’s revenues and
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Foreign	 	currency risk – continued	
 
costs are generated and settled in various countries and in different currencies. For the year ended December 31, 2013, approximately 20% of CEMEX’s net sales, before eliminations resulting from consolidation, were generated in Mexico, 20% in the United States, 7% in the United Kingdom, 7% in Germany, 6% in France, 6% in the Rest of Northern Europe geographic segment, 2% in Spain, 3% in Egypt, 5% in the Rest of Mediterranean segment, 6% in Colombia, 7% in the Rest of South America and the Caribbean segment, 4% in Asia and 7% from CEMEX’s other operations.
As of December 31, 2013, approximately 86% of CEMEX’s financial debt was Dollar-denominated, approximately 13% was Euro-denominated, approximately 1% was Peso-denominated and immaterial amounts were denominated in other currencies; therefore, CEMEX had a foreign currency exposure arising from the Dollar-denominated financial debt, and the Euro-denominated financial debt, versus the currencies in which CEMEX’s revenues are settled in most countries in which it operates. CEMEX cannot guarantee that it will generate sufficient revenues in Dollars and Euros from its operations to service these obligations. As of December 31, 2013 and 2012, CEMEX had not implemented any derivative financing hedging strategy to address this foreign currency risk.
Foreign exchange gains and losses occur when any entity incurs monetary assets or liabilities in a currency different from its functional currency, and are recorded in the consolidated statements of operations, except for exchange fluctuations associated with foreign currency indebtedness directly related to the acquisition of foreign entities and related parties’ long-term balances denominated in foreign currency, for which the resulting gains or losses are reported in other comprehensive income. As of December 31, 2013 and 2012, excluding from the sensitivity analysis the impact of translating the net assets of foreign operations into CEMEX’s reporting currency, considering a hypothetic 10% strengthening of the U.S. dollar against the Mexican peso, with all other variables held constant, CEMEX’s net loss for 2013 and 2012 would have increased by approximately US$59 (Ps773) and US$108 (Ps1,522), respectively, as a result of higher foreign exchange losses on CEMEX’s dollar-denominated net monetary liabilities held in consolidated entities with other functional currencies. Conversely, a hypothetic 10% weakening of the U.S. dollar against the Mexican peso would have the opposite effect.
As of December 31, 2013 and 2012, CEMEX’s consolidated net monetary assets (liabilities) by currency are as follows:

 	  	 	 	2013	 	
 	  	 	 	Mexico	 	 	USA	 	 	Northern
Europe	 	 	Mediterranean	 	 	SAC	 	 	Asia	 	  	Others	 	 	Total	 	
Monetary assets	  	Ps	 	 	13,608	  	 	 	7,632	  	 	 	11,237	  	 	 	6,644	  	 	 	6,081	  	 	 	1,775	  	  	 	17,145	  	 	 	64,122	  	
Monetary liabilities	  	 	 	 	12,135	  	 	 	12,603	  	 	 	27,323	  	 	 	8,493	  	 	 	6,193	  	 	 	1,643	  	  	 	260,543	  	 	 	328,933	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	
Net monetary assets (liabilities)	  	Ps	 	 	1,473	  	 	 	(4,971	) 	 	 	(16,086	) 	 	 	(1,849	) 	 	 	(112	) 	 	 	132	  	  	 	(243,398	) 	 	 	(264,811	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	
Out of which:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	
Dollars	  	Ps	 	 	(688	) 	 	 	(5,283	) 	 	 	—  	  	 	 	(6	) 	 	 	1,065	  	 	 	129	  	  	 	(180,829	) 	 	 	(185,612	) 	
Pesos	  	 	 	 	2,161	  	 	 	1	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	  	 	(22,366	) 	 	 	(20,204	) 	
Euros	  	 	 	 	—  	  	 	 	281	  	 	 	(6,623	) 	 	 	(2,091	) 	 	 	1	  	 	 	—  	  	  	 	(49,073	) 	 	 	(57,505	) 	
Other currencies	  	 	 	 	—  	  	 	 	30	  	 	 	(9,463	) 	 	 	248	 	 	 	(1,178	) 	 	 	3	  	  	 	8,870	  	 	 	(1,490	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	  	 	 	 	 	 	 	 	
 	  	Ps	 	 	1,473	  	 	 	(4,971	) 	 	 	(16,086	) 	 	 	(1,849	) 	 	 	(112	) 	 	 	132	  	  	 	(243,398	) 	 	 	(264,811	) 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Foreign	 	currency risk – continued	

 	  	 	 	2012	 	
 	  	 	 	Mexico	 	 	USA	 	 	Northern
Europe	 	 	Mediterranean	 	 	SAC	 	 	Asia	 	 	Others	 	 	Total	 	
Monetary assets	  	Ps	 	 	14,102	  	 	 	7,556	  	 	 	10,095	  	 	 	5,309	  	 	 	4,477	  	 	 	1,603	  	 	 	12,078	  	 	 	55,220	  	
Monetary liabilities	  	 	 	 	13,761	  	 	 	13,792	  	 	 	26,400	  	 	 	8,140	  	 	 	6,353	  	 	 	1,693	  	 	 	239,963	  	 	 	310,102	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net monetary assets (liabilities)	  	Ps	 	 	341	  	 	 	(6,236	) 	 	 	(16,305	) 	 	 	(2,831	) 	 	 	(1,876	) 	 	 	(90	) 	 	 	(227,885	) 	 	 	(254,882	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Out of which:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Dollars	  	Ps	 	 	(991	) 	 	 	(6,648	) 	 	 	—  	  	 	 	(17,367	) 	 	 	2,694	  	 	 	9	 	 	 	(144,747	) 	 	 	(167,050	) 	
Pesos	  	 	 	 	1,332	  	 	 	412	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	(32,733	) 	 	 	(30,989	) 	
Euros	  	 	 	 	—  	  	 	 	—  	  	 	 	(7,709	) 	 	 	(2,972	) 	 	 	—  	  	 	 	—  	  	 	 	(75,351	) 	 	 	(86,032	) 	
Other currencies	  	 	 	 	—  	  	 	 	—  	  	 	 	(8,596	) 	 	 	17,508	  	 	 	(4,570	) 	 	 	(99	) 	 	 	24,946	  	 	 	29,189	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	341	  	 	 	(6,236	) 	 	 	(16,305	) 	 	 	(2,831	) 	 	 	(1,876	) 	 	 	(90	) 	 	 	(227,885	) 	 	 	(254,882	) 	

Equity	 	risk	
As of December 31, 2013 and 2012, equity risk is the risk that the fair value of future cash flows of a financial instrument will fluctuate because of changes in the market price of CEMEX’s and/or third party’s shares. As described in note 16D, CEMEX has entered into equity forward contracts on Axtel CPOs and the TRI index, as well as options and guarantees of a put option transaction based on the price of CEMEX’s own CPOs. Under these equity derivative instruments, there is a direct relationship in the change in the fair value of the derivative with the change in value of the underlying share or index. All changes in fair value of such equity derivative instruments are recognized through the statements of operations as part of “Other financial income (expense), net.” A significant decrease in the market price of CEMEX’s CPOs and third party shares would negatively affect CEMEX’s liquidity and financial position.
As of December 31, 2013 and 2012, the potential change in the fair value of CEMEX’s equity forward contracts in Axtel’s shares that would result from a hypothetical, instantaneous decrease of 10% in the market price of Axtel CPOs, with all other variables held constant, would have increased CEMEX’s net loss for 2013 and 2012 by approximately US$2 (Ps28) and US$1 (Ps17), respectively, as a result of additional negative changes in fair value associated with such forward contracts. A 10% hypothetical increase in the CPO price would generate approximately the opposite effect.
As of December 31, 2012, the potential change in the fair value of CEMEX’s forward contracts in the TRI index that would result from a hypothetical, instantaneous decrease of 10% in the aforementioned index, with all other variables held constant, would have no increased CEMEX’s net loss for 2012 by approximately US$1 (Ps6), as a result of additional negative changes in fair value associated with such forward contracts. A 10% hypothetical increase in the TRI index would generate approximately the opposite effect.
As of December 31, 2012, the potential change in the fair value of CEMEX’s options (capped call) and the put option transaction based on the price of CEMEX’s own CPOs that would result from a hypothetical, instantaneous decrease of 10% in the market price of CEMEX’s CPOs, with all other variables held constant, would have increased CEMEX’s net loss for 2013 and 2012 by approximately US$89 (Ps1,155) and US$76 (Ps971), respectively, as a result of additional negative changes in fair value associated with these contracts. A 10% hypothetical increase in the CPO price would generate approximately the opposite effect.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Equity	 	risk – continued	
 
In addition, even though the changes in fair value of CEMEX’s embedded conversion options in the convertible notes denominated in a currency other than the functional currency of CEMEX, S.A.B de C.V. affect the statements of operations, they do not imply any risk or variability in cash flows, considering that through their exercise, CEMEX will settle a fixed amount of debt with a fixed amount of shares. As of December 31, 2013 and 2012, after considering in the convertible notes the effects related with the change in functional currency of the Parent Company in 2013, the potential change in the fair value of these embedded conversion options that would result from a hypothetical, instantaneous decrease of 10% in the market price of CEMEX’s CPOs, with all other variables held constant, would have decreased CEMEX’s net loss for 2013 and 2012 by approximately US$8 (Ps102) and US$89 (Ps1,148), respectively, as a result of additional positive changes in fair value associated with this option. A 10% hypothetical increase in the CPO price would generate approximately the opposite effect.
 
Liquidity	 	risk	
Liquidity risk is the risk that CEMEX will not have sufficient funds available to meet its obligations. CEMEX has satisfied its operating liquidity needs primarily through the operations of its subsidiaries and expect to continue to do so for both the short and long-term. Although cash flow from operations has historically met CEMEX’s overall liquidity needs for operations, servicing debt and funding capital expenditures and acquisitions, its subsidiaries are exposed to risks from changes in foreign currency exchange rates, price and currency controls, interest rates, inflation, governmental spending, social instability and other political, economic and/or social developments in the countries in which they operate, any one of which may materially increase CEMEX net loss and reduce cash from operations. Consequently, in order to meet its liquidity needs, CEMEX also relies on cost-cutting and operating improvements to optimize capacity utilization and maximize profitability, as well as borrowing under credit facilities, proceeds of debt and equity offerings, and proceeds from asset sales. CEMEX’s consolidated net cash flows provided by (used in) operating activities, after interest and taxes, were approximately Ps1,270 in 2013, Ps5,949 in 2012, and Ps6,812 in 2011. The maturities of CEMEX’s contractual obligations are included in note 23E.
As of December 31, 2013, there are margin calls referring to CEMEX’s derivative financial instruments positions of approximately US$7 (Ps95). The potential requirement as of December 31, 2013 for additional margin calls that would result from a hypothetical instantaneous decrease of 10% in the prices of Axtel shares and CEMEX CPOs would not be significant.
 
17)	OTHER CURRENT AND NON-CURRENT LIABILITIES	
As of December 31, 2013 and 2012, consolidated other current accounts payable and accrued expenses were as follows:

 	  	 	 	2013	 	  	2012	 	
Provisions	  	Ps	 	 	10,186	 	  	 	9,496	 	
Other accounts payable and accrued expenses	  	 	 	 	2,763	 	  	 	4,174	 	
Advances from customers	  	 	 	 	2,074	 	  	 	1,641	 	
Interest payable	  	 	 	 	3,007	 	  	 	3,003	 	
Current liabilities for valuation of derivative instruments	  	 	 	 	—  	  	  	 	623	 	
Dividends payable	  	 	 	 	24	 	  	 	30	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	18,054	 	  	 	18,967	 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	current and non-current liabilities – continued	
 
Current provisions primarily consist of accrued employee benefits, insurance payments, and accruals for legal assessments, among others. These amounts are revolving in nature and are expected to be settled and replaced by similar amounts within the next 12 months.
As of December 31, 2013 and 2012, other non-current liabilities, which include the best estimate of cash flows with respect to diverse issues where CEMEX is determined to be responsible and which are expected to be settled over a period greater than 12 months, were as follows:

 	  	 	 	2013	 	  	2012	 	
Asset retirement obligations 1 	  	Ps	 	 	7,190	 	  	 	7,062	 	
Environmental liabilities 2 	  	 	 	 	522	 	  	 	520	 	
Accruals for legal assessments and other responsibilities 3 	  	 	 	 	3,817	 	  	 	7,412	 	
Non-current liabilities for valuation of derivative instruments	  	 	 	 	508	 	  	 	4,828	 	
Other non-current liabilities and provisions 4 	  	 	 	 	23,054	 	  	 	12,782	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	35,091	 	  	 	32,604	 	

1	Provisions for asset retirement include future estimated costs for demolition, cleaning and reforestation of production sites at the end of their operation, which are initially recognized against the related assets and are depreciated over their estimated useful life.	
2	Environmental liabilities include future estimated costs arising from legal or constructive obligations, related to cleaning, reforestation and other remedial actions to remediate damage caused to the environment. The expected average period to settle these obligations is greater than 15 years.	
3	Provisions for legal claims and other responsibilities include items related to tax contingencies.	
4	As of December 31, 2013 and 2012, includes approximately Ps20,530 and Ps12,526, respectively, of the non-current portion of taxes payable recognized since 2009 as a result of the changes to the tax consolidation regime in Mexico approved in 2009 and 2013 as described in note 19D. Approximately Ps4,274 and Ps2,020 as of December 31, 2013 and 2012 respectively, were included within current taxes payable.	
Changes in consolidated other non-current liabilities for the years ended December 31, 2013 and 2012 were as follows:

 	  	 	 	2013	 	 	 	 	
 	  	 	 	Asset
retirement
obligations	 	 	Environmental
liabilities	 	 	Accruals for
legal
assessments	 	 	Valuation of
derivative
instruments	 	 	Other
provisions	 	 	Total	 	 	2012	 	
Balance at beginning of period	  	Ps	 	 	7,062	 	 	 	520	 	 	 	7,412	 	 	 	5,452	 	 	 	22,277	 	 	 	42,723	 	 	 	47,169	 	
Additions or increase in estimates	  	 	 	 	417	 	 	 	28	 	 	 	928	 	 	 	2,884	 	 	 	39,443	  	 	 	43,700	 	 	 	35,526	 	
Releases or decrease in estimates	  	 	 	 	(399	) 	 	 	(31	) 	 	 	(4,673	) 	 	 	(8,798	) 	 	 	(36,532	) 	 	 	(50,433	) 	 	 	(34,249	) 	
Reclassification from current to non-current liabilities, net	  	 	 	 	(159	) 	 	 	(26	) 	 	 	17	 	 	 	—  	  	 	 	408	 	 	 	240	 	 	 	(759	) 	
Accretion expense	  	 	 	 	202	 	 	 	10	 	 	 	10	 	 	 	—  	  	 	 	(675	) 	 	 	(453	) 	 	 	(963	) 	
Foreign currency translation	  	 	 	 	67	 	 	 	21	 	 	 	123	 	 	 	970	 	 	 	8,319	 	 	 	9,500	 	 	 	(4,001	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at the end of period	  	Ps	 	 	7,190	 	 	 	522	 	 	 	3,817	 	 	 	508	 	 	 	33,240	 	 	 	45,277	 	 	 	42,723	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Out of which:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Current provisions	  	Ps	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	—  	 	 	 	10,186	 	 	 	10,186	 	 	 	10,119	 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
18)	PENSIONS AND POSTRETIREMENT EMPLOYEE BENEFITS	
 
Defined	 	contribution pension plans	
The costs of defined contribution plans for the years ended December 31, 2013, 2012 and 2011 were approximately Ps572, Ps528 and Ps357, respectively. CEMEX contributes periodically the amounts offered by the pension plan to the employee’s individual accounts, not retaining any remaining liability as of the balance sheet date.
 
Defined	 	benefit pension plans	
Actuarial results related to pension and other post retirement benefits are recognized in the results and/or in other comprehensive income (loss) for the period in which they are generated, as correspond. For the years ended December 31, 2013, 2012 and 2011, the effects of pension plans and other postretirement benefits are summarized as follows:

 	  	 	 	Pensions	 	 	Other benefits	 	 	Total	 	
Net period cost (revenue):	  	 	 	2013	 	 	2012	 	 	2011	 	 	2013	 	 	2012	 	 	2011	 	 	2013	 	 	2012	 	 	2011	 	
Recorded in operating costs and expenses	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Service cost	  	Ps	 	 	112	 	 	 	138	 	 	 	330	 	 	 	35	 	 	 	59	 	 	 	63	 	 	 	147	 	 	 	197	 	 	 	393	 	
Past service cost	  	 	 	 	(40	) 	 	 	(1,454	) 	 	 	(510	) 	 	 	(90	) 	 	 	(21	) 	 	 	(40	) 	 	 	(130	) 	 	 	(1,475	) 	 	 	(550	) 	
Loss (gain) for settlements and curtailments	  	 	 	 	(18	) 	 	 	(513	) 	 	 	(254	) 	 	 	—  	  	 	 	(18	) 	 	 	(95	) 	 	 	(18	) 	 	 	(531	) 	 	 	(349	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	54	 	 	 	(1,829	) 	 	 	(434	) 	 	 	(55	) 	 	 	20	 	 	 	(72	) 	 	 	(1	) 	 	 	(1,809	) 	 	 	(506	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Recorded in other financial expenses	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net interest cost	  	 	 	 	518	 	 	 	697	 	 	 	705	 	 	 	71	 	 	 	91	 	 	 	98	 	 	 	589	 	 	 	788	 	 	 	803	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Recorded in other comprehensive income for the period	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Actuarial (gains) losses for the period	  	 	 	 	729	 	 	 	657	 	 	 	882	 	 	 	(338	) 	 	 	97	 	 	 	(81	) 	 	 	391	 	 	 	754	 	 	 	801	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	1,301	 	 	 	(475	) 	 	 	1,153	 	 	 	(322	) 	 	 	208	 	 	 	(55	) 	 	 	979	 	 	 	(267	) 	 	 	1,098	 	

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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Defined benefit pension plans – continued
 
The reconciliations of the actuarial benefits obligations, pension plan assets, and liabilities recognized in the balance sheet as of December 31, 2013 and 2012 are presented as follows:

 	  	 	 	Pensions	 	 	Other benefits	 	 	Total	 	
 	  	 	 	2013	 	 	2012	 	 	2013	 	 	2012	 	 	2013	 	 	2012	 	
Change in benefits obligation:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Projected benefit obligation at beginning of year	  	Ps	 	 	33,440	 	 	 	35,716	 	 	 	1,729	 	 	 	1,631	 	 	 	35,169	 	 	 	37,347	 	
Service cost	  	 	 	 	112	 	 	 	138	 	 	 	35	 	 	 	59	 	 	 	147	 	 	 	197	 	
Interest cost	  	 	 	 	1,448	 	 	 	1,712	 	 	 	72	 	 	 	93	 	 	 	1,520	 	 	 	1,805	 	
Actuarial results	  	 	 	 	830	 	 	 	1,200	 	 	 	(338	) 	 	 	97	 	 	 	492	 	 	 	1,297	 	
Employee contributions	  	 	 	 	—  	  	 	 	11	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	11	 	
Foreign currency translation	  	 	 	 	1,019	 	 	 	(1,524	) 	 	 	25	 	 	 	(58	) 	 	 	1,044	 	 	 	(1,582	) 	
Settlements and curtailments	  	 	 	 	(66	) 	 	 	(2,209	) 	 	 	(90	) 	 	 	(18	) 	 	 	(156	) 	 	 	(2,227	) 	
Benefits paid	  	 	 	 	(1,694	) 	 	 	(1,604	) 	 	 	(76	) 	 	 	(75	) 	 	 	(1,770	) 	 	 	(1,679	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Projected benefit obligation at end of year	  	 	 	 	35,089	 	 	 	33,440	 	 	 	1,357	 	 	 	1,729	 	 	 	36,446	 	 	 	35,169	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Change in plan assets:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Fair value of plan assets at beginning of year	  	 	 	 	21,691	 	 	 	22,031	 	 	 	23	 	 	 	21	 	 	 	21,714	 	 	 	22,052	 	
Return on plan assets	  	 	 	 	930	 	 	 	1,015	 	 	 	1	 	 	 	2	 	 	 	931	 	 	 	1,017	 	
Actuarial results	  	 	 	 	101	 	 	 	543	 	 	 	—  	  	 	 	—  	  	 	 	101	 	 	 	543	 	
Foreign currency translation	  	 	 	 	679	 	 	 	(995	) 	 	 	1	 	 	 	—  	  	 	 	680	 	 	 	(995	) 	
Employer contributions	  	 	 	 	642	 	 	 	933	 	 	 	75	 	 	 	75	 	 	 	717	 	 	 	1,008	 	
Employee contributions	  	 	 	 	—  	  	 	 	11	 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	11	 	
Settlements and curtailments	  	 	 	 	—  	  	 	 	(243	) 	 	 	—  	  	 	 	—  	  	 	 	—  	  	 	 	(243	) 	
Benefits paid	  	 	 	 	(1,694	) 	 	 	(1,604	) 	 	 	(76	) 	 	 	(75	) 	 	 	(1,770	) 	 	 	(1,679	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Fair value of plan assets at end of year	  	 	 	 	22,349	 	 	 	21,691	 	 	 	24	 	 	 	23	 	 	 	22,373	 	 	 	21,714	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Amounts recognized in the balance sheets:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Funded status	  	 	 	 	12,740	 	 	 	11,749	 	 	 	1,333	 	 	 	1,706	 	 	 	14,073	 	 	 	13,455	 	
Unrecognized prior services	  	 	 	 	—  	  	 	 	3	 	 	 	—  	  	 	 	2	 	 	 	—  	  	 	 	5	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Net projected liability recognized in the balance sheet	  	Ps	 	 	12,740	 	 	 	11,752	 	 	 	1,333	 	 	 	1,708	 	 	 	14,073	 	 	 	13,460	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
As of December 31, 2013 and 2012, plan assets were measured at their estimated fair value and consisted of:

 	  	 	 	2013	 	  	2012	 	
Cash	  	Ps	 	 	1,761	 	  	 	1,353	 	
Investments in corporate bonds	  	 	 	 	3,091	 	  	 	3,619	 	
Investments in government bonds	  	 	 	 	7,170	 	  	 	7,859	 	
 	  	 	 	 	 	 	  	 	 	 	
Total fixed-income securities	  	 	 	 	12,022	 	  	 	12,831	 	
 	  	 	 	 	 	 	  	 	 	 	
Investment in marketable securities	  	 	 	 	7,178	 	  	 	5,651	 	
Other investments and private funds	  	 	 	 	3,173	 	  	 	3,232	 	
 	  	 	 	 	 	 	  	 	 	 	
Total variable-income securities	  	 	 	 	10,351	 	  	 	8,883	 	
 	  	 	 	 	 	 	  	 	 	 	
Total plan assets	  	Ps	 	 	22,373	 	  	 	21,714	 	

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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Defined benefit pension plans – continued
 
As of December 31, 2013 and 2012, based on the hierarchy of fair values established in IFRS 13 (note 16C), investments in plan assets are summarized as follows:

 	  	 	 	2013	 	 	2012	 	
(Millions of pesos)	  	 	 	Level 1	 	 	Level 2	 	 	Level 3	 	 	Total	 	 	Level 1	 	 	Level 2	 	 	Level 3	 	 	Total	 	
Cash	  	Ps	 	 	1,654	  	 	 	107	  	 	 	—  	  	 	 	1,761	  	 	 	1,353	  	 	 	—  	  	 	 	—  	  	 	 	1,353	  	
Investments in corporate bonds	  	 	 	 	2,524	  	 	 	567	  	 	 	—  	  	 	 	3,091	  	 	 	2,685	  	 	 	934	  	 	 	—  	  	 	 	3,619	  	
Investments in government bonds	  	 	 	 	7,170	  	 	 	—  	  	 	 	—  	  	 	 	7,170	  	 	 	7,859	  	 	 	—  	  	 	 	—  	  	 	 	7,859	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total fixed-income securities	  	 	 	 	11,348	  	 	 	674	  	 	 	—  	  	 	 	12,022	  	 	 	11,897	  	 	 	934	  	 	 	—  	  	 	 	12,831	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Investment in marketable securities	  	 	 	 	5,771	  	 	 	1,407	  	 	 	—  	  	 	 	7,178	  	 	 	4,550	  	 	 	1,102	  	 	 	—  	  	 	 	5,652	  	
Other investments and private funds	  	 	 	 	947	  	 	 	2,218	  	 	 	8	  	 	 	3,173	  	 	 	1,362	  	 	 	1,869	  	 	 	—  	  	 	 	3,231	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total variable-income securities	  	 	 	 	6,718	  	 	 	3,625	  	 	 	8	  	 	 	10,351	  	 	 	5,912	  	 	 	2,971	  	 	 	—  	  	 	 	8,883	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total plan assets	  	Ps	 	 	18,066	  	 	 	4,299	  	 	 	8	  	 	 	22,373	 	 	 	17,809	  	 	 	3,905	  	 	 	—  	  	 	 	21,714	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
As of December 31, 2013, estimated payments for pensions and other postretirement benefits over the next ten years were as follows:

 	  	2013	 	
2014	  	 	2,188	  	
2015	  	 	2,066	  	
2016	  	 	2,114	  	
2017	  	 	2,182	  	
2018	  	 	2,170	  	
2019 – 2023	  	 	12,066	  	
The most significant assumptions used in the determination of the net periodic cost were as follows:

 	  	2013	 	  	2012	 	
 	  	Mexico	 	 	United
States	 	 	United
Kingdom	 	 	Range of rates in
other countries	 	  	Mexico	 	 	United
States	 	 	United
Kingdom	 	 	Range of rates in
other countries	 	
Discount rates	  	 	7.0	% 	 	 	3.9	% 	 	 	4.6	% 	 	 	2.7% – 7.0%	  	  	 	8.0	% 	 	 	5.2	% 	 	 	5.0	% 	 	 	4.2% – 8.5%	  	
Rate of return on plan assets	  	 	7.0	% 	 	 	3.9	% 	 	 	4.6	% 	 	 	2.7% – 7.0%	  	  	 	8.0	% 	 	 	5.2	% 	 	 	5.0	% 	 	 	4.2% – 8.5%	  	
Rate of salary increases	  	 	4.0	% 	 	 	—  	  	 	 	3.1	% 	 	 	2.3% – 5.0%	  	  	 	4.0	% 	 	 	—  	  	 	 	3.2	% 	 	 	2.5% – 5.0%	  	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Defined benefit pension plans – continued
 
As of December 31, 2013 and 2012, the aggregate projected benefit obligation (“PBO”) for pension plans and other postretirement benefits and the plan assets by country were as follows:

 	  	 	 	2013	 	  	2012	 	
 	  	 	 	PBO	 	  	Assets	 	  	Deficit	 	  	PBO	 	  	Assets	 	  	Deficit	 	
Mexico	  	Ps	 	 	3,355	  	  	 	693	  	  	 	2,662	  	  	 	3,595	  	  	 	574	  	  	 	3,021	  	
United States	  	 	 	 	4,654	  	  	 	3,272	  	  	 	1,382	  	  	 	5,148	  	  	 	3,106	  	  	 	2,042	  	
United Kingdom	  	 	 	 	22,078	  	  	 	17,030	  	  	 	5,048	  	  	 	20,162	  	  	 	16,812	  	  	 	3,350	  	
Germany	  	 	 	 	3,600	  	  	 	295	  	  	 	3,305	  	  	 	3,479	  	  	 	272	  	  	 	3,207	  	
Other countries	  	 	 	 	2,759	  	  	 	1,083	  	  	 	1,676	  	  	 	2,785	  	  	 	950	  	  	 	1,835	  	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	  	Ps	 	 	36,446	  	  	 	22,373	  	  	 	14,073	  	  	 	35,169	  	  	 	21,714	  	  	 	13,455	  	
 	  	 	 	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
In some countries, CEMEX has established health care benefits for retired personnel limited to a certain number of years after retirement. As of December 31, 2013 and 2012, the projected benefits obligation related to these benefits was approximately Ps908 and Ps1,247, respectively. The medical inflation rates used to determine the projected benefits obligation of these benefits in 2013 and 2012 for Mexico were 7.0%, for Puerto Rico 4.9%, the United States 4.6%, and for the United Kingdom were 6.6%.
Significant events related to employees’ pension benefits and other postretirement benefits
Effective December 31, 2013, in connection with the closure in 2010 of the Davenport Plant in California, United States, and all benefits under the Medical Plan ceased to former RMC Davenport employees and their spouses. This plan amendment under IAS 19 resulted in an adjustment to past service cost which generated a gain of approximately Ps94 recognized immediately through the 2013 benefit cost. In addition, certain reductions in workforce affected CEMEX’s pension plans in Spain and the Philippines, which led to curtailment gains of approximately Ps18 also recognized through the 2013 benefit cost.
Applicable regulation in the United Kingdom requires entities to maintain plan assets at a level similar to that of the obligations. In November 2012, in order to better manage CEMEX’s obligations under its defined benefit pension schemes and future cash funding requirements thereof, CEMEX implemented an asset backed pension funding arrangement in its operations in the United Kingdom by means of which CEMEX transferred certain operating assets to a non-transferable limited partnership, owned, controlled and consolidated by CEMEX UK with a total value of approximately US$553 and entered into lease agreements for the use of such assets with the limited partnership, in which the pension schemes hold a limited interest. On an ongoing basis CEMEX UK will make annual rental payments of approximately US$20, increasing at annual rate of 5%, which will generate profits in the limited partnership that are then distributed to the pension schemes. As previously mentioned, the purpose of the structure, in addition to provide the pension schemes with secured assets producing an annual return over a period of 25 years, improves the security for the trustees of the pension schemes, and reduces the level of cash funding that CEMEX UK will have to make in future periods. In 2037, on expiry of the lease arrangements, the limited partnership will be terminated and under the terms of the agreement, the remaining assets will be distributed to CEMEX UK. Any future profit distribution from the limited partnership to the pension fund will be considered as an employer contribution to plan assets in the period in which they occur.
On February 29, 2012, CEMEX UK agreed with the trustees of its employees’ defined benefits pension plans to the modification of certain terms and benefits accrued until February 29, 2012. Beginning on this date, the
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Significant events related to employees’ pension benefits and other postretirement benefits – continued
 
eligible employees in the United Kingdom started to accrue pension benefits in the existing defined contribution scheme. In addition, during 2012, the adjustment for the change in the consumer price index explained below was extended to retirees under the pension plan. As of the modifications dates, the changes to the defined benefits schemes resulted in a curtailment event and also affected prior service costs, generating a net gain in the operating results for 2012 of approximately Ps1,914 (US$146), mainly related to: 1) the effect of replacing salary increases with inflationary ones for the current retirees, and 2) the removal of certain death and termination benefits. In addition, during 2011, based on the applicable regulation, CEMEX UK communicated to the pension plans’ trustees its decision to adopt for active beneficiaries the consumer price index for purposes of the restatement by inflation of the related obligations, in replacement of the retail price index, which had been used until 2010, resulting in a decrease in the projected benefit obligation related to past services of approximately Ps509, which is reflected in both the table of the net periodic cost in 2011 and the table of the reconciliation of the benefits’ obligations, within the line item of actuarial results. These plans in the United Kingdom have been closed to new participants since 2004.
During 2011, following the required notices to the plans’ trustees, CEMEX settled its defined benefit pension plans in the Republic of Ireland. As a result, the available assets were used to provide beneficiaries’ entitlements in accordance with the agreement reached with the plans’ trustees. As of the wind up date, the total deficit in these schemes was approximately €15 (US$19 or Ps266). As part of the wind up agreement to settle this liability, CEMEX agreed to make contributions of approximately €11, of which approximately €10 will be paid over the next 20 years subject to a compound annual interest rate of 3% from the date of wind up to the date of payment. CEMEX granted security over certain non-operating assets for this payment. The wind up gave rise to a settlement gain in 2011 of approximately €4 (US$6 or Ps70), and the remaining liability as of December 31, 2011 of approximately €10 (US$13 or Ps181) was reclassified to other current and non-current liabilities, as appropriate.
During 2012, in Puerto Rico, CEMEX eliminated coverage under the medical plan for any participants who had not retired by January 2, 2012. This event generated a curtailment gain of approximately Ps18 recognized as part of the net periodic cost. The net periodic cost for 2011 reflects a curtailment gain of approximately Ps107 related to the significant decrease in the number of active participants in the Mexican plans, of which approximately Ps97 refer to other postretirement benefits.
Sensitivity analysis of pension and other postretirement benefits
For the year ended December 31, 2013, CEMEX performed sensitivity analyses on the most significant assumptions that affect the PBO, considering reasonable independent changes of plus or minus 50 basis points in each of these assumptions. The increase (decrease) that would have resulted in the PBO of pensions and other postretirement benefits as of December 31, 2013 are shown below:

 	  	 	 	Pensions	 	 	Other benefits	 	 	Total	 	
 	  	 	 	+50 bps	 	 	-50 bps	 	 	+50 bps	 	 	-50 bps	 	 	+50 bps	 	 	-50 bps	 	
Assumptions:	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Discount Rate Sensitivity	  	Ps	 	 	(2,166	) 	 	 	2,418	  	 	 	(94	) 	 	 	35	  	 	 	(2,260	) 	 	 	2,453	  	
Salary Increase Rate Sensitivity	  	 	 	 	36	  	 	 	(29	) 	 	 	13	  	 	 	(12	) 	 	 	49	  	 	 	(41	) 	
Pension Increase Rate Sensitivity	  	 	 	 	1,567	  	 	 	(1,456	) 	 	 	—  	 	 	 	—  	 	 	 	1,567	  	 	 	(1,456	) 	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
19)	INCOME TAXES	
 
19A)	INCOME TAXES FOR THE PERIOD	
The amounts for income tax (expense) income to the statements of operations in 2013, 2012 and 2011 are summarized as follows:

 	  	 	 	2013	 	 	2012	 	 	2011	 	
Current income taxes	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
From Mexican operations	  	Ps	 	 	(12,227	) 	 	 	1,825	 	 	 	(11,010	) 	
From foreign operations	  	 	 	 	(2,013	) 	 	 	4,377	 	 	 	(3,326	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	(14,240	) 	 	 	6,202	 	 	 	(14,336	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Deferred income taxes	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
From Mexican operations	  	 	 	 	8,645	 	 	 	1,276	 	 	 	327	 	
From foreign operations	  	 	 	 	(615	) 	 	 	(13,521	) 	 	 	1,874	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	 	 	 	8,030	 	 	 	(12,245	) 	 	 	2,201	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	(6,210	) 	 	 	(6,043	) 	 	 	(12,135	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
As of December 31, 2013, consolidated tax loss and tax credits carryforwards and reserved carryforwards expire as follows:

 	  	 	 	Amount of
carryforwards	 	  	Amount of reserved
carryforwards	 	
2014	  	Ps	 	 	1,635	 	  	 	455	 	
2015	  	 	 	 	3,793	 	  	 	241	 	
2016	  	 	 	 	2,603	 	  	 	658	 	
2017	  	 	 	 	3,385	 	  	 	453	 	
2018 and thereafter	  	 	 	 	353,187	 	  	 	274,656	 	
 	  	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	364,603	 	  	 	276,463	 	

19B)	DEFERRED INCOME TAXES	
As of December 31, 2013 and 2012, the main temporary differences that generated the consolidated deferred income tax assets and liabilities are presented below:

 	  	 	 	2013	 	 	2012	 	
Deferred tax assets:	  	 	 	 	 	 	 	 	 	 	
Tax loss carryforwards and other tax credits	  	Ps	 	 	26,290	 	 	 	16,118	 	
Accounts payable and accrued expenses	  	 	 	 	7,511	 	 	 	11,734	 	
Intangible assets and deferred charges, net	  	 	 	 	8,647	 	 	 	9,786	 	
Others	  	 	 	 	211	 	 	 	177	 	
 	  	 	 	 	 	 	 	 	 	 	
Net deferred tax assets	  	 	 	 	42,659	 	 	 	37,815	 	
Deferred tax liabilities:	  	 	 	 	 	 	 	 	 	 	
Property, machinery and equipment	  	 	 	 	(32,099	) 	 	 	(33,672	) 	
Investments and other assets	  	 	 	 	(3,532	) 	 	 	(3,531	) 	
Others	  	 	 	 	—  	 	 	 	(426	) 	
 	  	 	 	 	 	 	 	 	 	 	
Total deferred tax liabilities	  	 	 	 	(35,631	) 	 	 	(37,629	) 	
 	  	 	 	 	 	 	 	 	 	 	
Net deferred tax asset	  	Ps	 	 	7,028	 	 	 	186	 	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Deferred income taxes – continued	 	
 
The breakdown of changes in consolidated deferred income taxes during 2013, 2012 and 2011 were as follows:

 	  	 	 	2013	 	 	2012	 	 	2011	 	
Deferred income tax (charged) credited to the statements of operations 1, 2	  	Ps	 	 	8,030	 	 	 	(12,245	) 	 	 	2,201	 	
Deferred income tax(charged) credited to stockholders’ equity	  	 	 	 	(1,167	) 	 	 	(570	) 	 	 	87	 	
Reclassification to other captions in the balance sheet	  	 	 	 	(21	) 	 	 	6	 	 	 	(801	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
Change in deferred income tax period	  	Ps	 	 	6,842	 	 	 	(12,809	) 	 	 	1,487	 	

1	In December 2013, considering the projections of estimated taxable income in the Parent Company resulting from the integration of the operations in Mexico that is described in note 26, CEMEX recognized deferred income tax assets in an amount of approximately Ps10,823.	
2	Considering current estimates of future taxable income in Spain and due to changes in the applicable regulations, during 2012, CEMEX reduced its deferred tax assets associated with tax loss carryforwards by approximately Ps17,018, against the deferred income tax expense for the period.	
Current and/or deferred income tax relative to items of other comprehensive loss during 2013, 2012 and 2011 were as follows:

 	  	 	 	2013	 	 	2012	 	 	2011	 	
Tax effects relative to foreign exchange fluctuations from debt (note 20B) 1	  	Ps	 	 	—  	  	 	 	(2,082	) 	 	 	3,391	  	
Tax effects relative to foreign exchange fluctuations from intercompany balances (note 20B)	  	 	 	 	(1,338	) 	 	 	(724	) 	 	 	1,424	  	
Tax effects relative to actuarial gains and (losses) (note 20B)	  	 	 	 	(122	) 	 	 	263	  	 	 	271	  	
Other effects2	  	 	 	 	253	  	 	 	(833	) 	 	 	(184	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	 	(1,207	) 	 	 	(3,376	) 	 	 	4,902	  	

1	Effective January 1, 2013, in connection with the change of the Parent Company’s functional currency described in note 2D there were no effects of foreign exchange fluctuations from the Parent Company’s US dollar-denominated debt within other comprehensive loss.	
2	In connection with the changes in the conversion options embedded into the mandatorily convertible securities and into the convertible notes as explained in note 16, a net deferred income tax effect of Ps1,298 was recognized directly into stockholders ´equity.	
For the recognition of deferred tax assets, CEMEX analyzes the aggregate amount of self-determined tax loss carryforwards included in its income tax returns in each country where CEMEX believes, based on available evidence, that the tax authorities would not reject such tax loss carryforwards; and the likelihood of the recoverability of such tax loss carryforwards prior to their expiration through an analysis of estimated future taxable income. If CEMEX believes that it is probable that the tax authorities would reject a self-determined deferred tax asset, it would decrease such asset. Likewise, if CEMEX believes that it would not be able to use a tax loss carryforward before its expiration or any other tax asset, CEMEX would not recognize such asset. Both situations would result in additional income tax expense for the period in which such determination is made. In order to determine whether it is probable that deferred tax assets will ultimately be realized, CEMEX takes into consideration all available positive and negative evidence, including factors such as market conditions, industry analysis, expansion plans, projected taxable income, carryforward periods, current tax structure, potential
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Deferred income taxes – continued	 	
 
changes or adjustments in tax structure, tax planning strategies, future reversals of existing temporary differences, etc. In addition, every reporting period, CEMEX analyzes its actual results versus its estimates, and adjusts, as necessary, its tax asset valuations. If actual results vary from CEMEX’s estimates, the deferred tax asset may be affected and necessary adjustments will be made based on relevant information. Any adjustments recorded will affect CEMEX’s statements of operations in such period.
As of December 31, 2013, CEMEX’s deferred tax loss carryforwards that have been recognized expire as follows:

 	  	 	 	Amount of
unreserved
carryforwards	 	
2014	  	Ps	 	 	1,180	 	
2015	  	 	 	 	3,552	 	
2016	  	 	 	 	1,945	 	
2017	  	 	 	 	2,932	 	
2018 and thereafter	  	 	 	 	78,531	 	
 	  	 	 	 	 	 	
 	  	Ps	 	 	88,140	 	
 	  	 	 	 	 	 	
In connection with CEMEX’s deferred tax loss carryforwards presented in the table above, as of December 31, 2013, in order to realize the benefits associated with such deferred tax assets that have not been reserved, before their expiration, CEMEX would need to generate approximately Ps88,140 in consolidated pre-tax income in future periods. For the years ended December 31, 2013, 2012 and 2011, CEMEX has reported pre-tax losses on a worldwide consolidated basis. Nonetheless, based on the same forecasts of future cash flows and operating results used by CEMEX’s management to allocate resources and evaluate performance in the countries in which CEMEX operates, which include expected growth in revenues and reductions in interest expense in several countries due to a reduction in intra-group debt balances, along with the implementation of feasible tax strategies, CEMEX believes that it will recover the balance of its tax loss carryforwards that have not been reserved before their expiration. In addition, CEMEX concluded that, the deferred tax liabilities that were considered in the analysis of recoverability of its deferred tax assets will reverse in the same period and tax jurisdiction of the related recognized deferred tax assets. Moreover, a certain amount of CEMEX’s deferred tax assets refer to operating segments and tax jurisdictions in which CEMEX is currently generating taxable income or in which, according to CEMEX’s management cash flow projections, will generate taxable income in the relevant periods before the expiration of the deferred tax assets, considering that the amount of taxable income required to recover CEMEX’s deferred tax assets over the next four years is not significant, and that approximately Ps78,531 out of the Ps88,140 of consolidated pre-tax income mentioned above would be required over several years in 2018 and thereafter.
CEMEX, S.A.B de C.V. has not provided for any deferred tax liability for the undistributed earnings generated by its subsidiaries recognized under the equity method, considering that such undistributed earnings are expected to be reinvested, and to not generate income tax in the foreseeable future. Likewise, CEMEX does not recognize a deferred income tax liability related to its investments in subsidiaries and interests in joint ventures, considering that CEMEX controls the reversal of the temporary differences arising from these investments.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
19C)	EFFECTIVE TAX RATE	
Differences between the financial reporting and the corresponding tax basis of assets and liabilities and the different income tax rates and laws applicable to CEMEX, among other factors, give rise to permanent differences between the statutory tax rate applicable in Mexico, and the effective tax rate presented in the consolidated statements of operations, which in 2013, 2012 and 2011 were as follows:

 	  	2013	 	 	2012	 	 	2011	 	
 	  	%	 	 	%	 	 	%	 	
Consolidated statutory tax rate	  	 	(30.0	) 	 	 	(30.0	) 	 	 	(30.0	) 	
Non-taxable dividend income	  	 	(5.6	) 	 	 	(0.7	) 	 	 	(1.9	) 	
Expenses and other non-deductible items1	  	 	352.7	  	 	 	7.7	  	 	 	53.4	  	
Unrecognized tax benefits in the year	  	 	(37.8	) 	 	 	(49.5	) 	 	 	32.4	  	
Non-taxable sale of marketable securities and fixed assets	  	 	(48.1	) 	 	 	(14.2	) 	 	 	(14.4	) 	
Difference between book and tax inflation	  	 	39.9	  	 	 	34.0	  	 	 	9.9	  	
Other tax non-accounting benefits2	  	 	(87.0	) 	 	 	166.4	  	 	 	45.9	  	
Others	  	 	(1.5	) 	 	 	0.4	  	 	 	(0.5	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Effective consolidated tax rate	  	 	182.6	  	 	 	114.1	  	 	 	94.8	  	

1	In 2013, this line item includes the effects associated with the termination of the tax consolidation regime in Mexico.	
2	Includes: a) the effects of the different income tax rates in the countries where CEMEX operates and other permanent differences; b) changes during the period related to deferred tax assets originated by tax loss carryforwards (note 19B); and c) changes in the balance of provisions for tax uncertainties during the period, as described in note 19D.	
 
19D)	UNCERTAIN TAX POSITIONS AND SIGNIFICANT TAX PROCEEDINGS	
As of December 31, 2013 and 2012, as part of short-term and long-term provisions and other liabilities (note 17), CEMEX has recognized provisions related to unrecognized tax benefits in connection with uncertain tax positions taken, in which it is deemed probable that the tax authority would differ from the position adopted by CEMEX (note 2O). As of December 31, 2013, the tax returns submitted by some subsidiaries of CEMEX located in several countries are under review by the respective tax authorities in the ordinary course of business. CEMEX cannot anticipate if such reviews will result in new tax assessments, which would, should any arise, be appropriately disclosed and/or recognized in the financial statements.
A summary of the beginning and ending amount of unrecognized tax benefits for the years ended December 31, 2013, 2012 and 2011, excluding interest and penalties, is as follows:

 	  	 	 	 	2013	 	 	2012	 	 	2011	 	
Balance of tax positions at beginning of year	  	Ps	 	  	 	 	1,235	  	 	 	21,936	  	 	 	17,260	  	
Additions for tax positions of prior years	  	 	 	 	 	 	207	  	 	 	325	  	 	 	1,162	  	
Additions for tax positions of current year	  	 	 	 	 	 	68	  	 	 	110	  	 	 	4,812	  	
Reductions for tax positions related to prior years and other items	  	 	 	 	 	 	(42	) 	 	 	(14,601	) 	 	 	(2,513	) 	
Settlements and reclassifications	  	 	 	 	 	 	(81	) 	 	 	(4,053	) 	 	 	(121	) 	
Expiration of the statue of limitations	  	 	 	 	 	 	(103	) 	 	 	(1,599	) 	 	 	(120	) 	
Foreign currency translation effects	  	 	 	 	 	 	(1	) 	 	 	(883	) 	 	 	1,456	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance of tax positions at end of year	  	Ps	 	  	 	 	1,283	  	 	 	1,235	  	 	 	21,936	  	

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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Significant	tax proceedings – continued	
 
Tax examinations can involve complex issues, and the resolution of issues may span multiple years, particularly if subject to negotiation or litigation. Although CEMEX believes its estimates of the total unrecognized tax benefits are reasonable, uncertainties regarding the final determination of income tax audit settlements and any related litigation could affect the amount of total unrecognized tax benefits in future periods. It is difficult to estimate the timing and range of possible changes related to the uncertain tax positions, as finalizing audits with the income tax authorities may involve formal administrative and legal proceedings. Accordingly, it is not possible to reasonably estimate the expected changes to the total unrecognized tax benefits over the next 12 months, although any settlements or statute of limitations expirations may result in a significant increase or decrease in the total unrecognized tax benefits, including those positions related to tax examinations being currently conducted.
As of December 31, 2013, certain significant proceedings associated with these tax positions are as follows:
 
•	 	Regarding Notices of Proposed Adjustment (“NOPAs”) issued during 2011 by the U.S. Internal Revenue Service (“IRS”) for the years 2005 through 2009 proposing certain adjustments to CEMEX’s subsidiaries tax returns in the United States, a resolution was reached with the IRS regarding the income tax audits for said years and also on tax losses applicable to prior years to recover taxes previously paid as well as the amount of tax losses to be carried forward for future years. The statute of limitation for the years of 2005 through 2009 expired and accordingly, no further adjustments will be made. As of December 31, 2013, the IRS concluded its audits for the years 2010 and 2011. The final findings did not materially alter the reserves CEMEX had set aside for these matters and, as such, the amounts are not considered material to its financial results. As of December 31, 2013, no other audit periods have been opened.	
 
•	 	On December 17, 2012, the Mexican authorities published the decree of the Federation Revenues Law for the 2013 tax year. The decree contains a transitory amnesty provision that grants tax amnesty of up to 80% of certain tax proceedings originated before the 2007 tax period, and 100% of interest and penalties, as well as 100% of interest and penalties of tax proceedings originated in the 2007 tax period and thereafter. CEMEX was a beneficiary of such transitory amnesty provision in connection with several of the Mexican tax proceedings mentioned in the following paragraphs. As a result, CEMEX reduced the provision accrued in prior years related to these tax proceedings and the effect is included as part of the changes of unrecognized tax benefits during the year 2012 presented in the table above.	
 
•	 	On July 7, 2011, the tax authorities in Spain notified CEMEX España of a tax audit process in Spain covering the tax years from and including 2006 to 2009. The tax authorities in Spain have challenged part of the tax losses reported by CEMEX España for such years. As of December 31, 2013, discussions with the tax authorities in Spain are ongoing and CEMEX España has not been formally notified regarding any final taxes due from the audit. According to applicable tax regulations in Spain, a penalty could be imposed on the amount of losses under discussion, but at this stage of the process, as of December 31, 2013, CEMEX is not able to assess the likelihood of a penalty being imposed or the potential damages which would be borne by CEMEX España in case a penalty is imposed. However, in case any penalty is imposed by the tax authorities in Spain, the laws of Spain provide a number of appeals that could be filed against such penalty without making any payment until they are finally resolved. As a result of conversations that are still ongoing with the tax authorities in Spain, that no penalty has been imposed on CEMEX España at this point and because CEMEX España could appeal against any fine that could be imposed, at this time this matter does not have a material adverse impact on CEMEX’s financial results. If a penalty is imposed and all the appeals were not resolved in favor of CEMEX España, the penalty could have a material adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Significant	tax proceedings – continued	
 
•	 	Pursuant to amendments to the Mexican income tax law effective January 1, 2005, Mexican companies with investments in foreign entities whose income tax liability is less than 75% of the income tax that would be payable in Mexico, are required to pay taxes in Mexico on net passive income, such as dividends, royalties, interest, capital gains and rental fees obtained by such entities, provided, however, that those revenues are not derived from entrepreneurial activities in such countries. CEMEX challenged the constitutionality of the amendments before the Mexican federal courts. In September 2008, the Supreme Court of Justice ruled the amendments were constitutional for tax years 2005 to 2007. On March 1, 2012 and July 5, 2012, CEMEX self-assessed the taxes corresponding to the 2005 and 2006 tax years, respectively, for a total amount, inclusive of surcharges and carry-forward charges, of approximately Ps4,642 (US$358) for 2005 and Ps1,100 (US$86) for 2006, of which 20%, equivalent to approximately Ps928 (US$72) for 2005 and Ps221 (US$17) for 2006, was paid in connection with the submission of amended tax returns. The remaining 80% of such total amounts would have been due in February 2013 and July 2013 for the 2005 and 2006 tax years, respectively, plus additional interest if CEMEX would have elected to extend the payment date in thirty-six monthly installments. On January 31, 2013 in connection with the Amnesty Provision, CEMEX reached a settlement agreement with the tax authorities consisting in a single final payment according to the rules set forth by the transitory provision described above. Changes in the provision were recognized within income tax expense in 2012. CEMEX paid the agreed upon amount on February 1, 2013.	
 
•	 	In November 2009, Mexico approved amendments to the income tax law, which became effective on January 1, 2010. Such amendments modified the tax consolidation regime by requiring entities to determine income taxes as if the tax consolidation provisions did not exist from 1999 onward, specifically turning into taxable items: a) the difference between the sum of the equity of the controlled entities for tax purposes and the equity of the consolidated entity for tax purposes; b) dividends from the controlled entities for tax purposes to CEMEX, S.A.B. de C.V.; and c) other transactions that represented the transfer of resources between the companies included in the tax consolidation. In December 2010, pursuant to miscellaneous rules, the tax authority in Mexico granted the option to defer the calculation and payment of the income tax over the difference in equity explained above, until the subsidiary was disposed of or CEMEX eliminates the tax consolidation. Tax liabilities associated with the tax loss carryforwards used in the tax consolidation of the Mexican subsidiaries are not offset with deferred tax assets in the balance sheet. The realization of these tax assets is subject to the generation of future tax earnings in the controlled subsidiaries that generated the tax loss carryforwards in the past.	
In addition, in connection with new amendments to the income tax law in Mexico approved in December 2013 and effective beginning January 1, 2014, the tax consolidation regime in effect until December 31, 2013, was replaced prospectively by a new integration regime, to which CEMEX will not apply, resulting in that beginning in 2014, each Mexican entity will determine its income taxes based solely in its individual results. A period of up to 10 years has been established for the settlement of the liability for income taxes related to the tax consolidation regime accrued until December 31, 2013, amount which considering the new rules issued for the disconnection of the tax consolidation regime amounts to approximately Ps24,804 as described in the table below.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Significant	tax proceedings – continued	
 
Changes in the Parent Company’s tax payable associated with the tax consolidation in Mexico in 2013, 2012 and 2011 were as follows:

 	  	 	 	 	2013	 	 	2012	 	 	2011	 	
Balance at beginning of period	  	Ps	 	  	 	 	14,546	 	 	 	12,410	 	 	 	10,079	 	
Income tax received from subsidiaries	  	 	 	 	 	 	1,805	 	 	 	2,089	 	 	 	2,352	 	
Restatement for the period	  	 	 	 	 	 	1,234	 	 	 	745	 	 	 	485	 	
Payments during the period	  	 	 	 	 	 	(2,035	) 	 	 	(698	) 	 	 	(506	) 	
Effects associated with the termination of the tax consolidation regime	  	 	 	 	 	 	9,254	 	 	 	—  	  	 	 	—  	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Balance at end of period	  	Ps	 	  	 	 	24,804	 	 	 	14,546	 	 	 	12,410	 	

•	 	On January 2011, the Mexican tax authority notified CEMEX, S.A.B. de C.V., of a tax assessment for approximately Ps996 (US$77) pertaining to changes to the income tax law approved in 2005 that permits the deductibility of the cost of goods sold deducted in the determination of income taxes, instead of using the amount of purchases. Since there were inventories as of December 31, 2004, in a transition provision, the law allowed the inventory to be accumulated as income (thus reversing the deduction via purchases) and then be deducted from 2005 onwards as cost of goods sold. In order to compute the income resulting from the inventories in 2004, the law allowed this income to be offset against accumulated tax losses of some of CEMEX’s subsidiaries. The authorities argued that because of this offsetting, the right to use such losses at the consolidated level had been lost; therefore, CEMEX had to increase its consolidated income or decrease its consolidated losses. During May 2013, CEMEX settled this tax assessment as part of the Amnesty Provision described above.	
 
•	 	On November 16, 2011, the Mexican tax authorities notified Centro Distribuidor de Cemento, S.A. de C.V. and Mexcement Holdings, S.A. de C.V., subsidiaries of CEMEX in Mexico, of tax assessments related to direct and indirect investments in entities considered to be preferential tax regimes, in the amount of approximately Ps1,251 (US$101) and approximately Ps759 (US$59), respectively. In February 2013, CEMEX filed a claim against these assessments before the corresponding courts. During May 2013, CEMEX settled these tax assessments based on the Amnesty Provision described below.	
 
•	 	On April 1, 2011, the Colombian Tax Authority notified CEMEX Colombia of a special proceeding (requerimiento especial ) in which the Colombian Tax Authority rejected certain deductions taken by CEMEX Colombia in its 2009 year-end tax return. The Colombian Tax Authority assessed an increase in taxes to be paid by CEMEX Colombia in the amount of approximately Ps90 billion Colombian Pesos (approximately US$47 or Ps610) and imposed a penalty in the amount of approximately Ps144 billion Colombian Pesos (approximately US$75 or Ps975). The Colombian Tax Authority argues that certain expenses are not deductible for fiscal purposes because they are not linked to direct revenues recorded in the same fiscal year, without taking into consideration that future revenue will be taxed with income tax in Colombia. CEMEX Colombia responded to the special proceeding notice June 25, 2011. On December 15, 2011, the Colombian Tax Authority issued its final determination, which confirmed the information in the special proceeding. CEMEX Colombia appealed the final determination on February 15, 2012. On January 17, 2013, CEMEX Colombia was notified of the resolution confirming the official liquidation. On May 10, 2013, CEMEX Colombia appealed the final determination. At this stage of the proceeding, as of December 31, 2013, CEMEX is not able to assess the likelihood of an adverse result in the proceedings, but if adversely resolved, this proceeding could have a material adverse impact on CEMEX’s results of operations, liquidity or financial position.	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Significant	tax proceedings – continued	
 
•	 	On November 10, 2010, the Colombian tax authority notified CEMEX Colombia of a proceeding in which the Colombian tax authority rejected certain tax losses taken by CEMEX Colombia in its 2007 and 2008 year-end tax return. In addition, the Colombian tax authority assessed an increase in taxes to be paid by CEMEX Colombia in the amount of approximately 43 billion Colombian pesos (US$22 or Ps291) and imposed a penalty in the amount of approximately 69 billion Colombian pesos (US$36 or Ps467), both amounts as of December 31, 2013. The Colombian tax authority argues that CEMEX Colombia is limited in its use of prior year tax losses to 25% of such losses per subsequent year. CEMEX believes that the tax provision that limits the use of prior year tax losses does not apply in the case of CEMEX Colombia because the applicable tax law was repealed in 2006. Furthermore, CEMEX believes that the Colombian tax authority is no longer able to review the 2008 tax return because the time to review such return has already expired pursuant to Colombian law. The Colombian tax authority issued an official settlement on July 27, 2011, which confirmed its position in the special request. The official settlement was appealed by CEMEX on September 27, 2011. On July 31, 2012, the Colombian tax authority notified CEMEX Colombia of the resolution confirming the official liquidation. In November 2012, CEMEX Colombia appealed the official assessment. CEMEX believes it has adequately reserved for this proceeding. During 2013, CEMEX Colombia reached a settlement agreement with the Colombian Tax Authority regarding its 2007 and 2008 year-end tax returns. The amount paid in connection with the settlement regarding the 2007 and 2008 year-end tax returns was 47 billion Colombian Pesos (US$24 or Ps318). On August 26, 2013 and September 16, 2013, the settlement confirmations were signed in connection with the years 2007 and 2008, respectively, representing the official conclusion of this proceeding.	
 
20)	STOCKHOLDERS’ EQUITY	
As of December 31, 2013 and 2012, stockholders’ equity excludes investments in CPOs of CEMEX, S.A.B. de C.V. held by subsidiaries of approximately Ps269 (17,558,782 CPOs) and Ps229 (18,028,276 CPOs), respectively, which were eliminated within “Other equity reserves.”
 
20A)	COMMON STOCK AND ADDITIONAL PAID-IN CAPITAL	
As of December 31, 2013 and 2012, the breakdown of common stock and additional paid-in capital was as follows:

 	  	 	 	 	2013	 	  	2012	 	
Common stock	  	Ps	 	  	 	 	4,143	 	  	 	4,139	 	
Additional paid-in capital	  	 	 	 	 	 	84,800	 	  	 	113,929	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	
 	  	Ps	 	 	 	 	88,943	 	  	 	118,068	 	
 	  	 	 	 	 	 	 	 	  	 	 	 	
During December 2013, the Company’s management approved restitution to the consolidated line item of “Retained earnings” for Ps35,667, by means of transfer with charge to the line item of “Additional paid-in capital.” This transfer represents a reclassification between line items within CEMEX’s consolidated stockholders’ equity that does not affect its consolidated amount.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Common	stock and additional paid-in capital – continued	
 
As of December 31, 2013 and 2012, the common stock of CEMEX, S.A.B. de C.V. was represented as follows:

 	  	2013	 	  	2012	 	
Shares 1	  	Series A 2	 	  	Series B 3	 	  	Series A 2	 	  	Series B 3	 	
Subscribed and paid shares	  	 	22,847,063,194	 	  	 	11,423,531,597	 	  	 	21,872,295,096	 	  	 	10,936,147,548	 	
Unissued shares authorized for stock compensation programs	  	 	1,055,956,580	 	  	 	527,978,290	 	  	 	1,155,804,458	 	  	 	577,902,229	 	
Shares that guarantee the issuance of convertible  4	  	 	6,408,438,520	 	  	 	3,204,219,260	 	  	 	6,162,438,520	 	  	 	3,081,219,260	 	
Shares authorized for the issuance of stock or convertible  5	  	 	4,146,404	 	  	 	2,073,202	 	  	 	4,146,404	 	  	 	2,073,202	 	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
 	  	 	30,315,604,698	 	  	 	15,157,802,349	 	  	 	29,194,684,478	 	  	 	14,597,342,239	 	

1	As of December 31, 2013 and 2012, 13,068,000,000 shares correspond to the fixed portion, and 32,405,407,047 shares in 2013, 30,724,026,717 shares in 2012, correspond to the variable portion.	
2	Series “A” or Mexican shares must represent at least 64% of CEMEX’s capital stock.	
3	Series “B” or free subscription shares must represent at most 36% of CEMEX’s capital stock.	
4	Shares that guarantee the conversion of both the voluntary and mandatorily convertible securities (note 16B).	
5	Shares authorized for the issuance of stock through a public offer or through the issuance of convertible securities.	
On March 21, 2013, stockholders at the annual ordinary shareholders’ meeting approved resolutions to: (i) increase the variable common stock through the capitalization of retained earnings by issuing up to 1,312.3 million shares (437.4 million CPOs), which shares were issued, representing an increase in common stock of approximately Ps4, considering a nominal value of Ps0.00833 per CPO, and additional paid-in capital of approximately Ps5,987; (ii) increase the variable common stock by issuing up to 369 million shares (123 million CPOs), which will be kept in CEMEX’s treasury to be used to preserve the anti-dilutive rights of note holders pursuant CEMEX’s convertible securities (note 16B). Also, on March 21, 2013, stockholders at the extraordinary shareholders’ meeting approved resolutions pursuant to which all or any part of the shares currently kept in CEMEX’s treasury as a guarantee for the potential issuance of shares through CEMEX’s convertible securities may be re-allocated to ensure the conversion rights of any new convertible securities if any new convertible securities are issued.
On February 23, 2012, stockholders at the annual ordinary shareholders’ meeting approved resolutions to: (i) increase the variable common stock through the capitalization of retained earnings by issuing up to 1,256.4 million shares (418.8 million CPOs), which shares were issued, representing an increase in common stock of approximately Ps3.4, considering a nominal value of Ps0.00833 per CPO, and additional paid-in capital of approximately Ps4,133.8; (ii) increase the variable common stock by issuing up to 345 million shares (115 million CPOs), which will be kept in CEMEX’s treasury to be used to preserve the anti-dilutive rights of note holders pursuant CEMEX’s convertible securities (note 16B); (iii) the cancellation of 5,122 million treasury shares, which were not subject to public offer or convertible notes issuance in the 24 months period authorized by the extraordinary shareholders meeting held on September 4, 2009; and (iv) increase the variable common stock by issuing up to 1,500 million shares (500 million CPOs) which will be kept in CEMEX’s treasury and used to be subscribed and paid pursuant to the terms and conditions of CEMEX’s long-term compensation stock program (note 21), without triggering the shareholders’ preemptive rights.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Common stock and additional paid-in capital – continued	 	
 
On February 24, 2011, stockholders at the extraordinary shareholders’ meeting approved an increase in the variable portion of the Parent Company’s capital stock of up to 6 billion shares (2 billion CPOs). Pursuant to the resolution approved by CEMEX, S.A.B. de C.V.’s stockholders, the subscription and payment of the new shares may occur through a public offer of CPOs and/or the issuance of convertible securities. These shares are kept in CEMEX’s treasury as a guarantee for the potential issuance of shares through CEMEX’s convertible securities (note 16B).
On February 24, 2011, stockholders at the annual ordinary shareholders’ meeting approved resolutions to: (i) increase the variable common stock through the capitalization of retained earnings, issuing up to 1,202.6 million shares (400.9 million CPOs) based on a price of Ps10.52 per CPO. Stockholders received 3 new shares for each 75 shares held (1 new CPO for each 25 CPOs held), through the capitalization of retained earnings. As a result, shares equivalent to approximately 401 million CPOs were issued, representing an increase in common stock of approximately Ps3, considering a nominal value of Ps0.00833 per CPO, and additional paid-in capital of approximately Ps4,213; and (ii) increase the variable common stock by up to 60 million shares (20 million CPOs) issuable as a result of antidilution adjustments upon conversion of CEMEX’s convertible securities (note 16B). These shares are kept in CEMEX’s treasury. There was no cash distribution and no entitlement to fractional shares.
The CPOs issued pursuant to the exercise of options under the “Fixed program” (note 21) generated additional paid-in capital of approximately Ps11 in 2011 and increased the number of shares outstanding. In addition, in connection with the long-term executive stock-based compensation program (note 21) in 2013, 2012 and 2011, CEMEX issued approximately 49.6 million, 46.4 million and 43.4 million CPOs, respectively, generating an additional paid-in capital of approximately Ps551 in 2013, Ps486 in 2012 and Ps495 in 2011, associated with the fair value of the compensation received by executives.
 
20B)	OTHER EQUITY RESERVES	
As of December 31, 2013 and 2012 other equity reserves are summarized as follows:

 	  	 	 	 	2013	 	 	2012	 	
Cumulative translation effect, net of effects from perpetual debentures and deferred income taxes recognized directly in equity (notes 19B and 20D)	  	Ps	 	  	 	 	12,152	  	 	 	13,523	  	
Cumulative actuarial gains (losses)	  	 	 	 	 	 	(3,142	) 	 	 	(2,751	) 	
Effects associated with CEMEX’s convertible securities 1	  	 	 	 	 	 	6,296	  	 	 	1,971	  	
Treasury shares held by subsidiaries	  	 	 	 	 	 	(269	) 	 	 	(229	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	  	 	 	15,037	  	 	 	12,514	  	

1	Represents the equity component upon the issuance of CEMEX’s convertible securities described in note 16B, as well as the effects associated with such securities in connection with the change in the Parent Company’s functional currency (note 2D). Upon conversion of these securities, the balances will be correspondingly reclassified to common stock and/or additional paid-in capital. (note 16A).	
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other equity reserves – continued	 	
 
For the years ended December 31, 2013, 2012 and 2011, the translation effects of foreign subsidiaries included in the statements of comprehensive loss were as follows:

 	  	 	 	 	2013	 	 	2012	 	 	2011	 	
Foreign currency translation adjustment 1 	  	Ps	 	  	 	 	(4,187	) 	 	 	(16,019	) 	 	 	30,732	  	
Foreign exchange fluctuations from debt 2 	  	 	 	 	 	 	—  	  	 	 	6,939	  	 	 	(11,305	) 	
Foreign exchange fluctuations from intercompany balances 3 	  	 	 	 	 	 	5,139	  	 	 	1,756	  	 	 	(8,068	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	Ps	 	  	 	 	952	  	 	 	(7,324	) 	 	 	11,359	  	

1	These effects refer to the result from the translation of the financial statements of foreign subsidiaries.	
2	Generated by foreign exchange fluctuations over a notional amount of debt in CEMEX, S.A.B. de C.V. associated with the acquisition of foreign subsidiaries and designated as a hedge of the net investment in foreign subsidiaries.	
3	Refers to foreign exchange fluctuations arising from balances with related parties in foreign currencies that are of a long-term investment nature considering that their liquidation is not anticipated in the foreseeable future and foreign exchange fluctuations over a notional amount of debt of a subsidiary of CEMEX España identified and designated as a hedge of the net investment in foreign subsidiaries.	
 
20C)	RETAINED EARNINGS	
Net income for the year is subject to a 5% allocation toward a legal reserve until such reserve equals one fifth of the common stock. As of December 31, 2013, the legal reserve amounted to Ps1,804. As mentioned in note 20A, in December 2013, CEMEX incurred a restitution of retained earnings from additional paid-in capital for Ps35,667.
 
20D)	NON-CONTROLLING INTEREST AND PERPETUAL DEBENTURES	
Non-controlling interest
Non-controlling interest represents the share of non-controlling stockholders in the results and equity of consolidated subsidiaries. As of December 31, 2013 and 2012, non-controlling interest in equity amounted to approximately Ps8,716 and Ps8,410, respectively.
On November 15, 2012, CEMEX Latam, a wholly-owned subsidiary of CEMEX España, concluded its initial offering of 170,388,000 new common shares, at a price of 12,250 Colombian Pesos per common share. The common shares offered by CEMEX Latam included (a) 148,164,000 new common shares offered in a public offering to investors in Colombia and in a concurrent private placement to eligible investors outside of Colombia, and (b) an additional 22,224,000 new common shares offered in such private placement that were subject to a put option granted to the initial purchasers during the 30-day period following closing of the offering. CEMEX Latam’s assets include substantially all of CEMEX’s cement and ready-mix assets in Colombia, Panama, Costa Rica, Brazil, Guatemala and El Salvador. After giving effect to the offering, and the exercise of the put option by the initial purchasers, CEMEX España, owns approximately 73.35% of CEMEX Latam’s outstanding common shares, excluding shares held in treasury. CEMEX Latam’s common shares are listed on the Colombian Stock Exchange ( Bolsa de Valores de Colombia S.A. ) under the ticker CLH. The net proceeds from the offering of approximately US$960, after deducting commissions and offering expenses and after giving effect to the exercise of the put option by the initial purchasers, were used by CEMEX to repay indebtedness under the Facilities
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Non-controlling interest – continued
 
Agreement and the Financing Agreement. During September and October 2012, CEMEX entered into foreign exchange call options and forward contracts for notional amounts of US$200 and US$510, respectively; to hedge the exposure to the exchange rate fluctuations between the Colombian peso to the U.S. dollar. At settlement, changes in the fair value of these instruments generated a loss of approximately US$2 (Ps26).
 
Perpetual	 	debentures	
As of December 31, 2013 and 2012, the balances of the non-controlling interest included approximately US$477 (Ps6,223) and US$473 (Ps6,078), respectively, representing the notional amount of perpetual debentures. The balance in 2013 and 2012 excludes the notional amount of perpetual debentures held by subsidiaries, acquired through a series of exchange transactions of each series of its then outstanding perpetual debentures for new secured notes or other financial instruments (note 16A). The exchange offers previously mentioned were contemporarily agreed by CEMEX and its perpetual debentures’ holders, without any existing commitment.
Interest expense on the perpetual debentures was included within “Other equity reserves” and amounted to approximately Ps405 in 2013, Ps453 in 2012 and Ps1,010 in 2011, excluding in all the periods the amount of interest accrued by perpetual debentures held by subsidiaries.
CEMEX’s perpetual debentures have no fixed maturity date and there are no contractual obligations for CEMEX to exchange any series of its outstanding perpetual debentures for financial assets or financial liabilities. As a result, these debentures, issued entirely by Special Purpose Vehicles (“SPVs”), qualify as equity instruments and are classified within non-controlling interest, as they were issued by consolidated entities. In addition, subject to certain conditions, CEMEX has the unilateral right to defer indefinitely the payment of interest due on the debentures. The classification of the debentures as equity instruments was made under applicable IFRS. The different SPVs were established solely for purposes of issuing the perpetual debentures and were included in CEMEX’s consolidated financial statements.
As of December 31, 2013 and 2012, the detail of CEMEX’s perpetual debentures, giving effect to the exchange transactions that occurred during 2012, as mentioned in note 16A, and to the exclusion of perpetual debentures held by subsidiaries, was as follows:

 	 	 	 	2013	 	 	2012	 	 	Repurchase
option	 	 	 	
Issuer	 	Issuance date	 	Nominal amount	 	 	Nominal amount	 	 	 	 	Interest rate	 	
C10-EUR Capital
(SPV) Ltd	 	May 2007	 	 	€64	  	 	 	€64	  	 	Tenth anniversary	 	6.3%	 	
C8 Capital (SPV) Ltd	 	February 2007	 	US$	137	 	 	US$	137	 	 	Eighth anniversary	 	6.6%	 	
C5 Capital (SPV) Ltd 1	 	December 2006	 	US$	69	 	 	US$	69	 	 	Fifth anniversary	 	LIBOR + 4.277%	 	
C10 Capital (SPV) Ltd	 	December 2006	 	US$	183	 	 	US$	183	 	 	Tenth anniversary	 	6.7%	 	
 
1	CEMEX is not permitted to call these debentures under the Facilities Agreement. As of December 31, 2013 and 2012, 3-month LIBOR was approximately 0.246% and 0.306%, respectively.	
 
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CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
21)	EXECUTIVE STOCK-BASED COMPENSATION	
CEMEX has long-term restricted stock-based compensation programs providing for the grant of CEMEX’s CPOs to a group of executives, pursuant to which, new CPOs are issued under each annual program over a service period of 4 years. By agreement with the executives, the CPOs of the annual grant (25% of each annual program) are placed in a trust established for the benefit of the executives to comply with a 1 year restriction on sale. Under these programs, CEMEX granted approximately 49.6 million CPOs in 2013, 46.4 million CPOs in 2012 and 43.4 million CPOs in 2011 that were subscribed and pending for payment in CEMEX’s treasury. Of the total CPOs granted in 2012, approximately 10.3 million CPOs were related to termination payments associated with restructuring events (note 6). As of December 31, 2013, there are approximately 82.3 million CPOs associated with these annual programs that are expected to be issued during the following years as the executives render services. The compensation expense related to these programs in 2013, 2012 and 2011 recognized in the operating results amounted to approximately Ps551, Ps486 and Ps495, respectively. The weighted average price per CPO granted during the period was approximately Ps11.11 in 2013, Ps10.48 in 2012 and Ps11.42 in 2011.
In 2012, CEMEX initiated a new stock-based compensation program for a group of executives which is linked to both internal performance conditions (increase in Operating EBITDA), and market conditions (increase in the price of CEMEX’s CPO), over a period of three years. Under this program, CEMEX granted awards over approximately 39.9 million CPOs, which become vested upon achievement of the annual internal o external performance conditions, which were achieved in 2013 and 2012, representing a total of 50% of the CPOs granted. Any CPOs vested would be only delivered, fully unrestricted, to active executives in March 2015. The compensation expense related to this program in 2013 and 2012 recognized in the operating results against “Other equity reserves” amounted to approximately Ps136 in both periods.
Options outstanding under CEMEX’s programs represent liability instruments (note 2S). The information related to options granted in respect of CEMEX, S.A.B. de C.V. shares is as follows:

Options	  	Variable
Program (A)	 	 	Restricted
Program (B)	 	 	Special
Program (C)	 	
Options at the beginning of 2012	  	 	543,496	  	 	 	15,022,272	  	 	 	632,792	  	
Changes in 2012:	  	 	 	 	 	 	 	 	 	 	 	 	
Options cancelled and adjustments	  	 	(279,720	) 	 	 	(15,022,272	) 	 	 	(125,345	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Options at the end of 2012	  	 	263,776	  	 	 	—  	  	 	 	507,447	  	
Changes in 2013:	  	 	 	 	 	 	 	 	 	 	 	 	
Options cancelled and adjustments	  	 	(263,776	) 	 	 	—  	  	 	 	(160,112	) 	
Options exercised	  	 	—  	  	 	 	—  	  	 	 	(111,312	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Options at the end of 2013	  	 	—  	  	 	 	—  	  	 	 	236,023	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Underlying CPOs 1 	  	 	—  	  	 	 	—  	  	 	 	4,720,450	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Weighted average exercise prices per CPO:	  	 	 	 	 	 	 	 	 	 	 	 	
Options outstanding at the beginning of 2013 1	  	 	US$1.4	  	 	 	—  	  	 	 	US$1.4	  	
Options exercised in the year	  	 	—  	  	 	 	—  	  	 	 	US$1.0	  	
Options outstanding at the end of 2013 1 	  	 	—  	  	 	 	—  	  	 	 	US$1.6	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	
Average life of options:	  	 	—  	  	 	 	—  	  	 	 	0.8years	  	

1	Prices and the number of underlying CPOs are technically adjusted for the dilutive effect of stock dividends and recapitalization of retained earnings	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Executive stock-based compensation – continued	 	
 
A)	 	Variable program	
This program started in November 2001, through an exchange of fixed program options, with exercise prices denominated in dollars increasing annually at a 7% rate.
 
B)	 	Restricted program	
These options had an exercise price denominated in dollars which, depending on the program, increased annually at a 5.5% rate or at a 7% rate.
 
C)	 	Special program	
Until 2005, a subsidiary in the United States granted to a group of its employees a stock option program to purchase CEMEX ADSs. The options granted have a fixed exercise price denominated in dollars and tenure of 10 years. The option exercises are hedged using ADSs currently owned by subsidiaries, which increases the number of shares outstanding. The amounts of these ADS programs are presented in terms of equivalent CPOs.
Valuation of options at fair value and accounting recognition
All options outstanding qualify as liability instruments and are valued at their estimated fair value as of the date of the financial statements, recognizing changes in valuations in the statements of operations. The options’ fair values were determined through the binomial option-pricing model considering the options’ remaining tenure and assumptions of expected dividend yield, volatility and interest rate based on reasonable market conditions. The balances of the provision for the remaining executive stock options as of December 31, 2013 and 2012 and the changes in such provision for the years ended December 31, 2013, 2012 and 2011 were not significant.
 
22)	LOSS PER SHARE	
Based on IAS 33 Earnings per Share (“IAS 33”), basic earnings (loss) per share shall be calculated by dividing profit or loss attributable to ordinary equity holders of the parent entity (the numerator) by the weighted average number of shares outstanding (the denominator) during the period. Shares that would be issued depending only by the passage of time should be included in the determination of the basic weighted average number of shares outstanding. Diluted earnings (loss) per share should reflect in both, the numerator and denominator, the assumption that convertible instruments are converted, that options or warrants are exercised, or that ordinary shares are issued upon the satisfaction of specified conditions, to the extent that such assumption would led to a reduction in basic earnings per share or an increase in basic loss per share, otherwise, the effects of potential shares are not considered because they generate antidilution.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
Loss per share – continued
 
The amounts considered for calculations of loss per share (“LPS”) in 2013, 2012 and 2011 were as follows:

 	  	 	 	 	2013	 	 	2012	 	 	2011	 	
Denominator (thousands of shares)	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Weighted average number of shares outstanding 1 	  	 	 	 	 	 	34,485,885	 	 	 	34,236,719	 	 	 	34,004,226	 	
Capitalization of retained earnings 2 	  	 	 	 	 	 	1,404,099	 	 	 	1,404,099	 	 	 	1,404,099	 	
Effect of dilutive instruments – mandatorily convertible securities (note 16B)  3  	  	 	 	 	 	 	605,332	 	 	 	582,050	 	 	 	559,663	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Weighted average number of shares outstanding – basic	  	 	 	 	 	 	36,495,316	 	 	 	36,222,868	 	 	 	35,967,988	 	
Effect of dilutive instruments – stock-based compensation (note 21)  3  	  	 	 	 	 	 	306,930	 	 	 	286,042	 	 	 	174,934	 	
Effect of potentially dilutive instruments – optionally convertible securities (note 16B)  3  	  	 	 	 	 	 	6,832,200	 	 	 	6,569,424	 	 	 	6,316,755	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Weighted average number of shares outstanding – diluted	  	 	 	 	 	 	43,634,446	 	 	 	43,078,334	 	 	 	42,459,677	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Numerator	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Consolidated net loss	  	Ps	 	  	 	 	(9,611	) 	 	 	(11,338	) 	 	 	(24,932	) 	
Less: non-controlling interest net income	  	 	 	 	 	 	1,223	 	 	 	662	 	 	 	21	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Controlling interest net loss	  	 	 	 	 	 	(10,834	) 	 	 	(12,000	) 	 	 	(24,953	) 	
Plus: after tax interest expense on mandatorily convertible securities	  	 	 	 	 	 	181	 	 	 	196	 	 	 	209	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Controlling interest net loss – basic loss per share	  	 	 	 	 	 	(10,653	) 	 	 	(11,804	) 	 	 	(24,744	) 	
Plus: after tax interest expense on optionally convertible securities	  	 	 	 	 	 	1,494	 	 	 	1,501	 	 	 	1,153	 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Controlling interest net loss – diluted loss per share	  	Ps	 	  	 	 	(9,159	) 	 	 	(10,303	) 	 	 	(23,591	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Controlling Interest Basic Loss Per Share	  	Ps	 	  	 	 	(0.29	) 	 	 	(0.33	) 	 	 	(0.69	) 	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Controlling Interest Diluted Loss Per Share 4 	  	Ps	 	  	 	 	(0.29	) 	 	 	(0.33	) 	 	 	(0.69	) 	

1	Based on IAS 33, the weighted average number of shares outstanding in 2012 and 2011 reflects the shares issued as a result of the capitalization of retained earnings declared on March 2013 and February 2012, as applicable (note 20A).	
2	According to resolution of the stockholders’ meetings on March 20, 2014 (note 26).	
3	The number of CPO to be issued under the executive stock-based compensation programs, as well as the total amount of CPOs committed for issuance in the future under the mandatorily and optionally convertible securities, are computed from the beginning of the reporting period. The number of shares resulting from the executives’ stock option programs is determined under the inverse treasury method.	
4	For 2013, 2012 and 2011, the effects on the denominator and numerator of potential dilutive shares generate antidilution; therefore, there is no change between the reported basic and diluted loss per share.	
 
23)	COMMITMENTS	
 
23A)	GUARANTEES	
As of December 31, 2013 and 2012, CEMEX, S.A.B. de C.V. had guaranteed loans of certain subsidiaries for approximately US$7,125 (Ps92,982) and US$9,148 (Ps117,557), respectively.
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
23B)	PLEDGED ASSETS	
As of December 31, 2013 and 2012, CEMEX had liabilities amounting to US$83 and US$84, respectively, secured by property, machinery and equipment. These amounts exclude the financial liabilities associated with capital leases (note 16B), as there are no legal liens on the related assets.
In addition, in connection with the Financing Agreement (note 16A), CEMEX transferred to a guarantee trust and entered into pledge agreements for the benefit of the Facilities Agreement lenders, note holders and other creditors having the benefit of negative pledge clauses, the shares of several of its main subsidiaries, including CEMEX México, S.A. de C.V. and CEMEX España, in order to secure payment obligations under the Facilities Agreement and other debt instruments. These shares also secure several other financings entered into prior to the date of the Facilities Agreement.
 
23C)	OTHER COMMITMENTS	
As of December 31, 2013 and 2012, CEMEX had commitments for the purchase of raw materials for an approximate amount of US$107 (Ps1,398) and US$127 (Ps1,632), respectively.
In September 2006, CEMEX and the Spanish company ACCIONA formalized an alliance to develop a wind farm project for the generation of 250 Megawatts (MW) in the Mexican state of Oaxaca. CEMEX acted as promoter of the project, which was named EURUS. ACCIONA provided the required financing, constructed the facility and currently operates the wind farm. The installation of 167 wind turbines in the farm was finished on November 15, 2009. The agreements between CEMEX and ACCIONA established that CEMEX’s plants in Mexico will acquire a portion of the energy generated by the wind farm for a period of at least 20 years, which began in February 2010, when EURUS reached the committed limit capacity. For the years ended December 31, 2013, 2012 and 2011, EURUS supplied (unaudited) approximately 25.8%, 29.1% and 23.7%, respectively, of CEMEX’s overall electricity needs in Mexico during such year. This agreement is for CEMEX’s own use and there is no intention of trading in energy by CEMEX.
In 1999, CEMEX entered into agreements with an international partnership, which financed, built and operated an electrical energy generating plant in Mexico called  Termoeléctrica del Golfo  (“TEG”). In 2007, the original operator was replaced. Pursuant to the agreement, CEMEX would purchase the energy generated from TEG for a term of not less than 20 years, which started in April 2004 and that was further extended until 2027 with the change of operator. In addition, CEMEX committed to supply TEG and another third-party electrical energy generating plant adjacent to TEG all fuel necessary for their operations, a commitment that has been hedged through four 20-year agreements entered with  Petróleos Mexicanos (“PEMEX”), which terminate in 2024. Consequently, for the last 3 years, CEMEX intends to purchase the required fuel in the market. For the years ended December 31, 2013, 2012 and 2011, TEG supplied (unaudited) approximately 70.9%, 67.8% and 69.1%, respectively, of CEMEX’s overall electricity needs during such year for its cement plants in Mexico.
In regards with the above, in March 1998 and July 1999, CEMEX signed contracts with PEMEX providing that beginning in April 2004 PEMEX’s refineries in Cadereyta and Madero City would supply CEMEX with a combined volume of approximately 1.75 million tons of petcoke per year. As per the petcoke contracts with PEMEX, 1.2 million tons of the contracted volume will be allocated to TEG and the other energy producer and the remaining volume will be allocated to CEMEX’s operations in Mexico. By entering into the petcoke contracts with PEMEX, CEMEX expects to have a consistent source of petcoke throughout the 20-year term.
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other commitments – continued	 	
 
In 2007, CEMEX Ostzement GmbH (“COZ”), CEMEX’s subsidiary in Germany, entered into a long-term energy supply contract with Vattenfall Europe New Energy Ecopower (“VENEE”), pursuant to which VENEE committed to supply energy to CEMEX’s Rüdersdorf plant for a period of 15 years starting on January 1, 2008. Based on the contract, each year COZ has the option to fix in advance the volume of energy that it will acquire from VENEE, with the option to adjust the purchase amount one time on a monthly and quarterly basis. According to the contract, COZ acquired (unaudited) approximately 27 MW in 2011, 2012, and 2011, COZ expects to acquire 27 MW per year for 2013 and 2014, and expects to acquire between 26 and 28 MW per year starting in 2015 and thereafter. The contract, which establishes a price mechanism for the energy acquired, based on the price of energy future contracts quoted on the European Energy Exchange, did not require initial investments and was expected to be performed at a future date. Based on its terms, this contract qualified as a financial instrument under IFRS. However, as the contract is for CEMEX’s own use and CEMEX sells any energy surplus as soon as actual energy requirements are known, regardless of changes in prices and thereby avoiding any intention of trading in energy, such contract is not recognized at its fair value.
In April 2008, Citibank entered into put option transactions on CEMEX’s CPOs with a Mexican trust that CEMEX established on behalf of its Mexican pension fund and certain of CEMEX’s directors and current and former employees (the “participating individuals”). The transaction was structured with two main components. Under the first component, the trust sold, for the benefit of CEMEX’s Mexican pension fund, put options to Citibank in exchange for a premium of approximately US$38. The premium was deposited into the trust and was used to purchase, on a prepaid forward basis, securities that track the performance of the Mexican Stock Exchange. Under the second component, the trust sold, on behalf of the participating individuals, additional put options to Citibank in exchange for a premium of approximately US$38, which was used to purchase prepaid forward CPOs. These prepaid forward CPOs, together with additional CPOs representing an equal amount in U.S. dollars, were deposited into the trust by the participating individuals as security for their obligations, and represented the maximum exposure of the participating individuals under this transaction. The put options gave Citibank the right to require the trust to purchase, in April 2013, approximately 136 million CPOs at a price of US$2.6498 per CPO (120% of initial CPO price in dollars). If the value of the assets held in the trust (34.7 million CPOs and the securities that track the performance of the Mexican Stock Exchange) was insufficient to cover the obligations of the trust, a guarantee would be triggered and CEMEX, S.A.B. de C.V. would be required settle, in April 2013, the difference between the total number of CPOs at a price of US$2.6498 per CPO and the market value of the assets of the trust. During the tenure of the transaction, the purchase price per CPO in dollars and the corresponding number of CPOs under this transaction were subject to dividend adjustments. Moreover, CEMEX recognized a liability for the fair value of the guarantee, and changes in valuation were recorded in the statements of operations (note 16D). Between January and April 2013, the 136 million put options were gradually unwounded, and cash deposits in margin accounts, after deducting the value of the trust’ assets, were used in an aggregate amount of approximately US$112.
On July 30, 2012, CEMEX signed a 10-year strategic agreement with International Business Machines Corporation (“IBM”) pursuant to which IBM provides business processes services and information technology (“IT”). Moreover, IBM provides business consulting to detect and promote sustainable improvements in CEMEX’s profitability. The 10-year contract signed with IBM is expected to generate cost reductions to CEMEX over such period, and includes: data processing services (back office) in finance, accounting and human resources; as well as IT infrastructure services, support and maintenance of IT applications in the countries in which CEMEX operates.
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other commitments – continued	 	
 
In connection with the agreement in principle entered into by CEMEX and Holcim in August 2013 described in note 15B, and that is currently subject (i) to the review and authorization of the Authorities and (ii) final binding agreements, in respect to the part of the transaction in Spain, if executed, CEMEX anticipates that any definitive agreements relating to the transaction will contain customary provisions regarding Holcim’s rights as a minority shareholder in CEMEX España Operaciones.
 
23D)	COMMITMENTS FROM EMPLOYEE BENEFITS	
In some countries, CEMEX has self-insured health care benefits plans for its active employees, which are managed on cost plus fee arrangements with major insurance companies or provided through health maintenance organizations. As of December 31, 2013, in certain plans, CEMEX has established stop-loss limits for continued medical assistance derived from a specific cause (e.g., an automobile accident, illness, etc.) ranging from 23 thousand dollars to 400 thousand dollars. In other plans, CEMEX has established stop-loss limits per employee regardless of the number of events ranging from 350 thousand dollars to 2 million dollars. The contingency for CEMEX if all employees qualifying for health care benefits required medical services simultaneously are significantly larger. However, this scenario is remote. The amount expensed through self-insured health care benefits was approximately US$70 (Ps914) in 2013, US$72 (Ps925) in 2012 and US$62 (Ps866) in 2011.
 
23E)	CONTRACTUAL OBLIGATIONS	
As of December 31, 2013 and 2012, CEMEX had the following contractual obligations:

(U.S. dollars millions)	  	 	 	 	2013	 	 	2012	 	
Obligations	  	 	 	 	Less than
1 year	 	 	1-3
years	 	 	3-5
years	 	 	More than
5 years	 	 	Total	 	 	Total	 	
Long-term debt	  	 	US$	  	 	 	296	  	 	 	765	  	 	 	7,236	  	 	 	6,330	  	 	 	14,627	  	 	 	13,857	  	
Capital lease obligations1 	  	 	 	 	 	 	58	  	 	 	91	  	 	 	61	  	 	 	82	  	 	 	292	  	 	 	361	  	
Convertible notes 2 	  	 	 	 	 	 	14	  	 	 	1,603	  	 	 	625	  	 	 	27	  	 	 	2,269	  	 	 	2,177	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total debt and other financial obligations  3  	  	 	 	 	 	 	368	  	 	 	2,459	  	 	 	7,922	  	 	 	6,439	  	 	 	17,188	  	 	 	16,395	  	
Operating leases4 	  	 	 	 	 	 	111	  	 	 	157	  	 	 	87	  	 	 	47	  	 	 	402	  	 	 	413	  	
Interest payments on debt5 	  	 	 	 	 	 	1,037	  	 	 	2,052	  	 	 	2,004	  	 	 	1,196	  	 	 	6,289	  	 	 	5,366	  	
Pension plans and other benefits 6 	  	 	 	 	 	 	168	  	 	 	320	  	 	 	334	  	 	 	925	  	 	 	1,747	  	 	 	1,653	  	
Purchases of raw materials 7 	  	 	 	 	 	 	68	  	 	 	39	  	 	 	—  	  	 	 	—  	  	 	 	107	  	 	 	127	  	
Purchases of fuel and energy 8 	  	 	 	 	 	 	218	  	 	 	443	  	 	 	442	  	 	 	2,278	  	 	 	3,381	  	 	 	3,539	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Total contractual obligations	  	 	US$	  	 	 	1,970	  	 	 	5,470	  	 	 	10,789	  	 	 	10,885	  	 	 	29,114	  	 	 	27,493	  	
 	  	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	 	Ps	  	 	 	25,709	  	 	 	71,384	  	 	 	140,796	  	 	 	142,049	  	 	 	379,938	  	 	 	353,285	  	

1	Represent nominal cash flows. As of December 31, 2013, the net present value of future payments under such leases was US$210 (Ps2,743), of which, US$28 (Ps365) refers to payments from 1 to 3 years, US$32 (Ps418) refer to payments from 3 to 5 years, and US$80 (Ps1,040) refer payments of more than 5 years.	
2	Refers to the convertible notes described in note 16B and assumes repayment at maturity and no conversion of the notes.	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Contractual	obligations – continued	
 
3	The schedule of debt payments, which includes current maturities, does not consider the effect of any refinancing of debt that may occur during the following years. In the past, CEMEX has replaced its long-term obligations for others of a similar nature.	
4	The amounts represent nominal cash flows. CEMEX has operating leases, primarily for operating facilities, cement storage and distribution facilities and certain transportation and other equipment, under which annual rental payments are required plus the payment of certain operating expenses. Rental expense was US$126 (Ps1,647) in 2013, US$156 (Ps2,003) in 2012 and US$256 (Ps3,195) in 2011.	
5	Estimated cash flows on floating rate denominated debt were determined using the floating interest rates in effect as of December 31, 2013 and 2012.	
6	Represents estimated annual payments under these benefits for the next 10 years (note 18), including the estimate of new retirees during such future years.	
7	Future payments for the purchase of raw materials are presented on the basis of contractual nominal cash flows.	
8	Future nominal payments for energy were estimated on the basis of an aggregate average expected consumption of 3,147.8 GWh per year using the future prices of energy established in the contracts for each period. Future payments also include CEMEX’s commitments for the purchase of fuel.	
 
24)	CONTINGENCIES	
 
24A)	PROVISIONS RESULTING FROM LEGAL PROCEEDINGS	
CEMEX is involved in various significant legal proceedings, in addition to those related to income tax matters (note 19D), the resolutions of which are deemed probable and imply cash outflows or the delivery of other resources owned by CEMEX. As a result, certain provisions have been recognized in the financial statements, representing the best estimate of the amounts payable. Therefore, CEMEX believes that it will not incur significant expenditure in excess of the amounts recorded. As of December 31, 2013, the details of the most significant events are as follows:
 
•	 	In January 2007, the Polish Competition and Consumers Protection Office (the “Protection Office”) notified CEMEX Polska, a subsidiary in Poland, about the initiation of an antitrust proceeding against all cement producers in the country, including CEMEX Polska and another of CEMEX’s indirect subsidiaries in Poland. The Protection Office alleged that there was an agreement between all cement producers in Poland regarding prices, market quotas and other sales conditions of cement, and that the producers exchanged confidential information, all of which limited competition in the Polish cement market. In January 2007, CEMEX Polska filed its response to the notification, denying that it had committed the practices listed by the Protection Office, and submitted formal comments and objections gathered during the proceeding, as well as facts supporting its position that its activities were in line with Polish competition law. In December 2009, the Protection Office issued a resolution imposing fines on a number of Polish cement producers, including CEMEX Polska for the period of 1998 to 2006. The fine imposed on CEMEX Polska amounted to approximately 116 million Polish Zloty (US$38 or Ps502), which represents 10% of CEMEX Polska’s total revenue for the calendar year preceding the imposition of the fine. On December 23, 2009, CEMEX Polska filed an appeal before the Polish Court of Competition and Consumer Protection in Warsaw (the “First Instance Court”). After a series of hearings, on December 13, 2013, the First Instance Court issued its judgment in regards with the appeals filed by CEMEX Polska and other cement producers, which were previously combined into a joint appeal. The First Instance Court reduced the penalty imposed on CEMEX Polska to approximately Polish Zlotys 93.89 million (US$31) which is equal to 8.125% of CEMEX Polska’s revenue in 2008. On December 20, 2013, CEMEX Polska requested the First Instance Court to deliver its	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Provisions resulting from legal proceedings – continued	 	
 
 	judgment with a written justification. After reception of the written justification CEMEX Polska intends to appeal the First Instance Court judgment before the Appeals Court in Warsaw. The abovementioned penalty is enforceable until the Appeals Court issues its final judgment. As of December 31, 2013, CEMEX recognized a provision of approximately 93.89 million Polish Zloty (US$31 or Ps406), representing the best estimate on such date of the expected cash outflow in connection with this resolution. As of December 31, 2013, CEMEX does not expect this matter would have a material adverse impact on its results of operations, liquidity or financial condition.	
 
•	 	In August 2005, Cartel Damages Claims, S.A. (“CDC”), filed a lawsuit in the District Court in Düsseldorf, Germany, against CEMEX Deutschland AG, CEMEX’s subsidiary in Germany, and other German cement companies originally seeking approximately €102 (US$140 or Ps1,831) in respect of damage claims relating to alleged price and quota fixing by German cement companies between 1993 and 2002. Since that time, CDC has acquired new claims by assignment, and the claim has increased to €131 (US$180 or Ps2,352). CDC is a Belgian company established in the aftermath of the German cement cartel investigation that took place from July 2002 to April 2003 by Germany’s Federal Cartel Office, with the purpose of purchasing potential damage claims from cement consumers and pursuing those claims against the cartel participants. In February 2007, the District Court in Düsseldorf allowed this lawsuit to proceed without going into the merits of this case by issuing an interlocutory judgment. All defendants appealed the resolution but the appeal was dismissed in May 2008. On March 1, 2012, the District Court in Düsseldorf revealed several preliminary considerations on relevant legal questions and allowed the parties to submit their plea and reply. After several court hearings, on December 17, 2013 the District Court in Düsseldorf issued a decision on closing the first instance. By this decision, all claims brought to court by CDC were dismissed. CDC may file an appeal against this decision before the Higher Regional Court in Düsseldorf, Germany. The court held that the way CDC obtained the claims from 36 cement purchasers was illegal given the limited risk it faced for covering the litigation costs. The acquisition of the claims also breached rules that make the provision of legal advice subject to public authorization. As of December 31, 2013, CEMEX is unable to assess the likelihood of an adverse result from any appeal the CDC may file and, because of the number of defendants, the potential damages that would be borne by CEMEX; however, if the final decision is adverse to CEMEX, it could have a material adverse impact on its results of operations, liquidity or financial condition. As of December 31, 2013, CEMEX Deutschland AG had accrued liabilities regarding this matter of approximately €28 (US$39 or Ps503), including accrued interests over the principal amount of the claim.	
 
•	 	CEMEX has environmental remediation liabilities in the United Kingdom pertaining to closed and current landfill sites for the confinement of waste. As of December 31, 2013, CEMEX had generated a provision for the net present value of such obligations of approximately £131 (US$217 or Ps2,832). Expenditure was assessed and quantified over the period in which the sites have the potential to cause environmental harm, which was accepted by the regulator as being up to 60 years from the date of closure. The assessed expenditure included the costs of monitoring the sites and the installation, repair and renewal of environmental infrastructure.	
 
•	 	As of December 31, 2013, CEMEX’s subsidiaries in the United States have accrued liabilities specifically relating to environmental matters in the aggregate amount of approximately US$24 (Ps313). The environmental matters relate to: a) the disposal of various materials in accordance with past industry practice, which might currently be categorized as hazardous substances or wastes, and b) the cleanup of sites used or operated by CEMEX, including discontinued operations, regarding the disposal of hazardous substances or waste, either individually or jointly with other parties. Most of the proceedings are in the preliminary stages, and a final resolution might take several years. For purposes of recording the provision,	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Provisions resulting from legal proceedings – continued	 	
 
 	CEMEX’s subsidiaries believe that it is probable that a liability has been incurred and the amount of the liability is reasonably estimable, whether or not claims have been asserted, and without giving effect to any possible future recoveries. Based on the information developed to date, CEMEX’s does not believe that they will be required to spend significant sums on these matters in excess of the amounts previously recorded. The ultimate cost that may be incurred to resolve these environmental issues cannot be assured until all environmental studies, investigations, remediation work and negotiations with, or litigation against, potential sources of recovery have been completed.	
 
24B)	OTHER CONTINGENCIES FROM LEGAL PROCEEDINGS	
CEMEX is involved in various legal proceedings, in addition to those related in tax matters (note 19D), which have not required the recognition of accruals, as CEMEX believes that the probability of loss is less than probable or remote after considering all the elements of such proceedings, as well as proceedings in which a negative resolution for CEMEX may represent, among other things, the revocation of operating licenses or the assessment of fines, whereby CEMEX may experience a decrease in future revenues, an increase in operating costs or a loss. As of December 31, 2013, the details of the most significant events with a quantification of the potential loss, when it is determinable and would not impair the outcome of the relevant proceeding, were as follows:
 
•	 	On September 5, 2013, CEMEX Colombia received a resolution, issued by the Colombian Superintendency of Industry and Commerce ( Superintendencia de Industria y Comercio  or the “SIC”) pursuant to which the SIC opened an investigation and issued a statement of objections against five cement companies and 14 directors of those companies, including CEMEX Colombia, for alleged anti-competitive practices. On October 7, 2013, CEMEX Colombia responded the statement of objections and submitted evidence in its relief. The investigated parties are accused of allegedly breaching rules which prohibit: a) any kind of practice, procedure or system designed to limit free competition and determining or maintaining unfair prices; b) any agreements designed to directly or indirectly fix prices; and c) any market sharing agreements between producers or between distributors. In connection with the 14 executives under investigation, including a former legal representative and the current President of CEMEX Colombia, the SIC may investigate and sanction any individual who collaborates, facilitates, authorizes, executes or tolerates behavior that violates free competition rules. If the alleged infringements are substantiated, aside from any measures that could be ordered to remediate the alleged anti-competitive practices, penalties may be imposed by the SIC against CEMEX Colombia for up to 58.9 billion Colombian Pesos (US$30) for each violation and to each company being declared in breach of the competition rules, and up to 1.2 billion Colombian Pesos (approximately US$1) against those individuals found responsible of collaborating, facilitating, authorizing, executing or tolerating behavior that violates free competition rules. As of December 31, 2013, CEMEX is not able to assess the likelihood of an adverse result, but if adversely resolved, such resolution may not have a material adverse impact on CEMEX’s financial results of operation, liquidity or financial condition.	
 
•	 	On July 24, 2013 a Petition for Damages and Injunctive Relief was filed by the South Louisiana Flood Protection Authority-East (“SLFPAE”) in the Civil District Court for the Parish of Orleans, State of Louisiana, against approximately 100 defendants including CEMEX, Inc. SLFPAE is seeking compensation for and the restoration of certain coastal lands near New Orleans alleged to have been damaged by activities related to oil and gas exploration and production since the early 1900’s. CEMEX, Inc., which was previously named Southdown, Inc., may have acquired liabilities, to the extent there may be any, in	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
 	connection with oil and gas operations that were divested in the late 1980’s. The matter was recently removed to the United States District Court for the Eastern District of Louisiana and a motion by the Plaintiffs to remand to State Court is pending. As of December 31, 2013, CEMEX does not has sufficient information to assess the likelihood of an adverse result or, because of the number of defendants, the potential damages which could be borne by CEMEX, Inc., if any, or if such damages, if any, would have or not a material adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
 
•	 	On September 13, 2012, the first instance court of Assiut in Egypt issued a judgment (the “First Instance Judgment”) to: (i) annul the Share Purchase Agreement signed in November 1999 between CEMEX and state-owned Metallurgical Industries Company (“MIC”) pursuant to which CEMEX acquired a controlling interest in Assiut Cement Company (“ACC”); and (ii) reinstate former employees to their former jobs at ACC. The First Instance Judgment was notified to ACC on September 19, 2012. On October 18, 2012 and October 20, 2012, ACC and MIC, respectively, filed appeals of the decision with the Appeals Court in Assiut (the “Appeals Court”) of hearings with the Appeals Court were held on December 19, 2012, January 22, 2013, April 16, 2013, June 16, 2013, September 14, 2013, October 23, 2013 and November 17, 2013. In the November 17, 2013 hearing the Assiut court decided to join the appeals filed by ACC and MIC and adjourned the session to January 20, 2014. As of December 31, 2013, CEMEX is not able to assess the likelihood of an adverse result, but if adversely resolved, such resolution may have a material adverse impact on CEMEX’s financial results of operations, liquidity or financial condition.	
 
•	 	On June 21, 2012, one of CEMEX’s subsidiaries in Israel was notified about an application for the approval of a class action suit against it. The application, filed by a homeowner who built his house with concrete supplied by CEMEX in October of 2010, claims that the concrete supplied to him did not meet with the “Israel Standard for Concrete Strength No. 118” and that as a result CEMEX acted unlawfully toward all of its customers who received concrete that did not comply with the Israeli standard requirements. As per the application, the plaintiff claims that the supply of the alleged non-conforming concrete has caused financial and non-financial damages to those customers, including the plaintiff. CEMEX presumes that the class action would represent the claim of all the clients who purchased the alleged non-conforming concrete from its subsidiary in Israel during the past 7 years, the limitation period according to applicable laws in Israel. The damages that could be sought amount to approximately 276 million Israeli Shekel (US$80 or Ps1,038). CEMEX’s subsidiary submitted a formal response to the corresponding court. Both parties presented their preliminary arguments in a hearing held on November 4, 2013; the next hearing has been scheduled for February 10, 2014. At this stage, CEMEX believes the application is vexatious and should be dismissed without any expense to CEMEX. As of December 31, 2013, CEMEX is analyzing the legal strategy to be employed and is not able to assess the likelihood of the class action application being approved or, if approved, of an adverse result, but if adversely resolved, CEMEX does not believe the final resolutions would have a material adverse impact on its results of operations, liquidity and financial condition.	
 
•	 	On January 20, 2012, the United Kingdom Competition Commission (the “UK Commission”), commenced a market investigation (“MIR”) into the supply or acquisition of cement, ready-mix concrete and aggregates. The referral to the UK Commission was made by the Office of Fair Trading, following an investigation by them of the aggregates sector. Those companies and persons invited to participate in the MIR are required by law to comply with certain requests for information and, if necessary, to attend hearings. CEMEX’s subsidiaries in the UK were invited to participate in the MIR and fully cooperated. The UK Commission issued its full Provisional Findings Report on May 23, 2013, in which it provisionally found that there was a combination of structural and conduct features that gave rise to an adverse effect on competition in the Great Britain cement markets and an adverse effect on competition as a result of contracts involving certain	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
 	major producers for the supply of granulated blast furnace slag and for the supply of ground granulated blast furnace slag. The UK Commission has not identified any problems with the markets for aggregates or ready mix concrete. The possible remedies the UK Commission listed include, among others, the divestiture of cement production capacity and/or ready mix concrete plants by one or more of the top three cement producers and the creation of a cement buying group. On October 8, 2013 the UK Commission announced its provisional decision on remedies which should not require CEMEX to divest any of its assets in the United Kingdom. Other major participants in the MIR could be required to divest certain of their assets in the United Kingdom. Based on the provisional remedies, as, as of December 31, 2013, CEMEX does not expect any material adverse impact on its results of operations, liquidity and financial condition from the Finding and Remedies final report that is to be submitted by the UK Commission by January 17, 2014.	
 
•	 	On December 8, 2010, the European Commission (the “EC”) informed CEMEX that it has decided to initiate formal proceedings in respect of possible anticompetitive practices in Austria, Belgium, the Czech Republic, France, Germany, Italy, Luxembourg, the Netherlands, Spain and the United Kingdom, which include CEMEX and seven other companies. These proceedings may lead to an infringement decision or, if the objections raised by the EC are not substantiated, the case might be closed. On April 2011, the EC requested CEMEX to deliver a substantial amount of information and documentation. CEMEX filed an appeal before the General Court of the European Union for the annulment of such request for information and documentation on the grounds that it is contrary to several principals of European Union Law. Nonetheless, the request was fulfilled by CEMEX on August 2, 2011. On September 16, 2011, without discussing the main arguments of the claim, the EC rejected the claim from CEMEX asking for the annulment of the request. On December 15, 2011, CEMEX complied with the terms of this decision and submitted a new reply with the amendments and clarifications identified in the revision and audit process. On December 21, 2011, CEMEX filed its reply to the EC’s rejection. The EC filed its rejoinder on March 27, 2012. A hearing with respect to the proceedings against CEMEX was held on February 6, 2013, and the hearings for all other companies being investigated were held during April 2013. CEMEX estimates that the judgment will be issued during 2014. If the alleged infringements are substantiated, the EC may impose a maximum fine of up to 10% of the total turnover of the relevant companies for the last year preceding the imposition of the fine for which the financial statements have been approved. CEMEX intends to defend its position vigorously in this proceeding and is fully cooperating and will continue to cooperate with the EC in connection with this matter. As of December 31, 2013, the extent of the charges and the alleged infringements are unknown, and it is not clear which revenues would be used for the determination of the possible penalties. As a result, CEMEX cannot assess the likelihood of an adverse result or the amount of the potential fine, but, if adversely resolved, it may have a material adverse impact on CEMEX’s results of operations, liquidity and financial condition.	
 
•	 	On October 26, 2010, CEMEX, Inc., one of CEMEX’s subsidiaries in the United States, received an Antitrust Civil Investigative Demand from the Office of the Florida Attorney General, which seeks documents and information in connection with an antitrust investigation by the Florida Attorney General into the ready-mix concrete industry in Florida. As of December 31, 2013, CEMEX Inc. has complied with the Office of the Florida Attorney General with respect to the documents and information requested by the civil investigative demand, and it is unclear, as of December 31, 2013, whether any formal proceeding will be initiated by the Office of the Florida Attorney General, or if such proceedings are initiated, if adverse decision against CEMEX resulting from the investigation would be made or if such decision would have or not a material adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
•	 	On June 5, 2010, the District of Bogota’s Environmental Secretary (Secretaría Distrital de Ambiente de Bogotá or the “Environmental Secretary”), ordered the suspension of CEMEX Colombia’s mining activities at El Tunjuelo quarry, located in Bogotá, as well as those of other aggregates producers in the same area. The Environmental Secretary alleged that during the past 60 years CEMEX Colombia and the other companies have illegally changed the course of the Tunjuelo River, have used the percolating waters without permission and have improperly used the edge of the river for mining activities. In connection with the injunction, on June 5, 2010, CEMEX Colombia received a notification from the Environmental Secretary informing the initiation of proceedings to impose fines against CEMEX Colombia based on the above mentioned alleged environmental violations. CEMEX Colombia responded to the injunction by requesting that it be revoked based on the fact that the mining activities at El Tunjuelo quarry are supported by the authorizations required by the applicable environmental laws and that all the environmental impact statements submitted by CEMEX Colombia have been reviewed and permanently authorized by the Ministry of Environment and Sustainable Development ( Ministerio de Ambiente y Desarrollo Sostenible ). On June 11, 2010, the local authorities in Bogotá, in compliance with the Environmental Secretary’s decision, sealed off the mine to machinery and prohibited the removal of CEMEX’s aggregates inventory. Although there is not an official quantification of the possible fine, the Environmental Secretary has publicly declared that the fine could be as much as 300 billion Colombian pesos (US$156 or Ps2,032). The temporary injunction does not currently compromise the production and supply of ready-mix concrete to CEMEX’s clients in Colombia. At this stage, CEMEX is not able to assess the likelihood of an adverse result or potential damages which could be borne by CEMEX Colombia. An adverse resolution on this case would have a material adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
In October 2009, CEMEX Corp., one of CEMEX’s subsidiaries in the United States, and other cement and concrete suppliers were named as defendants in several purported class action lawsuits alleging price fixing in Florida. Underlying the class action lawsuits is the allegation that the defendants conspired to raise prices of cement and concrete and hinder competition in Florida. In March 2012, CEMEX Corp. and the other defendants effected a settlement of all cases resulting in CEMEX having to pay approximately 460 thousand dollars. As part of the settlement agreement CEMEX did not admit any inappropriate conduct or wrongdoing. The settlement of this matter will not have a material adverse impact on CEMEX´s results of operations, liquidity or financial position.
 
•	 	In September 2009, the Spanish Competition Commission (Comisión Nacional de la Competencia or “CNC”) separate from the investigation conducted by the EC, conducted its own inspection in the context of possible anticompetitive practices in the production and distribution of mortar, ready-mix and aggregates within the Chartered Community of Navarre (“Navarre”). In December 2009, the CNC started a procedure against CEMEX España and four companies with activities in Navarre for alleged practices p rohibited under the Spanish competition law. O n January 12, 2012, the CNC notified CEMEX of its final decision on this matter, imposing a fine of 500 thousand euro (688 thousand dollars or Ps9) against CEMEX España for price-fixing and market sharing in the concrete market of Navarre from June 2008 through September 2009. CEMEX España denied any wrongdoing and on March 1, 2012, filed an appeal before the competent court (“ Audiencia Nacional ”) requesting the interim suspension of the decision until a final judgment is issued. To that effect, it requested the CNC Council to suspend the implementation of its decision until the  Audiencia Nacional  decided on the requested interim measure. On July 10, 2012, the  Audiencia Nacional  issued a resolution agreeing to the suspension of payment of the fine.	
 
•	 	In June 2009, the Texas General Land Office (the “GLO”) alleged that CEMEX failed to pay approximately US$550 in royalties related to mining activities by CEMEX and its predecessors since the 1940s on lands	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
 	that, when transferred originally by the State of Texas, contained a reservation of mineral rights. On December 17, 2009, the Texas court handling this matter granted CEMEX’s motion for summary judgment finding that the GLO’s claims had no merit. The GLO filed an appeal on March 25, 2010. Both parties submitted briefs and the Court of Appeals heard oral arguments on this matter on May 3, 2011. On August 31, 2011, the El Paso Court of Appeals reversed the trial court’s judgment and rendered judgment in favor of the State of Texas with respect to the ownership of the mineral rights on the lands mined by CEMEX and its predecessors in interest. On February 23, 2012, the GLO and CEMEX entered into an agreement to settle all claims, including claims for past royalties, without any admission of liability by CEMEX. Pursuant to the settlement, CEMEX will pay 750 thousand dollars in five equal installments of 150 thousand per year and will enter into a royalty mining lease at the royalty rate required by the Texas Natural Resources Code on a going forward basis, beginning in September 2012. As of December 31, 2013, CEMEX does not expect a material adverse impact on its results of operations, liquidity or financial condition as a result of this settlement.	
 
•	 	In January and March 2009, one of CEMEX’s subsidiaries in Mexico was notified of two findings issued by the Mexican Competition Authority ( Comisión Federal de Competencia  or “CFC”), for presumptive violations of Mexican antitrust laws. During the CFC investigation, CEMEX filed constitutional challenges for both cases considering that these findings contain substantial violations of rights granted by the Mexican Constitution. In both challenges, the Circuit Courts resolved that CEMEX lacked standing since the notice of presumptive responsibility did not affect any of CEMEX’s rights. CEMEX appealed such resolutions. With respect to the second case, on October 14, 2011, the CFC determined to close the case due to a lack of evidence to impose any sanctions. Third parties subsequently filed an appeal before the CFC to reconsider its ruling. The CFC recently confirmed its resolution to not impose any sanctions due to a lack of evidence. This decision was challenged by the plaintiffs before a Mexico City’s District Court through a constitutional challenge, which was dismissed; thereafter the plaintiffs appealed this resolution before a Circuit Court in Mexico City. On September 20, 2013, the Circuit Court in Mexico City confirmed that the case should be closed due to a lack of evidence to impose any sanctions. With respect to the first case, on February 14, 2012, CEMEX was fined for approximately Ps10.2 for anticompetitive practices and was ordered to implement certain measures. CEMEX appealed the resolution before the CFC and the Circuit Court in Monterrey and denied any wrongdoing. In June 2012, the CFC confirmed its resolution. On July 2, 2012, CEMEX filed a separate constitutional challenge before the Mexico City’s District Court and simultaneously filed a claim against the June 2012 CFC’s resolution before the Circuit Court in Monterrey. The Monterrey Circuit Court nullified the fine previously imposed on CEMEX, consequently on May 15, 2013, the District Court in Mexico City dismissed the constitutional challenge filed by CEMEX against that decision. On December 18, 2012, the CFC ratified its resolution, which CEMEX appealed. On February 12, 2013, CEMEX filed an appeal against the new resolution before the Monterrey Circuit Court. On June 6, 2013, the Monterrey Circuit Court ruled that the CFC did not comply with its resolution and that the matter should be sent to Mexico’s Supreme Court in order to apply the relevant sanctions to the CFC. Once the CFC was notified of the content of this resolution, the CFC issued a new decision revoking its previous resolution and withdrawing all charges against CEMEX.	
 
•	 	In January 2009, in response to litigation brought by environmental groups concerning the manner in which certain federal quarry permits were granted, a judge from the U.S. District Court for the Southern District of Florida ordered the withdrawal of the federal quarry permits of CEMEX’s SCL, FEC and Kendall Krome quarries, in the Lake Belt area in South Florida, which were granted in 2002 to CEMEX Construction Materials Florida, LLC (“CEMEX Florida”), one of CEMEX’s subsidiaries in the United States. The judge	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
 	ruled that there were deficiencies in the procedures and analysis undertaken by the Army Corps of Engineers (the “Engineers”) in connection with the issuance of the permits. On January 29, 2010, the Engineers concluded a revision and determined procedures for granting new federal quarry permits for the SCL and FEC quarries. During February 2010, new quarry permits were granted to the SCL and FEC quarries. A number of potential environmental impacts must be addressed at the wetlands located at the Kendall Krome site before a new federal quarry permit may be issued for mining at that quarry. If CEMEX Florida were unable to maintain the new Lake Belt permits, CEMEX Florida would need to source aggregates, to the extent available, from other locations in Florida or import aggregates. The cessation or significant restriction of quarrying operations in the Lake Belt area could have a significant adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
 
•	 	In November 2008, AMEC/Zachry, the general contractor for CEMEX’s expansion project in Brooksville, Florida, filed a lawsuit against CEMEX Florida in Florida State Court in Orlando, for US$60 (Ps783), alleging delay damages and seeking an equitable adjustment to the contract and payment of change orders. During 2009, FLSmidth (“FLS”), a supplier for the mining and cement industry, became a co-defendant in the lawsuit. During 2009 and 2010, CEMEX filed counterclaims against both suppliers. On November 18, 2010, the court denied AMEC/Zachry’s motion to dismiss against CEMEX Florida, and denied FLS’s motion on the pleading against CEMEX Florida. On January 6, 2011, CEMEX Florida amended its pleadings in accordance with the court’s rulings. On March 17, 2011, FLS filed another motion seeking dismissal of one of CEMEX Florida’s new claims asserted in the amended pleading. In December 2012, the parties to this proceeding have entered into a settlement. The settlement of this matter did not have a material adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
 
•	 	In July 2008, Strabag SE (“Strabag”), one of the leading suppliers of building materials in Europe, entered into a Share Purchase Agreement (“SPA”) to purchase CEMEX’s operations in Austria and Hungary for €310 (US$427 or Ps5,566). On July 1, 2009, Strabag notified CEMEX of its purported rescission of the SPA. In October 2009, CEMEX filed a claim against Strabag before the International Arbitration Court of the International Chamber of Commerce (“ICC”), requesting a declaration that Strabag’s rescission of the SPA was invalid and claiming the payment of damages caused to CEMEX for the alleged breach of the SPA for €150 (US$206 or Ps2,693). After a period of hearings, counterclaims, responses and the conformation of the arbitration tribunal, a final award dated May 29, 2012, was notified to CEMEX on June 1, 2012. The arbitral tribunal declared that Strabag’s rescission of the SPA was unlawful and ineffective, and ordered Strabag to pay to CEMEX a compensation for damages (including accrued interest), arbitration and legal costs. Strabag filed an annulment action before the Swiss Federal Supreme Court (the “Swiss Court”) on July 2, 2012. During the annulment process with the Swiss Court, on July 20, 2012, Strabag paid CEMEX, through RMC Holdings B.V., the amounts ordered by the arbitral tribunal on its final award for €43 (US$59 or Ps772) and, in order to secure the potential obligation to repay these amounts to Strabag in the event that the Swiss Court resolves to annul the May 29, 2012 final award, RMC Holdings B.V. pledged in favor of Strabag 496,355 shares (approximately a 33% stake) in its subsidiary Cemex Austria AG. On February 20, 2013, the Swiss Court rendered its judgment rejecting the annulment action brought by Strabag and ordered it to pay the Court costs for 100 thousands Swiss francs (106 thousand dollars) and to compensate RMC Holdings B.V. with an amount of 200 thousands Swiss francs (211 thousand dollars) for costs incurred in the proceedings. As a result, the pledge made in favor of Strabag was cancelled on March 4, 2013. The amount of the final award mentioned above was recorded in the statement of operations in 2012, of which approximately €35 (US$48 or Ps628) identified with CEMEX’s damages was recognized as part of other expenses, net, and approximately €8 (US$11 or Ps141) related to the recovery of operating losses and expenses caused by Strabag was recognized as part of costs and administration expenses.	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
•	 	In April 2006, the cities of Kaštela and Solin in Croatia published their respective development master plans, adversely impacting the mining concession granted to a CEMEX’s subsidiary in Croatia by the Croatian government in September 2005. In May 2006, CEMEX filed an appeal before a constitutional court seeking a declaration by the court of its rights and seeking prohibition of the implementation of the master plans. The municipal courts in Kaštela and Solin had previously rejected the appeals presented by CEMEX. These resolutions were appealed. These cases are currently under review by the Constitutional Court in Croatia, and it is expected that these proceedings will continue for several years before resolution. During the proceedings, the Administrative Court in Croatia ruled in favor of CEMEX, validating the legality of the mining concession granted by the government of Croatia. This decision was final. However, as of December 31, 2013, CEMEX has not been notified of an official declaration from the Constitutional Court as to whether the cities of Kaštela and Solin, within the scope of their master plans, can unilaterally change the borders of exploited fields. CEMEX believes that a declaration of the Constitutional Court will enable it to seek compensation for the losses caused by the proposed changes to the borders of the land available for extraction. Nonetheless, even when it is considered remote, would CEMEX lose its mining concession in Croatia, it would have a material adverse impact on its results of operations, liquidity and financial condition. On June 15, 2012, CEMEX was notified that the case had been transferred from the constitutional court to the administrative court as a result of a new law that places the administrative courts in charge of disputes relating to environmental planning. In order to alleviate the adverse impact of the master plans, CEMEX is currently in the process of negotiating a new revised mining concession.	
 
•	 	In August 2005, a lawsuit was filed against a subsidiary of CEMEX Colombia and other members of the Colombian Ready-mix Producers Association (Asociación Colombiana de Productores de Concreto or ASOCRETO), a union formed by all the ready-mix concrete producers in Colombia. The lawsuit claimed that CEMEX Colombia and other ASOCRETO members were liable for the premature distress of the concrete slabs of the Autopista Norte trunk line of the Transmilenio bus rapid transit system in Bogotá in which ready-mix concrete and flowable fill supplied by CEMEX Colombia and other ASOCRETO members was used. The plaintiffs alleged that the base material supplied for the road construction failed to meet the quality standards offered by CEMEX Colombia and the other ASOCRETO members and/or that they provided insufficient or inaccurate information in connection with the product. The plaintiffs sought the repair of concrete slabs and estimated that the cost of such repair would be approximately 100 billion Colombian pesos (US$52 or Ps677). In 2008, as security for a possible future money judgment to be rendered against CEMEX Colombia in these proceedings, the Superior Court of Bogotá allowed CEMEX to present and insurance policy in the amount of 20 billion Colombian pesos (US$10 or Ps135). CEMEX deposited the security and, in July 2009, the attachment was lifted. On October 10, 2012, the court issued at first instance judgment pursuant to which the accusation made against two ASOCRETO officers was nullified, but the judgment convicted the former director of the Urban Development Institute (“UDI”), and legal representatives of the builder and the auditor to a prison term of 85 months and a fine of 32 million Colombian Pesos (17 thousand dollars). As a consequence of the annulment the judge ordered a restart of the proceeding against the ASOCRETO officers. The UDI and other parties to the proceeding appealed the first instance judgment, and on August 30, 2013, the Superior Court of Bogotá resolved: a) to reduce the prison term imposed to the former UDI officers to 60 months and imposed a fine equivalent to 8.8 million Colombian pesos; b) to sentence the UDI officers to severally pay the amount of 108 billion Colombian pesos (US$56 or Ps731); c) to overturn the penalty imposed to the builder’s legal representatives and auditor because the criminal action against them was time barred; and d) to revoke the annulment in favor of the ASOCRETO officers and ordered the first instance judge to render a judgment regarding the ASOCRETO officers’ liability or lack thereof. In addition, six actions related to the premature distress were brought	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Other	contingencies from legal proceedings – continued	
 
 	against CEMEX Colombia. The Cundinamarca Administrative Court (Tribunal Administrativo de Cundinamarca) nullified five of these actions and currently, only one remains outstanding. In addition, the UDI filed another action alleging that CEMEX Colombia made deceiving advertisements on the characteristics of the flowable fill used in the construction of the line. CEMEX Colombia participated in this project solely and exclusively as supplier of the ready-mix concrete and flowable fill, which were delivered and received to the satisfaction of the contractor, fulfilling all the required technical specifications. CEMEX Colombia did not participate in nor had any responsibility on the design, sourcing of materials or their corresponding technical specifications or construction. At this stage of the proceedings, as of December 31, 2013, CEMEX is not able to assess the likelihood of an adverse result, but if adversely resolved, it could have a material adverse impact on CEMEX’s results of operations, liquidity or financial condition.	
As of December 31, 2013, CEMEX is involved in various legal proceedings of minor impact that have arisen in the ordinary course of business. These proceedings involve: 1) product warranty claims; 2) claims for environmental damages; 3) indemnification claims relating to acquisitions; 4) claims to revoke permits and/or concessions; and 5) other diverse civil actions. CEMEX considers that in those instances in which obligations have been incurred, CEMEX has accrued adequate provisions to cover the related risks. CEMEX believes these matters will be resolved without any significant effect on its business, financial position or results of operations. In addition, in relation to certain ongoing legal proceedings, CEMEX is sometimes able to make and disclose reasonable estimates of the expected loss or range of possible loss, as well as disclose any provision accrued for such loss, but for a limited number of ongoing legal proceedings, CEMEX may not be able to make a reasonable estimate of the expected loss or range of possible loss or may be able to do so but believes that disclosure of such information on a case-by-case basis would seriously prejudice CEMEX’s position in the ongoing legal proceedings or in any related settlement discussions. Accordingly, in these cases, CEMEX has disclosed qualitative information with respect to the nature and characteristics of the contingency, but has not disclosed the estimate of the range of potential loss.
 
25)	RELATED PARTIES	
All significant balances and transactions between the entities that constitute the CEMEX group have been eliminated in the preparation of the consolidated financial statements. These balances with related parties resulted primarily from: (i) the sale and purchase of goods between group entities; (ii) the sale and/or acquisition of subsidiaries’ shares within the CEMEX group; (iii) the invoicing of administrative services, rentals, trademarks and commercial name rights, royalties and other services rendered between group entities; and (iv) loans between related parties. Transactions between group entities were conducted on arm’s length terms based on market prices and conditions.
The definition of related parties includes entities or individuals outside the CEMEX group, which, pursuant to their relationship with CEMEX, may take advantage of being in a privileged situation. Likewise, this applies to cases in which CEMEX may take advantage of such relationships and obtain benefits in its financial position or operating results. CEMEX’s transactions with related parties are executed under market conditions. CEMEX has identified the following transactions between related parties:
 
•	 	Mr. José Antonio Fernández Carbajal, former member of the board of directors of CEMEX, S.A.B. de C.V. until February 23, 2012, is president and chief executive officer of Fomento Empresarial Mexicano, S.A.B. de C.V. (“FEMSA”), a large multinational beverage company. Moreover, Mr. Francisco Javier Fernández Carbajal, brother of Mr. José Antonio Fernández Carbajal, was appointed to the board of directors of	
 
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Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Related parties – continued	 	
 
 	CEMEX, S.A.B. de C.V. effective March 21, 2013. In the ordinary course of business, CEMEX pays and receives various amounts to and from FEMSA for products and services for varying amounts on market terms. Mr. Fernández Carbajal is the actual chairman of the board of Consejo de Enseñanza e Investigación Superior, A.C. (the managing entity of Instituto Tecnológico y de Estudios Superiores de Monterrey or ITESM). Mr. Lorenzo H. Zambrano, Chairman of the Board of Directors and Chief Executive Officer of CEMEX, S.A.B. de C.V., was chairman of the board of ITESM until February 13, 2012. ITESM has received contributions from CEMEX for amounts that were not material in the periods presented.	
 
•	 	Mr. Rafael Rangel Sostmann, a member of the board of directors of CEMEX, S.A.B. de C.V., was the dean of ITESM until September 12, 2011.	
 
•	 	Mr. Bernardo Quintana Isaac, former member of the board of directors of CEMEX, S.A.B. de C.V., until March 20, 2013 is the chairman of the board of directors of Empresas ICA, S.A.B. de C.V. (“Empresas ICA”). Empresas ICA is one of the most important engineering and construction companies in Mexico. In the ordinary course of business, CEMEX extends financing to Empresas ICA in connection with the purchase of CEMEX’s products, on the same credit conditions that CEMEX awards to other customers.	
 
•	 	Mr. Lorenzo H. Zambrano is a member of the board of directors of IBM. As mentioned in note 23C, in the ordinary course of business, IBM provides CEMEX with business processes services and IT, including: data processing services (back office) in finance, accounting and human resources; as well as IT infrastructure services, support and maintenance of IT applications in the countries in which CEMEX operates.	
 
•	 	Mr. Karl H. Watson Jr. is the President of CEMEX’s operations in the U.S. In the ordinary course of business, CEMEX’s U.S. operations pays fees to Florida Aggregate Transport, a vendor based in Florida, for freight services. Karl H. Watson Jr.’s stepbrother is part of Florida Aggregate Transport’s ownership and senior management. The amount of those services, which are negotiated on market terms, are not significant to CEMEX’s U.S. operations.	
 
•	 	On April 12, 2011, Juan Pablo San Agustín Rubio was appointed to the role of executive vice president for strategic planning and business development, which is part of CEMEX’s senior management. In 2007, in compliance with CEMEX’s then applicable policies, CEMEX extended a loan to Mr. San Agustín Rubio for the construction of a house. During the first quarter of 2012, the loan was repaid in full. The loan bore interest at an annual rate of 1.2% and the largest amount outstanding from January 1, 2011 until it was repaid was approximately €275 thousand. Except for the previously described loan, during 2013, 2012 and 2011, there were no loans between CEMEX and its board members or other members of its top management.	
 
•	 	For the years ended December 31, 2013, 2012 and 2011, the aggregate amount of compensation of CEMEX, S.A.B. de C.V.’s board of directors, including alternate directors, and top management executives, was approximately US$39 (Ps504), US$37 (Ps490) and US$24 (Ps300), respectively. Of these amounts, approximately US$25 (Ps321) in 2013, US$26 (Ps343) in 2012 and US$18 (Ps225) in 2011, was paid as base compensation plus performance bonuses, including pension and postretirement benefits. In addition, approximately US$14 (Ps183) in 2013, US$11 (Ps147) in 2012 and US$6 (Ps75) in 2011 of the aggregate amount in each year, corresponded to allocations of CPOs under CEMEX’s executive stock-based compensation programs. In 2013 and 2012, the amount of CPOs allocated included approximately US$3 (Ps38) and US$3 (Ps39), respectively, of compensation earned under the program that is linked to the fulfillment of certain performance conditions and that is payable through March 2015 to then still active members of CEMEX, S.A.B. de C.V.‘s board of directors and top management executives (note 21).	
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
26)	SUBSEQUENT EVENTS	
During the first and second quarter of 2014, in order to run its operations in Mexico more efficiently and to facilitate the acquisition of financing, CEMEX has launched an initiative to integrate its Mexican businesses and operational activities in Mexico under a single entity. This initiative considers that there are efficiency and improvement opportunities by shifting from a platform where CEMEX serves its customers from different entities according to its line of business (i.e. cement, concrete, aggregates), into a platform where customers, now sorted by end-user segment (i.e. distributor, builder, manufacturer) will be serviced from a single entity. Under this initiative CEMEX, S.A.B. de C.V. will integrate productive, commercial, marketing and administrative activities related to the sale of cement, ready-mix concrete, aggregates and other construction materials in Mexico. As part of this initiative, CEMEX S.A.B. de C.V., will enter into lease agreements of property, plant and equipment, with CEMEX México, S.A. de C.V., CEMEX Concretos, S.A. de C.V. and CEMEX Agregados, S.A. de C.V., these companies that have carried operating activities until December 31, 2013 and the beginning of 2014, will cease to have operating activities on or after April 1, 2014, and while maintaining property of the assets will mainly act as lessors. To implement the Mexican integration initiative efficiently, a wholly owned administrative trust will be used to concentrate lease payments and obtain financing. CEMEX, S.A.B. de C.V. will continue to consolidate the entire CEMEX group.
On January 13, 2014, considering its short term maturity, CEMEX initiated a process to amend the terms of the capped call options maturing in 2015 (note 16D), using prevailing market valuation of the instrument. As of January 31, 2014, the execution of this cash-less amendment is still ongoing, when finalized during February 2014; CEMEX estimates that it will have the right to receive the market value of approximately 7.7 million of ADSs through a same number of zero-strike call options maturing in March 2015, which will be marked-to-market through profit or loss prospectively.
In connection with the MIR commenced by the UK Commission (note 24B), on January 14, 2014, the UK Commission published its Finding and Remedies final report which followed the earlier Provisional Findings Report in regards any remedies for CEMEX’s subsidiaries in the United Kingdom. The UK Commission made changes to the provisional decision in its Final Report regarding the supply of granulated blast furnace slag and for the supply of ground granulated blast furnace slag by the other major participants in the MIR; CEMEX’s subsidiaries in the United Kingdom were not impacted by this final report.
In connection with the Antitrust Cartel Litigation in Germany (note 24A), on January 15, 2014, CDC filed an appeal before the Higher Regional Court in Düsseldorf against the decision issued by the Düsseldorf District Court on December 17, 2013.
In connection with the First Instance Judgment issued by the first instance court of Assiut in Egypt in order to annul the Share Purchase Agreement pursuant to which CEMEX acquired a controlling interest in ACC (note 24B), on a hearing held on January 20, 2014, the Appeals Court, without issuing a decision on the merits of the First Instance Judgment, accepted the appeals and referred the matter to an administrative court in Assiut. CEMEX’s facilities in Egypt continue to operate normally.
On February 14, 2014, the Audiencia Nacional notified the judgment issued regarding this matter (note 24B), accepting in part the appeal filed by CEMEX España. On March 27, 2014, CEMEX España filed an appeal before the Supreme Court (Tribunal Supremo) against the judgment of the Audiencia Nacional. CEMEX does not expect that the decision to be issued by the CNC to have a material adverse impact on our results of operations, liquidity and financial condition.
 
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Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
Subsequent events – continued	 	
 
On February 28, 2014, CEMEX, S.A.B. de C.V. entered into private conversion agreements with certain institutional holders of its 2015 Convertible Notes (note 16B), pursuant to which such holders converted approximately US$280 in aggregate principal amount of the 2015 Convertible Notes in exchange for approximately 28 million ADSs.
On March 5, 2014, CEMEX repaid the remaining €247 aggregate principal amount outstanding of its Notes due 2014 at their maturity, using a portion of the proceeds from New Notes issued on September 25, 2013 (note 16A).
On March 20, 2014, stockholders at the annual ordinary shareholders’ meeting approved resolutions to: (i) increase the variable common stock through the capitalization of retained earnings by issuing up to 1,404 million shares (468 million CPOs); (ii) increase the variable common stock by issuing up to 387 million shares (129 million CPOs), which will be kept in CEMEX’s treasury to be used to preserve the rights of note holders pursuant to CEMEX´s convertible securities (note 16B).
On April 1, 2014, through its subsidiary CEMEX Finance LLC issued US$1,000 aggregate principal amount of 6.0% Senior Secured Notes due 2024 and €400 aggregate principal amount of its 5.250% Senior Secured Notes due 2021 (together the “April 1st Notes”). The payment of principal, interest and premium, if any, on the April 1st Notes is fully and unconditionally guaranteed by CEMEX, S.A.B. de C.V., CEMEX México, S.A. de C.V., CEMEX Concretos S.A. de C.V., Empresas Toltecas de México, S.A. de C.V., New Sunward Holding B.V., CEMEX España, S.A., CEMEX Asia, B.V., CEMEX Corp., CEMEX Egyptian Investments, B.V., CEMEX Egyptian Investments II, B.V., CEMEX France Gestion, (S.A.S.), CEMEX Research Group AG, CEMEX Shipping B.V. and CEMEX UK.
In connection with the tax audit process in Spain covering the tax years from and including 2006 to 2009 (note 19D), on April 4, 2014, CEMEX informed securities authorities in Mexico and the Unites States that the tax authorities in Spain notified CEMEX España of fines in the aggregate amount of approximately €456 (US$626). The laws of Spain provide a number of appeals that can be filed against such fines without CEMEX España having to make any payment until such appeals are finally resolved. CEMEX España intends to appeal such fines. At this stage, CEMEX is not able to assess the likelihood of an adverse result regarding this matter, and the appeals that CEMEX España will file could take an extended amount of time to be resolved, but if all appeals that CEMEX España files are adversely resolved, it could have a material adverse impact on the results of operations, liquidity and financial condition.
The securitization programs in France and the United Kingdom were extended in March 2014 and mature in March 2015. In April 2014, CEMEX refinanced its securitization program in Mexico with a final maturity in March 2017 (note 9).
 
F-108

Table of Contents
CEMEX, S.A.B. DE C.V. AND SUBSIDIARIES
Notes to the Consolidated Financial Statements
As of December 31, 2013, 2012 and 2011
(Millions of Mexican pesos)
 
27)	MAIN SUBSIDIARIES	
The main subsidiaries as of December 31, 2013 and 2012 were as follows:

 	  	 	  	% Interest	 	
Subsidiary	  	Country	  	2013	 	  	2012	 	
CEMEX México, S. A. de C.V. 1	  	Mexico	  	 	100.0	 	  	 	100.0	 	
CEMEX España, S.A. 2	  	Spain	  	 	99.9	 	  	 	99.9	 	
CEMEX, Inc.	  	United States	  	 	100.0	 	  	 	100.0	 	
CEMEX Latam Holdings, S.A. 3	  	Spain	  	 	74.4	 	  	 	74.4	 	
CEMEX (Costa Rica), S.A.	  	Costa Rica	  	 	99.1	 	  	 	99.1	 	
CEMEX Nicaragua, S.A.	  	Nicaragua	  	 	100.0	 	  	 	100.0	 	
Assiut Cement Company	  	Egypt	  	 	95.8	 	  	 	95.8	 	
CEMEX Colombia S.A.	  	Colombia	  	 	99.7	 	  	 	99.7	 	
Cemento Bayano, S.A.	  	Panama	  	 	99.5	 	  	 	99.5	 	
CEMEX Dominicana, S.A.	  	Dominican Republic	  	 	100.0	 	  	 	100.0	 	
CEMEX de Puerto Rico Inc.	  	Puerto Rico	  	 	100.0	 	  	 	100.0	 	
CEMEX France Gestion (S.A.S.)	  	France	  	 	100.0	 	  	 	100.0	 	
Solid Cement Corporation 4	  	Philippines	  	 	100.0	 	  	 	100.0	 	
APO Cement Corporation 4	  	Philippines	  	 	100.0	 	  	 	100.0	 	
CEMEX (Thailand) Co., Ltd. 4	  	Thailand	  	 	100.0	 	  	 	100.0	 	
CEMEX Holdings (Malaysia) Sdn Bhd 4	  	Malaysia	  	 	100.0	 	  	 	100.0	 	
CEMEX U.K.	  	United Kingdom	  	 	100.0	 	  	 	100.0	 	
CEMEX Deutschland, AG.	  	Germany	  	 	100.0	 	  	 	100.0	 	
CEMEX Austria, AG.	  	Austria	  	 	100.0	 	  	 	100.0	 	
CEMEX Hrvatska d.d.	  	Croatia	  	 	100.0	 	  	 	100.0	 	
CEMEX Czech Republic, s.r.o 5.	  	Czech Republic	  	 	100.0	 	  	 	100.0	 	
CEMEX Polska sp. Z.o.o.	  	Poland	  	 	100.0	 	  	 	100.0	 	
CEMEX Hungária Kft.	  	Hungary	  	 	100.0	 	  	 	100.0	 	
Readymix Limited 5	  	Ireland	  	 	100.0	 	  	 	100.0	 	
CEMEX Holdings (Israel) Ltd.	  	Israel	  	 	100.0	 	  	 	100.0	 	
CEMEX SIA	  	Latvia	  	 	100.0	 	  	 	100.0	 	
CEMEX Topmix LLC, CEMEX Supermix LLC and CEMEX
Falcon LLC  6	  	United Arab Emirates	  	 	100.0	 	  	 	100.0	 	
CEMEX AS	  	Norway	  	 	100.0	 	  	 	100.0	 	
Cimentos Vencemos do Amazonas, Ltda.	  	Brazil	  	 	100.0	 	  	 	100.0	 	
Readymix Argentina, S.A.	  	Argentina	  	 	100.0	 	  	 	100.0	 	
CEMEX Jamaica	  	Jamaica	  	 	100.0	 	  	 	100.0	 	
Neoris N.V. 7	  	The Netherlands	  	 	99.8	 	  	 	99.8	 	
 
1	CEMEX México, S.A. de C.V. is the indirect holding company of CEMEX España and subsidiaries.	
2	CEMEX España is the indirect holding company of most of CEMEX’s international operations.	
3	The interest reported includes treasury shares. CEMEX Latam Holdings, which is listed in the Colombian stock exchange, is a subsidiary of CEMEX España and the indirect holding company of CEMEX’s operations in Colombia, Costa Rica, Panama, Brazil, Guatemala and El Salvador (note 20D).	
4	Represents CEMEX’s indirect interest in the economic benefits of these entities.	
5	Since 2012, Readymix plc is known as Readymix Limited, and CEMEX Czech Operations, s.r.o as CEMEX Czech Republic, s.r.o.	
6	CEMEX owns 49% equity interest in each of these entities and holds the remaining 51% of the economic benefits, through agreements with other shareholders.	
7	Neoris N.V. is the holding company of the entities involved in the sale of information technology solutions and services.	
 
F-109

Exhibit 1.1
ENGLISH TRANSLATION – AS OF MARCH 2014
CEMEX, S.A.B. de C.V.
By-Laws
ARTICLE 1. DENOMINATION.- The Company is a commercial anonymous Company and is called CEMEX, followed by the words “ Sociedad Anónima Bursátil de Capital Variable ” or by its abbreviation “ S.A.B. de C.V .”.
ARTICLE 2. CORPORATE PURPOSE.- The Company’s corporate purpose is: (A) Participate in corporations and civil associations, civil organizations and in all other types of domestic and foreign companies, through subscription and/or purchase of their shares, stocks, assets and rights and otherwise dispose and enter into any type of acts or contracts regarding such shares, stocks, assets and rights.  (B)  The manufacture, sale, distribution, transportation, import, export, exploitation and the industrial and commercial use of cement and, in general, any type of building materials.  (C)  The production, distribution, import, export, supply, assembly, transport, hauling, pumping, consignment, purchase, storage, mediation, agency, exploitation, marketing and industrial and commercial use in general of cement, concrete, mortar, clay, limestone, gypsum, gravel, sand, iron ore, raw materials used in the manufacture of cement and, in general all kinds of building materials.  (D)  The manufacture, sale, distribution, pumping, transportation, import, export, exploitation, use and industrial and commercial utilization of aggregates, ready-mixed concrete, its additives and components and, in general, all types of pieces and prestressed concrete objects, preconcretes, tubes and construction materials, concrete blocks and precast concrete elements.  (E)  The establishment of manufacturing plants of ready-mix concrete, cement and asphalt, with the aggregates production and crushing units, with its dosing and mixing units and hauling, placement and consolidation of its products.  (F)  Be the holder of Exploration and Mining Concessions and/or Exploitation, in order to explore and/or exploit the minerals or substances subject to the Mining Law ( Ley Minera ) in full force and effect, in accordance with the provisions of article 11 of said law.  (G)  The rendering of handling, storage and custody of foreign goods services, either owned by the Company or by third parties with whom the Company enters into an agreement.  (H)  The private transportation of goods owned by the Company or related to their activities, as well

as of persons related to the same purpose, without involving the provision of federal public transportation in any of its forms. (I)  The operation as a shipping company and performance of all activities related to its operation, and carrying out all the formalities before the competent authorities to obtain the proper permits.  (J)  Purchase, lease, charter and enter into any type of contract with foreign and Mexican vessels as well as registering and obtaining the Mexican flag for the vessels that may require it.  (K)  To act as consignee agent for vessels and perform all activities related to the operation as such.  (L)  The manufacture, sale, distribution, lease, import, export, exploitation and overall development of all types of industrial and commercial equipment, machinery, tools, spare parts and parts, motor carriers and any articles or commercial items.  (M)  The exploitation of the various engineering branches in all its aspects either pure or applied, as well as projects and construction works.  (N)  Entering into contracts for construction, design, engineering, and supply of technical and professional services, the development of architectural projects, installation of technical and mechanical infrastructure, and any other applications necessary, convenient or conducive to the development of its corporate purpose, including participating in competitions, public or private bids or offers either national or international.  (O)  Acquire, sell, manage, lease or receive in lease or sublease, give or receive on loan, exchange, encumber in any way, exploit, affect or be a trustee in trust and, in general, enter into any legal act that involves acquiring, transferring or guaranteeing the rights of ownership or possession of all real or personal types of property, as deemed necessary or convenient for the development and prosperity of the Company, or to directly or indirectly support the development or realization of the Company’s corporate purpose.  (P)  Build, plan, design, decorate, manage and operate in any manner all kinds of buildings, factories, warehouses, houses and apartments on their own or through third parties.  (Q)  Provide and receive any type of technical, administrative, sales, advertising, monitoring, technical assistance, consultation and advice services on industrial, tax, accounting, commercial, financial, and any other type of matters.  (R)  Order, obtain, buy, lease, assign or otherwise acquire or dispose of trademarks, trade names, copyrights, patents, inventions and processes, know-how and, in general, intellectual and industrial property rights, as well as licenses over them.  (S)  Enter into or agree on agency operations, mediation, technical assistance, professional services, consulting, distribution, supply, leasing and factoring,
 
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brokerage and generally all kinds of contracts or agreements involving services to or for third parties, including the use of human and material resources, as a result of the obligations or duties incurred by virtue of entering into the contracts in this subparagraph.  (T)  Give or take money on loan, secured or unsecured, including the issuance of debt securities in public or private sale that represent loans with the investing public.  (U)  Issue, draw, sign, accept, endorse, guarantee and enter into any type of commercial or legal transaction, regarding negotiable instruments, with national or foreign credit institutions, as well as agents and securities intermediaries, in investment companies and auxiliary credit organizations and in any organization, corporation or association, any and all types of transactions necessary or convenient for the fulfillment of its corporate purpose, including entering into repurchases, loans, trusts, mandates, agencies or any contract or agreement either for the purpose of investing its resources, to obtain financing, or where appropriate, to affect, transmit or to pledge the negotiable instruments referred to in this subparagraph.  (V)  To execute  avales , bonds and, in general, guarantee, including with pledges and mortgages, obligations incurred on behalf of third parties, with or without consideration.  (W)  In general, enter into or execute any and all acts, operations and civil, commercial or any other type of contracts, which are beneficial, accessory, necessary or convenient for the effective achievement of its corporate purpose.
ARTICLE 3. DOMICILE.- The corporate seat of the Company is the city of Monterrey, N.L., Mexico, with the understanding that agencies or branches may be established within Mexico or abroad as deemed advisable by the Board of Directors.
ARTICLE 4. DURATION.- The duration of the Company shall be for a period computed as of May 28, 1920, and shall terminate on May 27, 2100.
ARTICLE 5. NATIONALITY.- This Company is Mexican. Any foreigner who in the incorporation date of this Company has acquired or in the future shall acquire an interest or participation in the Capital Stock of the Company, shall be considered for this sole act as Mexican, it being understood that said party has agreed not to seek the protection of its government, under penalty of losing said interest or participation in favor
 
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of the Republic of Mexico. This article shall be inserted in its entirety on the share certificates issued by the Company. This Company received authorization from the Mexican Ministry of Foreign Affairs under Permit Number 267, dated February 4, 1927, in accordance with the Organizational Law of Section I of Article 27 of the Constitution and its Regulations.
ARTICLE 6. CAPITAL STOCK.- The Capital Stock shall be variable. The Minimum Fixed Capital with no redemption rights is of $36,300,000.00 (thirty-six million three hundred thousand pesos and 00/100) represented by 13,068’000,000 (thirteen thousand sixty eight million) ordinary shares, which shall be registered and with no face value, of which 8,712’000,000 (eight thousand seven hundred twelve million) correspond to the Series “A” and 4,356’000,000 (four thousand three hundred fifty six million) to Series “B”; the Variable Capital with no redemption rights shall be unlimited. The common ordinary Capital Stock, as well as the capital represented by Class Shares, both in its Fixed and Variable portions, shall be represented by Series of registered shares with no par value, together with its respective sub-series. Every time reference is made to a series of shares, Fixed or Variable Capital, it shall be construed as a reference to any sub-series that, as the case may be, have been issued and that shall be identified with the same letter with which the Series has been identified and a number from 1 (one) and forward, in accordance with the respective sub-series.
The common ordinary Capital Stock shall be represented by two Series, both for its Fixed and Variable portions. The Series “A” shall represent as a minimum the (64%) sixty-four per cent of the common ordinary Capital Stock and the Series “B”, or of free subscription, shall represent as a maximum the (36%) thirty-six per cent. In the event that Class Shares shall exist, and unless an authorization is obtained to treat them as neutral investment in accordance with the Law, at least (64%) sixty-four percent of the Capital Stock represented by this type of shares shall be subject, in respect to its holders, to the same restrictions applicable to the Series “A” shares of the ordinary capital. All the shares forming part of the common ordinary Capital Stock, except for the characteristics related to the holdings of each one of the Series and the part of the Capital which they represent, give their holders the same rights and obligations. By no means and neither directly nor
 
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indirectly, the shares of the Series “A” may be acquired: (i) by foreign individuals or foreign legal entities or Mexican legal entities that do not have a foreign exclusion clause, in the understanding that such clause shall be contained both in the by-laws of the acquirer as in the by-laws of any other company or partnership that directly or indirectly has an interest in the Capital Stock of such acquirer;  (ii)  by groups, units, associations, trusts, and any entity, with or without legal personality, that admits foreigners, that is foreign, is one in which, by any form, directly or indirectly, there is intervention of foreigners, or companies in which any foreigners participate (except for the case of Trusts formed by the Company for the issuance of ordinary participation certificates to be offered to the public investors);  (iii)  by foreign governments or foreign sovereigns. The Class Shares may be acquired subject to the terms and conditions approved by the Shareholders’ Meeting authorizing its issuance. In the event of a violation of these restrictions, the acquisition shall be null and the Company shall not recognize the acquirer as the owner nor may the acquirer exercise the corporate rights inherent to the shares.
For the purposes of these by-laws, “Class Shares” are defined as the shares that carry no voting rights, and also those that have limits over other corporate rights, and shares with restricted vote.
ARTICLE 7. ACQUISITION OF OWN SHARES AND MEASURES TO LIMIT THE SHAREHOLDING OWNERSHIP.- I.-  The Company may acquire shares representing its own Capital Stock or negotiable instruments representing them, as well as optional instruments or financial derivative instruments which may be liquidated in kind that have such shares or negotiable instruments underlying in accordance with the terms and conditions indicated by the applicable Law. The shares or negotiable instruments that represent such shares that belong to the Company, or, the shares issued but not subscribed maintained in the Treasury, may be placed among the public investors in accordance with the dispositions of the applicable law. So long the shares are the property of the Company, they may not be represented nor voted in the Shareholders’ Meetings, and no social or economic rights of whatever nature may be exercised.
II.- (A).- For purposes of these by-laws, the following definitions shall apply, whether in their singular or plural form:
 
 	•	 	“Shares”: the ones that represent the Capital Stock of the Company; any type of certificate or receipt referred to the shares representing the Capital Stock of the Company; as well as any other security, negotiable instrument or document that refers to or permits the exercise of, the vote of the corresponding shares representing the Capital Stock of CEMEX, S.A.B. de C.V.	
 
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 	•	 	“CONSORTIUM”: shall have the meaning established by the Mexican Securities Law.	
 
 	•	 	“RELATIVE”: person or persons that with respect to each other, have family relationship by consanguinity, affinity or civil, up until the fifth degree in a straight or collateral line, the spouse, concubine and concubinary.	
 
 	•	 	“ENCUMBRANCE”: pledges, seizures, trusts (or equivalent figures under foreign Law), or any act or transaction that in any form, limits, restricts or affects, the implicit rights of the Shares.	
 
 	•	 	“GROUP OF PERSONS”: shall have the meaning established by the Mexican Securities Law.	
 
 	•	 	“CORPORATE GROUP”: shall have the meaning established by the Mexican Securities Law.	
 
 	•	 	“RELATED PARTY”: shall have the meaning established by the Mexican Securities Law.	
 
 	•	 	“HOLDING”: the ownership, possession or holding of Shares or the possibility of instructing or exercising the right to vote.	
 
 	•	 	“TRANSACTION”: Any agreement, contract, unilateral declaration, stipulation, arrangement and any act that creates, transmits, modifies or extinguishes obligations, including, enunciatively but not limited to, all acts or facts that give or may give place for any exercise or instruction of the exercise of the vote, or if the ownership, possession or holding of the Shares may be obtained.	
 
 	•	 	Any Transaction or Encumbrance that may result or results in a possibility, directly or indirectly, to acquire or exercise the right to vote regarding the Shares that represent a 2% or more of the Capital Stock of the Company, shall be subject to the prior authorization of the Board of Directors. The Board of Directors must decide, within a period of 90 days from the reception of the written application	
 
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 	directed to the President or Secretary of the Board. The application must contain: (i) name, social denomination of the participant(s) in the Transaction or Encumbrance and the Shares whose Holding they have on the date of the application,  (ii)  in case of a Group of Persons, Corporate Group, Consortium, Related Parties or Relatives, provide the details of all the persons involved, indicating their name, social denomination and Shares each holds, as well as who shall exercise the social and economic rights, and  (iii)  description of the Transactions or Encumbrances. The Board of Directors, in order to resolve the applications, shall consider the following criteria:  a)  if it involves Transactions or Encumbrances of qualified investors or institutions in which the public investors participate;  b)  the likelihood of the participants in the Transactions or Encumbrances exercising a significant influence or being able to obtain control (as these terms are defined in the applicable law);  c)  if all the legal dispositions and the by-laws have been observed, and the persons who wish to participate in the Transactions or Encumbrances have not incurred in any violation of the Law or by-laws or have not complied with the applicable Law or by-laws;  d)  if the persons who wish to participate in the Transactions or Encumbrances are competitors of the Company and there is a risk of affecting the free market competition or there could be an access to confidential and privileged information;  e)  the moral and economic solvency of the participants;  f)  the protection of the minority rights and the rights of the workers of the Company and its subsidiaries; and  g)  maintain an adequate base of investors. If the Board of Directors authorizes the application, the Transaction or Encumbrance shall be done during the next 10 (ten) days following notification from the Board of such authorization. If done afterwards, the authorization shall be null.	
II.- (B).- Any Transaction or Encumbrance that results o may result in a participation equal or greater than 30% of the Capital Stock of the Company, shall oblige, without taking into account whether the participants in the Transaction or Encumbrance wish or not to acquire control, the execution of a forced public offer for the acquisition for the total of the Shares representing the Company’s Capital Stock.
In the event the requirements described in numeral II of this article are not met or exceed the participations indicated in the paragraphs A and B, the persons involved therein
 
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shall not be entitled to exercise the voting rights corresponding to the total of the Shares whose Holding was obtained or is obtained, and therefore, such Shares shall not be taken into account for the determination of the quorum of attendance and voting in the Shareholders’ Meetings, nor shall the records in the shareholder ledger be done and there shall be no effects of the Registry done by the Institute for the Deposit of Securities.
In order to determine if a specific situation is within numeral II of this Article, the following considerations and criteria shall apply and all the Shares whose holding is obtained, shall be obtained, or is obtained by virtue of any Transaction or Encumbrance, shall be taken into account (the calculation shall be made regarding the number of shares directly representing the Capital Stock of the Company).
1.- It does not matter if the Transaction or Encumbrance is made abroad.
2.- A single Holding shall be considered regarding each of the participants in the Group of Persons, Corporate Group, Consortium, each Related Party, and each Relative.
3.- Each Transaction or Encumbrance that may result in obtaining a 2% or more of the Capital Stock must be submitted to authorization.
4.- In case of Trusts established by the Company for the issuance of ordinary participation certificates to be offered to the public investors, the fiduciary institution shall not be subject to numeral II of this Article or Article 10 of these by-laws.
5.- For the interpretation of these by-laws, the applicable law shall be taken into account.
ARTICLE 8. MODIFICATIONS TO THE CAPITAL STOCK.- To increase or decrease the Capital Stock and amortize issued shares with undistributed profits, except in accordance with the provisions of Article 7 of these by-laws, the following procedure shall be followed: The Fixed Capital Stock shall only be increased or decreased by resolution of the General Extraordinary Shareholders’ Meeting, and such Meeting shall also authorize the amortization of issued shares with distributable profits representing this part of the Capital Stock and the amendments to the limits of the Variable Capital. The Variable Capital Stock shall be increased or decreased by resolution of the General Ordinary
 
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Shareholders’ Meeting, and such Meeting shall also resolve about the amortization of issued Shares representing this part of the Capital Stock with distributable profits; in the event of a capital increase in its Variable part, the Meeting may delegate to the Board of Directors the authority to determine the terms and conditions under which it shall proceed to the issuance, exhibit and subscription of the respective shares, which once issued and while subscribed shall be held by the Treasury of the Company. In the event of a capital reduction in the Variable part of its Capital Stock, the Board of Directors, in accordance with applicable legal provisions, may fix the terms and conditions for its implementation. The amortization of Shares with distributable profits shall be made in accordance with the terms mentioned by the Law. The minutes of the General Ordinary Shareholders’ Meetings that approve increases or decreases in the variable portion of the Capital Stock must be notarize, except in the cases where the increases and decreases are the result of the repurchase of shares.
In the terms of the applicable law, the Company may increase its Capital Stock by the issuance of non-voting shares, shares with other limitations in their corporate rights, or shares with restricted vote. The issuance of the shares mentioned in this paragraph shall not exceed the percentage of the Capital Stock established by the applicable Law and may be part of the Fixed or Variable portions of the Capital Stock.
The non-voting shares shall not be counted for purposes of determining the attendance or voting quorums at the Shareholders’ Meetings, while the shares with limitations on other corporate rights, or of restricted vote, shall only be counted to determine the attendance and voting quorums in the Shareholders’ Meetings held to deal with any matters in which such shares have a voting right.
Issued Class Shares, as the case may be, shall conform one or several Series with its respective sub-series, each Series shall be identified with two letters of the alphabet, one of which shall be “A”, “B” or “N”, respectively and depending on whether its holding restrictions are reserved in the terms of these by-laws with respect to the Series “A”, common ordinary Capital, are of free subscription in the terms of these by-laws with respect to the Series “B” of the common ordinary Capital Stock, or in its case, are considered as neutral investment under which they shall also have free subscription; and the other letter shall be used to distinguish them from the shares representing the common ordinary Capital Stock and the other Classes that conform the Capital Stock, attaching a progressive number for each sub-series issued.
 
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In the event of a Capital Stock increase, the Shareholders’ Meeting may extend, limit or deny shareholders holding shares that represent the Capital Stock the preemptive right to subscribe, in proportion to their participation in the same and depending on their participation in the common ordinary capital or in the capital represented by Class Shares, the shares that in either case are issued. When applicable, the proportion shall be determined considering only the participation in the issued Capital Stock and the preemptive rights may only be exercised with respect to the same class of Shares that are held by the shareholder and within the (15) fifteen days following the publication of the resolution of the respective Shareholders’ Meeting, the publication shall be made in the terms provided in these by-laws for the calls for Shareholders’ Meetings. The preemptive right to subscribe shall not be applicable to increases to the capital through public offers or through the issuance of own shares previously acquired by the Company.
The Shareholders shall also have the right to receive the shares that are issued by means of capitalization of reserves or profits, in the understanding that the shares issued under this concept shall correspond proportionately to all issued Shares. The Shareholders’ Meeting shall determine the nature or class of shares that shall be represented by the Capital Increases made by the capitalization of reserves or profits and only those Shareholders holding common ordinary shares or Class Shares, depending on which of them are being issued, shall share the benefit of receiving the shares so issued in the proportion of their Holdings in the issued ordinary common Capital Stock or of Class, respectively.
The Company may issue Treasury Shares to be subscribed afterwards by the public investors, in accordance and subject to the applicable Laws.
The shareholders of the variable part of the Capital Stock of the Company shall not have withdrawal rights.
The Company shall keep a Book, which shall be authorized by the Chairman or Secretary of the Board of Directors or by any other officer designated by the Board of Directors for this purpose. All notes relating to the registration of increases and decreases of the Capital Stock in its Variable portion shall be kept in this Book.
 
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ARTICLE 9. CERTIFICATES REPRESENTING THE SHARES.- The Share Certificates and Provisional Certificates issued in each case, must contain the expressions referred to in the Law and in Articles 5, 7 (regarding the restrictions for the transmission of Shares or to acquire substantial portions of the Capital Stock), 8, and 10 of these by-laws, regarding the rights and obligations of the shareholders, and must have the signatures of any two Board members appointed by the Board of Directors. The Chairman and Secretary may use a facsimile of their signature, as long as they fulfill the requirement of the applicable Law. The Share Certificates and provisional certificates must also contain adhered vouchers, to be used when exercising their dividend and preemptive rights. The Board shall determine the number of shares represented in each Share Certificate and the number of vouchers to be adhered.
ARTICLE 10. SHARE REGISTRY AND SIGNIFICANT PARTICIPATIONS.- The Company shall have a Share Registry that must contain:  a).-  The name, nationality, and address of the Shareholder, as well as the indication of the shares belonging to him, indicating their number, series, class, and other distinctions;  b).-  The indication of the payments made taking place;  c).-  Any encumbrances over the Shares, as well as of the rights incorporated in them, the limitations of domain, and transfers made. The Registry must also comply with the dispositions established in the applicable law and with Article 7 of these by-laws. The Company shall consider the person inscribed in the Registry, referred to in this article, as owner of the shares. To this effect, the Company must record in such Registry, when requested by any holder, the transfers, limitations, or liens imposed on them. In case the Shares or certificates that represent them were deposited in an authorized Institution for the Deposit of Securities, the register shall be made in accordance with the applicable law and with the by-laws. The persons who, in any way and in accordance with the criteria set forth in numeral II of Article 7 of these by-laws, obtain a participation of 5%, 10%, 15%, 20%, 25% or 30% must inform the Company within a period of 5 (five) working days following the day in which such percentage of ownership is obtained or exceeded. For purposes of calculating such percentages, numeral II of article 7 of these by-laws shall apply. In the case of Corporate Groups, Groups of Persons, or Consortiums, the obligation to notify applies to all the persons that are considered members of such groups.
 
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The notice given to the Company, referenced in this Article, shall include the name of the person or persons that have the ownership and the rights or faculties acquired, the authorization from the Board in those cases described in Article 7 of these by-laws, and the data needed to identify the persons regarding the ones for which Shares are grouped for Ownership.
In case of non-compliance with the provisions of this Article, regarding notices of significant participations, the corresponding Shares shall not be represented in the Meeting.
The Company shall keep a registry of significant participations, where names, nationality and domicile of the persons whose names are in the instruments or respective certificates, as well as the relation, agreement or arrangement that exists between them and the information necessary in order to verify the compliance of these by-laws, shall be registered. Only those who are registered may represent the respective shares in the Shareholders’ Meeting. The shareholders must, additionally, comply with what the applicable law establishes regarding acquisitions of securities subject to disclosure and disclosure of contracts and agreements between shareholders. In order to comply with the obligations to notify, this Article shall apply. Only those that have complied with these by-laws and the applicable law shall be able to exercise or instruct the exercise of the corresponding voting rights. In case of non-compliance with what is stated in these by-laws, the registration in the Registry of Shares shall not take place and all the transactions made by an institution for the deposit of securities shall have no legal effect whatsoever before the Company.
ARTICLE 11. SHAREHOLDER’S MEETING.- The General Meeting is the supreme decision organ of the Company, and it may resolve and ratify all of the resolutions and acts of the same. It shall have no limitation on its powers other than as mentioned in the Law and in these by-laws.
In the event that the Capital Stock of the Company, in addition to the common ordinary shares, is represented by shares of other classes, all proposals that may affect the rights conferred to Shareholders holding shares of such classes shall be previously accepted
 
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by the class so affected in a Special Shareholders’ Meeting in which the attendance and voting quorums applicable to the Extraordinary Shareholders’ Meetings shall be applied, which shall be counted in reference to the total number of shares of each respective class.
The class Shareholders’ Meetings shall be held in the social domicile and shall be subject to the provisions of Articles 13, 14 and 15 of these by-laws, and the Shareholder designated by the Shareholders present thereat shall act as Chairman and the Secretary of the Company shall act as Secretary or in his absence, whoever the Shareholders designate.
ARTICLE 12.COMPETENCE OF THE SHAREHOLDERS’ MEETINGS.- The Ordinary General Meeting shall meet at least once a year, once the immediate preceding fiscal year ends, in the corporate domicile, on the date specified by the Board of Directors in accordance with applicable law. The Annual Ordinary General Meeting held because of the closing of the fiscal year, shall deal with the following, in accordance with the applicable law:  (a)  annual reports regarding the activities corresponding to the Corporate Practices and Audit Committees;  (b)  annual report of the Chief Executive Officer, accompanied with the report from the external auditor;  (c)  opinion of the Board of Directors regarding the contents of the annual report of the Chief Executive Officer;  (d)  the annual report of the Board of Directors declaring and explaining the main policies and accounting and information criteria followed in the preparation of the financial information;  (e)  the report of the Board of Directors regarding the operations and activities in which it has participated;  (f)  the election, removal or substitution of the members of the Board of Directors, and their level of independence; additionally, the Ordinary Meeting shall approve the operations that the Company or the companies controlled by the Company wish to undertake during one fiscal year, when they represent 20% (twenty percent) or more of the net worth of the Company, based on amounts corresponding to the closing of the immediate preceding trimester of the date the Meeting is held, independent from the way they are executed, simultaneously or progressively, but that, because of their characteristics, may be considered as one operation; in such Meetings the shareholders that have shares with voting rights may vote, including the ones that have a limited or restricted vote; and  (g)  all other matters that are part of their faculties in accordance with these by-laws or the applicable law.
 
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Extraordinary General Meetings shall have the competence over the matters established in the applicable law and in the by-laws.
Ordinary and Extraordinary Meetings shall meet whenever called.
ARTICLE 13. CALLS.- The calls for Shareholders’ Meetings shall be made by the Board of Directors or by the Corporate Practices or Audit Committees, with the exception of those rights granted by Law to the shareholders to legally publish the Calls. The Call shall be made through an announcement published in the Official Gazette of the State or in any of the major daily newspapers in the corporate domicile, at least fifteen days prior to the date set for the Meeting. The Call shall state the place, day and time at which the Meeting shall be held and shall contain the Agenda, which shall not include matters under the title of “general” or equivalents. A Call shall not be required if all the shares in their entirety are represented when the Meeting is installed and the votes are taken. When a quorum is not obtained for a Meeting, a minute shall be drawn-up in the respective Book, evidencing such circumstance, and said minute shall be signed by the Chairman and Secretary as well as by the appointed Tellers, setting forth the date of the newspaper in which the call was published. If such should be the case, a second Call, so noted, shall be published just once in the Official Gazette or another major daily paper in the corporate domicile, at least fifteen days prior to the date set for the Meeting.
The Shareholders that are Owners of shares with voting right, including in a limited or restrictive form, that represent at least 10% (ten percent) of the Capital Stock subscribed and paid, shall be able to request to the Chairman of the Board of Directors or of the Corporate Practices or Audit Committees, in any moment, that a General Shareholders Meeting takes place, in the terms of the applicable law.
Any Shareholder may request the Chairman of the Board of Directors that a General Shareholders Meeting takes place, in the terms of the applicable law, when, for any cause, the minimum number required, for a Meeting to be held, of members of the Corporate Practices and Audit Committees is not present and the Board of Directors has not made the provisional corresponding appointments.
 
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From the publication of the Call for the Shareholders’ Meetings, information and documents regarding every and all of the matters included in the Agenda shall be made available to the Shareholders, in the offices of the Company and at no cost.
ARTICLE 14. ATTENDANCE TO THE SHAREHOLDERS’ MEETINGS.- In order to attend and participate in the General Meetings of Shareholders, the Shareholders with the right to vote shall deposit their shares at the corporate offices, in a Mexican credit institution or a brokerage firm, operating in accordance with the Mexican Securities Law. The Certificate of Deposit and, as the case may be, the list of Owners issued by the broker shall be delivered in the office of the Secretary of the Company at least 48 hours prior to the time set for the Meeting. In addition, it is necessary to observe the dispositions of Articles 7 and 10 of these by-laws regarding the Shares intended to be represented in the Meeting. The Secretary, in exchange for the aforesaid certificate of deposit, shall list, and after checking the compliance with the by-laws regarding Articles 7 and 10, shall issue a deposit voucher that verifies the shareholders’ standing as such and the number of shares represented. Said voucher shall authorize the person to whom it has been issued to attend the Meeting. The deposited shares or respective certificates shall only be returned to the Shareholders when the Meeting has been concluded, and in exchange for the voucher issued by the Secretary. The Secretary shall have the documents referred to herein, at the disposal of the Tellers appointed to act as such at the respective Meeting, so that, at the end of the respective registration period, they may prepare the Attendance List of the Shareholders who have right to attend that Meeting.
ARTICLE 15. SHAREHOLDERS’ REPRESENTATION.- Every Shareholder has the right, subject to compliance with these by-laws, to attend the Meetings, personally or through Proxy. If attending by Proxy, it shall be necessary to obtain a simple power of attorney, granted in accordance with the forms created by the Company and that shall be at the disposal of the shareholders, including the brokers in the Stock Exchange, during the term indicated by the Law. The forms shall contain the following:  (a)  clearly name the Company and the Agenda without mentioning under the title “General Matters”, the items referred to by the applicable law, and  (b)  a space for including the instructions for exercise of the Power of Attorney indicated by the grantor of such Power of Attorney.
 
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The Secretary of the Board of Directors shall verify that this Article is observed and shall inform the Meeting thereof.
ARTICLE 16. INSTALLATION OF THE SHAREHOLDERS’ MEETINGS.- The General Ordinary Shareholders’ Meeting shall be considered legitimately installed in its first call, if at least 50% of the total number of voting shares representing the Capital Stock are present thereat. In the event of a second call, the General Ordinary Shareholders’ Meeting shall be deemed installed regardless of the number of voting shares that are present thereat. The General Extraordinary Shareholders’ Meeting shall be considered legitimately installed in its first call, if at least three fourths of the total number of voting shares representing the Capital Stock are present thereat, and in the event of a second call, if at least 50% per cent of the total number of voting shares representing the Capital Stock are present thereat.
ARTICLE 17. DEVELOPMENT OF THE SHAREHOLDERS’ MEETINGS.- The Meeting shall be chaired by the Chairman of the Board of Directors or who normally substitutes him in the practice of his functions. In their absence, the Meeting shall be chaired by the Shareholder appointed by the absolute majority of those present. The Secretary of the Meeting shall be the person who is the Secretary of the Board of Directors or in his absence, the person appointed by the majority of the shareholders and proxies present thereat. The voting shall be simple unless the shareholders representing at least 20% of the Capital Stock request that the voting be nominal. The Chairman of the Board of Directors shall appoint two Tellers, having the possibility of doing so in writing once the call for the Meeting is published. In the case of absence of the Tellers so appointed, a new designation may be made. The Tellers present at the Meeting shall determine, with the documentation available and the Attendance List formulated for said effect, the number of legally represented shares. If by any reason the Agenda was not totally discussed in the date for which the Meeting had been called, such Meeting shall continue to be open during the immediate following days and until all items on the Agenda are dealt with.
 
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The Shareholders owning shares with voting rights, including in a limited or restrictive form, duly represented in the Meeting and that represent at least 10% (ten percent) of the Capital Stock subscribed and paid, shall have the right to request the deferral of the voting on any matter for which they considered themselves not to be well informed, abiding to the terms and conditions indicated by the General Corporations Law.
ARTICLE 18. VOTING RIGHTS AND QUOROUM OF THE SHAREHOLDERS’ MEETINGS.- In all Meetings, each common ordinary share shall be entitled to one vote. This principle shall be subject to applicable legal provisions and to the provisions of these by-laws, with exception to those cases of shares temporarily re-acquired by the Company as referred to in numeral I of Article 7; to the non-voting shares, as well as to, or with the limitation to other corporate rights, and any shares with limited vote in accordance with the applicable law and the resolutions of the Shareholders’ Meeting in which its issuance has been approved; as well as to those cases contemplated by numeral II of Article 7 and Article 10 of these by-laws. In all Ordinary Shareholders’ Meetings, the resolutions shall be valid with the affirmative vote of the majority of the votes of the voting-shares present thereat. In the Extraordinary Shareholders’ Meetings, the resolutions shall only be valid if approved by the affirmative vote of the voting-shares representing at least (50%) fifty per cent of the Capital Stock with voting rights, except in the case of amendments to Articles 7 (except for the acquisitions of own shares), 10, and 22, in which it shall be required to obtain approval of (75%) seventy-five percent of the voting shares as well as those cases that in accordance with the Law, require a special quorum. It shall be left to the Tellers, who shall sign the respective minute, to verify that the quorums so indicated are complied with. The Shareholders, Owners of shares with voting rights, including in a limited or restrictive form, that represent at least 20% of the Capital Stock subscribed and paid, shall have the right to judicially oppose to the resolutions of the General Meetings, regarding those items where they have voting rights, whenever the provisions stated in applicable law, for these purposes, are observed.
The shareholders owning shares with voting rights, limited or restricted, who jointly or individually own 10% of the Capital Stock, may request the postponement, only once, by 3 days and without the need for a new call, of the voting of any matter which they feel they have not been sufficiently informed of.
 
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ARTICLE 19. INTEGRATION OF THE BOARD.- The Board of Directors shall be composed of a maximum of twenty one (21) Regular Board Members, where at least 25% (twenty-five percent) must be independent in accordance with the applicable Law. A Shareholders’ Meeting may designate Alternate Board Members. The Alternate Board Members shall become part of the Board of Directors only in such cases of temporary or permanent absences of the Regular Board Members. The person appointed as Chairman of the Board of Directors shall be designated by the Shareholders’ Meeting; the Shareholders’ Meeting or the Board of Directors shall designate the Secretary, whom may not be a Board Member. The Board Members, Regular or Alternate, shall remain in their position, even if their term has expired or because of their resignation, up until 30 days from such event. In case any of the Board Members is absent, or the appointed one does not take charge of such appointment, and no alternate has been appointed, or such alternate does not take charge of such appointment, the Board of Directors may appoint provisional members, without the intervention of the Shareholders’ Meeting, who shall ratify such appointments or appoint the substitute members in the next Meeting from such event. The Alternate Board Members, in the order in which they were appointed, shall substitute the Regular Members; in case the number of Alternate Board Members designated is less than the number of Board Members, each Alternate Board Member shall substitute the Board Member that corresponds according to the designation order of the Alternate Board Members, and once the Alternate Board Members have been appointed, this procedure shall be repeated until designating each Board Member its own Alternate Board Member, under which cases an Alternate Board Member can have that character with respects to one or more Regular Board Members, in the understanding that Alternate Board Members of Regular Board Members who are independent must have that same character. The Regular Board Members can only be substituted in their absences by the Alternate Board Member that corresponds in accordance to the designation.
The independent Board Members and their alternates must be appointed in accordance with the dispositions of the applicable Law and these by-laws, and those who cease to have such character must notify the Board of Directors in its next Meeting at the latest.
 
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ARTICLE 20. MINORITY RIGHTS IN THE APPOINTMENT OF THE BOARD.- All shareholders owning shares with voting rights, including limited and restricted, who individually or jointly own 10% of the Capital Stock of the Company, shall have the right to appoint and revoke, in the General Shareholders Meeting, a member of the Board of Directors. Such appointment may only be revoked by the other shareholders when all the other appointments of the members are revoked, in which case, the substituted persons may not be appointed with such character during the next twelve months following the date of such revocation. In such case, the minority shareholders must refrain from taking part in the election of the Board referred to by Article 19 of the by-laws, limiting their actions to appointing by majority of votes, a member of the Board of Directors.
ARTICLE 21. HONORARY CHAIRMAN.- The General Shareholders Meeting may, through a resolution, appoint as Honorary Chairman of the Company a person that deserves such appointment due to his achievements within the Company. The Honorary Chairman must keep confidential the information or matters of the Company that he is aware of, when such information is not of public domain. The Honorary Chairman shall not be subject to the responsibilities established in the applicable law for Board members and relevant executives; he shall have voice without vote whenever he attends to the Meetings of the Board of Directors, The Honorary Chairman may not adopt resolutions that transcend in a significant way the administrative, financial, operational or legal situation of the Company or corporate group to which it belongs.
ARTICLE 22. RESTRICTION TO BECOME A BOARD MEMBER.- The following persons cannot be Board Members of the Company:  a)  Persons with no legal capacity.-  b)  Persons who, in accordance with the Law, may not engage in commercial transactions;  c)  Those who, during the twelve months immediately preceding the election, have held a position as external auditors of the Company or any of the companies part of the corporate group;  d)  Those who have been substituted in their appointment by
 
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revocation, in which case they cannot be appointed with such character during the twelve months following the date of revocation;  e)  Those who have past due obligations with the Company not duly guaranteed;  f)  Those who, during the fiscal year immediately preceding the election (either with or without interruptions) have held a position in, acted as representatives or attorneys-in-fact in any form of, have been shareholders or have participated (directly or indirectly) in 5% or more of the Capital Stock or assets of, or have rendered services through any form to: persons or entities (either incorporated or not) (except those companies in which CEMEX, S.A.B de C.V. has direct or indirect participation with a minimum of 40% of the Capital Stock) and whose activity is related to the production or distribution of cement or its derivatives (persons or entities includes those that at the same time are shareholders or participate in the management, either directly or indirectly, of the person or entity dedicated to the above mentioned activity, and also those in which the latter is a shareholder or participate in the management, either directly or indirectly), or  g)  those who have participated in an act that implicates a violation to the by-laws, Laws and applicable rules. Board members who, after being appointed, are found to be in one of the cases or situations described above, shall have to renounce and shall not be able to perform their functions again, except with a new election and after the restriction has been eliminated.
ARTICLE 23. BOARD MEETINGS.- The Board of Directors shall gather at least four times during each fiscal year. The Chairman of the Board of Directors and of the Corporate Practices and Audit Committees, as well as 25% (twenty five percent) of the Board Members, can call a Board Meeting and include in the agenda such items as they consider pertinent.
The Company’s external auditor may be called to the Board of Director Meetings, as an invitee with voice but without vote, and shall abstain from being present during the discussion of those items on the agenda in which he has a conflict of interest or that could impair his independence as defined by the Law.
The Meeting shall be considered duly installed with the presence of the majority of the Board Members, who shall make their decisions by an absolute majority of the Board Members there present. Minutes shall be drawn up for each of the Meetings of the Board,
 
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which shall contain the topics and items discussed; said minutes must be signed by the Chairman and Secretary who acted as such during said Meeting. The Board may adopt resolutions without a Meeting through the unanimous consent of its members. Such resolutions shall be confirmed in writing.
All information presented to the Board of Directors, whether of the Company or of its controlled entities, shall be signed by the persons responsible for its content and drafting.
ARTICLE 24. FACULTIES OF THE CHAIRMAN OF THE BOARD.– The Chairman of the Board of Directors shall have, except for any modifications, restrictions or additional responsibilities that the General Shareholders’ Meeting or the Law may determine, the following faculties, obligations, attributions, and powers:  I.-  Execute or procure the execution of the resolutions of the General Shareholders’ Meetings and the Board of Directors, doing anything that is necessary or prudent in order to protect the Company’s interests, without affecting the faculties that the Shareholders’ Meeting, the Board or the Law may confer to the Chief Executive Officer.  II.-  Submit proposals to the Board of Directors regarding the independent directors that shall integrate the Corporate Practices and Audit Committees, as well as the provisional directors that shall be designated by the Board, if necessary.  III.-  Chair the Shareholders’ Meetings and the Board Meetings, having a quality vote in the Board’s Resolutions in the case of a tie.  IV.-  Prepare, sign and publish the calls for the General Shareholders’ Meetings and summon the Board of Directors’ Meetings.  V.-  Represent the Company before any type of authority, company or individual. Any absence of the Chairman shall be covered by the Board Member appointed by the Board of Directors.
ARTICLE 25. APPOINTMENT OF THE SECRETARY OF THE BOARD.- In case the Shareholders’ Meeting does not prepare it, the Board of Directors shall appoint a Secretary, who may not be a Board Member and who shall be subject to the obligations and responsibilities established by the Law, being this appointment revocable at any time.
 
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ARTICLE 26. DUTIES AND RESPONSIBILITIES OF THE BOARD MEMBERS.- The General Ordinary Shareholders’ Meeting may establish the obligation that the Board Members and Secretary of the Board, the Chief Executive Officer and the Relevant Executives referred to by the applicable Law, grant a guarantee to cover the liabilities in which they may incur as a result of the performance of their position.
The Board Members shall perform their duties in a value-creating manner for the benefit of the Company, without favoring a specific shareholder or group of shareholders, and shall therefore act diligently and in good faith by adopting informed decisions; and shall comply with their duty of care and loyalty, abstaining from engaging in illicit acts or activities, as established by the applicable Law.
The liability for breach of these fiduciary duties or for engaging in illicit acts or activities shall consist of indemnifying the Company for the damages and costs suffered, and the responsible individuals shall be removed from their positions as established by applicable Laws.
With respect to liabilities arising from the breach of the duty of care, and only when the relevant acts were not done willfully, in bad faith or are not illegal, indemnities or insurance may be contracted for the Board Members or the Secretary. In no other case may such indemnity or insurance be granted or contracted.
The right to bring actions based on the breach of the fiduciary duties or on the committing of illicit acts or activities as established by the Law, shall be exclusively on behalf of the Company or of the individual who is controlled by the Company or in which the Company has significant influence, that suffers the economic damage, and may be enforced by the Company, through the resolution previously adopted in the General Extraordinary Shareholders’ Meeting, or by the shareholders who, individually or in group, hold voting shares, including shares with limited or restricted voting rights, that represent 5% or more of the Company’s Capital Stock, with disregard of the fulfillment of the requirements established by the General Corporations Law for suing management for their civil responsibility. With respect to liability claims brought on behalf of controlled companies or of those where the Company has substantial influence, these shall be independent of other claims that should be brought under the General Corporations Law, and if such claims are brought by the  Sociedad Anónima Bursátil , the prior approval by the
 
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General Extraordinary Shareholders’ Meeting shall be required. In the event that the shares representing the Capital Stock of the Company are placed among the public through negotiable instruments representing such shares, issued by fiduciary institutions under a trust, the right to bring the liability claim shall correspond to the fiduciary institution and to the holders of such instruments that represent 5% or more of the Company’s Capital Stock.
ARTICLE 27. RESPONSIBILITIES OF THE BOARD.- It is the responsibility of the Board of Directors to:
I.- Establish the general strategies for conducting the Company’s business and other companies controlled by it.
II.- Monitor the managing and handling of the Company and of the other companies controlled by it, considering the importance that the latter have in the financial, administrative and legal situation of the Company, as well as the performance of the Relevant Executives.
III.- Approve, with the prior opinion of the Audit and Corporate Practices Committees: A) The policies and guidelines for the use of the Company’s assets and the assets of other companies controlled by it, by related parties.  B)  Each related party transaction that the Company or other companies controlled by it plan to enter into.  C)  Transactions that are executed, either simultaneously or successively, that may be considered as one single transaction given their characteristics, and that the Company or the companies controlled by it plan to enter into, during a fiscal year, when these are unusual or non-recurrent, or else, when their total value represents, based on numbers corresponding to the end of the immediately preceding quarter in any of the following scenarios:  1.  The purchase or sale of assets with a value equal or greater than 5% of the consolidated assets of the Company.  2.  The granting of guarantees or the assumption of liabilities for a total sum equal or greater than 5% of the consolidated assets of the Company. Investments in debt securities or financial instruments shall not be covered by this provision whenever these are made in accordance with the policies that for such purpose are issued by the Board of Directors. D )  The appointment, election, and, as the case may be, removal of the Chief Executive Officer of the Company, and its compensation, as well as the
 
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policies for the appointment and compensation of other Relevant Executives. E) The policies for extending credit or personal guarantees to related parties.  F)  Waivers granted so that a Board Member, Relevant Executive or any other individual with power to command, can take personal advantage or for third parties of corporate opportunities belonging to the Company or to other companies controlled by it or where the Company has substantial influence. Waivers for transactions with a total value less than what is mentioned in Section C) of this numeral III may be delegated to the Audit and Corporate Practices Committees.  G)  The guidelines with respect to internal controls and the internal audit of the Company and of the other companies controlled by it.  H)  The accounting policies of the Company, adjusting them to the accounting principles recognized or issued by the National Banking and Securities Commission.  I)  The Company’s financial statements.  J)  The hiring of the firm that shall render the external audit services and, if applicable, of additional or complementary services.
IV.- Present to the General Shareholders’ Meeting held after the end of the fiscal year: A) the annual report regarding the activities of the Audit and Corporate Practices Committees.  B)  The report prepared by the Chief Executive Officer, according to the Law, together with the report of the external auditor.  C)  The Board of Director’s opinion regarding the content of the Chief Executive Officer’s report mentioned in the preceding section.  D)  The report mentioned in Article 172, section b) of the General Corporations Law, which contains the main accounting and information policies and criteria to be used in preparing the financial information.  E)  The report on the activities and transactions in which it intervened as required by the applicable Law.
V.- Follow-up on the main risks to which the Company and the other companies controlled by it are exposed, identified based on the information presented to the committees, the Chief Executive Officer and the firm that serves as external auditor, as well as the accounting, internal control and internal audit, registry, archive or information systems of the Company or the other companies controlled by it. This task may be done through the conduit of the Audit and Corporate Practices Committee.
 
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VI.- Approve the policies for information and communication with shareholders and the market, as well as with the Board Members and Relevant Executives, in order to comply with the Law.
VII.- Determine the corresponding course of action in order to correct any irregularities it is aware of and to implement the applicable corrective measures.
VIII.- Establish the terms and conditions to which the Chief Executive Director shall abide in the exercise of its powers of administration.
IX.- Order the Chief Executive Officer to disclose to the public those material events that it has knowledge of.
X.- Manage the businesses and assets of the Company, with full management power, under the terms of Article 2,554 (two thousand five hundred and fifty-four), Second paragraph of the Federal District Civil Code, and its correlative Article 2,448 (two thousand four hundred and forty-eight) of the State of Nuevo Leon.
XI.- Perform the domain over movable and real estate assets of the Company, as well as over their real and personal rights, under the terms of the third paragraph of Article 2,554 (two thousand five hundred and fifty-four) of the Federal District Civil Code and its correlative article 2,448 (two thousand four hundred and forty-eight) of the Civil Code for the State of Nuevo Leon.
XII.- Represent the Company before any type of administrative or judicial authorities of the Municipality, State or Country, as well as before the labor authorities or any other authority, or before arbitrators, with a vast power, including those faculties requiring a special clause according to the Law, under the provisions of the first paragraph of Article 2,554 (two thousand five hundred and fifty-four) of the Federal District Civil Code and its correlative Article 2,448 (two thousand four hundred and forty-eight) of the Civil Code for the State of Nuevo Leon, and file legal suits, complaints and criminal accusations, being also able to act as a civil party in criminal cases, and grant remission, as well as to present  Juicios de Amparo  and waive the Company’s rights under them.
XIII.- Grant and subscribe negotiable instruments on behalf of the Company, contribute with movable and real estate assets of the Company to other companies, and subscribe shares or take a participation in other companies, with the exception of those restrictions established by the applicable Law.
 
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XIV.- Grant avales, bonds, and generally guarantee, even with mortgage or pledge, duties from third parties with or without counter benefits, and therefore execute negotiable instruments, contracts and other documents that are necessary for the granting of said guarantees, with the exception of those restrictions established by the applicable Law.
XV.- Monitor compliance with the resolutions of the Shareholders’ Meetings.
XVI.- Grant or deny the authorizations referred to in article 7 of these by-laws.
XVII.- Any other responsibility established by the Law in accordance with the functions that the Law grants to the Board of Directors and that are not reserved for the General Shareholders’ Meeting.
Approval from the Board of Directors shall not be required for the following transactions, each individually, entered between related parties and the Company or the companies controlled by it, if such transactions adhere to the policies and guidelines approved by the Board of Directors for such purpose:  (a)  those transactions that, based on their value, are not material to the Company or those companies controlled by it;  (b)  transactions entered into by the Company and the companies controlled by it or companies where the Company has substantial influence or entered by any of latter, whenever such transactions are part of the Company’s business scope or are considered made at market prices or supported on valuations made by external specialized firms; and  (c)  transactions with employees, whenever these are entered under the same conditions as with other clients or as a result of the rendering of general professional services.
The Board of Directors may only delegate its faculties under numerals X, XI, XII, XIII, and XIV above, and the attorneys-in-fact to whom they delegate those faculties are hereby duly authorized to delegate once more the faculties that have been delegated to them; with respect to section F) of numeral III, delegation shall be made as established therein, all other faculties correspond exclusively to the Board of Directors.
ARTICLE 28. CHIEF EXECUTIVE OFFICER.- The management, direction and execution of the business of Company and of the companies controlled by it shall be the responsibility of the Chief Executive Officer, who shall abide to the strategies, policies and guidelines approved by the Board of Directors.
 
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The Chief Executive Officer shall have the signature of the Company, and shall have the following faculties, duties and obligations : I.-  Represent the Company with general powers for act of administration, to manage the businesses and corporate assets with the ampleness of the second paragraph of Article 2554 of the Federal District Civil Code and its correlative Articles in the Civil Codes of any and all States of the Republic of Mexico, and Article 10 of the General Corporations Law.  II.- Represent the Company with general power for lawsuits and collections, with all the general and special powers requiring special power or clause, without any limitation whatsoever, with the ampleness of the first paragraph of Article 2554 and 2587 of the Federal District Civil Code, and its correlative Articles in the Civil Codes of any and all States of the Republic of Mexico, as well as the power to represent the Company in labor disputes, with the attributions, obligations and rights prescribed in the Federal Employment Law.  III.-  Execute acts of domain over the corporate assets, as well as over their personal and real rights, whether movable or real estate assets, with the powers that correspond per the Law to the owner pursuant to the terms of the third paragraph of Article 2554 of the Federal District Civil Code and the correlative Article 2448 of the State of Nuevo Leon. IV.-  Exercise the voting rights of those shares issued by those subsidiaries owned by the Company, complying with the Law. V.-  Organize, manage and direct the personnel and the assets and businesses of the Company as instructed by the Board and to collect and make payments.  VI.-  Enter into agreements, execute negotiable instruments that are to be issued, accepted, endorsed or guaranteed, and all other documents related to his attributions, and execute those acts that are required for the ordinary course of business whenever they abide to the policies and guidelines that are approved by the Board of Directors for such purposes. VII.-  Designate the Relevant Executives that shall assist him in the exercise of his functions and due fulfillment of his obligations, as well as any other employees he deems convenient.  VIII.-  Grant and revoke general and special powers, as well as to delegate, all or part of his faculties, including the power to authorize the attorney-in-fact to whom he delegated Powers so that the latter can likewise delegate the faculties he deems convenient, including such power of delegation.  IX.-  All other faculties, obligations and responsibilities
 
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established by the Law and that are not reserved to the General Shareholders’ Meeting or to the Board of Directors. The Board of Directors may broaden or restrict the faculties of the Chief Executive Officer.
The Chief Executive Officer and Relevant Executives shall conduct their positions in a manner that looks after the creation of value for the Company, without favoring a specific shareholder or group of shareholders. For this purpose they shall act with due diligence, making informed decisions and complying with the duties imposed by the Law or these by-laws. The Chief Executive Officer and the Relevant Directors shall be responsible for damages and losses caused to the Company or to other companies controlled by it, as determined by the Law.
ARTICLE 29. MANAGING POSITIONS.- The Board of Directors may appoint managers and sub-managers, who shall be under the immediate orders of the Chief Executive Officer. It shall delegate among them the different attributions that shall correspond to them. The managers and sub-managers shall have the duties and obligations expressed in the Power issued for said effect.
ARTICLE 30. FACULTIES OF THE SECRETARY OF THE BOARD.- The Board may designate, among its Members, one or more delegates for executing specific acts. The Secretary of the Board of Directors shall have the following faculties, obligations and attributions:
A).- Draft, sign and publish the calls and notifications for the Shareholders’ Meetings, and if applicable, call the Meetings of the Board of Directors and of the Corporate Practices and Audit Committees.
B).- Participate with voice, but without vote, in the Board of Director Meetings.
C).- Maintain the confidentiality of the information and issues that he becomes aware of as part of his position in the Company, when such information and issues are not deemed public.
D).- Attend all of the General Shareholders’ Meetings and Board of Director Meetings, draft and sign the corresponding minutes, and keep the Minute Books of the General Shareholders’ Meetings and Board of Director Meetings as established by Law.
 
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E).- Sign the minutes prepared in such Meetings, as well as authenticate such acts or resolutions contained in such minutes for all applicable legal effects.
F).- Act as the special designated representative of the Company to appear before a notary public and obtain the complete or partial protocolization of the minutes prepared at the General Shareholders’ Meetings and the Board of Director Meetings.
G).- Issue any required proofs or authentications of the legal representation of the Company and of records inserted in the Shareholder Ledger.
ARTICLE 31. COMMITTEES.- To fulfill its responsibilities, the Board of Directors shall be assisted by the Audit and Corporate Practices Committees, which shall be only comprised of independent directors and at least with three of such directors as appointed by the General Shareholders’ Meeting or by the Board of Directors, as per the proposal made by the Chairman of such Board.
The Chairman of the Audit and Corporate Practices Committees shall be appointed and removed from office exclusively by the General Shareholders’ Meeting, and shall not be able to chair the Board of Directors. The Secretary of the Board of Directors shall also be the Secretary of the Audit and Corporate Practices Committees, but he shall not be a member of such Committees.
The Chairmen of the Audit and Corporate Practices Committees may call Board of Director Meetings and insert in the agenda the items they deem pertinent.
With respect to corporate practices, the Committee shall: (a) Provide its opinion to the Board of Directors with respect to those issues that are relevant to it, as provided by the Law.  (b)  Request opinions from independent experts whenever it deems it necessary for the efficient performance of its duties o whenever required by Law;  (c)  Call General Shareholders’ Meetings and insert in such Meetings’ agendas those items that it deems pertinent.  (d)  Assist the Board of Directors in preparing the reports referenced in Article 28, section IV, letters d) and e) of the Mexican Securities Law.  (e)  Perform all other duties established by the Law or in these by-laws.
 
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With respect to audit matters, the Committee shall: (a) Provide its opinion to the Board of Directors with respect to those issues that are relevant to it, as provided by the Law.  (b)  Evaluate the performance of the firm that renders the external audit services, as well as analyze the report, opinions or notices prepared and issued by the external auditor; to this effect, the Committee may request the external auditor’s presence whenever it deems it convenient, in addition to its duty to meet with the external auditor at least once a year.  (c)  Discuss the Company’s financial statements with the persons involved in their preparation and revision, and based on this, recommend the Board of Directors to approve or disapprove the financial statements.  (d)  Inform the Board of Directors about the condition of the internal control and internal audit systems of the Company and the companies controlled by it, including any irregularities that it detects, if so is the case.  (e)  Prepare the opinion referenced in Article 28, section IV, letter c) of the Mexican Securities Law and submit it to the Board of Director’s consideration, for its later presentation to the Shareholders’ Meeting, aiding itself with, among other things, the report of the external auditor; such opinion shall indicate, at the least:  1.-  Whether the policies and accounting and information criteria followed by the Company are adequate and sufficient based on the particular circumstances of the Company.  2.-  Whether such policies and criteria have been consistently applied to the information presented by the Chief Executive Officer.  3.-  Whether, as the result of numbers 1. and 2. above, the information presented by the Chief Executive Officer reasonably reflects the financial results and condition of the Company.  (f)  Assist the Board of Directors in the preparation of the reports referenced in Article 28, section IV, letters d) and e) of the Mexican Securities Law.  (g)  Supervise that the transactions referenced in Articles 28, section III and 47 of the Mexican Securities Law are conducted in compliance with the Law and with the policies issued as per such legal dispositions.  (h)  Request opinions from independent experts whenever it deems it necessary for the efficient performance of its duties o whenever required by Law.  (i)  Request from the Relevant Directors and any other employees of the Company or other companies controlled by it, any reports related to the preparation of financial information or any other report that he deems necessary for performing its duties.  (j)  Investigate possible non-compliance that he is aware of, with the operations, guidelines and policies, internal control, internal audit and accounting record systems, whether by the Company or any
 
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other company controlled by it; to this effect, it shall conduct and examination of the documents, files and any other evidence, to the extent this is necessary to perform such surveillance.  (k)  Receive any observations made by the Shareholders, Directors, Relevant Executives, employees, and any other third party, with respect to the matters described in letter  (j)  above, and take any action that, under its judgment, may be taken as a result of such observations.  (l)  Request periodic meetings with the Relevant Directors, as well as the submittal of information related to the internal control and internal audit of the Company or other companies controlled by it.  (m)  Inform the Board of Directors of any material irregularities it detects during the performance of its duties and, if applicable, of the corrective actions adopted or suggest such actions that must be adopted.  (n)  Call Shareholder Meetings and request the inclusion in the agenda of those items that it deems pertinent.  (o)  Monitor that the Chief Executive Officer performs the resolutions adopted at the Shareholders’ Meetings and the Board of Director Meetings, based on the instructions that, for such purposes, are dictated by such Meetings.  (p)  Monitor the establishment of mechanisms and internal controls that allow verifying that acts and transactions of the Company and other companies controlled by it are in compliance with the applicable Law, as well as implement methods that enable reviewing compliance of the aforementioned duties. (q)  Perform all other duties established by the Law or in these by-laws pursuant the responsibilities provided herein.
The annual report on the Audit and Corporate Practices Committees’ activities shall be prepared by the Chairmen of such Committees and presented to the Board of Directors.
The Audit and Corporate Practices Committees shall gather as many times as necessary, having the right to call such meetings the Chairman of the Board of Directors, 25% of the Board Members, The Chief Executive Officer, or the Chairman of such Committee. The decisions shall be made by majority of votes, having the Chairman a deciding vote in case of a tie; and it shall require the attendance of the majority of its members in order to have a valid meeting. The Alternates of those Directors members of the Audit and Corporate Practices Committee, shall also have the same position regarding the integration of this Committee.
 
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In those Committee meetings where the Chairman and/or Secretary were absent, the attending members shall appoint among them, by majority vote, those who shall act as Chairman and Secretary for that particular meeting.
The Committees shall keep a minute book of their meetings, where the minutes of every meeting shall be kept with the signature of whoever acted as Chairman and Secretary.
One single Committee may perform the functions of both, the Audit and the Corporate Practices Committees.
ARTICLE 32. COMPENSATION OF THE BOARD.- The Members of the Board of Directors and their Alternates, as well as the members of the Audit and Corporate Practices Committees, shall be remunerated for their services in the amounts determined by the General Shareholders’ Meeting.
ARTICLE 33. SURVEILANCE OF THE COMPANY.- The surveillance of the management and execution of the Company’s business shall be the responsibility of the Board of Directors, through the Audit and Corporate Practices Committee, as well as through the firm performing the external audit of the Company, each within the scope of their attributions.
The Audit and Corporate Practices Committee, and the firm performing the external audit of the Company, shall perform those activities in accordance with the duties that the applicable Law imposes on them.
ARTICLE 34. FISCAL YEARS.- The fiscal years shall have a duration of one (1) calendar year, starting from January 1st (first) through December 31 (thirty-first).
ARTICLE 35. USE OF NET PROFITS.- The net profits that are obtained annually shall be applied in the following order:  1.-  An amount equal to 5% (five per cent) shall be set apart to form a fund for the Legal Reserve until such point as such Reserve amounts at least 20% (twenty per cent) of the Capital Stock. When for any circumstances the Legal Reserve is reduced, it shall be reconstituted in the form mentioned in this sub paragraph.  2.-  An amount that the Shareholders’ Meeting deems appropriate shall be set
 
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apart to create special reserve or prevention funds. 3.- The remaining portion shall be distributed among the shareholders in proportion to the number of shares they own, corresponding an equal part to each share, except for the provisions contained in the Law or in the Shareholders’ Meeting approving their issuance, in the case of shares representing a special class. The payment of dividends shall be made in accordance with the Law.
ARTICLE 36. FOUNDERS.- The Founders shall not reserve for themselves any special participation in the profits of the Company.
ARTICLE 37. LOSSES ALLOCATION.- Should there be any losses, they shall be allocated among the shareholders in proportion to their representation and up to the value of their respective shares, in accordance with the proportion that they represent from the paid and subscribed Capital Stock.
ARTICLE 38. DISSOLUTION OF THE COMPANY.- The Company shall be dissolved prior to its scheduled termination in the events described in subparagraphs II (second), III (third), IV (fourth) and V (fifth) of Article 229 (two hundred and twenty-nine) of the General Corporations Law.
ARTICLE 39. LIQUIDATORS.- Once the Company has been dissolved, the Shareholders’ Meeting, by majority of votes, shall designate three liquidators. The Shareholders’ Meeting shall establish the term within which said liquidators must complete their duties and shall set the compensation that they shall receive.
ARTICLE 40. BASES FOR LIQUIDATION.- The liquidators shall pass their resolutions by a majority of votes. The liquidation shall be made in accordance with the following bases:  I.-  Conclude all pending business in the manner best deemed appropriate by the liquidators.  II.-  The liquidators shall collect the credits, pay the debts and transfer the ownership of the assets of the Company as deemed necessary for such purpose.  III.-  The liquid assets that result from the final balance sheet to be produced by the liquidators, approved by the Shareholders’ Meeting, shall be distributed among the shareholders, either
 
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by distribution in kind or selling them and distributing the product of the sale or executing on them any other transaction approved by the General Shareholders’ Meeting, without harming any rights corresponding to special classes of shares, if any. The distribution of the liquid assets shall be made in proportion to the amount of issued Capital Stock, without affecting the preferential rights that correspond to special classes of shares.
ARTICLE 41. LIQUIDATION OF THE COMPANY.- The General Shareholders’ Meeting shall have, during the term of liquidation, the necessary powers to determine the rules that, in addition and amendment to the rules set forth in this public deed, shall govern the acts of the liquidators, having the power to revoke their designation and appoint new liquidators. The Shareholders’ Meeting shall be called during the liquidation by any of the liquidators.
ARTICLE 42. CANCELLATION OF LISTING ON THE NATIONAL REGISTER OF SECURITIES.- In the event that the Company requests the cancellation of the listing of its shares on the Securities Section of the National Register of Securities, the prior approval of the General Extraordinary Shareholders’ Meeting, with the favorable vote of the shares, with or without voting rights, that represent 95% of the Company’s Capital Stock, shall be required. It shall also be necessary to make a public tender offer, which shall be made at the price, terms and conditions established by the Law or determined by the National Banking and Securities Commission through its regulations.
The Company shall create a trust, for a period of at least six month as of the date of such cancellation, with enough funds to purchase, at the same offered price, the shares of those investors who did not tender at such offer.
The Board of Directors shall inform to investors and the public, through the stock exchanges where the Company’s securities are traded and in compliance with the conditions established by such stock exchanges, its opinion with respect to the price of the offer.
Transitory Article 1.- Individuals or corporations that, as of April 25, 2002, date in which the General Extraordinary Shareholders’ Meeting approved the amendment to
 
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several Articles of the by-laws of CEMEX, S.A. de C.V., are covered by the amendments to Articles 7 or 10, shall have 6 (six) months, starting the date such Meeting was held, to comply with the authorizations, notifications and other formalities referred to in such amended Articles 7 and 10, not being able to exercise the rights inherent to such shares until such formalities are not strictly complied with.
Transitory Article 2.- For all applicable legal effects, the amendments to the various Articles of the by-laws of CEMEX, S.A. de C.V., approved in the General Extraordinary Shareholders’ Meeting held on April 27, 2006, are subject to the condition that the new Mexican Securities Law published in the Mexican Federal Official Gazette on December 30, 2005, enters into force as per the condition described in such new Law, a publication of the amended and restated by-laws shall be made.
 
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Exhibit 2.1.2

AMENDMENT AGREEMENT
TO THE TRUST AGREEMENT NUMBER 111033-9 ENTERED INTO BY AND BETWEEN CEMEX, S.A.B. DE C.V., REPRESENTED HEREIN BY MR. RAMIRO VILLARREAL MORALES, IN HIS CAPACITY OF SECRETARY OF THE BOARD OF DIRECTORS AND GENERAL ATTORNEY-IN-FACT OF THE COMPANY, HEREINAFTER AND FOR THE PURPOSES OF THIS AGREEMENT REFERRED TO AS “CEMEX”, AND BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE DEL GRUPO FINANCIERO BANAMEX, DIVISION FIDUCIARIA, REPRESENTED HEREIN BY MESSRS. FRANCISCO JOSE BALTAZAR RODRIGUEZ AND MARIA DE LOS ANGELES MONTEMAYOR GARZA, IN THEIR CAPACITY OF TRUST OFFICERS OF SUCH INSTITUTION, HEREINAFTER AND FOR THE PURPOSES OF THIS AGREEMENT REFERRED TO AS THE “TRUSTEE”, WHO AGREE TO FORMALIZE THEIR AGREEMENT PURSUANT TO THE FOLLOWING STATEMENTS AND CLAUSES.
—WITNESSETH—
 
I.	THE PARTIES JOINTLY DECLARE:	
 
 	A)	That they mutually acknowledge the legal capacity with which they appear to execute this Agreement, having the authority to bind their represented parties under the terms and conditions set forth herein.	
 
 	B)	That on September 6, 1999, they entered into a Trust Agreement registered under number 111033-9, in order to issue the Non-Redeemable Ordinary Participation Certificates denominated “ CEMEX.CPO ”, referred to herein and for the effects of this Agreement only as the “ TRUST ”.	
 
 	C)	That on November 21, 2002, they entered into the First Amendment Agreement to the Trust Agreement registered under number 111033-9, pursuant to which the Fourth, Fifth and Eleventh Clauses of such Trust Agreement were amended, referred to herein and for the effects of this Agreement only as the “ FIRST AMENDMENT AGREEMENT ”.	
 
 	D)	That they ratify the rights and obligations set forth in the TRUST and in the FIRST AMENDMENT AGREEMENT.	
 
 	E)	That by means of public deed number 35,211 dated April 27th, 2006, granted before Mr. Francisco Garza Calderón, Notary Public Number 75 with registered office in the city of San Pedro Garza Garcia, Nuevo Leon, which was duly recorded in the Public Registry of Commerce of Monterrey, Nuevo Leon on July 5th, 2006, under the electronic file number 532*9, the minutes of the Extraordinary General Shareholders’ Meeting of Cemex, S.A. de C.V. held on April 27th, 2006 were	

 
 	formalized. At such meeting, the shareholders of Cemex, S.A. de C.V. agreed to, among other things, amend CEMEX’s bylaws to conform its text to the provisions of and comply with the Securities Market Law (“Ley del Mercado de Valores”), changing its legal name to CEMEX, Sociedad Anónima Bursátil de Capital Variable, or CEMEX, S.A.B. de C.V. A certified copy of such deed is attached to this amendment agreement as “ EXHIBIT A ”.	
 
 	F)	That in the above-mentioned Meeting, the company was authorized to amend the trust agreement number 111033-9 in which Banco Nacional de Mexico, S.A. acts as Trustee, for purposes of conforming its clauses to the statutory amendments and agreements adopted in the Extraordinary Meeting, authorizing the Chairman and Secretary of the Board of Directors, who may act jointly or severally, to formalize the amendment to the trust agreement through which the “ CEMEX.CPO ” was issued.	
 
 	G)	That on August 31st, 2006 a General Meeting of Non-Redeemable Ordinary Participation Certificate “ CEMEX.CPO ” Holders was held, whereby it was agreed to amend clauses First, Second, Third, Sixth, Seventh and Fourteenth of the indenture of the Non-Redeemable Ordinary Participation Certificates “ CEMEX.CPO ”, as well as clauses Second, Fifth, Sixth, Seventh, Fourteenth and Fifteenth of the trust agreement number 111033-9, the minutes of which were formalized through public deed number 36,433 dated December 22nd, 2006, granted before Mr. Francisco Garza Calderon, Notary Public Number 75, with registered office in the city of San Pedro Garza Garcia, Nuevo Leon. A certified copy of such deed is attached to this amendment agreement as “ EXHIBIT B ”.	
 
 	H)	That the TRUSTEE and CEMEX jointly filed a document before the National Banking and Securities Commission (“Comisión Nacional Bancaria y de Valores”) requesting its approval for the amendment of clauses First, Second, Third, Sixth, Seventh and Fourteenth of the issuance certificate of the Non-Redeemable Ordinary Participation Certificates “ CEMEX.CPO ”, as well as clauses Second, Fifth, Sixth, Seventh, Fourteenth and Fifteenth of the trust agreement number 111033-9.	
 
 	I)	That the Technical Committee of the TRUST, at its meeting held on January 8th, 2007, agreed to instruct the TRUSTEE,  authorizing it to execute the amendment of the aforementioned trust agreement, in order to comply with the agreements adopted at the Extraordinary General Shareholders’ Meeting of Cemex, S.A. de C.V. held on April 27th, 2006. A certified copy of the minutes of such meeting is attached to this amendment agreement as “ EXHIBIT C ”.	
 
 	J)	That they freely enter into this amendment agreement, pursuant to the following:	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
2

 
— CLAUSES —
FIRST: PURPOSE OF THE AGREEMENT.
This Agreement is being executed for purposes of expressly evidencing the amendments to the rights and obligations of each of the parties appearing under any capacity in the  TRUST , binding them to subject themselves to the terms and conditions that arise as a result of the execution of this instrument.
SECOND: AMENDMENTS TO THE CLAUSES OF THE TRUST AGREEMENT.
The parties agree to modify clauses Second, Fifth, Sixth, Seventh, Fourteenth and Fifteenth of the TRUST agreement, which shall now read as follows:
“SECOND: PARTIES—The parties to this Trust are the following:
SETTLOR OF THE TRUST: Cemex, S.A.B. de C.V.
ADHESIVE SETTLORS OF THE TRUST:

 	  	The individuals or entities, either Mexican or foreign, that adhere to the terms of this Trust by affecting and irrevocable delivering “ SHARES ”, which shall be a part of the capital of this Trust.	
 	 	
TRUSTEE:	  	BANCO NACIONAL DE MEXICO, S.A., INTEGRANTE DEL GRUPO FINANCIERO BANAMEX, DIVISION FIDUCIARIA	
 	 	
BENEFICIARIES:	  	(i) Shall be the individuals or entities, either Mexican nationals or foreigners, that acquire, receive and are holders of “ CPO’s ”, and (ii) Such individuals or entities that adhere to the terms of this Trust by contributing “ SHARES ” in order to obtain “ CPO’s ”  in exchange for such  “ SHARES ”.	
“FIFTH: PURPOSES OF THE TRUST- The purposes of the Trust shall be:
 
 	a.	That “THE TRUSTEE” acquires and keeps the trust property of the “SHARES” which the capital of this Trust consists of.	
 
 	b.	That “THE TRUSTEE”:	
 
 	b.1	Subscribes the “SHARES” issued or repurchased by CEMEX for purposes of public offering, pursuant to the applicable legal provisions, by means of transferring “ CPO’s ” to this Trust and, in such event, delivers to “ CEMEX ” the value of such “ SHARES ” with the proceeds of the offering; as well as that “ THE TRUSTEE ”, with the proceeds contributed by “ CEMEX ” for such purposes, reacquires “ CPO’s ” for future tendering to public investors pursuant to the terms of the applicable law.	
 
 	b.2	Acquires, as trust property, those “SHARES” contributed by the “ADHESIVE SETTLORS OF THE TRUST ”; and	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
3

 
 	b.3	Acquires, as trust property, those “SHARES” resulting from (i) share capital increases arising from capitalizations of reserves or earnings and restructuring of “ SHARES ”, or, where applicable, (ii) “ SHARES ” resulting from mergers or spin-offs in which  CEMEX  participates, and additionally (iii) subscribe and pay for, prior provision of the necessary resources by the “ BENEFICIARIES ”, “ SHARES ” resulting from increases in capital through additional contributions or reinvestment of distributed earnings.	
 
 	c.	That “THE TRUSTEE” issues, further to the terms of this Agreement, “CPOs” intended to be acquired by individuals or entities, either Mexican nationals or foreigners, provided that “ THE TRUSTEE ” may only issue a “ CPO ” for each three ordinary common “ SHARES ” of CEMEX, S.A.B. de C.V.’s stock, two of which must be Series “A” shares and the other being a Series “B” share, which shall be transferred to this “ TRUST ” as trust property, and consequently, the proportionate share of the trust property that corresponds to each “ CPO ” shall be formed by two Series “A” Shares and one Series “B” Share of the common ordinary Share Capital of “ CEMEX ”; provided that such proportionate share may be modified by virtue of capitalizations, reinvestment of distributed earnings, subdivisions or restructuring of “ SHARES ”, reductions of capital, amortization of “SHARES”, or by mergers or spin-offs in which “CEMEX” participates.	
 
 	d.	That “THE TRUSTEE” transfers, through S.D. Indeval, S.A. de C.V., the “CPO’s” issued with respect to the “SHARES”, to the corresponding national or foreign investors and, in the same manner, to the national or foreign investors that contributed their “SHARES” held to the “TRUST”.	
 
 	e.	That “THE TRUSTEE” acts, through S.D. Indeval, S.A. de C.V., as depositary of the “SHARES”, and the deposit of which may be carried out at one or more institutions designated for the deposit of securities pursuant to the terms of the applicable law.	
 
 	f.	That “THE TRUSTEE” exercises the economic and corporate rights vested on the “ SHARES ”, provided that the voting rights shall be exercised through the respective attorneys-in-fact pursuant to the following:	
 
 	f.1	The “BENEFICIARIES” of Mexican nationality shall have the right to attend meetings of shareholders of “ CEMEX ”, personally or by proxy, for purposes of representing and exercising the voting rights inherent to “ THE SHARES ” that form the proportionate share of the trust property corresponding to their  CPO  tenure, with the only requisite that they provide instructions to “ THE TRUSTEE ” at least 72 (seventy two) hours before the date and time on which the Shareholders’ Meeting of “ CEMEX ” is to be held, and they shall, together with said instructions, provide feasible and adequate evidence, to the satisfaction of “ THE TRUSTEE ”, of their updated “ CPO ” tenure, as well as of the nationality of the holder and beneficial owner of the “ CPOs ”, on the terms and conditions set forth in this agreement; on one hand, and if the law so prescribes, “ THE TRUSTEE ” shall issue in favor of the corresponding “ BENEFICIARY ” or its respective agent, the record showing the number of “ SHARES ” entitled to vote which such “BENEFICIARY”, or its respective agent, shall be representing in the Shareholders’ Meeting, providing him with the corresponding proxy letter as well.	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
4

 
 	f.2	The “BENEFICIARIES” shall be entitled to exercise the voting rights of the “ SHARES ” that are part of the trust property, subject to the terms and conditions set forth below:	
 
 	f.2 (i)	The “BENEFICIARIES” of Mexican nationality shall exercise the voting rights with the representation granted by “ THE TRUSTEE ” pursuant to the terms of Section f.1 above.	
For the purposes of the provisions of this Agreement, “BENEFICIARIES” of Mexican nationality shall mean: (i) the individuals of Mexican nationality and (ii) the entities whose Bylaws include a Foreigners Exclusion Clause, meaning by this the express agreement or pact which states that no foreign investor, nor any company with a foreigner admission clause in its bylaws, may be a shareholder of or own a membership interest in such entities.
 
 	f.2 (ii)	The “BENEFICIARIES” of foreign nationality and the “BENEFICIARY” entities of Mexican nationality that directly or indirectly allow the participation of individuals or companies, entities, trusts, funds, Governments or any other entity with its own legal capacity or otherwise of foreign nationality or whose bylaws include a foreigner admission clause, may attend Meetings of Shareholders of “ CEMEX ” as provided for in this subparagraph (f.1), only for purposes of representing and exercising the voting rights inherent to Series “B” “ SHARES ” (or those with unrestricted circulation) that make up the proportionate share of the trust property corresponding to their “ CPO ” holding, and such holding together with their nationality shall be duly proven with the instructions delivered to “ THE TRUSTEE ” within the indicated timeframe in this Agreement.	
 
 	f.2 (iii) 	The instructions to be given by the “BENEFICIARIES” further to this subparagraph (f.1) shall be in written form, and shall indicate the complete name, nationality (such nationality shall be duly proven with a valid government issued document), evidence of being the lawful holder of the “ CPOs ”, the number of record of CPO’s that such holder owns, and in the event that they elect for “ THE TRUSTEE ” to represent the “ SHARES ” corresponding to their “ CPO ” holdings, the manner in which votes shall be cast in each and every item to be discussed during the Shareholders’ Meeting of “ CEMEX ”, in accordance with the meeting’s agenda specified in the respective call notice and any other information and/or documentation necessary or convenient that “ THE TRUSTEE ” requests for identification or standing purposes. For purposes of the provisions set forth in the By-laws of “ CEMEX ” with respect to the acquisition, holding, ownership and selling of the “ SHARES ”, the “ BENEFICIARIES ”, when acquiring the “ CPOs ” by any act or title, shall do so in a manner that with respect of “ THE SHARES ” that form the proportionate share relative to the “ CPOs ” that they had acquired, complies with such By-laws and the provisions of this Agreement; and consequently, for any acquisition of “ CPOs ”, it shall be considered that “ THE SHARES ” that form the proportionate share of the trust property corresponding to those “ CPOs ” were all acquired and sold, and if the provisions of the By-laws of “ CEMEX ” or the terms	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
5

 
 	of this Agreements are violated, the respective “BENEFICIARIES” shall not have the authority to instruct “ THE TRUSTEE ” with respect to the manner in which votes shall be cast, nor they shall have the right to represent “ THE SHARES ” that constitute the proportionate share of the trust property corresponding to their “ CPO ” holdings. The “ BENEFICIARIES ” may freely use letters, telefax or any other electronic means, such as a computer or any other telecommunications equipment, to send their instructions, but at all times complying with the terms and conditions set forth herein.	
 
 	f.2 (iv) 	“THE TRUSTEE” shall vote the Series “A” “SHARES” (and those that can only be held or acquired by Mexican nationals) which are part of the trust property, and that proportionally correspond to the number of “ CPOs ” held by foreign “ BENEFICIARIES ”, in the manner expressed by the Shareholders representing the majority of the share capital entitled to vote.	
 
 	f.2 (v)	“THE TRUSTEE” shall attend the Shareholders’ Meetings of “ CEMEX ” representing “ THE SHARES ” and will exercise the vote with respect to that which corresponds to “ THE SHARES ” of any Series or class that are part of the trust property and for which it has not received instructions from the “ BENEFICIARIES ” in the terms and conditions as it deems fit, except as provided for in the preceding paragraph.	
 
 	f.3	The “BENEFICIARIES” as well as “THE TRUSTEE” must, in relation to “ THE SHARES ” which they claim to represent at Meetings of Shareholders of “ CEMEX ”, comply with the provisions of Articles 7 (seven) and 10 (ten) of “ CEMEX’s ” Bylaws pertaining to the restrictions for the transfer of “ CPOs ” or for acquiring significant amounts of the share capital of “ CEMEX ”.	
 
 	g.	That “THE TRUSTEE”, trough S.D. Indeval, S.A. de C.V., subscribes the approved increases in the Capital Stock of “ CEMEX ”, in accordance with clause Eight below, provided that it timely receives sufficient funds from the holders wishing to increase their number of “CPOs” held through the subscription to be made by “THE TRUSTEE”.	
 
 	h.	That “THE TRUSTEE” collects, through S.D. Indeval, S.A. de C.V., the cash dividends approved by “ CEMEX ” and distribute such dividends among the holders of “CPOs” in proportion with their “CPOs” held. With respect to “ SHARES ” issued as a result of capital increases derived from capitalization of reserves or earnings, from restructuring of the shares that form the capital stock of “ CEMEX ”, or resulting from the reinvestment of earnings or shares delivered by mergers or spin-offs in which “ CEMEX ” participates, “THE TRUSTEE” shall receive and, if applicable, subscribe such “ SHARES ”, transferring them to the trust property, which shall become part of the proportionate share that corresponds to each “ CPO ”.	
 
 	i.	That “THE TRUSTEE” proceeds to, further to the provisions of clause Ninth below, retire the corresponding “ CPOs ” in the event that “ CEMEX ” redeems the “ SHARES ” or reduces its Capital Stock by means of the respective reimbursement.	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
6

 
 	j.	That “THE TRUSTEE”, at the expiration of the term of this Agreement and pursuant to the terms of clause Eleventh thereto, proceeds to:	
 
 	j.1	In the case of “BENEFICIARIES” of Mexican nationality, as defined in section f.2 of this clause, retire and cancel the “ CPOs ”, awarding in favor of such “ BENEFICIARIES ” the proportionate share of the trust property corresponding to their holdings.	
 
 	j.2	In the case of “BENEFICIARIES” of foreign nationality, as well as the “ BENEFICIARIES ” which are Mexican entities that directly or indirectly allow foreign Governments, persons or entities with or without personality to retire and cancel the “ CPOs ”, (i) to assign in favor of such “BENEFICIARIES” only the Series “B” shares (or shares of unrestricted circulation) that are a part of the trust property and that proportionally correspond to their “ CPO ” holdings, and (ii) with respect to the Series “A” Shares (or those shares whose holdings are limited to Mexican nationals only) that are a part of the trust property and proportionally correspond to their “ CPO ” holdings, transfer such “ SHARES ” to the Trust Agreement No. 771-7 named “Fideicomiso Maestro de Inversion Neutra” executed on November 24th, 1989 by Nacional Financiera, S.N.C., in its capacity as Trustee (hereinafter and for identification purpose referred to as the “ MASTER TRUST ”), in accordance with the authorizations to be eventually granted by the competent authorities, and proceed to exchange the Ordinary Participation Certificates to be issued based on said Trust to the respective “ BENEFICIARIES ” through S.D. Indeval, S.A. de C.V., pursuant to Clause Eleventh of this Agreement.	
 
 	j.3	Subparagraphs j.1 and j.2 above shall not be applicable in those cases where the transfer implies a Transaction or Encumbrance pursuant to the definitions provided for such terms in Article 7 (seven) of “ CEMEX’s ” Bylaws, in respect of “ CPOs ” or “ SHARES ”, that represent 2% (two percent) or more of the Share Capital of “ CEMEX ” or in the case of a Transaction or Encumbrance that results or may result in a membership interest equal to or greater than 30% (thirty percent) of the Share Capital of “ CEMEX ”, in which case and for these purposes, “ THE TRUSTEE ” shall be subject to Articles 7 (seven) and 10 (ten) of “ CEMEX’s ” Bylaws with respect to the restrictions for the transfer of “ CPOs ”; to secure title to or possess “ SHARES ”; to limit, restrict or encumber the inherent rights to the “ SHARES ” or to acquire significant shares of the Share Capital of “ CEMEX ”.	
 
 	k.	That “THE TRUSTEE” proceeds to, pursuant to the instructions received from the Technical Committee formed below, exchange “ CPOs ” outstanding as of such date, for the new “ CPOs ” in the event that the trust property gets modified as a result of capitalizations, reinvestments of distributed earnings, subdivisions or restructurings of “ SHARES ”, reductions in the capital stock of “ CEMEX ”, redemption of “ SHARES ”, or by mergers or spin-offs in which “ CEMEX ” participates. Also, in the event that the terms and conditions under which such “ CPOs ”  should be issued are amended .	
 
 	l.	That “THE TRUSTEE”, once “CEMEX” has contributed the necessary resources, temporarily acquires all “ CPOs ” it has issued, in accordance with the terms and conditions that the Technical Committee provides to it in writing, and subject to the provisions of article 56 (fifty six) of the Securities Market Law published in the Official Gazette of the Federation on December thirtieth of two thousand and five and in the applicable relevant general provisions issued by the National Banking and Securities Commission.	

Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
7

 
 	m.	That “THE TRUSTEE”, under the instructions of the Technical Committee, proceeds to make the exchange referred to in the First Clause herein; as well as proceeds to manage the registration of the “ CPOs ” in the National Registry of Securities and before the applicable authorities and regulatory bodies of other countries with recognized securities’ markets, for purposes of registering and listing the “ CPOs ” in the Mexican Stock Exchange and such other countries with recognized securities’ markets.”	
“SIXTH: POWERS OF THE TRUSTEE.- “THE TRUSTEE” shall have all the powers that are necessary to carry out the purposes of this trust listed in the preceding clause including, but not limited to, the powers and obligations referred to in article 391 (three hundred and ninety one) of the General Law of Negotiable Instruments and Credit Operations. Specifically, “ THE TRUSTEE ” may grant powers in favor of the people appointed by the Technical Committee established under the terms of Clause Twelfth (such Technical Committee, hereinafter referred to as the “Technical Committee”), so that such attorneys in fact exercise the corporate rights inherent to the “ SHARES ” transferred to the “ TRUST ” at Meetings of Shareholders of “ CEMEX ”, observing in any case the text of subsection (f) of Clause Fifth.”
“SEVENTH: The “CPOs”.- The “CPOs” issued by “THE TRUSTEE” in fulfillment of the purposes of this trust, shall be represented by a unique title that covers the total number of “CPOs” of each issuing, which will remain deposited, at all times, at S.D. Indeval, S.A. de C.V. or other institution for the deposit of securities further to applicable law. The “ BENEFICIARIES ” shall provide proof of title with respect of their “CPOs” held with the certificates issued by S.D. INDEVAL, S.A. de C.V. pursuant to the terms of Article 290 (two hundred and ninety) of the Securities Market Law published in the Official Gazette of the Federation on December thirtieth of two thousand and five. Deliveries and transfers of “ CPOs ” shall be carried out through S.D. INDEVAL, S.A. de C.V. following the procedure set forth in Article 283 (two hundred eighty three) of the Securities Market Law published in the Official Gazette of the Federation on December thirtieth of two thousand and five. The respective certificates shall comply with the requirements set forth in Article 228 n (two hundred twenty eight letter n) of the General Law of Negotiable Instruments and Credit Operations.
With respect to “SHARES” referred to in subparagraph (b) of Clause Third, the “ BENEFICIARIES ” shall have rights to any dividend paid over such “ SHARES ”, as long as such “ BENEFICIARIES ” had contributed to “THE TRUSTEE” the necessary funds for it to subscribe the increases in the capital stock of “CEMEX”, further to the terms of the following clause.
The amount of the issuance and the par value of the “CPOs” shall be exclusively determined for purposes of articles 228-l (two hundred twenty eight letter l) and 228-n (two hundred twenty eight letter n) of the General Law of Negotiable Instruments and Credit Operations, without the issuer being obligated to pay to the holders the par value of the Certificates, pursuant to the terms of article 228-k (two hundred twenty eight letter k) of said law. The par value of each Ordinary Participation Certificate shall be determined based on the amount resulting from dividing the amount of the issuance between the number of the Certificates to be issued and placed outstanding.
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
8

 
“FOURTEENTH: DUTIES OF THE TRUSTEE.- It is expressly agreed that “THE TRUSTEE” shall account for the obligations it subjects itself to as a result of the execution of this Trust, and shall only be liable up to the amount of the trust property.  “THE TRUSTEE”  shall insert this provision in the documents and contracts that it eventually executes in compliance to the terms of this Trust.  “THE TRUSTEE”  shall not be liable for any acts performed in fulfillment to the instructions received from the Technical Committee, and it shall not be obligated to follow such instructions if they are found to be against the legal nature or the purposes of this Trust.  Also, the parties agree that “ THE TRUSTEE ” will not incur in any liability when it, due to not being appropriately provided with the necessary funds for such purpose, does not carry out the subscription of “ SHARES ” issued by “ CEMEX ” by virtue of an increase of its capital stock, pursuant to Clause Eighth of this Agreement.
On the other hand, “THE TRUSTEE” assumes no liability whatsoever in relation to the placement of the “ CPOs ” by “ CEMEX ” pursuant to the terms of Clause Fifth, nor in relation to the payment of the price of subscription and liberation of “ THE SHARES ” in accordance with the text of Clause Tenth. In this case, “ CEMEX ” undertakes to render ineffective the subscription carried out by “ THE TRUSTEE ” of the “ SHARES ” that are not paid in accordance with Clause Tenth, canceling such “SHARES” as provided for in article 53 of the Securities Market Law.
Furthermore, “THE TRUSTEE” assumes no liability whatsoever from the investing of the amounts received under the terms of Clauses Fifth, Eighth, Ninth and Tenth, which will not generate any returns to “the Holders” of “ CPOs ” for the period between the date on which such amounts are received by “ THE TRUSTEE ” and the date on which such amounts are applied under the terms of the corresponding Clause.
Where, in order to fulfilling the purposes of the Trust, it is required that certain urgent acts be performed, the omission of which could significantly impair the trust property, in the event that it proves to be impossible to hold a meeting of the Technical Committee, “ THE TRUSTEE ” may exceptionally act in its own discretion, but always in accordance with sound banking practices.
The Founder of the Trust reserves no right with respect to the trust property, and the first degree “BENEFICIARIES”, regarding the trust property, shall have only the rights expressly stated in this Agreement, and there are no existing rights nor are new rights created in favor of any person other than the “BENEFICIARIES” of this TRUST, pursuant to articles 386 (three hundred eighty six) and 390 (three hundred and ninety) of the General Law of Negotiable Instruments and Credit Operations.
“THE TRUSTEE” shall be liable for any damages caused by its lack of performance of the obligations contracted under this Agreement.
“FIFTEENTH: PROHIBITIONS.- Article 106, Paragraph XIX, Subparagraph (b) of the Law of Credit Institutions reads as follows:
“Article 106.-Credit institutions are prohibited: (.) XIX.-to carry out the operations referred to in Article 46, Paragraph XV of this Law; (.).
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
9

 
b) To assume liability or become liable against the settlors of the trust, their agents or representatives, for the default of debtors on the loans granted, or in the case of the issuers, for the instruments acquired, except whereby negligence on its part, pursuant to the terms of Article 391 of the General Law of Negotiable Instruments and Credit Operations, or guarantee the attainment of returns for the funds received in Trust.
If at the end of the term of the trust, agency or commission established for the granting of loans, such loans are not paid by the debtors, the institution shall assign such loans to the Founder of the Trust or the “BENEFICIARIES”, as the case may be, or to the attorney in fact or constituent, and the Trustee shall not pay the amount outstanding of such loans.
In any trust, agency or commission agreement, the provisions of this subparagraph shall be affixed thereto, as well as a statement from the “TRUSTEE” saying that it made the contents of the agreement available to any person from which it received assets or rights for purposes of transferring them to the trust property.
(… … …)
Any agreement contrary to the provisions of the preceding subparagraphs shall be void.”
The final part of article 391 (three hundred and ninety one) of the General Law of Negotiable Instruments and Credit Operations, obliges the a trustee to comply with its duties pursuant to the agreement, and must act as a good parent, being responsible for losses or damages, arising out of its own negligence or fault, affecting goods or rights.
Additionally, pursuant to the provisions of the OFFICAL MEMORANDUM 1/2005 sent by the Bank of Mexico on the rules to which banking institutions, investment institutions, insurance institutions, surety companies and limited purpose financial institutions (“SOFOLES”) must observe (hereinafter referred to as the “Official Memorandum”), in trust operations, “ THE TRUSTEE ” is prohibited from:
 
 	a)	Charging different prices on the trust property to those agreed upon the closing of the operation concerned;	
 
 	b)	Guaranteeing any returns or prices for funds whose investment is entrusted to it;	
 
 	c)	Performing operations on terms and conditions in a manner contrary to its internal policies and sound financial practices;	
 
 	d)	Executing operations with securities, negotiable instruments or any other financial instrument, which do not comply with the specifications that have been agreed in the corresponding trust agreement; and	
 
 	e)	Paying for, with trust property, any penalty imposed to Banco Nacional de Mexico, S.A., integrante de Grupo Financiero Banamex, for operations on its own behalf, by any authority, as well as any other fees imposed pursuant to the terms of paragraph 8.1 of the Official Memorandum.”	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
10

 
THIRD: TERM AND CONTINUITY.
The parties agree to be bound by all the terms set forth in the TRUST and this Agreement; the rights and obligations of all of the parties in such documents shall remain in effect, there being no novation of the TRUST. This Agreement is effective between the parties as of its execution date.
HAVING THIS AGREEMENT BEEN READ BY THE PARTIES WHO HAVE BEEN MADE AWARE OF ITS CONTENTS AND LEGAL EFFECT, IT IS EXECUTED IN SAN PEDRO GARZA GARCIA, NUEVO LEON, ON JANUARY 8TH, 2007.
CEMEX

Cemex, S.A.B. de C.V.
Lic. Ramiro Villarreal Morales
Secretary of the Board of Directors and
Attorney-In-Fact
THE TRUSTEE
Banco Nacional de México, S.A.
Integrante del Grupo Financiero Banamex

Lic. Francisco José Baltazar Rodríguez
Trust Officer	 	 	  	Lic. Ma. de los Ángeles Montemayor Garza
Trust Officer	
 
Amendment Agreement dated January 8th, 2007 to the Trust Agreement Number 111033-9
 
11

Exhibit 2.2
BANCO NACIONAL DE MÉXICO, S.A.,
A MEMBER OF THE BANAMEX FINANCIAL GROUP
NON-REDEEMABLE ORDINARY PARTICIPATION CERTIFICATE
“CEMEX.CPO”

 	  	TITLE NUMBER [            ]	
ISSUE DATE: [                    ]	  	REPRESENTING [                                         ]	
 	  	Non-Redeemable Ordinary Participation Certificates	
TOTAL NUMBER OF CERTIFICATES ISSUED
[                    ] [                                        ] NON-REDEEMABLE ORDINARY PARTICIPATION CERTIFICATES
VALUE OF THIS CERTIFICATE
$[                    ] [                                        PESOS [            ]/100 M.N.]
NOMINAL VALUE OF THE CERTIFICATES
$[                    ] [                                        PESOS [            ]/100 M.N.] per Certificate.
The present Certificate is being issued to be deposited in S.D. INDEVAL INSTITUCIÓN PARA EL DEPÓSITO DE VALORES, S.A. DE C.V., pursuant to and in accordance with the terms of article 282 of the Ley del Mercado de Valores, and represents [                    ] [                                        ] Non-Redeemable Ordinary Participation Certificates “CEMEX.CPO” with a nominal value of $[                    ] [                                    PESOS [                    ]/100 N.M.] per Certificate.
This Certificate is being issued pursuant to the Trust Agreement number 111033-9 entered into by Banco Nacional de México, S.A., a member of the Banamex Financial Group, Trust Division, and CEMEX, Publicly Traded Stock Corporation with Variable Capital, dated as of September 6, 1999; pursuant to which the issuance of Ordinary Participation Certificates is authorized, with due authorization by the Comisión Nacional Bancaria y de Valores.
These Certificates are being issued in the proportion of one Ordinary Participation Certificate per three (3) ordinary common shares representative of the capital stock of CEMEX, Publicly Traded Stock Corporation with Variable Capital, two (2) of which shares shall be Series “A” Shares and one (1) of which, shall be Series “B” Shares, which are held and form part of the Trust Agreement.
Holders Rights: The Certificates grant to its holders the right to a proportional share of the earnings which shall always be equal to the net dividend to be paid over the shares held in the Trust, and a proportional share of the net earnings of the sale of such shares at the moment of the Trust’s termination as described herein below.
Terms of the Trust: The term of the Trust shall be thirty (30) years from September 6, 1999, its date of its execution. During the effectiveness of the Trust and the trust to be established pursuant to the terms set forth herein, the Trust’s patrimony shall remain affected by its original purposes; both trusts are irrevocable. Simultaneously to the date of termination of the Trust and with the participation of the Common Representative of the Ordinary Participation Certificate holders, an Irrevocable Trust shall be established with a financial institution duly authorized in accordance with applicable legislation and subject to the terms and conditions that in due course shall be determined by the technical committee, an Irrevocable trust to whom the trustee shall deliver the shares that will form the assets of the trust, in the understanding that in the new trust to be incorporated, it shall contemplate the purposes, the term, rights and obligations that as of

such dates are stipulated in the Original Trust. Accordingly, the trustee of the new trust shall proceed in accordance with the instructions of its technical committee to substitute the Ordinary Participation Certificates in circulation for the new Ordinary Participation Certificates to be issued by the Institution acting as trustee in the new trust to be incorporated.
Termination of the Trust: The trust may be terminated due to any of the events provided in Article 392 (three hundred ninety two) of the  Ley General de Títulos y Operaciones de Crédito  and that it is in accordance with the terms set forth in the Trust, in such case the Trustee, together with the Common Representative of the Ordinary Participation Certificates, shall proceed in accordance with the terms set forth in Clause Fifth, J) and Eleventh of the Trust. The termination of the Trust is subject, in all cases, to Article 228t (two hundred twenty eight letter t) of the  Ley General de Títulos y Operaciones de Crédito  which literally states as follows:  ARTICLE 228t:  “The Trust that is the basis for an issuance, shall not be terminated as long as there shall be outstanding balances due to credits against the assets of the Trust, from certificates or from participation of investments or returns.”
At the termination of the Trust the Trustee shall proceed as follows: (1) In respect of the beneficiaries of Mexican nationality, as defined in the Trust, the Trustee shall remove from circulation and cancel the Ordinary Participation Certificates, transferring in favor of such beneficiaries the proportionate share of the Trust assets attributable to them on a pro rata basis; (2) in respect of the beneficiaries of foreign nationality and the beneficiaries of legal entities of Mexican nationality in whose capital stocks governments, persons or entities of foreign nationality can and do directly or indirectly participate, the Trustee shall remove from circulation and cancel the Ordinary Participation Certificates, (i) transferring in favor of such beneficiaries only the Series “B” shares (those with free circulation) that conform the assets of the Trust in proportion to the number of the Ordinary Participation Certificates held by them and (ii) in respect to the Series “A” Shares (those limited to Mexicans) which conform the assets of the Trust and proportionally to the number of the Ordinary Participation Certificates held by them, the Trustee shall deposit such shares in the Trust No. 771-7 referred to as “Neutral Investment Master Trust,” entered by Nacional Financiera, S.N.C. as Trustee, pursuant to the then given authorizations by the competent authorities, and it shall proceed to exchange the Ordinary Participation Certificates to be issued pursuant to such trust to the respective beneficiaries, through S.D. Indeval Institución para el Depósito de Valores, S.A. de C.V., pursuant to the terms of Clause Eleventh of the Trust; (3) The foregoing Sections (1) and (2) shall not be applicable to those cases in which such transfers involve the acquisition by a person (physical or legal entity) or a group of persons (physical or legal entities) related among themselves or jointly organized, of more than 2% (two percent) or more of the voting shares issued by CEMEX, S.A.B. de C.V., for purposes of the above, it shall be considered the already owned share participation of each group or group of persons, in which case, the Trustee shall be subject to the provisions of Article 7 (seven) and 10 (ten) of CEMEX, S.A.B. de C.V.’s bylaws.
The present issuance was duly authorized by the Comisión Nacional Bancaria y de Valores, pursuant to Article 228-O of the Ley General de Títulos y Operaciones de Crédito.
THIS ISSUANCE’S AGGREGATE VALUE AND THE NOMINAL VALUE OF THE CERTIFICATES ARE HEREBY ESTABLISHED EXCUSIVELY FOR PURPOSES OF ARTICLES 228-L and 228-N OF THE LEY GENERAL DE TITULOS Y OPERACIONES DE CREDITO. THE ISSUER IS NOT OBLIGATED TO PAY TO THE HOLDERS THE NOMINAL VALUE OF THE CERTIFICATES, PURSUANT TO ARTICLE 228-K OF THE LEY GENERAL DE TITULOS Y OPERACIONES DE CREDITO.
The original issuance was made by the unilateral declaration of Banco Nacional de México, S.A., Trust Division, by the Indenture dated September 7, 1999 duly formalized in Public Deed number 26,322 given and witnessed by Attorney-at-Law Erick S. Pulliam Aburto, Public Notary No. 196 of the Mexican Federal District, of which a testimony was registered in the Public Registry of Commerce of Mexico City, Mexico, D.F. under mercantile number 65126 on September 9, 1999.

The Certificate holders’ rights are set forth in the Trust, upon which the issuance took place, the Indenture and in the present Certificate.
The present Certificate was issued on September 7, 1999 and the last exchange was on [                    ], pursuant to the resolutions adopted at the Ordinary General Shareholders Meeting of CEMEX, S.A.B. de C.V. held on [                    ], for its deposit in S.D. Indeval Institución para el Depósito de Valores, S.A. de C.V., pursuant to the terms of Articles 280, 283, 282 and those applicable of the Ley del Mercado de Valores and such Certificate will not be withdrawn from such institution. The holders of the Certificates shall demonstrate title of such Certificates and legitimize themselves with the corresponding records delivered pursuant to Article 290 of such Ley del Mercado de Valores.
[        Date        ]

TRUSTEE
 	  	COMMON REPRESENTATIVE OF
CERTIFICATE HOLDERS
 	
Banco Nacional de México, S.A., Institución de Banca Múltiple, Grupo Financiero Banamex Accival, División Fiduciaria	  	Banco Mercantil del Norte, S.A., Institución de Banca Múltiple, Grupo Financiero Banorte, División Fiduciaria	

Exhibit 2.5

DEFINITIVE CERTIFICATE	  	REPRESENTING	
NUMBER 000000	  	0 SHARES	
 	 	
 	  	COMMON STOCK	
 	 	
 	  	NUM.:00000000000	
 	  	TO: 0000000000000	
[CEMEX LETTERHEAD]
CEMEX S.A.B. DE C.V.
Series “A”
Variable Capital

Place of Business	  	Duration	
Monterrey, N.L.	  	May 27, 2100	
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX is the holder of 0 share of fully paid ordinary common stock, with no par value of the Series “A” shares of XXXXXXXXXXXX shares that represent the total of Series “A” shares, representing the variable capital stock of CEMEX, S.A.B. de C.V.
CEMEX, S.A.B. de C.V., was incorporated by Public Deed No. 94 of May 28, 1920, granted in the sworn presence of Mr. Carlos Lozano, Notary Public licensed in Monterrey, Nuevo León, and registered in the Public Register of Commerce of the same city under No. 21, Pages 157 to 186, Volume 16, Book 3, Second Auxiliary, with the date of June 11, 1920. CEMEX, S.A.B. de C.V. has had several name changes, the most recent that mentioned in Public Deed No. 35,211 of April 27, 2006, granted in the sworn presence of Mr. Francisco Garza Calderon, Notary Public No. 75 practicing in the First Recording District of the State of Nuevo Leon, pursuant to which, among others, the bylaws of the Company were amended in order to adapt them to the provisions of the Ley del Mercado de Valores, therefore obtaining the legal name CEMEX, S.A.B. de C.V.
By means of the Extraordinary General Meeting of Shareholders held on February 24, 2011, it was resolved to amend Articles 8 of the bylaws. The corresponding resolutions were officially certified by Public Deed No. 57,590 of February 24, 2011, granted in the sworn presence of Mr. Juan Manuel García Cañamar, Substitute Notary Public, associate of Mr. Juan Manuel Garcia García, Notary Public No. 129 practicing in the First Recording District of the State of Nuevo Leon, and registered under electronic mercantile file No. 532*9, dated March 2, 2011, in the Public Registry of Property and Commerce of the State of Nuevo León.
MONTERREY, N.L., [DATE]

BOARD MEMBER	  	BOARD MEMBER	
—————————————————————ATTACHED COUPONS—————————————————————-

CEMEX, S.A.B. DE C.V.
NOMINATED COUPON No. [—]
DEFINITIVE CERTIFICATE
Num. 000000000
REPRESENTING 0
SHARES
 
VARIABLE SERIES “A”
[Date]	  	 	

CEMEX, S.A.B. DE C.V.
EXTRACT OF THE BY-LAWS
 
ARTICLE 5. NATIONALITY.- This Company is Mexican. Any foreigner who in the incorporation date of this Company has acquired or in the future shall acquire an interest or participation in the Capital Stock of the Company, shall be considered for this sole act as Mexican, it being understood that said party has agreed not to seek the protection of its government, under penalty of losing said interest or participation in favor of the Republic of Mexico. This article shall be inserted in its entirety on the share certificates issued by the Company. This Company received authorization from the Mexican Ministry of Foreign Affairs under Permit Number 267, dated February 4, 1927, in accordance with the Organizational Law of Section I of Article 27 of the Constitution and its Regulations.
ARTICLE 7. ACQUISITION OF OWN SHARES AND MEASURES TO LIMIT THE SHAREHOLDING OWNERSHIP.- I.- The Company may acquire shares representing its own Capital Stock or negotiable instruments representing them, as well as optional instruments or financial derivative instruments which may be liquidated in kind that have such shares or negotiable instruments underlying in accordance with the terms and conditions indicated by the applicable Law. The shares or negotiable instruments that represent such shares that belong to the Company, or, the shares issued but not subscribed maintained in the Treasury, may be placed among the public investors in accordance with the dispositions of the applicable law. So long the shares are the property of the Company, they may not be represented nor voted in the Shareholders’ Meetings, and no social or economic rights of whatever nature may be exercised. II.- (A).- For purposes of these by-laws, the following definitions shall apply, whether in their singular or plural form: “Shares”: the ones that represent the Capital Stock of the Company; any type of certificate or receipt referred to the shares representing the Capital Stock of the Company; as well as any other security, negotiable instrument or document that refers to or permits the exercise of, the vote of the corresponding shares representing the Capital Stock of CEMEX, S.A.B. de C.V. “CONSORTIUM”: shall have the meaning established by the Mexican Securities Law. “RELATIVE”: person or persons that with respect to each other, have family relationship by consanguinity, affinity or civil, up until the fifth degree in a straight or collateral line, the spouse, concubine and concubinary. “ENCUMBRANCE”: pledges, seizures, trusts (or equivalent figures under foreign Law), or any act or transaction that in any form, limits, restricts or affects, the implicit rights of the Shares. “GROUP OF PERSONS”: shall have the meaning established by the Mexican Securities Law. “CORPORATE GROUP”: shall have the meaning established by the Mexican Securities Law. “RELATED PARTY”: shall have the meaning established by the Mexican Securities Law. “HOLDING”: the ownership, possession or holding of Shares or the possibility of instructing or exercising the right to vote. “TRANSACTION”: Any agreement, contract, unilateral declaration, stipulation, arrangement and any act that creates, transmits, modifies or extinguishes obligations, including, enunciatively but not limited to, all acts or facts that give or may give place for any exercise or instruction of the exercise of the vote, or if the ownership, possession or holding of the Shares may be obtained. Any Transaction or Encumbrance that may result or results in a possibility, directly or indirectly, to acquire or exercise the right to vote regarding the Shares that represent a 2% or more of the Capital Stock of the Company, shall be subject to the prior authorization of the Board of Directors. The Board of Directors must decide, within a period of 90 days from the reception of the written application directed to the President or Secretary of the Board. The application must contain: (i) name, social denomination of the participant(s) in the Transaction or Encumbrance and the Shares whose Holding they have on the date of the application, (ii) in case of a Group of Persons, Corporate Group, Consortium, Related Parties or Relatives, provide the details of all the persons involved, indicating their name, social denomination and Shares each holds, as well as who shall exercise the social and economic rights, and (iii) description of the Transactions or Encumbrances. The Board of Directors, in order to resolve the applications, shall consider the following criteria: a) if it involves Transactions or Encumbrances of qualified investors or institutions in which the public investors participate; b) the likelihood of the participants in the Transactions or Encumbrances exercising a significant influence or being able to obtain control (as these terms are defined in the applicable law); c) if all the legal dispositions and the by-laws have been observed, and the persons who wish to participate in the Transactions or Encumbrances have not incurred in any violation of the Law or by-laws or have not complied with the applicable Law or by-laws; d) if the persons who wish to participate in the Transactions or Encumbrances are competitors of the Company and there is a risk of affecting the free market competition or there could be an access to confidential and privileged information; e) the moral and economic solvency of the participants; f) the protection of the minority rights and the rights of the workers of the Company and its subsidiaries; and g) maintain an adequate base of investors. If the Board of Directors authorizes the application, the Transaction or Encumbrance shall be done during the next 10 (ten) days following notification from the Board of such authorization. If done afterwards, the authorization shall be null. II.- (B).- Any Transaction or Encumbrance that results o may result in a participation equal or greater than 30% of the Capital Stock of the Company, shall oblige, without taking into account whether the participants in the Transaction or Encumbrance wish or not to acquire control, the execution of a forced public offer for the acquisition for the total of the Shares representing the Company’s Capital Stock. In the event the requirements described in numeral II of this article are not met or exceed the participations indicated in the paragraphs A and B, the persons involved therein shall not be entitled to exercise the voting rights corresponding to the total of the Shares whose Holding was obtained or is obtained, and therefore, such Shares shall not be taken into account for the determination of the quorum of attendance and voting in the Shareholders’ Meetings, nor shall the records in the shareholder ledger be done and there shall be no effects of the Registry done by the Institute for the Deposit of Securities. In order to determine if a specific situation is within numeral II of this Article, the following considerations and criteria shall apply and all the Shares whose holding is obtained, shall be obtained, or is obtained by virtue of any Transaction or Encumbrance, shall be taken into account (the calculation shall be made regarding the number of shares directly representing the Capital Stock of the Company).
1.- It does not matter if the Transaction or Encumbrance is made abroad.
2.- A single Holding shall be considered regarding each of the participants in the Group of Persons, Corporate Group, Consortium, each Related Party, and each Relative.
3.- Each Transaction or Encumbrance that may result in obtaining a 2% or more of the Capital Stock must be submitted to authorization.
4.- In case of Trusts established by the Company for the issuance of ordinary participation certificates to be offered to the public investors, the fiduciary institution shall not be subject to numeral II of this Article or Article 10 of these by-laws.
5.- For the interpretation of these by-laws, the applicable law shall be taken into account.
ARTICLE 8. MODIFICATIONS TO THE CAPITAL STOCK.- To increase or decrease the Capital Stock and amortize issued shares with undistributed profits, except in accordance with the provisions of Article 7 of these by-laws, the following procedure shall be followed: The Fixed Capital Stock shall only be increased or decreased by resolution of the General Extraordinary Shareholders’ Meeting, and such Meeting shall also authorize the amortization of issued shares with distributable profits representing this part of the Capital Stock and the amendments to the limits of the Variable Capital. The Variable Capital Stock shall be increased or decreased by resolution of the General Ordinary Shareholders’ Meeting, and such Meeting shall also resolve about the amortization of issued Shares representing this part of the Capital Stock with distributable profits; in the event of a capital increase in its Variable part, the Meeting may delegate to the Board of Directors the authority to determine the terms and conditions under which it shall proceed to the issuance, exhibit and subscription of the respective shares, which once issued and while subscribed shall be held by the Treasury of the Company. In the event of a capital reduction in the Variable part of its Capital Stock, the Board of Directors, in accordance with applicable legal provisions, may fix the terms and conditions for its implementation. The amortization of Shares with distributable profits shall be made in accordance with the terms mentioned by the Law. The minutes of the General Ordinary Shareholders´ Meetings that approve increases or decreases in the variable portion of the Capital Stock must be notarize, except in the cases where the increases and decreases are the result of the repurchase of shares.
In the terms of the applicable law, the Company may increase its Capital Stock by the issuance of non-voting shares, shares with other limitations in their corporate rights, or shares with restricted vote. The issuance of the shares mentioned in this paragraph shall not exceed the percentage of the Capital Stock established by the applicable Law and may be part of the Fixed or Variable portions of the Capital Stock.
The non-voting shares shall not be counted for purposes of determining the attendance or voting quorums at the Shareholders’ Meetings, while the shares with limitations on other corporate rights, or of restricted vote, shall only be counted to determine the attendance and voting quorums in the Shareholders’ Meetings held to deal with any matters in which such shares have a voting right.
Issued Class Shares, as the case may be, shall conform one or several Series with its respective sub-series, each Series shall be identified with two letters of the alphabet, one of which shall be “A”, “B” or “N”, respectively and depending on whether its holding restrictions are reserved in the terms of these by-laws with respect to the Series “A”, common ordinary Capital, are of free subscription in the terms of these by-laws with respect to the Series “B” of the common ordinary Capital Stock, or in its case, are considered as neutral investment under which they shall also have free subscription; and the other letter shall be used to distinguish them from the shares representing the common ordinary Capital Stock and the other Classes that conform the Capital Stock, attaching a progressive number for each sub-series issued.
In the event of a Capital Stock increase, the Shareholders’ Meeting may extend, limit or deny shareholders holding shares that represent the Capital Stock the preemptive right to subscribe, in proportion to their participation in the same and depending on their participation in the common ordinary capital or in the capital represented by Class Shares, the shares that in either case are issued. When applicable, the proportion shall be
determined considering only the participation in the issued Capital Stock and the preemptive rights may only be exercised with respect to the same class of Shares that are held by the shareholder and within the (15) fifteen days following the publication of the resolution of the respective Shareholders’ Meeting, the publication shall be made in the terms provided in these by-laws for the calls for Shareholders’ Meetings. The preemptive right to subscribe shall not be applicable to increases to the capital through public offers or through the issuance of own shares previously acquired by the Company.
The Shareholders shall also have the right to receive the shares that are issued by means of capitalization of reserves or profits, in the understanding that the shares issued under this concept shall correspond proportionately to all issued Shares. The Shareholders’ Meeting shall determine the nature or class of shares that shall be represented by the Capital Increases made by the capitalization of reserves or profits and only those Shareholders holding common ordinary shares or Class Shares, depending on which of them are being issued, shall share the benefit of receiving the shares so issued in the proportion of their Holdings in the issued ordinary common Capital Stock or of Class, respectively.
The Company may issue Treasury Shares to be subscribed afterwards by the public investors, in accordance and subject to the applicable Laws.
The shareholders of the variable part of the Capital Stock of the Company shall not have withdrawal rights.
The Company shall keep a Book, which shall be authorized by the Chairman or Secretary of the Board of Directors or by any other officer designated by the Board of Directors for this purpose. All notes relating to the registration of increases and decreases of the Capital Stock in its Variable portion shall be kept in this Book.
ARTICLE 10. SHARE REGISTRY AND SIGNIFICANT PARTICIPATIONS.- The Company shall have a Share Registry that must contain: a).- The name, nationality, and address of the Shareholder, as well as the indication of the shares belonging to him, indicating their number, series, class, and other distinctions; b).- The indication of the payments made taking place; c).- Any encumbrances over the Shares, as well as of the rights incorporated in them, the limitations of domain, and transfers made. The Registry must also comply with the dispositions established in the applicable law and with Article 7 of these by-laws. The Company shall consider the person inscribed in the Registry, referred to in this article, as owner of the shares. To this effect, the Company must record in such Registry, when requested by any holder, the transfers, limitations, or liens imposed on them. In case the Shares or certificates that represent them were deposited in an authorized Institution for the Deposit of Securities, the register shall be made in accordance with the applicable law and with the by-laws. The persons who, in any way and in accordance with the criteria set forth in numeral II of Article 7 of these by-laws, obtain a participation of 5%, 10%, 15%, 20%, 25% or 30% must inform the Company within a period of 5 (five) working days following the day in which such percentage of ownership is obtained or exceeded. For purposes of calculating such percentages, numeral II of article 7 of these by-laws shall apply. In the case of Corporate Groups, Groups of Persons, or Consortiums, the obligation to notify applies to all the persons that are considered members of such groups.
The notice given to the Company, referenced in this Article, shall include the name of the person or persons that have the ownership and the rights or faculties acquired, the authorization from the Board in those cases described in Article 7 of these by-laws, and the data needed to identify the persons regarding the ones for which Shares are grouped for Ownership.
In case of non-compliance with the provisions of this Article, regarding notices of significant participations, the corresponding Shares shall not be represented in the Meeting.
The Company shall keep a registry of significant participations, where names, nationality and domicile of the persons whose names are in the instruments or respective certificates, as well as the relation, agreement or arrangement that exists between them and the information necessary in order to verify the compliance of these by-laws, shall be registered. Only those who are registered may represent the respective shares in the Shareholders’ Meeting. The shareholders must, additionally, comply with what the applicable law establishes regarding acquisitions of securities subject to disclosure and disclosure of contracts and agreements between shareholders. In order to comply with the obligations to notify, this Article shall apply. Only those that have complied with these by-laws and the applicable law shall be able to exercise or instruct the exercise of the corresponding voting rights. In case of non-compliance with what is stated in these by-laws, the registration in the Registry of Shares shall not take place and all the transactions made by an institution for the deposit of securities shall have no legal effect whatsoever before the Company.
ARTICLE 14. ATTENDANCE TO THE SHAREHOLDERS’ MEETINGS.- In order to attend and participate in the General Meetings of Shareholders, the Shareholders with the right to vote shall deposit their shares at the corporate offices, in a Mexican credit institution or a brokerage firm, operating in accordance with the Mexican Securities Law. The Certificate of Deposit and, as the case may be, the list of Owners issued by the broker shall be delivered in the office of the Secretary of the Company at least 48 hours prior to the time set for the Meeting. In addition, it is necessary to observe the dispositions of Articles 7 and 10 of these by-laws regarding the Shares intended to be represented in the Meeting. The Secretary, in exchange for the aforesaid certificate of deposit, shall list, and after checking the compliance with the by-laws regarding Articles 7 and 10, shall issue a deposit voucher that verifies the shareholders’ standing as such and the number of shares represented. Said voucher shall authorize the person to whom it has been issued to attend the Meeting. The deposited shares or respective certificates shall only be returned to the Shareholders when the Meeting has been concluded, and in exchange for the voucher issued by the Secretary. The Secretary shall have the documents referred to herein, at the disposal of the Tellers appointed to act as such at the respective Meeting, so that, at the end of the respective registration period, they may prepare the Attendance List of the Shareholders who have right to attend that Meeting.
ARTICLE 15. SHAREHOLDERS’ REPRESENTATION.- Every Shareholder has the right, subject to compliance with these by-laws, to attend the Meetings, personally or through Proxy. If attending by Proxy, it shall be necessary to obtain a simple power of attorney, granted in accordance with the forms created by the Company and that shall be at the disposal of the shareholders, including the brokers in the Stock Exchange, during the term indicated by the Law. The forms shall contain the following: (a) clearly name the Company and the Agenda without mentioning under the title “General Matters”, the items referred to by the applicable law, and (b) a space for including the instructions for exercise of the Power of Attorney indicated by the grantor of such Power of Attorney.
The Secretary of the Board of Directors shall verify that this Article is observed and shall inform the Meeting thereof.
ARTICLE 18. VOTING RIGHTS AND QUOROUM OF THE SHAREHOLDERS’ MEETINGS.- In all Meetings, each common ordinary share shall be entitled to one vote. This principle shall be subject to applicable legal provisions and to the provisions of these by-laws, with exception to those cases of shares temporarily re-acquired by the Company as referred to in numeral I of Article 7; to the non-voting shares, as well as to, or with the limitation to other corporate rights, and any shares with limited vote in accordance with the applicable law and the resolutions of the Shareholders’ Meeting in which its issuance has been approved; as well as to those cases contemplated by numeral II of Article 7 and Article 10 of these by-laws. In all Ordinary Shareholders’ Meetings, the resolutions shall be valid with the affirmative vote of the majority of the votes of the voting-shares present thereat. In the Extraordinary Shareholders’ Meetings, the resolutions shall only be valid if approved by the affirmative vote of the voting-shares representing at least (50%) fifty per cent of the Capital Stock with voting rights, except in the case of amendments to Articles 7 (except for the acquisitions of own shares), 10, and 22, in which it shall be required to obtain approval of (75%) seventy-five percent of the voting shares as well as those cases that in accordance with the Law, require a special quorum. It shall be left to the Tellers, who shall sign the respective minute, to verify that the quorums so indicated are complied with. The Shareholders, Owners of shares with voting rights, including in a limited or restrictive form, that represent at least 20% of the Capital Stock subscribed and paid, shall have the right to judicially oppose to the resolutions of the General Meetings, regarding those items where they have voting rights, whenever the provisions stated in applicable law, for these purposes, are observed.
The shareholders owning shares with voting rights, limited or restricted, who jointly or individually own 10% of the Capital Stock, may request the postponement, only once, by 3 days and without the need for a new call, of the voting of any matter which they feel they have not been sufficiently informed of.
ARTICLE 42. CANCELLATION OF LISTING ON THE NATIONAL REGISTER OF SECURITIES.- In the event that the Company requests the cancellation of the listing of its shares on the Securities Section of the National Register of Securities, the prior approval of the General Extraordinary Shareholders’ Meeting, with the favorable vote of the shares, with or without voting rights, that represent 95% of the Company’s Capital Stock, shall be required. It shall also be necessary to make a public tender offer, which shall be made at the price, terms and conditions established by the Law or determined by the National Banking and Securities Commission through its regulations.
The Company shall create a trust, for a period of at least six month as of the date of such cancellation, with enough funds to purchase, at the same offered price, the shares of those investors who did not tender at such offer.
The Board of Directors shall inform to investors and the public, through the stock exchanges where the Company’s securities are traded and in compliance with the conditions established by such stock exchanges, its opinion with respect to the price of the offer.

 	 	 	 	 	 	 	 	 	 	 	
The rights of this Certificate are assigned to:	 	 	  	 	
Domicile:	 	 	  	 	
Nationality:	 	 	 	Date:	  	 	  	 	
Signature:	 	 	  	 	
Record Number:	 	 	 	Record
Date:	  	 	  	 	

Exhibit 2.6

DEFINITIVE CERTIFICATE	  	REPRESENTING	
NUMBER 000000	  	0 SHARES            	
 	 	
 	  	COMMON STOCK	
 	 	
 	  	NUM.:00000000000	
 	  	TO: 0000000000000	
[CEMEX LETTERHEAD]
CEMEX S.A.B. DE C.V.
Series “B”
Variable Capital

Place of Business	  	Duration	
Monterrey, N.L.	  	May 27, 2100	
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX is the holder of 0 share of fully paid ordinary common stock, with no par value of the Series “B” shares of XXXXXXXXXXXX shares that represent the total of Series “B” shares, representing the variable capital stock of CEMEX, S.A.B. de C.V.
CEMEX, S.A.B. de C.V., was incorporated by Public Deed No. 94 of May 28, 1920, granted in the sworn presence of Mr. Carlos Lozano, Notary Public licensed in Monterrey, Nuevo León, and registered in the Public Register of Commerce of the same city under No. 21, Pages 157 to 186, Volume 16, Book 3, Second Auxiliary, with the date of June 11, 1920. CEMEX, S.A.B. de C.V. has had several name changes, the most recent that mentioned in Public Deed No. 35,211 of April 27, 2006, granted in the sworn presence of Mr. Francisco Garza Calderon, Notary Public No. 75 practicing in the First Recording District of the State of Nuevo Leon, pursuant to which, among others, the bylaws of the Company were amended in order to adapt them to the provisions of the Ley del Mercado de Valores, therefore obtaining the legal name CEMEX, S.A.B. de C.V.
By means of the Extraordinary General Meeting of Shareholders held on February 24, 2011, it was resolved to amend Articles 8 of the bylaws. The corresponding resolutions were officially certified by Public Deed No. 57,590 of February 24, 2011, granted in the sworn presence of Mr. Juan Manuel García Cañamar, Substitute Notary Public, associate of Mr. Juan Manuel Garcia García, Notary Public No. 129 practicing in the First Recording District of the State of Nuevo Leon, and registered under electronic mercantile file No. 532*9, dated March 2, 2011, in the Public Registry of Property and Commerce of the State of Nuevo León.
MONTERREY, N.L., [DATE]

BOARD MEMBER	  	BOARD MEMBER	
—————————————————————ATTACHED COUPONS—————————————————————-

CEMEX, S.A.B. DE C.V.
NOMINATED COUPON No. [—]
DEFINITIVE CERTIFICATE
Num. 000000000
REPRESENTING 0
SHARES
 
VARIABLE SERIES “B”
[Date]	 	 	 	 	

CEMEX, S.A.B. DE C.V.
EXTRACT OF THE BY-LAWS
 
ARTICLE 5. NATIONALITY.- This Company is Mexican. Any foreigner who in the incorporation date of this Company has acquired or in the future shall acquire an interest or participation in the Capital Stock of the Company, shall be considered for this sole act as Mexican, it being understood that said party has agreed not to seek the protection of its government, under penalty of losing said interest or participation in favor of the Republic of Mexico. This article shall be inserted in its entirety on the share certificates issued by the Company. This Company received authorization from the Mexican Ministry of Foreign Affairs under Permit Number 267, dated February 4, 1927, in accordance with the Organizational Law of Section I of Article 27 of the Constitution and its Regulations.
ARTICLE 7. ACQUISITION OF OWN SHARES AND MEASURES TO LIMIT THE SHAREHOLDING OWNERSHIP.- I.- The Company may acquire shares representing its own Capital Stock or negotiable instruments representing them, as well as optional instruments or financial derivative instruments which may be liquidated in kind that have such shares or negotiable instruments underlying in accordance with the terms and conditions indicated by the applicable Law. The shares or negotiable instruments that represent such shares that belong to the Company, or, the shares issued but not subscribed maintained in the Treasury, may be placed among the public investors in accordance with the dispositions of the applicable law. So long the shares are the property of the Company, they may not be represented nor voted in the Shareholders’ Meetings, and no social or economic rights of whatever nature may be exercised. II.- (A).- For purposes of these by-laws, the following definitions shall apply, whether in their singular or plural form: “Shares”: the ones that represent the Capital Stock of the Company; any type of certificate or receipt referred to the shares representing the Capital Stock of the Company; as well as any other security, negotiable instrument or document that refers to or permits the exercise of, the vote of the corresponding shares representing the Capital Stock of CEMEX, S.A.B. de C.V. “CONSORTIUM”: shall have the meaning established by the Mexican Securities Law. “RELATIVE”: person or persons that with respect to each other, have family relationship by consanguinity, affinity or civil, up until the fifth degree in a straight or collateral line, the spouse, concubine and concubinary. “ENCUMBRANCE”: pledges, seizures, trusts (or equivalent figures under foreign Law), or any act or transaction that in any form, limits, restricts or affects, the implicit rights of the Shares. “GROUP OF PERSONS”: shall have the meaning established by the Mexican Securities Law. “CORPORATE GROUP”: shall have the meaning established by the Mexican Securities Law. “RELATED PARTY”: shall have the meaning established by the Mexican Securities Law. “HOLDING”: the ownership, possession or holding of Shares or the possibility of instructing or exercising the right to vote. “TRANSACTION”: Any agreement, contract, unilateral declaration, stipulation, arrangement and any act that creates, transmits, modifies or extinguishes obligations, including, enunciatively but not limited to, all acts or facts that give or may give place for any exercise or instruction of the exercise of the vote, or if the ownership, possession or holding of the Shares may be obtained. Any Transaction or Encumbrance that may result or results in a possibility, directly or indirectly, to acquire or exercise the right to vote regarding the Shares that represent a 2% or more of the Capital Stock of the Company, shall be subject to the prior authorization of the Board of Directors. The Board of Directors must decide, within a period of 90 days from the reception of the written application directed to the President or Secretary of the Board. The application must contain: (i) name, social denomination of the participant(s) in the Transaction or Encumbrance and the Shares whose Holding they have on the date of the application, (ii) in case of a Group of Persons, Corporate Group, Consortium, Related Parties or Relatives, provide the details of all the persons involved, indicating their name, social denomination and Shares each holds, as well as who shall exercise the social and economic rights, and (iii) description of the Transactions or Encumbrances. The Board of Directors, in order to resolve the applications, shall consider the following criteria: a) if it involves Transactions or Encumbrances of qualified investors or institutions in which the public investors participate; b) the likelihood of the participants in the Transactions or Encumbrances exercising a significant influence or being able to obtain control (as these terms are defined in the applicable law); c) if all the legal dispositions and the by-laws have been observed, and the persons who wish to participate in the Transactions or Encumbrances have not incurred in any violation of the Law or by-laws or have not complied with the applicable Law or by-laws; d) if the persons who wish to participate in the Transactions or Encumbrances are competitors of the Company and there is a risk of affecting the free market competition or there could be an access to confidential and privileged information; e) the moral and economic solvency of the participants; f) the protection of the minority rights and the rights of the workers of the Company and its subsidiaries; and g) maintain an adequate base of investors. If the Board of Directors authorizes the application, the Transaction or Encumbrance shall be done during the next 10 (ten) days following notification from the Board of such authorization. If done afterwards, the authorization shall be null. II.- (B).- Any Transaction or Encumbrance that results o may result in a participation equal or greater than 30% of the Capital Stock of the Company, shall oblige, without taking into account whether the participants in the Transaction or Encumbrance wish or not to acquire control, the execution of a forced public offer for the acquisition for the total of the Shares representing the Company’s Capital Stock. In the event the requirements described in numeral II of this article are not met or exceed the participations indicated in the paragraphs A and B, the persons involved therein shall not be entitled to exercise the voting rights corresponding to the total of the Shares whose Holding was obtained or is obtained, and therefore, such Shares shall not be taken into account for the determination of the quorum of attendance and voting in the Shareholders’ Meetings, nor shall the records in the shareholder ledger be done and there shall be no effects of the Registry done by the Institute for the Deposit of Securities. In order to determine if a specific situation is within numeral II of this Article, the following considerations and criteria shall apply and all the Shares whose holding is obtained, shall be obtained, or is obtained by virtue of any Transaction or Encumbrance, shall be taken into account (the calculation shall be made regarding the number of shares directly representing the Capital Stock of the Company).
1.- It does not matter if the Transaction or Encumbrance is made abroad.
2.- A single Holding shall be considered regarding each of the participants in the Group of Persons, Corporate Group, Consortium, each Related Party, and each Relative.
3.- Each Transaction or Encumbrance that may result in obtaining a 2% or more of the Capital Stock must be submitted to authorization.
4.- In case of Trusts established by the Company for the issuance of ordinary participation certificates to be offered to the public investors, the fiduciary institution shall not be subject to numeral II of this Article or Article 10 of these by-laws.
5.- For the interpretation of these by-laws, the applicable law shall be taken into account.
ARTICLE 8. MODIFICATIONS TO THE CAPITAL STOCK.- To increase or decrease the Capital Stock and amortize issued shares with undistributed profits, except in accordance with the provisions of Article 7 of these by-laws, the following procedure shall be followed: The Fixed Capital Stock shall only be increased or decreased by resolution of the General Extraordinary Shareholders’ Meeting, and such Meeting shall also authorize the amortization of issued shares with distributable profits representing this part of the Capital Stock and the amendments to the limits of the Variable Capital. The Variable Capital Stock shall be increased or decreased by resolution of the General Ordinary Shareholders’ Meeting, and such Meeting shall also resolve about the amortization of issued Shares representing this part of the Capital Stock with distributable profits; in the event of a capital increase in its Variable part, the Meeting may delegate to the Board of Directors the authority to determine the terms and conditions under which it shall proceed to the issuance, exhibit and subscription of the respective shares, which once issued and while subscribed shall be held by the Treasury of the Company. In the event of a capital reduction in the Variable part of its Capital Stock, the Board of Directors, in accordance with applicable legal provisions, may fix the terms and conditions for its implementation. The amortization of Shares with distributable profits shall be made in accordance with the terms mentioned by the Law. The minutes of the General Ordinary Shareholders´ Meetings that approve increases or decreases in the variable portion of the Capital Stock must be notarize, except in the cases where the increases and decreases are the result of the repurchase of shares.
In the terms of the applicable law, the Company may increase its Capital Stock by the issuance of non-voting shares, shares with other limitations in their corporate rights, or shares with restricted vote. The issuance of the shares mentioned in this paragraph shall not exceed the percentage of the Capital Stock established by the applicable Law and may be part of the Fixed or Variable portions of the Capital Stock.
The non-voting shares shall not be counted for purposes of determining the attendance or voting quorums at the Shareholders’ Meetings, while the shares with limitations on other corporate rights, or of restricted vote, shall only be counted to determine the attendance and voting quorums in the Shareholders’ Meetings held to deal with any matters in which such shares have a voting right.
Issued Class Shares, as the case may be, shall conform one or several Series with its respective sub-series, each Series shall be identified with two letters of the alphabet, one of which shall be “A”, “B” or “N”, respectively and depending on whether its holding restrictions are reserved in the terms of these by-laws with respect to the Series “A”, common ordinary Capital, are of free subscription in the terms of these by-laws with respect to the Series “B” of the common ordinary Capital Stock, or in its case, are considered as neutral investment under which they shall also have free subscription; and the other letter shall be used to distinguish them from the shares representing the common ordinary Capital Stock and the other Classes that conform the Capital Stock, attaching a progressive number for each sub-series issued.
In the event of a Capital Stock increase, the Shareholders’ Meeting may extend, limit or deny shareholders holding shares that represent the Capital Stock the preemptive right to subscribe, in proportion to their participation in the same and depending on their participation in the common ordinary capital
or in the capital represented by Class Shares, the shares that in either case are issued. When applicable, the proportion shall be determined considering only the participation in the issued Capital Stock and the preemptive rights may only be exercised with respect to the same class of Shares that are held by the shareholder and within the (15) fifteen days following the publication of the resolution of the respective Shareholders’ Meeting, the publication shall be made in the terms provided in these by-laws for the calls for Shareholders’ Meetings. The preemptive right to subscribe shall not be applicable to increases to the capital through public offers or through the issuance of own shares previously acquired by the Company.
The Shareholders shall also have the right to receive the shares that are issued by means of capitalization of reserves or profits, in the understanding that the shares issued under this concept shall correspond proportionately to all issued Shares. The Shareholders’ Meeting shall determine the nature or class of shares that shall be represented by the Capital Increases made by the capitalization of reserves or profits and only those Shareholders holding common ordinary shares or Class Shares, depending on which of them are being issued, shall share the benefit of receiving the shares so issued in the proportion of their Holdings in the issued ordinary common Capital Stock or of Class, respectively.
The Company may issue Treasury Shares to be subscribed afterwards by the public investors, in accordance and subject to the applicable Laws.
The shareholders of the variable part of the Capital Stock of the Company shall not have withdrawal rights.
The Company shall keep a Book, which shall be authorized by the Chairman or Secretary of the Board of Directors or by any other officer designated by the Board of Directors for this purpose. All notes relating to the registration of increases and decreases of the Capital Stock in its Variable portion shall be kept in this Book.
ARTICLE 10. SHARE REGISTRY AND SIGNIFICANT PARTICIPATIONS.- The Company shall have a Share Registry that must contain: a).- The name, nationality, and address of the Shareholder, as well as the indication of the shares belonging to him, indicating their number, series, class, and other distinctions; b).- The indication of the payments made taking place; c).- Any encumbrances over the Shares, as well as of the rights incorporated in them, the limitations of domain, and transfers made. The Registry must also comply with the dispositions established in the applicable law and with Article 7 of these by-laws. The Company shall consider the person inscribed in the Registry, referred to in this article, as owner of the shares. To this effect, the Company must record in such Registry, when requested by any holder, the transfers, limitations, or liens imposed on them. In case the Shares or certificates that represent them were deposited in an authorized Institution for the Deposit of Securities, the register shall be made in accordance with the applicable law and with the by-laws. The persons who, in any way and in accordance with the criteria set forth in numeral II of Article 7 of these by-laws, obtain a participation of 5%, 10%, 15%, 20%, 25% or 30% must inform the Company within a period of 5 (five) working days following the day in which such percentage of ownership is obtained or exceeded. For purposes of calculating such percentages, numeral II of article 7 of these by-laws shall apply. In the case of Corporate Groups, Groups of Persons, or Consortiums, the obligation to notify applies to all the persons that are considered members of such groups.
The notice given to the Company, referenced in this Article, shall include the name of the person or persons that have the ownership and the rights or faculties acquired, the authorization from the Board in those cases described in Article 7 of these by-laws, and the data needed to identify the persons regarding the ones for which Shares are grouped for Ownership.
In case of non-compliance with the provisions of this Article, regarding notices of significant participations, the corresponding Shares shall not be represented in the Meeting.
The Company shall keep a registry of significant participations, where names, nationality and domicile of the persons whose names are in the instruments or respective certificates, as well as the relation, agreement or arrangement that exists between them and the information necessary in order to verify the compliance of these by-laws, shall be registered. Only those who are registered may represent the respective shares in the Shareholders’ Meeting. The shareholders must, additionally, comply with what the applicable law establishes regarding acquisitions of securities subject to disclosure and disclosure of contracts and agreements between shareholders. In order to comply with the obligations to notify, this Article shall apply. Only those that have complied with these by-laws and the applicable law shall be able to exercise or instruct the exercise of the corresponding voting rights. In case of non-compliance with what is stated in these by-laws, the registration in the Registry of Shares shall not take place and all the transactions made by an institution for the deposit of securities shall have no legal effect whatsoever before the Company.
ARTICLE 14. ATTENDANCE TO THE SHAREHOLDERS’ MEETINGS.- In order to attend and participate in the General Meetings of Shareholders, the Shareholders with the right to vote shall deposit their shares at the corporate offices, in a Mexican credit institution or a brokerage firm, operating in accordance with the Mexican Securities Law. The Certificate of Deposit and, as the case may be, the list of Owners issued by the broker shall be delivered in the office of the Secretary of the Company at least 48 hours prior to the time set for the Meeting. In addition, it is necessary to observe the dispositions of Articles 7 and 10 of these by-laws regarding the Shares intended to be represented in the Meeting. The Secretary, in exchange for the aforesaid certificate of deposit, shall list, and after checking the compliance with the by-laws regarding Articles 7 and 10, shall issue a deposit voucher that verifies the shareholders’ standing as such and the number of shares represented. Said voucher shall authorize the person to whom it has been issued to attend the Meeting. The deposited shares or respective certificates shall only be returned to the Shareholders when the Meeting has been concluded, and in exchange for the voucher issued by the Secretary. The Secretary shall have the documents referred to herein, at the disposal of the Tellers appointed to act as such at the respective Meeting, so that, at the end of the respective registration period, they may prepare the Attendance List of the Shareholders who have right to attend that Meeting.
ARTICLE 15. SHAREHOLDERS’ REPRESENTATION.- Every Shareholder has the right, subject to compliance with these by-laws, to attend the Meetings, personally or through Proxy. If attending by Proxy, it shall be necessary to obtain a simple power of attorney, granted in accordance with the forms created by the Company and that shall be at the disposal of the shareholders, including the brokers in the Stock Exchange, during the term indicated by the Law. The forms shall contain the following: (a) clearly name the Company and the Agenda without mentioning under the title “General Matters”, the items referred to by the applicable law, and (b) a space for including the instructions for exercise of the Power of Attorney indicated by the grantor of such Power of Attorney.
The Secretary of the Board of Directors shall verify that this Article is observed and shall inform the Meeting thereof.
ARTICLE 18. VOTING RIGHTS AND QUOROUM OF THE SHAREHOLDERS’ MEETINGS.- In all Meetings, each common ordinary share shall be entitled to one vote. This principle shall be subject to applicable legal provisions and to the provisions of these by-laws, with exception to those cases of shares temporarily re-acquired by the Company as referred to in numeral I of Article 7; to the non-voting shares, as well as to, or with the limitation to other corporate rights, and any shares with limited vote in accordance with the applicable law and the resolutions of the Shareholders’ Meeting in which its issuance has been approved; as well as to those cases contemplated by numeral II of Article 7 and Article 10 of these by-laws. In all Ordinary Shareholders’ Meetings, the resolutions shall be valid with the affirmative vote of the majority of the votes of the voting-shares present thereat. In the Extraordinary Shareholders’ Meetings, the resolutions shall only be valid if approved by the affirmative vote of the voting-shares representing at least (50%) fifty per cent of the Capital Stock with voting rights, except in the case of amendments to Articles 7 (except for the acquisitions of own shares), 10, and 22, in which it shall be required to obtain approval of (75%) seventy-five percent of the voting shares as well as those cases that in accordance with the Law, require a special quorum. It shall be left to the Tellers, who shall sign the respective minute, to verify that the quorums so indicated are complied with. The Shareholders, Owners of shares with voting rights, including in a limited or restrictive form, that represent at least 20% of the Capital Stock subscribed and paid, shall have the right to judicially oppose to the resolutions of the General Meetings, regarding those items where they have voting rights, whenever the provisions stated in applicable law, for these purposes, are observed.
The shareholders owning shares with voting rights, limited or restricted, who jointly or individually own 10% of the Capital Stock, may request the postponement, only once, by 3 days and without the need for a new call, of the voting of any matter which they feel they have not been sufficiently informed of.
ARTICLE 42. CANCELLATION OF LISTING ON THE NATIONAL REGISTER OF SECURITIES.- In the event that the Company requests the cancellation of the listing of its shares on the Securities Section of the National Register of Securities, the prior approval of the General Extraordinary Shareholders’ Meeting, with the favorable vote of the shares, with or without voting rights, that represent 95% of the Company’s Capital Stock, shall be required. It shall also be necessary to make a public tender offer, which shall be made at the price, terms and conditions established by the Law or determined by the National Banking and Securities Commission through its regulations.
The Company shall create a trust, for a period of at least six month as of the date of such cancellation, with enough funds to purchase, at the same offered price, the shares of those investors who did not tender at such offer.
The Board of Directors shall inform to investors and the public, through the stock exchanges where the Company’s securities are traded and in compliance with the conditions established by such stock exchanges, its opinion with respect to the price of the offer.

 
 	 	 	 	 	 	 	 	 	 	 	
The rights of this Certificate are assigned to:	 	 	  	 	
Domicile:	 	 	  	 	
Nationality:	 	 	 	Date:	  	 	  	 	
Signature:	 	 	  	 	
Record Number:	 	 	 	Record
Date:	  	 	  	 	

Exhibit 4.6.2
 
SUPPLEMENTAL INDENTURE NO. 2
 
SUPPLEMENTAL INDENTURE No. 2, dated as of June 6, 2013, among CEMEX Finance LLC, a limited liability company organized and existing pursuant to the laws of the State of Delaware (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on  Schedule I hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a besloten vennootschap  organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of December 14, 2009, as supplemented by Supplemental Indenture No. 1, dated as of September 17, 2012, (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.625% Senior Secured Notes due 2017 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(4) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 2;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 2 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 2 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 2.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01   Effect of This Supplemental Indenture No. 2. This Supplemental Indenture No. 2 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 2, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 2 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 2 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02    Governing Law.  This Supplemental Indenture No. 2 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 2.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 2.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 2 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 2, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee whether or not elsewhere herein so provided. The

 
2

 

Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 2 to be duly executed as of the date first written above.
 
 	CEMEX Finance LLC, as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX, S.A.B. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 [Signature page to Supplemental Indenture No. 2 (9.625% Senior Secured Notes Due 2017)]

 

 

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	 	
 	Empresas Tolteca de México, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
  [Signature page to Supplemental Indenture No. 2 (9.625% Senior Secured Notes Due 2017)]

 

 

 
 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
[Signature page to Supplemental Indenture No. 2 (9.625% Senior Secured Notes Due 2017)]

 

 

 	THE BANK OF NEW YORK
MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 

[Signature page to Supplemental Indenture No. 2 (9.625% Senior Secured Notes Due 2017)]

 

 

SCHEDULE I

EXISTING GUARANTORS
 
 	1.	 	CEMEX, S.A.B. de C.V.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	CEMEX España, S.A.	
 	4.	 	New Sunward Holding B.V.	
 	5.	 	CEMEX Corp.	
 	6.	 	CEMEX Concretos, S.A. de C.V.	
 	7.	 	Empresas Tolteca de México, S.A. de C.V.	
 	8.	 	CEMEX Research Group AG	
 	9.	 	CEMEX Shipping B.V.	
 	10.	 	CEMEX Asia B.V.	
 	11.	 	CEMEX France Gestion (S.A.S.)	
 	12.	 	CEMEX UK	
 	13.	 	CEMEX Egyptian Investments B.V.	

 

 

 

Exhibit 4.7.1
Execution Version
AMENDMENT AND RESTATEMENT AGREEMENT
dated as of January 10, 2014
Citibank, N.A. (“Citibank”) and CEMEX, S.A.B. de C.V. (“Cemex”) have entered into a Master Terms and Conditions for Capped Call Transactions, dated as of March 24, 2010 (as from time to time supplemented, the “ Master Confirmation ”), and a Transaction as evidenced by the Amended and Restated Confirmation dated as of March 25, 2010 (the “ Capped Call Confirmation ” and, together with the Master Confirmation, the “ Capped Call Agreement ”), which is subject to a single agreement in the form of the ISDA Master Agreement (Multicurrency – Cross Border), as published by the International Swaps and Derivatives Association, Inc. (including the terms and elections related thereto in the Master Confirmation, the “ Deemed Agreement ”), deemed to exist between Citibank and Cemex pursuant to the Capped Call Agreement. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Capped Call Agreement or the Deemed Agreement, as applicable.
By entering into this amendment and restatement agreement (this “Agreement”), Citibank and Cemex agree to a procedure for amending and restating the Options under the Capped Call Agreement outstanding on the date hereof (such Options, the “ Existing Options ”) into Options to be governed by a confirmation substantially in the form attached hereto as Annex A (such Options, the “ Restated Options ”) on the terms contained herein.
Accordingly, the parties agree as follows:—
 
1.	Amending and Restating the Capped Call Agreement	
The parties agree to the following terms to amend and restate the Capped Call Agreement:
(a) Below is a table of “Potential Restatement Dates” and the “Potential Existing Options”, “ Potential Daily Reference Amount ” and “ Price Trigger ” for each such Potential Restatement Date. Any Potential Restatement Date on which the opening price per Share for the regular trading session on the Exchange, as determined by the Calculation Agent, equals or exceeds the Price Trigger for such Potential Restatement Date shall be a “ Restatement Date ”.

Potential Restatement Dates	  	Potential Existing
Options	 	  	Potential Daily
Reference Amount	 	  	Price Trigger	 	
January 13, 2014	  	 	4,112,617	  	  	USD	6,624,192.20	  	  	USD	11.00	  	
January 14, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 15, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 16, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 17, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 21, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 22, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 23, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 24, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 27, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 28, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 29, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 30, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
January 31, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
February 3, 2014	  	 	4,100,000	  	  	USD	6,603,870.00	  	  	USD	11.00	  	
(b) The “Aggregate Number of Restated Options” shall equal the sum of, for each Restatement Date, the greater of (i) zero and (ii) the result of the following formula:
Daily Reference Amount for such Restatement Date + Adjustment Amount for such Restatement Date
Restatement Price for such Restatement Date

WHERE:
“Daily Reference Amount” means, for any Restatement Date, the Potential Daily Reference Amount for such Restatement Date;  provided  that, if such Restatement Date is a Disrupted Day in whole or in part, the Calculation Agent may reduce the Potential Daily Reference Amount for such Restatement Date in the same proportion as the reduction in the Restated Existing Options for such Restatement Date.
“Adjustment Amount” means, for any Restatement Date, the product (which may be negative) of (i) the number of Restated Existing Options for such Restatement Date, (ii) 37.5% and (iii) the Price Difference for such Restatement Date.
“Restated Existing Options” means, for any Restatement Date, the Potential Existing Options for such Restatement Date;  provided  that, if such Restatement Date is a Disrupted Day in whole or in part, the Calculation Agent may reduce the number of Restated Existing Options for such Restatement Date as it determines appropriate taking into account the nature and duration of the Market Disruption Event.
“Price Difference” means, for any Restatement Date, the Restatement Price for such Restatement Date minus USD 12.60.
“Restatement Price” means, for any Restatement Date, the volume-weighted average price per Share on such Restatement Date for the period from 9:30 a.m. (New York time) to 3:50 p.m. (New York time) as displayed under the heading “Bloomberg VWAP” on Bloomberg page “CX US <equity> VAP” (or any successor thereto), or if such price is not so reported on such Restatement Date for any reason or is, in the Calculation Agent’s reasonable discretion following notice in reasonable detail to, and consultation with, Cemex, erroneous, or such Restatement Date is a Disrupted Day in whole or in part, the VWAP Price shall be as reasonably determined by the Calculation Agent using a substantially similar volume-weighted method taking into account, if applicable, the nature and duration of the Market Disruption Event.
(c) Promptly following the last Potential Restatement Date:
(1) Should any Potential Existing Options not become Restated Existing Options, Citibank shall provide Cemex a revised table substantially in the form included in the Capped Call Confirmation to reflect the aggregate number of remaining Existing Options under the Capped Call Agreement, which shall replace in its entirety the table currently included in the Capped Call Confirmation and shall be binding absent manifest error. With respect to each Tranche, the Number of Options shall be equal to the aggregate number of remaining Existing Options  divided by  the number of Tranches (rounded using a rounding convention determined by Citibank, with any remainder allocated to the final Tranche). The parties acknowledge and agree that the revised table shall reflect the actual Number of Options as of the date hereof, taking into account any adjustments pursuant to the Capped Call Agreement prior to such date.
(2) Citibank shall provide Cemex a properly completed confirmation, substantially in the form attached hereto as Annex A, with respect to the Restated Options (the “ New Confirmation ”). With respect to each Tranche, the Number of Options shall be equal to the Aggregate Number of Restated Options  divided by  the number of Tranches (rounded using a rounding convention determined by Citibank, with any remainder allocated to the final Tranche). The parties acknowledge and agree that the New Confirmation shall reflect the actual Number of Options as of the Amendment and Restatement Date set forth in the New Confirmation, taking into account any adjustments pursuant to the Master Confirmation prior to such date. Cemex agrees to execute and deliver to Citibank the New Confirmation for the Restated Options promptly following receipt thereof; provided  that the failure of Cemex to execute and deliver to Citibank the New Confirmation shall not affect the effectiveness of the amendment and restatement of the Restated Existing Options into the Restated Options.
 
2.	Representations, Warranties and Agreements	
Cemex is deemed to (i) repeat the representations, warranties and agreements in Section 11(b) of the Master Confirmation, interpreted as if the date hereof were the Trade Date and the Effective Date and (ii) represent and warrant that no Event of Default, Potential Event of Default or Termination Event with respect to Cemex has occurred or will occur as a result of the amendment and restatement contemplated hereby.
 
2

In addition, each party hereby represents to each other party that:—
(a) Status. It is duly organized and validly existing under the laws of the jurisdiction of its organization or incorporation and, if relevant under such laws, in good standing;
(b) Powers. It has the power and authority to execute and deliver this Agreement and the New Confirmation and to perform its obligations under this Agreement and the New Confirmation and has taken all necessary action to authorize such execution, delivery and performance;
(c) No Violation or Conflict. Such execution, delivery and performance do not violate or conflict with any law applicable to it or any provision of its constitutional documents;
(d) Consents. All governmental and other consents that are required to have been obtained by it with respect to this Agreement and the New Confirmation have been obtained and are in full force and effect and all conditions of any such consents have been complied with;
(e) Obligations Binding. Its obligations under this Agreement and the New Confirmation constitute its legal, valid and binding obligations, enforceable in accordance with its respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to the extent applicable, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law));
(f) Absence of Certain Events. No Event of Default or Potential Event of Default or, to its knowledge, Termination Event with respect to it has occurred and is continuing and no such event or circumstance would occur as a result of its entering into or performing its obligations under this Agreement; and
(g) Eligible Contract Participant. It is an “eligible contract participant” as defined in the Commodity Exchange Act, as amended.
 
3.	Miscellaneous	
(a) Entire Agreement. The Deemed Agreement, the Master Confirmation, the Capped Call Confirmation, the New Confirmation and this Agreement constitute the entire agreement and understanding of the parties hereto with respect to its subject matter and supersede all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this Agreement will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the parties.
(c) Counterparts. This Agreement may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.
(d) Headings. The headings used in this Agreement are for convenience of reference only and are not to affect the construction of or to be taken into consideration in interpreting this Agreement.
(e) Governing Law and Jurisdiction. The provisions of Section 13 of the Deemed Agreement (as modified in the Master Confirmation, if applicable) shall apply to this Agreement as if set forth in full herein.
(f) Waiver of Trial by Jury. EACH OF CEMEX AND CITIBANK HEREBY IRREVOCABLY WAIVES (ON ITS OWN BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS STOCKHOLDERS OR BENEFICIARIES, AS APPLICABLE) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF CITIBANK OR ITS AFFILIATES IN THE NEGOTIATION, PERFORMANCE OR ENFORCEMENT HEREOF.
(g) Continuation of Agreements. Should any Potential Existing Options not become Restated Existing Options, the Capped Call Confirmation, as modified by the revised table referenced in Section 1(c)(1) above, shall continue in full force and effect. All references to the Capped Call Confirmation or in any document related thereto shall for all purposes constitute references to the Capped Call Confirmation as modified hereby.
 
3

(h) Expenses. Cemex agrees to reimburse Citibank on demand for all reasonable fees, documented reasonable disbursements and other reasonable charges of U.S. and Mexican counsel incurred by Citibank and its affiliates in connection with the preparation, negotiation, execution, delivery and performance of this Agreement, not to exceed USD 15,000 in the aggregate.
[Signature page follows]
 
4

IN WITNESS WHEREOF the parties have executed this Agreement with effect from the date specified on the first page of this Agreement.

Citibank, N.A.	
 	 	
By:	 	/s/ Herman Hirsch	
 	 	Authorized Signatory	
 	
CEMEX, S.A.B. de C.V.	
 	 	
By:	 	/s/ Fernando A. González Olivieri	
 	 	Name:	 	Fernando A. González Olivieri	
 	 	Title:	 	Executive Vice President
Finance and Administration
Attorney-in-fact	
Signature page to Amendment
and Restatement Agreement

Annex A
AMENDED AND RESTATED CONFIRMATION

Date:	  	January 10, 2014	
 	 	
To:	  	CEMEX, S.A.B. de C.V. (“Counterparty”)	
 	 	
Telefax No.:	  	+52(81)88884519	
 	 	
Attention:	  	Francisco Javier Contreras Navarro - Financial Operations Manager - Corporate Treasury - Mexico	
 	 	
From:	  	Citibank, N.A. (“Citibank”)	
 	 	
Telefax No.:	  	212-615-8985	
 	 	
Operations File ID:	  	NECOM7857917	
The purpose of this communication (this “Confirmation”) is to amend and restate the terms and conditions of the Transaction entered into on March 24, 2010 and previously amended and restated on March 25, 2010 (the “ Original Transaction ”). The Original Transaction is being amended and restated in whole. This Confirmation supplements, forms a part of, and is subject to the Master Terms and Conditions for Capped Call Transactions dated as of March 24, 2010 and as amended from time to time (the “ Master Confirmation ”) between you and us.
1. The definitions and provisions contained in the Definitions (as such term is defined in the Master Confirmation) and in the Master Confirmation are incorporated into this Confirmation. In the event of any inconsistency between those definitions and provisions and this Confirmation, this Confirmation will govern.
2. The particular Transaction to which this Confirmation relates shall have the following terms:

Original Trade Date:	  	March 24, 2010	
 	 	
Amendment and Restatement Date:	  	January 10, 2014	
 	 	
Effective Date:	  	The Amendment and Restatement Date.	
 	 	
Lower Strike Price:	  	USD 0.00.	
 	 	
Upper Strike Price:	  	Not applicable.	
 	 	
Premium/Premium Payment Date:	  	Not applicable.	
 	 	
Convertible Notes/Indenture:	  	Not applicable.	
 	 	
Early Unwind Date:	  	Not applicable.	
 	 	
Final Disruption Date:	  	April 27, 2015.	
 	 	
Dividend Adjustments:	  	For purposes of this Transaction (but, for the avoidance of doubt, not any remaining Original Transaction), the “Dividend Adjustments” provision of the Master Confirmation is replaced in its entirely with the following:	
 	 	
 	  	If at any time during the period from and including the Amendment and Restatement Date to but excluding the date that is one Settlement Cycle following the Expiration Date a record date for a distribution, dividend or recapitalization of retained earnings by an Underlying Issuer occurs, then the Calculation Agent shall make an adjustment to the Number of Options, the Option Entitlement and/or any other variable relevant to the exercise, settlement, payment or other terms of the Transaction as the Calculation Agent determines appropriate to preserve the fair value of the Transaction to Citibank and Counterparty after taking into account the effect of such event, it being understood that, if such event includes the choice of consideration, the Calculation Agent may choose the consideration, in its sole discretion, for purposes of determining the appropriate adjustment.	
 
A-1

The Number of Options and Expiration Date for each Tranche of the Transaction are set forth below.

Tranche Number	  	Number of Options	  	Expiration Date	
1.	  	774,575	  	2-Mar-15	
2.	  	774,575	  	3-Mar-15	
3.	  	774,575	  	4-Mar-15	
4.	  	774,575	  	5-Mar-15	
5.	  	774,575	  	6-Mar-15	
6.	  	774,575	  	9-Mar-15	
7.	  	774,575	  	10-Mar-15	
8.	  	774,575	  	11-Mar-15	
9.	  	774,575	  	12-Mar-15	
10.	  	774,572	  	13-Mar-15	
 
A-2

3. Counterparty hereby agrees (a) to check this Confirmation promptly upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to confirm that the foregoing correctly sets forth the terms of the agreement between us with respect to the particular Transaction to which this Confirmation relates, by manually signing this Confirmation and providing any other information requested herein or in the Master Confirmation and immediately returning an executed copy to Confirmation Unit via 212-615-8985. Hard copies should be returned to Citibank, N.A., 333 West 34 th  Street, 2 nd  Floor, New York, New York 10001, Attention: Confirmation Unit.

Yours sincerely,	
 	
CITIBANK, N.A.	
 	 	
By:	 	 	
 	 	Authorized Signatory	

Confirmed as of the	
date first above written:	
 	
CEMEX, S.A.B. de C.V.	
 	 	
By:	 	 	
 	 	Name:	
 	 	Title:	
 
A-3

Exhibit 4.11.3
 
SUPPLEMENTAL INDENTURE NO. 3
 
SUPPLEMENTAL INDENTURE No. 3, dated as of June 6, 2013, among CEMEX España, S.A., a corporation ( sociedad anónima ) organized under the laws of Spain, acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on  Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a  besloten vennootschap organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of May 12, 2010, as supplemented by Supplemental Indenture No. 1 thereto, dated as of September 17, 2012, and Supplemental Indenture No. 2 thereto, dated as of March 25, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017 (together, the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 3;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 3 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 3 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

 
ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 3.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01   Effect of This Supplemental Indenture No. 3. This Supplemental Indenture No. 3 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 3, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 3 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 3 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 3 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 3.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 3.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 3 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 3, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 3 to be duly executed as of the date first written above.
 
 	CEMEX España, S.A., acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	By:	 	/s/ Fernando Jose Reiter Landa	
 	 	 	Name:	 	Fernando Jose Reiter Landa	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX, S.A.B. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalezs	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 3 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 
 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 3 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 3 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 	THE BANK OF NEW YORK
MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 

 
[Signature page to Supplemental Indenture No. 3 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX, S.A.B. de C.V.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	

Exhibit 4.11.4
SUPPLEMENTAL INDENTURE NO. 4
 
SUPPLEMENTAL INDENTURE No. 4, dated as of April 1, 2014, among CEMEX España, S.A., a corporation ( sociedad anónima ) organized under the laws of Spain, acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on  Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of May 12, 2010, as supplemented by Supplemental Indenture No. 1 thereto, dated as of September 17, 2012, Supplemental Indenture No. 2 thereto, dated as of March 25, 2013 and Supplemental Indenture No. 3, dated as of June 6, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017 (together, the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 4;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 4 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 4 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01    Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 4.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01    Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.    Effect of This Supplemental Indenture No. 4. This Supplemental Indenture No. 4 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 4, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 4 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 4 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02    Governing Law.  This Supplemental Indenture No. 4 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03    Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 4.
 
Section 3.04    Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 4.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
            Section 3.05    The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 4 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 4, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.

 	CEMEX España, S.A., acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:  	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX, S.A.B. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 4 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Shipping B.V., as Note Guarantor	

 	By: 	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 4 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 4 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 4 (9.25% U.S. Dollar-Denominated Senior Secured Notes due 2020 and 8.875% Euro-Denominated Senior Secured Notes due 2017)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name:	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX, S.A.B. de C.V.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	CEMEX Egyptian Investments II B.V.	

 
Exhibit 4.12.4
 
SUPPLEMENTAL INDENTURE NO. 4
 
SUPPLEMENTAL INDENTURE No. 4, dated as of June 6, 2013, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a  besloten vennootschap  organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of January 11, 2011, as supplemented by Supplemental Indenture No. 1 thereto, dated as of July 11, 2011, Supplemental Indenture No. 2 thereto, dated as of September 17, 2012, and Supplemental Indenture No. 3 thereto, dated as of March 25, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.000% Senior Secured Notes due 2018 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 4;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 4 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 4 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 4.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS
 
Section 3.01   Effect of This Supplemental Indenture No. 4. This Supplemental Indenture No. 4 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 4, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 4 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 4 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 4 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 4.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 4.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 4 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 4, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
 
 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalezs	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 4 (9.000% Senior Secured Notes due 2018)]

 

 

 
 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 4 (9.000% Senior Secured Notes due 2018)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
[Signature page to Supplemental Indenture No. 4 (9.000% Senior Secured Notes due 2018)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 

[Signature page to Supplemental Indenture No. 4 (9.000% Senior Secured Notes due 2018)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX México, S.A. de C.V.	
 	2.	 	CEMEX España, S.A.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	

 

 
Exhibit 4.12.5
SUPPLEMENTAL INDENTURE NO. 5
 
SUPPLEMENTAL INDENTURE No. 5, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of January 11, 2011, as supplemented by Supplemental Indenture No. 1 thereto, dated as of July 11, 2011, Supplemental Indenture No. 2 thereto, dated as of September 17, 2012, Supplemental Indenture No. 3 thereto, dated as of March 25, 2013, and Supplemental Indenture No. 4 thereto, dated as of June 6, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.000% Senior Secured Notes due 2018 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 5;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 5 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 5 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 5.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 5. This Supplemental Indenture No. 5 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 5, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 5 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 5 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 5 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 5.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 5.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 5 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 5, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 5 to be duly executed as of the date first written above.

 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 5 (9.000% Senior Secured Notes due 2018)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 5 (9.000% Senior Secured Notes due 2018)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 5 (9.000% Senior Secured Notes due 2018)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name:	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

 
 
[Signature page to Supplemental Indenture No. 5 (9.000% Senior Secured Notes due 2018)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX México, S.A. de C.V.	
 	2.	 	CEMEX España, S.A.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	CEMEX Egyptian Investments II B.V.	

Exhibit 4.20
Execution Version

 

CEMEX, S.A.B. DE C.V.,
THE BANK OF NEW YORK MELLON
AS TRUSTEE
AND
THE BANK OF NEW YORK MELLON, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE
AS MEXICAN TRUSTEE
3.25% CONVERTIBLE SUBORDINATED NOTES DUE 2016

Indenture
Dated as of March 15, 2011

 

TABLE OF CONTENTS

 	 	 	  	Page	 	
ARTICLE I	 	DEFINITIONS	  	 	1	  	
 	 	 	
Section 1.01.	 	Definitions	  	 	1	  	
Section 1.02.	 	Other Definitions	  	 	11	  	
Section 1.03.	 	[Reserved]	  	 	12	  	
Section 1.04.	 	Rules of Construction	  	 	12	  	
 	 	 	
ARTICLE II	 	THE NOTES	  	 	13	  	
 	 	 	
Section 2.01.	 	Form and Dating	  	 	13	  	
Section 2.02.	 	Execution and Authentication	  	 	14	  	
Section 2.03.	 	The Trustee Registrar, Paying Agent and Conversion Agent	  	 	15	  	
Section 2.04.	 	Paying Agent to Hold Money in Trust	  	 	16	  	
Section 2.05.	 	Holder Lists	  	 	16	  	
Section 2.06.	 	Legends; Transfer Restrictions	  	 	16	  	
Section 2.07.	 	Transfer and Exchange	  	 	16	  	
Section 2.08.	 	Replacement Notes	  	 	21	  	
Section 2.09.	 	Outstanding Notes	  	 	22	  	
Section 2.10.	 	When Treasury Notes Disregarded	  	 	22	  	
Section 2.11.	 	Temporary Notes; Definitive Securities	  	 	23	  	
Section 2.12.	 	Cancellation	  	 	24	  	
Section 2.13.	 	[Reserved]	  	 	24	  	
Section 2.14.	 	CUSIP Number	  	 	24	  	
 	 	 	
ARTICLE III	 	REDEMPTION AND REPURCHASE OF NOTES	  	 	25	  	
 	 	 	
Section 3.01.	 	Redemption of Notes at the Option of the Issuer	  	 	25	  	
Section 3.02.	 	[Reserved]	  	 	27	  	
Section 3.03.	 	Repurchase Upon a Change of Control at the Option of the Holders	  	 	27	  	
Section 3.04.	 	General Provisions Applicable to Repurchases	  	 	27	  	
 	 	 	
ARTICLE IV	 	COVENANTS	  	 	29	  	
 	 	 	
Section 4.01.	 	Payment of Notes	  	 	29	  	
Section 4.02.	 	Reports	  	 	29	  	
Section 4.03.	 	Compliance Certificate	  	 	30	  	
Section 4.04.	 	Maintenance of Office or Agency	  	 	30	  	
Section 4.05.	 	[Reserved]	  	 	31	  	
Section 4.06.	 	Appointments to Fill Vacancies in Trustee’s Office	  	 	31	  	
Section 4.07.	 	Stay, Extension and Usury Laws	  	 	31	  	
Section 4.08.	 	[Reserved]	  	 	31	  	
Section 4.09.	 	Additional Interest	  	 	31	  	
Section 4.10.	 	Additional Interest Notice	  	 	32	  	
Section 4.11.	 	Further Instruments and Acts	  	 	33	  	
Section 4.12.	 	Payment of Additional Amounts	  	 	33	  	
Section 4.13.	 	Spanish Version, Notarization and Registration	  	 	35	  	
 
i

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
Section 4.14.	 	Registration with the Pubic Registry of Commerce	  	 	35	  	
Section 4.15.	 	Compliance with Mexican Law Provisions	  	 	35	  	
 	 	 	
ARTICLE V	 	SUCCESSORS	  	 	35	  	
 	 	 	
Section 5.01.	 	Merger, Consolidation and Sale of Assets	  	 	35	  	
Section 5.02.	 	Purchase Option on Fundamental Change	  	 	37	  	
 	 	 	
ARTICLE VI	 	DEFAULTS AND REMEDIES	  	 	37	  	
 	 	 	
Section 6.01.	 	Events of Default	  	 	37	  	
Section 6.02.	 	Acceleration	  	 	38	  	
Section 6.03.	 	Other Remedies	  	 	39	  	
Section 6.04.	 	Waiver of Past Defaults; Rescission of Acceleration	  	 	40	  	
Section 6.05.	 	Control by Majority	  	 	40	  	
Section 6.06.	 	Limitation on Suits	  	 	40	  	
Section 6.07.	 	Rights of Holders to Receive Payment	  	 	41	  	
Section 6.08.	 	Collection Suit by Trustee	  	 	41	  	
Section 6.09.	 	Trustee May File Proofs of Claim	  	 	41	  	
Section 6.10.	 	Priorities	  	 	41	  	
Section 6.11.	 	Undertaking for Costs	  	 	42	  	
 	 	 	
ARTICLE VII	 	THE TRUSTEE	  	 	42	  	
 	 	 	
Section 7.01.	 	Duties of the Trustee	  	 	42	  	
Section 7.02.	 	Rights of the Trustee	  	 	44	  	
Section 7.03.	 	Individual Rights of the Trustee	  	 	46	  	
Section 7.04.	 	Trustee’s Disclaimer	  	 	46	  	
Section 7.05.	 	Notice of Defaults	  	 	46	  	
Section 7.06.	 	Representation of the Mexican Trustee	  	 	46	  	
Section 7.07.	 	Compensation and Indemnity	  	 	46	  	
Section 7.08.	 	Replacement of the Trustee	  	 	47	  	
Section 7.09.	 	Successor Trustee by Merger, etc	  	 	48	  	
Section 7.10.	 	Eligibility, Disqualification	  	 	48	  	
 	 	 	
ARTICLE VIII	 	SATISFACTION AND DISCHARGE OF INDENTURE	  	 	49	  	
 	 	 	
Section 8.01.	 	Discharge of Indenture	  	 	49	  	
Section 8.02.	 	Deposited Monies to be Held in Trust by Trustee	  	 	49	  	
Section 8.03.	 	Paying Agent to Repay Monies Held	  	 	49	  	
Section 8.04.	 	Return of Unclaimed Monies	  	 	50	  	
Section 8.05.	 	Reinstatement	  	 	50	  	
 	 	 	
ARTICLE IX	 	AMENDMENTS	  	 	50	  	
 	 	 	
Section 9.01.	 	Without the Consent of Holders	  	 	50	  	
Section 9.02.	 	With the Consent of Holders	  	 	51	  	
Section 9.03.	 	[Reserved]	  	 	52	  	
Section 9.04.	 	Revocation and Effect of Consents	  	 	52	  	
 
ii

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
Section 9.05.	 	Notation on or Exchange of Notes	  	 	53	  	
Section 9.06.	 	Trustee Protected	  	 	53	  	
 	 	 	
ARTICLE X	 	GENERAL PROVISIONS	  	 	53	  	
 	 	 	
Section 10.01.	 	Issuer’s Representations	  	 	53	  	
Section 10.02.	 	Notices	  	 	54	  	
Section 10.03.	 	Certificate and Opinion as to Conditions Precedent	  	 	55	  	
Section 10.04.	 	Statements Required in Certificate or Opinion	  	 	55	  	
Section 10.05.	 	Rules by Trustee and Agents	  	 	56	  	
Section 10.06.	 	Business Days	  	 	56	  	
Section 10.07.	 	No Recourse Against Others	  	 	56	  	
Section 10.08.	 	Counterparts	  	 	56	  	
Section 10.09.	 	Other Provisions	  	 	57	  	
Section 10.10.	 	Governing Law	  	 	57	  	
Section 10.11.	 	No Adverse Interpretation of Other Agreements	  	 	59	  	
Section 10.12.	 	Successors	  	 	59	  	
Section 10.13.	 	Severability	  	 	59	  	
Section 10.14.	 	Table of Contents, Headings, etc	  	 	59	  	
Section 10.15.	 	Currency Indemnity	  	 	59	  	
Section 10.16.	 	Adjustments for Currency Exchange Rates	  	 	60	  	
Section 10.17.	 	Change in ADSs or CPOs	  	 	60	  	
Section 10.18.	 	USA PATRIOT ACT.	  	 	60	  	
 	 	 	
ARTICLE XI	 	SUBORDINATION	  	 	61	  	
 	 	 	
Section 11.01.	 	Notes Subordinated to Senior Indebtedness and Equal in Right of Payment to Unsecured Subordinated Indebtedness	  	 	61	  	
Section 11.02.	 	Notes Subordinated to Prior Payment of All Senior Indebtedness On Dissolution, Liquidation, Reorganization, etc., of the Issuer	  	 	61	  	
Section 11.03.	 	Holders to be Subrogated to Right of Holders of Senior Indebtedness	  	 	63	  	
Section 11.04.	 	Obligations of the Issuer Unconditional	  	 	63	  	
Section 11.05.	 	Issuer Not to Make Payment with Respect to Notes in Certain Circumstances	  	 	63	  	
Section 11.06.	 	Notice to Trustee	  	 	64	  	
Section 11.07.	 	Application by Trustee of Monies Deposited with It	  	 	65	  	
Section 11.08.	 	Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of Senior Indebtedness	  	 	65	  	
Section 11.09.	 	Trustee to Effectuate Subordination	  	 	66	  	
Section 11.10.	 	Right of Trustee to Hold Senior Indebtedness	  	 	66	  	
Section 11.11.	 	Article XI Not to Prevent Events of Default	  	 	66	  	
Section 11.12.	 	No Fiduciary Duty Created to Holders of Senior Indebtedness	  	 	66	  	
Section 11.13.	 	Article Applicable to Paying Agents	  	 	66	  	
 
iii

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
Section 11.14.	 	Certain Conversion Deemed Payment	  	 	66	  	
Section 11.15.	 	Contractual Subordination	  	 	67	  	
Section 11.16.	 	Acceleration of Notes	  	 	67	  	
 	 	 	
ARTICLE XII	 	CONVERSION	  	 	67	  	
 	 	 	
Section 12.01.	 	Right to Convert	  	 	67	  	
Section 12.02.	 	Exercise of Conversion Privilege; Issuance of ADSs on Conversion; No Adjustment for Interest or Dividends	  	 	67	  	
Section 12.03.	 	No Issuance of Fractional Shares	  	 	70	  	
Section 12.04.	 	Conversion Rate	  	 	70	  	
Section 12.05.	 	Conversion Rate Adjustments	  	 	70	  	
Section 12.06.	 	Effect of Reclassification, Consolidation, Merger, Combination, Sale, Lease or Transfer	  	 	78	  	
Section 12.07.	 	Taxes, Duties, Fees and Costs of Issuance of ADSs or CPOs	  	 	79	  	
Section 12.08.	 	Obligation to Cause Sufficient Ordinary Shares, CPOs and ADSs to be Issued for Purposes of Satisfying any Settlement of Conversions	  	 	79	  	
Section 12.09.	 	Responsibility of Trustee and the Conversion Agent	  	 	80	  	
Section 12.10.	 	[Reserved]	  	 	81	  	
Section 12.11.	 	Restriction on ADSs Issuable Upon Conversion	  	 	81	  	
Section 12.12.	 	Make Whole Premium Upon a Fundamental Change	  	 	82	  	
 	 	 	
EXHIBIT A:	 	FORM OF NOTE	  	 	A-1	  	
 	 	 	
EXHIBIT B:	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	  	 	B-1	  	
 	 	 	
EXHIBIT C:	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	  	 	C-1	  	
 	 	 	
EXHIBIT D:	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	  	 	D-1	  	
 	 	 	
EXHIBIT E:	 	FORM OF RESTRICTED ADS LEGEND	  	 	E-1	  	
 	 	 	
EXHIBIT F:	 	FORM OF TRANSFER CERTIFICATE FOR TRANSFER OF RESTRICTED ADSs	  	 	F-1	  	
 	 	 	
EXHIBIT G:	 	FINANCIAL STATEMENTS	  	 	G-1	  	
 	 	 	
EXHIBIT H:	 	SUMMARY OF TERMS OF THE OFFERING	  	 	H-1	  	
 
iv

THIS INDENTURE, dated as of March 15, 2011, is between CEMEX, S.A.B. de C.V. a publicly traded variable capital corporation ( sociedad anónima bursátil de capital variable ) organized under the laws of Mexico (the “ Issuer ”), The Bank of New York Mellon, as trustee (the “ Trustee ”) and, solely for compliance with certain Mexican law requirements set forth in Section 7.01(b) and Section 7.06, The Bank of New York Mellon, S.A., Institución de Banca Múltiple (the “ Mexican Trustee ”). The Issuer has duly authorized the creation of its 3.25% Convertible Subordinated Notes due 2016 (the “ Notes ”) and to provide therefor the Issuer, the Trustee and the Mexican Trustee have duly authorized the execution and delivery of this Indenture. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders from time to time of the Notes:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
“Additional Interest” means any interest payable pursuant to Section 4.09 or Section 6.02(b).
“ADR” means American Depositary Receipts representing ADS.
“ADS” means American Depositary Shares of the Issuer created pursuant to the Second Amended and Restated Deposit Agreement (A and B share CPOs), dated August 10, 1999, among CEMEX, S.A.B. de C.V., Citibank, N.A. and holders and beneficial owners of American Depositary Shares, as the same may be amended, modified or replaced.
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” have correlative meanings.
“Agent” means any Registrar, Paying Agent, Conversion Agent or co-registrar.
“Agent Member” means any member of, or participant in, the Depositary.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, or to the delegending of Global Securities or ADSs, the rules and procedures of the Depositary for such Global Security to the extent applicable to such transaction and as in effect from time to time.
“Available Treasury Shares” means, as of any time of determination, Ordinary Shares of the Issuer available in treasury, and for which the Issuer has obtained any regulatory or other approval (including satisfaction or waiver of preemptive rights), taken such corporate action and made such contractual arrangements necessary such that, at the time at which Notes could be

converted, the Issuer will be able to deliver such Ordinary Shares to timely satisfy its conversion obligations relating to the Notes, including by causing such Ordinary Shares to underlie any necessary CPOs,  provided  that Available Treasury Shares shall not include the number of Ordinary Shares available in treasury needed to satisfy any and all of the Issuer’s contingent or non-contingent obligations to deliver Ordinary Shares (other than in connection with a conversion of the Notes), including, without limitation, in connection with any employee compensation arrangements and the settlement of conversions of securities convertible into Ordinary Shares (including, without limitation, the mandatory convertible securities of the Issuer issued on December 10, 2009, the 4.875% Convertible Subordinated Notes due 2015 issued on March 30, 2010 and the 3.75% Convertible Subordinated Notes due 2018 issued on March 15, 2011). When “ Available Treasury Shares ” is referred to in comparison to the number of ADSs necessary to satisfy conversion obligations at a certain point in time, in order to facilitate such comparison, “ Available Treasury Shares ” shall be expressed as the number of ADSs that would represent the number of Available Treasury Shares held by the Issuer at such time (through the CPOs that are necessary to evidence such Ordinary Shares).
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree, order for relief or declaration in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law, or (ii) a decree or order (A) adjudging or declaring any Bankruptcy Party a bankrupt or insolvent, (B) approving as properly filed a petition seeking reorganization, arrangement, adjustment,  concurso mercantil, quiebra  or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up, liquidation, dissolution or quiebra  of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law ( including concurso mercantil  or  quiebra ) or of any other case or proceeding to be adjudicated of declared a bankrupt or insolvent, (ii) the consent by any Bankruptcy Party to the entry of a decree, declaration or order for relief in respect of such Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy, insolvency case, liquidation or dissolution action or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or management or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
 
2

“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors and the Mexican  Ley de Concursos Mercantiles , as amended.
“Bankruptcy Party” means the Issuer and any Significant Subsidiary of the Issuer or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Issuer.
“Beneficial Owner” will be determined in accordance with Rule 13d-3 under the Exchange Act as in effect on the date of the Indenture, and “Beneficially Own”, “Beneficially Owned” and “Beneficial Ownership” have meanings correlative to that of Beneficial Owner.
“Board of Directors” means, as to any Person, the board of directors, any duly authorized management committee or similar governing body of such Person, or any duly authorized committee thereof, having the requisite authority.
“Capital Stock” of any Person means any and all ordinary shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, but excluding any debt securities convertible into, or exchangeable for, such equity.
“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Certificados Bursátiles” means Mexican law governed debt securities issued by the Issuer and guaranteed ( por aval ) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned Subsidiaries of the Issuer, and placed in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores, S.A.B. de C.V.) .
“Change of Control” means acquisition of the Beneficial Ownership of twenty percent (20%) or more in voting power of the Issuer’s outstanding Voting Stock by any Person,  provided  that the acquisition of Beneficial Ownership of the Issuer’s Capital Stock by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a “ Change of Control .”
“Commission” means the United States Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Conversion Rate” means the initial conversion rate specified in the Form of Note attached hereto as Exhibit A  in paragraph 15 of such form, as adjusted in accordance with the provisions of Article XII.
 
3

“Corporate Trust Office” means the designated office of the Trustee at which, at any particular time, its duties under this Indenture shall be administered, which office at the date of original execution of this Indenture is located at 101 Barclay Street, 4E, New York, NY 10286, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
“CPO” means an ordinary participation certificate (certificado de participación ordinario) having Ordinary Shares as underlying securities.
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, assignee, conciliador, síndico, liquidator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Depositary” means, with respect to any Global Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Issuer to act as Depositary for such Global Securities (or any successor securities clearing agency so registered), which shall initially be DTC.
“Designated Senior Indebtedness” means (i) the Issuer’s obligations under the Financing Agreement and in respect of the indebtedness subject thereto and (ii) any other Senior Indebtedness which, on the date of a payment default or the delivery of a Payment Blockage Notice, has an aggregate amount outstanding of, or under which, on such date, the holders thereof are committed to lend up to, at least U.S.$50 million.
“Distribution Compliance Period” means, in respect of any Regulation S Global Security (or certificated Note issued in respect thereof pursuant to  Section 2.11(b)(i) , the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, a New York corporation.
“Dual Currency Notes” means the (i) EUR 730,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes, (ii) U.S.$350,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes, (iii) U.S.$750,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes and (iv) U.S.$900,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes, in each case, issued by New Sunward Holding Financial Ventures B.V., a wholly owned Subsidiary of the Issuer.
 
4

“Ex-Dividend Date” means the first date on which ADSs trade on the applicable exchange or in the applicable market, in a regular way, without the right attached to Ordinary Shares to receive the issuance or distribution in question.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statues thereto together with, in either case, the rules and regulations promulgated thereunder.
“Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain Subsidiaries of the Issuer, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“Fundamental Change” means:
 
 	(1)	a Change of Control;	
 
 	(2)	the Beneficial Ownership of fifty percent (50%) or more in voting power of the Issuer’s outstanding Voting Stock is acquired by any Person;	
 
 	(3)	the consummation of any binding share exchange, exchange offer, tender offer, consolidation or merger of the Issuer pursuant to which all or substantially all of the Issuer’s shares of Capital Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of the consolidated assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than one or more of the Issuer’s Subsidiaries (any such exchange, offer, consolidation, merger, transaction or series of transactions being referred to in this clause (3) as an “Event”); provided, however, that any such Event where the holders of more than 50% of the Issuer’s Capital Stock immediately prior to such Event, own, directly or indirectly, more than 50% of all classes of Capital Stock of the continuing or surviving Person or transferee or the parent thereof immediately after such Event shall not be a “Fundamental Change”;	
 
 	(4)	during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Board of Directors of the Issuer, together with any new directors whose election to the Board of Directors of the Issuer, or whose nomination for election by the Issuer’s stockholders, was approved by a vote of a majority of the Issuer’s stockholders, cease for any reason to constitute a majority of the Board of Directors of the Issuer then in office;	
 
 	(5)	the Issuer’s stockholders approve any plan or proposal for the Issuer’s liquidation or dissolution (other than any liquidation or dissolution that is part of a merger event and excluded from the definition of “Fundamental Change” by reason of the proviso in clause (3) above); or	
 
 	(6)	the ADSs cease to be listed for trading on a U.S. national securities exchange.	
 
5

If any transaction in which Ordinary Shares, CPOs or ADSs are replaced by the securities of another entity occurs, following the effective date of such transaction, references to the Issuer in this definition of “Fundamental Change” (and, for the avoidance of doubt, the Issuer’s Ordinary Shares, CPOs and ADSs) will apply to such other entity (and securities issued by it) instead.
“GAAP” means Mexican Financial Reporting Standards (normas de informacíon financiera) issued by the  Consejo Mexicano para la Investigación y Desarrollo de Normas de Informacíon Financiera, A.C.,  as in effect on December 31, 2010. At any time after the Issue Date, the Issuer may elect to apply IFRS in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election; provided that any such election, once made, shall be irrevocable. The Issuer shall give notice of any such election to the Trustee.
“Global Security” means Notes represented by a certificate in definitive, fully registered form of securities without interest coupons in global form that is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee.
“Global Securities Legend” means the legend labeled as such and that is set forth in Exhibit A hereto, which is incorporated in and expressly made part of this Indenture.
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Register.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent (including obligations  por aval ), in respect of: (i) borrowed money; (ii) bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (iii) banker’s acceptances; (iv) Capitalized Lease Obligations; (v) the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (vi) Hedging Obligations, if and to the extent any of such indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “ Indebtedness ” includes all indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such indebtedness is assumed by the specified Person) measured as the lesser of the fair market value of the assets of such Person so secured or the amount of such indebtedness and, to the extent not otherwise included, the guarantee by such Person of any indebtedness of any other Person.
“Indenture” means this Indenture as amended or supplemented from time to time.
 
6

“Interest” means (except as otherwise specifically provided in this Indenture) any accrued and unpaid interest in respect of the Notes, including Additional Interest and Additional Amounts, if any.
“Interest Payment Date” means March 15 and September 15 of each year, commencing September 15, 2011.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Issue Date” means March 15, 2011.
“Issuer” means the party named as such in the Preamble until a successor replaces it in accordance with Article V and thereafter means the successor.
“Issuer Order” means a written order of the Issuer signed by an Officer of the Issuer.
“Last Reported Sale Price” of ADSs on any Trading Day means the closing sale price per ADS (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) of the ADSs on that Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the ADSs are traded. If the ADSs are not listed for trading on a U.S. national or regional securities exchange on the relevant Trading Day, the “ Last Reported Sale Price ” will be the last quoted bid price per ADS in the over-the-counter market on the relevant Trading Day as reported by Pink OTC Markets, Inc. or a similar organization selected by the Issuer. If the ADSs are not so quoted, the “ Last Reported Sale Price ” will be the average of the mid-point of the last bid and ask prices per ADS on the relevant date from each of at least three nationally recognized independent investment banking firms the Issuer selects for this purpose. When used in relation to an Ordinary Share, “ Last Reported Sale Price ” means, with respect to any day, the per share price of an Ordinary Share obtained by dividing (i) the quotient of the Last Reported Sale Price of an ADS for that day, divided by the number of CPOs represented by an ADS at the time of determination by (ii) the number of Ordinary Shares underlying a CPO at the time of determination; provided  that if the Ordinary Shares no longer constitute securities underlying CPOs at the time of determination, references in this definition (other than in this proviso) to CPOs will be deemed to have been replaced by a reference to ADSs.
“LGTOC” means the Mexican General Law of Negotiable Instruments and Credit Transactions (Ley General de Títulos y Operaciones de Crédito ).
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security or similar trust, security interest or encumbrance of any kind in respect of such asset. The Issuer shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor).
 
7

“Market Disruption Event” means (i) a failure by the primary exchange or quotation system on which the ADSs trade or are quoted to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. New York City time, on any Trading Day, of an aggregate one half hour period of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the ADSs or in any options, contracts or future contracts relating to ADSs.
“Maturity Date” means March 15, 2016.
“Offering Memorandum” means the final offering memorandum related to the Notes, dated March 9, 2011.
“Officer” means the President, the Chief Executive Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Chief Financial Officer, the Treasurer, any member of the Board of Directors, any attorney-in-fact acting under a duly granted power-of-attorney providing authority or the Secretary of the Issuer.
“Officer’s Certificate” means a certificate signed by one Officer and delivered to the Trustee.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. Counsel may be an employee of or counsel to the Issuer.
“Ordinary Shares” means series A common stock or series B common stock of the Issuer, or any other shares of Capital Stock of the Issuer that are issued in exchange for, or otherwise replace, any of the foregoing, including any Reference Property. References to the Issuer in this definition shall also include any successor or purchasing corporation, or its direct or indirect parent entity, the common stock of which constitutes Reference Property, subject to compliance with  Section 12.06 .
“Perpetual Notes” means, collectively, the four series of perpetual debentures issued by special purpose vehicles and relating to the Dual Currency Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Pesos” or “Ps.” means the lawful currency of Mexico.
“Public Registry of Commerce” means the Public Registry of Property and Commerce (Registro Público de la Propiedad y del Comercio ) of Monterrey, Nuevo León, México.
“Record Date” means the March 1 and September 1 immediately preceding each Interest Payment Date.
 
8

“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Security” has the meaning assigned to it in Section 2.01(a)(iv).
“Regulation S Note” has the meaning assigned to it in Section 2.01(a)(iv).
“Representative” means (a) the indenture trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with respect to any Senior Indebtedness that does not have any such trustee, agent or other representative, (i) in the case of such Senior Indebtedness issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting with the consent of the required Persons necessary to bind such holders or owners of such Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness, the holder or owner of such Senior Indebtedness.
“Resale Restriction Delegending Date” means (a) for any Restricted Note that is not a Regulation S Global Security, the date that is one year from the Issue Date of the Notes or (b) for a Regulation S Global Security, the date on which the Distribution Compliance Period therefor terminates.
“Restricted ADS Legend” means the legend substantially in the form as set forth in Exhibit E hereto, which is incorporated in and expressly made a part of this Indenture.
“Restricted Note” means any Note until such time as (i) such Note has been transferred pursuant to an effective shelf registration statement or (ii) the Restricted Securities Legend therefor has been removed pursuant to Section 2.07(c)  or  (d) .
“Restricted Securities Legend” means the applicable legend labeled as such for either a Rule 144A Note or a Regulation S Note and that is set forth in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture.
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Security” has the meaning assigned to it in Section 2.01(a)(iii).
“Rule 144A Note” has the meaning assigned to it in Section 2.01(a)(iii).
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute or statues thereto together with, in either case, the rules and regulations promulgated thereunder.
“Senior Indebtedness” means (a) the Issuer’s guarantee of the 9.5% Senior Secured Notes due 2016 issued by CEMEX Finance LLC, (b) the Issuer’s guarantee of the 9.625% Senior Secured Notes due 2017 issued by CEMEX Finance LLC, (c) the Issuer’s obligations under the Financing Agreement and in respect of the indebtedness subject thereto, (d) the Issuer’s guarantee of the Dual Currency Notes in respect of the Perpetual Notes, (e) the Issuer’s guarantee of the 9.25% Dollar-denominated Notes due 2020 issued by CEMEX España, acting
 
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through its Luxembourg branch, (f) the Issuer’s guarantee of the 8.875% Euro-denominated Notes due May 2020 issued by CEMEX España, acting through its Luxembourg branch, (g) the Issuer’s 9.000% Senior Secured Notes due 2018, (h) the Issuer’s obligations in respect of the  Certificados Bursátiles , (i) obligations of the Issuer given preference in respect of the Notes by statute and (j) all other Indebtedness of the Issuer except for:
 
 	(1)	Indebtedness that states, or is issued under a deed, indenture or other instrument that states, that it is subordinated to or ranks equally with the Notes; and	
 
 	(2)	Indebtedness between or among the Issuer and any of its Subsidiaries.	
“Significant Subsidiary” means any Subsidiary of the Issuer that at the date of determination is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (x) such Person, (y) such Person and one or more of its other Subsidiaries or (z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “ Subsidiary ” shall refer to a Subsidiary of the Issuer.
“Trading Day” means, with respect to ADSs, a day during which trading in the Issuer’s ADSs generally occurs on the primary exchange or quotation system on which the Issuer’s ADSs then trade or are quoted and there is no Market Disruption Event.
“Transportation Agreement” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trustee” means the party named as such in the Preamble and any successor that replaces it in accordance with the applicable provisions of this Indenture, including any attorney-in-fact for the Trustee pursuant to a valid power of attorney issued by the Trustee to such attorney-in-fact.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“U.S.” means the United States of America.
 
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“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged. In order to have money available on a payment date to pay principal or Interest on the Notes, the U.S. Government Obligations shall be payable as to principal or Interest on or before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the Issuer’s option.
“U.S. Legal Tender” or “U.S.$” means such coin or currency of the United States of America, as at the time of payment shall be legal tender for the payment of public and private debts.
“Voting Stock” with respect to any Person, means securities of any class of capital stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person.
SECTION 1.02. Other Definitions.

 	  	Defined in Section	
“Additional ADSs”	  	Section 12.12(a)	
“Additional Amounts”	  	Section 4.12(b)	
“ADS Price”	  	Section 12.12(a)	
“Authorized Agent”	  	Section 10.10(c)	
“Banamex”	  	Section 12.02	
“Business Day”	  	Section 10.06	
“Change of Control Purchase Date”	  	Section 12.12(b)	
“Change of Control Offer”	  	Section 3.03(a)	
“Change of Control Payment”	  	Section 3.03(a)	
“Conversion Agent”	  	Section 2.03	
“Conversion Date”	  	Section 12.02	
“Definitive Security”	  	Section 2.07(b)(i)	
“Dividend Record Date”	  	Section 12.05(a)(i)	
“Effective Date”	  	Section 12.12(a)	
“Event of Default”	  	Section 6.01	
“Expiration Date”	  	Section 12.05(a)(v)	
“Expiration Time”	  	Section 12.05(a)(v)	
“Financial Statements”	  	Section 10.01(b)	
“Fundamental Change Notice”	  	Section 12.12(b)	
“Junior Securities”	  	Section 11.14	
“Make Whole Fundamental Change Premium”	  	Section 12.12(a)	
“Mexican Trustee”	  	Preamble	
“Net Total Assets”	  	Section 10.01(c)	
“Notes”	  	Preamble	
“Paying Agent”	  	Section 2.03	
“Payment Blockage Notice”	  	Section 11.05(b)	
“Payment Blockage Period”	  	Section 11.05(b)	
 
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“Payment Default”	  	Section 11.05(a)	
“Payment of the Notes”	  	Section 11.05(a)	
“Permitted Merger Jurisdictions”	  	Section 5.01(a)(ii)(A)	
“Reference Property”	  	Section 12.06	
“Register”	  	Section 2.03	
“Registrar”	  	Section 2.03	
“Rights Distribution Record Date”	  	Section 12.05(a)(ii)	
“Settlement”	  	Section 12.02	
“Spin-Off”	  	Section 12.05(a)(iii)	
“Successor Issuer”	  	Section 5.01(a)(ii)	
“Tax Redemption”	  	Section 3.01(a)	
“Tax Redemption Date”	  	Section 3.01(e)	
“Tax Redemption Notice”	  	Section 3.01(e)	
“Tax Redemption Price”	  	Section 3.01(a)	
“Taxes”	  	Section 4.12(a)	
“Taxing Jurisdiction”	  	Section 3.01(a)	
“USA Patriot Act”	  	Section 10.18	
“Valuation Period”	  	Section 12.05(a)(iii)	
SECTION 1.03. [Reserved].
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii) “or” is not exclusive;
(iv) words in the singular include the plural, and in the plural include the singular;
(v) the male, female and neuter genders include one another;
(vi) the word “including” wherever used will be deemed to be followed by the word “without limitation”;
(vii) references to agreements and other instruments include subsequent amendments thereto; and
(viii) the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
 
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ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating.
(a) Form and Dating.
(i) The Notes shall be issued in the form of one or more definitive, fully registered form of securities without interest coupons, with their English and Spanish text side-by-side,  provided ,  however , that in case of any inconsistency or question as to the proper interpretation or construction of the Notes between the text in English and the text in Spanish, the English text shall control in all cases. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The terms and provisions of the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
(ii) Except as otherwise expressly permitted in this Indenture, all Notes shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class.
(iii) Notes originally offered and sold to qualified institutional buyers in reliance on Rule 144A under the Securities Act (each a “ Rule 144A Note ”) will be issued in the form of one or more permanent Global Securities (each, a “ Rule 144A Global Security ”).
(iv) Notes originally offered and sold to persons other than “U.S. persons” (as defined in Regulation S) in offshore transactions in reliance on Regulation S under the Securities Act (each a “ Regulation S Note ”) will be issued in the form of one or more permanent Global Securities (each, a “ Regulation S Global Security ”).
(v) Each Global Security described in clause (iii) or (iv) shall be issued with the Restricted Securities Legend and the Global Securities Legend.
(vi) Any Global Security shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or a nominee of the Depositary for the accounts of participants in the Depositary, duly executed by the Issuer and the Mexican Trustee and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of any Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided. Any Global Security may be represented by more than one certificate.
 
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(vii) The Notes may have notations, legends or endorsements as specified in this Indenture or as otherwise required by law, stock exchange rule or Depositary rule or usage. The Issuer shall approve the form of the Notes and any notation, legend or endorsement on them.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to a Global Security deposited with or on behalf of the Depositary.
The Issuer and the Mexican Trustee shall execute and the Trustee shall, in accordance with this Section 2.01(b) and upon Issuer Order, authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary or a nominee of the Depositary (which, in the case of DTC, shall initially be Cede & Co.), (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as custodian for the Depositary pursuant to (in the case of DTC) a FAST Balance Certificate Agreement between the Depositary and the Trustee, and (iii) shall bear appropriate legends as set forth herein.
Except as provided in Section 2.11(b)(iv), Agent Members shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Security, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.07 and Section 2.11, owners of beneficial interests in Global Securities will not be entitled to receive physical delivery of certificated Notes in definitive form.
SECTION 2.02. Execution and Authentication. Two Officers (who shall be members of the Board of Directors) shall sign the Notes for the Issuer by manual or facsimile signature.
(a) If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.
(b) A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
(c) The Trustee shall authenticate and make available for delivery Notes for original issue in the aggregate principal amount of up to U.S.$977,500,000 upon receipt of an Issuer Order, which shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated.
 
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(d) The Notes shall be issuable only in registered form without coupons and only in denominations of U.S.$100,000 and multiples of U.S.$1,000 in excess thereof.
(e) The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same right as an Agent to deal with the Issuer or an Affiliate of the Issuer.
(f) If any successor that has replaced the Issuer in accordance with Article V has executed an indenture supplemental hereto with the Trustee pursuant to Article V, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of such successor, be exchanged for other Notes executed in the name of such successor with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of such successor, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of such successor pursuant to this  Section 2.02(f)  in exchange or substitution for or upon registration of transfer of any Notes, such successor, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes then outstanding for Notes authenticated and delivered in such new name.
(g) The Notes shall also be signed by a duly authorized attorney-in-fact of the Mexican Trustee by manual or facsimile signature.
SECTION 2.03. The Trustee Registrar, Paying Agent and Conversion Agent. The Issuer shall maintain or cause to be maintained in such locations as it shall determine, which may be the Corporate Trust Office, an office or agency: (i) where securities may be presented for registration of transfer or for exchange (“ Registrar ”); (ii) where Notes may be presented for payment (“ Paying Agent ”); (iii) an office or agency where Notes may be presented for conversion (the “ Conversion Agent ”); and (iv) where notices and demands to or upon the Issuer in respect of Notes and this Indenture may be served by the Holders. The Registrar shall keep a Register (“ Register ”) of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term “Paying Agent” includes any additional paying agent and the term “Conversion Agent” includes any additional conversion agent. The Issuer may change any Paying Agent, Registrar, Conversion Agent or co-registrar without prior notice. The Issuer shall notify the Trustee of the name and address of any Agent not a party to this Indenture and shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this Indenture. Such agency agreement shall implement the provisions of this Indenture that relate to such Agent. The Issuer or any of its Subsidiaries may act as Paying Agent, Registrar, Conversion Agent or co-registrar, except that for purposes of Article VIII and  Section 3.03 , neither the Issuer nor any of its Subsidiaries shall act as Paying Agent. If the Issuer fails to appoint or maintain another entity as Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such, and the Trustee shall initially act as such. The Issuer designates the Borough of Manhattan, New York City, office or agency of the Trustee as one such office or agency of the Issuer required by this  Section 2.03 , until such time as another
 
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office or agency located in the Borough of Manhattan is designated as such, and appoints the Trustee as Registrar, Paying Agent, Conversion Agent and agent for service of demands and notices in connection with the Notes and this Indenture until such time as another Person is appointed as such.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Issuer shall require each Paying Agent (other than the Trustee, who hereby so agrees) to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal or Interest on the Notes, and will notify the Trustee of any default by the Issuer in respect of making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders of all money held by it as Paying Agent. Upon any proceeding under any Bankruptcy Law with respect to the Issuer or any of its Affiliates, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven Business Days before each Interest Payment Date, and as the Trustee may request in writing within fifteen (15) days after receipt by the Issuer of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.
SECTION 2.06. Legends; Transfer Restrictions. (a) Each Global Security shall bear the Global Securities Legend.
(b) Each Restricted Note shall bear the applicable Restricted Securities Legend. Each Note that bears or is required to bear a Restricted Securities Legend shall be subject to the restrictions on transfer set forth therein, and each Holder of such Note, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.
(c) As used in this Section 2.06 and in Section 2.07, the term “transfer” includes any sale, pledge, transfer or other disposition whatsoever of any Restricted Note. The Registrar shall not register any transfer of a Restricted Note not made in accordance with the restrictions on transfer set forth in this  Section 2.06  and in  Section 2.07 .
(d) Every ADR certificate representing an ADS issued in the circumstances described in Section 12.11 hereof shall bear the applicable Restricted ADS Legend unless removed in accordance with the provisions of  Section 12.11 .
SECTION 2.07. Transfer and Exchange. (a) When Notes are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal
 
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principal amount of Notes for other denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions specified herein and the related certificate are met. To permit registrations of transfers and exchanges, the Issuer shall issue and the Trustee shall authenticate Notes at the Registrar’s request, bearing certificate numbers not contemporaneously outstanding. No service charge shall be imposed on a Holder for any registration of transfer or exchange of Notes (except as otherwise expressly permitted herein), but the Issuer and the Registrar may require payment of a sum sufficient to cover any transfer Tax or other governmental charge payable upon exchanges pursuant to  Section 2.11 , Section 9.05  or  Section 12.02 .
The Issuer or the Registrar shall not be required to register the transfer of any Notes surrendered for repurchase pursuant to Section 3.03 .
All Notes issued upon any transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with this  Section 2.07 ,  Section 2.11  and the Applicable Procedures.
Except for transfers or exchanges made in accordance with paragraphs (i) through (iii) of this Section 2.07(b) and Section 2.11 , transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(i) Global Security to Definitive Security. If an owner of a beneficial interest in a Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary wishes at any time to transfer its interest in such Global Security to a Person who is required to take delivery thereof in the form of a definitive registered note (such Note, a “ Definitive Security ”), such owner may, subject to the restrictions on transfer set forth herein and such Global Security and the Applicable Procedures, cause the exchange of such interest for one or more Definitive Securities of any authorized denomination or denominations and of the same aggregate principal amount. Upon receipt by the Registrar of (1) instructions from the Depositary and/or its participants directing the Trustee to authenticate and deliver one or more Definitive Securities of the same aggregate principal amount as the beneficial interest in the Global Security to be exchanged (such instructions to contain the name or names of the designated transferee or transferees, the authorized denomination or denominations of the Definitive Securities to be so issued and appropriate delivery instructions), and (2) in the case of a Restricted Note, such certifications or other information and, except in the case of transfers pursuant to Rule 144 under the Securities Act, legal opinions as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar will instruct the Depositary to reduce or cause to be reduced such Global
 
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Security by the aggregate principal amount of the beneficial interest therein to be exchanged and to debit or cause to be debited from the account of the Person making such transfer the beneficial interest in the Global Security that is being transferred, and concurrently with such reduction and debit the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities of the same aggregate principal amount in accordance with the instructions referred to above.
(ii) Definitive Security to Definitive Security. If a Holder of a Definitive Security wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who is required to take delivery thereof in the form of a Definitive Security, such Holder may, subject to the restrictions on transfer set forth herein and in such Definitive Security, cause the transfer of such Definitive Security (or any portion thereof in a principal amount equal to an authorized denomination) to such transferee. Upon receipt by the Registrar of (1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder directing the Trustee to authenticate and deliver one or more Definitive Securities of the same aggregate principal amount as the Definitive Security, or portion thereof, to be transferred (such instructions to contain the name or names of the designated transferee or transferees, the authorized denomination or denominations of the Definitive Securities to be so issued and appropriate delivery instructions), and (3) in the case of a Restricted Note, such certifications or other information and, except in the case of transfers to Persons pursuant to Rule 144 under the Securities Act, legal opinions as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar, shall cancel or cause to be canceled such Definitive Security and concurrently therewith, the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities in the appropriate aggregate principal amount, in accordance with the instructions referred to above and, if only a portion of a Definitive Security is transferred as aforesaid, concurrently therewith the Issuer shall execute and the Trustee shall authenticate and deliver to the transferor a Definitive Security in a principal amount equal to the principal amount which has not been transferred. A Holder of a Definitive Security may at any time exchange such Definitive Security for one or more Definitive Securities of other authorized denominations and in the same aggregate principal amount and registered in the same name by delivering such Definitive Security, duly endorsed as provided herein, to the Trustee together with instructions directing the Trustee to authenticate and deliver one or more Definitive Securities in the same aggregate principal amount and registered in the same name as the Definitive Security to be exchanged, and the Registrar thereupon shall cancel or caused to be canceled such Definitive Security and concurrently therewith the Issuer shall execute and Trustee shall authenticate and deliver, one or more Definitive Securities in the same aggregate principal amount and registered in the same name as the Definitive Security being exchanged.
(iii) Definitive Security to Global Security. If a Holder of a Definitive Security wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who is not required to take delivery thereof in the form of a Definitive Security, such Holder shall, subject to the restrictions on transfer set forth herein and in such Definitive Security and the rules of the Depositary cause the exchange of such Definitive Security
 
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for a beneficial interest in the Global Security. Upon receipt by the Registrar of (1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder directing the Trustee to increase the aggregate principal amount of the Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary by the same aggregate principal amount as the Definitive Security to be exchanged, such instructions to contain the name or names of a member of, or participant in, the Depositary that is designated as the transferee, the account of such member or participant and other appropriate delivery instructions, (3) the assignment form on the back of the Definitive Security completed in full, and (4) in the case of a Restricted Note, such certifications or other information and legal opinions as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Trustee shall cancel or cause to be canceled such Definitive Security and concurrently therewith shall increase the aggregate principal amount of the Global Security by the same aggregate principal amount as the Definitive Security canceled.
All Definitive Securities shall be issued in minimum principal amounts of U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof.
(c) So long as and to the extent that the Notes are represented by one or more Rule 144A Global Securities or Regulation S Global Securities, as applicable, held by or on behalf of the Depositary only, the Issuer may accomplish any delegending of such Notes represented by such Rule 144A Global Securities or Regulation S Global Securities, as applicable, at any time on or after the applicable Resale Restriction Delegending Date, to the extent such Notes are freely tradable without restrictions under applicable securities laws, by:
(i) providing written notice to the Trustee that the applicable Resale Restriction Delegending Date has occurred and instructing the Trustee to remove the Restricted Securities Legend from the Rule 144A Global Securities or from Regulation S Global Securities, as applicable;
(ii) providing written notice to Holders of the Rule 144A Global Securities or Regulation S Global Securities, as applicable, that the Restricted Securities Legend has been removed or deemed removed;
(iii) providing written notice to the Trustee and the Depositary to change the CUSIP number for the Rule 144A Global Securities or Regulation S Global Securities, as applicable, to the applicable unrestricted CUSIP number; and
(iv) complying with any Applicable Procedures for delegending;
whereupon the Restricted Securities Legend shall be deemed removed from any Rule 144A Global Securities or Regulation S Global Securities, as applicable, without further action on the part of Holders.
(d) Transfers of Notes and Restricted Notes.
 
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(i) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Security) not bearing (or not required to bear upon such transfer, exchange or replacement) a Restricted Securities Legend, the Registrar shall exchange such Notes (or beneficial interests) for Notes (or beneficial interests in a Global Security) not bearing a Restricted Securities Legend.
(ii) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Security) bearing a Restricted Securities Legend at any time prior to the time the Issuer has provided notice of the occurrence of the Resale Restriction Delegending Date, the Registrar shall deliver only Notes (or beneficial interests in a Global Security) bearing a Restricted Securities Legend unless (i) such Notes (or beneficial interests) are transferred pursuant to an effective shelf registration statement; (ii) such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form contained in Exhibit B hereto and an Opinion of Counsel reasonably satisfactory to the Registrar; (iii) in the case of Rule 144A Notes, such Notes (or beneficial interests) are transferred to a non-U.S. person (as defined in Regulation S) pursuant to Regulation S upon delivery to the Registrar of a certificate of the transferor in the form contained in  Exhibit C  hereto and, in each case, an Opinion of Counsel reasonably satisfactory to the Registrar; (iv) in the case of Regulation S Notes, such Notes (or beneficial interests) are transferred pursuant to Rule 144A upon delivery to the Registrar of a certificate of the transferor in the form contained in  Exhibit D  hereto; (v) such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Delegending Date and are freely tradable without restriction under applicable securities laws; or (vi) in connection with such transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably required by and satisfactory to it to the effect that neither such Restricted Securities Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. The Issuer shall deliver to the Trustee an Officer’s Certificate promptly upon effectiveness, withdrawal or suspension of any shelf registration statement that is or has previously been declared effective with respect to the Notes.
(e) Any transfer of Restricted Notes not described above (other than a transfer of a beneficial interest in a Global Security that does not involve an exchange of such interest for a Definitive Security or a beneficial interest in another Global Security, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act, or as otherwise set forth in this Indenture.
(f) Any Note or ADS issued upon the conversion or exchange of a Note that, prior to the date upon which the Issuer instructs the Trustee to remove the Restricted Securities Legend pursuant to  Section 2.07(c)  above, is purchased or owned by the Issuer or any Affiliate thereof, may not be resold by the Issuer, and the Issuer may not permit any such Affiliate to resell it, unless (x) bearing a CUSIP that is different from the CUSIP for the Notes or ADSs issued prior to such date and not acquired by the Issuer or any Affiliate thereof prior to such date or (y)
 
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registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or ADS, as the case may be, no longer being “restricted securities” (as defined under Rule 144). For the avoidance of doubt, this  Section 2.07(f)  shall not be applicable to resales to which Section 4.09(b)  applies.
(g) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the Applicable Procedures. The Trustee may conclusively rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members and any beneficial owners.
(h) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Notes (including any transfers between or among Agent Members or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation as is expressly required by, and to do so if and when expressly required by, the terms of this Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof. The Trustee shall have no obligations or duties to the holders of any ADSs issued pursuant to Article XII hereof.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Security, Agent Members or any other Persons with respect to the accuracy of the records of DTC or its nominee or of Agent Members, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners.
SECTION 2.08. Replacement Notes. If the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue (after the execution by two Officers, who shall also be members of the Board of Directors), the Mexican Trustee shall sign and the Trustee shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee, the Mexican Trustee or the Issuer as a condition of receiving a replacement Note, such Holder shall provide a certificate of loss and an indemnity and/or an indemnity bond sufficient, in the judgment of the Issuer, the Mexican Trustee and the Trustee, to fully protect the Issuer, the Mexican Trustee, the Trustee, any Agent and any authenticating agent from any loss, liability, cost or expense which any of them may suffer or incur if the Note is replaced. The Issuer, the Mexican Trustee and the Trustee may charge the relevant Holder for their expenses in replacing any Note.
 
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The Trustee or any authenticating agent may authenticate any such substituted Note, and deliver the same upon the receipt of such security or indemnity as the Trustee, the Mexican Trustee, the Issuer and, if applicable, such authenticating agent may require. Upon the issuance of any substituted Note, the Issuer and the Trustee may require the payment of a sum sufficient to cover any Tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note which has matured or is about to mature, or has been submitted for repurchase pursuant to  Section 3.03  or is about to be converted into ADSs pursuant to Article XII, shall become mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Issuer, to the Mexican Trustee, to the Trustee and, if applicable, to the authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such action, and, in case of destruction, loss or theft, evidence satisfactory to the Issuer, the Mexican Trustee, the Trustee and, if applicable, any Paying Agent or Conversion Agent of the destruction, loss or theft of such Note and of the ownership thereof.
Every replacement Note is an additional obligation of the Issuer and shall be entitled to all the benefits provided under this Indenture equally and proportionately with all other Notes duly issued, authenticated and delivered hereunder.
SECTION 2.09. Outstanding Notes. The Notes outstanding at any time are all the Notes properly authenticated by the Trustee except for those canceled by the Trustee, those delivered to it for cancellation, and those described in this  Section 2.09  as not outstanding.
If a Note is replaced pursuant to Section 2.08, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If Notes are considered paid under Section 4.01, converted under Article XII or redeemed or repurchased pursuant to Section 3.01  or  Section 3.03 , they shall cease to be outstanding and Interest on them shall cease to accrue, except as may be otherwise set forth herein.
Subject to Section 2.10 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
SECTION 2.10. When Treasury Notes Disregarded. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or an Affiliate of the Issuer shall be considered as though they are not outstanding except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Prior to any such determination, the Issuer shall be obliged to advise the Trustee of any Notes owned by the Issuer or an Affiliate of the Issuer.
 
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SECTION 2.11. Temporary Notes; Definitive Securities. (a) Until Definitive Securities are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes, which shall also be signed by the Mexican Trustee. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes and shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare, the Mexican Trustee shall sign and the Trustee shall authenticate Definitive Securities in exchange for temporary Notes.
(b) Definitive Securities.
(i) Except for transfers made in accordance with Section 2.07(b), a Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary pursuant to  Section 2.01  shall be transferred to the beneficial owners thereof in the form of Definitive Securities only if such transfer complies with  Section 2.07  and (x) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor Depositary is not appointed by the Issuer within 90 days of such notice, (y) an Event of Default has occurred and is continuing, or (z) the Issuer, in its sole discretion, determines that the Global Security will be exchangeable for Definitive Securities in registered form and notifies the Trustee of its decision.
(ii) In connection with the exchange of an entire Global Security for Definitive Securities pursuant to clause (x) of Section 2.11(b)(i) , such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer (by means of the execution by two Officers, who shall also be members of the Board of Directors) and the Mexican Trustee shall execute, and upon Issuer Order the Trustee shall authenticate and deliver to each Person identified by DTC and/or its participants in exchange for its interest in such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations, and the Registrar shall register such exchanges in the Register.
(iii) In connection with the exchange of an entire Global Security for Definitive Securities pursuant to clause (y) of Section 2.11(b)(i) , if an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members on behalf of the owner of a beneficial interest in a Global Security directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Security for Definitive Securities, subject to and in accordance with the Applicable Procedures, the Issuer (by means of the execution by two Officers, who shall also be members of the Board of Directors) and the Mexican Trustee shall promptly execute, and upon Issuer Order the Trustee shall authenticate and make available for delivery to such beneficial owner, Definitive Securities in a principal amount equal to such beneficial interest in such Global Security.
(iv) If (A) an event described in clause (x) of Section 2.11(b)(i) occurs and Definitive Securities are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner instructions to obtain Definitive Securities due to an
 
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event described in clause (y) of Section 2.11(b)(i) and Definitive Securities are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.06  hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Security that represents such beneficial owner’s Notes as if such Definitive Securities had been issued.
(c) Any Global Security or interest therein that is transferable to the beneficial owners thereof in the form of Definitive Securities shall, if held by the Depositary, be surrendered by the Depositary to the Trustee, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Notes of authorized denominations in the form of certificated Notes in definitive form. Any portion of a Global Security transferred pursuant to this  Section 2.11(c)  shall be executed, authenticated and delivered only in denominations of U.S.$100,000 and multiples of U.S.$1,000 in excess thereof and registered in such names as the Depositary and/or its participants shall direct.
(d) Prior to any transfer pursuant to Section 2.11(b), the registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(e) The Issuer will make available to the Trustee a reasonable supply of certificated Notes in definitive form without interest coupons.
SECTION 2.12. Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else may cancel Notes surrendered for registration of transfer, exchange, payment, replacement,
conversion, redemption, repurchase or cancellation. All Notes so surrendered to the Trustee shall be cancelled promptly by the Trustee. Upon written instructions of the Issuer, the Trustee shall dispose of canceled Notes in accordance with its customary procedures for the disposition of canceled securities and, after such disposition, shall upon written request deliver a certificate of disposition to the Issuer. The Issuer may not issue new Notes to replace Notes that it has paid or repurchased or that have been delivered to the Trustee for cancellation or that any Holder has (i) converted pursuant to Article XII hereof, or (ii) submitted for repurchase pursuant to  Section 3.03  hereof (unless validly revoked pursuant to  Section 3.04 ).
SECTION 2.13. [Reserved].
SECTION 2.14. CUSIP Number. (a) The Issuer, in issuing the Restricted Notes, will use a restricted CUSIP number for such Notes until such time as the Restricted Securities Legend is removed pursuant to  Section 2.07(c)  or  Section 2.07(d) . At such time as the applicable restrictive legend is removed from such Notes pursuant to  Section 2.07(c)  or  Section 2.07(d) , the Issuer will use an unrestricted CUSIP number for such Note, but only with respect to the Notes where so removed.
 
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(b) The Issuer, upon issuing ADSs upon conversion of Restricted Notes, will use a restricted CUSIP number for such ADSs. With respect to each ADR representing such ADS, until such time as the applicable Restricted ADS Legend is removed pursuant to  Section 2.07(c)  or  Section 2.07(d)  from such ADR, such restricted CUSIP will be the CUSIP numbers for such ADR. At such time as the applicable restrictive legend is removed from such ADR pursuant to  Section 2.07(c)  or  Section 2.07(d) , an unrestricted CUSIP number for such ADR will be deemed to be the CUSIP number therefor, but only with respect to the ADRs where so removed.
(c) The Trustee shall use the applicable CUSIP number in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such number either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such number. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP number.
ARTICLE III
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. Redemption of Notes at the Option of the Issuer. (a) If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of any government or jurisdiction (a “ Taxing Jurisdiction ”) affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a
general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under Article V, shall be treated for this purpose as the date of such transaction) the Issuer would be obligated, after taking all reasonable measures to avoid such requirement, to pay Additional Amounts in excess of those attributable to a withholding Tax rate of 10% with respect to the Notes, then, at the Issuer’s option, the Issuer may give a Tax Redemption Notice whereupon the Notes shall be redeemed (a “ Tax Redemption ”) in whole, but not in part, at a redemption price (the “ Tax Redemption Price ”) equal to 100% of the outstanding principal amount, plus Interest, if any, up to but not including the Tax Redemption Date; provided ,  however , that (1) no Tax Redemption Notice may be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to pay the Additional Amounts described in the preceding sentence if a payment on the Notes were then due (in excess of the Additional Amounts payable on the date hereof), (2) at the time such Tax Redemption Notice is given such obligation to pay such Additional Amounts remains in effect, and (3) the Issuer shall have satisfied the additional requirements set forth in paragraph (b) of this  Section 3.01 . A Tax Redemption Notice, once delivered by the Issuer or caused to be delivered by the Issuer, shall be irrevocable.
 
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(b) Prior to the publication of any Tax Redemption Notice, the Issuer will deliver to the Trustee:
(i) an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem set forth above have occurred, and
(ii) an Opinion of Counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.
(c) The Issuer shall not have the right to exercise any such optional redemption at any time when it is prohibited from having such an option under the Financing Agreement. Upon delivery of a Tax Redemption Notice, each Holder will have the option to convert its Notes as if a Fundamental Change had occurred by delivering a notice of conversion of the Notes to the Trustee no later than the close of business on the fourth Business Day immediately preceding the Tax Redemption Date set forth in the Tax Redemption Notice. Such conversion shall be made at the Make Whole Fundamental Change Premium, determined as set forth in  Section 12.12 ;  provided  that the “ADS price” used by the Issuer in the calculation of the make whole amount shall be the Last Reported Sale Price of the ADSs on the Trading Day immediately preceding the date the Tax Redemption Notice is delivered by the Issuer or caused to be delivered by the Issuer and “Effective Date” used in such calculation shall be the Trading Day immediately preceding such date of delivery. The settlement of such conversion shall be made in accordance with the settlement provisions set forth in  Section 12.12 .
(d) If the Issuer sets a Tax Redemption Date between a Record Date and the corresponding Interest Payment Date, the Issuer will not pay accrued Interest to any redeeming Holder, and will instead pay the full amount of the relevant Interest payment on such Interest Payment Date to the Holder of record on such Record Date.
(e) If the Issuer elects to exercise the redemption right described in Section 3.01(a), it shall give, or cause to be given by the Trustee, irrevocable written notice of redemption (the “ Tax Redemption Notice ”) not less than 30 days nor more than 60 days before the Tax Redemption Date to the Trustee, the Paying Agent and each Holder at the addresses as shown on the Register. The Tax Redemption Notice shall include such notices as are required by law and shall state: (i) the aggregate principal amount of Notes to be redeemed; (ii) the CUSIP number or numbers of the Notes being redeemed; (iii) the Business Day on which the redemption will be effected (the “ Tax Redemption Date ”); (iv) the Tax Redemption Price; (v) the place or places of payment and that payment will be made upon presentation and surrender of such Notes; (vi) that Interest to, but excluding, the Tax Redemption Date will be paid as specified in said notice, and that on and after said date Interest thereon or on the portion thereof to be redeemed will cease to accrue; (vii) that the Holder has a right to convert the Notes called for redemption at a Make Whole Fundamental Change Premium; (viii) the Conversion Rate on the date of Tax Redemption Notice; (ix) the method of calculating the number of ADSs to be delivered to the Holder upon conversion with respect to any conversions made prior to the Tax Redemption Date; (x) the applicable information required to be contained in a Fundamental Change Notice as set forth in  Section 12.12(b) ; and (xi) if required, whether the Issuer has an effective resale shelf registration statement with respect to any ADSs it may issue as payment for the Make Whole Fundamental Change Premium and, if so, include a selling ADS holder questionnaire to enable each Holder or beneficial owner of Notes to be named as a seller in such resale shelf registration statement. Simultaneously with providing the Tax Redemption Notice, the Issuer shall also issue a press release announcing the occurrence of such Tax Redemption.
 
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(f) On the third Business Day following the Tax Redemption Date, the Issuer shall issue and shall deliver to each Holder of record on the Tax Redemption Date at the office or agency maintained by the Issuer for such purpose pursuant to  Section 4.04 , a certificate or certificates for, or effect a book-entry transfer through the Depositary with respect to, the number of full ADSs issuable in accordance with the provisions of  Section 3.01(b)  and  Section 3.01(c) .
SECTION 3.02. [Reserved].
SECTION 3.03. Repurchase Upon a Change of Control at the Option of the Holders. (a) Upon the occurrence of a Change of Control, the Issuer shall notify the Holders, the Mexican Trustee and the Trustee in writing of such occurrence and shall be required to make an offer (the “ Change of Control Offer ”) to repurchase all Notes then outstanding at a repurchase price in cash (the “ Change of Control Payment ”) equal to 100% of the principal amount thereof, plus Interest, to, but excluding, the Change of Control Purchase Date (as defined in  Section 12.12(b) ) (unless the Change of Control Purchase Date is between a Record Date and the Interest Payment Date to which it relates, in which case the Issuer will pay Interest on such Interest Payment Date to the Holder of record on such Record Date and the Change of Control Payment will be equal to 100% of the principal amount of the Notes subject to repurchase and will not include Interest).
(b) Notice of a Change of Control shall be made in accordance with the provisions set forth under Section 12.12(b).
(c) The Issuer will not be required to make a Change of Control Offer if a third party makes a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 3.04. General Provisions Applicable to Repurchases. The following additional provisions shall apply to repurchases pursuant to  Section 3.03 .
(a) To exercise its rights under Section 3.03, a Holder must deliver the Notes to be purchased to the Paying Agent, together with a written purchase notice, after receipt of the Fundamental Change Notice and on or before the Business Day immediately preceding the Change of Control Purchase Date. The purchase notice must contain: (x) if the Notes are not certificated, the Holder’s notice must comply with appropriate DTC procedures or, if the Notes are certificated, the notice shall include the certificate numbers of the Holder’s Notes to be delivered for purchase; (y) the portion of the principal amount of the Holder’s Notes to be purchased, which must be U.S.$1,000 or a multiple of U.S.$1,000;  provided  that the portion not to be purchased is in a minimum principal amount of U.S.$100,000; and (z) that the Holder’s Notes are to be purchased by the Issuer pursuant to the applicable provisions of the Notes and this Indenture. In addition, if the Notes are certificated, the Notes delivered for repurchase shall be duly endorsed for transfer and the written purchase notice in the appropriate form on the reverse side of the Notes shall be duly completed. No Notes of a principal amount of less than U.S.$100,000 shall be purchased by the Issuer in part.
 
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(b) On the Business Day prior to the Change of Control Purchase Date, the Issuer will deposit with the Trustee or with the Paying Agent an amount of money in immediately available funds sufficient to repurchase on such date all the Notes (or portions thereof) tendered for repurchase (other than those theretofore surrendered for conversion into ADSs) and not withdrawn,  provided that if such payment is made on the Change of Control Purchase Date, it must be received by the Trustee or Paying Agent, as the case may be, by 10:00 a.m. New York City time on such date.
(c) A Holder that has exercised a repurchase right will receive the Change of Control Payment, promptly following the later of (i) the Change of Control Purchase Date or (ii) the time of book-entry transfer or the delivery of the Notes. If the Paying Agent holds money or securities sufficient to pay the cash portion of the purchase price of the Notes to be repurchased on the second Business Day following the Change of Control Purchase Date, then the following shall occur:
(A) the Notes tendered for purchase and not withdrawn will cease to be outstanding and Interest, if any, will cease to accrue on such Notes on the Change of Control Purchase Date (whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent); and
(B) all other rights of the Holders with respect to the Notes tendered for purchase and not withdrawn will terminate on the Change of Control Purchase Date (other than the right to receive the Change of Control Payment upon delivery or transfer of the Notes).
(d) Any Change of Control Offers shall be made by the Issuer in compliance with all applicable provisions of the Exchange Act, all applicable tender offer rules promulgated thereunder and all other federal and state securities laws, to the extent such laws and regulations are then applicable and shall include all instructions and materials (such as the filing of a Schedule TO or any other required schedule) that the Issuer shall reasonably deem necessary to enable each such Holder to tender its Notes. The Issuer will not purchase Notes if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Change of Control Purchase Date.
(e) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent an election to have its Notes purchased pursuant to  Section 3.03  shall have the right to withdraw such election in whole or in a portion thereof that is a principal amount of U.S.$1,000 or in an integral multiple thereof ( provided  that the portion not to be so purchased is in a minimum principal amount of U.S.$100,000), if the Paying Agent receives, not later than close of business on the Business Day immediately preceding the Change of Control Purchase Date, a facsimile transmission or written letter, which may be sent via, mail setting forth (i) the name of the Holder; (ii) the principal amount of withdrawn Notes, which must be U.S.$1,000 or a multiple of U.S.$1,000,  and provided  that the portion remaining to be repurchased is in a minimum principal amount of U.S.$100,000; (iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, the notice must comply with appropriate DTC procedures; and (iv) the principal amount, if any, which remains subject to the notice of election.
 
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(f) If a Holder has already delivered a purchase notice as described in Section 3.03 with respect to a Note, the Holder may not surrender that Note for conversion until the Holder has withdrawn the purchase notice in accordance with  Section 3.04(e) .
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes. The Issuer shall pay the principal of and Interest on the Notes on the dates and in the manner provided in the Notes. Principal, Interest or cash payments to be made pursuant to Article III shall be considered paid on the date due if the Trustee or Paying Agent (other than the Issuer or a Subsidiary of the Issuer or any Affiliate of the Issuer) holds as of 10:00 a.m. New York City time on that date immediately available funds designated for and sufficient to pay all principal, Interest and cash payments to be made pursuant to Article III then due;  provided ,  however , that money held by the Agent for the benefit of holders of Senior Indebtedness pursuant to the provisions of Article XI hereof or the payment of which to the Holders is prohibited by Article XI shall not be considered to be designated for the payment of any principal of or Interest on the Notes within the meaning of this  Section 4.01 .
To the extent lawful, the Issuer shall pay Interest (including post-petition Interest in any proceeding under any Bankruptcy Law) on (i) overdue principal, at the rate borne by the Notes per annum; and (ii) overdue installments of Interest (without regard to any applicable grace period) at the same rate per annum, in each case during the period in which such Default is continuing.
SECTION 4.02. Reports. (a) The Issuer shall furnish to the Trustee within 15 days after the same are required to be filed with the Commission any documents or reports that the Issuer is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act).
(b) In the event that the Issuer is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Issuer shall:
(i) provide the Trustee and the Holders with:
(A) annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));
(B) reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Issuer in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year; and
 
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(C) such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and
(ii) file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) above within the periods specified for such filings under the Exchange Act (whether or not applicable to the Issuer).
(c) In addition, at any time when the Issuer is not subject to or is not current in its reporting obligations under clause (ii) of Section 4.02 , the Issuer shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificates).
(e) As provided in Articles 210 Bis, 212 and any other related Articles of the LGTOC, so long as any Notes remain outstanding:
(i) within four months after the end of each fiscal year, the Issuer’s Board of Directors shall notify the shareholders of the number of Notes that have been converted into ADSs in accordance with this Indenture as of the date thereof. Such notification shall include the number of underlying Ordinary Shares of the Issuer and CPOs that were subscribed or released as a result of such conversion and shall be notarized before a Mexican notary public and filed with the Public Registry of Commerce; and
(ii) the Issuer shall publish, on an annual basis, its balance sheet corresponding to the previous fiscal year in the Mexican Official Gazette of the Federation ( Diario Oficial de la Federación ), duly certified by a public accountant.
SECTION 4.03. Compliance Certificate. The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue Date) an Officer’s Certificate stating that in the course of the performance by the signer of his or her duties as an Officer of the Issuer he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during the previous fiscal year. If he or she does, the certificate shall describe the Default or Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 4.04. Maintenance of Office or Agency. The Issuer shall maintain or cause to be maintained the office or agency required under  Section 2.03 . The Issuer shall give prompt
 
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written notice to the Trustee and the Mexican Trustee of the location, and any change in the location, of such office or agency not maintained by the Trustee. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Mexican Trustee with the address thereof, presentations, surrenders, notices and demands with respect to the Notes may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designation.
SECTION 4.05. [Reserved].
SECTION 4.06. Appointments to Fill Vacancies in Trustee’s Office. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in  Section 7.08 , a Trustee, so that there shall at all times be a Trustee hereunder. If for any reason the Mexican Trustee resigns or is removed, the Issuer shall take all actions to appoint a new Mexican trustee so that there shall at all times be a Mexican banking institution acting as Mexican Trustee hereunder and for the purposes of the duties of the Mexican Trustee set forth herein.
SECTION 4.07. Stay, Extension and Usury Laws. The Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter enforced, that may affect the Issuer’s obligation to pay the Notes; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law insofar as such law applies to the Notes, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
SECTION 4.08. [Reserved].
SECTION 4.09. Additional Interest. (a) If, at any time during the six months to one year period following the Issue Date, (i) the Issuer fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (other than any current report on Form 6-K), or (ii) the Notes are not otherwise freely tradable by Holders (other than Holders who are Affiliates of the Issuer or any Person that has been an Affiliate of the Issuer at any time during the three months preceding the applicable date) as a result of restrictions pursuant to the U.S. securities laws or the terms of this Indenture or the Notes, the Notes will accrue Additional Interest at the rate of 0.50% per annum on the outstanding principal amount of Notes, such additional accrual to begin at such time as either of the conditions described in clauses (i) and (ii) of this sentence exist and to end at the earlier of (x) the end of such one year period and (y) the time with such conditions no longer exist. The Issuer shall pay such Additional Interest in cash on each Interest Payment Date to the Person who is the Holder of record of the Notes on the immediately preceding Record Date and if and when the conditions described in clauses (i) and (ii) of the preceding sentence no longer exist, accrued and unpaid Additional Interest through the date such conditions last existed will be paid
 
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in cash on the subsequent Interest Payment Date to the record Holder on the Record Date. Unless:
(i) the Restricted Securities Legend on the Notes has been removed, and
(ii) the Notes are freely tradable pursuant to Rule 144 under the Securities Act without restrictions by Holders other than Affiliates of the Issuer or any Person that has been an Affiliate of the Issuer at any time during the three months preceding the applicable date (as a result of restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes),
as of the 365th day after the Issue Date, the Issuer will, at its election, either (A) pay Additional Interest on the Notes at an annual rate equal to 0.50% of the aggregate principal amount of the Notes or (B) designate an effective shelf registration statement useable for the resale of the Notes or any ADSs issuable upon conversion of the Notes, in which case Additional Interest shall not accrue for each day on which such registration statement remains effective and useable by Holders for the resale of the Notes and any ADSs. To the extent the Issuer elects to pay such Additional Interest, and for so long as a condition described in either clause (i) or (ii) of the preceding sentence continues to fail to be satisfied, the Issuer shall pay such Additional Interest in cash on each Interest Payment Date to the Person who is the Holder of record of the Notes on the immediately preceding Record Date. When such default is cured, accrued and unpaid Additional Interest through the date of cure will be paid in cash on the subsequent Interest Payment Date to the record Holder on the Record Date. In no event shall Additional Interest accrue under the terms of this Indenture (taking any Additional Interest under the provision described in this  Section 4.09 together with any Interest under  Section 6.02(b) ) at an annual rate in excess of 0.50%, in the aggregate, for any violation or default caused by the Issuer’s failure to be current in respect of its Exchange Act reporting obligations.
(b) During the period of one year after the Issue Date, the Issuer will not, and will not permit any of its “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any Notes that have been reacquired by the Issuer or acquired by any of them, unless the Notes so resold bear a CUSIP that is different from the CUSIP for the Notes issued on the Issue Date and not acquired by the Issuer or any of its Affiliates during such one year period. For the avoidance of doubt, this  Section 4.09(b)  shall not be applicable to any conversion or exchange of Notes to which  Section 2.07(f)  applies.
SECTION 4.10. Additional Interest Notice. In the event that the Issuer is required to pay Additional Interest to Holders pursuant to  Section 4.09  or  Section 6.02(b)  hereof, the Issuer shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of the Issuer’s obligation to pay such Additional Interest no later than three Business Days prior to the date on which any such Additional Interest is scheduled to be paid. Such notice shall set forth the amount of Additional Interest to be paid by the Issuer on such payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it receives funds from the Issuer to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of Additional Interest owed, or with respect to the method employed in such calculation of Additional Interest.
 
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SECTION 4.11. Further Instruments and Acts. Upon request of the Trustee or the Mexican Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
SECTION 4.12. Payment of Additional Amounts. (a) All payments made by the Issuer under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”) imposed or levied by or on behalf of any Taxing Jurisdiction unless the Issuer is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided ,  however , that the foregoing obligation to pay Additional Amounts does not apply to:
(i) any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Tax, assessment or other governmental charge and the Issuer has given the Holders at least 30 days’ prior notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, and
 
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(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 4.12(a) and Section 4.12(b) shall survive any termination or discharge of this Indenture and shall apply  mutatis mutandis  to any Taxing Jurisdiction with respect to any successor to the Issuer. The Issuer shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer shall use all reasonable efforts to obtain certified copies of Tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such Tax receipts are not reasonably available to the Issuer, furnish such other documentation that provides reasonable evidence of such payment.
(d) The limitations on the obligations to pay additional amounts stated in clause (iii) of Section 4.12(b) shall not apply if the provision of information, documentation or other evidence described in clause (iii) of  Section 4.12(b)  would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. Tax law, regulation (including proposed regulations) and administrative practice. The limitations on the obligations to pay additional amounts in clause (iii) of  Section 4.12(b)  shall not apply with respect to Taxes imposed by Mexico or any political subdivision or taxing authority thereof if the Issuer can otherwise obtain the application of the lower withholding tax rate in effect unless (A) the provision of the information, documentation or other evidence described in clause (iii) of  Section 4.12(b)  is expressly required by statute, regulation, or published administrative practice of general applicability, (B) the Issuer cannot obtain the information, documentation or other evidence necessary to comply with the applicable laws and regulations on its own through reasonable diligence and without requiring it from Holders, and (C) the Issuer otherwise would meet the requirements set forth under applicable law and regulations. In addition, clause (iii) of  Section 4.12(b)  does not and shall not be construed to require that any Person, including any non-Mexican pension fund, retirement fund, financial institution or any other Holder or beneficial owner of a Note, register with the Mexican Ministry of Finance and Public Credit or with the Tax Administration Service ( Servicio de Administración Tributaria ) to obtain eligibility for an exemption from, or a reduction of, Mexican withholding Tax.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, Interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
 
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(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.12 are based on rates of deduction or withholding of withholding Taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding Tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto including making any filing to request a refund.
(g) For purposes of this Section 4.12, references to “payments” made by the Issuer under, or with respect to, the Notes shall include the conversion of Notes by the Issuer.
SECTION 4.13. Spanish Version, Notarization and Registration. This Indenture shall be executed in both English and Spanish. Concurrently with the execution of this Indenture, the Issuer, the Trustee and the Mexican Trustee shall execute a Spanish version of this Indenture before a Mexican notary public,  provided ,  however , that in case of any inconsistency or question as to the proper interpretation or construction of this Indenture between the text in English and the text in Spanish, the English text shall control in all cases.
SECTION 4.14. Registration with the Pubic Registry of Commerce. Within forty-five (45) days after the date hereof, the Issuer shall provide the Trustee and the Mexican Trustee with a copy of the public instrument containing the notarized Spanish version of this Indenture, duly filed with, and stamped as registered by, the Public Registry of Commerce.
SECTION 4.15. Compliance with Mexican Law Provisions. (a) The Issuer shall, at all times during the term of this Indenture, comply with all applicable provisions set forth in applicable Mexican Laws, including without limitation, Chapter V ( Capítulo V ) of the LGTOC.
(b) In accordance with paragraph III of Article 210 Bis of the LGTOC, the issue price of the Notes shall not be less than the Notes’ nominal amount.
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets. The Issuer will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Subsidiaries), to any Person unless:
(a) either:
(i) the Issuer shall be the surviving or continuing corporation, or
 
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(ii) the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer and its Subsidiaries substantially as an entirety (the “ Successor Issuer ”):
(A) shall be a corporation organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and
(B) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal and Interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;
(b) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (a)(ii)(B) of this  Section 5.01 , no Default or Event of Default shall have occurred or be continuing.
(c) if the Issuer merges with a corporation, or the Successor Issuer is organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer will have delivered to the Trustee an Opinion of Counsel that, as applicable:
(i) the Holders will not recognize income, gain or loss for the purposes of the income Tax laws of United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and will be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no additional amounts are regarded to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;
(ii) any payment of principal or Interest on the Notes will be paid in compliance with any requirements under Section 4.12 ; and
(iii) no other Taxes on income, including capital gains, will be payable by Holders under the laws of United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of Interest or principal thereon; provided that the Holder does not use or hold, and is not deemed to use or hold, the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.
(d) The provision of clause (b) of this Section 5.01 shall not apply to:
(1) any transfer of the properties or assets of a Subsidiary of the Issuer to the Issuer;
 
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(2) any merger of a Subsidiary of the Issuer into the Issuer; or
(3) any merger of the Issuer into a Subsidiary of the Issuer.
(e) For purposes of the covenant in this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(f) Upon any such consolidation, merger, sale, assignment, conveyance, lease, transfer or other disposition in accordance with this  Section 5.01 , the Successor Issuer formed by such consolidation or into which the Issuer is merged or to which such sale, assignment, conveyance, lease, transfer or other disposition is made will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture and the Notes with the same effect as if such successor had been named as the Issuer therein, and thereafter the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.
(g) the Issuer or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, combination, sale, assignment, disposition, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
SECTION 5.02. Purchase Option on Fundamental Change. This Article V does not affect the obligations of the Issuer (including without limitation any successor to the Issuer) under  Section 3.03 .
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An “Event of Default” with respect to any Notes occurs if:
(a) the Issuer defaults in the payment in respect of the principal of any Note when due at maturity, upon redemption or repurchase pursuant to Article III, upon declaration of acceleration or otherwise, whether or not such payment is prohibited by the subordination provisions set forth in Article XI;
(b) the Issuer defaults in the payment of any Interest on any Note when due and payable, whether or not such payment is prohibited by the subordination provisions set forth in Article XI, including any Interest payable in connection with a redemption or repurchase pursuant to Article III, and continuance of such default for a period of 30 days or more;
 
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(c) the Issuer defaults in the delivery when due of ADSs deliverable upon conversion with respect to the Notes in accordance with  Article XII , which default continues for a period of five Business Days or more;
(d) the Issuer fails to provide a timely Fundamental Change Notice in accordance with Section 12.12(b);
(e) the Issuer fails to comply with the covenant described in clause (b) of Section 12.08;
(f) failure by the Issuer to comply with the covenant described in clause (a) of Section 12.08 that continues for a period of 30 days after the Issuer receives written notice of such failure from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding;
(g) the Issuer defaults (other than a default set forth in clauses (a) through (f) above) in the performance of, or breaches, any other covenant or agreement of the Issuer set forth in this Indenture or the Notes and fails to remedy such default or breach within a period of 45 days after its receipt of written notice thereof from the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes;
(h) the Issuer or any of the Issuer’s “Significant Subsidiaries” (as defined in Article 1, Rule 1-02 of Regulation S-X) defaults with respect to any mortgage, agreement or other instrument under which there is outstanding, or by which there is secured or evidenced, any Indebtedness for money borrowed having a principal amount in excess of U.S.$50 million in the aggregate, whether such Indebtedness now exists or shall hereafter be created, (i) resulting in such Indebtedness becoming or being declared due and payable prior to its express maturity date or (ii) constituting a failure to pay at least U.S.$50 million of such Indebtedness when due and payable (after the expiration of any applicable grace period) at its stated maturity, upon required repurchase, upon declaration or otherwise; provided, that any such Event of Default shall be deemed cured and not continuing upon payment of such Indebtedness or rescission of such declaration;
(i) a final judgment for the payment of U.S.$50 million or more (excluding any amounts covered by insurance or bond) is rendered against the Issuer or any Significant Subsidiary by a court of competent jurisdiction, which judgment is not discharged, stayed, vacated, paid or otherwise satisfied within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished; or
(j) a Bankrupy Event of Default occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default (other than an Event of Default with respect to the Issuer specified in  Section 6.01(j )) occurs and is continuing, then and in every such case (i) the Trustee, by written notice to the Issuer, or (ii) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by written notice to the Issuer and the Trustee, may, and the Trustee at the request of such Holders shall, declare all of the
 
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unpaid principal of, and Interest, on all the Notes to be due and payable. Upon such declaration such principal amount, and Interest, shall become immediately due and payable, notwithstanding anything contained in this Indenture or the Notes to the contrary, but subject to the provisions of Article XI hereof. If the Event of Default with respect to the Issuer specified in Section 6.01(j)  occurs, all unpaid principal of, and Interest on, the Notes then outstanding shall become automatically due and payable, subject to the provisions of Article XI hereof, without any declaration or other act on the part of the Trustee or any Holder.
(b) Notwithstanding any other provision in this Article VI, if an Event of Default occurs arising out of the Issuer’s breach of its obligation to file or furnish reports or other financial information as required under  Section 4.02  of this Indenture, the Issuer may elect to pay Additional Interest on the Notes as the sole remedy for such Event of Default, and the Trustee and the Holders will not have any right under this Indenture to accelerate the maturity of the Notes as a result of any such Event of Default, except as provided below. If elected, the Issuer shall pay Additional Interest to all Holders at a rate equal to 0.50% per annum through the 180th day after the occurrence of such Event of Default (which shall be the 135 th  day after the end of the 45-day grace period set forth in  Section 6.01(g) ), or such earlier date on which the Event of Default relating to the reporting obligations referred to in this  Section 6.02(b)  shall have been cured or waived. On the 181st day, such Additional Interest will cease to accrue (or earlier, if the Event of Default relating to the reporting obligations referred to in this  Section 6.02(b)  shall have been cured or waived prior to such 181st day) and, if the Event of Default is continuing on such 181st day, the Notes will be subject to acceleration as provided in  Section 6.02(a) . The provisions of this  Section 6.02(b)  will not affect the rights of the Holders in the event of the occurrence of any other Event of Default, and are separate and distinct from, and in addition to, the obligation of the Issuer to increase the interest rate of, and the amount of Interest payable on, the Notes pursuant to  Section 4.09 , except as otherwise provided therein. Any Additional Interest paid pursuant to this  Section 6.02(b)  will be payable at the times and in the manner provided for the payment of regular Interest on the Notes. In order to elect to pay Additional Interest on the Notes as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with reporting obligations in accordance with this  Section 6.02(b) , the Issuer must notify all Holders and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default first occurs. If the Issuer fails to timely give such notice, does not pay such Additional Interest or elects not to pay such Additional Interest, the Notes will be immediately subject to acceleration as provided in  Section 6.02(a) .
SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, subject to Article XI, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or Interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy occurring upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
 
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SECTION 6.04. Waiver of Past Defaults; Rescission of Acceleration. The Holders of a majority in aggregate principal amount of the then outstanding Notes may, on behalf of the Holders of all the Notes, waive an existing or past Default or Event of Default and its consequences (except a Default or Event of Default in the payment of principal or Interest, in the repurchase of any Notes when required, in the delivery, upon conversion, of ADSs, or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent of all Holders of Notes) and rescind any such acceleration with respect to the Notes and its consequences if (a) rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (b) all existing Defaults or Events of Default, other than the nonpayment of the principal and Interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (c) there had been paid or deposited with the Trustee a sum sufficient to pay all amounts due to the Trustee and reimburse the Trustee for any and all expenses, disbursements, fees advanced by the Trustee, its agent and its counsel incurred in connection with such Default or Event of Default. No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of a majority in aggregate principal amount of the then-outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines may be unduly prejudicial to the rights of any other Holder or that may involve the Trustee in personal liability;  provided  that the Trustee shall have no duty or obligation (subject to  Section 7.01 ) to ascertain whether or not such actions of forbearances are unduly prejudicial to such Holders;  provided ,  further , that the Trustee may take any other action the Trustee deems proper that is not inconsistent with such directions. Any Notes held by the Issuer or one of the Issuer’s Subsidiaries shall be disregarded for voting purposes in connection with any notice, waiver, consent or direction requiring the vote or concurrence of Holders of the Notes.
SECTION 6.06. Limitation on Suits. Except to enforce the right to receive payment of principal and Interest when due, a Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice that an Event of Default that has occurred and is continuing;
(ii) the Holders of at least 25% in principal amount of the then-outstanding Notes make a request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of such security or indemnity; and
 
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(v) the Holders of a majority in principal amount of the then-outstanding Notes do not give the Trustee a direction that is inconsistent with the request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Subject to the provisions of Article XI hereof, notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, and Interest, if any, on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, or to bring suit for the enforcement of the right to convert the Note in accordance with the terms of this Indenture shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(a) or Section 6.01(b) occurs and is continuing, subject to Article XI, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal and Interest, if any, remaining unpaid on the Notes and Interest, on overdue principal and Interest, if any, and such further amount as shall be sufficient to cover the costs and, to the extent lawful, expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Issuer, its creditors or its property. Any receiver, trustee, liquidator, conciliador or sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, Taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to  Section 7.07 . Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. Subject to Article XI, if the Trustee collects any money pursuant to this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07, including payment of all reasonable compensation, expenses and liabilities incurred, and all advances made, by the Trustee, and the costs and expenses of collection;
SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
 
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THIRD: to Holders for amounts due and unpaid on the Notes for principal and Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and Interest, if any, respectively; and
FOURTH: to the Issuer or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment to Holders made pursuant to this Section 6.10. At least 15 days before any such special record date, the Trustee shall mail to Holders of the Notes a notice that states the special record date, payment date and amount of such Interest to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit, other than the Trustee, of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by a Holder pursuant to  Section 6.07  or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE VII
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and agrees to perform the same, as herein expressed. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VII.
SECTION 7.01. Duties of the Trustee. (a) If an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) The Mexican Trustee shall (i) confirm that the proceeds from the offering and sale of the Notes are used to fund the purchase of the capped called transactions described in the Offering Memorandum and for general corporate purposes, (ii) cause the registration of a certified copy of the public instrument containing the notarization of a Spanish version of this Indenture with the Public Registry of Commerce and obtain the registration thereof in the event that the Issuer fails to comply with its obligation to register such public instrument as set forth in Section 4.02(e)(i), and (iii) exercise all rights and comply with all obligations set forth in the LGTOC, including those set forth in Article 217 (Sections I, V, VII and VIII) of the LGTOC.
 
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(c) Except during the continuance of an Event of Default known to the Trustee:
(i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the form required by this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts purported to be stated therein).
(d) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (c) of this Section 7.01;
(ii) The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer of the Trustee, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.05 .
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (c), (d), and (e) of this  Section 7.01 .
(g) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree with the Issuer. Money held in trust by the Trustee need not be segregated from other funds or assets except to the extent required by law.
(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
 
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SECTION 7.02. Rights of the Trustee. Subject to Section 7.01:
(a) The Trustee may conclusively rely on and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, security or other document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter contained therein.
(b) Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof is herein specifically prescribed). In addition, before the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its attorneys and agents and other Persons not regularly in its employ and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith without negligence or willful misconduct which it believes to be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by Officers of the Issuer.
(f) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(g) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or discretion of any of the Holders pursuant to the provisions of this Indenture, unless such Holders have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby.
(h) Except for the confirmation of the Net Total Assets by the Mexican Trustee or as otherwise required pursuant to Section 7.01(b), neither the Trustee nor the Mexican Trustee shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, security or other document unless requested in writing to do so by the Holders of not less than a majority in aggregate principal amount of the Notes then outstanding;  provided  that if the Trustee or the Mexican Trustee determine in its discretion to make any such investigation, then they shall be entitled, upon reasonable prior notice and during normal business hours, to examine the books and
 
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records and the premises of the Issuer, personally or by agent or attorney, and the reasonable expenses of every such examination shall be paid by the Issuer or, if paid by the Trustee, the Mexican Trustee or any predecessor Trustee or Mexican Trustee, shall be reimbursed by the Issuer upon demand.
(i) The permissive rights of the Trustee or the Mexican Trustee to do things enumerated in this Indenture shall not be construed as a duty. The Trustee and the Mexican Trustee shall not be answerable for other than their respective negligence or willful misconduct.
(j) The Trustee shall not be responsible for the computation of any adjustment to the Conversion Rate or for any determination as to whether an adjustment is required and shall not be deemed to have knowledge of any adjustment unless and until it shall have received the notice from the Issuer contemplated by  Section 12.05(e) .
(k) The Trustee shall not be deemed to have knowledge of any Default or Event of Default except (i) any Event of Default occurring pursuant to  Section 6.01(a)  or  Section 6.01(b) , or (ii) any Event of Default of which a Trust Officer of the Trustee shall have received written notification or otherwise obtained actual knowledge.
(l) Whenever by the terms of this Indenture, the Trustee shall be required to transmit notices or reports to any or all Holders, the Trustee shall be entitled to conclusively rely on the information provided by the Registrar as to the names and addresses of the Holders as being correct. If the Registrar is other than the Trustee, the Trustee shall not be responsible for the accuracy of such information.
(m) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by (i) the Trustee in each of its capacities hereunder (including as Registrar and Conversion Agent); (ii) to each agent, custodian, and any other such Persons employed to act hereunder; and (iii) to the Mexican Trustee.
(n) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts or war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances).
(o) The Trustee or the Mexican Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
(p) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
 
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SECTION 7.03. Individual Rights of the Trustee. Subject to Section 7.10, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee and may otherwise deal with the Issuer or an Affiliate of the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes. It shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture. It shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is known to a Trust Officer of the Trustee, the Trustee shall mail to each Holder a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, or Interest on, any Note, the Trustee may withhold the notice if and so long as a committee of the Trustee’s Trust Officers in good faith determines that withholding the notice is in the interest of the Holders.
SECTION 7.06. Representation of the Mexican Trustee. Pursuant to Section I of Article 217 and Section V of Article 213 of the LGTOC, the Mexican Trustee hereby represents that it has confirmed the date set forth in the balance sheet dated December 31, 2010 of the Issuer and the Net Total Assets.
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay to the Trustee and the Mexican Trustee from time to time and the Trustee and the Mexican Trustee shall be entitled to such compensation for its acceptance of this Indenture and its services hereunder as the Issuer, the Trustee and the Mexican Trustee shall from time to time agree in writing. The Trustee’s and the Mexican Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Mexican Trustee, as applicable, promptly upon request for all reasonable disbursements, advances and expenses incurred or made by or on behalf of it in addition to the compensation for its services. Such expenses may include the reasonable compensation, disbursements and expenses of the Trustee’s or the Mexican Trustee’s agents, counsel and other persons not regularly in its employ; provided that Trustee and the Mexican Trustee shall provide the Issuer reasonable advance notice of any expenditure not in the ordinary course of business; provided, further, that the Issuer shall have no obligation to reimburse the Trustee and the Mexican Trustee with respect to any such expense, disbursement or advance as may be attributable to the Trustee’s or the Mexican Trustee’s negligence, willful misconduct or bad faith.
 
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The Issuer shall indemnify the Trustee and the Mexican Trustee, or any predecessor Trustee or Mexican Trustee, for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including Taxes (other than Taxes based upon, measured by or determined by the income of the Trustee and the Mexican Trustee), incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section. The Trustee and the Mexican Trustee, as applicable, shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Mexican Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim with counsel designated by the Issuer, who may be outside counsel to the Issuer but shall in all events be reasonably satisfactory to the Trustee or the Mexican Trustee, as applicable, and the Trustee and the Mexican Trustee, as applicable, shall cooperate in the defense. In addition, the Trustee and the Mexican Trustee, as applicable, may retain one separate counsel and, if deemed advisable by such counsel, local counsel, and the Issuer shall pay the reasonable fees and expenses of such separate counsel and local counsel. The indemnification herein extends to any settlement;  provided  that the Issuer will not be liable for any settlement made without its consent;  provided ,  further , that such consent will not be unreasonably withheld.
The Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee to secure the Issuer’s payment obligations to the Trustee and the Mexican Trustee in this  Section 7.07 , except that held in trust to pay principal and Interest, if any, on Notes. Such Liens and the Issuer’s obligations under this  Section 7.07  shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee or the Mexican Trustee incurs expenses or renders services after a Bankruptcy Event of Default occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of the Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08 .
The Trustee may resign at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing and may appoint a successor Trustee. The Issuer may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or its property; or
 
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(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, at the Issuer’s expense, the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee after written request by any Holder who has been a Holder for at least six months fails to comply with Section 7.10 , such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee;  provided  that all sums owing to the retiring Trustee hereunder have been paid and subject to the Lien provided for in  Section 7.07 . Notwithstanding the replacement of the Trustee pursuant to this  Section 7.08 , the Issuer’s obligations under  Section 7.07  shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Upon request of any such successor Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the preceding paragraph.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business (including the trust created by this Indenture) to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein. If the Mexican Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business (including the trust created by this Indenture) to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act shall be the successor Mexican Trustee with the same effect as if the successor Mexican Trustee had been named as the Mexican Trustee herein.
SECTION 7.10. Eligibility, Disqualification. The Trustee shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate
 
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trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Indenture. When (a) the Issuer delivers to the Trustee for cancellation all Notes theretofore authenticated (other than any other Notes which have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes have been authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore canceled or delivered to the Trustee for cancellation have become due and payable, and the Issuer deposits with the Trustee in trust or delivers to the Holders amounts in U.S. Legal Tender or U.S. Government Obligations, or, where required, ADSs or any combination thereof sufficient (calculated as set forth under the terms of this Indenture with respect to such payment) to pay at maturity, on any Tax Redemption Date, Change of Control Purchase Date, upon conversion or otherwise all of the Notes (other than any Notes which have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and Interest, if any, due or to become due to such date and to satisfy any related obligation to deliver ADS, and if the Issuer also pays, or causes to be paid, all other sums payable hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer, substitution, replacement and exchange and conversion of Notes, (ii) rights hereunder of Holders to receive payments of principal of and Interest, if any, on the Notes, (iii) the obligations under Section 2.03  and  Section 8.05  hereof and (iv) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel as required by  Section 10.03 and at the Issuer’s cost and expense, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture;  provided ,  however , the Issuer hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Notes.
SECTION 8.02. Deposited Monies to be Held in Trust by Trustee. Subject to Section 8.04, all monies and securities deposited with the Trustee pursuant to  Section 8.01  shall be held in trust and applied by it to the payment, notwithstanding the provisions of Article XI, either directly or through the Paying Agent, to the Holders of the particular Notes for the payment or conversion of which such monies or securities have been deposited with the Trustee, of all sums due and to become due thereon for principal and Interest, if any. The Issuer shall pay and indemnify the Trustee against any Tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to  Section 8.01  or the principal and Interest received in respect thereof other than any such Tax, fee or other charge which by law is for the account of the Holders of the Notes.
SECTION 8.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this Indenture, all monies then held by any Paying Agent (other than the Trustee) shall, upon the Issuer’s demand, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such monies.
 
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SECTION 8.04. Return of Unclaimed Monies. Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of, or Interest, if any, on Notes and not applied but remaining unclaimed by the Holders thereof for two years after the date upon which the principal of, or Interest on such Notes, as the case may be, have become due and payable, shall be repaid to the Issuer by the Trustee on demand;  provided ,  however , that the Issuer, or the Trustee at the request of the Issuer, shall have first caused notice of such payment to the Issuer to be mailed to each Holder of a Note entitled thereto no less than 30 days prior to such payment and all liability of the Trustee shall thereupon cease with respect to such monies; and the Holder of any of such Notes shall thereafter look only to the Issuer for any payment which such Holder may be entitled to collect unless an applicable abandoned property law designates another Person.
SECTION 8.05. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 8.02  by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to  Section 8.01  until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with  Section 8.02 ;  provided ,  however , that if the Issuer makes any payment of Interest on or principal of any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders thereof to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without the Consent of Holders. The Issuer, the Mexican Trustee and the Trustee may amend this Indenture or the Notes without notice to or the consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency in this Indenture or the Notes;
(b) provide for the assumption by a surviving or successor corporation of the obligations of the Issuer under the Indenture or evidence and provide for the acceptance of appointment of a successor Trustee pursuant to this Indenture;
(c) provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Internal Revenue Code);
(d) add guarantees with respect to the Notes;
(e) secure the Notes;
 
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(f) add to the Issuer’s covenants for the benefit of the Holders or surrender any right or power conferred upon the Issuer;
(g) make any change that does not materially adversely affect the rights of any Holder;
(h) comply with the provisions of any clearing agency, clearing corporation or clearing system, including DTC, the Trustee or the Registrar with respect to the provisions of this Indenture or the Notes relating to transfers and exchanges of Notes; and
(i) conform the terms of this Indenture or the Notes to the description thereof in the Offering Memorandum.
SECTION 9.02. With the Consent of Holders. Subject to Section 6.07, the Issuer, the Mexican Trustee and the Trustee may amend this Indenture or the Notes with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including without limitation consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes).
Subject to Section 6.04 and Section 6.07, the Holders of a majority in principal amount of the then-outstanding Notes (including without limitation by consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes) may waive compliance in a particular instance by the Issuer with any provision of this Indenture or the Notes.
However, without the consent of each Holder of an outstanding Note affected, an amendment or waiver under this Section 9.02  may not, with respect to any Notes held by a non-consenting Holder:
(a) reduce the amount of Notes whose Holders must consent to an amendment or waiver;
(b) reduce the rate of or change or have the effect of changing the time for payment of Interest on any Notes;
(c) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;
(d) make any Notes payable in money other than that stated in the Notes;
(e) make any change in provisions of this Indenture entitling each Holder to receive payment of principal and Interest on such Holder’s Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default;
(f) reduce the Change of Control Payment of any Note or amend or modify in any manner adverse to the Holders, the Issuer’s obligation to make payment of such Change of Control Payment, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
 
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(g) make any change in the provisions of the Indenture described under Section 4.12 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes;
(h) make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes; and
(i) make any change that impairs or adversely affects the conversion rights of any Notes.
To secure a consent or waiver of the Holders under this Section 9.02, it shall not be necessary for such Holders to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Article IX becomes effective, the Issuer shall mail to the Holders a notice briefly describing the amendment or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or waiver under this Article IX.
SECTION 9.03. [Reserved].
SECTION 9.04. Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by such Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his or her Note or portion of a Note if the Trustee receives the notice of revocation before the date on which the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Notes have consented to the amendment or waiver.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment or waiver. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of Notes required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every Holder, unless it is of the type described in clauses (a) through (i) of  Section 9.02 . In such cases, the amendment or waiver shall bind each Holder who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note.
 
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SECTION 9.05. Notation on or Exchange of Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Trustee, bear a notation in the form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Issuer and the Trustee, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Trustee in exchange for outstanding Notes without charge to the Holders of the Notes, except as specified in  Section 2.07 .
SECTION 9.06. Trustee Protected. The Trustee and the Mexican Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article IX if such amendment or supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Mexican Trustee. If it does, the Trustee or the Mexican Trustee, as applicable, may, but need not, sign it. In signing such amendment or supplemental indenture, the Trustee and the Mexican Trustee shall be entitled to receive, and shall be fully protected in relying upon, (in addition to the documents required by Section 10.04 ) an Officer’s Certificate and an Opinion of Counsel as conclusive evidence, and each stating that such amendment or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Issuer in accordance with its terms.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Issuer’s Representations. Pursuant to Articles 210, 210 Bis, 213 and other applicable Articles of the LGTOC, the Issuer hereby represents that:
(a) the offering and sale of the Notes, as well as the execution of this Indenture and any other documents relating to the offering and sale of the Notes, were approved by the shareholders of the Issuer at a extraordinary shareholders meeting of the Issuer held on February 24, 2011;
(b) as provided in paragraph I(b) of Article 213 of the LGTOC, the documentation and information included in the Offering Memorandum, and used as a basis for the issuance of the Notes, have been prepared based on the audited consolidated financial statements of the Issuer corresponding to the period ended as of December 31, 2010, certified by Mr. Celin Zorilla Rizo, certified public accountant (the “ Financial Statements ”). A copy of the Financial Statements is attached as Exhibit G hereto;
(c) for purposes of paragraph II (only in connection with paragraph III of Article 210 of the LGTOC) and paragraph V(a) of Article 213 of the LGTOC, based on the Financial Statements, as of December 31, 2010, the (i) total stockholders’ equity ( capital contable ) of the Issuer was Ps.213,700 million, (ii) the Issuer’s paid-in capital stock was Ps.108,722 million, (iii) the amount of the total assets of the Issuer was Ps.515,097 million, (iv) the amount of the total liabilities of the Issuer was Ps.301,397 million and (v) the amount of the net total assets of the Issuer (the “ Net Total Assets ”) was Ps.213,700 million.
 
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(d) at the extraordinary shareholders meeting of the Issuer held on February 24, 2011, the Issuer’s shareholders authorized any two members of the Board of Directors to execute the Notes;
(e) the Notes will not be secured by any collateral;
(f) Exhibit H attached hereto includes a summary of the terms of the offering and sale of the Notes, including the information set forth in Article 213 of the LGTOC; and
(g) the proceeds of the offering of the Notes shall be used to pay the cost of the capped call transactions described in the Offering Memorandum and to repay indebtedness, including indebtedness under the Financing Agreement and  Certificados Bursátiles .
SECTION 10.02. Notices. Any notice or communication among the Issuer, the Mexican Trustee and the Trustee to any of the others is duly given if in writing and delivered in person or mailed by first-class mail, with postage prepaid (registered or certified, return receipt requested), or sent by facsimile or overnight air couriers guaranteeing next day delivery, to the other’s address as stated in  Section 10.09 . The Issuer, the Mexican Trustee or the Trustee by notice to each of the others may designate additional or different addresses for subsequent notices or communications. The Trustee and the Mexican Trustee may rely upon and comply with instructions or directions sent via unsecured facsimile or email transmission and the Trustee and the Mexican Trustee shall not be liable for any loss, liability or expense of any kind incurred by the Issuer or the Holders due to the Trustee’s or the Mexican Trustee’s reliance upon and compliance with instructions or directions given by unsecured facsimile or email transmission, provided, however, that such losses have not arisen from the negligence or willful misconduct of the Trustee or the Mexican Trustee, it being understood that the failure of the Trustee or the Mexican Trustee to verify or confirm that the person providing the instructions or directions, is, in fact, an authorized person does not constitute negligence or willful misconduct.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when transmission is confirmed, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Notwithstanding the foregoing, (i) all notices to the Trustee shall be effective only upon receipt by a Trust Officer of the Trustee and (ii) all notices to the Mexican Trustee shall be effective only upon receipt by a trust officer of the Mexican Trustee.
Any notice or communication to a Holder shall be mailed by first-class mail, with postage prepaid, to his or her address shown on the Register kept by the Registrar and shall be deemed to have been given on the date of such mailing. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
 
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If the Issuer sends a notice or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time. Any notice required to be given by the Issuer may be given by the Trustee on the Issuer’s behalf and at the expense of Issuer.
All notices or communications shall be in writing.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee:
(A) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in  Section 10.04 ) stating that, in the opinion of such person, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(B) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in  Section 10.04 ) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i) a statement that the person making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
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(iii) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Any Officer’s Certificate may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows that the opinion with respect to the matters upon which his or her certificate may be based as aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon certificates, statements or opinions of, or representations by, an Officer or Officers of the Issuer, or other Persons or firms deemed appropriate by such counsel, unless such counsel knows that the certificates, statements or opinions or representations with respect to the matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officer’s Certificate, statement or Opinion of Counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representation by an accountant (who may be an employee of the Issuer), or firm of accountants, unless such Officer or counsel, as the case may be, knows that the certificate or opinion or representation with respect to the accounting matters upon which his or her certificate, statement or opinion may be based as aforesaid is erroneous.
SECTION 10.05. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 10.06. Business Days. A “Business Day” is any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Mexico City are authorized or required by law or other governmental action to remain closed. If any Interest Payment Date or other payment date is not a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no Interest or other amount shall accrue as a result of any such postponement.
SECTION 10.07. No Recourse Against Others. No director, officer, employee or shareholder, as such, of the Issuer from time to time shall have any liability for any obligations of the Issuer under the Notes or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. This waiver and release are part of the consideration for the Notes. Each of such directors, officers, employees and shareholders is a third party beneficiary of this  Section 10.07 .
SECTION 10.08. Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
 
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SECTION 10.09. Other Provisions. The Issuer initially appoints the Trustee as Paying Agent, Registrar, Conversion Agent and authenticating agent.
The Issuer’s address is:
CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4415
The Trustee’s address is:
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Fax: 212-815-5390 or 212-815-5366
The Mexican Trustee’s address is:
The Bank of New York Mellon, S.A., Institución de Banca Múltiple
c/o The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Fax: 212-815-5390 or 212-815-5366
Banamex’s address is:
Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex
Calzada del Valle No. 350 Oriente, 1º Piso
Colonia del Valle
66220 San Pedro Garza García, Nuevo León
México
Phone: +52 81 1226 1984
Fax: +52 81 1226 2097
Attention: Nelly Wing
E mail: nwing@banamex.com
SECTION 10.10. Governing Law. (a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO AND HOLDERS OF NOTES BY ACCEPTING A BENEFICIAL INTEREST IN THE NOTES EACH HEREBY WAIVE ANY
 
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RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
(i) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes, as the case may be, may be instituted in any U.S. Federal or State court located in the State of New York, County of New York and in the courts of its own corporate domicile, in respect of actions brought against the relevant party as a defendant,
(ii) waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,
(iii) irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding and waives the right to challenge such submission in any other jurisdiction that it may be entitled by reason of its present or future domicile or other reason,
(iv) agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and
(v) agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.
(c) The Issuer has appointed Corporate Creations Network Inc., 1040 Avenue of the Americas # 2400, New York, NY 10018 (U.S.A.) as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any U.S. Federal or State court located in the State of New York, County of New York. The Issuer hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer agrees to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Issuer agrees that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer of a successor agent in The City of New York, New York as authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer.
 
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(d) To the extent that the Issuer has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Indenture or the Notes.
(e) Nothing in this Section 10.10 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
SECTION 10.11. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Issuer or a Subsidiary of the Issuer. Any such other indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.12. Successors. All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.13. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.14. Table of Contents, Headings, etc. The Table of Contents, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.15. Currency Indemnity. (a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer under or in connection with the Notes or this Indenture, including damages. To the greatest extent permitted under applicable law, any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or any Subsidiary of the Issuer or otherwise) by any Holder in respect of any sum expressed to be due to it from the Issuer shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). To the greatest extent permitted under applicable law, if that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer shall indemnify and hold harmless the recipient against any loss or cost sustained by it in making any such purchase to the greatest extent permitted under applicable law. For the purposes of this  Section 10.15 , it will be sufficient for the Holder to certify that it would have suffered a loss had an actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
 
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(b) The indemnities of the Issuer contained in this Section 10.15, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuer under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer; (iii) shall apply irrespective of any waiver granted by any Holder or the Trustee from time to time; (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order; and (v) may not be enforceable under Mexican law.
SECTION 10.16. Adjustments for Currency Exchange Rates. In the event that any amount used in any calculation in this Indenture is expressed in Pesos, such amount shall, for purposes of such calculation, be deemed to be converted into U.S. Legal Tender at the spot rate of exchange in The City of New York at which the Trustee on the date of determination is able to purchase U.S. Legal Tender with such amount. The “spot rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, U.S. Legal Tender.
SECTION 10.17. Change in ADSs or CPOs. (a) If the Issuer’s ADSs issued under a depositary receipt program sponsored by the Issuer cease to represent the Issuer’s CPOs, all references in this Indenture to the Issuer’s ADSs will be deemed to have been replaced by a reference to:
(i) the number of CPOs of the Issuer corresponding to the Issuer’s ADSs on the last day on which the Issuer’s CPOs were represented by ADSs issued under a depositary receipt program sponsored by the Issuer; and
(ii) as adjusted pursuant to the adjustment provisions below, any other property the Issuer’s ADSs represented as if such other property had been distributed to holders of the Issuer’s ADSs on that day.
(b) If the Issuer’s Ordinary Shares cease to be the securities underlying such CPOs issued under a depositary receipt program sponsored by the Issuer, all references in this Indenture to the Issuer’s CPOs will be deemed to have been replaced by a reference to:
(i) the number of Ordinary Shares of the Issuer corresponding to the Issuer’s CPOs on the last day on which the Issuer’s Ordinary Shares constituted the securities underlying CPOs issued under a depositary receipt program sponsored by the Issuer; and
(ii) as adjusted pursuant to the adjustment provisions below, any other property the Issuer’s CPOs represented as if such other property had been distributed to holders of the Issuer’s CPOs on that day.
SECTION 10.18. USA PATRIOT ACT. The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA Patriot Act ”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
 
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ARTICLE XI
SUBORDINATION
SECTION 11.01. Notes Subordinated to Senior Indebtedness and Equal in Right of Payment to Unsecured Subordinated Indebtedness . The Issuer covenants and agrees, and each Holder by his acceptance thereof likewise covenants and agrees, that all Notes are subject to the provisions of this Article XI; and each Person holding any Note, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions and acknowledges that such provisions are for the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Each Holder authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate, in the sole discretion of the Trustee, to acknowledge or effectuate the subordination between the Holders and the holders of Senior Indebtedness as provided in this Article XI and appoints the Trustee as such Holder’s attorney-in-fact for any and all such purposes.
The payment of the principal of, premium, if any, and Interest on and any other payment due pursuant to this Indenture or any Notes issued hereunder (including, without limitation, the payment or deposit of the Change of Control Payment pursuant to Article III) or upon conversion, if applicable, shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the Issue Date or thereafter created, incurred, assumed or guaranteed.
Each Holder by accepting a Note acknowledges and agrees that the subordination provision set forth in this Article XI are, and are intended to be, an inducement and consideration to each holder of any Senior Indebtedness of the Issuer, whether such Senior Indebtedness was created before or after the issuance of the Notes, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness, and such holder of Senior Indebtedness shall be deemed conclusively to have relied upon such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness, and such holder is made an obligee hereunder and may enforce directly such subordination provisions.
The Issuer agrees, and each Holder by accepting a Note acknowledges and agrees, that the Indebtedness evidenced by the Note is equal in right of payment to Issuer’s current unsecured subordinated Indebtedness, which includes $715,000,000 of Issuer’s 4.875% Convertible Subordinated Notes due 2015 issued on March 30, 2010, and to any future unsecured subordinated Indebtedness.
SECTION 11.02. Notes Subordinated to Prior Payment of All Senior Indebtedness On Dissolution, Liquidation, Reorganization, etc., of the Issuer . Upon any payment or distribution of the assets of the Issuer of any kind or character, whether in cash, property or securities
 
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(including any collateral at any time securing the Notes, other than money or U.S. Government Obligations deposited in trust as described in Section 11.07), to creditors upon any dissolution, winding-up, total or partial liquidation,  concurso mercantil , quiebra  or reorganization of the Issuer (whether voluntary or involuntary, or in bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, or upon an assignment for the benefit of creditors, or any marshalling of the assets of the Issuer, or upon any similar proceedings), then in such event:
(a) all Senior Indebtedness (including principal thereof and interest thereon) shall first be paid in full before any Payment of the Notes (as defined in  Section 11.05 ) is made;
(b) any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities (including any collateral at any time securing the Notes, other than money or U.S. Government Obligations deposited in trust as described in  Section 11.07 ), to which the Holders or the Trustee on behalf of the Holders would be entitled except for the provisions of this Article XI, including any such payment or distribution which may be payable or deliverable by reason of the payment of another debt of the Issuer being subordinated to the payment of the Notes, shall be paid or delivered by any debtor, custodian or other person making such payment or distribution, directly to the holders of the Senior Indebtedness or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section 11.02, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, shall be received by the Trustee or the Holders before all Senior Indebtedness is paid in full, such payment or distribution (subject to the provisions of  Section 11.06  and Section 11.07 ) shall be held in trust for the benefit of, and shall be immediately paid or delivered by the Trustee or such Holders, as the case may be, to the holders of Senior Indebtedness remaining unpaid, or their Representative or Representatives, ratably according to the aggregate amounts remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Indebtedness.
The Issuer shall give prompt notice to the Trustee of any dissolution, winding-up, liquidation, concurso mercantil, quiebra or reorganization of the Issuer.
Upon any prepayment, payment or distribution of assets of the Issuer referred to in this Article XI, the Trustee, subject to the provisions of  Section 7.01  and  Section 7.02 , and the Holders shall be entitled to conclusively rely upon any order or decree by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceeding is pending, or a certificate of the liquidating trustee or agent or other person making any
 
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distribution to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other Indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XI;  provided  that the foregoing shall apply only if such court, trustee, liquidating trustee or other person has been fully apprised of the provisions of this Article XI.
SECTION 11.03. Holders to be Subrogated to Right of Holders of Senior Indebtedness. Subject to the prior payment in full of all Senior Indebtedness, the Holders shall be subrogated (equally and ratably with the holders of any Indebtedness of the Issuer which by its express terms is subordinated to Indebtedness of the Issuer to substantially the same extent as the Notes are subordinated and is entitled to like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets of the Issuer applicable to the Senior Indebtedness until the principal of and Interest on the Notes shall be paid in full, and for purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness of assets, whether in cash, property or securities, distributable to the holders of Senior Indebtedness under the provisions hereof to which the Holders would be entitled except for the provisions of this Article XI, and no payment pursuant to the provisions of this Article XI to the holders of Senior Indebtedness by the Holders shall, as among the Issuer, its creditors other than the holders of Senior Indebtedness, and the Holders, be deemed to be a payment by the Issuer to or on account of Senior Indebtedness, it being understood that the provisions of this Article XI are, and are intended, solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 11.04. Obligations of the Issuer Unconditional. Nothing contained in this Article XI or elsewhere in this Indenture or in any Note is intended to or shall impair the obligation of the Issuer, which is absolute and unconditional, to pay to the Holders the principal of and Interest on the Notes, as and when the same shall become due and payable in accordance with the terms of the Notes, or to affect the relative rights of the Holders and other creditors of the Issuer other than the holders of Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon the happening of an Event of Default under this Indenture, subject to the provisions of Article VI, and the rights, if any, under this Article XI of the holders of Senior Indebtedness in respect of assets, whether in cash, property or securities, of the Issuer received upon the exercise of any such remedy.
SECTION 11.05. Issuer Not to Make Payment with Respect to Notes in Certain Circumstances. (a) Subject to Section 11.14 , upon the occurrence of any default in the payment of principal of (or premium, if any) or interest on Senior Indebtedness (a “ Payment Default ”), unless and until the amount of Senior Indebtedness affected by such Payment Default then due shall have been paid in full, or such Payment Default shall have been cured or waived or shall have ceased to exist, the Issuer shall not pay principal of, premium, if any, or Interest on the Notes or any other amount due pursuant to this Indenture or any Notes or make any deposit pursuant to Article III or  Section 8.01  and shall not repurchase, redeem or otherwise retire any Notes (collectively, “ Payment of the Notes ”).
 
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(b) Unless Section 11.02 shall be applicable, upon (1) the occurrence of a default on Designated Senior Indebtedness (other than a Payment Default) that occurs and is continuing that permits the holders of such Designated Senior Indebtedness (or their Representative or Representatives) to accelerate its maturity and (2) receipt by the Issuer and the Trustee from the holders of such Designated Senior Indebtedness or their respective agents or Representatives of written notice (a “ Payment Blockage Notice ”) of such occurrence and the imposition of a Payment Blockage Period hereunder, then the Issuer shall not make any Payment of the Notes for a period (the “ Payment Blockage Period ”) commencing on the earlier of the date of receipt by the Issuer or the Trustee of such notice and ending on the earlier of (subject to any blockage of payments that may then be in effect under this  Section 11.05 ) (x) the date 179 days after such date, (y) the date such default shall have been cured or waived in writing or shall have ceased to exist or such Senior Indebtedness shall have been discharged, or (z) the date such Payment Blockage Period shall have been terminated by written notice to the Issuer or the Trustee from such holders of such Designated Senior Indebtedness, or their respective agents or Representatives, after which, in case of clause (x), (y) or (z), as the case may be, the Issuer shall resume making any and all required payments (unless such Designated Senior Indebtedness has been accelerated). Notwithstanding any other provision of this Indenture, only one Payment Blockage Period may be commenced within any consecutive 365-day period, and no event of default with respect to any Designated Senior Indebtedness that existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to such Designated Senior Indebtedness shall be, or can be made, the basis for the commencement of a second Payment Blockage Period whether or not within a period of 365 consecutive days unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. In no event will a Payment Blockage Period extend beyond 179 days.
(c) In the event that, notwithstanding the provisions of this Section 11.05, any Payment of the Notes shall be made by or on behalf of the Issuer and received by the Trustee, any Holder or any Paying Agent (or, if the Issuer is acting as its own Paying Agent, money for any such payment shall be segregated and held in trust), which payment was prohibited by this  Section 11.05 , then, unless and until the amount of Senior Indebtedness then due, as to which a default shall have occurred, shall have been paid in full, or such default shall have been cured or waived, such payment (subject, in each case, to the provisions of Section 11.06  and  Section 11.07 ) shall be held in trust for the benefit of, and shall be immediately paid over to, the holders of Senior Indebtedness or their Representative or Representatives, ratably according to the aggregate amounts remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of Senior Indebtedness. The Issuer shall give prompt written notice to the Trustee of any default under any Senior Indebtedness or under any agreement pursuant to which Senior Indebtedness may have been issued.
SECTION 11.06. Notice to Trustee. (a) The Issuer shall give prompt written notice to the Trustee of any fact known to the Issuer which would prohibit the making of any payment to or by the Trustee in respect of the Notes, but failure to give such notice shall not affect the subordination provided in this Article XI of the Notes to Senior Indebtedness. Within 30 calendar days after the occurrence of any event which would constitute a Default or an Event of
 
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Default, the Issuer shall deliver notice to the Trustee of such events, their status and what action the Issuer is taking or proposes to take in respect thereof. Notwithstanding the provisions of this Article XI or any other provision of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee, unless and until a Trust Officer of the Trustee shall have received written notice thereof from the Issuer or from the holder or holders of Senior Indebtedness or from their Representative or Representatives; and, prior to the receipt of any such notice, the Trustee, subject to the provisions of  Section 7.01  and  Section 7.02 , shall be entitled to assume conclusively that no such facts exist.
(b) The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a Representative of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a Representative of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article XI, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of each Person under this Article XI, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
SECTION 11.07. Application by Trustee of Monies Deposited with It. Money or U.S. Government Obligations deposited in trust with the Trustee pursuant to  Section 8.01  and not in violation of this Article XI shall be for the sole benefit of Holders and shall thereafter not be subject to the subordination provisions of this Article XI. Otherwise, any deposit of monies by the Issuer with the Trustee or any Paying Agent (whether or not in trust) for the payment of the principal of or Interest on any Notes shall be subject to the provisions of  Sections 11.01 ,  11.02 ,  11.03  and  11.05 ; except that, if at least three Business Days prior to the date on which by the terms of this Indenture any such monies may become payable for any purpose (including, without limitation, the payment of either the principal of or Interest on any Note), a Trust Officer of the Trustee shall not have received with respect to such monies the notice provided for in  Section 11.06 , then the Trustee or any Paying Agent shall have full power and authority to receive such monies and to apply such monies to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to or after such date. This Section 11.07  shall be construed solely for the benefit of the Trustee and the Paying Agent and shall not otherwise affect the rights that holders of Senior Indebtedness may have to recover any such payments from the Holders in accordance with the provisions of this Article XI.
SECTION 11.08. Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of Senior Indebtedness. No right of any present or future holders of any Senior Indebtedness to enforce subordination, as herein provided, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such
 
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holder may have or be otherwise charged with. The holders of any Senior Indebtedness may extend, renew, modify or amend the terms of such Senior Indebtedness or any security therefor and release, sell or exchange such security and otherwise deal freely with the Issuer, all without affecting the liabilities and obligations of the parties to this Indenture or the Holders. No amendment of this Article XI or any defined terms used herein or any other Sections referred to in this Article XI which adversely affects the rights hereunder of holders of Senior Indebtedness, shall be effective unless the holders of such Senior Indebtedness (required pursuant to the terms of such Senior Indebtedness to give such consent) have consented thereto.
SECTION 11.09. Trustee to Effectuate Subordination. Each Holder by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge and effectuate the subordination provided in this Article XI and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 11.10. Right of Trustee to Hold Senior Indebtedness. The Trustee, in its individual capacity, shall be entitled to all of the rights set forth in this Article XI in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Nothing in this Article XI shall apply to claims of, or payments to, the Trustee under or pursuant to  Section 7.07 .
SECTION 11.11. Article XI Not to Prevent Events of Default. The failure to make a Payment of the Notes by reason of any provision in this Article XI shall not be construed as preventing the occurrence of an Event of Default under  Section 6.01 .
SECTION 11.12. No Fiduciary Duty Created to Holders of Senior Indebtedness. Notwithstanding any other provision in this Article XI, the Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness by virtue of the provisions of this Article XI or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article XI and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION 11.13. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Issuer and be then acting hereunder, the term “Trustee” as used in this Article XI shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article XI in addition to or in place of the Trustee;  provided, however , that  Section 11.06 ,  Section 11.10  and  Section 11.12  shall not apply to the Issuer if it acts as Paying Agent.
SECTION 11.14. Certain Conversion Deemed Payment. For the purposes of this Article XI only, (1) the issuance and delivery of Junior Securities upon conversion of Notes in accordance with Article XII shall not be deemed to constitute a payment or distribution on account of the principal of or premium or Interest on Notes or on account of the purchase, redemption, retirement or other acquisition of Notes and shall not be prohibited by  Section 11.02 , and (2) the payment, issuance or delivery of cash, property or securities (other than Junior
 
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Securities) upon conversion of a Note shall be deemed to constitute payment on account of principal of such Note. The term “ Junior Securities ” means (a) shares of any stock of any class, ordinary participation certificates ( certificados de participación ordinarios ) or other securities having stock of the Issuer as underlying securities or ADRs, of the Issuer and (b) securities of the Issuer which are subordinated in right of payment to all Senior Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Notes are so subordinated as provided in this Article XI. Nothing contained in this Article XI or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Issuer, its creditors other than holders of Senior Indebtedness and the Holders of the Notes, the right, which is absolute and unconditional, of the Holder of any Note to convert such Note in accordance with Article XII.
SECTION 11.15. Contractual Subordination. This Article XI represents a bona fide agreement of contractual subordination pursuant to Section 510(b) of the Title 11, U.S. Code.
SECTION 11.16. Acceleration of Notes. If payment of the Notes is accelerated because of an Event of Default, the Issuer shall promptly notify holders of Senior Indebtedness (or their Representative or Representatives) of the acceleration.
ARTICLE XII
CONVERSION
SECTION 12.01. Right to Convert. Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert at any time after June 30, 2011 and prior to the close of business on the fourth Business Day immediately preceding the Maturity Date,  provided, however , that a Holder may convert a Note or portion thereof subject to an election for repurchase only if such Holder withdraws such election in accordance with  Section 3.04(e)  to convert the principal amount of any Note held by such Holder, or any portion of such principal amount which is U.S.$1,000 or an integral multiple thereof,  provided further  that the portion not so converted is in a minimum principal amount of U.S.$100,000, into fully paid and non-assessable CPOs;  provided  that the Issuer’s obligation to deliver CPOs shall, except as otherwise provided in this Article XII, be satisfied by delivering a number of ADSs based on the Conversion Rate in effect at such time, by surrender of the Note to be so converted in whole or in part in the manner provided in  Section 12.02 . A Holder is not entitled to any rights of a holder of ADSs until such Holder has converted his or her Notes to ADSs, and only to the extent such Notes are deemed to have been converted to ADSs under this Article XII.
SECTION 12.02. Exercise of Conversion Privilege; Issuance of ADSs on Conversion; No Adjustment for Interest or Dividends . To exercise, in whole or in part, the conversion privilege with respect to any Note, the Holder of such Note shall surrender such Note, duly endorsed, at an office or agency maintained by the Issuer pursuant to  Section 4.04 , and shall give a duly signed written notice of conversion, in the form provided on the Notes or available from the Conversion Agent (or such other notice which is acceptable to the Issuer) to the Conversion Agent, that the Holder elects to convert such Note or such portion thereof specified in said notice and the Conversion Agent shall give notice to the Issuer (at the address provided in Section
 
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10.09 with a copy to Francisco J. Contreras Navarro (Fax: +1 52 81 8888 4519)) and Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex (“ Banamex ”) (at the address provided in  Section 10.09 ) of receipt of such notice. Such notice shall also state the name or names (with address or addresses) in which the certificate or certificates for ADSs which are issuable on such conversion shall be issued, and shall be accompanied by transfer Taxes, if required pursuant to Section 12.07 . Each such Note surrendered for conversion shall, unless the ADSs issuable on conversion are to be issued in the same name as the registration of such Note, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Issuer duly executed by, the Holder or his or her duly authorized attorney. The date on which the requirements set forth in this paragraph have been satisfied with respect to a Note (or portion thereof) will be the “ Conversion Date ” and a converting Holder will become the record holder of any ADSs upon such conversion as of such Conversion Date. To exercise, in whole or in part, the conversion privilege with respect to a beneficial interest in a Global Security, a holder of such a beneficial interest must comply with the Depositary’s procedures for converting a beneficial interest in a Global Security and pay any funds required by the sixth paragraph of this  Section 12.02  or by  Section 12.07 . Subject to the foregoing procedures, any Holder of a Definitive Security who wishes to exercise the conversion privilege with respect to such Definitive Security must (i) complete and manually sign the Conversion Notice on the back of the Note, or a facsimile of the Conversion Notice; (ii) deliver the Conversion Notice, which is irrevocable, and the Note to the Conversion Agent; (iii) if required by the Issuer or the Conversion Agent, furnish appropriate endorsements and transfer documents; (iv) pay all transfer or similar Taxes if required pursuant to  Section 12.07 ; and (v) if required under the terms of this Indenture, pay funds equal to the amount of Interest payable on the next Interest Payment Date.
On the third Business Day following the relevant Conversion Date, the Issuer shall issue and shall deliver or shall cause issuance and delivery (such delivery referred to herein as the “ Settlement ”) to such Holder at the office or agency maintained by the Issuer for such purpose pursuant to  Section 4.04 , a certificate or certificates for, or effect a book-entry transfer through the Depositary with respect to, the number of ADSs issuable upon the conversion of such Note or portion thereof in accordance with the provisions of this Article XII.
No Interest shall accrue on Notes between the Conversion Date and the Settlement date.
If any calculation required in order to determine the number of ADSs the Issuer must deliver in respect of a given conversion of Notes is based on data or other information that will not be available to the Issuer on the date the requirements set forth in the first paragraph of this  Section 12.02  have been satisfied, the Issuer will delay Settlement of that conversion until no later than the third Business Day after the relevant data or information becomes available. In case any Note of a denomination of an integral multiple greater than U.S.$1,000 is surrendered for partial conversion, and subject to  Section 2.02 , the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of the Note so surrendered, without charge to him or her, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note  provided  that the minimum principal amount of such new note is U.S.$100,000.
Each conversion shall be deemed to have been effected with respect to a Note (or portion thereof) on the Conversion Date, and the Person in whose name any certificate or certificates for
 
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ADSs are issuable upon such conversion shall be deemed to have become on said date the holder of record of the ADSs represented thereby. Any such surrender on any date when the Issuer’s stock transfer books are closed shall constitute the Person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date upon which such Note is surrendered.
If any Note or a portion thereof is surrendered for conversion after 5:00 p.m. New York City time on a Record Date but prior to 9:00 a.m. New York City time on the immediately following Interest Payment Date, Holders of such Notes at 5:00 p.m. New York City time on the regular Record Date will receive payment of the Interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion of such Notes at any time after the close of business on the Record Date. Any Note or portion thereof surrendered for conversion by a Holder during the period from 5:00 p.m. New York City time on the Record Date through 9:00 a.m. New York City time on the immediately following Interest Payment Date shall be accompanied by payment, in funds acceptable to the Issuer, of an amount equal to the Interest otherwise payable on such Interest Payment Date on the principal amount being converted;  provided, however , that no such payment need be made (1) if the Notes are surrendered for conversion after 5:00 p.m. New York City Time on the Record Date immediately preceding the Maturity Date, (2) if the Issuer has specified a Tax Redemption Date that is after a Record Date and on or prior to the corresponding Interest Payment Date, (3) if the Issuer has specified a Change of Control Purchase Date that is after a Record Date and on or prior to the corresponding Interest Payment Date or (4) to the extent of any overdue Interest, if any overdue Interest exists at the time of conversion with respect to such Note. An amount equal to such payment shall be paid by the Issuer on such Interest Payment Date to the Holder at the close of business on such Record Date;  provided ,  however , that if the Issuer defaults in the payment of Interest, if applicable, on such Interest Payment Date, such amount shall be paid to the Person who made such required payment. Except as provided in this  Section 12.02 , no payment of Interest shall be made and no adjustment shall be made for Interest accrued, if any, on any Note converted or for dividends on any shares issued upon the conversion of such Note as provided in this Article XII.
With respect to any Notes bearing a Restricted Securities Legend on the date of conversion, the ADSs distributed upon conversion will be issued in physical certificated form, will not be held in book-entry form through the facilities of the Depositary and shall be treated as “restricted securities,” and the Issuer will affix the applicable Restricted ADS Legend that is set forth in  Exhibit E  hereto upon such ADSs;  provided  that if any such ADSs are being immediately resold pursuant to Rule 144, such ADSs need not be issued with such legend in connection with such sale.
Upon conversion, a Holder will not be entitled to any additional cash payment for Interest unless such conversion occurs between a Record Date and the corresponding Interest Payment Date. Except in such case, by delivering the amount of cash and/or the number of ADSs issuable on conversion to the Trustee, the Issuer will be deemed to have satisfied its obligation to pay the principal amount of the Notes so converted and its obligation to pay Interest, attributable to the period from the most recent Interest Payment Date to, but not including the Conversion Date (which amount will be deemed paid in full rather than cancelled, extinguished or forfeited).
 
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SECTION 12.03. No Issuance of Fractional Shares. No fractional portions of ADSs shall be issued upon conversion of Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full ADSs which shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered for conversion. If any fractional portions of ADSs otherwise would be issuable upon the conversion of any Note or Notes, the Issuer will deliver a number of ADSs rounded up to the nearest whole number of ADSs.
SECTION 12.04. Conversion Rate. The Conversion Rate shall be as specified in the form of Note attached as Exhibit A hereto, subject to adjustment as provided in this Article XII.
SECTION 12.05. Conversion Rate Adjustments. (a) The applicable Conversion Rate shall be adjusted from time to time by the Issuer as follows, except that the Issuer will not make any adjustments to the Conversion Rate if Holders participate (as a result of holding Notes and at the same time as ADS holders participate) in any of the transactions described below as if such Holders held a number of ADSs equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders without having to convert their Notes. A Holder will be deemed to have so participated if the transaction results in an issuance of securities or a distribution of other property that are held by the ADS depositary or the CPO trustee (to the extent required to be later distributed by the CPO trustee to the ADS depository for the benefit of such Holders of the Notes) at the time of conversion of such Notes into ADSs.
(i) If the Issuer issues solely Ordinary Shares as a dividend or any other distribution (including by recapitalization of retained earnings) on all or substantially all Ordinary Shares, or if the Issuer effects a share split or share combination of its Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	  	OS	  	 	 	
 	  	OS0	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following (x) the date fixed for the determination of holders of Ordinary Shares entitled to receive such dividend or distribution or (y) the date on which such split or combination becomes effective, as applicable (such date specified in clause (x) or (y), the “ Dividend Record Date ”);	
 
 CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Dividend Record Date;	
 
OS0 =	  	 
the number of Ordinary Shares outstanding immediately prior to the open of business on the Dividend Record Date; and	
 
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OS =	  	 
the number of Ordinary Shares that would have been outstanding immediately prior to the open of business on the Dividend Record Date as adjusted to take into account such dividend, distribution, split or combination.	
If any dividend or distribution of the type described in this clause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or the outstanding Ordinary Shares are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the Issuer’s shareholders’ meeting or Board of Directors determines not to pay such dividend or distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to have been paid, or (in the case of a stock split or combination) the date on which such split or combination was to have been effective, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared or announced.
(ii) If the Issuer distributes to all or substantially all holders of Ordinary Shares any rights, options, warrants or other securities entitling them for a period of not more than 45 calendar days from the record date for such distribution to subscribe for or purchase Ordinary Shares (or securities convertible into Ordinary Shares), at a price per Ordinary Share (or conversion price per Ordinary Share) less than the average of the Last Reported Sale Prices of the Ordinary Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution, the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	(OS0 + X)	  	 	 	
 	 	(OS0 + Y)	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the date fixed for the determination of shareholders entitled to receive such rights, options, warrants or other securities (such date, the “ Rights Distribution Record Date ”);	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Rights Distribution Record Date;	
 
OS0 =	  	 
the number of Ordinary Shares outstanding immediately prior to the open of business on the Rights Distribution Record Date;	
 
X =	  	 
the total number of Ordinary Shares issuable pursuant to such rights, options, warrants or other securities;	
 
and	  	 	
 
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Y =	  	the number of Ordinary Shares equal to the aggregate price payable to exercise such rights, options, warrants or other securities divided by the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights, options, warrants or other securities.	
If such rights, options, warrants or other securities are not so issued, the Conversion Rate will remain the Conversion Rate that would then be in effect if a Rights Distribution Record Date for such distribution had not been fixed. In addition, to the extent that Ordinary Shares are not delivered after the expiration of such rights, options, warrants or other securities, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options, warrants or other securities been made on the basis of delivery of only the number of Ordinary Shares actually delivered.
For purposes of this clause (ii), in determining whether any rights, options, warrants or other securities entitle the holders to subscribe for or purchase Ordinary Shares at less than the average of the Last Reported Sale Prices of Ordinary Shares for each Trading Day in the applicable 10 consecutive Trading Day Period, there shall be taken into account any consideration the Issuer receives for such rights, options, warrants or other securities and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined by the Issuer’s Board of Directors.
(iii) If the Issuer distributes shares of its Capital Stock, evidences of its Indebtedness, other assets or property or rights or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Ordinary Shares, excluding
(A) dividends or distributions and rights, options, warrants and other securities described in clause (i) or (ii) above or clause (v) below;
(B) dividends or distributions paid exclusively in cash, including as described in clause (iv) below;
(C) dividends or distributions effected pursuant to a reclassification, merger, sale, conveyance or other transaction described in  Section 12.06 , where such dividend or distribution becomes Reference Property as described in Section 12.06 ; and
(D) Spin-Offs to which the provisions set forth below in this clause (iii) shall apply;
then the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	SP0	  	 	 	
 	 	(SP0 - FMV)	  	 	 	
 
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where,	  	 	
 	 	
CR0 =	  	the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such distribution;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such record date;	
 
SP0=	  	 
the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and	
 
FMV =	  	 
the fair market value (as determined by the Issuer’s Board of Directors or a committee thereof) of the shares of Capital Stock, evidences of Indebtedness, assets, property, rights or warrants distributed with respect to each outstanding Ordinary Share as of the open of business on the Ex-Dividend Date for such distribution;	
provided that if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision will be made so that each Holder shall receive on the date on which the distributed property is distributed to holders of Ordinary Shares, for each U.S.$1,000 principal amount of Notes, the amount of distributed property such Holder would have received had such Holder owned a number of Ordinary Shares that it would have been entitled to receive based on the Conversion Rate on the record date for such distribution;  provided further  that if the Issuer’s Board of Directors determines “FMV” for purposes of the foregoing adjustment by reference to the trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
With respect to an adjustment pursuant to this clause (iii) where there has been a payment of a dividend or other distribution on the Ordinary Shares or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “ Spin-Off ”), the Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	(FMV + MP0)	  	 	 	
 	 	MP0    	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the opening of business on the Business Day immediately following the record date for the Spin-Off;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the opening of business on the Business Day immediately following such record date;	
 
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FMV =	  	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period immediately following, and including, the Ex-Dividend Date of the Spin-Off (the “ Valuation Period ”); and	
 
MP0 =	  	 
the average of the Last Reported Sale Prices of the Ordinary Shares over the Valuation Period.	
The adjustment to the applicable Conversion Rate under the preceding paragraph of this clause (iii) will be made immediately after the open of business on the day after the last day of the Valuation Period, but will be given effect as of the open of business on the Business Day immediately following the record date for the Spin-Off. For purposes of determining the applicable Conversion Rate in respect of any conversion during the Valuation Period, references within the portion of this clause (iii) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, but excluding, the Conversion Date.
If any distribution or spin-off described in this clause (iii) results in an adjustment to the Conversion Rate but such distribution or Spin-Off is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution or Spin-Off had not been declared.
(iv) If the Issuer makes or pays any cash dividend or any other cash distribution to all, or substantially all, holders of the outstanding Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	SP0	  	 	 	
 	 	(SP0 - C)	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such dividend or distribution;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such record date;	
 
SP0 =	  	 
the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and	
 
C =	  	 
the amount in cash per share the Issuer distributes to holders of the Ordinary Shares.	
 
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If such dividend or distribution results in an adjustment to the Conversion Rate under the preceding paragraph and such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(v) If (A) the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Ordinary Shares, and (B) the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “ Expiration Date ”), the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	AC + (SP x OS)	  	 	 	
 	 	(SP x OS0)	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day next succeeding the Expiration Date;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day next succeeding the Expiration Date;	
 
AC =	  	 
the aggregate value of all cash and any other consideration (as determined by the Issuer’s Board of Directors or a committee thereof) paid or payable for Ordinary Shares purchased in such tender or exchange offer;	
 
OS0 =	  	 
the number of Ordinary Shares outstanding immediately prior to the time (the “Expiration Time ”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer);	
 
OS =	  	 
the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to such tender or exchange offer); and	
 
SP =	  	 
the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.	
The adjustment to the Conversion Rate under this clause (v) will be made at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the open of business on the Business Day following the Expiration Date. For purposes of determining the applicable Conversion Rate in respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and
 
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including, the Trading Day next succeeding the Expiration Date to, but excluding the Conversion Date. If the Issuer or one of its Subsidiaries is obligated to purchase the Ordinary Shares pursuant to any such tender or exchange offer but the Issuer or the relevant Subsidiary is permanently prevented by applicable law from effecting any such purchase or all or any portion of such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that had been effected.
(vi) Notwithstanding the foregoing, if any calculation required to be made in determining the adjustment to the Conversion Rate under this  Section 12.05(a)  cannot be made at such time because the facts required for such determination cannot be ascertained, the Issuer will make such determination as soon as practicable upon such information becoming determinate, and such adjustment will be made with retroactive effect to the first such date where the adjustment is required to be made.
(vii) To the extent that any event would give rise to an adjustment to be made under more than one of the clauses set forth above, or holders of the Issuer’s Ordinary Shares have the right to elect between distributions that would be covered by more than one of such clauses, the Issuer shall, in good faith, determine the adjustment to be made, including, if applicable, the order of the adjustments.
(b) The Issuer may at its option and in addition to the adjustments required by Section 12.05(a), increase the applicable Conversion Rate to avoid or diminish income Tax to holders of ADSs or rights to purchase ADSs in connection with a dividend or distribution of Ordinary Shares (or rights to acquire Ordinary Shares) or similar event. When a Holder is deemed to have received a distribution or dividend subject to Tax withholding and such deemed distribution or dividend does not give rise to any cash from which any applicable withholding Tax or backup withholding can be satisfied, if the Issuer pays withholding Taxes or applies backup withholding on behalf of a Holder, the Issuer may, at its option, set off such payments against subsequent deliveries of ADSs in respect of the Notes (or against payment on the ADSs).
(c) The Conversion Rate in effect on the Issue Date reflects that, as of the Issue Date, each ADS represents ten (10) CPOs of the Issuer and each CPO has two (2) series A shares and one (1) series B share of the Issuer’s Ordinary Shares as underlying securities. If in conjunction with one of the foregoing adjustment events or otherwise (i) the number of the Issuer’s CPOs represented by each ADS should change, (ii) the number of the Ordinary Shares underlying each CPO should change, (iii) one series of Ordinary Shares were to be disproportionately affected by such event as compared to the other series of Ordinary Shares, or (iv) any other change occurs in the composition of the assets underlying the CPOs or ADSs not contemplated or adequately addressed by the foregoing adjustments, and the applicable Conversion Rate (as so adjusted) does not produce a fair and equitable result, the Issuer will (and the Issuer will instruct the relevant ADS depositary or CPO trustee to) adopt such method as it may deem equitable and practicable vis-à-vis the holders for the purpose of effecting such adjustment to the Conversion Rate.
 
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(d) No adjustment in the applicable Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate;  provided ,  however , that (i) any adjustments which by reason of this Section 12.05(d)  are not required to be made shall be carried forward and taken into account in any subsequent adjustment and (ii) the Issuer shall adjust the Conversion Rate at least annually to account for any such carried forward adjustments. All calculations under this Article XII shall be made by the Issuer and shall be made to the nearest ten thousandth of an ADS. Notwithstanding the foregoing, all adjustments not previously made shall have effect and be made upon conversion of any of the Notes.
Without limiting the foregoing, the Issuer shall not be required to adjust the Conversion Rate: (i) upon the issuance of any Ordinary Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Issuer’s securities and the investment of additional optional amounts in Ordinary Shares under any plan; (ii) upon the issuance of any Ordinary Shares, or options or rights to purchase Ordinary Shares, pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Issuer or any of its Subsidiaries; (iii) upon the issuance of any Ordinary Shares pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in the preceding clause and outstanding as of the Issue Date; (iv) for a change in the par value of the Ordinary Shares; or (iv) for Interest.
(e) Whenever the Conversion Rate is adjusted as provided in this Section 12.05, the Issuer shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officer’s Certificate setting forth the Conversion Rate after such adjustment, detailing the calculation of the Conversion Rate and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Issuer shall prepare and issue a press release containing the relevant information and notify the Trustee and the Trustee shall furnish a copy of such notice to the Holders. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(f) If any distribution or transaction described in Section 12.05(a) above has not yet resulted in an adjustment to the applicable Conversion Rate on the applicable Conversion Date, and the ADSs the Holder will receive on Settlement are not entitled to participate in the relevant distribution or transaction (because they were not held on a related record date), then promptly after such distribution or transaction has occurred, the Issuer will adjust the number of ADSs to be delivered to the Holder as the Issuer determines is appropriate to reflect the relevant distribution or transaction.
(g) For purposes of this Section 12.05, the number of Ordinary Shares at any time outstanding shall not include Ordinary Shares held in the treasury of the Issuer. The Issuer shall not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Issuer.
(h) Except as stated in this Section 12.05 and Section 12.12, the Issuer shall not be required to adjust the Conversion Rate. If, however, the application of the provisions of this  Section 12.05  would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate shall be made (other than as a result of a reverse share split or share combination).
 
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(i) The Issuer shall not take any action pursuant to this Section 12.05 without complying, if applicable, with any applicable rules of any stock exchange on which the ADSs are listed at the relevant time.
SECTION 12.06. Effect of Reclassification, Consolidation, Merger, Combination, Sale, Lease or Transfer. In the event of any (i) reclassification or change of the outstanding Ordinary Shares (other than changes resulting from a subdivision or combination), (ii) consolidation, merger or combination involving the Issuer (other than a merger in which the Issuer is the surviving corporation and which does not result in any reclassification of, or change (other than changes resulting from a subdivision or combination) in, outstanding Ordinary Shares), (iii) sale, assignment, conveyance, transfer, lease or other disposition to another Person of the property and assets of the Issuer and its Subsidiaries as an entirety or substantially as an entirety, or (iv) statutory Ordinary Share exchange, in each case as a result of which holders of Ordinary Shares shall be entitled to receive stock, other securities, other property, assets or cash (or any combination thereof) with respect to or in exchange for such Ordinary Shares, then the Issuer or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture providing that Holders shall thereafter be entitled to convert Notes into the kind and amount of shares of stock and other securities, property, assets or cash (or any combination thereof, but subject to the provisions of Article XI) that a holder of a number of ADSs equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive upon such transaction (such property, the “ Reference Property ”), subject to the right of such Holder to receive the Make Whole Fundamental Change Premium upon compliance with the provisions of  Section 12.12 . In such a case, any increase in the Conversion Rate by the additional ADSs described in  Section 12.12  will not be payable in additional ADSs, but will represent a right to receive the aggregate amount of cash, securities or other property into which the additional Ordinary Shares would convert in the transaction from the surviving entity (or a direct or indirect parent thereof). In the event holders of Ordinary Shares have the opportunity to elect the form of consideration to be received in a reclassification, change, consolidation, merger, combination, sale, lease, assignment, conveyance or other transfer, the Reference Property into which the Notes will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of the Ordinary Shares that affirmatively make such an election, subject to any limitations to which the holders of Ordinary Shares are subject, including pro rata reductions applicable to any portion of the consideration payable. The Issuer shall notify the Conversion Agent and Holders of the weighted average and composition of such Reference Property promptly after determination thereof. The Issuer shall not become party to any such reclassification, change, consolidation, merger combination, sale, lease, assignment, conveyance or other transfer unless the terms of such transaction are consistent with the foregoing. Such supplemental indenture shall provide for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article XII and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Issuer’s Board of Directors shall reasonably consider necessary by reason of the foregoing.
 
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If the Notes become convertible into Reference Property, the Issuer shall notify the Trustee and issue a press release containing the relevant information. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section 12.06 shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales, leases, assignments, conveyances or other transfers. If this  Section 12.06  applies to any event or occurrence,  Section 12.05  shall not apply.
SECTION 12.07. Taxes, Duties, Fees and Costs of Issuance of ADSs or CPOs. If a Holder receives ADSs upon conversion as provided in this Indenture, the Issuer will pay any (a) documentary, stamp or similar issue or transfer Tax, duties or fees, and (b) fees of the depositary for the ADSs, in either case, in connection with the creation or delivery of such ADSs in satisfaction of such conversion, unless in either case, such payment is due because the Holder requests any ADSs to be issued in a name other than the Holder’s name, in which case the Holder will make such payment. In addition, the Issuer will pay any fees or costs in connection with the issuance of the Issuer’s CPOs representing Ordinary Shares as may be needed to allow the Issuer to deposit CPOs with the ADS depositary to create the ADSs deliverable upon conversion of Notes.
SECTION 12.08. Obligation to Cause Sufficient Ordinary Shares, CPOs and ADSs to be Issued for Purposes of Satisfying any Settlement of Conversions . The Issuer shall take all actions reasonably necessary to ensure that, upon every conversion of a Note, ADSs will be available for delivery, and will be delivered, upon such conversion promptly and as provided in this Article XII. The Issuer agrees that all Ordinary Shares underlying CPOs which may be issued and transferred to the CPO trustee upon conversion of Notes, and all CPOs which may be released upon conversion of Notes, shall be duly authorized and validly issued and that upon such issuance and delivery, the Holder of Notes will receive good and valid title to such ADSs, free and clear of all Liens, encumbrances and claims. In furtherance of the foregoing, the Issuer will comply with the following covenants:
(a) the Issuer shall not declare any dividend, subdivision or other distribution of the Issuer’s Ordinary Shares that would cause an anti-dilution adjustment under the Notes unless, (x) at such time, the Issuer holds, or the shareholders concurrently approve, a sufficient number of Available Treasury Shares and (y) as soon as practicable, but in no event later than 45 days following the actions described in subclause (x), a sufficient number of CPOs is authorized and available for release, in each case to satisfy the Issuer’s obligations in connection with a conversion of all Notes taking into account such adjustment; and
(b) within 45 days of any event that causes or with the passage of time would cause the maximum number of Ordinary Shares or CPOs, necessary to satisfy the Issuer’s obligations in connection with a conversion of all Notes following such event to exceed the number of Available Treasury Shares or available CPOs, the Issuer will cause a sufficient number of Available Treasury Shares to be authorized or CPOs to be authorized and available for release, in order to satisfy its obligations in connection with a conversion of all Notes following such event.
 
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For so long as the ADSs are listed on the New York Stock Exchange, the Issuer will take actions reasonably necessary for the listing on the New York Stock Exchange of all ADSs deliverable on conversion of Notes and will take all actions (including obtaining or giving approvals and consents and paying listing fees) reasonably necessary to ensure that each ADS delivered on conversion of a Note will, upon such delivery be so listed.
SECTION 12.09. Responsibility of Trustee and the Conversion Agent. The Trustee and any other Conversion Agent shall not at any time be under any duty of responsibility to any Holders to determine whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any ADSs, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Note; and the Trustee makes no representations with respect thereto. The Trustee and any other Conversion Agent shall not be responsible for any failure of the Issuer to issue, transfer or deliver any ADSs or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Issuer contained in this Article XII. Without limiting the generality of the foregoing, the Trustee and any other Conversion Agent shall not have any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to  Section 12.06  relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of its Notes after any event referred to in such  Section 12.06  or to any adjustment to be made with respect thereto, but, subject to the provisions of  Section 7.01 , may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate and Opinion of Counsel (which the Issuer shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor any Conversion Agent shall have any duties to holders of the Issuer’s Ordinary Shares obtained by such holder under this Article XII, or any duty to monitor whether the Issuer issues (timely or otherwise) ADSs to Holders under this Article XII. In addition, without limiting the generality of the foregoing, the Trustee and any other Conversion Agent shall not have any responsibility to determine whether or to ensure that any ADS issued upon conversion of a Restricted Note shall bear any legend required by  Section 2.06(d)  or  Section 12.02  or the restricted or unrestricted CUSIP numbers contemplated by  Section 2.14 , or compliance with any similar provision relating to the ADSs, nor shall the Trustee or any Conversion Agent be responsible for ensuring compliance with the restrictions set forth in  Section 12.11 .
Except as otherwise provided herein, the Issuer or its agents shall be responsible for making all calculations and determinations called for under this Indenture and the Notes. These calculations include, but are not limited to, determinations of the last reported sale prices of ADSs, accrued Interest payable on the Notes and the applicable Conversion Rate. The Issuer or its agents shall make all these calculations and determinations in good faith and, absent manifest error, the Issuer’s calculations will be final and binding on holders of Notes. The Issuer or its agents shall provide a schedule of the Issuer’s calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent shall be entitled to rely conclusively upon the accuracy of the Issuer’s calculations without independent verification.
 
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Neither the Trustee nor the Conversion Agent shall have any duty to monitor the stock price. The Trustee will forward the Issuer’s calculations to any Holder upon the written request of that Holder.
SECTION 12.10. [Reserved].
SECTION 12.11. Restriction on ADSs Issuable Upon Conversion. (a) ADSs to be issued upon conversion of Notes that bear a Restricted Securities Legend at the time of such conversion shall be physically delivered in certificated form to the Holders converting such Notes and the certificate representing such ADSs shall bear the Restricted ADS Legend unless removed in accordance with  Section 12.11(c) .
(b) If (i) ADSs to be issued upon conversion of Notes that bear a Restricted Securities Legend at the time of such conversion are to be registered in a name other than that of the Holder of such Note or (ii) ADSs represented by a certificate bearing the Restricted ADS Legend are transferred subsequently by such Holder, then, unless (i) with respect to ADSs issued upon conversion of Restricted Notes, the Restricted Securities Legend on the Global Securities has been removed pursuant to Section 2.07(c)  or (ii) a shelf registration statement has become effective with respect to the resale of such ADSs and such ADSs are being transferred pursuant thereto, the Holder must deliver to the transfer agent for the ADSs a certificate in substantially the form of  Exhibit F  hereto as to compliance with the restrictions on transfer applicable to such ADSs and neither the transfer agent nor the registrar for the ADSs shall be required to register any transfer of such ADSs not so accompanied by a properly completed certificate.
(c) Except in connection with a transfer described in Section 12.11(b), if certificates representing ADSs are issued upon the registration of transfer, exchange or replacement of any other certificate representing ADSs bearing the Restricted ADS Legend, or if a request is made to remove such Restricted ADS Legend from certificates representing ADSs, the certificates so issued shall bear the Restricted ADS Legend, or the Restricted ADS Legend shall not be removed, as the case may be, unless there is delivered to the Issuer such satisfactory evidence, which, except in the case of a transfer made pursuant to Rule 144 under the Securities Act, may include an opinion of counsel pursuant to the laws in the State of New York, as may be reasonably required by the Issuer, that neither the legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144 under the Securities Act or that such ADSs are securities that are not “restricted” within the meaning of Rule 144 under the Securities Act. Upon provision to the Issuer of such reasonably satisfactory evidence, the Issuer shall cause the transfer agent for the ADSs to countersign and deliver certificates representing ADSs that do not bear the legend.
(d) Notwithstanding Section 12.11(c), any certificate representing ADSs issued upon conversion of Notes (or security issued in exchange or substitution therefor) as to which the restrictions on transfer shall have expired in accordance with their terms or that has been transferred, replaced or exchanged on or after the date that the Issuer, pursuant to  Section 2.07(c) , removes the Restricted Securities Legend from the Notes, or that has been transferred pursuant to a resale registration statement that has been declared effective under the Securities Act may, upon surrender of such stock certificate to the Registrar for exchange, be exchanged for a new certificate, of like tenor and aggregate number of ADSs, which shall not bear any Restricted ADS Legend.
 
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SECTION 12.12. Make Whole Premium Upon a Fundamental Change. (a) If there shall have occurred a Fundamental Change, the Issuer shall pay a “ Make Whole Fundamental Change Premium ” to the Holders of the Notes who elect to convert their Notes in connection with such Fundamental Change. A conversion of Notes will be deemed for these purposes to be “in connection with” such Fundamental Change if the notice of conversion of the Notes is received by the Conversion Agent from, and including, the later of (1) 30 scheduled Trading Days before the anticipated effective date of such Fundamental Change and (2) the date on which the Issuer notifies the Holders of the anticipated “ Effective Date ” of a Fundamental Change (in accordance with the next sentence and the next succeeding sentence) and ending 30 Business Days following the actual Effective Date (but, in the case of a Change of Control, ending prior to the close of business on the Business Day immediately preceding the Change of Control Purchase Date). The Issuer will notify Holders and the Trustee of the anticipated Effective Date and issue a press release as soon as practicable after the Issuer first determines the anticipated Effective Date;  provided  that in no event will the Issuer be required to provide such notice to the Holders and the Trustee before the earlier of such time as the Issuer or its Affiliates (A) has publicly disclosed or acknowledged the circumstances giving rise to such anticipated Fundamental Change or (B) is required to publicly disclose under applicable law or the rules of any stock exchange on which the Issuer’s equity is then listed the circumstances giving rise to such anticipated Fundamental Change. The Issuer will use its commercially reasonable efforts to make such determination in time to deliver such notice no later than 30 days prior to such anticipated Effective Date.
In respect of Conversion Dates falling prior to the anticipated Effective Date, the settlement shall occur on the third Business Day following the relevant Conversion Date at the then applicable Conversion Rate without regard to the Make Whole Fundamental Change Premium and the Additional ADSs shall be delivered on the actual Effective Date in settlement of all such conversions. In respect of Conversion Dates falling on or after the actual Effective Date of the Fundamental Change, the settlement shall occur on the third Business Day following the relevant Conversion Date at the then applicable Conversion Rate (adjusted for the Make Whole Fundamental Change Premium).
Notwithstanding the foregoing, if any information required in order to calculate the conversion consideration deliverable will not be available as of the applicable settlement date, the Issuer will deliver the Additional ADSs resulting from that adjustment on the third Trading Day after the earliest Trading Day on which such calculation can be made.
The Make Whole Fundamental Change Premium will consist of an increase in the Conversion Rate for such Notes by a number of additional ADSs (the “ Additional ADSs ”) per U.S.$1,000 principal amount of Notes, as determined in accordance with the table below, based on the Effective Date and the price (the “ ADS Price ”) paid (or deemed paid) in the Fundamental Change per ADS (or, if applicable, the price per Ordinary Share or per CPO, transposed into a price per ADS). If the holders of ADSs receive only cash in a conversion in connection with a Fundamental Change described in clause (3) of the definition of Fundamental Change, the ADS Price shall be the cash amount paid per ADS. Otherwise, the ADS Price shall be the average of the Last Reported Sale Prices of the ADSs over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date.
 
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The ADS Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted ADS Prices will equal the ADS Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the ADS Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of additional ADSs set forth in the table below will be adjusted in the same manner as the Conversion Rate as set forth in  Section 12.05  hereof, other than as a result of an adjustment of the Conversion Rate by adding the Make Whole Fundamental Change Premium as described above.

ADS Price	 	
Effective Date	  	$8.68	 	  	$10.00	 	  	$12.50	 	  	$15.00	 	  	$17.50	 	  	$20.00	 	  	$25.00	 	  	$30.00	 	  	$35.00	 	  	$40.00	 	  	$50.00	 	
March 15, 2011	  	 	26.5863	  	  	 	21.3492	  	  	 	13.8100	  	  	 	9.6178	  	  	 	7.0672	  	  	 	5.4033	  	  	 	3.4274	  	  	 	2.3291	  	  	 	1.6453	  	  	 	1.1860	  	  	 	0.6241	  	
 	 	 	 	 	 	 	 	 	 	 	 	
March 15, 2012	  	 	26.5863	  	  	 	21.1705	  	  	 	13.1132	  	  	 	8.8004	  	  	 	6.2785	  	  	 	4.6942	  	  	 	2.8961	  	  	 	1.9418	  	  	 	1.3631	  	  	 	0.9789	  	  	 	0.5104	  	
 	 	 	 	 	 	 	 	 	 	 	 	
March 15, 2013	  	 	26.5863	  	  	 	20.5085	  	  	 	11.9045	  	  	 	7.5390	  	  	 	5.1335	  	  	 	3.7084	  	  	 	2.2015	  	  	 	1.4568	  	  	 	1.0202	  	  	 	0.7330	  	  	 	0.3800	  	
 	 	 	 	 	 	 	 	 	 	 	 	
March 15, 2014	  	 	26.5863	  	  	 	19.1511	  	  	 	9.9350	  	  	 	5.6498	  	  	 	3.5243	  	  	 	2.3947	  	  	 	1.3475	  	  	 	0.8894	  	  	 	0.6305	  	  	 	0.4581	  	  	 	0.2375	  	
 	 	 	 	 	 	 	 	 	 	 	 	
March 15, 2015	  	 	26.5863	  	  	 	16.3850	  	  	 	6.4923	  	  	 	2.7265	  	  	 	1.3119	  	  	 	0.7638	  	  	 	0.4115	  	  	 	0.2872	  	  	 	0.2117	  	  	 	0.1567	  	  	 	0.0799	  	
 	 	 	 	 	 	 	 	 	 	 	 	
March 15, 2016	  	 	26.5863	  	  	 	11.3789	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	
If the exact ADS Prices and effective dates are not set forth in the table above and the ADS Price is:
(1) between two adjacent ADS Price amounts in the table or the Effective Date is between two adjacent Effective Dates in the table, the number of Additional ADSs will be determined by a straight-line interpolation between the number of Additional ADSs set forth for the higher and lower ADS Price amounts and the two dates based on a 365-day year, as applicable.
(2) greater than U.S.$50 per ADS (subject to adjustment in the same manner as the ADS Prices set forth in the column headings of the table above), no additional ADSs will be issued upon conversion.
(3) less than U.S.$8.68 per ADS (subject to adjustment in the same manner as the ADS Prices set forth in the column headings of the table above), no additional ADSs will be issued upon conversion.
Notwithstanding the foregoing paragraphs, in no event will the total number of ADSs issuable upon conversion of a Note exceed 115.2074 per U.S.$1,000 principal amount of Notes, subject to adjustment in the same manner as the Conversion Rate as set forth in  Section 12.05(a)  hereof.
 
83

(b) The Issuer, or the Trustee at the direction of the Issuer, shall mail a notice of a Fundamental Change (the “ Fundamental Change Notice ”) to the Holders as shown on the Register and issue a press release not more than 5 days after the applicable Effective Date at the addresses as shown on the Register, with a copy to the Trustee and the Paying Agent. The Fundamental Change Notice, which shall govern the terms of the settlement of any conversion (or purchase, if applicable) in connection with a Fundamental Change, shall include such disclosures as are required by law and shall state, to the extent applicable: (i) the events causing a Fundamental Change; (ii) the Effective Date; (iii) if applicable, the last date on which a Holder may exercise the Change of Control purchase right; (iv) the Change of Control Payment if applicable; (v) if applicable, the date of the purchase (the “ Change of Control Purchase Date ”), which is to be no earlier than the 20th and no later than the 35th calendar day following the Effective Date; (vi) the name and address of the Paying Agent and the Conversion Agent; (vii) if applicable, the applicable Conversion Rate and, if applicable, any adjustments to the applicable Conversion Rate; (viii) if applicable, that the Notes with respect to which a Change of Control repurchase election has been delivered by a Holder may be converted only if the Holder withdraws the Change of Control repurchase election in accordance with the terms of this Indenture; and (ix) if applicable, the procedures that Holders must follow to require the Issuer to purchase their Notes. Unless and until the Trustee shall receive a Fundamental Change Notice, the Trustee may assume without inquiry that no Fundamental Change has occurred.
[remainder of page intentionally left blank]
 
84

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed and attested, all as of the date first above written, signifying their agreements contained in this Indenture.

CEMEX, S.A.B. DE C.V.	
 	 	
By:	 	    /s/ Rodrigo Treviño Muguerza	
 	 	Name: Rodrigo Treviño Muguerza	
 	 	Title: Attorney-in-Fact	

THE BANK OF NEW YORK MELLON,	
 	 	as Trustee	
 	 	
By:	 	    /s/ Catherine F. Donohue	
 	 	Name: Catherine F. Donohue	
 	 	Title: Vice President	

THE BANK OF NEW YORK MELLON, S.A.,	
 	 	INSTITUCIÓN DE BANCA
MÚLTIPLE, as Mexican Trustee	
 	 	
By:	 	    /s/ Mónica Jiménez Labora Sarabia	
 	 	Name: Mónica Jiménez Labora Sarabia	
 	 	Title: Delegada Fiduciaria	

EXHIBIT A – FORM OF NOTE

[Include the following legend for Global Securities only (the “Global Securities Legend”):]	  	[Incluir la siguiente leyenda si se trata únicamente de Títulos Globales (la “Leyenda para los Títulos Globales”):]	
 	 	
“THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY CEMEX, S.A.B. DE C.V., (THE “ COMPANY ”) THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS CONVERTIBLE SUBORDINATED NOTE FOR ALL PURPOSES.	  	“EL PRESENTE CONSTITUYE UN TÍTULO GLOBAL EN TÉRMINOS DEL ACTA DE EMISIÓN QUE SE MENCIONA MÁS ADELANTE Y SE ENCUENTRA INSCRITO A NOMBRE DEL DEPOSITARIO O UNA PERSONA DESIGNADA POR EL MISMO, QUIEN PODRÁ SER TRATADO POR CEMEX, S.A.B. DE C.V., (LA “ COMPAÑÍA ”) EL FIDUCIARIO Y CUALQUIERA DE SUS AGENTES, COMO TITULAR Y TENEDOR DE ESTA OBLIGACIÓN CONVERTIBLE SUBORDINADA PARA TODOS LOS EFECTOS A QUE HAYA LUGAR.	
 	 	
[As part of the Global Securities Legend, include the following legend on all Global Securities for which DTC is to be the Depositary :]	  	[Como parte de la Leyenda para los Títulos Globales, incluir la siguiente leyenda en todos los Títulos Globales cuyo Depositario sea DTC :]	
 	 	
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.	  	A MENOS QUE ESTE TÍTULO SEA PRESENTADO POR UN REPRESENTANTE AUTORIZADO DE THE DEPOSITORY TRUST COMPANY, UNA SOCIEDAD CONSTITUIDA CONFORME A LAS LEYES DE NUEVA YORK (“ DTC ”), A LA COMPAÑÍA O A SU AGENTE DE REGISTRO O TRANSMISIÓN, CANJE O PAGO, Y QUE UN TÍTULO EMITIDO ESTÉ INSCRITO A NOMBRE DE CEDE & CO. O ALGÚN OTRO NOMBRE SOLICITADO POR UN REPRESENTANTE AUTORIZADO DE DTC (Y CUALQUIER PAGO SE EFECTÚE A CEDE & CO. O A DICHA OTRA ENTIDAD SOLICITADA POR EL REPRESENTANTE AUTORIZADO DE DTC), CUALQUIER TRANSMISIÓN, PRENDA U OTRO USO DEL PRESENTE POR VALOR O CON CUALQUIER OTRO OBJETO, POR PARTE O EN FAVOR DE CUALQUIER PERSONA, SERÁ INDEBIDO EN TANTO SU TITULAR REGISTRADO, CEDE & CO., TENGA ALGÚN DERECHO SOBRE EL MISMO.	
 	 	
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM IN THE CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.”	  	HASTA EN TANTO ESTE TÍTULO GLOBAL SE CANJEE TOTAL O PARCIALMENTE POR TÍTULOS VALOR NOMINATIVOS DEFINITIVOS EN LOS SUPESTOS PREVISTOS EN EL ACTA DE EMISIÓN, EN SU CASO, ESTE TÍTULO GLOBAL NO PODRÁ SER TRANSMITIDO SINO EN SU TOTALIDAD POR EL DEPOSITARIO A FAVOR DE UNA PERSONA DESIGNADA POR EL DEPOSITARIO, O POR LA PERSONA DESIGNADA POR EL DEPOSITARIO A FAVOR DEL DEPOSITARIO U OTRA PERSONA DESIGNADA POR EL DEPOSITARIO, O POR EL DEPOSITARIO O DICHA PERSONA DESIGNADA A FAVOR DE UN DEPOSITARIO SUCESOR O UNA PERSONA DESIGNADA POR DICHO DEPOSITARIO SUCESOR.”	
 	 	
[Include the following legend on all Rule 144A Notes that are Restricted Notes (the “Restricted Securities Legend for Rule 144A Notes”) :]	  	[Incluir la siguiente leyenda en todas las Obligaciones de la Regla 144A que tengan el carácter de Obligaciones Restringidas (la “Leyenda para las Obligaciones Restringidas para Obligaciones de la Regla 144A”) :]	
 	 	
THIS SECURITY AND THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:	  	ESTE TÍTULO VALOR Y LAS ACCIONES DE DEPOSITARIO AMERICANAS QUE SE EMITAN UNA VEZ REALIZADA LA CONVERSIÓN DEL MISMO, NO SE ENCUENTRAN INSCRITOS AL AMPARO DE LA LEY DE VALORES DE 1933 Y SUS REFORMAS (LA “ LEY DE VALORES ”), Y NO PUEDE SER OFRECIDO, VENDIDO, PIGNORADO O ENAJENADO EN CUALQUIER OTRA FORMA SALVO DE CONFORMIDAD CON LO DISPUESTO EN LA SIGUIENTE ORACIÓN. EN RAZÓN DE LA ADQUISICIÓN DEL PRESENTE O DE CUALQUIER DERECHO DE TITULARIDAD INDIRECTA DEL MISMO, EL ADQUIRENTE:	
 	 	
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND	  	(1) DECLARA RESPECTO DE SÍ MISMO Y DE CUALQUIER PERSONA POR CUYA CUENTA ACTÚE, QUE ES UN “COMPRADOR INSTITUCIONAL CALIFICADO” (EN TÉRMINOS DE LA DEFINICIÓN CONTENIDA EN LA REGLA 144A DE LA LEY DE VALORES) Y TIENE LA FACULTAD ABSOLUTA DE TOMAR DECISIONES DE INVERSIÓN CON RESPECTO A DICHA CUENTA, Y	
 	 	
(2) AGREES FOR THE BENEFIT OF CEMEX, S.A.B. DE C.V. THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ISSUE DATE HEREOF (OR OF ANY SUBSEQUENTLY ISSUED SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:	  	(2) SE OBLIGA, EN BENEFICIO DE CEMEX, S.A.B. DE C.V. A NO OFRECER, VENDER, PIGNORAR O ENAJENAR EN CUALQUIER OTRA FORMA ESTE TÍTULO VALOR O CUALQUIER DERECHO DE TITULARIDAD INDIRECTA SOBRE EL MISMO ANTES DE LA FECHA QUE OCURRA MÁS TARDE DE ENTRE (X) UN AÑO A PARTIR DE LA ÚLTIMA FECHA DE EMISIÓN DEL PRESENTE (O DE CUALQUIER VALOR EMITIDO SUBSECUENTEMENTE) O CUALQUIER PERÍODO MÁS CORTO PERMITIDO POR LA REGLA 144 DE LA LEY DE VALORES O CUALQUIER DISPOSICIÓN SUCESORA DE LA MISMA, Y (Y) CUALQUIER FECHA POSTERIOR, EN SU CASO, PREVISTA EN LA LEGISLACIÓN APLICABLE, SALVO:	
 	 	
(A) TO CEMEX, S.A.B. DE C.V., OR	  	(A) A CEMEX, S.A.B. DE C.V., O	
 	 	
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR	  	(B) AL AMPARO DE UN DOCUMENTO DE REGISTRO QUE SE ENCUENTRE VIGENTE DE CONFORMIDAD CON LA LEY DE VALORES, O	
 
A-1

 	 	 	
(C) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, OR	  	(C) A UN COMPRADOR INSTITUCIONAL CALIFICADO SEGÚN DICHO TÉRMINO SE DEFINE EN LA REGLA 144A DE LA LEY DE VALORES, QUE EFECTÚE LA COMPRA POR CUENTA PROPIA O DE UN COMPRADOR INSTITUCIONAL CALIFICADO MEDIANTE UNA TRANSMISIÓN QUE CUMPLA CON LOS REQUISITOS PREVISTOS EN LA REGLA 144A Y A QUIEN SE DÉ AVISO DE QUE LA ENAJENACIÓN SE HACE AL AMPARO DE LA REGLA 144A, O	
 	 	
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR	  	(D) AL AMPARO DE UNA EXENCIÓN DE LOS REQUISITOS DE REGISTRO CONFORME A LA REGLA 144 DE LA LEY DE VALORES, O DE CUALQUIER OTRA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES, O	
 	 	
(E) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT.	  	(E) AFUERA DE LOS ESTADOS UNIDOS DE CONFORMIDAD CON LA REGLA 903 O LA REGLA 904 DE LA REGULACIÓN S CONFORME A LA LEY DE VALORES.	
 	 	
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) OR (E) ABOVE, CEMEX, S.A.B. DE C.V. AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.	  	PREVIO AL REGISTRO DE CUALQUIER OPERACIÓN CELEBRADA EN TÉRMINOS DEL INCISO (2)(D) O (E) ANTERIOR, CEMEX, S.A.B. DE C.V. Y EL FIDUCIARIO SE RESERVAN EL DERECHO DE EXIGIR LA ENTREGA DE AQUÉLLAS OPINIONES LEGALES, CERTIFICACIONES U OTRAS CONSTANCIAS QUE RAZONABLEMENTE REQUIERAN A EFECTO DE DETERMINAR QUE LA TRANSMISIÓN PROPUESTA CUMPLE CON LO DISPUESTO POR LA LEY DE VALORES Y LAS LEYES ESTATALES EN MATERIA DE VALORES APLICABLES. NO SE OTORGA DECLARACIÓN ALGUNA EN CUANTO A LA EXISTENCIA DE UNA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES.	
 	 	
[Include the following legend on all Regulation S Notes that are Restricted Notes (the “Restricted Securities Legend for Regulation S Notes”) :]	  	[Incluir la siguiente leyenda en todas las Obligaciones de Regulación S que tengan el carácter de Obligaciones Restringidas (la “Leyenda para las Obligaciones Restringidas para Obligaciones de Regulación S”) :]	
 	 	
THIS SECURITY AND THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:	  	ESTE TÍTULO VALOR Y LAS ACCIONES DE DEPOSITARIO AMERICANAS QUE SE EMITAN UNA VEZ REALIZADA LA CONVERSIÓN DEL MISMO, NO SE ENCUENTRAN INSCRITOS AL AMPARO DE LA LEY DE VALORES DE 1933 Y SUS REFORMAS (LA “ LEY DE VALORES ”), Y NO PUEDE SER OFRECIDO, VENDIDO, PIGNORADO O ENAJENADO EN CUALQUIER OTRA FORMA SALVO DE CONFORMIDAD CON LO DISPUESTO EN LA SIGUIENTE ORACIÓN. EN RAZÓN DE LA ADQUISICIÓN DEL PRESENTE O DE CUALQUIER DERECHO DE TITULARIDAD INDIRECTA DEL MISMO, EL ADQUIRENTE:	
 	 	
(1) REPRESENTS IT IS ACQUIRING THE NOTES IN AN “OFFSHORE TRANSACTION” AS DEFINED IN RULE 902(H) UNDER THE SECURITIES ACT;	  	(1) DECLARA QUE ADQUIERE LAS OBLIGACIONES EN UNA “OPERACIÓN EN EL EXTERIOR” EN TÉRMINOS DE LA DEFINICIÓN CONTENIDA EN LA REGLA 902(H) DE LA LEY DE VALORES;	
 	 	
(2) AGREES FOR THE BENEFIT OF CEMEX, S.A.B. DE C.V. THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), EXCEPT:	  	(2) SE OBLIGA, EN BENEFICIO DE CEMEX, S.A.B. DE C.V. A NO OFRECER, VENDER, PIGNORAR O ENAJENAR EN CUALQUIER OTRA FORMA ESTE TÍTULO VALOR O CUALQUIER DERECHO DE TITULARIDAD INDIRECTA SOBRE EL MISMO ANTES DE LA FECHA EN QUE TERMINE EL PERIODO DE CUMPLIMIENTO DE DISTRIBUCIÓN DE 40 DÍAS (SEGÚN SE DEFINE EN LA REGULACIÓN S DE LA LEY DE VALORES), SALVO:	
 	 	
(A) TO CEMEX, S.A.B. DE C.V., OR	  	(A) A CEMEX, S.A.B. DE C.V., O	
 	 	
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR	  	(B) AL AMPARO DE UN DOCUMENTO DE REGISTRO QUE SE ENCUENTRE VIGENTE DE CONFORMIDAD CON LA LEY DE VALORES, O	
 	 	
(C) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, OR	  	(C) A UN COMPRADOR INSTITUCIONAL CALIFICADO SEGÚN DICHO TÉRMINO SE DEFINE EN LA REGLA 144A DE LA LEY DE VALORES, QUE EFECTÚE LA COMPRA POR CUENTA PROPIA O DE UN COMPRADOR INSTITUCIONAL CALIFICADO MEDIANTE UNA TRANSMISIÓN QUE CUMPLA CON LOS REQUISITOS PREVISTOS EN LA REGLA 144A Y A QUIEN SE DÉ AVISO DE QUE LA ENAJENACIÓN SE HACE AL AMPARO DE LA REGLA 144A, O	
 	 	
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR	  	(D) AL AMPARO DE UNA EXENCIÓN DE LOS REQUISITOS DE REGISTRO CONFORME A LA REGLA 144 DE LA LEY DE VALORES, O DE CUALQUIER OTRA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES, O	
 	 	
(E) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT.	  	(E) AFUERA DE LOS ESTADOS UNIDOS DE CONFORMIDAD CON LA REGLA 903 O LA REGLA 904 DE LA REGULACIÓN S CONFORME A LA LEY DE VALORES.	
 
A-2

 	 	 	
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) OR (E) ABOVE, CEMEX, S.A.B. DE C.V. AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.	  	PREVIO AL REGISTRO DE CUALQUIER OPERACIÓN CELEBRADA EN TÉRMINOS DEL INCISO (2)(D) O (E) ANTERIOR, CEMEX, S.A.B. DE C.V. Y EL FIDUCIARIO SE RESERVAN EL DERECHO DE EXIGIR LA ENTREGA DE AQUÉLLAS OPINIONES LEGALES, CERTIFICACIONES U OTRAS CONSTANCIAS QUE RAZONABLEMENTE REQUIERAN A EFECTO DE DETERMINAR QUE LA TRANSMISIÓN PROPUESTA CUMPLE CON LO DISPUESTO POR LA LEY DE VALORES Y LAS LEYES ESTATALES EN MATERIA DE VALORES APLICABLES. NO SE OTORGA DECLARACIÓN ALGUNA EN CUANTO A LA EXISTENCIA DE UNA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES.	
 
A-3

[FORM OF FACE OF NOTE] [FORMATO DEL ANVERSO DE LAS OBLIGACIONES]

No.                    	    	No.                    	
 	 	
Principal Amount U.S.$             	    	Monto principal EUA$             	
 	 	
[If the Note is a Global Security include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Security attached hereto]	    	[Si se trata de Título Global, incluir los siguientes dos renglones:
ajustado en términos del Apéndice de Aumentos y
Disminuciones en el Título Global que se anexa a la presente]	
 	 	
144A NOTES RESTRICTED CUSIP: 151290 AZ6	    	Clave CUSIP Obligaciones 144A Restringidas: 151290 AZ6	
144A NOTES RESTRICTED ISIN: US151290AZ66	    	Clave ISIN Obligaciones 144A Restringidas: US151290AZ66	
144A NOTES COMMON CODE: 060680299	    	Clave Común Obligaciones 144A: 060680299	
144A NOTES UNRESTRICTED CUSIP: 151290 BB8	    	Clave CUSIP Obligaciones 144A Irrestricta: 151290 BB8	
144A NOTES UNRESTRICTED ISIN: US151290BB89	    	Clave ISIN Obligaciones 144A Irrestricta: US151290BB89	
REGULATION S NOTES CUSIP: P2253T HV4	    	Clave CUSIP Obligaciones de la Regulación S: P2253T HV4	
REGULATION S NOTES ISIN: USP2253THV46	    	Clave ISIN Obligaciones de la Regulación S: USP2253THV46	
REGULATION S NOTES COMMON CODE: 060694010	    	Clave Común Obligaciones de la Regulación S: 060694010	
 	 	
3.25% CONVERTIBLE SUBORDINATED NOTES
DUE 2016	    	OBLIGACIONES CONVERTIBLES SUBORDINADAS CON RENDIMIENTO DEL 3.25%
CON VENCIMIENTO EN 2016	
 	 	
CEMEX, S.A.B. de C.V., a publicly traded stock corporation with variable capital ( sociedad anónima bursátil de capital variable ) organized under the laws of Mexico (together with its successors and assigns, the “ Issuer ”), promises to pay to [                      ], or registered assigns, the principal sum of [                      ] Dollars (U.S.$[        ]) [ If the Note is Global Security, add the following : , as revised by the Schedule of Exchanges of Interest in Global Security attached hereto], on March 15, 2016.	    	CEMEX, S.A.B. de C.V., una sociedad anónima bursátil de responsabilidad limitada constituida de conformidad con las leyes de México (en conjunto con sus sucesores y cesionarios, la “ Emisora ”), prometer pagar a [                      ], o a sus cesionarios registrados, la cantidad principal de [                      ] dólares (EUA$[        ]) [ Si se trata de un Título Global, añadir lo siguiente:  , ajustada en términos del Apéndice de Canjes de Derechos Sobre el Título Global que se anexa ala presente], el 15 de marzo de 2016.	
 	 	
Interest Payment Dates: March 15 and September 15	    	Fechas de Pago de Intereses: 15 de marzo y 15 de septiembre	
Record Dates: March 1 and September 1	    	Fechas de Registro: 1 de marzo y 1 de septiembre	
 	 	
Dated: March 15, 2011
 	    	Fecha: 15 de marzo de 2011
 	
Additional provisions of this Note are set forth on the other side of this Note.	    	El reverso de esta Obligación contiene disposiciones adicionales.	
 
A-4

 	 	 	
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by duly authorized officers.	  	EN TESTIMONIO DE LO ANTERIOR, la Emisora ha hecho que la presente Obligación haya sido firmada manualmente o por facsímile por sus representantes autorizados.	

          CEMEX, S.A.B. DE C.V.	
 	 	
By/Por:	 	 	
                   Name/Nombre:	
                   Title/Cargo: Member of the Board of
                   Directors/Miembro del Consejo de Administración	
 	 	
By/Por:	 	 	
                 Name/Nombre:	
                 Title/Cargo: Member of the Board of                  Directors/Miembro del Consejo de Administración	

THE BANK OF NEW YORK MELLON, S.A.,	 	 	
 	 	INSTITUCIÓN DE BANCA MÚLTIPLE,
as Mexican Trustee/como representante común en México	 	 	

 	 	 	
By/Por:	 	 	 	 	
Name/Nombre:	 	 	
Title/Cargo:	 	 	

Trustee’s Certificate of Authentication:
 
This is one of the Notes described in thewithin-mentioned Indenture:	  	Certificado de Autentificación del Fiduciario:
 
La presente es una de las Obligaciones descritas en el Acta de Emisión a que se hace referencia:	
THE BANK OF NEW YORK MELLON, as Trustee/como Fiduciario

By/Por:	 	 	 	 	
 	 	Authorized Signatory/Representante Autorizado	 	 	

Date/Fecha:	 	 	 	 	
 
A-5

 	 	 	
[FORM OF REVERSE SIDE OF NOTE]	  	[FORMATO DEL REVERSO DE LOS TÍTULOS]	
 	
CEMEX, S.A.B. DE C.V.	
 	 	
3.25% CONVERTIBLE SUBORDINATED NOTES
DUE 2016	  	OBLIGACIONES CONVERTIBLES SUBORDINADAS CON RENDIMIENTO
DEL 3.25% CON VENCIMIENTO EN 2016	
 	 	
Capitalized terms used by not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.	  	A menos que se indique lo contrario, los términos que se utilizan en la presente con mayúscula inicial tendrán los significados asignados a los mismos en el Acta de Emisión que se menciona a continuación.	
 	 	
1.      INTEREST. CEMEX, S.A.B. de C.V. a publicly traded stock corporation with variable capital ( sociedad anónima bursátil de capital variable ) organized under the laws of Mexico (together with its successors and assigns, the “ Issuer ”), promises to pay Interest on the principal amount of this Note at the rate per annum shown above;  provided  that such rate may be increased from time to time as provided in the Indenture, including Section 4.09  and  Section 6.02(b)  thereof. The Issuer will pay Interest semi-annually in arrears on March 15 and September 15 of each year, beginning September 15, 2011. Interest on the Notes will accrue from the most recent Interest Payment Date on which Interest has been paid or, if no Interest has been paid, from March 15, 2011. Interest, if any, will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Issuer shall pay any increased Interest required to be paid by it pursuant to Section 4.09  and  Section 6.02(b)  of the Indenture in the manner and on the dates otherwise provided herein for the payment of Interest. To the extent lawful, the Issuer shall pay Interest (including post-petition Interest in any proceeding under any Bankruptcy Law) on overdue principal at the interest rate borne by the Notes per annum; it shall pay Interest (including post-petition Interest in any proceeding under any Bankruptcy Law) on overdue installments of Interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.	  	1.      INTERESES. CEMEX, S.A.B. de C.V. una sociedad anónima bursátil de capital variable constituida de conformidad con las leyes de México (en conjunto con sus sucesores y cesionarios, la “ Emisora ”), promete pagar Intereses sobre el importe principal de esta Obligación a la tasa anual antes indicada;  en el entendido  de que dicha tasa podrá incrementarse de tiempo en tiempo de conformidad con lo dispuesto en el Acta de Emisión, incluyendo su Sección 4.09  y su  Sección 6.02(b) . La Emisora pagará Intereses por semestres vencidos los días 15 de marzo y 15 de septiembre de cada año, comenzado el 15 de septiembre de 2011. Las Obligaciones devengarán Intereses desde la última Fecha de Pago de Intereses en que se hayan pagado Intereses o, si no se han pagado Intereses, desde el 15 de marzo de 2011. En su caso, los Intereses se calcularán sobre la base de un año de 360 días y 12 meses de 30 días cada uno. En la medida permitida por la ley, la Emisora pagará cualesquiera Intereses adicionales que deba pagar de conformidad con lo dispuesto en la  Sección 4.09  y la  Sección 6.02(b)  del Acta de Emisión, en la forma y las fechas estipuladas en la misma en cuanto al pago de Intereses. En la medida permitida por la ley, la Emisora pagará Intereses (incluyendo Intereses posteriores a la presentación de cualquier demanda al amparo de alguna Ley de Quiebras) sobre cualquier importe principal vencido, a la tasa de interés anual devengada por las Obligaciones que se encuentre vigente en ese momento; y en la medida permitida por la ley pagará Intereses (incluyendo tras la presentación de cualquier demanda al amparo de alguna Ley de Quiebras) sobre cualesquiera Intereses vencidos (“ Intereses Moratorios ”), a la misma tasa, independientemente de cualquier período de gracia aplicable. Los Intereses se calcularán sobre la base de un año de 360 días y 12 meses de 30 días.	
 	 	
All payments made by the Issuer under, or with respect to, the Notes will be made free and clear of, and without withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless the Issuer is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.	  	Todos los pagos efectuados por la Emisora conforme a las Obligaciones o en relación con las mismas irán libres de toda retención o deducción a cuenta de cualesquiera Impuestos establecidos o determinados por cualquier Jurisdicción Impositiva o en representación de la misma, a menos que la Emisora esté obligada a retener o deducir Impuestos por disposición de ley o en razón de la interpretación oficial o aplicación de la misma. En dicho supuesto, la Emisora pagará a cada Tenedor de Obligaciones las Cantidades Adicionales previstas en el Acta de Emisión, sujeto a las restricciones establecidas en la propia Acta de Emisión.	
 	 	
2.      METHOD OF PAYMENT. The Issuer will pay Interest on the Notes (except Defaulted Interest) on the Business Day on which any such Interest on any Note is due and payable to the Person in whose name each Note is registered at the close of business on the March 1 and September 1 immediately preceding the relevant Interest Payment Date (each a “ Record Date ”) (other than as provided in the Indenture). A Holder must surrender Notes to a Paying Agent to collect principal payments. On the Business Day prior to the date on which any payment is to be made on the Notes, the Issuer will deposit with the Trustee or with the Paying Agent an amount of money in immediately available funds sufficient to make such payment.	  	2.      FORMA DE PAGO. La Emisora pagará cualesquiera Intereses respecto de las Obligaciones (salvo Intereses Moratorios) a más tardar el Día Hábil en que dicho importe de Intereses sobre las Obligaciones sean exigibles y pagaderos a la Persona a cuyo nombre se encuentre inscrita dicha Obligación al cierre de horas hábiles del 1 de marzo y el 1 de septiembre inmediatamente anteriores a la Fecha de Pago de Intereses correspondiente (cada una de dichas fechas, una “ Fecha de Registro ”) (salvo por lo dispuesto en el Acta de Emisión). Para efectos de todo pago de principal, el Tenedor deberá entregar sus Obligaciones al Agente de Pago. A más tardar el Día Hábil previo a la fecha en que el importe principal de las Obligaciones deba pagarse, la Emisora depositará con el Fiduciario o con el Agente de Pagos, en fondos inmediatamente disponibles, la cantidad suficiente para realizar dicho pago.	
 	 	
The Issuer will pay the principal of and Interest on the Notes at the office or agency of the Issuer maintained for such purpose, in U.S. Legal Tender. Until otherwise designated by the Issuer, the Issuer’s office or agency maintained for such purpose will be the principal Corporate Trust Office of the Trustee (as defined below). However, the Issuer may pay principal and Interest by check payable in such money, and may mail such check to the Holders of the Notes at their respective addresses as set forth in the Register of Holders. Payments in respect of Notes represented by a Global Security (including principal and Interest) will be made by the transfer of immediately available funds to the accounts specified by DTC. The Issuer will make all payments in respect of a Definitive Security (including principal and Interest) by mailing a check to the registered address of each Holder thereof as set forth in the Note Register;  provided , however , that payments on the Notes may also be made, in the case of a Holder of at least U.S.$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant Record Date (or such other date as the Trustee may accept in its discretion).	  	La Emisora pagará el importe principal y los Intereses de las Obligaciones en la oficina o agencia mantenida para dicho efecto por la misma, en Moneda de los E.U.A. A menos que la Emisora designe otro lugar, su oficina o agencia para dicho efecto serán las Oficinas del Departamento de Fideicomisos Empresariales del Fiduciario (según la definición asignada a dicho término más adelante). Sin embargo, la Emisora podrá efectuar pagos de principal e Intereses mediante cheque denominado en dicha moneda, y podrá enviar por correo dicho cheque a los domicilios que los Tenedores de Obligaciones tengan inscritos en el registro de Tenedores. Los pagos sobre las Obligaciones amparadas por un Título Global (incluyendo principal e Intereses) se efectuarán mediante transferencia de fondos inmediatamente disponibles a las cuentas indicadas por DTC. La Emisora efectuará todos los pagos correspondientes a Títulos Definitivos (incluyendo principal e Intereses) mediante cheque enviado por correo al domicilio que cada Tenedor tenga inscrito en el registro de Obligaciones;  en el entendido, sin embargo , de que tratándose de cualquier Tenedor de Obligaciones por un monto principal total de cuando menos EUA$1,000,000, los pagos sobre las Obligaciones también podrán efectuarse mediante transferencia electrónica a una cuenta en dólares de los E.U.A. mantenida por el destinatario del pago en un banco de los Estados Unidos, si dicho Tenedor elige la opción de recibir dichos pagos por transferencia electrónica mediante el envío de un aviso por escrito proporcionado los datos de su cuenta al Fiduciario o al Agente de Pagos, a más tardar en la fecha correspondiente a los 15 días inmediatamente anteriores a la Fecha de Registro aplicable (o cualquier otra fecha aceptable para el Fiduciario a su entera discreción).	
 
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3.      PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon (together with any successor Trustee under the Indenture referred to below, the “ Trustee ”), will act as Paying Agent, Conversion Agent and Registrar. The Issuer may change the Paying Agent, Conversion Agent, Registrar or co-registrar without prior notice. Subject to certain limitations in the Indenture, the Issuer or any of its Subsidiaries may act in any such capacity.	  	3.      AGENTE DE PAGOS Y AGENTE DE REGISTRO. The Bank of New York Mellon (en conjunto con cualquier Fiduciario sucesor en términos del Acta de Emisión, el “ Fiduciario ”) actuará inicialmente como Agente de Pagos, Agente de Conversión y Agente de Registro. La Emisora podrá reemplazar al Agente de Pagos, al Agente de Conversión, al Agente de Registro o agente de registro adjunto, sin necesidad de dar aviso previo. Sujeto a ciertas restricciones previstas en el Acta de Emisión, ni la Emisora ni sus Subsidiaras podrán actuar con alguna de dichas capacidades.	
 	 	
4.      INDENTURE. The Issuer issued the Notes under an Indenture dated as of March 15, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”) between the Issuer, the Trustee and the Mexican Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to, and qualified by, all such terms, certain of which are summarized hereon, and Holders are referred to the Indenture for a statement of such terms. However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.	  	4.      ACTA DE EMISIÓN. La Emisora emitió las Obligaciones al amparo de un Acta de Emisión de fecha 15 de marzo de 2011 (tal y como la misma se modifique o adicione de tiempo en tiempo de acuerdo con sus términos, el “ Acta de Emisión ”), suscrita por la Emisora, el Fiduciario y el Representante Común Mexicano. Los términos de las Obligaciones incluyen los previstos en el Acta de Emisión. Las Obligaciones están sujetas y condicionadas a la totalidad de dichos términos, algunos de los cuales están resumidos en la presente, y los Tenedores deberán consultar el Acta de Emisión para conocer dichos términos. Sin embargo, en la medida en que alguna disposición de esta Obligación contravenga lo expresamente dispuesto en el Acta de Emisión, prevalecerán las disposiciones del Acta de Emisión. Por el hecho de aceptar una Obligación, todo Tenedor conviene en sujetarse a todos los términos y las disposiciones del Acta de Emisión, tal como la misma se modifique o adicione de tiempo en tiempo.	
 	 	
5.      REDEMPTION AND REPURCHASE. The Notes are subject to certain redemption and repurchase provisions under Article III  of the Indenture	  	5.      AMORTIZACIÓN Y RECOMPRA. Las Obligaciones están sujetas a ciertas disposiciones en materia de amortización y recompra contenidas en el  Artículo III  del Acta de Emisión.	
 	 	
(A)   Optional Redemption by the Issuer for Changes in Withholding Taxes	  	(A)   Amortización a opción de la Emisora debido a reformas legales fiscales	
 	 	
If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of any Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article V  of the Indenture, shall be treated for this purpose as the date of such transaction) the Issuer would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding Tax rate of 10% with respect to the Notes (as described in  Section 4.12  of the Indenture), then, at the Issuer’s option, the Notes may be redeemed in whole, but not in part, at any time on giving not less than 30 days nor more than 60 days’ notice to each Holder, at a redemption price equal to 100% of the outstanding principal amount,  plus  Interest, if any, up to but not including the Tax Redemption Date;  provided ,  however , that (1) no Tax Redemption Notice may be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to pay the Additional Amounts described in the preceding sentence if a payment on the Notes were then due, (2) at the time such Tax Redemption Notice is given such obligation to pay such Additional Amounts remains in effect and (3) the Issuer shall have satisfied the additional requirements set forth below. Such Tax Redemption Notice shall also contain the items required in Section 3.01(e)  of the Indenture, including the calculation of the Make Whole Fundamental Change Premium.	  	Si en virtud de alguna reforma o cambio en las leyes (o en las reglas o los reglamentos promulgados al amparo de las mismas) en materia fiscal de alguna Jurisdicción Impositiva, o de alguna reforma o cambio en la interpretación oficial o aplicación de dichas leyes, reglas o reglamentos que tenga efectos generalizados, que entre en vigor en la Fecha de Emisión (que para estos efectos y tratándose de cualquier fusión, consolidación u otra operación descrita y permitida en el  Artículo V  del Acta de Emisión será la fecha de celebración de dicha operación) o después de la misma, la Emisora, tras tomar todas las medidas razonables para evitarlo, se vería obligada a pagar Cantidades Adicionales por encima de las correspondientes a una tasa de retención de Impuestos del 10% en relación con las Obligaciones (conforme a lo descrito en la  Sección 4.12  del Acta de Emisión), la Emisora tendrá la opción, previo aviso a cada Tenedor con no menos de 30 ni más de 60 días de anticipación, de amortizar en cualquier momento las Obligaciones, en su totalidad y no sólo en parte, a un precio de amortización equivalente al 100% del monto principal insoluto  más  Intereses, en su caso, a la Fecha de Amortización por Motivos Fiscales pero sin incluir dicha fecha;  en el entendido, sin embargo,  de que (1) no se podrá dar ningún Aviso de Amortización por Motivos Fiscales antes del plazo de 90 días anterior a la primera fecha en que la Emisora hubiere estado obligada a pagar las Cantidades Adicionales descritas en la oración que antecede si el pago sobre las Obligaciones hubiese sido exigible en dicha fecha, (2) la obligación de pagar dichas Cantidades Adicionales deberá estar vigente a la fecha de envío de dicho Aviso de Amortización por Motivos Fiscales, y (3) la Emisora deberá haber cumplido con los requisitos adicionales previstos a continuación. Dicho Aviso de Amortización por Motivos Fiscales también deberá contener la información exigida por la Sección 3.01(e)  del Acta de Emisión, incluyendo el cálculo de la Prima por Prepago Debido a un Cambio Fundamental.	
 	 	
Prior to the publication of any Tax Redemption Notice pursuant to this provision, the Issuer will deliver to the Trustee:	  	Antes de publicar cualquier Aviso de Amortización por Motivos Fiscales, la Emisora enviará al Fiduciario:	
 	 	
(i) an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	  	(i) un Certificado Expedido por los Funcionarios manifestando que la Emisora tiene derecho de efectuar una amortización y describiendo los hechos que acrediten la verificación de la condición suspensiva que dio origen al derecho de amortización de la Emisora, y	
 	 	
(ii) an Opinion of Counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	  	(ii) una Opinión Legal de reconocido prestigio en la Jurisdicción Impositiva relevante, en el sentido de que la Emisora está o estará obligada a pagar dichas Cantidades Adicionales como resultado de dicha reforma o cambio.	
 	 	
This Tax Redemption Notice, once delivered by the Issuer to the Trustee, will be irrevocable.	  	Una vez enviado por la Emisora al Fiduciario, el Aviso de Amortización por Motivos Fiscales será irrevocable.	
 	 	
(B)   Repurchase at the Option of Holders Upon Certain Fundamental Changes	  	(B)   Recompra a opción de los Tenedores en caso de Ciertos Cambios Fundamentales	
 	 	
Upon the occurrence of a Change of Control, the Issuer shall notify the Holders and the Trustee in writing of such occurrence and shall be required to make an offer to repurchase all Notes then outstanding at a repurchase price in cash equal to 100% of the principal amount thereof,  plus  Interest, to, but excluding, the Change of Control Purchase Date as defined in the Indenture (unless the Change of Control Purchase Date is between a Record Date and the Interest Payment Date to which it relates, in which case the Issuer will pay Interest on such Interest Payment Date to the Holder of record on such Record Date and the Change of Control Payment will be equal to 100% of the principal amount of the Notes subject to repurchase and will not include Interest).	  	Tras ocurrir un Cambio de Control, la Emisora dará aviso por escrito de dicha circunstancia a los Tenedores y el Fiduciario y estará obligada a realizar una oferta de recompra respecto de todas las Obligaciones en circulación, a un precio de recompra en efectivo equivalente al 100% del importe principal  más  los Intereses devengados por las mismas hasta, pero excluyendo, la Fecha de Compra por Cambio de Control (según la definición asignada a dicho término en el Acta de Emisión) (a menos que la Fecha de Compra por Cambio de Control se ubique entre una Fecha de Registro y su correspondiente Fecha de Pago de Intereses, en cuyo caso la Emisora pagará Intereses en dicha Fecha de Pago de Intereses al Tenedor inscrito a dicha Fecha de Registro, y el Pago por Cambio de Control será equivalente al 100% del importe de las Obligaciones objeto de recompra y no incluirá Intereses).	
 
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6.      SUBORDINATION. The payment of the principal of, premium, if any, and Interest on and any other payment due pursuant to this Notes (including, without limitation, the payment or deposit of the Change of Control Payment pursuant to  Article III  of the Indenture) or upon conversion, if applicable, shall be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the Issue Date or thereafter created, incurred, assumed or guaranteed in accordance with the provisions of  Article XI  of the Indenture, and each Holder by accepting a Note acknowledges and agrees to be bound by such provisions. The Issuer agrees, and each Holder by accepting a Note acknowledges and agrees, that the Indebtedness evidenced by the Note is equal in right of payment to the Issuer’s current unsecured subordinated Indebtedness, which includes U.S.$715,000,000 of the Issuer’s 4.875% Convertible Subordinated Notes due 2015 issued on March 30, 2010, and to any future unsecured subordinated Indebtedness.	  	6.      SUBORDINACIÓN. El pago del importe principal, la prima, si la hubiere, los Intereses y cualesquiera otros pagos exigibles de conformidad con esta Obligación (incluyendo, de manera enunciativa pero no limitativa, el pago o depósito del Pago por Cambio de Control conforme al  Artículo III  del Acta de Emisión) o después de su conversión, en caso de ser aplicable, estarán subordinados y sujetos, por lo que se refiere al derecho a su pago, en la medida y forma que se establece a continuación, al pago previo e íntegro de toda la Deuda Preferente, ya sea que la misma se encuentre en circulación a la Fecha de Emisión o se cree, incurra, asuma o garantice posteriormente de conformidad con lo dispuesto en el Artículo XI  del Acta de Emisión, y cada Tenedor, por el hecho de aceptar una Obligación, reconoce y conviene en sujetarse a dichas disposiciones. La Emisora, y cada Tenedor, por el hecho de aceptar una Obligación, reconoce y acepta que la Deuda documentada por esta Obligación es igual en cuanto al derecho de pago que cualquier otra Deuda subordinada sin garantía específica existente de la Emisora, incluyendo un monto de EUA$715,000,000 de Obligaciones Convertibles Subordinadas con Rendimiento de 4.875% con Vencimiento en 2015 emitidas por la Emisora el 30 de marzo de 2010, y cualquier otra Deuda subordinada sin garantía específica futura.	
 	 	
7.      DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes at the office of the Registrar in accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge will be imposed by the Issuer, the Trustee or the Registrar for any registration of transfer or exchange of Notes, but any Tax or similar governmental charge required by law or permitted by the Indenture because upon exchange a Holder requests any ADSs to be issued in a name other than such Holder’s name will be paid by such Holder. The Issuer is not required to transfer or exchange any Note surrendered for repurchase or conversion except for any portion of that Note not being repurchased or converted, as the case may be.	  	7.      DENOMINACIONES, TRANSMISIÓN, CANJE. Las Obligaciones son nominativas, no llevan adheridos cupones y se emiten en denominaciones de EUA$100,000 y múltiplos íntegros de EUA$1,000 por encima de dicha cantidad. Todo Tenedor podrá solicitar la inscripción de la transmisión o el canje de sus Obligaciones en la oficina del Agente de Registro de acuerdo con lo dispuesto en el Acta de Emisión. El Agente de Registro y el Fiduciario podrán exigir que el Tenedor proporcione, entre otras cosas, los endosos y demás instrumentos de transmisión necesarios. La Emisora, el Fiduciario o el Agente de Registro no impondrán al Tenedor cargo alguno en razón de la inscripción de la transmisión o el canje de Obligaciones, pero el Tenedor será responsable del pago de cualesquiera Impuestos u otros cargos gubernamentales que resulten aplicables en razón de que el Tenedor solicite la emisión de ADSs a nombre de persona distinta de sí mismo. La Emisora no estará obligada a inscribir la transmisión o canje de cualquier Obligación entregado a la misma para su compra o conversión, sino por lo que toca a la porción de dicha Obligación que no vaya a ser objeto de compra o conversión, según el caso.	
 	 	
8.      PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.	  	8.      PERSONAS CONSIDERADAS COMO PROPIETARIOS. El Tenedor inscrito de una Obligación será considerado como propietario de la misma para cualesquiera efectos.	
 	 	
9.      AMENDMENTS AND WAIVERS. Subject to certain exceptions set forth in the Indenture, with the written consent of the Holders of a majority in principal amount of the then-outstanding Notes (including without limitation by consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes) (i) the Issuer, the Trustee and the Mexican Trustee may amend the Indenture or the Notes, and (ii) may waive compliance in a particular instance by the Issuer with any provision of the Indenture or this Note.	  	9.      MODIFICACIONES Y DISPENSAS. Sujeto a ciertas excepciones previstas en el Acta de Emisión, se requiere el consentimiento por escrito de los Tenedores de cuando menos la mayoría del monto principal total de las Obligaciones que se encuentren en circulación en ese momento (incluyendo, de manera enunciativa pero no limitativa, los consentimientos recibidos con motivo de una compra de Obligaciones u oferta de compra o canje relativa a las Obligaciones), para (i) la modificación del Acta de Emisión o las Obligaciones por parte de la Emisora, el Fiduciario y el Representante Común Mexicano y (ii) dispensar el cumplimiento de cualquier disposición contenida en el Acta de Emisión o esta Obligación por parte de la Emisora.	
 	 	
Without the consent of each Holder of an outstanding Note affected, an amendment or waiver under  Section 9.02  of the Indenture may not (with respect to any Notes held by a non-consenting Holder): (a) reduce the amount of Notes whose Holders must consent to an amendment or waiver; (b) reduce the rate of or change or have the effect of changing the time for payment of Interest on any Notes; (c) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor; (d) make any Notes payable in money other than that stated in the Notes; (e) make any change in provisions of the Indenture entitling each Holder to receive payment of principal and Interest on such Holder’s Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default; (f) reduce the Change of Control Payment of any Note or amend or modify in any manner adverse to the Holders, the Issuer’s obligation to make payment of such Change of Control Payment, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise; (g) make any change in the provisions of the Indenture described under Section 4.12  of the Indenture that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; (h) make any change to the provisions of the Indenture or the Notes that adversely affect the ranking of the Notes; and (i) make any change that impairs or adversely affects the conversion rights of any Notes.	  	Ninguna modificación o dispensa en términos de lo dispuesto en la  Sección 9.02  del Acta de Emisión podrá, salvo con el consentimiento de cada Tenedor de una Obligación en circulación afectado por la misma: (a) reducir el monto de las Obligaciones cuyos Tenedores pueden aprobar una modificación u otorgar una dispensa; (b) reducir la tasa de interés sobre cualesquiera Obligaciones, o cambiar o modificar de cualquier forma que tenga los mismos efectos que un cambio de fecha, la fecha de pago de Intereses sobre cualesquiera Obligaciones; (c) reducir el monto principal de cualesquiera Obligaciones, o cambiar o modificar de cualquier forma que tenga los mismos efectos que un cambio de fecha, la fecha fija de vencimiento de cualesquiera Obligaciones, o cambiar la fecha en que cualesquiera Obligaciones puedan ser objeto de amortización, o reducir el precio de amortización de las mismas; (d) disponer que cualesquiera Obligaciones sean pagaderas en alguna moneda distinta a la expresada en las Obligaciones; (e) cambiar las disposiciones del Acta de Emisión en cualquier forma que confiera a cada Tenedor el derecho a recibir el pago del principal de las Obligaciones e Intereses sobre las Obligaciones de dicho Tenedor en la fecha exigible o después de la misma o a entablar juicio para exigir dicho pago, o permitir que los Tenedores de la mayoría del importe principal de las Obligaciones dispensen Incumplimientos o Causaes de Incumplimiento; (f) reducir el Pago por Cambio de Control correspondiente a cualquier Obligación, o reformar o modificar en cualquier forma adversa para los Tenedores la obligación de la Emisora de efectuar dicho Pago por Cambio de Control, ya sea a través de modificaciones o renuncias de las disposiciones correspondientes a las obligaciones o definiciones o cualquier otra; (g) hacer cualquier cambio en las disposiciones descritas en la Sección 4.12  del Acta de Emisión que afecte en forma adversa los derechos de cualquier Tenedor o modifique los términos de las Obligaciones en forma tal que resulte en la pérdida de una exención de	
 
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 	  	Impuestos; (h) hacer cualquier cambio en las disposiciones del Acta de Emisión o las Obligaciones que afecte en forma adversa el orden de prelación de las Obligaciones; o (i) hacer cualquier cambio que precluya o afecte en forma adversa los derechos de conversión correspondientes a cualesquiera Obligaciones.	
 	 	
The Issuer, the Trustee and the Mexican Trustee may amend the Indenture or this Note without notice to or the consent of any Holder to (a) cure any ambiguity, omission, defect or inconsistency in the Indenture or this Note; (b) provide for the assumption by a surviving or successor corporation of the obligations of the Issuer under the Indenture or evidence and provide for the acceptance of appointment of a successor Trustee pursuant to the Indenture; (c) provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Internal Revenue Code); (d) add guarantees with respect to this Note; (e) secure this Note; (f) add to the Issuer’s covenants for the benefit of the Holders or surrender any right or power conferred upon the Issuer; (g) make any change that does not materially adversely affect the rights of any Holder; (h) comply with the provisions of any clearing agency, clearing corporation or clearing system, including DTC, the Trustee or the Registrar with respect to the provisions of the Indenture or this Note relating to transfers and exchanges of Notes; and (i) conform the terms of the Indenture or this Note to the description thereof in the Offering Memorandum.	  	La Emisora, el Fiduciario y el Representante Común Mexicano podrán modificar el Acta de Emisión o las Obligaciones sin necesidad de dar aviso u obtener el consentimiento de Tenedor alguno, para: (a) corregir cualquier ambigüedad, omisión, defecto o inconsistencia en el Acta de Emisión o las Obligaciones; (b) realizar aquellos actos necesarios en relación con la asunción de las obligaciones de la Emisora conforme al Acta de Emisión por alguna sociedad fusionante o sucesora de la Emisora, o hacer constar y reflejar la aceptación del nombramiento de un Fiduciario sucesor de conformidad con el Acta de Emisión; (c) prever la emisión de Obligaciones no amparadas por títulos, además o en lugar de Obligaciones amparadas por títulos (siempre que las Obligaciones no amparadas por títulos sean registradas para efectos de lo dispuesto por la Sección 163(f) del Código Fiscal Interno ( Internal Revenue Code ) o de manera tal que las Obligaciones no amparadas por títulos se apeguen a la descripción contenida en la Sección 163(f)(2)(B) del Código Fiscal Interno); (d) agregar garantías con respecto a las Obligaciones; (e) garantizar las Obligaciones; (f) agregar obligaciones de la Emisora en beneficio de los Tenedores, o renunciar a cualquier derecho o facultad conferida a la Emisora; (g) hacer cualquier arreglo que no afecte en forma adversa y significativa los derechos de cualquier Tenedor; (h) cumplir con lo dispuesto por cualquier cámara, agencia o sistema de compensación, incluyendo DTC, el Fiduciario o el Agente de Registro con respecto a lo dispuesto por el Acta de Emisión o las Obligaciones en relación con la transmisión y el canje de las Obligaciones; e (i) ajustar los términos del Acta de Emisión o las Obligaciones a fin de que se apeguen a lo descrito en el Prospecto de Colocación.	
 	 	
To secure a consent or waiver of the Holders, it shall not be necessary for such Holders to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.	  	Para obtener cualquier consentimiento o dispensa de parte de los Tenedores no será necesario que dichos Tenedores aprueben la forma específica de la modificación o dispensa propuesta, sino que bastará con que dicho consentimiento apruebe las cuestiones de fondo de la misma.	
 	 	
10.    DEFAULTS AND REMEDIES. An “Event of Default ” with respect to any Notes occurs if: (a) the Issuer defaults in the payment in respect of the principal of any Note when due at maturity, upon redemption or repurchase pursuant to  Article III  of the Indenture, upon declaration of acceleration or otherwise, whether or not such payment is prohibited by the subordination provisions set forth in  Article XI  of the Indenture; (b) the Issuer defaults in the payment of any installment of Interest on the Notes when due and payable, whether or not such payment is prohibited by the subordination provisions set forth in  Article XI  of the Indenture, including any Interest payable in connection with a redemption or repurchase pursuant to  Article III  of the Indenture and Additional Interest, if any, and continuance of such default for a period of 30 days or more; (c) the Issuer defaults in the delivery when due of all ADSs deliverable upon conversion with respect to the Notes in accordance with Article XII  of the Indenture, which default continues for a period of five Business Days or more; (d) the Issuer fails to provide a timely Fundamental Change Notice in accordance with  Section 12.12  of the Indenture; (e) the Issuer fails to comply with the covenant described in clause (b) of Section 12.08 of the Indenture; (f) failure by the Issuer to comply with the covenant described in clause (a) of  Section 12.08  of the Indenture that continues for a period of 30 days after the Issuer receives written notice of such failure from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding; (g) the Issuer defaults (other than a default set forth in paragraphs (a) through (f) above) in the performance of, or breaches, any other covenant or agreement of the Issuer set forth in the Indenture or this Note and fails to remedy such default or breach within a period of 45 days after its receipt of written notice thereof from the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes; (h) the Issuer or any of the Issuer’s “Significant Subsidiaries” (as defined in Article 1, Rule 1-02 of Regulation S-X) defaults with respect to any mortgage, agreement or other instrument under which there is outstanding, or by which there is secured or evidenced, any Indebtedness for money borrowed having a principal amount in excess of U.S.$50 million in the aggregate, whether such Indebtedness now exists or shall hereafter be created, (i) resulting in such Indebtedness becoming or being declared due and payable prior to its express maturity date or (ii) constituting a failure to pay at least U.S.$50 million of such Indebtedness when due and payable (after the expiration of any applicable grace period) at its stated maturity, upon required repurchase, upon declaration or otherwise; provided, that any such Event of Default shall be deemed cured and not continuing upon payment of such Indebtedness or rescission of such declaration; (i) a final judgment for the payment of U.S.$50 million or more (excluding any amounts covered by insurance or bond) is rendered against the Issuer or any Significant Subsidiary by a court of competent jurisdiction, which judgment is not discharged, stayed, vacated, paid or otherwise satisfied within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished; or (j) a Bankruptcy Event of Default.	  	10.    INCUMPLIMIENTOS Y RECURSOS. Ocurrirá una “ Causa de Incumplimiento ” respecto a cualquier Obligación si: (a) la Emisora incumple con el pago del importe principal de cualquier Obligación en la fecha en que dicho pago sea exigible, ya sea a su vencimiento, contra su amortización o recompra conforme al Artículo III  del Acta de Emisión, en razón de una declaración de vencimiento anticipado o por cualquier otro motivo, independientemente de que dicho pago esté o no prohibido de conformidad con lo dispuesto respecto de la subordinación en el  Artículo XI  del Acta de Emisión; (b) la Emisora incumple con el pago de cualesquiera Intereses sobre cualquier Obligación en la fecha en que los mismos sean exigibles y pagaderos, independientemente de que dicho pago esté o no prohibido de conformidad con lo dispuesto respecto de la subordinación en el Artículo XI  del Acta de Emisión, incluyendo cualesquiera Intereses pagaderos con motivo de una amortización o recompra en términos del Artículo III  del Acta de Emisión, si dicho incumplimiento subsiste durante un período de 30 días o más; (c) la Emisora incumple con la entrega, en la fecha debida, de las ADSs que deban entregarse con motivo de la conversión de Obligaciones en términos del  Artículo XII del Acta de Emisión, y dicho incumplimiento subsiste durante un período de cinco Días Hábiles o más; (d) la Emisora incumple con la entrega oportuna de un Aviso de Cambio Fundamental de conformidad con lo dispuesto en la Sección 12.12  del Acta de Emisión; (e) la Emisora incumple el compromiso descrito en el inciso (b) de la  Sección 12.08  del Acta de Emisión; (f) la Emisora incumple el compromiso descrito en el inciso (a) de la  Sección 12.08  del Acta de Emisión y dicho incumplimiento continúa durante un período de 30 días posteriores a la recepción por la Emisora de un aviso por escrito de dicho incumplimiento de parte del Fiduciario o los Tenedores de cuando menos el 25% del monto principal de las Obligaciones que en ese momento se encuentren en circulación; (g) la Emisora incumple (en forma distinta a lo previsto a los incisos (a) a (f) anteriores) o viola cualquier otro contrato o convenio de la misma de conformidad con el Acta de Emisión o las Obligaciones y no subsana dicho incumplimiento o violación dentro del plazo de 45 días contados a partir de la recepción de un aviso por escrito al respecto de parte del Fiduciario o los Tenedores de cuando menos el 25% del monto principal de las Obligaciones que en ese momento se encuentren en circulación; (h) la Emisora o cualquiera de sus “Subsidiarias Significativas” (según dicho término se define en el Artículo 1, Regla 1-02 del Reglamento S-X) incurre en algún incumplimiento con cualquier hipoteca, contrato o instrumento en virtud del cual se encuentre insoluta o se garantice o haga constar cualquier Deuda por concepto de dinero obtenido en préstamo cuyo monto principal total ascienda a más de EUA$50 millones, independientemente de que dicha Deuda exista actualmente o se contrate en el futuro, (i) que dé como resultado que dicha Deuda se vuelva o se declare exigible y pagadera antes de su fecha programada de vencimiento, y (ii) que represente un incumplimiento de pago de cuando menos EUA$50 millones de dicha Deuda en la fecha en que dicha cantidad sea exigible y pagadera (después de haber vencido cualquier período de gracia aplicable), ya sea que dicha fecha sea su fecha programada de vencimiento, recompra obligatoria, declaración de vencimiento u otra fecha; en el entendido de que dicha Causa de Incumplimiento se tendrá por subsanada y no subsistente tras el pago de dicha Deuda o la rescisión de dicha declaración; (i) algún tribunal competente dicta sentencia definitiva en contra de	
 
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 	  	la Emisora o cualquier Subsidiaria Significativa, condenándola al pago de EUA$50 millones o más (excluyendo cualesquiera cantidades amparadas por seguros o fianzas), y dicha sentencia no se deshecha, suspende, desestima, paga o en cualquier otra forma libera dentro de los 60 días siguientes a (i) la fecha de prescripción del derecho a interponer un recurso en contra de la misma sin que se haya interpuesto recurso alguno, o (ii) la fecha en que se hayan agotado todos los derechos de interposición de recursos; o (j) ocurre alguna Causa de Incumplimiento por Quiebra.	
 	 	
If an Event of Default (other than an Event of Default with respect to the Issuer specified in paragraph (j) above) occurs and is continuing, then and in every such case (i) the Trustee, by written notice to the Issuer, or (ii) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by written notice to the Issuer and the Trustee, may, and the Trustee at the request of such Holders shall, declare all of the unpaid principal of, and Interest, on all the Notes to be due and payable. Upon such declaration such principal amount, and Interest, shall become immediately due and payable, notwithstanding anything contained in the Indenture or this Note to the contrary, but subject to the provisions of  Article XI  of the Indenture. If the Event of Default with respect to the Issuer specified in paragraph (j) above occurs, all unpaid principal of, and Interest on, the Notes then outstanding shall become automatically due and payable, subject to the provisions of  Article XI  of the Indenture, without any declaration or other act on the part of the Trustee or any Holder.	  	En caso de que haya ocurrido y subsista alguna Causa de Incumplimiento (distinta de una Causa de Incumplimiento respecto a la Emisora conforme a lo previsto en el inciso (i) anterior, entonces y en cada uno de dichos casos (i) el Fiduciario, mediante aviso por escrito a la Emisora, o (ii) los Tenedores de cuando menos el 25% del monto principal insoluto de las Obligaciones que en ese momento se encuentren en circulación, mediante aviso por escrito a la Emisora y al Fiduciario, podrán declarar y a solicitud de dichos Tenedores el Fiduciario declarará exigible y pagadero el importe total del monto principal insoluto de las Obligaciones y los Intereses sobre las mismas. Tras dicha declaración, dicho monto principal e Intereses se volverán inmediatamente exigibles y pagaderos no obstante cualquier disposición en contrario contenida en el Acta de Emisión o las Obligaciones pero sujeto a lo dispuesto en el  Artículo XI  del Acta de Emisión. En caso de que se actualice la Causa de Incumplimiento prevista en el inciso (j) anterior con respecto a la Emisora, la totalidad del importe principal de las Obligaciones y los Intereses sobre las Obligaciones que se encuentren en circulación en ese momento se volverán inmediatamente exigibles y pagaderos sujeto a lo dispuesto en el  Artículo XI  del Acta de Emisión, sin necesidad de declaración o acto ulterior alguno por parte del Fiduciario o cualquier Tenedor.	
 	 	
Notwithstanding any other provision in Article VI of the Indenture, if an Event of Default occurs arising out of the Issuer’s breach of its obligation to file or furnish reports or other financial information as required under the Indenture, the Issuer may elect to pay Additional Interest on the Notes as the sole remedy for such Event of Default, and the Trustee and the Holders will not have any right under the Indenture to accelerate the maturity of the Notes as a result of any such Event of Default, except as provided below. If elected, the Issuer shall pay Additional Interest to all Holders at a rate equal to 0.50% per annum through the 180th day after the occurrence of such Event of Default (which shall be the 135 th  day after the end of the 45-day grace period set forth in  Section 6.01(g)  of the Indenture),or such earlier date on which the Event of Default relating to the reporting obligations referred to in this paragraph shall have been cured or waived. On the 181st day, such Additional Interest will cease to accrue (or earlier, if the Event of Default relating to the reporting obligations referred to in this paragraph shall have been cured or waived prior to such 181st day) and, if the Event of Default is continuing on such 181st day, the Notes will be subject to acceleration as provided in the above paragraph. The provisions hereof will not affect the rights of the Holders in the event of the occurrence of any other Event of Default, and are separate and distinct from, and in addition to, the obligation of the Issuer to increase the interest rate of, and the amount of Interest payable on, the Notes pursuant to  Section 4.09 of the Indenture, except as otherwise provided therein. Any Additional Interest paid pursuant to this paragraph will be payable at the times and in the manner provided for the payment of regular Interest on the Notes. In order to elect to pay Additional Interest on the Notes as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with reporting obligations in accordance with this paragraph, the Issuer must notify all Holders and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default first occurs. If the Issuer fails to timely give such notice, does not pay such Additional Interest or elects not to pay such Additional Interest, the Notes will be immediately subject to acceleration as provided in the above paragraph.	  	No obstante cualquier otra disposición contenida en el  Artículo VI  del Acta de Emisión, si ocurre alguna Causa de Incumplimiento como resultado del incumplimiento de las obligaciones de presentación o entrega de información financiera de la Emisora en términos del Acta de Emisión, la Emisora tendrá la opción de pagar Intereses Adicionales sobre las Obligaciones a manera de medio exclusivo de subsanar dicha Causa de Incumplimiento, en cuyo caso el Fiduciario y los Tenedores no tendrán derecho alguno al amparo del Acta de Emisión para declarar vencidas las Obligaciones en forma anticipada como resultado de dicha Causa de Incumplimiento, excepto por lo previsto más adelante. De elegir dicha opción, la Emisora pagará Intereses Adicionales a todos los Tenedores a una tasa equivalente al 0.50% anual hasta el 180o. día posterior a la actualización de dicha Causa de Incumplimiento (mismo que coincidirá con el 135o. día siguiente al vencimiento del período de gracia de 45 días previsto en la  Sección 6.01(g) del Acta de Emisión) o hasta aquélla fecha anterior en que se subsane o dispense la Causa de Incumplimiento relativa a las obligaciones de entrega de información citadas en este inciso. Dichos Intereses Adicionales dejarán de devengarse el 181o. día (o antes, en caso de que la Causa de Incumplimiento relativa a las obligaciones de entrega de información citadas en este inciso se subsane o dispense antes de dicho 181o. día) y, si la Causa de Incumplimiento aún subsiste en dicho 181o. día, las Obligaciones estarán sujetas a vencimiento anticipado de conformidad con lo antes dispuesto. Lo antes dispuesto no afectará los derechos de los Tenedores en caso de que ocurra alguna otra Causa de Incumplimiento, y es independiente, distinto y adicional a la obligación de la Emisora de incrementar la tasa de interés y el monto de los Intereses pagaderos sobre las Obligaciones de conformidad con la  Sección 4.09  del Acta de Emisión a menos que la presente disponga lo contrario. Cualesquiera Intereses Adicionales pagaderos de conformidad con lo dispuesto en este párrafo se pagarán en las fechas y la forma prescritas para el pago de Intereses ordinarios sobre las Obligaciones. Para elegir la opción de pagar Intereses Adicionales como medio exclusivo para subsanar durante los primeros 180 días siguientes a la actualización de una Causa de Incumplimiento derivada de la falta de cumplimiento de las obligaciones de entrega de información conforme a este párrafo, la Emisora deberá dar aviso de su elección a todos los Tenedores y al Fiduciario y Agente de Pagos a más tardar al cierre de las horas hábiles del quinto Día Hábil posterior a la fecha en que haya ocurrido por vez primera dicha Causa de Incumplimiento. Si la Emisora incumple con el envío oportuno de dicho aviso, no paga dichos Intereses Adicionales u opta por no pagar dichos Intereses Adicionales, las Obligaciones quedarán inmediatamente sujetas a vencimiento anticipado de conformidad con lo antes dispuesto.	
 	 	
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require an indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. Except in the case of a Default or Event of Default in payment of principal of, or interest on, this Note, the Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal, or Interest, if applicable) if and so long as a committee of the Trustee’s Trust Officers in good faith determines that withholding the notice is in the interests of Holders. The Issuer must furnish an annual compliance certificate to the Trustee.	  	Los Tenedores no podrán hacer valer el Acta de Emisión o las Obligaciones sino en la forma prevista en el Acta de Emisión. El Fiduciario podrá exigir indemnización satisfactoria antes de realizar cualquier acto para exigir el cumplimiento del Acta de Emisión o las Obligaciones. Sujeto a ciertas excepciones, los tenedores de la mayoría del importe principal de las Obligaciones que se encuentren en circulación en un momento dado podrán girar instrucciones al Fiduciario con respecto al ejercicio de los poderes o facultades del mismo. Salvo que se trate de un Incumplimiento o Causa de Incumplimiento con el pago de principal de cualquier Obligación o Intereses sobre la misma, el Fiduciario podrá abstenerse de dar aviso de la subsistencia de cualquier incumplimiento (salvo que se trate de un incumplimiento con el pago del principal o, en su caso, Intereses sobre cualquier Obligación), siempre y cuando un comité formado por sus Delegados Fiduciarios determine de buena fe que el diferimiento de dicho aviso es en interés de los Tenedores. La Emisora deberá proporcionar al Fiduciario un informe anual respecto al cumplimiento de sus obligaciones	
 	 	
11.    TRUSTEE DEALINGS WITH THE ISSUER. The Trustee or any of its Affiliates, in their individual or any other capacities, may make or continue loans	  	11.    OPERACIONES ENTRE EL FIDUCIARIO Y LA EMISORA. El Fiduciario o cualquiera de sus Filiales, ya sea en lo individual o con cualquier otro carácter,	
 
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to or guaranteed by, accept deposits from and perform services for the Issuer or its Affiliates and may otherwise deal with the Issuer or its Affiliates as if it were not Trustee.	  	podrá otorgar o extender créditos a la Emisora o créditos garantizados por la misma, aceptar depósitos de parte de la Emisora y prestar servicios a ésta o a sus Filiales, y podrá por demás celebrar operaciones con la Emisora o sus Filiales como si no ocupase el cargo de Fiduciario.	
 	 	
12.    NO RECOURSE AGAINST OTHERS. No director, officer, employee or shareholder, as such, of the Issuer from time to time shall have any liability for any obligations of the Issuer under the Notes or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the Notes.	  	12.    AUSENCIA DE RECURSOS CONTRA TERCEROS. Ninguna Persona que de tiempo en tiempo tenga el carácter de consejero, funcionario, empleado o accionista de la Emisora será en razón de dicha circunstancia y en momento alguno responsable de las obligaciones de la Emisora bajo las Obligaciones o el Acta de Emisión, o respecto de cualquier demanda en razón o que esté basada o relacionada con dichas obligaciones o su creación. Por el hecho de aceptar una Obligación, su Tenedor dispensa dicha responsabilidad y los libera de la misma. Esta liberación y dispensa forman parte de la contraprestación por las Obligaciones.	
 	 	
13.    AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.	  	13.    VALIDACIÓN. Esta Obligación no será válida a menos que contenga la firma autógrafa del Fiduciario o un agente de validación.	
 	 	
14.    ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN CO = tenants in common, TEN ENT = tenants by the entireties, JT TEN = joint tenants with right of survivorship and not as tenants in common, CUST = Custodian and U/G/M/A = Uniform Gifts to Minors Act.	  	14.    ABREVIATURAS. Podrán utilizarse abreviaturas de uso común a nombre de cualquier Tenedor o su cesionario, incluyendo: TEN CO = tenedores en común, TEN INT = tenedores indivisibles, TEN MA = tenedores mancomunados con derechos transferibles por sucesión y no como tenedores en común, CUST = Custodio, y L/U/D/M = Ley Uniforme Sobre las Donaciones a Menores ( Uniform Gifts to Minors Act ).	
 	 	
15.    CONVERSION. Subject to and upon compliance with the provisions of the Indenture, the registered Holder of this Note has the right, at such Holder’s option, to convert at any time after June 30, 2011 and prior to the close of business on the fourth Business Day immediately preceding the Maturity Date (or in case this Note or any portion hereof is subject to a Tax Redemption Notice or a duly completed election for repurchase, before the close of business on the Business Day prior to the Tax Redemption Date or the Change of Control Purchase Date, as the case may be (unless the Issuer defaults in payment due upon redemption or repurchase)) to convert each U.S.$1,000 principal amount of Notes into 88.6211 ADSs of the Issuer, as adjusted from time to time as provided in the Indenture, including with respect to the Make Whole Fundamental Change Premium, upon surrender of this Note to the Issuer at the office or agency maintained for such purpose (and at such other offices or agencies designated for such purpose by the Issuer), accompanied by written notice of conversion duly executed (and if the ADSs to be issued on conversion are to be issued in any name other than that of the registered Holder of this Note by instruments of transfer, in form satisfactory to the Issuer, duly executed by the registered Holder or its duly authorized attorney) and, in case such surrender shall be made during the period after 5 p.m., New York City time on the Record Date immediately preceding any Interest Payment Date through 9:00 a.m. New York City time on such Interest Payment Date, also accompanied by payment, in funds acceptable to the Issuer, of an amount equal to the Interest, otherwise payable on such Interest Payment Date on the principal amount of this Note then being converted;  provided , however , that no such payment need be made if the Notes are surrendered for conversion after the final Record Date. Subject to the aforesaid requirement for a payment in the event of conversion after the close of business on a Record Date immediately preceding an Interest Payment Date, no adjustment shall be made on conversion for Interest accrued hereon or for dividends on ADSs delivered on conversion. The right to convert this Note is subject to the provisions of the Indenture relating to conversion rights in the case of certain consolidations, mergers, or sales or transfers of substantially all the Issuer’s assets.	  	15.    CONVERSIÓN. Sujeto a lo dispuesto en esta Acta de Emisión y una vez que se haya cumplido con lo previsto en la misma, el Tenedor inscrito de esta Obligación tendrá el derecho, a elección de dicho Tenedor, de convertir, en cualquier momento después del 30 de junio de 2011 y antes del cierre de las horas hábiles del cuarto Día Hábil inmediatamente anterior a la Fecha de Vencimiento (o si esta Obligación o parte de la misma está sujeta a un Aviso de Amortización por Motivos Fiscales o a una solicitud de recompra debidamente requisitada, con anterioridad al cierre de las horas hábiles del Día Hábil anterior a la Fecha de Amortización por Motivos Fiscales o la Fecha de Compra por Cambio de Control, según sea el caso (a menos que la Emisora incumpla con el pago correspondiente a dicha amortización o recompra)), cada EUA$1,000 del monto principal de sus Obligaciones a 88.6211 ADSs de la Emisora, razón que estará sujeta a ajuste de tiempo en tiempo conforme a lo previsto en el Acta de Emisión, incluyendo por lo que se refiere a la Prima por Prepago Debido a un Cambio Fundamental, mediante la entrega de esta Obligación a la Emisora en la oficina o agencia mantenida por la misma para dicho efecto (y en cualesquiera otras oficinas o agencias que la Emisora designe para dicho efecto), acompañada de un aviso de conversión debidamente requisitado (y si las ADSs que dicho Tenedor recibirá con motivo de la conversión van a emitirse a nombre de Persona distinta al Tenedor inscrito de esta Obligación, por instrumentos de transmisión en forma satisfactoria para la Emisora, debidamente firmados por el Tenedor o su representante autorizado), y en caso de que la entrega se efectúe durante el período comprendido de las 5:00 p.m., hora de la ciudad de Nueva York, de la Fecha de Registro inmediatamente anterior a cualquier Fecha de Pago de Intereses, a las 9:00 a.m., hora de la ciudad de Nueva York, de dicha Fecha de Pago de Intereses, deberá ir acompañada del pago, en fondos aceptables para la Emisora, de una cantidad igual a los Intereses que de otra forma serían pagaderos en dicha Fecha de Pago de Intereses sobre el monto principal que se está convirtiendo;  en el entendido, sin embargo,  de que no será necesario pago alguno si las Obligaciones se entregan para su conversión después de la Fecha de Registro final. Sujeto al requisito de pago en caso de conversión posterior al cierre de las horas hábiles de la Fecha de Registro inmediatamente anterior a cualquier Fecha de Pago de Intereses, al momento de conversión no se efectuará ajuste alguno por concepto de los dividendos pagados sobre las ADSs que se entreguen como resultado de la conversión. El derecho a convertir esta Obligación está sujeto a las disposiciones en materia de conversión previstas en el Acta de Emisión en caso de ciertas fusiones o consolidaciones, o de la venta o transmisión de sustancialmente todos los activos de la Emisora.	
 	 	
No fractional portions of ADSs shall be issued upon conversion of Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full ADSs which shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered for conversion. If any fractional portions of ADSs otherwise would be issuable upon the conversion of any Note or Notes, the Issuer will deliver a number of ADSs rounded up to the nearest whole number of ADSs.	  	No se emitirán fracciones de ADSs con motivo de la conversión de Obligaciones. Si un mismo Tenedor entrega al mismo tiempo más de una Obligación para su conversión, el número de ADSs íntegras a emitirse con motivo de dicha conversión se calculará con base en el monto principal total de las Obligaciones (o las porciones designadas de las mismos, en la medida permitida por la presente) entregadas para su conversión. En caso de que salvo por lo antes dispuesto debieran emitirse fracciones de ADSs con motivo de la conversión de cualquier Obligación o cualesquiera Obligaciones, la Emisora entregará un número de ADSs redondeado al alza para reflejar el número de ADSs completas más próximo.	
 
A-11

 	 	 	
 	 	
If a Fundamental Change occurs and a Holder elects to convert its Notes, the Issuer will, under certain circumstances, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional ADSs. A conversion of Notes will be deemed for these purposes to be “in connection with” such Fundamental Change if the notice of conversion of the Notes is received by the Conversion Agent from, and including, the later of (i) 30 scheduled Trading Days before the anticipated effective date of such Fundamental Change and (ii) the date on which the Issuer notifies the Holders of the anticipated effective date of a Fundamental Change (in accordance with the next sentence and the next succeeding sentence) and ending 30 Business Days following the actual effective date of such Fundamental Change (but, in the case of a Change of Control, ending prior to the close of business on the Business Day immediately preceding the Change of Control Purchase Date). The Issuer will notify Holders and the Trustee of the anticipated effective date of such Fundamental Change and issue a press release as soon as practicable after the Issuer first determines the anticipated effective date of such Fundamental Change  provided  that in no event will the Issuer be required to provide such notice to the Holders and the Trustee before the earlier of such time as the Issuer or its Affiliates (a) has publicly disclosed or acknowledged the circumstances giving rise to such anticipated Fundamental Change or (b) is required to publicly disclose under applicable law or the rules of any stock exchange on which the Issuer’s equity is then listed the circumstances giving rise to such anticipated Fundamental Change. The Issuer will use its commercially reasonable efforts to make such determination in time to deliver such notice no later than 30 days prior to such anticipated effective date of such Fundamental Change. The number of additional ADSs by which the Conversion Rate will be increased will be determined by reference to  Section 12.12  of the Indenture, based on the date on which the Fundamental Change occurs or becomes effective and the ADS price paid (or deemed paid) per ADS (or, if applicable, the price per Ordinary Share, transposed into a price per ADS) in the Fundamental Change. In no event will the Issuer increase the Conversion Rate to more than 115.2074 ADSs per U.S.$1,000 principal amount of Notes, subject to adjustment in the same manner as the Conversion Rate as set forth in  Section 12.05 (a) of the Indenture.	  	En caso de que haya ocurrido un Cambio Fundamental y un Tenedor opte por la conversión de sus Obligaciones, la Emisora ajustará la Tasa de Conversión aplicable a las Obligaciones entregadas para su conversión, agregando ADSs adicionales. Para estos efectos, toda conversión de Obligaciones se considerará hecha “en relación con” dicho Cambio Fundamental si el Agente de Conversión recibe el aviso de conversión respectivo dentro del período comprendido desde e incluyendo B- la fecha que coincida con el 30o. Día de Operaciones anterior a la fecha efectiva prevista de dicho Cambio Fundamental y C- la fecha en que la Emisora notifique a los Tenedores la “ Fecha Efectiva ” prevista de un Cambio Fundamental (de acuerdo con la siguiente oración y la oración que le sigue), la que ocurra más tarde de entre ambas fechas, hasta y que concluya el 30o. Día Hábil posterior a la verdadera Fecha Efectiva (pero, tratándose de un Cambio de Control, que concluya con anterioridad al cierre de las horas hábiles del Día Hábil inmediatamente anterior a la Fecha de Compra por Cambio de Control). La Emisora notificará a los Tenedores y al Fiduciario la Fecha Efectiva prevista de dicho Cambio Fundamental y emitirá un comunicado de prensa tan pronto como ello sea posible después de determinar por vez primera dicha Fecha Efectiva prevista;  en el entendido , de que la Emisora no estará obligada en ningún caso a dar dicho aviso a los Tenedores y al Fiduciario antes de que la Emisora o sus Filiales (a) hayan aceptado y revelado al público las circunstancias que hayan dado lugar a dicho Cambio Fundamental previsto, o estén obligadas, de conformidad con la legislación aplicable o las reglas establecidas por cualquier bolsa de valores en la que se encuentren listadas para su cotización las acciones de la Emisora, a revelar al público las circunstancias que dieron lugar a dicho Cambio Fundamental previsto. La Emisora hará esfuerzos comercialmente razonables para realizar dicha determinación a tiempo de poder enviar dicho aviso con cuando menos 30 días de anticipación a dicha Fecha Efectiva prevista. El número de ADSs en que se incrementará la Tasa de Conversión se determinará conforme a lo dispuesto en la Sección 12.12  del Acta de Emisión, con base en la fecha en que ocurra el Cambio Fundamental o el mismo surta efectos, y el precio por ADS pagado (o que se presuma pagado) (o, en su caso, el precio por Acción Ordinaria, transpolado a un precio por ADS) en relación con el Cambio Fundamental. La Emisora no incrementará en ningún caso la Tasa de Conversión a más de 115.2074 ADSs por U.S.$1,000 del principal de las Obligaciones, sujeto a ajuste en los mismos términos que la Tasa de Conversión conforme a lo previsto en la  Sección 12.05(a)  del Acta de Emisión.	
 	 	
16.    GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. HOLDERS OF NOTES BY ACCEPTING A BENEFICIAL INTEREST IN THE NOTES AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE OR ANY TRANSACTION RELATED HERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.	  	16.    LEGISLACIÓN APLICABLE. ESTA OBLIGACIÓN SE REGIRÁ POR LA LEY DEL ESTADO DE NUEVA YORK Y SE INTERPRETARÁ DE CONFORMIDAD CON LA MISMA. EN LA MEDIDA MÁS AMPLIA PERMITIDA POR LA LEGISLACIÓN APLICABLE, LOS TENEDORES DE OBLIGACIONES, POR EL SIMPLE HECHO DE ACEPTAR LOS DERECHOS DE BENEFICIARIO CORRESPONDIENTES A LAS MISMAS, RENUNCIAN A CUALQUIER DERECHO QUE PUEDAN TENER CON RESPECTO A LA CELEBRACIÓN DE JUICIOS ANTE JURADO EN RELACIÓN CON CUALQUIER ACCIÓN, PROCEDIMIENTO O CONTRADEMANDA DERIVADA DE ESTA OBLIGACIÓN O RELACIONADA CON LA MISMA.	
 	 	
17.    AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES. The Issuer has appointed Corporate Creations Network Inc., 1040 Avenue of the Americas # 2400, New York, NY 10018 (U.S.A.) as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or this Note which may be instituted in any U.S. Federal or State court located in the State of New York, County of New York. The Issuer has agreed that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer of a successor agent in The City of New York, New York as authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer. To the extent that the Issuer has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under the Indenture or this Note.	  	17.    AGENTE PARA EMPLAZAMIENTOS; SOMETIMIENTO A JURISDICCIÓN; REUNCIA A INMUNIDADES. La Emisora ha nombrado a Corporate Creations Network, Inc., 1040 Avenue of the Americas #2400, New York, NY 10018 (E.U.A.) como agente autorizado (el “ Agente Autorizado ”) al que podrá corrérsele traslado de todos los escritos, emplazamientos y requerimientos relativos a cualquier juicio, acción o procedimiento surgido como resultado o que esté basado en el Acta de Emisión o las Obligaciones y pueda interponerse ante cualquier tribunal federal o estatal con sede en el estado de Nueva York, condado de Nueva York. La Emisora ha convenido que el nombramiento del Agente Autorizado será irrevocable en tanto se encuentre en circulación cualquiera de las Obligaciones o hasta que la Emisora nombre de manera irrevocable y para dicho efecto a un agente autorizado sucesor en la ciudad de Nueva York, Nueva York y dicho agente sucesor haya aceptado su nombramiento. Todo emplazamiento entendido con el Agente Autorizado se considerará en todo sentido como un emplazamiento personal entendido con la Emisora. En la medida en que la Emisora esté sujeta o en el futuro adquiera cualquier inmunidad (soberana o de otro tipo) en contra de cualquier acción, juicio o procedimiento, la jurisdicción de cualquier tribunal, separación en juicio o cualquier proceso legal (ya sea que se trate de emplazamiento, adhesión u otro concepto) respecto de sí misma o de cualquiera de sus bienes, en este acto la Emisora renuncia irrevocablemente y se obliga a no invocar dicha inmunidad respecto de sus obligaciones conforme al Acta de Emisión o a esta Obligación.	
 	 	
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to the Issuer at the address set forth for notice in the Indenture.	  	A solicitud por escrito de cualquier Tenedor, la Emisora proporcionará a dicho Tenedor, sin costo alguno, una copia del Acta de Emisión que contenga el texto de esta Obligación en letra más grande. Dichas solicitudes podrán dirigirse a la Emisora al domicilio previsto para el envío de avisos en el Acta de Emisión.	
 	 	
For purposes of paragraph of Article 210 of the LGTOC, based on the Financial Statements, as of December 31, 2010, the (i) total stockholders’ equity ( capital contable ) of the Issuer was	  	Para efectos de lo dispuesto en la fracción II del artículo 210 de la LGTOC, de acuerdo con los Estados Financieros al 31 de diciembre de 2010: (i) el capital contable de la Emisora	
 
A-12

 	 	 	
 	 	
Ps.213,700 million, (ii) the Issuer’s paid-in capital stock was Ps.108,722 million, (iii) the amount of the total assets of the Issuer was Ps.515,097 million, (iv) the amount of the total liabilities of the Issuer was Ps.301,397 million and (v) the amount of the net total assets of the Issuer was Ps.213,700 million.	  	ascendía a Ps.213,700 millones; (ii) el capital social pagado de la Emisora ascendía a Ps.108,722 millones; (iii) el valor de los activos totales de la Emisora ascendía a Ps.515,097 millones; (iv) el importe de los pasivos de la Emisora ascendía a Ps.301,397 millones; y (v) el valor del activo total neto de la Emisora ascendía a Ps.213,700 millones.	
 	 	
The corporate purpose of the Issuer, includes, among other items, (i) to acquire or subscribe shares and to participate in the capital or the administration of all types of national or foreign companies or partnerships, and (ii) the issuance, endorsement, receipt, aval and any other form of subscription of negotiable instruments and to carry out all kind of transactions with them.	  	El objeto social de la Emisora comprende, entre otros fines, (i) adquirir o suscribir acciones, y participar en el capital o en la administración de todo tipo de sociedades o asociaciones, nacionales o extranjeras, y (ii) la emisión, endoso, aceptación, aval y cualquier otra forma de suscripción de títulos de crédito y la realización de todo tipo de operaciones con los mismos.	
 	 	
The Spanish version of the Indenture will be registered with the Public Registry of Property and Commerce of Monterrey, Nuevo León, México under mercantile file number 532*9.	  	La versión en español del Acta de Emisión será inscrita en el Registro Público de la Propiedad y del Comercio de la ciudad de Monterrey, Nuevo León, México bajo el folio mercantil 532*9.	
 	 	
This Note has been issued in English and Spanish text side-by-side. In case of any inconsistency or question as to the proper interpretation or construction of this Note between the text in English and the text in Spanish, the English text shall control in all cases.	  	Esta Obligación se emite a dos columnas en inglés y español. En caso de cualquier discrepancia o duda en cuanto a la correcta interpretación de esta Obligación entre sus versiones en inglés y español, imperará en todo caso la versión en inglés.	
 
A-13

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:

Date of Transfer	 	Amount of Decrease
in Principal Amount
of this Global
Security	 	Amount of Increase
in Principal Amount
of this Global
Security	 	Principal Amount of
this Global Security
following such
increase or decrease	 	Signature of
Authorized
Signatory of Trustee
or Registrar	

 
A-14

FORM OF CONVERSION NOTICE
UNRESTRICTED NOTES
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: Global Finance Americas
Re:        3.25% Convertible Subordinated Notes due 2016 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
The undersigned, registered owner of the aggregate amount of Notes specified below, hereby irrevocably exercises the option to convert such Notes, or a portion thereof herein designated (which is U.S.$1,000 or an integral multiple thereof and provided that if only a portion is converted that the portion not so converted is in a minimum principal amount of U.S.$100,000), into Ordinary Shares of the Issuer deliverable in the form of ADSs in accordance with the terms of the Indenture, and directs that the ADSs issuable and deliverable upon the conversion and any Notes representing any unconverted principal amount, be issued and delivered in book-entry form through the facilities of DTC, for credit to the account of the Person indicated below, unless a different name has been indicated below. If ADSs or any portion of the Notes not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer Taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of Interest and Taxes accompanies this notice of conversion.
The undersigned represents that, as of the date hereof, it has not delivered a purchase notice as described under the Indenture with respect to its Notes.
The undersigned acknowledges and agrees that no ADSs will be delivered prior to the effectiveness of any registration statement under the Securities Act relating to the ADSs, unless the Conversion Agent receives a deposit certificate in the form provided under the ADS Deposit Agreement and duly signed and completed on behalf of the applicable beneficial owner. The forms of such certificates are available from the Conversion Agent.
No ADSs will be delivered on conversion until any amount payable by the undersigned on account of Interest is paid, any certificates evidencing specified Notes not held in book-entry form are duly endorsed or assigned to the Issuer or in blank and surrendered and any Taxes or other charges or documents required in connection with the transfer on conversion, and any other required items, are delivered to the Conversion Agent.
 
A-15

Conversion of the specified number of Notes is subject to the requirements established by the Issuer and the ADSs depositary pursuant to the Indenture and the ADS Deposit Agreement, as well as to the procedures of DTC and Indeval, as in effect from time to time. Each conversion shall be deemed to have been effected with respect to a Note (or portion thereof) on the Conversion Date, and the Person in whose name any certificate or certificates for ADSs are issuable upon such conversion shall be deemed to have become on said date the holder of record of the ADSs represented thereby. Any such surrender on any date when the Issuer’s stock transfer books are closed shall constitute the Person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date upon which such Note is surrendered. Prior to such conversion, the undersigned will have no rights derived from, or in connection with, the ADSs issuable upon conversion.
Please provide the information requested below, as applicable:
1. PLEASE SPECIFY THE NOTES HELD AND THE PORTION THEREOF TO BE CONVERTED:

Principal amount held: U.S.$	 	 	
 	 	 	
CUSIP number(s):	 	 	
 	 	 	
DTC account where held:	 	 	
 	 	 	
Principal amount being converted (if less than all): U.S.$	 	 	
All Notes to be converted will be converted into ADSs of the Issuer and, together with any unconverted Notes, will be delivered in book-entry form to the DTC account specified above.
2. IF OTHER ARRANGEMENTS ARE DESIRED, please specify the type, number and form of ADSs to be delivered upon conversion and the name(s) of the account holder(s) or registered owner(s), by checking the appropriate boxes and providing the information requested:

ADSs	 	 	
Book Entry:	 	 	
 	 	 	 	 	
Number of ADSs:	 	 	 	 	
 	 	 	 	 	
DTC Account:	 	 	 	 	
 	 	 	
Unconverted Notes	 	 	 	 	
Book Entry:	 	 	 	 	
 	 	 	 	 	
Number of ADSs:	 	 	 	 	
 	 	 	 	 	
DTC Account:	 	 	 	 	
Please sign and date this notice in the space provided below.
[Signature page follows]
 
A-16

DATE:
(Please Print):

(Name)	

(Signature)	
 	 	Title:	
 	 	
 	 	(If the holder is a corporation,
partnership or fiduciary, the title of the Person signing on behalf of the holder
must be stated)	

(Address)	

(City, State and Zip Code)	

(Area Code and Telephone Number)	

(Fax Number)	

(Email Address)	

Signature Guarantee:  	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
A-17

FORM OF CONVERSION NOTICE
RESTRICTED NOTES
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: Global Finance Americas
Re:        3.25% Convertible Subordinated Notes due 2016 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee, and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
The undersigned, owner of the aggregate amount of Notes specified below, hereby irrevocably exercises the option to convert such Notes, or a portion thereof herein designated (which is U.S.$1,000 or an integral multiple thereof and provided that if only a portion is converted that the portion not so converted is in a minimum principal amount of U.S.$100,000)), into Ordinary Shares of the Issuer deliverable only in the form of ADSs in accordance with the terms of the Indenture, and directs that the ADSs issuable and deliverable upon the conversion and any Notes representing any unconverted principal amount, be issued and delivered in book-entry form through the facilities of DTC, for credit to the account of the Person indicated below, unless restricted ADSs are to be issued and delivered in the event of any conversion of Notes (x) within 12 months after the date of issuance of the Notes, or (y) by any person that is an Affiliate of the Issuer. Restricted ADSs are not eligible for delivery in book-entry form through the facilities of DTC but instead will be issued and delivered as uncertificated ADSs registered in the name of the owner on the books of Citibank, N.A., the ADS Depositary. If ADSs or any portion of the Notes not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer Taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of Interest and Taxes accompanies this notice of conversion.
The undersigned represents that, as of the date hereof, it has not delivered a purchase notice as described under the Indenture with respect to its Notes.
The undersigned understands that, upon conversion of Notes, freely transferable ADSs will be delivered only if (i) the Notes are being converted upon the expiration of twelve months after their date of issuance, and (ii) the converting Note holder is not an Affiliate of the Issuer.
No ADSs will be delivered on conversion until any amount payable by the undersigned on account of Interest is paid, any certificates evidencing specified Notes not held in book-entry form are duly endorsed or assigned to the Issuer or in blank and surrendered and any Taxes or other charges or documents required in connection with the transfer on conversion, and any other required items, are delivered to the Conversion Agent.
 
A-18

Conversion of the specified number of Notes is subject to the requirements established by the Issuer and the ADSs depositary pursuant to the Indenture and the ADS Deposit Agreement, as well as to the procedures of DTC and Indeval, as in effect from time to time. Prior to such conversion, the undersigned will have no rights derived from, or in connection with, the ADSs issuable upon conversion.
Please provide the information requested below, as applicable:
1. PLEASE SPECIFY THE NOTES TO BE CONVERTED:

Principal amount being converted: U.S.$	 	 	
 	 	 	
CUSIP number(s):	 	 	
 	 	 	
DTC account where held:	 	 	
2. IF NOTES ARE BEING CONVERTED UPON THE EXPIRATION OF A SIX MONTH PERIOD AFTER THE DATE OF ISSUANCE OF THE NOTES AND ADSs IN UNRESTRICTED FORM ARE REQUESTED, the holder of Notes being converted certifies by checking the box that s/he/it is not an Affiliate of the Issuer.
3. IF UNRESTRICTED ADSs ARE BEING REQUESTED, please provide the following ADS delivery instructions:

Name of DTC Participant acting for undersigned:	 	 	
 	 	
DTC Participant Account No.:	 	 	
 	 	
Account No. for undersigned at DTC Participant (f/b/o information):	 	 	
 	 	
Onward Delivery Instructions of undersigned:	 	 	
 	 	
Contact person at DTC Participant:	 	 	
 	 	
Daytime telephone number of contact person at DTC Participant:	 	 	
 	 	
Email of contact person at DTC Participant:	 	 	
 
A-19

4. IF RESTRICTED ADSs ARE BEING REQUESTED, please provide the following ADS delivery instructions:

Name of Restricted ADS holder:	  	 	
 	 	
Street Address:	  	 	
 	 	
City, State, and Country:	  	 	
 	 	
Nationality:	  	 	
 	 	
Social Security or Tax Identification Number:	  	 	
Please sign and date this notice in the space provided below.
[Signature page follows]
 
A-20

DATE:
(Please Print):

 	 	
(Name)	 	 	

(Signature)	 	 	
Title:        	 	 	
 	 	
 	 	(If the holder is a corporation,
partnership or fiduciary, the title of the Person signing on behalf of the holder
must be stated)	

(Address)	 	 	

(City, State and Zip Code)	 	 	

(Area Code and Telephone Number)	 	 	

(Fax Number)	 	 	

(Email Address)	 	 	
 	 	 	 	 	
SIGNATURE GUARANTEE

Name of Firm Issuing Guarantee:	  	 	

Authorized Signature of Officer:	  	 	

Title of Officer Signing This Guarantee:	  	 	

Address:	  	 	

 
 	 	 	
Area Code and Telephone Number:	  	 	

Dated:	  	 	
 
A-21

The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
A-22

OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Note repurchased by the Issuer pursuant to Section 3.03 of the Indenture, check the box: [    ]
If you wish to have a portion of this Note purchased by the Issuer pursuant to Section 3.03 of the Indenture, state the amount (in multiples of U.S.$1,000): U.S.$            . (If you elect to have your Note purchased in part, the portion of the Note not redeemed must have an aggregate principle amount of at least U.S.$100,000.)

Your Signature:	 	 	
 	 	(Sign exactly as your name appears on the other side of this Note)	

 	 	 	 	 	
Date:  	 	 	 	 	

 	 	 	
Medallion Signature Guarantee:  	 	 	 	 	
 
A-23

EXHIBIT B
FORM OF CERTIFICATION
FOR TRANSFER PURSUANT TO RULE 144
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: Global Finance Americas
 
 	Re:	3.25% Convertible Subordinated Notes due 2016 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”) (144A Note CUSIP: 151290 AZ6 (restricted), 151290 BB8 (unrestricted); Regulation S Note CUSIP: P2253T HV4)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed sale of U.S.$         aggregate principal amount of the Notes, which represent an interest in a Global Security beneficially owned by the undersigned (“Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	 	 	
 	 	
[Name of Transferor]	 	 	

 	 	 	 	 	
By:  	 	 	 	 	

 	 	 	
Authorized Signature	  	 	

Signature Guarantee:  	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	
 
B-1

The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
B-2

EXHIBIT C
FORM OF CERTIFICATION
FOR TRANSFER PURSUANT TO REGULATION S
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	3.25% Convertible Subordinated Notes due 2016 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”) (144A Note CUSIP: 151290 AZ6 (restricted), 151290 BB8 (unrestricted); Regulation S Note CUSIP: P2253T HV4)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “ Securities Act ”), as the case may be.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Securities beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
 
C-1

In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	  	 	
 	 	
[Name of Transferor]	  	 	

 	 	 	
By:	  	 	  	 	

Authorized Signature]	  	 	

Signature Guarantee:	  	 	  	 	
 	  	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
C-2

EXHIBIT D
FORM OF CERTIFICATION
FOR TRANSFER PURSUANT TO RULE 144A
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	3.25% Convertible Subordinated Notes due 2016 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”) (144A Note CUSIP: 151290 AZ6 (restricted), 151290 BB8 (unrestricted); Regulation S Note CUSIP: P2253T HV4)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “ Securities Act ”), as the case may be.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Securities beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”) and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	 	 	
 	 	
[Name of Transferor]	 	 	
 	 	 	
By:	 	 	 	 	

Authorized Signature]	 	 	
 
D-1

 	 	 	
 	 	
Signature Guarantee:	 	                                                                            	
 	 	(Signature must be guaranteed)	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
FORM OF RESTRICTED ADS LEGEND
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES FOR THE BENEFIT OF CEMEX, S.A.B. de C.V. (THE “ COMPANY ”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT: (A) TO THE COMPANY, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (C) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) OR (E) ABOVE (OTHER THAN A TRANSFER PURSUANT TO RULE 144), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
 
E-1

EXHIBIT F
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OF RESTRICTED ADSs
(Transfers pursuant to Section 12.11(c) of the Indenture)
Citibank, N.A
C/o Rosanne Devonshire
111 Wall Street, 15th Floor
New York, NY 10003
Re:        Restricted ADSs of CEMEX, S.A.B. de C.V. (the “Issuer”)
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to             ADSs represented by the accompanying certificate(s) that were issued upon conversion of Notes and which are held in the name of                     (the “Transferor”) to effect the transfer of such ADSs.
Such ADSs are only being transferred:
CHECK ONE BOX BELOW
 
 	(1)	[    ] to the Issuer; or	
 
 	(2)	[    ] pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or	
 
 	(3)	[    ] pursuant to an exemption from registration under the Securities Act of 1933 provided by Rule 144 thereunder; or	
 
 	(4)	[    ] pursuant to a shelf registration statement of the Issuer that has been declared effective under the Securities Act of 1933, in connection with the transfer of such ADSs; or	
 
 	(5)	[    ] pursuant to and in compliance with Regulation S under the Securities Act of 1933.	
[signature page follows]
 
F-1

Unless one of the boxes is checked, the transfer agent will refuse to register any of the ADSs evidenced by this certificate in the name of any Person other than the registered Holder thereof;  provided, however , that if box (2), (3) or (5) is checked, the transfer agent may require, prior to registering any such transfer of the ADSs such certifications and other information, and if box (3) or (5) is checked such legal opinions, as the Issuer has reasonably requested in writing, by delivery to the transfer agent of a standing letter of instruction, to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

[Name of Transferor]	
 	 	
By:	 	 	
 	 	Name:	
 	 	Title:	
 	
Medallion Signature Guarantee:	

Dated:
 
F-2

EXHIBIT G
[To include Financial Statements]
 
G-1

EXHIBIT H
Summary of Terms of the Offering
CEMEX, S.A.B. de C.V.
3.25% Convertible Subordinated Notes Due 2016 (the “2016 Notes”)
3.75% Convertible Subordinated Notes Due 2018 (the “2018 Notes”)
(collectively, the “Notes”)
Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Offering Memorandum dated March 8, 2010 (the “Preliminary Offering Memorandum”). All references to dollar amounts are references to U.S. dollars. References to American Depositary Shares (“ADSs”) are to ADSs of the Issuer. Unless specifically stated otherwise, the information in this pricing term sheet assumes the initial purchasers do not exercise their over-allotment options.
 
Issuer	CEMEX, S.A.B. de C.V. (the “Issuer”)	
 
Security Description	3.25% Convertible Subordinated Notes due 2016
3.75% Convertible Subordinated Notes due 2018	
 
Format	144A Global Notes / Regulation S Global Notes	
 
Global Coordinators and Active Bookrunners	Citigroup Global Markets, Inc.	
 	J.P. Morgan Securities LLC	
 
Joint Passive Bookrunners	Banco Bilbao Vizcaya Argentaria S.A.	
 	Merrill Lynch, Pierce, Fenner & Smith Incorporated	
 	BNP Paribas Securities Corp.	
 	Barclays Capital Inc.	
 	HSBC Securities (USA) Inc.	
 	ING Financial Markets LLC	
 	RBS Securities Inc.	
 	Santander Investment Securities Inc.	
 
Co-Managers	Banca IMI S.p.A.	
 	Credit Agricole Securities (USA) Inc.	
 	Lazard Capital Markets LLC	
 	Mizuho Securities USA Inc.	
 	Scotia Capital (USA) Inc.	
 	The Williams Capitol Group, L.P.	
 
Identifiers (144A Notes)	2016 Notes:	
 
 	CUSIP: 151290 AZ6	
 	ISIN: US151290AZ66	
 	CUSIP: 151290 BB8 (unrestricted)	
 	ISIN: US151290BB89 (unrestricted)	
 
 	2018 Notes:	
 
 	CUSIP: 151290 BA0	
 	ISIN: US151290BA07	
 	CUSIP: 151290 BC6 (unrestricted)	
 	ISIN: US151290BC62 (unrestricted)	
 
H-1

Identifiers (Regulation S Notes)	2016 Notes:	
 
 	CUSIP: P2253T HV4	
 	ISIN: USP2253THV46	
 
 	2018 Notes:	
 
 	CUSIP: P2253T HW2	
 	ISIN: USP2253THW29	
 
Principal amount offered	U.S.$800,000,000 aggregate principal amount of 2016 Notes	
 	U.S.$600,000,000 aggregate principal amount of 2018 Notes	
 
Over-allotment option	U.S.$177,500,000 aggregate principal amount of 2016 Notes	
 	U.S.$90,000,000 aggregate principal amount of 2018 Notes	
 
Settlement date	March 15, 2011	
 
Final maturity	The 2016 Notes will mature on March 15, 2016	
 	The 2018 Notes will mature on March 15, 2018	
 
Interest payment	March 15 and September 15, beginning on September 15, 2011	
 
Day count convention	360-day year consisting of twelve 30-day months	
 
Annual interest rate	The 2016 Notes will bear interest at a rate equal to 3.25% per annum from March 15, 2011.	
 
 	The 2018 Notes will bear interest at a rate equal to 3.75% per annum from March 15, 2011.	
 
Offering price	The Notes will be issued at a price of 100% of their principal amount, plus accrued interest, if any, from March 15, 2011	
 
Initial conversion price	Approximately U.S.$11.28 per ADS for the 2016 Notes	
 	Approximately U.S.$11.28 per ADS for the 2018 Notes	
 
Initial conversion rate	88.6211 ADSs per U.S.$1,000 principal amount of 2016 Notes	
 	88.6211 ADSs per U.S.$1,000 principal amount of 2018 Notes	
 
NYSE last reported sale price on
March 9, 2011	U.S.$8.68 per ADS	
 
Conversion premium	Approximately 30% above the last NYSE last reported sale price on March 9, 2011 for the 2016 Notes.	
 
 	Approximately 30% above the last NYSE last reported sale price on March 9, 2011 for the 2018 Notes.	
 
Denomination	U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof	
 
Conversion Rights	Holders may convert their 2016 Notes into the Issuer’s ADSs (which	
 
H-2

 	represent CPOs, which in turn have ordinary shares as underlying securities) at an initial conversion rate of 88.6211 ADSs per U.S.$1,000 principal amount of 2016 Notes after June 30, 2011 and prior to the close of business on the fourth Business Day (as defined in the Preliminary Offering Memorandum) immediately preceding the maturity date for the 2016 Notes. The conversion rate is equivalent to an initial conversion price of approximately U.S.$11.28 per ADS.	
 
 	Holders may convert their 2018 Notes into the Issuer’s ADSs (which represent CPOs, which in turn have ordinary shares as underlying securities) at an initial conversion rate of 88.6211 ADSs per U.S.$1,000 principal amount of 2018 Notes after June 30, 2011 and prior to the close of business on the fourth Business Day (as defined in the Preliminary Offering Memorandum) immediately preceding the maturity date for the 2018 Notes. The conversion rate is equivalent to an initial conversion price of approximately U.S.$11.28 per ADS.	
 
 	The indentures governing the Notes contain a covenant requiring the Issuer to cause a sufficient number of Available Treasury Shares (as defined in the Preliminary Offering Memorandum) or CPOs to be authorized in order to satisfy its conversion obligations, within the time limits set forth in the indentures.	
 
Anti-Dilution Adjustments	The conversion rate may be adjusted if certain events occur.	
 
Make Whole Conversion upon Fundamental Change	If a fundamental change (as defined in the Preliminary Offering Memorandum) occurs and a holder elects to convert its Notes in connection with such fundamental change, the Issuer will, under certain circumstances, increase the conversion rate for the Notes so surrendered for conversion. The following tables below set forth the number of additional ADSs to be received per U.S.$1,000 principal amount of the Notes of each series in connection with a fundamental change as described in the Preliminary Offering Memorandum, based on hypothetical ADS prices and effective dates of the fundamental change.	

 	  	ADS Price for the 2016 Notes	 	
Effective Date	  	$8.68	 	  	$10.00	 	  	$12.50	 	  	$15.00	 	  	$.17.50	 	  	$20.00	 	  	$25.00	 	  	$30.00	 	  	$35.00	 	  	$40.00	 	  	$50.00	 	
March 15, 2011	  	 	26.5863	  	  	 	21.3492	  	  	 	13.8100	  	  	 	9.6178	  	  	 	7.0672	  	  	 	5.4033	  	  	 	3.4274	  	  	 	2.3291	  	  	 	1.6453	  	  	 	1.1860	  	  	 	0.6241	  	
March 15, 2012	  	 	26.5863	  	  	 	21.1705	  	  	 	13.1132	  	  	 	8.8004	  	  	 	6.2785	  	  	 	4.6942	  	  	 	2.8961	  	  	 	1.9418	  	  	 	1.3631	  	  	 	0.9789	  	  	 	0.5104	  	
March 15, 2013	  	 	26.5863	  	  	 	20.5085	  	  	 	11.9045	  	  	 	7.5390	  	  	 	5.1335	  	  	 	3.7084	  	  	 	2.2015	  	  	 	1.4568	  	  	 	1.0202	  	  	 	0.7330	  	  	 	0.3800	  	
March 15, 2014	  	 	26.5863	  	  	 	19.1511	  	  	 	9.9350	  	  	 	5.6498	  	  	 	3.5243	  	  	 	2.3947	  	  	 	1.3475	  	  	 	0.8894	  	  	 	0.6305	  	  	 	0.4581	  	  	 	0.2375	  	
March 15, 2015	  	 	26.5863	  	  	 	16.3850	  	  	 	6.4923	  	  	 	2.7265	  	  	 	1.3119	  	  	 	0.7638	  	  	 	0.4115	  	  	 	0.2872	  	  	 	0.2117	  	  	 	0.1567	  	  	 	0.0799	  	
March 15, 2016	  	 	26.5863	  	  	 	11.3789	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	
 
H-3

The exact ADS prices and effective dates may not be set forth in the table above, in which case if the ADS price is:
 
 	•	 	between two adjacent ADS price amounts in the table or the effective date is between two adjacent effective dates in the table, the number of additional ADSs will be determined by a straight-line interpolation between the number of additional ADSs set forth for the higher and lower ADS price amounts and the two dates based on a 365-day year, as applicable.	
 
 	•	 	greater than U.S.$50 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of the 2016 Notes.	
 
 	•	 	less than U.S.$8.68 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of the 2016 Notes.	
Notwithstanding the foregoing, in no event will the total number of ADSs issuable upon conversion exceed 115.2074 per U.S.$1,000 principal amount of 2016 Notes, although that maximum is subject to adjustment in the same manner as the conversion rate as set forth under “Description of Notes—Conversion Rights—Conversion Rate Adjustments” in the Preliminary Offering Memorandum.

 	  	ADS Price for the 2018 Notes	 	
Effective Date	  	$8.68	 	  	$10.00	 	  	$12.50	 	  	$15.00	 	  	$.17.50	 	  	$20.00	 	  	$25.00	 	  	$30.00	 	  	$35.00	 	  	$40.00	 	  	$50.00	 	
March 15, 2011	  	 	26.5863	  	  	 	22.2972	  	  	 	15.5061	  	  	 	11.4846	  	  	 	8.8818	  	  	 	7.0843	  	  	 	4.7979	  	  	 	3.4276	  	  	 	2.5283	  	  	 	1.9012	  	  	 	1.1034	  	
March 15, 2012	  	 	26.5863	  	  	 	22.2425	  	  	 	15.1238	  	  	 	11.0096	  	  	 	8.4052	  	  	 	6.6408	  	  	 	4.4439	  	  	 	3.1544	  	  	 	2.3186	  	  	 	1.7396	  	  	 	1.0059	  	
March 15, 2013	  	 	26.5863	  	  	 	21.9970	  	  	 	14.5099	  	  	 	10.3128	  	  	 	7.7326	  	  	 	6.0294	  	  	 	3.9707	  	  	 	2.7968	  	  	 	2.0483	  	  	 	1.5340	  	  	 	0.8843	  	
March 15, 2014	  	 	26.5863	  	  	 	21.6170	  	  	 	13.6547	  	  	 	9.3653	  	  	 	6.8333	  	  	 	5.2239	  	  	 	3.3622	  	  	 	2.3459	  	  	 	1.7127	  	  	 	1.2818	  	  	 	0.7379	  	
March 15, 2015	  	 	26.5863	  	  	 	20.7665	  	  	 	12.2837	  	  	 	7.9616	  	  	 	5.5607	  	  	 	4.1217	  	  	 	2.5687	  	  	 	1.7759	  	  	 	1.2969	  	  	 	0.9734	  	  	 	0.5617	  	
March 15, 2016	  	 	26.5863	  	  	 	19.2156	  	  	 	10.1309	  	  	 	5.9021	  	  	 	3.7925	  	  	 	5.6589	  	  	 	1.5833	  	  	 	1.0938	  	  	 	0.8078	  	  	 	0.6129	  	  	 	0.3565	  	
March 15, 2017	  	 	26.5863	  	  	 	16.3088	  	  	 	6.5195	  	  	 	2.8036	  	  	 	1.4054	  	  	 	0.8579	  	  	 	0.4936	  	  	 	0.3566	  	  	 	0.2713	  	  	 	0.2088	  	  	 	0.1217	  	
March 15, 2018	  	 	26.5863	  	  	 	11.3789	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	
The exact ADS prices and effective dates may not be set forth in the table above, in which case if the ADS price is:
 
 	•	 	between two adjacent ADS price amounts in the table or the effective date is between two adjacent effective dates in the table, the number of additional ADSs will be determined by a straight-line interpolation between the number of additional ADSs set forth for the higher and lower ADS price amounts and the two dates based on a 365-day year, as applicable.	
 
 	•	 	greater than U.S.$50 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of 2018 Notes.	
 
 	•	 	less than U.S.$8.68 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of 2018 Notes.	
 
H-4

Notwithstanding the foregoing, in no event will the total number of ADSs issuable upon conversion exceed 115.2074 per U.S.$1,000 principal amount of 2018 Notes, although that maximum is subject to adjustment in the same manner as the conversion rate as set forth under “Description of Notes—Conversion Rights—Conversion Rate Adjustments” in the Preliminary Offering Memorandum.
 
Repurchase at Option of Holder	•	 	Other than in the event of a change of control, Holders may not require the Issuer to repurchase any Notes prior to their stated maturity date.	
 
 	•	 	If a change of control (as defined in the Preliminary Offering Memorandum) occurs at any time, each Holder will have the right, at that holder’s option, to require the Issuer to purchase all or part of its Notes for cash at a repurchase price equal to 100% of their principal amount, plus accrued and unpaid interest (including additional interest, if any) and additional amounts, if any, up to, but excluding, the repurchase date.	
 
Redemptions	•	 	Other than in the event of a tax redemption, the Issuer may not redeem any Notes prior to their stated maturity date.	
 
 	•	 	In the event of certain changes in the withholding tax treatment relating to payments on the Notes of a series, the Issuer will have the option to redeem the Notes of a series, in whole but not in part, at a redemption price equal to 100% of the outstanding principal amount of the Notes of such series plus any accrued and unpaid interest to the date fixed for redemption and any additional amounts that may be payable, so long as the Issuer is not prohibited from having such an option under the Financing Agreement.	
 
 	•	 	Upon the Issuer giving notice that it will redeem the Notes of a series because of such a change in the withholding tax treatment, holders will have the option to convert their notes of such series as if a fundamental change had occurred.	
 
Use of Proceeds	The estimated net proceeds from this offering, after deducting the initial purchasers’ discounts and commissions and estimated offering expenses, will be approximately U.S.$1,347 million, assuming the initial purchasers do not exercise their over-allotment options, and approximately U.S.$1,637 million if they exercise their over-allotment options in full. The Issuer intends to use approximately U.S.$187,000,000 of the net proceeds from this offering to pay the cost of the capped call transactions described in the Preliminary Offering Memorandum and expect to use a portion of the net proceeds from the sale of additional Notes in the event the initial purchasers exercise their over-allotment options to increase the number of ADSs underlying the capped call transactions on a proportionate basis, and the Issuer intends to use the remaining net proceeds to repay indebtedness, including indebtedness under the Financing Agreement and CBs.	
 
H-5

Capped Call Option	In connection with this offering, the Issuer expects to enter into capped call transactions with one or more financial institutions, covering, subject to customary anti-dilution adjustments, approximately 124.1 million of the Issuer’s ADSs, assuming the initial purchasers do not exercise their over-allotment options. If the initial purchasers exercise their options to purchase additional Notes to cover over-allotments, the Issuer expects to increase the number of ADSs underlying the capped call transactions on a proportionate basis. Because the capped call transactions are cash settled, they will not provide an offset to any ADSs the Issuer may deliver to holders upon conversion of the Notes. The capped call transactions have a cap price 90% higher for the 2016 Notes and 110% higher for the 2018 Notes than the closing price of the Issuer’s ADSs on March 9, 2011.	
 
 	For purposes of hedging these capped call transactions, the Issuer expects that the counterparties to the capped call transactions (or affiliates thereof) (i) may enter into various over-the-counter cash-settled derivative transactions with respect to the Issuer’s CPOs or ADSs and/or purchase the Issuer’s CPOs or ADSs in secondary market transactions concurrently with and shortly after the pricing of the Notes; (ii) and may enter into or unwind various over-the-counter derivatives and/or purchase or sell the Issuer’s CPOs or ADSs in secondary market transactions following the pricing of the Notes and prior to the maturity of the Notes.	
 
New York Stock Exchange Symbol for the Issuer’s ADSs	CX	
 
Governing law	New York	
 
Clearing	The Depositary Trust Company	
 
Additional Information	 	
 
1.	Capitalization of CEMEX	
The following table sets forth our consolidated cash and temporary investments, indebtedness and capitalization as of December 31, 2010 (1) on an actual basis; (2) as adjusted to give effect to (i) the issuance of the January 2011 Notes, (ii) the 2011 Prepayments, and (iii) the 2011 Private Exchange; and (3) as further adjusted to give effect to the issuance and sale in this offering of U.S.$ 1,400 million aggregate principal amount of the Notes, the payment of the initial purchasers’ discounts and commissions and the estimated expenses in connection with this offering, and the application of the estimated net proceeds as described under “Use of Proceeds.” The offering of the 2016 Notes is independent of, and not conditioned upon, the offering of the 2018 Notes. The offering of the 2018 Notes is independent of, and not conditioned upon, the offering of the 2016 Notes.
The financial information set forth below is based on information derived from our financial statements, which have been prepared in accordance with MFRS, which differ in significant respects from U.S. GAAP. For further information about our financial presentation, see “Selected Consolidated Financial Information.”
[Table in next page]
 
H-6

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	As of December 31, 2010	 	
 	  	Actual	 	  	As adjusted(1)	 	  	As further adjusted(2)	 	
 	  	 	 	  	(in millions of Pesos and Dollars)	 	
Cash and investments(3)	  	Ps	8,354	  	  	Ps	13,280	  	  	U.S.$	1,074	  	  	Ps	13,280	  	  	U.S.$	1,074	  	
 	 	 	 	 	 	
Short-term debt(4)	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Secured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Banobras(5)	  	Ps	36	  	  	Ps	36	  	  	U.S.$	3	  	  	Ps	36	  	  	U.S.$	3	  	
Bancomext(5)	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Other secured(6)	  	 	4,358	  	  	 	1,197	  	  	 	97	  	  	 	1,197	  	  	 	97	  	
Unsecured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Other unsecured	  	 	1,243	  	  	 	517	  	  	 	42	  	  	 	517	  	  	 	42	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total short-term debt	  	 	5,637	  	  	 	1,750	  	  	 	142	  	  	 	1,750	  	  	 	142	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Long-term debt	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Secured by the Collateral	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Financing Agreement	  	 	118,241	  	  	 	117,626	  	  	 	9,517	  	  	 	104,500	  	  	 	8,455	  	
CBs(7)	  	 	8,867	  	  	 	6,169	  	  	 	499	  	  	 	4,628	  	  	 	374	  	
Senior Secured Notes(8)(9)	  	 	42,496	  	  	 	56,405	  	  	 	4,564	  	  	 	56,405	  	  	 	4,564	  	
Other secured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Banobras	  	 	169	  	  	 	169	  	  	 	14	  	  	 	169	  	  	 	14	  	
Bancomext	  	 	2,007	  	  	 	2,007	  	  	 	162	  	  	 	2,007	  	  	 	162	  	
Unsecured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
CEMEX España Euro Notes(10)	  	 	14,834	  	  	 	14,834	  	  	 	1,200	  	  	 	14,834	  	  	 	1,200	  	
Other unsecured	  	 	2,874	  	  	 	2,874	  	  	 	233	  	  	 	2,874	  	  	 	233	  	
Optional Convertible Subordinated Notes(11)	  	 	7,693	  	  	 	7,693	  	  	 	622	  	  	 	7,693	  	  	 	622	  	
The Notes(12)	  	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	13,797	  	  	 	1,116	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total long-term debt	  	 	197,181	  	  	 	207,777	  	  	 	16,811	  	  	 	206,907	  	  	 	16,740	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total debt	  	 	202,818	  	  	 	209,527	  	  	 	16,953	  	  	 	208,657	  	  	 	16,882	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Liability component of Mandatory Convertible Notes(13)	  	 	1,994	  	  	 	1,994	  	  	 	161	  	  	 	1,994	  	  	 	161	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Stockholders’ equity	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Non-controlling interest	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Perpetual debentures(14)	  	 	16,310	  	  	 	14,342	  	  	 	1,160	  	  	 	14,342	  	  	 	1,160	  	
Other	  	 	3,214	  	  	 	3,214	  	  	 	260	  	  	 	3,214	  	  	 	260	  	
Controlling interest(11)(12)(13)	  	 	194,176	  	  	 	194,176	  	  	 	15,710	  	  	 	197,623	  	  	 	15,989	  	
Total stockholders’ equity	  	 	213,700	  	  	 	211,732	  	  	 	17,130	  	  	 	215,179	  	  	 	17,409	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total capitalization(15)	  	 	418,512	  	  	 	423,253	  	  	 	34,244	  	  	 	425,830	  	  	 	34,452	  	

(1)	Reflects the issuance of U.S.$1.0 billion aggregate principal amount of the January 2011 Notes, the 2011 Prepayments and the 2011 Private Exchange. Amounts in Dollars have been converted from Pesos at an exchange rate of Ps12.36 to U.S.$1.00, the CEMEX accounting rate as of December 31, 2010.	
(2)	Reflects additional application of the net proceeds from this offering. Assumes the initial purchasers do not exercise their over-allotment options. Amounts in Dollars have been converted from Pesos at an exchange rate of Ps12.36 to U.S.$1.00, the CEMEX accounting rate as of December 31, 2010.	
(3)	In the “as adjusted” and “as further adjusted” columns, includes cash used to create a reserve for CBs maturing in September 2011 of approximately U.S.$81 million.	
(4)	Includes current portion of long-term debt.	
(5)	Represent obligations with Mexican development banks, which are secured by fixed assets.	
 
H-7

(6)	Represent long-term CBs with maturities during 2011, for which U.S.$81 million of cash has been reserved.	
(7)	Represent CBs maturing in 2012 and thereafter.	
(8)	Includes (i) U.S.$1,250,000,000 aggregate principal amount of 9.50% Senior Secured Notes due 2016 and €350,000,000 aggregate principal amount of 9.625% Senior Secured Notes due 2017 issued by CEMEX Finance LLC on December 14, 2009; (ii) U.S.$500,000,000 additional aggregate principal amount of 9.50% Senior Secured Notes due 2016 issued by CEMEX Finance LLC on January 19, 2010, (iii) U.S.$1,067,665,000 aggregate principal amount of 9.25% Senior Secured Notes due 2020 and €115,346,000 aggregate principal amount of 8.875% Senior Secured Notes due 2017 issued by CEMEX España, acting through its Luxembourg branch, on May 12, 2010 (iv) U.S.$1,000,000,000 aggregate principal amount of 9.000% Senior Secured Notes due 2018 issued by CEMEX on January 11, 2011, and (v) U.S.$125,331,000 additional aggregate principal amount of 9.25% Senior Secured Notes due 2020 issued by CEMEX España, acting through its Luxembourg branch, on March 4, 2011.	
(9)	Amounts in Dollars have been converted from Euros at an exchange rate of U.S.$1.3335 to €1.00, the CEMEX foreign exchange rate as of December 31, 2010.	
(10)	Issued by CEMEX Finance Europe B.V., a special purpose vehicle and wholly-owned subsidiary of CEMEX España, and solely guaranteed by CEMEX España.	
(11)	Under MFRS C-12, the Optional Convertible Subordinated Notes represent a compound instrument, which has a liability component and an equity component. The liability component amounted to U.S.$622 million as of December 31, 2010 and U.S.$614 million at issuance. The equity component, which represents a premium over the option of the noteholders to convert into equity, was recognized net of commissions, within “Other equity reserves” and amounted to U.S.$93 million at issuance (see note 12A and 16B to our consolidated financial statements included elsewhere in this offering memorandum). If the conversion option is exercised, this amount will be reclassified as additional paid-in capital. Although we have not completed our U.S. GAAP reconciliation of our 2010 financial statements, we currently anticipate that there will be a new reconciliation item in our U.S. GAAP reconciliation of our 2010 financial statements in respect of the Optional Convertible Subordinated Notes, the entire principal amount of which we expect will be recorded as debt until conversion under U.S. GAAP. We cannot assure you that we will not identify additional reconciliation items or that this reconciliation item will be reflected therein in accordance with our current expectations.	
(12)	Under MFRS C-12, the Notes, like the Optional Convertible Subordinated Notes referred to in note (11) above, represent a compound instrument, which has a liability component and an equity component, and we expect to have a similar U.S. GAAP reconciliation item in respect of the Notes in our future financial statements. However, the Notes will not be considered as debt for purposes of the leverage ratio calculations under the Financing Agreement. The “as further adjusted” column reflects (i) the expected liability component of the Notes of U.S.$1,116 million, calculated as of the date of this offering memorandum and (ii) the expected equity component of the Notes of U.S.$279 million, calculated net of commissions as of the date of this offering memorandum. The equity component, which represents a premium over the option of the noteholders to convert into equity, is expected to be recognized net of commissions, within “Other equity reserves,” and if the conversion option is exercised, will be reclassified as additional paid-in capital.	
(13)	Under MFRS, the Mandatory Convertible Securities issued in Mexico on December 10, 2009 in exchange for CBs represent a combined instrument with liability and equity components. The liability component, approximately Ps1,994 million (U.S.$161 million) as of December 31, 2010, corresponds to the net present value of interest payments due under the Mandatory Convertible Securities, assuming no early conversion, and was recognized under “Other Financial Obligations” in our balance sheet. The equity component, approximately Ps1,971 million (U.S.$159 million) as of December 31, 2010, represents the difference between principal amount and the liability component, and was recognized within “Other equity reserves” net of commissions in our balance sheet. See notes 12A and 16B to our consolidated financial statements included elsewhere in this offering memorandum.	
(14)	Issued by special purpose vehicles. In accordance with MFRS, these securities are accounted for as equity due to the fact that they do not have a specified maturity date and our option to defer payment of interest. However, for purposes of our U.S. GAAP reconciliation, we record these debentures as debt and interest payments thereon as part of financial expenses in our consolidated income statement.	
(15)	As used in this table, total capitalization equals short- and long-term debt plus the Mandatory Convertible Notes plus the Notes and plus total stockholders’ equity.	
 
H-8

Exhibit 4.21
Execution Version

 

CEMEX, S.A.B. DE C.V.,
THE BANK OF NEW YORK MELLON
AS TRUSTEE
AND
THE BANK OF NEW YORK MELLON, S.A., INSTITUCIÓN DE BANCA MÚLTIPLE
AS MEXICAN TRUSTEE
3.75% CONVERTIBLE SUBORDINATED NOTES DUE 2018

Indenture
Dated as of March 15, 2011

 

TABLE OF CONTENTS

 	  	 	  	Page	 	
ARTICLE I	  	DEFINITIONS	  	 	1	  	
 	 	 	
Section 1.01.	  	Definitions	  	 	1	  	
Section 1.02.	  	Other Definitions	  	 	11	  	
Section 1.03.	  	[Reserved]	  	 	12	  	
Section 1.04.	  	Rules of Construction	  	 	12	  	
 	 	 	
ARTICLE II	  	THE NOTES	  	 	13	  	
 	 	 	
Section 2.01.	  	Form and Dating	  	 	13	  	
Section 2.02.	  	Execution and Authentication	  	 	14	  	
Section 2.03.	  	The Trustee Registrar, Paying Agent and Conversion Agent	  	 	15	  	
Section 2.04.	  	Paying Agent to Hold Money in Trust	  	 	16	  	
Section 2.05.	  	Holder Lists	  	 	16	  	
Section 2.06.	  	Legends; Transfer Restrictions	  	 	16	  	
Section 2.07.	  	Transfer and Exchange	  	 	16	  	
Section 2.08.	  	Replacement Notes	  	 	21	  	
Section 2.09.	  	Outstanding Notes	  	 	22	  	
Section 2.10.	  	When Treasury Notes Disregarded	  	 	22	  	
Section 2.11.	  	Temporary Notes; Definitive Securities	  	 	23	  	
Section 2.12.	  	Cancellation	  	 	24	  	
Section 2.13.	  	[Reserved]	  	 	24	  	
Section 2.14.	  	CUSIP Number	  	 	24	  	
 	 	 	
ARTICLE III	  	REDEMPTION AND REPURCHASE OF NOTES	  	 	25	  	
 	 	 	
Section 3.01.	  	Redemption of Notes at the Option of the Issuer	  	 	25	  	
Section 3.02.	  	[Reserved]	  	 	27	  	
Section 3.03.	  	Repurchase Upon a Change of Control at the Option of the Holders	  	 	27	  	
Section 3.04.	  	General Provisions Applicable to Repurchases	  	 	27	  	
 	 	 	
ARTICLE IV	  	COVENANTS	  	 	29	  	
 	 	 	
Section 4.01.	  	Payment of Notes	  	 	29	  	
Section 4.02.	  	Reports	  	 	29	  	
Section 4.03.	  	Compliance Certificate	  	 	30	  	
Section 4.04.	  	Maintenance of Office or Agency	  	 	30	  	
Section 4.05.	  	[Reserved]	  	 	31	  	
Section 4.06.	  	Appointments to Fill Vacancies in Trustee’s Office	  	 	31	  	
Section 4.07.	  	Stay, Extension and Usury Laws	  	 	31	  	
Section 4.08.	  	[Reserved]	  	 	31	  	
Section 4.09.	  	Additional Interest	  	 	31	  	
Section 4.10.	  	Additional Interest Notice	  	 	32	  	
Section 4.11.	  	Further Instruments and Acts	  	 	33	  	
Section 4.12.	  	Payment of Additional Amounts	  	 	33	  	
Section 4.13.	  	Spanish Version, Notarization and Registration	  	 	35	  	
 
i

TABLE OF CONTENTS
(continued)

 	  	 	  	Page	 	
Section 4.14.	  	Registration with the Pubic Registry of Commerce	  	 	35	  	
Section 4.15.	  	Compliance with Mexican Law Provisions	  	 	35	  	
 	 	 	
ARTICLE V	  	SUCCESSORS	  	 	35	  	
 	 	 	
Section 5.01.	  	Merger, Consolidation and Sale of Assets	  	 	35	  	
Section 5.02.	  	Purchase Option on Fundamental Change	  	 	37	  	
 	 	 	
ARTICLE VI	  	DEFAULTS AND REMEDIES	  	 	37	  	
 	 	 	
Section 6.01.	  	Events of Default	  	 	37	  	
Section 6.02.	  	Acceleration	  	 	38	  	
Section 6.03.	  	Other Remedies	  	 	39	  	
Section 6.04.	  	Waiver of Past Defaults; Rescission of Acceleration	  	 	40	  	
Section 6.05.	  	Control by Majority	  	 	40	  	
Section 6.06.	  	Limitation on Suits	  	 	40	  	
Section 6.07.	  	Rights of Holders to Receive Payment	  	 	41	  	
Section 6.08.	  	Collection Suit by Trustee	  	 	41	  	
Section 6.09.	  	Trustee May File Proofs of Claim	  	 	41	  	
Section 6.10.	  	Priorities	  	 	41	  	
Section 6.11.	  	Undertaking for Costs	  	 	42	  	
 	 	 	
ARTICLE VII	  	THE TRUSTEE	  	 	42	  	
 	 	 	
Section 7.01.	  	Duties of the Trustee	  	 	42	  	
Section 7.02.	  	Rights of the Trustee	  	 	44	  	
Section 7.03.	  	Individual Rights of the Trustee	  	 	46	  	
Section 7.04.	  	Trustee’s Disclaimer	  	 	46	  	
Section 7.05.	  	Notice of Defaults	  	 	46	  	
Section 7.06.	  	Representation of the Mexican Trustee	  	 	46	  	
Section 7.07.	  	Compensation and Indemnity	  	 	46	  	
Section 7.08.	  	Replacement of the Trustee	  	 	47	  	
Section 7.09.	  	Successor Trustee by Merger, etc	  	 	48	  	
Section 7.10.	  	Eligibility, Disqualification	  	 	48	  	
 	 	 	
ARTICLE VIII	  	SATISFACTION AND DISCHARGE OF INDENTURE	  	 	49	  	
 	 	 	
Section 8.01.	  	Discharge of Indenture	  	 	49	  	
Section 8.02.	  	Deposited Monies to be Held in Trust by Trustee	  	 	49	  	
Section 8.03.	  	Paying Agent to Repay Monies Held	  	 	49	  	
Section 8.04.	  	Return of Unclaimed Monies	  	 	50	  	
Section 8.05.	  	Reinstatement	  	 	50	  	
 	 	 	
ARTICLE IX	  	AMENDMENTS	  	 	50	  	
 	 	 	
Section 9.01.	  	Without the Consent of Holders	  	 	50	  	
Section 9.02.	  	With the Consent of Holders	  	 	51	  	
Section 9.03.	  	[Reserved]	  	 	52	  	
Section 9.04.	  	Revocation and Effect of Consents	  	 	52	  	
 
ii

TABLE OF CONTENTS
(continued)

 	  	 	  	Page	 	
Section 9.05.	  	Notation on or Exchange of Notes	  	 	53	  	
Section 9.06.	  	Trustee Protected	  	 	53	  	
 	 	 	
ARTICLE X	  	GENERAL PROVISIONS	  	 	53	  	
 	 	 	
Section 10.01.	  	Issuer’s Representations	  	 	53	  	
Section 10.02.	  	Notices	  	 	54	  	
Section 10.03.	  	Certificate and Opinion as to Conditions Precedent	  	 	55	  	
Section 10.04.	  	Statements Required in Certificate or Opinion	  	 	55	  	
Section 10.05.	  	Rules by Trustee and Agents	  	 	56	  	
Section 10.06.	  	Business Days	  	 	56	  	
Section 10.07.	  	No Recourse Against Others	  	 	56	  	
Section 10.08.	  	Counterparts	  	 	56	  	
Section 10.09.	  	Other Provisions	  	 	57	  	
Section 10.10.	  	Governing Law	  	 	57	  	
Section 10.11.	  	No Adverse Interpretation of Other Agreements	  	 	59	  	
Section 10.12.	  	Successors	  	 	59	  	
Section 10.13.	  	Severability	  	 	59	  	
Section 10.14.	  	Table of Contents, Headings, etc	  	 	59	  	
Section 10.15.	  	Currency Indemnity	  	 	59	  	
Section 10.16.	  	Adjustments for Currency Exchange Rates	  	 	60	  	
Section 10.17.	  	Change in ADSs or CPOs	  	 	60	  	
Section 10.18.	  	USA PATRIOT ACT.	  	 	60	  	
 	 	 	
ARTICLE XI	  	SUBORDINATION	  	 	61	  	
 	 	 	
Section 11.01.	  	Notes Subordinated to Senior Indebtedness and Equal in Right of Payment to Unsecured Subordinated Indebtedness	  	 	61	  	
Section 11.02.	  	Notes Subordinated to Prior Payment of All Senior Indebtedness On Dissolution, Liquidation, Reorganization, etc., of the Issuer	  	 	61	  	
Section 11.03.	  	Holders to be Subrogated to Right of Holders of Senior Indebtedness	  	 	63	  	
Section 11.04.	  	Obligations of the Issuer Unconditional	  	 	63	  	
Section 11.05.	  	Issuer Not to Make Payment with Respect to Notes in Certain Circumstances	  	 	63	  	
Section 11.06.	  	Notice to Trustee	  	 	64	  	
Section 11.07.	  	Application by Trustee of Monies Deposited with It	  	 	65	  	
Section 11.08.	  	Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of Senior Indebtedness	  	 	65	  	
Section 11.09.	  	Trustee to Effectuate Subordination	  	 	66	  	
Section 11.10.	  	Right of Trustee to Hold Senior Indebtedness	  	 	66	  	
Section 11.11.	  	Article XI Not to Prevent Events of Default	  	 	66	  	
Section 11.12.	  	No Fiduciary Duty Created to Holders of Senior Indebtedness	  	 	66	  	
Section 11.13.	  	Article Applicable to Paying Agents	  	 	66	  	
 
iii

TABLE OF CONTENTS
(continued)

 	  	 	  	Page	 	
Section 11.14.	  	Certain Conversion Deemed Payment	  	 	66	  	
Section 11.15.	  	Contractual Subordination	  	 	67	  	
Section 11.16.	  	Acceleration of Notes	  	 	67	  	
 	 	 	
ARTICLE XII	  	CONVERSION	  	 	67	  	
 	 	 	
Section 12.01.	  	Right to Convert	  	 	67	  	
Section 12.02.	  	Exercise of Conversion Privilege; Issuance of ADSs on Conversion; No Adjustment for Interest or Dividends	  	 	67	  	
Section 12.03.	  	No Issuance of Fractional Shares	  	 	70	  	
Section 12.04.	  	Conversion Rate	  	 	70	  	
Section 12.05.	  	Conversion Rate Adjustments	  	 	70	  	
Section 12.06.	  	Effect of Reclassification, Consolidation, Merger, Combination, Sale, Lease or Transfer	  	 	78	  	
Section 12.07.	  	Taxes, Duties, Fees and Costs of Issuance of ADSs or CPOs	  	 	79	  	
Section 12.08.	  	Obligation to Cause Sufficient Ordinary Shares, CPOs and ADSs to be Issued for Purposes of Satisfying any Settlement of Conversions	  	 	79	  	
Section 12.09.	  	Responsibility of Trustee and the Conversion Agent	  	 	80	  	
Section 12.10.	  	[Reserved]	  	 	81	  	
Section 12.11.	  	Restriction on ADSs Issuable Upon Conversion	  	 	81	  	
Section 12.12.	  	Make Whole Premium Upon a Fundamental Change	  	 	82	  	
 	 	 	
EXHIBIT A:	  	FORM OF NOTE	  	 	A-1	  	
 	 	 	
EXHIBIT B:	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	  	 	B-1	  	
 	 	 	
EXHIBIT C:	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	  	 	C-1	  	
 	 	 	
EXHIBIT D:	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	  	 	D-1	  	
 	 	 	
EXHIBIT E:	  	FORM OF RESTRICTED ADS LEGEND	  	 	E-1	  	
 	 	 	
EXHIBIT F:	  	FORM OF TRANSFER CERTIFICATE FOR TRANSFER OF RESTRICTED ADSs	  	 	F-1	  	
 	 	 	
EXHIBIT G:	  	FINANCIAL STATEMENTS	  	 	G-1	  	
 	 	 	
EXHIBIT H:	  	SUMMARY OF TERMS OF THE OFFERING	  	 	H-1	  	
 
iv

THIS INDENTURE, dated as of March 15, 2011, is between CEMEX, S.A.B. de C.V. a publicly traded variable capital corporation ( sociedad anónima bursátil de capital variable ) organized under the laws of Mexico (the “ Issuer ”), The Bank of New York Mellon, as trustee (the “ Trustee ”) and, solely for compliance with certain Mexican law requirements set forth in Section 7.01(b) and Section 7.06, The Bank of New York Mellon, S.A., Institución de Banca Múltiple (the “ Mexican Trustee ”). The Issuer has duly authorized the creation of its 3.75% Convertible Subordinated Notes due 2018 (the “ Notes ”) and to provide therefor the Issuer, the Trustee and the Mexican Trustee have duly authorized the execution and delivery of this Indenture. Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders from time to time of the Notes:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
“Additional Interest” means any interest payable pursuant to Section 4.09 or Section 6.02(b).
“ADR” means American Depositary Receipts representing ADS.
“ADS” means American Depositary Shares of the Issuer created pursuant to the Second Amended and Restated Deposit Agreement (A and B share CPOs), dated August 10, 1999, among CEMEX, S.A.B. de C.V., Citibank, N.A. and holders and beneficial owners of American Depositary Shares, as the same may be amended, modified or replaced.
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling”, “controlled by” and “under common control with” have correlative meanings.
“Agent” means any Registrar, Paying Agent, Conversion Agent or co-registrar.
“Agent Member” means any member of, or participant in, the Depositary.
“Applicable Procedures” means, with respect to any transfer or transaction involving a Global Security or beneficial interest therein, or to the delegending of Global Securities or ADSs, the rules and procedures of the Depositary for such Global Security to the extent applicable to such transaction and as in effect from time to time.
“Available Treasury Shares” means, as of any time of determination, Ordinary Shares of the Issuer available in treasury, and for which the Issuer has obtained any regulatory or other approval (including satisfaction or waiver of preemptive rights), taken such corporate action and made such contractual arrangements necessary such that, at the time at which Notes could be

converted, the Issuer will be able to deliver such Ordinary Shares to timely satisfy its conversion obligations relating to the Notes, including by causing such Ordinary Shares to underlie any necessary CPOs,  provided  that Available Treasury Shares shall not include the number of Ordinary Shares available in treasury needed to satisfy any and all of the Issuer’s contingent or non-contingent obligations to deliver Ordinary Shares (other than in connection with a conversion of the Notes), including, without limitation, in connection with any employee compensation arrangements and the settlement of conversions of securities convertible into Ordinary Shares (including, without limitation, the mandatory convertible securities of the Issuer issued on December 10, 2009, the 4.875% Convertible Subordinated Notes due 2015 issued on March 30, 2010 and the 3.25% Convertible Subordinated Notes due 2016 issued on March 15, 2011). When “ Available Treasury Shares ” is referred to in comparison to the number of ADSs necessary to satisfy conversion obligations at a certain point in time, in order to facilitate such comparison, “ Available Treasury Shares ” shall be expressed as the number of ADSs that would represent the number of Available Treasury Shares held by the Issuer at such time (through the CPOs that are necessary to evidence such Ordinary Shares).
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree, order for relief or declaration in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law, or (ii) a decree or order (A) adjudging or declaring any Bankruptcy Party a bankrupt or insolvent, (B) approving as properly filed a petition seeking reorganization, arrangement, adjustment,  concurso mercantil ,  quiebra  or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up, liquidation, dissolution or quiebra  of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law (including  concurso mercantil  or  quiebra ) or of any other case or proceeding to be adjudicated of declared a bankrupt or insolvent, (ii) the consent by any Bankruptcy Party to the entry of a decree, declaration or order for relief in respect of such Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy, insolvency case, liquidation or dissolution action or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or management or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
 
2

“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors and the Mexican  Ley de Concursos Mercantiles , as amended.
“Bankruptcy Party” means the Issuer and any Significant Subsidiary of the Issuer or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Issuer.
“Beneficial Owner” will be determined in accordance with Rule 13d-3 under the Exchange Act as in effect on the date of the Indenture, and “Beneficially Own”, “Beneficially Owned” and “Beneficial Ownership” have meanings correlative to that of Beneficial Owner.
“Board of Directors” means, as to any Person, the board of directors, any duly authorized management committee or similar governing body of such Person, or any duly authorized committee thereof, having the requisite authority.
“Capital Stock” of any Person means any and all ordinary shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, but excluding any debt securities convertible into, or exchangeable for, such equity.
“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Certificados Bursátiles” means Mexican law governed debt securities issued by the Issuer and guaranteed ( por aval ) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned Subsidiaries of the Issuer, and placed in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores, S.A.B. de C.V.) .
“Change of Control” means acquisition of the Beneficial Ownership of twenty percent (20%) or more in voting power of the Issuer’s outstanding Voting Stock by any Person,  provided  that the acquisition of Beneficial Ownership of the Issuer’s Capital Stock by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a “ Change of Control .”
“Commission” means the United States Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Conversion Rate” means the initial conversion rate specified in the Form of Note attached hereto as Exhibit A  in paragraph 15 of such form, as adjusted in accordance with the provisions of Article XII.
 
3

“Corporate Trust Office” means the designated office of the Trustee at which, at any particular time, its duties under this Indenture shall be administered, which office at the date of original execution of this Indenture is located at 101 Barclay Street, 4E, New York, NY 10286, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Issuer).
“CPO” means an ordinary participation certificate (certificado de participación ordinario) having Ordinary Shares as underlying securities.
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, assignee, conciliador, síndico, liquidator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Depositary” means, with respect to any Global Securities, a clearing agency that is registered as such under the Exchange Act and is designated by the Issuer to act as Depositary for such Global Securities (or any successor securities clearing agency so registered), which shall initially be DTC.
“Designated Senior Indebtedness” means (i) the Issuer’s obligations under the Financing Agreement and in respect of the indebtedness subject thereto and (ii) any other Senior Indebtedness which, on the date of a payment default or the delivery of a Payment Blockage Notice, has an aggregate amount outstanding of, or under which, on such date, the holders thereof are committed to lend up to, at least U.S.$50 million.
“Distribution Compliance Period” means, in respect of any Regulation S Global Security (or certificated Note issued in respect thereof pursuant to  Section 2.11(b)(i) , the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, a New York corporation.
“Dual Currency Notes” means the (i) EUR 730,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes, (ii) U.S.$350,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes, (iii) U.S.$750,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes and (iv) U.S.$900,000,000 original aggregate principal amount of Callable Perpetual Dual-Currency Notes, in each case, issued by New Sunward Holding Financial Ventures B.V., a wholly owned Subsidiary of the Issuer.
 
4

“Ex-Dividend Date” means the first date on which ADSs trade on the applicable exchange or in the applicable market, in a regular way, without the right attached to Ordinary Shares to receive the issuance or distribution in question.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statues thereto together with, in either case, the rules and regulations promulgated thereunder.
“Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain Subsidiaries of the Issuer, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“Fundamental Change” means:
 
 	(1)	a Change of Control;	
 
 	(2)	the Beneficial Ownership of fifty percent (50%) or more in voting power of the Issuer’s outstanding Voting Stock is acquired by any Person;	
 
 	(3)	the consummation of any binding share exchange, exchange offer, tender offer, consolidation or merger of the Issuer pursuant to which all or substantially all of the Issuer’s shares of Capital Stock will be converted into cash, securities or other property or any sale, lease or other transfer in one transaction or a series of related transactions of all or substantially all of the consolidated assets of the Issuer and its Subsidiaries, taken as a whole, to any Person other than one or more of the Issuer’s Subsidiaries (any such exchange, offer, consolidation, merger, transaction or series of transactions being referred to in this clause (3) as an “Event”); provided, however, that any such Event where the holders of more than 50% of the Issuer’s Capital Stock immediately prior to such Event, own, directly or indirectly, more than 50% of all classes of Capital Stock of the continuing or surviving Person or transferee or the parent thereof immediately after such Event shall not be a “Fundamental Change”;	
 
 	(4)	during any consecutive two-year period, individuals who at the beginning of that two-year period constituted the Board of Directors of the Issuer, together with any new directors whose election to the Board of Directors of the Issuer, or whose nomination for election by the Issuer’s stockholders, was approved by a vote of a majority of the Issuer’s stockholders, cease for any reason to constitute a majority of the Board of Directors of the Issuer then in office;	
 
 	(5)	the Issuer’s stockholders approve any plan or proposal for the Issuer’s liquidation or dissolution (other than any liquidation or dissolution that is part of a merger event and excluded from the definition of “Fundamental Change” by reason of the proviso in clause (3) above); or	
 
 	(6)	the ADSs cease to be listed for trading on a U.S. national securities exchange.	
 
5

If any transaction in which Ordinary Shares, CPOs or ADSs are replaced by the securities of another entity occurs, following the effective date of such transaction, references to the Issuer in this definition of “Fundamental Change” (and, for the avoidance of doubt, the Issuer’s Ordinary Shares, CPOs and ADSs) will apply to such other entity (and securities issued by it) instead.
“GAAP” means Mexican Financial Reporting Standards (normas de informacíon financiera) issued by the  Consejo Mexicano para la Investigación y Desarrollo de Normas de Informacíon Financiera, A.C.,  as in effect on December 31, 2010. At any time after the Issue Date, the Issuer may elect to apply IFRS in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election; provided that any such election, once made, shall be irrevocable. The Issuer shall give notice of any such election to the Trustee.
“Global Security” means Notes represented by a certificate in definitive, fully registered form of securities without interest coupons in global form that is deposited with the Depositary or its custodian and registered in the name of the Depositary or its nominee.
“Global Securities Legend” means the legend labeled as such and that is set forth in Exhibit A hereto, which is incorporated in and expressly made part of this Indenture.
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Register.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Indebtedness” means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent (including obligations  por aval ), in respect of: (i) borrowed money; (ii) bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (iii) banker’s acceptances; (iv) Capitalized Lease Obligations; (v) the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (vi) Hedging Obligations, if and to the extent any of such indebtedness (other than letters of credit and Hedging Obligations) would appear as a liability on a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term “ Indebtedness ” includes all indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such indebtedness is assumed by the specified Person) measured as the lesser of the fair market value of the assets of such Person so secured or the amount of such indebtedness and, to the extent not otherwise included, the guarantee by such Person of any indebtedness of any other Person.
“Indenture” means this Indenture as amended or supplemented from time to time.
 
6

“Interest” means (except as otherwise specifically provided in this Indenture) any accrued and unpaid interest in respect of the Notes, including Additional Interest and Additional Amounts, if any.
“Interest Payment Date” means March 15 and September 15 of each year, commencing September 15, 2011.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Issue Date” means March 15, 2011.
“Issuer” means the party named as such in the Preamble until a successor replaces it in accordance with Article V and thereafter means the successor.
“Issuer Order” means a written order of the Issuer signed by an Officer of the Issuer.
“Last Reported Sale Price” of ADSs on any Trading Day means the closing sale price per ADS (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) of the ADSs on that Trading Day as reported in composite transactions for the principal U.S. national or regional securities exchange on which the ADSs are traded. If the ADSs are not listed for trading on a U.S. national or regional securities exchange on the relevant Trading Day, the “ Last Reported Sale Price ” will be the last quoted bid price per ADS in the over-the-counter market on the relevant Trading Day as reported by Pink OTC Markets, Inc. or a similar organization selected by the Issuer. If the ADSs are not so quoted, the “ Last Reported Sale Price ” will be the average of the mid-point of the last bid and ask prices per ADS on the relevant date from each of at least three nationally recognized independent investment banking firms the Issuer selects for this purpose. When used in relation to an Ordinary Share, “ Last Reported Sale Price ” means, with respect to any day, the per share price of an Ordinary Share obtained by dividing (i) the quotient of the Last Reported Sale Price of an ADS for that day, divided by the number of CPOs represented by an ADS at the time of determination by (ii) the number of Ordinary Shares underlying a CPO at the time of determination; provided  that if the Ordinary Shares no longer constitute securities underlying CPOs at the time of determination, references in this definition (other than in this proviso) to CPOs will be deemed to have been replaced by a reference to ADSs.
“LGTOC” means the Mexican General Law of Negotiable Instruments and Credit Transactions (Ley General de Títulos y Operaciones de Crédito ).
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security or similar trust, security interest or encumbrance of any kind in respect of such asset. The Issuer shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor).
 
7

“Market Disruption Event” means (i) a failure by the primary exchange or quotation system on which the ADSs trade or are quoted to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. New York City time, on any Trading Day, of an aggregate one half hour period of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in the ADSs or in any options, contracts or future contracts relating to ADSs.
“Maturity Date” means March 15, 2018.
“Offering Memorandum” means the final offering memorandum related to the Notes, dated March 9, 2011.
“Officer” means the President, the Chief Executive Officer, any Executive Vice President, any Senior Vice President, any Vice President, the Chief Financial Officer, the Treasurer, any member of the Board of Directors, any attorney-in-fact acting under a duly granted power-of-attorney providing authority or the Secretary of the Issuer.
“Officer’s Certificate” means a certificate signed by one Officer and delivered to the Trustee.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. Counsel may be an employee of or counsel to the Issuer.
“Ordinary Shares” means series A common stock or series B common stock of the Issuer, or any other shares of Capital Stock of the Issuer that are issued in exchange for, or otherwise replace, any of the foregoing, including any Reference Property. References to the Issuer in this definition shall also include any successor or purchasing corporation, or its direct or indirect parent entity, the common stock of which constitutes Reference Property, subject to compliance with  Section 12.06 .
“Perpetual Notes” means, collectively, the four series of perpetual debentures issued by special purpose vehicles and relating to the Dual Currency Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Pesos” or “Ps.” means the lawful currency of Mexico.
“Public Registry of Commerce” means the Public Registry of Property and Commerce (Registro Público de la Propiedad y del Comercio ) of Monterrey, Nuevo León, México.
“Record Date” means the March 1 and September 1 immediately preceding each Interest Payment Date.
 
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“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Security” has the meaning assigned to it in Section 2.01(a)(iv).
“Regulation S Note” has the meaning assigned to it in Section 2.01(a)(iv).
“Representative” means (a) the indenture trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with respect to any Senior Indebtedness that does not have any such trustee, agent or other representative, (i) in the case of such Senior Indebtedness issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting with the consent of the required Persons necessary to bind such holders or owners of such Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness, the holder or owner of such Senior Indebtedness.
“Resale Restriction Delegending Date” means (a) for any Restricted Note that is not a Regulation S Global Security, the date that is one year from the Issue Date of the Notes or (b) for a Regulation S Global Security, the date on which the Distribution Compliance Period therefor terminates.
“Restricted ADS Legend” means the legend substantially in the form as set forth in Exhibit E hereto, which is incorporated in and expressly made a part of this Indenture.
“Restricted Note” means any Note until such time as (i) such Note has been transferred pursuant to an effective shelf registration statement or (ii) the Restricted Securities Legend therefor has been removed pursuant to Section 2.07(c)  or  (d) .
“Restricted Securities Legend” means the applicable legend labeled as such for either a Rule 144A Note or a Regulation S Note and that is set forth in Exhibit A hereto, which is incorporated in and expressly made a part of this Indenture.
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Security” has the meaning assigned to it in Section 2.01(a)(iii).
“Rule 144A Note” has the meaning assigned to it in Section 2.01(a)(iii).
“Securities Act” means the Securities Act of 1933, as amended, or any successor statute or statues thereto together with, in either case, the rules and regulations promulgated thereunder.
“Senior Indebtedness” means (a) the Issuer’s guarantee of the 9.5% Senior Secured Notes due 2016 issued by CEMEX Finance LLC, (b) the Issuer’s guarantee of the 9.625% Senior Secured Notes due 2017 issued by CEMEX Finance LLC, (c) the Issuer’s obligations under the Financing Agreement and in respect of the indebtedness subject thereto, (d) the Issuer’s guarantee of the Dual Currency Notes in respect of the Perpetual Notes, (e) the Issuer’s guarantee of the 9.25% Dollar-denominated Notes due 2020 issued by CEMEX España, acting
 
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through its Luxembourg branch, (f) the Issuer’s guarantee of the 8.875% Euro-denominated Notes due May 2020 issued by CEMEX España, acting through its Luxembourg branch, (g) the Issuer’s 9.000% Senior Secured Notes due 2018, (h) the Issuer’s obligations in respect of the  Certificados Bursátiles , (i) obligations of the Issuer given preference in respect of the Notes by statute and (j) all other Indebtedness of the Issuer except for:
 
 	(1)	Indebtedness that states, or is issued under a deed, indenture or other instrument that states, that it is subordinated to or ranks equally with the Notes; and	
 
 	(2)	Indebtedness between or among the Issuer and any of its Subsidiaries.	
“Significant Subsidiary” means any Subsidiary of the Issuer that at the date of determination is a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act and the Exchange Act.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the Board of Directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (x) such Person, (y) such Person and one or more of its other Subsidiaries or (z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “ Subsidiary ” shall refer to a Subsidiary of the Issuer.
“Trading Day” means, with respect to ADSs, a day during which trading in the Issuer’s ADSs generally occurs on the primary exchange or quotation system on which the Issuer’s ADSs then trade or are quoted and there is no Market Disruption Event.
“Transportation Agreement” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trustee” means the party named as such in the Preamble and any successor that replaces it in accordance with the applicable provisions of this Indenture, including any attorney-in-fact for the Trustee pursuant to a valid power of attorney issued by the Trustee to such attorney-in-fact.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee having direct responsibility for the administration of this Indenture, or to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“U.S.” means the United States of America.
 
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“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged. In order to have money available on a payment date to pay principal or Interest on the Notes, the U.S. Government Obligations shall be payable as to principal or Interest on or before such payment date in such amounts as will provide the necessary money. U.S. Government Obligations shall not be callable at the Issuer’s option.
“U.S. Legal Tender” or “U.S.$” means such coin or currency of the United States of America, as at the time of payment shall be legal tender for the payment of public and private debts.
“Voting Stock” with respect to any Person, means securities of any class of capital stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors of such Person.
SECTION 1.02. Other Definitions.

 	  	Defined in Section	
“Additional ADSs”	  	Section 12.12(a)	
“Additional Amounts”	  	Section 4.12(b)	
“ADS Price”	  	Section 12.12(a)	
“Authorized Agent”	  	Section 10.10(c)	
“Banamex”	  	Section 12.02	
“Business Day”	  	Section 10.06	
“Change of Control Purchase Date”	  	Section 12.12(b)	
“Change of Control Offer”	  	Section 3.03(a)	
“Change of Control Payment”	  	Section 3.03(a)	
“Conversion Agent”	  	Section 2.03	
“Conversion Date”	  	Section 12.02	
“Definitive Security”	  	Section 2.07(b)(i)	
“Dividend Record Date”	  	Section 12.05(a)(i)	
“Effective Date”	  	Section 12.12(a)	
“Event of Default”	  	Section 6.01	
“Expiration Date”	  	Section 12.05(a)(v)	
“Expiration Time”	  	Section 12.05(a)(v)	
“Financial Statements”	  	Section 10.01(b)	
“Fundamental Change Notice”	  	Section 12.12(b)	
“Junior Securities”	  	Section 11.14	
“Make Whole Fundamental Change Premium”	  	Section 12.12(a)	
“Mexican Trustee”	  	Preamble	
“Net Total Assets”	  	Section 10.01(c)	
“Notes”	  	Preamble	
“Paying Agent”	  	Section 2.03	
“Payment Blockage Notice”	  	Section 11.05(b)	
“Payment Blockage Period”	  	Section 11.05(b)	
 
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“Payment Default”	  	Section 11.05(a)	
“Payment of the Notes”	  	Section 11.05(a)	
“Permitted Merger Jurisdictions”	  	Section 5.01(a)(ii)(A)	
“Reference Property”	  	Section 12.06	
“Register”	  	Section 2.03	
“Registrar”	  	Section 2.03	
“Rights Distribution Record Date”	  	Section 12.05(a)(ii)	
“Settlement”	  	Section 12.02	
“Spin-Off”	  	Section 12.05(a)(iii)	
“Successor Issuer”	  	Section 5.01(a)(ii)	
“Tax Redemption”	  	Section 3.01(a)	
“Tax Redemption Date”	  	Section 3.01(e)	
“Tax Redemption Notice”	  	Section 3.01(e)	
“Tax Redemption Price”	  	Section 3.01(a)	
“Taxes”	  	Section 4.12(a)	
“Taxing Jurisdiction”	  	Section 3.01(a)	
“USA Patriot Act”	  	Section 10.18	
“Valuation Period”	  	Section 12.05(a)(iii)	
SECTION 1.03. [Reserved].
SECTION 1.04. Rules of Construction. Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(iii) “or” is not exclusive;
(iv) words in the singular include the plural, and in the plural include the singular;
(v) the male, female and neuter genders include one another;
(vi) the word “including” wherever used will be deemed to be followed by the word “without limitation”;
(vii) references to agreements and other instruments include subsequent amendments thereto; and
(viii) the words “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
The terms and provisions contained in the Notes shall constitute, and are hereby expressly made, a part of this Indenture and the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. However, to the extent any provision of any Note conflicts with the express provisions of this Indenture, the provisions of this Indenture shall govern and be controlling.
 
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ARTICLE II
THE NOTES
SECTION 2.01. Form and Dating
(a) Form and Dating.
(i) The Notes shall be issued in the form of one or more definitive, fully registered form of securities without interest coupons, with their English and Spanish text side-by-side,  provided ,  however , that in case of any inconsistency or question as to the proper interpretation or construction of the Notes between the text in English and the text in Spanish, the English text shall control in all cases. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A hereto. The terms and provisions of the Notes shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby.
(ii) Except as otherwise expressly permitted in this Indenture, all Notes shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class.
(iii) Notes originally offered and sold to qualified institutional buyers in reliance on Rule 144A under the Securities Act (each a “ Rule 144A Note ”) will be issued in the form of one or more permanent Global Securities (each, a “ Rule 144A Global Security ”).
(iv) Notes originally offered and sold to persons other than “U.S. persons” (as defined in Regulation S) in offshore transactions in reliance on Regulation S under the Securities Act (each a “ Regulation S Note ”) will be issued in the form of one or more permanent Global Securities (each, a “ Regulation S Global Security ”).
(v) Each Global Security described in clause (iii) or (iv) shall be issued with the Restricted Securities Legend and the Global Securities Legend.
(vi) Any Global Security shall be deposited on behalf of the purchasers of the Notes represented thereby with the Trustee, as custodian for the Depositary, and registered in the name of the Depositary or a nominee of the Depositary for the accounts of participants in the Depositary, duly executed by the Issuer and the Mexican Trustee and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of any Global Security may from time to time be increased or decreased by adjustments made on the records of the Trustee and the Depositary or its nominee as hereinafter provided. Any Global Security may be represented by more than one certificate.
 
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(vii) The Notes may have notations, legends or endorsements as specified in this Indenture or as otherwise required by law, stock exchange rule or Depositary rule or usage. The Issuer shall approve the form of the Notes and any notation, legend or endorsement on them.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only to a Global Security deposited with or on behalf of the Depositary.
The Issuer and the Mexican Trustee shall execute and the Trustee shall, in accordance with this Section 2.01(b) and upon Issuer Order, authenticate and deliver initially one or more Global Securities that (i) shall be registered in the name of the Depositary or a nominee of the Depositary (which, in the case of DTC, shall initially be Cede & Co.), (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or held by the Trustee as custodian for the Depositary pursuant to (in the case of DTC) a FAST Balance Certificate Agreement between the Depositary and the Trustee, and (iii) shall bear appropriate legends as set forth herein.
Except as provided in Section 2.11(b)(iv), Agent Members shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary or by the Trustee as the custodian of the Depositary or under such Global Security, and the Depositary may be treated by the Issuer, the Trustee and any agent of the Issuer or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee or any agent of the Issuer or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a beneficial interest in any Global Security.
(c) Definitive Securities. Except as provided in Section 2.07 and Section 2.11, owners of beneficial interests in Global Securities will not be entitled to receive physical delivery of certificated Notes in definitive form.
SECTION 2.02. Execution and Authentication. Two Officers (who shall be members of the Board of Directors) shall sign the Notes for the Issuer by manual or facsimile signature.
(a) If an Officer whose signature is on a Note no longer holds that office at the time the Note is authenticated, the Note shall nevertheless be valid.
(b) A Note shall not be valid until authenticated by the manual signature of the Trustee. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
(c) The Trustee shall authenticate and make available for delivery Notes for original issue in the aggregate principal amount of up to U.S.$690,000,000 upon receipt of an Issuer Order, which shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated.
 
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(d) The Notes shall be issuable only in registered form without coupons and only in denominations of U.S.$100,000 and multiples of U.S.$1,000 in excess thereof.
(e) The Trustee may appoint an authenticating agent acceptable to the Issuer to authenticate Notes. An authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same right as an Agent to deal with the Issuer or an Affiliate of the Issuer.
(f) If any successor that has replaced the Issuer in accordance with Article V has executed an indenture supplemental hereto with the Trustee pursuant to Article V, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of such successor, be exchanged for other Notes executed in the name of such successor with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of such successor, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of such successor pursuant to this  Section 2.02(f)  in exchange or substitution for or upon registration of transfer of any Notes, such successor, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes then outstanding for Notes authenticated and delivered in such new name.
(g) The Notes shall also be signed by a duly authorized attorney-in-fact of the Mexican Trustee by manual or facsimile signature.
SECTION 2.03. The Trustee Registrar, Paying Agent and Conversion Agent. The Issuer shall maintain or cause to be maintained in such locations as it shall determine, which may be the Corporate Trust Office, an office or agency: (i) where securities may be presented for registration of transfer or for exchange (“ Registrar ”); (ii) where Notes may be presented for payment (“ Paying Agent ”); (iii) an office or agency where Notes may be presented for conversion (the “ Conversion Agent ”); and (iv) where notices and demands to or upon the Issuer in respect of Notes and this Indenture may be served by the Holders. The Registrar shall keep a Register (“ Register ”) of the Notes and of their transfer and exchange. The Issuer may appoint one or more co-registrars, one or more additional paying agents and one or more additional conversion agents. The term “Paying Agent” includes any additional paying agent and the term “Conversion Agent” includes any additional conversion agent. The Issuer may change any Paying Agent, Registrar, Conversion Agent or co-registrar without prior notice. The Issuer shall notify the Trustee of the name and address of any Agent not a party to this Indenture and shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this Indenture. Such agency agreement shall implement the provisions of this Indenture that relate to such Agent. The Issuer or any of its Subsidiaries may act as Paying Agent, Registrar, Conversion Agent or co-registrar, except that for purposes of Article VIII and  Section 3.03 , neither the Issuer nor any of its Subsidiaries shall act as Paying Agent. If the Issuer fails to appoint or maintain another entity as Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such, and the Trustee shall initially act as such. The Issuer designates the Borough of Manhattan, New York City, office or agency of the Trustee as one such office or agency of the Issuer required by this  Section 2.03 , until such time as another
 
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office or agency located in the Borough of Manhattan is designated as such, and appoints the Trustee as Registrar, Paying Agent, Conversion Agent and agent for service of demands and notices in connection with the Notes and this Indenture until such time as another Person is appointed as such.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Issuer shall require each Paying Agent (other than the Trustee, who hereby so agrees) to agree in writing that the Paying Agent will hold in trust for the benefit of the Holders or the Trustee all money held by the Paying Agent for the payment of principal or Interest on the Notes, and will notify the Trustee of any default by the Issuer in respect of making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a Subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of the Holders of all money held by it as Paying Agent. Upon any proceeding under any Bankruptcy Law with respect to the Issuer or any of its Affiliates, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. If the Trustee is not the Registrar, the Issuer shall furnish to the Trustee at least seven Business Days before each Interest Payment Date, and as the Trustee may request in writing within fifteen (15) days after receipt by the Issuer of any such request (or such lesser time as the Trustee may reasonably request in order to enable it to timely provide any notice to be provided by it hereunder), a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders.
SECTION 2.06. Legends; Transfer Restrictions. (a) Each Global Security shall bear the Global Securities Legend.
(b) Each Restricted Note shall bear the applicable Restricted Securities Legend. Each Note that bears or is required to bear a Restricted Securities Legend shall be subject to the restrictions on transfer set forth therein, and each Holder of such Note, by such Holder’s acceptance thereof, agrees to be bound by all such restrictions on transfer.
(c) As used in this Section 2.06 and in Section 2.07, the term “transfer” includes any sale, pledge, transfer or other disposition whatsoever of any Restricted Note. The Registrar shall not register any transfer of a Restricted Note not made in accordance with the restrictions on transfer set forth in this  Section 2.06  and in  Section 2.07 .
(d) Every ADR certificate representing an ADS issued in the circumstances described in Section 12.11 hereof shall bear the applicable Restricted ADS Legend unless removed in accordance with the provisions of  Section 12.11 .
SECTION 2.07. Transfer and Exchange. (a) When Notes are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal
 
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principal amount of Notes for other denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions specified herein and the related certificate are met. To permit registrations of transfers and exchanges, the Issuer shall issue and the Trustee shall authenticate Notes at the Registrar’s request, bearing certificate numbers not contemporaneously outstanding. No service charge shall be imposed on a Holder for any registration of transfer or exchange of Notes (except as otherwise expressly permitted herein), but the Issuer and the Registrar may require payment of a sum sufficient to cover any transfer Tax or other governmental charge payable upon exchanges pursuant to  Section 2.11 , Section 9.05  or  Section 12.02 .
The Issuer or the Registrar shall not be required to register the transfer of any Notes surrendered for repurchase pursuant to Section 3.03 .
All Notes issued upon any transfer or exchange of Notes in accordance with this Indenture shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture as the Notes surrendered upon such registration of transfer or exchange.
(b) Notwithstanding any provision to the contrary herein, so long as a Global Security remains outstanding and is held by or on behalf of the Depositary, transfers of a Global Security, in whole or in part, or of any beneficial interest therein, shall only be made in accordance with this  Section 2.07 ,  Section 2.11  and the Applicable Procedures.
Except for transfers or exchanges made in accordance with paragraphs (i) through (iii) of this Section 2.07(b) and Section 2.11 , transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to nominees of the Depositary or to a successor of the Depositary or such successor’s nominee.
(i) Global Security to Definitive Security. If an owner of a beneficial interest in a Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary wishes at any time to transfer its interest in such Global Security to a Person who is required to take delivery thereof in the form of a definitive registered note (such Note, a “ Definitive Security ”), such owner may, subject to the restrictions on transfer set forth herein and such Global Security and the Applicable Procedures, cause the exchange of such interest for one or more Definitive Securities of any authorized denomination or denominations and of the same aggregate principal amount. Upon receipt by the Registrar of (1) instructions from the Depositary and/or its participants directing the Trustee to authenticate and deliver one or more Definitive Securities of the same aggregate principal amount as the beneficial interest in the Global Security to be exchanged (such instructions to contain the name or names of the designated transferee or transferees, the authorized denomination or denominations of the Definitive Securities to be so issued and appropriate delivery instructions), and (2) in the case of a Restricted Note, such certifications or other information and, except in the case of transfers pursuant to Rule 144 under the Securities Act, legal opinions as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar will instruct the Depositary to reduce or cause to be reduced such Global
 
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Security by the aggregate principal amount of the beneficial interest therein to be exchanged and to debit or cause to be debited from the account of the Person making such transfer the beneficial interest in the Global Security that is being transferred, and concurrently with such reduction and debit the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities of the same aggregate principal amount in accordance with the instructions referred to above.
(ii) Definitive Security to Definitive Security. If a Holder of a Definitive Security wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who is required to take delivery thereof in the form of a Definitive Security, such Holder may, subject to the restrictions on transfer set forth herein and in such Definitive Security, cause the transfer of such Definitive Security (or any portion thereof in a principal amount equal to an authorized denomination) to such transferee. Upon receipt by the Registrar of (1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder directing the Trustee to authenticate and deliver one or more Definitive Securities of the same aggregate principal amount as the Definitive Security, or portion thereof, to be transferred (such instructions to contain the name or names of the designated transferee or transferees, the authorized denomination or denominations of the Definitive Securities to be so issued and appropriate delivery instructions), and (3) in the case of a Restricted Note, such certifications or other information and, except in the case of transfers to Persons pursuant to Rule 144 under the Securities Act, legal opinions as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Registrar, shall cancel or cause to be canceled such Definitive Security and concurrently therewith, the Issuer shall execute, and the Trustee shall authenticate and deliver, one or more Definitive Securities in the appropriate aggregate principal amount, in accordance with the instructions referred to above and, if only a portion of a Definitive Security is transferred as aforesaid, concurrently therewith the Issuer shall execute and the Trustee shall authenticate and deliver to the transferor a Definitive Security in a principal amount equal to the principal amount which has not been transferred. A Holder of a Definitive Security may at any time exchange such Definitive Security for one or more Definitive Securities of other authorized denominations and in the same aggregate principal amount and registered in the same name by delivering such Definitive Security, duly endorsed as provided herein, to the Trustee together with instructions directing the Trustee to authenticate and deliver one or more Definitive Securities in the same aggregate principal amount and registered in the same name as the Definitive Security to be exchanged, and the Registrar thereupon shall cancel or caused to be canceled such Definitive Security and concurrently therewith the Issuer shall execute and Trustee shall authenticate and deliver, one or more Definitive Securities in the same aggregate principal amount and registered in the same name as the Definitive Security being exchanged.
(iii) Definitive Security to Global Security. If a Holder of a Definitive Security wishes at any time to transfer such Definitive Security (or portion thereof) to a Person who is not required to take delivery thereof in the form of a Definitive Security, such Holder shall, subject to the restrictions on transfer set forth herein and in such Definitive Security and the rules of the Depositary cause the exchange of such Definitive Security
 
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for a beneficial interest in the Global Security. Upon receipt by the Registrar of (1) such Definitive Security, duly endorsed as provided herein, (2) instructions from such Holder directing the Trustee to increase the aggregate principal amount of the Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary by the same aggregate principal amount as the Definitive Security to be exchanged, such instructions to contain the name or names of a member of, or participant in, the Depositary that is designated as the transferee, the account of such member or participant and other appropriate delivery instructions, (3) the assignment form on the back of the Definitive Security completed in full, and (4) in the case of a Restricted Note, such certifications or other information and legal opinions as the Issuer may reasonably require to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act, then the Trustee shall cancel or cause to be canceled such Definitive Security and concurrently therewith shall increase the aggregate principal amount of the Global Security by the same aggregate principal amount as the Definitive Security canceled.
All Definitive Securities shall be issued in minimum principal amounts of U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof.
(c) So long as and to the extent that the Notes are represented by one or more Rule 144A Global Securities or Regulation S Global Securities, as applicable, held by or on behalf of the Depositary only, the Issuer may accomplish any delegending of such Notes represented by such Rule 144A Global Securities or Regulation S Global Securities, as applicable, at any time on or after the applicable Resale Restriction Delegending Date, to the extent such Notes are freely tradable without restrictions under applicable securities laws, by:
(i) providing written notice to the Trustee that the applicable Resale Restriction Delegending Date has occurred and instructing the Trustee to remove the Restricted Securities Legend from the Rule 144A Global Securities or from Regulation S Global Securities, as applicable;
(ii) providing written notice to Holders of the Rule 144A Global Securities or Regulation S Global Securities, as applicable, that the Restricted Securities Legend has been removed or deemed removed;
(iii) providing written notice to the Trustee and the Depositary to change the CUSIP number for the Rule 144A Global Securities or Regulation S Global Securities, as applicable, to the applicable unrestricted CUSIP number; and
(iv) complying with any Applicable Procedures for delegending;
whereupon the Restricted Securities Legend shall be deemed removed from any Rule 144A Global Securities or Regulation S Global Securities, as applicable, without further action on the part of Holders.
(d) Transfers of Notes and Restricted Notes.
 
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(i) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Security) not bearing (or not required to bear upon such transfer, exchange or replacement) a Restricted Securities Legend, the Registrar shall exchange such Notes (or beneficial interests) for Notes (or beneficial interests in a Global Security) not bearing a Restricted Securities Legend.
(ii) Upon the transfer, exchange or replacement of Notes (or beneficial interests in a Global Security) bearing a Restricted Securities Legend at any time prior to the time the Issuer has provided notice of the occurrence of the Resale Restriction Delegending Date, the Registrar shall deliver only Notes (or beneficial interests in a Global Security) bearing a Restricted Securities Legend unless (i) such Notes (or beneficial interests) are transferred pursuant to an effective shelf registration statement; (ii) such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form contained in Exhibit B hereto and an Opinion of Counsel reasonably satisfactory to the Registrar; (iii) in the case of Rule 144A Notes, such Notes (or beneficial interests) are transferred to a non-U.S. person (as defined in Regulation S) pursuant to Regulation S upon delivery to the Registrar of a certificate of the transferor in the form contained in  Exhibit C  hereto and, in each case, an Opinion of Counsel reasonably satisfactory to the Registrar; (iv) in the case of Regulation S Notes, such Notes (or beneficial interests) are transferred pursuant to Rule 144A upon delivery to the Registrar of a certificate of the transferor in the form contained in  Exhibit D  hereto; (v) such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Delegending Date and are freely tradable without restriction under applicable securities laws; or (vi) in connection with such transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably required by and satisfactory to it to the effect that neither such Restricted Securities Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act. The Issuer shall deliver to the Trustee an Officer’s Certificate promptly upon effectiveness, withdrawal or suspension of any shelf registration statement that is or has previously been declared effective with respect to the Notes.
(e) Any transfer of Restricted Notes not described above (other than a transfer of a beneficial interest in a Global Security that does not involve an exchange of such interest for a Definitive Security or a beneficial interest in another Global Security, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act, or as otherwise set forth in this Indenture.
(f) Any Note or ADS issued upon the conversion or exchange of a Note that, prior to the date upon which the Issuer instructs the Trustee to remove the Restricted Securities Legend pursuant to  Section 2.07(c)  above, is purchased or owned by the Issuer or any Affiliate thereof, may not be resold by the Issuer, and the Issuer may not permit any such Affiliate to resell it, unless (x) bearing a CUSIP that is different from the CUSIP for the Notes or ADSs issued prior to such date and not acquired by the Issuer or any Affiliate thereof prior to such date or (y)
 
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registered under the Securities Act or resold pursuant to an exemption from the registration requirements of the Securities Act in a transaction that results in such Note or ADS, as the case may be, no longer being “restricted securities” (as defined under Rule 144). For the avoidance of doubt, this  Section 2.07(f)  shall not be applicable to resales to which Section 4.09(b)  applies.
(g) Neither the Trustee nor any Agent shall have any responsibility for any actions taken or not taken by the Depositary. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be the Depositary or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary subject to the Applicable Procedures. The Trustee may conclusively rely and shall be fully protected in relying upon information furnished by the Depositary with respect to its Agent Members and any beneficial owners.
(h) The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Notes (including any transfers between or among Agent Members or beneficial owners of interests in any Global Security) other than to require delivery of such certificates and other documentation as is expressly required by, and to do so if and when expressly required by, the terms of this Indenture and to examine the same to determine substantial compliance as to form with the express requirements hereof. The Trustee shall have no obligations or duties to the holders of any ADSs issued pursuant to Article XII hereof.
(i) The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Security, Agent Members or any other Persons with respect to the accuracy of the records of DTC or its nominee or of Agent Members, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Security). The rights of beneficial owners in any Global Security shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners.
SECTION 2.08. Replacement Notes. If the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue (after the execution by two Officers, who shall also be members of the Board of Directors), the Mexican Trustee shall sign and the Trustee shall authenticate a replacement Note if the Trustee’s requirements are met. If required by the Trustee, the Mexican Trustee or the Issuer as a condition of receiving a replacement Note, such Holder shall provide a certificate of loss and an indemnity and/or an indemnity bond sufficient, in the judgment of the Issuer, the Mexican Trustee and the Trustee, to fully protect the Issuer, the Mexican Trustee, the Trustee, any Agent and any authenticating agent from any loss, liability, cost or expense which any of them may suffer or incur if the Note is replaced. The Issuer, the Mexican Trustee and the Trustee may charge the relevant Holder for their expenses in replacing any Note.
 
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The Trustee or any authenticating agent may authenticate any such substituted Note, and deliver the same upon the receipt of such security or indemnity as the Trustee, the Mexican Trustee, the Issuer and, if applicable, such authenticating agent may require. Upon the issuance of any substituted Note, the Issuer and the Trustee may require the payment of a sum sufficient to cover any Tax or other governmental charge that may be imposed in relation thereto and any other expenses connected therewith. In case any Note which has matured or is about to mature, or has been submitted for repurchase pursuant to  Section 3.03  or is about to be converted into ADSs pursuant to Article XII, shall become mutilated or be destroyed, lost or stolen, the Issuer may, instead of issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion of the same (without surrender thereof except in the case of a mutilated Note), as the case may be, if the applicant for such payment or conversion shall furnish to the Issuer, to the Mexican Trustee, to the Trustee and, if applicable, to the authenticating agent such security or indemnity as may be required by them to save each of them harmless for any loss, liability, cost or expense caused by or connected with such action, and, in case of destruction, loss or theft, evidence satisfactory to the Issuer, the Mexican Trustee, the Trustee and, if applicable, any Paying Agent or Conversion Agent of the destruction, loss or theft of such Note and of the ownership thereof.
Every replacement Note is an additional obligation of the Issuer and shall be entitled to all the benefits provided under this Indenture equally and proportionately with all other Notes duly issued, authenticated and delivered hereunder.
SECTION 2.09. Outstanding Notes. The Notes outstanding at any time are all the Notes properly authenticated by the Trustee except for those canceled by the Trustee, those delivered to it for cancellation, and those described in this  Section 2.09  as not outstanding.
If a Note is replaced pursuant to Section 2.08, it shall cease to be outstanding unless the Trustee receives proof satisfactory to it that the replaced Note is held by a protected purchaser.
If Notes are considered paid under Section 4.01, converted under Article XII or redeemed or repurchased pursuant to Section 3.01  or  Section 3.03 , they shall cease to be outstanding and Interest on them shall cease to accrue, except as may be otherwise set forth herein.
Subject to Section 2.10 hereof, a Note does not cease to be outstanding because the Issuer or an Affiliate of the Issuer holds the Note.
SECTION 2.10. When Treasury Notes Disregarded. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or an Affiliate of the Issuer shall be considered as though they are not outstanding except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Trust Officer of the Trustee actually knows are so owned shall be so disregarded. Prior to any such determination, the Issuer shall be obliged to advise the Trustee of any Notes owned by the Issuer or an Affiliate of the Issuer.
 
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SECTION 2.11. Temporary Notes; Definitive Securities. (a) Until Definitive Securities are ready for delivery, the Issuer may prepare and the Trustee shall authenticate temporary Notes, which shall also be signed by the Mexican Trustee. Temporary Notes shall be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes and shall be reasonably acceptable to the Trustee. Without unreasonable delay, the Issuer shall prepare, the Mexican Trustee shall sign and the Trustee shall authenticate Definitive Securities in exchange for temporary Notes.
(b) Definitive Securities.
(i) Except for transfers made in accordance with Section 2.07(b), a Global Security deposited with the Depositary or with the Trustee as custodian for the Depositary pursuant to  Section 2.01  shall be transferred to the beneficial owners thereof in the form of Definitive Securities only if such transfer complies with  Section 2.07  and (x) the Depositary notifies the Issuer that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a “clearing agency” registered under the Exchange Act and a successor Depositary is not appointed by the Issuer within 90 days of such notice, (y) an Event of Default has occurred and is continuing, or (z) the Issuer, in its sole discretion, determines that the Global Security will be exchangeable for Definitive Securities in registered form and notifies the Trustee of its decision.
(ii) In connection with the exchange of an entire Global Security for Definitive Securities pursuant to clause (x) of Section 2.11(b)(i) , such Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer (by means of the execution by two Officers, who shall also be members of the Board of Directors) and the Mexican Trustee shall execute, and upon Issuer Order the Trustee shall authenticate and deliver to each Person identified by DTC and/or its participants in exchange for its interest in such Global Security, an equal aggregate principal amount of Definitive Securities of authorized denominations, and the Registrar shall register such exchanges in the Register.
(iii) In connection with the exchange of an entire Global Security for Definitive Securities pursuant to clause (y) of Section 2.11(b)(i) , if an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members on behalf of the owner of a beneficial interest in a Global Security directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Security for Definitive Securities, subject to and in accordance with the Applicable Procedures, the Issuer (by means of the execution by two Officers, who shall also be members of the Board of Directors) and the Mexican Trustee shall promptly execute, and upon Issuer Order the Trustee shall authenticate and make available for delivery to such beneficial owner, Definitive Securities in a principal amount equal to such beneficial interest in such Global Security.
(iv) If (A) an event described in clause (x) of Section 2.11(b)(i) occurs and Definitive Securities are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner instructions to obtain Definitive Securities due to an
 
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event described in clause (y) of Section 2.11(b)(i) and Definitive Securities are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to Section 6.06  hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Security that represents such beneficial owner’s Notes as if such Definitive Securities had been issued.
(c) Any Global Security or interest therein that is transferable to the beneficial owners thereof in the form of Definitive Securities shall, if held by the Depositary, be surrendered by the Depositary to the Trustee, without charge, and the Trustee shall authenticate and deliver, upon such transfer of each portion of such Global Security, an equal aggregate principal amount of Notes of authorized denominations in the form of certificated Notes in definitive form. Any portion of a Global Security transferred pursuant to this  Section 2.11(c)  shall be executed, authenticated and delivered only in denominations of U.S.$100,000 and multiples of U.S.$1,000 in excess thereof and registered in such names as the Depositary and/or its participants shall direct.
(d) Prior to any transfer pursuant to Section 2.11(b), the registered Holder of a Global Security may grant proxies and otherwise authorize any Person, including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
(e) The Issuer will make available to the Trustee a reasonable supply of certificated Notes in definitive form without interest coupons.
SECTION 2.12. Cancellation. The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar and Paying Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else may cancel Notes surrendered for registration of transfer, exchange, payment, replacement, conversion, redemption, repurchase or cancellation. All Notes so surrendered to the Trustee shall be cancelled promptly by the Trustee. Upon written instructions of the Issuer, the Trustee shall dispose of canceled Notes in accordance with its customary procedures for the disposition of canceled securities and, after such disposition, shall upon written request deliver a certificate of disposition to the Issuer. The Issuer may not issue new Notes to replace Notes that it has paid or repurchased or that have been delivered to the Trustee for cancellation or that any Holder has (i) converted pursuant to Article XII hereof, or (ii) submitted for repurchase pursuant to  Section 3.03  hereof (unless validly revoked pursuant to  Section 3.04 ).
SECTION 2.13. [Reserved].
SECTION 2.14. CUSIP Number. (a) The Issuer, in issuing the Restricted Notes, will use a restricted CUSIP number for such Notes until such time as the Restricted Securities Legend is removed pursuant to  Section 2.07(c)  or  Section 2.07(d) . At such time as the applicable restrictive legend is removed from such Notes pursuant to  Section 2.07(c)  or  Section 2.07(d) , the Issuer will use an unrestricted CUSIP number for such Note, but only with respect to the Notes where so removed.
 
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(b) The Issuer, upon issuing ADSs upon conversion of Restricted Notes, will use a restricted CUSIP number for such ADSs. With respect to each ADR representing such ADS, until such time as the applicable Restricted ADS Legend is removed pursuant to  Section 2.07(c)  or  Section 2.07(d)  from such ADR, such restricted CUSIP will be the CUSIP numbers for such ADR. At such time as the applicable restrictive legend is removed from such ADR pursuant to  Section 2.07(c)  or  Section 2.07(d) , an unrestricted CUSIP number for such ADR will be deemed to be the CUSIP number therefor, but only with respect to the ADRs where so removed.
(c) The Trustee shall use the applicable CUSIP number in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such number either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such number. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP number.
ARTICLE III
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. Redemption of Notes at the Option of the Issuer. (a) If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of any government or jurisdiction (a “ Taxing Jurisdiction ”) affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under Article V, shall be treated for this purpose as the date of such transaction) the Issuer would be obligated, after taking all reasonable measures to avoid such requirement, to pay Additional Amounts in excess of those attributable to a withholding Tax rate of 10% with respect to the Notes, then, at the Issuer’s option, the Issuer may give a Tax Redemption Notice whereupon the Notes shall be redeemed (a “ Tax Redemption ”) in whole, but not in part, at a redemption price (the “ Tax Redemption Price ”) equal to 100% of the outstanding principal amount, plus Interest, if any, up to but not including the Tax Redemption Date; provided ,  however , that (1) no Tax Redemption Notice may be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to pay the Additional Amounts described in the preceding sentence if a payment on the Notes were then due (in excess of the Additional Amounts payable on the date hereof), (2) at the time such Tax Redemption Notice is given such obligation to pay such Additional Amounts remains in effect, and (3) the Issuer shall have satisfied the additional requirements set forth in paragraph (b) of this  Section 3.01 . A Tax Redemption Notice, once delivered by the Issuer or caused to be delivered by the Issuer, shall be irrevocable.
(b) Prior to the publication of any Tax Redemption Notice, the Issuer will deliver to the Trustee:
 
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(i) an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem set forth above have occurred, and
(ii) an Opinion of Counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.
(c) The Issuer shall not have the right to exercise any such optional redemption at any time when it is prohibited from having such an option under the Financing Agreement. Upon delivery of a Tax Redemption Notice, each Holder will have the option to convert its Notes as if a Fundamental Change had occurred by delivering a notice of conversion of the Notes to the Trustee no later than the close of business on the fourth Business Day immediately preceding the Tax Redemption Date set forth in the Tax Redemption Notice. Such conversion shall be made at the Make Whole Fundamental Change Premium, determined as set forth in  Section 12.12 ;  provided  that the “ADS price” used by the Issuer in the calculation of the make whole amount shall be the Last Reported Sale Price of the ADSs on the Trading Day immediately preceding the date the Tax Redemption Notice is delivered by the Issuer or caused to be delivered by the Issuer and “Effective Date” used in such calculation shall be the Trading Day immediately preceding such date of delivery. The settlement of such conversion shall be made in accordance with the settlement provisions set forth in  Section 12.12 .
(d) If the Issuer sets a Tax Redemption Date between a Record Date and the corresponding Interest Payment Date, the Issuer will not pay accrued Interest to any redeeming Holder, and will instead pay the full amount of the relevant Interest payment on such Interest Payment Date to the Holder of record on such Record Date.
(e) If the Issuer elects to exercise the redemption right described in Section 3.01(a), it shall give, or cause to be given by the Trustee, irrevocable written notice of redemption (the “ Tax Redemption Notice ”) not less than 30 days nor more than 60 days before the Tax Redemption Date to the Trustee, the Paying Agent and each Holder at the addresses as shown on the Register. The Tax Redemption Notice shall include such notices as are required by law and shall state: (i) the aggregate principal amount of Notes to be redeemed; (ii) the CUSIP number or numbers of the Notes being redeemed; (iii) the Business Day on which the redemption will be effected (the “ Tax Redemption Date ”); (iv) the Tax Redemption Price; (v) the place or places of payment and that payment will be made upon presentation and surrender of such Notes; (vi) that Interest to, but excluding, the Tax Redemption Date will be paid as specified in said notice, and that on and after said date Interest thereon or on the portion thereof to be redeemed will cease to accrue; (vii) that the Holder has a right to convert the Notes called for redemption at a Make Whole Fundamental Change Premium; (viii) the Conversion Rate on the date of Tax Redemption Notice; (ix) the method of calculating the number of ADSs to be delivered to the Holder upon conversion with respect to any conversions made prior to the Tax Redemption Date; (x) the applicable information required to be contained in a Fundamental Change Notice as set forth in  Section 12.12(b) ; and (xi) if required, whether the Issuer has an effective resale shelf registration statement with respect to any ADSs it may issue as payment for the Make Whole Fundamental Change Premium and, if so, include a selling ADS holder questionnaire to enable each Holder or beneficial owner of Notes to be named as a seller in such resale shelf registration statement.
 
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Simultaneously with providing the Tax Redemption Notice, the Issuer shall also issue a press release announcing the occurrence of such Tax Redemption.
(f) On the third Business Day following the Tax Redemption Date, the Issuer shall issue and shall deliver to each Holder of record on the Tax Redemption Date at the office or agency maintained by the Issuer for such purpose pursuant to  Section 4.04 , a certificate or certificates for, or effect a book-entry transfer through the Depositary with respect to, the number of full ADSs issuable in accordance with the provisions of  Section 3.01(b)  and  Section 3.01(c) .
SECTION 3.02. [Reserved].
SECTION 3.03. Repurchase Upon a Change of Control at the Option of the Holders. (a) Upon the occurrence of a Change of Control, the Issuer shall notify the Holders, the Mexican Trustee and the Trustee in writing of such occurrence and shall be required to make an offer (the “ Change of Control Offer ”) to repurchase all Notes then outstanding at a repurchase price in cash (the “ Change of Control Payment ”) equal to 100% of the principal amount thereof, plus Interest, to, but excluding, the Change of Control Purchase Date (as defined in  Section 12.12(b) ) (unless the Change of Control Purchase Date is between a Record Date and the Interest Payment Date to which it relates, in which case the Issuer will pay Interest on such Interest Payment Date to the Holder of record on such Record Date and the Change of Control Payment will be equal to 100% of the principal amount of the Notes subject to repurchase and will not include Interest).
(b) Notice of a Change of Control shall be made in accordance with the provisions set forth under Section 12.12(b).
(c) The Issuer will not be required to make a Change of Control Offer if a third party makes a Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Change of Control Offer made by the Issuer and purchases all Notes validly tendered and not withdrawn under such Change of Control Offer.
SECTION 3.04. General Provisions Applicable to Repurchases. The following additional provisions shall apply to repurchases pursuant to  Section 3.03 .
(a) To exercise its rights under Section 3.03, a Holder must deliver the Notes to be purchased to the Paying Agent, together with a written purchase notice, after receipt of the Fundamental Change Notice and on or before the Business Day immediately preceding the Change of Control Purchase Date. The purchase notice must contain: (x) if the Notes are not certificated, the Holder’s notice must comply with appropriate DTC procedures or, if the Notes are certificated, the notice shall include the certificate numbers of the Holder’s Notes to be delivered for purchase; (y) the portion of the principal amount of the Holder’s Notes to be purchased, which must be U.S.$1,000 or a multiple of U.S.$1,000;  provided  that the portion not to be purchased is in a minimum principal amount of U.S.$100,000; and (z) that the Holder’s Notes are to be purchased by the Issuer pursuant to the applicable provisions of the Notes and this Indenture. In addition, if the Notes are certificated, the Notes delivered for repurchase shall be duly endorsed for transfer and the written purchase notice in the appropriate form on the reverse side of the Notes shall be duly completed. No Notes of a principal amount of less than U.S.$100,000 shall be purchased by the Issuer in part.
 
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(b) On the Business Day prior to the Change of Control Purchase Date, the Issuer will deposit with the Trustee or with the Paying Agent an amount of money in immediately available funds sufficient to repurchase on such date all the Notes (or portions thereof) tendered for repurchase (other than those theretofore surrendered for conversion into ADSs) and not withdrawn,  provided that if such payment is made on the Change of Control Purchase Date, it must be received by the Trustee or Paying Agent, as the case may be, by 10:00 a.m. New York City time on such date.
(c) A Holder that has exercised a repurchase right will receive the Change of Control Payment, promptly following the later of (i) the Change of Control Purchase Date or (ii) the time of book-entry transfer or the delivery of the Notes. If the Paying Agent holds money or securities sufficient to pay the cash portion of the purchase price of the Notes to be repurchased on the second Business Day following the Change of Control Purchase Date, then the following shall occur:
(A) the Notes tendered for purchase and not withdrawn will cease to be outstanding and Interest, if any, will cease to accrue on such Notes on the Change of Control Purchase Date (whether or not book-entry transfer of the Notes is made or whether or not the Notes are delivered to the Paying Agent); and
(B) all other rights of the Holders with respect to the Notes tendered for purchase and not withdrawn will terminate on the Change of Control Purchase Date (other than the right to receive the Change of Control Payment upon delivery or transfer of the Notes).
(d) Any Change of Control Offers shall be made by the Issuer in compliance with all applicable provisions of the Exchange Act, all applicable tender offer rules promulgated thereunder and all other federal and state securities laws, to the extent such laws and regulations are then applicable and shall include all instructions and materials (such as the filing of a Schedule TO or any other required schedule) that the Issuer shall reasonably deem necessary to enable each such Holder to tender its Notes. The Issuer will not purchase Notes if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or prior to the Change of Control Purchase Date.
(e) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying Agent an election to have its Notes purchased pursuant to  Section 3.03  shall have the right to withdraw such election in whole or in a portion thereof that is a principal amount of U.S.$1,000 or in an integral multiple thereof ( provided  that the portion not to be so purchased is in a minimum principal amount of U.S.$100,000), if the Paying Agent receives, not later than close of business on the Business Day immediately preceding the Change of Control Purchase Date, a facsimile transmission or written letter, which may be sent via, mail setting forth (i) the name of the Holder; (ii) the principal amount of withdrawn Notes, which must be U.S.$1,000 or a multiple of U.S.$1,000,  and provided  that the portion remaining to be repurchased is in a minimum principal amount of U.S.$100,000; (iii) if certificated Notes have been issued, the certificate numbers of the withdrawn Notes, or if not certificated, the notice must comply with appropriate DTC procedures; and (iv) the principal amount, if any, which remains subject to the notice of election.
 
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(f) If a Holder has already delivered a purchase notice as described in Section 3.03 with respect to a Note, the Holder may not surrender that Note for conversion until the Holder has withdrawn the purchase notice in accordance with  Section 3.04(e) .
ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Notes. The Issuer shall pay the principal of and Interest on the Notes on the dates and in the manner provided in the Notes. Principal, Interest or cash payments to be made pursuant to Article III shall be considered paid on the date due if the Trustee or Paying Agent (other than the Issuer or a Subsidiary of the Issuer or any Affiliate of the Issuer) holds as of 10:00 a.m. New York City time on that date immediately available funds designated for and sufficient to pay all principal, Interest and cash payments to be made pursuant to Article III then due;  provided ,  however , that money held by the Agent for the benefit of holders of Senior Indebtedness pursuant to the provisions of Article XI hereof or the payment of which to the Holders is prohibited by Article XI shall not be considered to be designated for the payment of any principal of or Interest on the Notes within the meaning of this  Section 4.01 .
To the extent lawful, the Issuer shall pay Interest (including post-petition Interest in any proceeding under any Bankruptcy Law) on (i) overdue principal, at the rate borne by the Notes per annum; and (ii) overdue installments of Interest (without regard to any applicable grace period) at the same rate per annum, in each case during the period in which such Default is continuing.
SECTION 4.02. Reports. (a) The Issuer shall furnish to the Trustee within 15 days after the same are required to be filed with the Commission any documents or reports that the Issuer is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (giving effect to any grace period provided by Rule 12b-25 under the Exchange Act).
(b) In the event that the Issuer is no longer subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Issuer shall:
(i) provide the Trustee and the Holders with:
(A) annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));
(B) reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Issuer in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year; and
 
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(C) such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and
(ii) file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) above within the periods specified for such filings under the Exchange Act (whether or not applicable to the Issuer).
(c) In addition, at any time when the Issuer is not subject to or is not current in its reporting obligations under clause (ii) of Section 4.02 , the Issuer shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificates).
(e) As provided in Articles 210 Bis, 212 and any other related Articles of the LGTOC, so long as any Notes remain outstanding:
(i) within four months after the end of each fiscal year, the Issuer’s Board of Directors shall notify the shareholders of the number of Notes that have been converted into ADSs in accordance with this Indenture as of the date thereof. Such notification shall include the number of underlying Ordinary Shares of the Issuer and CPOs that were subscribed or released as a result of such conversion and shall be notarized before a Mexican notary public and filed with the Public Registry of Commerce; and
(ii) the Issuer shall publish, on an annual basis, its balance sheet corresponding to the previous fiscal year in the Mexican Official Gazette of the Federation ( Diario Oficial de la Federación ), duly certified by a public accountant.
SECTION 4.03. Compliance Certificate. The Issuer shall deliver to the Trustee within 120 days after the end of each fiscal year of the Issuer (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue Date) an Officer’s Certificate stating that in the course of the performance by the signer of his or her duties as an Officer of the Issuer he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during the previous fiscal year. If he or she does, the certificate shall describe the Default or Event of Default, its status and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 4.04. Maintenance of Office or Agency. The Issuer shall maintain or cause to be maintained the office or agency required under  Section 2.03 . The Issuer shall give prompt
 
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written notice to the Trustee and the Mexican Trustee of the location, and any change in the location, of such office or agency not maintained by the Trustee. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee and the Mexican Trustee with the address thereof, presentations, surrenders, notices and demands with respect to the Notes may be made or served at the Corporate Trust Office of the Trustee.
The Issuer may also from time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind such designation.
SECTION 4.05. [Reserved].
SECTION 4.06. Appointments to Fill Vacancies in Trustee’s Office. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in  Section 7.08 , a Trustee, so that there shall at all times be a Trustee hereunder. If for any reason the Mexican Trustee resigns or is removed, the Issuer shall take all actions to appoint a new Mexican trustee so that there shall at all times be a Mexican banking institution acting as Mexican Trustee hereunder and for the purposes of the duties of the Mexican Trustee set forth herein.
SECTION 4.07. Stay, Extension and Usury Laws. The Issuer covenants (to the extent that it may lawfully do so) that it shall not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter enforced, that may affect the Issuer’s obligation to pay the Notes; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law insofar as such law applies to the Notes, and covenants that it shall not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law has been enacted.
SECTION 4.08. [Reserved].
SECTION 4.09. Additional Interest. (a) If, at any time during the six months to one year period following the Issue Date, (i) the Issuer fails to timely file any document or report that it is required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act (other than any current report on Form 6-K), or (ii) the Notes are not otherwise freely tradable by Holders (other than Holders who are Affiliates of the Issuer or any Person that has been an Affiliate of the Issuer at any time during the three months preceding the applicable date) as a result of restrictions pursuant to the U.S. securities laws or the terms of this Indenture or the Notes, the Notes will accrue Additional Interest at the rate of 0.50% per annum on the outstanding principal amount of Notes, such additional accrual to begin at such time as either of the conditions described in clauses (i) and (ii) of this sentence exist and to end at the earlier of (x) the end of such one year period and (y) the time with such conditions no longer exist. The Issuer shall pay such Additional Interest in cash on each Interest Payment Date to the Person who is the Holder of record of the Notes on the immediately preceding Record Date and if and when the conditions described in clauses (i) and (ii) of the preceding sentence no longer exist, accrued and unpaid Additional Interest through the date such conditions last existed will be paid in cash on the subsequent Interest Payment Date to the record Holder on the Record Date. Unless:
 
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(i) the Restricted Securities Legend on the Notes has been removed, and
(ii) the Notes are freely tradable pursuant to Rule 144 under the Securities Act without restrictions by Holders other than Affiliates of the Issuer or any Person that has been an Affiliate of the Issuer at any time during the three months preceding the applicable date (as a result of restrictions pursuant to U.S. securities law or the terms of this Indenture or the Notes),
as of the 365th day after the Issue Date, the Issuer will, at its election, either (A) pay Additional Interest on the Notes at an annual rate equal to 0.50% of the aggregate principal amount of the Notes or (B) designate an effective shelf registration statement useable for the resale of the Notes or any ADSs issuable upon conversion of the Notes, in which case Additional Interest shall not accrue for each day on which such registration statement remains effective and useable by Holders for the resale of the Notes and any ADSs. To the extent the Issuer elects to pay such Additional Interest, and for so long as a condition described in either clause (i) or (ii) of the preceding sentence continues to fail to be satisfied, the Issuer shall pay such Additional Interest in cash on each Interest Payment Date to the Person who is the Holder of record of the Notes on the immediately preceding Record Date. When such default is cured, accrued and unpaid Additional Interest through the date of cure will be paid in cash on the subsequent Interest Payment Date to the record Holder on the Record Date. In no event shall Additional Interest accrue under the terms of this Indenture (taking any Additional Interest under the provision described in this  Section 4.09 together with any Interest under  Section 6.02(b) ) at an annual rate in excess of 0.50%, in the aggregate, for any violation or default caused by the Issuer’s failure to be current in respect of its Exchange Act reporting obligations.
(b) During the period of one year after the Issue Date, the Issuer will not, and will not permit any of its “affiliates” (as defined in Rule 144 under the Securities Act) to, resell any Notes that have been reacquired by the Issuer or acquired by any of them, unless the Notes so resold bear a CUSIP that is different from the CUSIP for the Notes issued on the Issue Date and not acquired by the Issuer or any of its Affiliates during such one year period. For the avoidance of doubt, this  Section 4.09(b)  shall not be applicable to any conversion or exchange of Notes to which  Section 2.07(f)  applies.
SECTION 4.10. Additional Interest Notice. In the event that the Issuer is required to pay Additional Interest to Holders pursuant to  Section 4.09  or  Section 6.02(b)  hereof, the Issuer shall provide a direction or order in the form of a written notice to the Trustee (and if the Trustee is not the Paying Agent, the Paying Agent) of the Issuer’s obligation to pay such Additional Interest no later than three Business Days prior to the date on which any such Additional Interest is scheduled to be paid. Such notice shall set forth the amount of Additional Interest to be paid by the Issuer on such payment date and direct the Trustee (or, if the Trustee is not the Paying Agent, the Paying Agent) to make payment to the extent it receives funds from the Issuer to do so. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of Additional Interest owed, or with respect to the method employed in such calculation of Additional Interest.
 
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SECTION 4.11. Further Instruments and Acts. Upon request of the Trustee or the Mexican Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of this Indenture.
SECTION 4.12. Payment of Additional Amounts. (a) All payments made by the Issuer under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”) imposed or levied by or on behalf of any Taxing Jurisdiction unless the Issuer is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided ,  however , that the foregoing obligation to pay Additional Amounts does not apply to:
(i) any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),
(ii) any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,
(iii) any Taxes imposed solely because the Holder or any other Person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the Tax, assessment or other governmental charge and the Issuer has given the Holders at least 30 days’ prior notice that Holders shall be required to provide such information and identification,
(iv) any Taxes payable otherwise than by deduction or withholding from payments on the Notes,
(v) any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, and
 
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(vi) any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.
(c) The obligations in Section 4.12(a) and Section 4.12(b) shall survive any termination or discharge of this Indenture and shall apply  mutatis mutandis  to any Taxing Jurisdiction with respect to any successor to the Issuer. The Issuer shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer shall use all reasonable efforts to obtain certified copies of Tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such Tax receipts are not reasonably available to the Issuer, furnish such other documentation that provides reasonable evidence of such payment.
(d) The limitations on the obligations to pay additional amounts stated in clause (iii) of Section 4.12(b) shall not apply if the provision of information, documentation or other evidence described in clause (iii) of  Section 4.12(b)  would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. Tax law, regulation (including proposed regulations) and administrative practice. The limitations on the obligations to pay additional amounts in clause (iii) of  Section 4.12(b)  shall not apply with respect to Taxes imposed by Mexico or any political subdivision or taxing authority thereof if the Issuer can otherwise obtain the application of the lower withholding tax rate in effect unless (A) the provision of the information, documentation or other evidence described in clause (iii) of  Section 4.12(b)  is expressly required by statute, regulation, or published administrative practice of general applicability, (B) the Issuer cannot obtain the information, documentation or other evidence necessary to comply with the applicable laws and regulations on its own through reasonable diligence and without requiring it from Holders, and (C) the Issuer otherwise would meet the requirements set forth under applicable law and regulations. In addition, clause (iii) of  Section 4.12(b)  does not and shall not be construed to require that any Person, including any non-Mexican pension fund, retirement fund, financial institution or any other Holder or beneficial owner of a Note, register with the Mexican Ministry of Finance and Public Credit or with the Tax Administration Service ( Servicio de Administración Tributaria ) to obtain eligibility for an exemption from, or a reduction of, Mexican withholding Tax.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, Interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
 
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(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 4.12 are based on rates of deduction or withholding of withholding Taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding Tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer will be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto including making any filing to request a refund.
(g) For purposes of this Section 4.12, references to “payments” made by the Issuer under, or with respect to, the Notes shall include the conversion of Notes by the Issuer.
SECTION 4.13. Spanish Version, Notarization and Registration. This Indenture shall be executed in both English and Spanish. Concurrently with the execution of this Indenture, the Issuer, the Trustee and the Mexican Trustee shall execute a Spanish version of this Indenture before a Mexican notary public,  provided ,  however , that in case of any inconsistency or question as to the proper interpretation or construction of this Indenture between the text in English and the text in Spanish, the English text shall control in all cases.
SECTION 4.14. Registration with the Pubic Registry of Commerce. Within forty-five (45) days after the date hereof, the Issuer shall provide the Trustee and the Mexican Trustee with a copy of the public instrument containing the notarized Spanish version of this Indenture, duly filed with, and stamped as registered by, the Public Registry of Commerce.
SECTION 4.15. Compliance with Mexican Law Provisions. (a) The Issuer shall, at all times during the term of this Indenture, comply with all applicable provisions set forth in applicable Mexican Laws, including without limitation, Chapter V ( Capítulo V ) of the LGTOC.
(b) In accordance with paragraph III of Article 210 Bis of the LGTOC, the issue price of the Notes shall not be less than the Notes’ nominal amount.
ARTICLE V
SUCCESSORS
SECTION 5.01. Merger, Consolidation and Sale of Assets. The Issuer will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Subsidiaries), to any Person unless:
(a) either:
(i) the Issuer shall be the surviving or continuing corporation, or
 
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(ii) the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer and its Subsidiaries substantially as an entirety (the “ Successor Issuer ”):
(A) shall be a corporation organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and
(B) shall expressly assume, by supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal and Interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;
(b) immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (a)(ii)(B) of this  Section 5.01 , no Default or Event of Default shall have occurred or be continuing.
(c) if the Issuer merges with a corporation, or the Successor Issuer is organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer will have delivered to the Trustee an Opinion of Counsel that, as applicable:
(i) the Holders will not recognize income, gain or loss for the purposes of the income Tax laws of United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and will be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no additional amounts are regarded to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;
(ii) any payment of principal or Interest on the Notes will be paid in compliance with any requirements under Section 4.12 ; and
(iii) no other Taxes on income, including capital gains, will be payable by Holders under the laws of United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of Interest or principal thereon; provided that the Holder does not use or hold, and is not deemed to use or hold, the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.
(d) The provision of clause (b) of this Section 5.01 shall not apply to:
(1) any transfer of the properties or assets of a Subsidiary of the Issuer to the Issuer;
 
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(2) any merger of a Subsidiary of the Issuer into the Issuer; or
(3) any merger of the Issuer into a Subsidiary of the Issuer.
(e) For purposes of the covenant in this Section 5.01, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Subsidiaries), will be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
(f) Upon any such consolidation, merger, sale, assignment, conveyance, lease, transfer or other disposition in accordance with this  Section 5.01 , the Successor Issuer formed by such consolidation or into which the Issuer is merged or to which such sale, assignment, conveyance, lease, transfer or other disposition is made will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under this Indenture and the Notes with the same effect as if such successor had been named as the Issuer therein, and thereafter the predecessor corporation will be relieved of all further obligations and covenants under this Indenture and the Notes.
(g) the Issuer or such Person shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that such consolidation, merger, combination, sale, assignment, disposition, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with the provisions of this Indenture and that all conditions precedent in this Indenture relating to such transaction have been satisfied.
SECTION 5.02. Purchase Option on Fundamental Change. This Article V does not affect the obligations of the Issuer (including without limitation any successor to the Issuer) under  Section 3.03 .
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An “Event of Default” with respect to any Notes occurs if:
(a) the Issuer defaults in the payment in respect of the principal of any Note when due at maturity, upon redemption or repurchase pursuant to Article III, upon declaration of acceleration or otherwise, whether or not such payment is prohibited by the subordination provisions set forth in Article XI;
(b) the Issuer defaults in the payment of any Interest on any Note when due and payable, whether or not such payment is prohibited by the subordination provisions set forth in Article XI, including any Interest payable in connection with a redemption or repurchase pursuant to Article III, and continuance of such default for a period of 30 days or more;
 
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(c) the Issuer defaults in the delivery when due of ADSs deliverable upon conversion with respect to the Notes in accordance with  Article XII , which default continues for a period of five Business Days or more;
(d) the Issuer fails to provide a timely Fundamental Change Notice in accordance with Section 12.12(b);
(e) the Issuer fails to comply with the covenant described in clause (b) of Section 12.08;
(f) failure by the Issuer to comply with the covenant described in clause (a) of Section 12.08 that continues for a period of 30 days after the Issuer receives written notice of such failure from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding;
(g) the Issuer defaults (other than a default set forth in clauses (a) through (f) above) in the performance of, or breaches, any other covenant or agreement of the Issuer set forth in this Indenture or the Notes and fails to remedy such default or breach within a period of 45 days after its receipt of written notice thereof from the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes;
(h) the Issuer or any of the Issuer’s “Significant Subsidiaries” (as defined in Article 1, Rule 1-02 of Regulation S-X) defaults with respect to any mortgage, agreement or other instrument under which there is outstanding, or by which there is secured or evidenced, any Indebtedness for money borrowed having a principal amount in excess of U.S.$50 million in the aggregate, whether such Indebtedness now exists or shall hereafter be created, (i) resulting in such Indebtedness becoming or being declared due and payable prior to its express maturity date or (ii) constituting a failure to pay at least U.S.$50 million of such Indebtedness when due and payable (after the expiration of any applicable grace period) at its stated maturity, upon required repurchase, upon declaration or otherwise; provided, that any such Event of Default shall be deemed cured and not continuing upon payment of such Indebtedness or rescission of such declaration;
(i) a final judgment for the payment of U.S.$50 million or more (excluding any amounts covered by insurance or bond) is rendered against the Issuer or any Significant Subsidiary by a court of competent jurisdiction, which judgment is not discharged, stayed, vacated, paid or otherwise satisfied within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished; or
(j) a Bankruptcy Event of Default occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default (other than an Event of Default with respect to the Issuer specified in  Section 6.01(j )) occurs and is continuing, then and in every such case (i) the Trustee, by written notice to the Issuer, or (ii) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by written notice to the Issuer and the Trustee, may, and the Trustee at the request of such Holders shall, declare all of the
 
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unpaid principal of, and Interest, on all the Notes to be due and payable. Upon such declaration such principal amount, and Interest, shall become immediately due and payable, notwithstanding anything contained in this Indenture or the Notes to the contrary, but subject to the provisions of Article XI hereof. If the Event of Default with respect to the Issuer specified in Section 6.01(j)  occurs, all unpaid principal of, and Interest on, the Notes then outstanding shall become automatically due and payable, subject to the provisions of Article XI hereof, without any declaration or other act on the part of the Trustee or any Holder.
(b) Notwithstanding any other provision in this Article VI, if an Event of Default occurs arising out of the Issuer’s breach of its obligation to file or furnish reports or other financial information as required under  Section 4.02  of this Indenture, the Issuer may elect to pay Additional Interest on the Notes as the sole remedy for such Event of Default, and the Trustee and the Holders will not have any right under this Indenture to accelerate the maturity of the Notes as a result of any such Event of Default, except as provided below. If elected, the Issuer shall pay Additional Interest to all Holders at a rate equal to 0.50% per annum through the 180th day after the occurrence of such Event of Default (which shall be the 135 th  day after the end of the 45-day grace period set forth in  Section 6.01(g) ), or such earlier date on which the Event of Default relating to the reporting obligations referred to in this  Section 6.02(b)  shall have been cured or waived. On the 181st day, such Additional Interest will cease to accrue (or earlier, if the Event of Default relating to the reporting obligations referred to in this  Section 6.02(b)  shall have been cured or waived prior to such 181st day) and, if the Event of Default is continuing on such 181st day, the Notes will be subject to acceleration as provided in  Section 6.02(a) . The provisions of this  Section 6.02(b)  will not affect the rights of the Holders in the event of the occurrence of any other Event of Default, and are separate and distinct from, and in addition to, the obligation of the Issuer to increase the interest rate of, and the amount of Interest payable on, the Notes pursuant to  Section 4.09 , except as otherwise provided therein. Any Additional Interest paid pursuant to this  Section 6.02(b)  will be payable at the times and in the manner provided for the payment of regular Interest on the Notes. In order to elect to pay Additional Interest on the Notes as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with reporting obligations in accordance with this  Section 6.02(b) , the Issuer must notify all Holders and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default first occurs. If the Issuer fails to timely give such notice, does not pay such Additional Interest or elects not to pay such Additional Interest, the Notes will be immediately subject to acceleration as provided in  Section 6.02(a) .
SECTION 6.03. Other Remedies. If an Event of Default occurs and is continuing, subject to Article XI, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of or Interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy occurring upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
 
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SECTION 6.04. Waiver of Past Defaults; Rescission of Acceleration. The Holders of a majority in aggregate principal amount of the then outstanding Notes may, on behalf of the Holders of all the Notes, waive an existing or past Default or Event of Default and its consequences (except a Default or Event of Default in the payment of principal or Interest, in the repurchase of any Notes when required, in the delivery, upon conversion, of ADSs, or in respect of a covenant or provision of this Indenture which cannot be modified or amended without the consent of all Holders of Notes) and rescind any such acceleration with respect to the Notes and its consequences if (a) rescission would not conflict with any judgment or decree of a court of competent jurisdiction, (b) all existing Defaults or Events of Default, other than the nonpayment of the principal and Interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived and (c) there had been paid or deposited with the Trustee a sum sufficient to pay all amounts due to the Trustee and reimburse the Trustee for any and all expenses, disbursements, fees advanced by the Trustee, its agent and its counsel incurred in connection with such Default or Event of Default. No such rescission shall affect any subsequent Default or Event of Default or impair any right consequent thereto.
SECTION 6.05. Control by Majority. The Holders of a majority in aggregate principal amount of the then-outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture or that the Trustee determines may be unduly prejudicial to the rights of any other Holder or that may involve the Trustee in personal liability;  provided  that the Trustee shall have no duty or obligation (subject to  Section 7.01 ) to ascertain whether or not such actions of forbearances are unduly prejudicial to such Holders;  provided ,  further , that the Trustee may take any other action the Trustee deems proper that is not inconsistent with such directions. Any Notes held by the Issuer or one of the Issuer’s Subsidiaries shall be disregarded for voting purposes in connection with any notice, waiver, consent or direction requiring the vote or concurrence of Holders of the Notes.
SECTION 6.06. Limitation on Suits. Except to enforce the right to receive payment of principal and Interest when due, a Holder may not pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice that an Event of Default that has occurred and is continuing;
(ii) the Holders of at least 25% in principal amount of the then-outstanding Notes make a request to the Trustee to pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide to the Trustee security or indemnity reasonably satisfactory to the Trustee against any loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days after receipt of the request and the offer and, if requested, the provision of such security or indemnity; and
 
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(v) the Holders of a majority in principal amount of the then-outstanding Notes do not give the Trustee a direction that is inconsistent with the request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Subject to the provisions of Article XI hereof, notwithstanding any other provision of this Indenture, the right of any Holder of a Note to receive payment of principal, and Interest, if any, on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, or to bring suit for the enforcement of the right to convert the Note in accordance with the terms of this Indenture shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default specified in Section 6.01(a) or Section 6.01(b) occurs and is continuing, subject to Article XI, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer for the whole amount of principal and Interest, if any, remaining unpaid on the Notes and Interest, on overdue principal and Interest, if any, and such further amount as shall be sufficient to cover the costs and, to the extent lawful, expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders allowed in any judicial proceedings relative to the Issuer, its creditors or its property. Any receiver, trustee, liquidator, conciliador or sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, Taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to  Section 7.07 . Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. Subject to Article XI, if the Trustee collects any money pursuant to this Article VI, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07, including payment of all reasonable compensation, expenses and liabilities incurred, and all advances made, by the Trustee, and the costs and expenses of collection;
SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
 
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THIRD: to Holders for amounts due and unpaid on the Notes for principal and Interest, if any, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and Interest, if any, respectively; and
FOURTH: to the Issuer or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a special record date and payment date for any payment to Holders made pursuant to this Section 6.10. At least 15 days before any such special record date, the Trustee shall mail to Holders of the Notes a notice that states the special record date, payment date and amount of such Interest to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit, other than the Trustee, of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by a Holder pursuant to  Section 6.07  or a suit by Holders of more than 10% in principal amount of the then outstanding Notes.
ARTICLE VII
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture and covenants and agrees to perform the same, as herein expressed. Whether or not herein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Article VII.
SECTION 7.01. Duties of the Trustee. (a) If an Event of Default known to the Trustee has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs.
(b) The Mexican Trustee shall (i) confirm that the proceeds from the offering and sale of the Notes are used to fund the purchase of the capped called transactions described in the Offering Memorandum and for general corporate purposes, (ii) cause the registration of a certified copy of the public instrument containing the notarization of a Spanish version of this Indenture with the Public Registry of Commerce and obtain the registration thereof in the event that the Issuer fails to comply with its obligation to register such public instrument as set forth in Section 4.02(e)(i), and (iii) exercise all rights and comply with all obligations set forth in the LGTOC, including those set forth in Article 217 (Sections I, V, VII and VIII) of the LGTOC.
 
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(c) Except during the continuance of an Event of Default known to the Trustee:
(i) The duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) In the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the form required by this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts purported to be stated therein).
(d) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (c) of this Section 7.01;
(ii) The Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer of the Trustee, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.05 .
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any financial liability in the performance of any of its duties or the exercise of any of its rights and powers hereunder, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every provision of this Indenture that is in any way related to the Trustee is subject to paragraphs (c), (d), and (e) of this  Section 7.01 .
(g) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree with the Issuer. Money held in trust by the Trustee need not be segregated from other funds or assets except to the extent required by law.
(h) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
 
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SECTION 7.02. Rights of the Trustee. Subject to Section 7.01:
(a) The Trustee may conclusively rely on and shall be protected in acting or refraining from acting upon any resolution, Officer’s Certificate, or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, security or other document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter contained therein.
(b) Any request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof is herein specifically prescribed). In addition, before the Trustee acts or refrains from acting, it may require an Officer’s Certificate, an Opinion of Counsel or both. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its attorneys and agents and other Persons not regularly in its employ and shall not be responsible for the misconduct or negligence of any attorney or agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith without negligence or willful misconduct which it believes to be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by Officers of the Issuer.
(f) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder.
(g) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or discretion of any of the Holders pursuant to the provisions of this Indenture, unless such Holders have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred therein or thereby.
(h) Except for the confirmation of the Net Total Assets by the Mexican Trustee or as otherwise required pursuant to Section 7.01(b), neither the Trustee nor the Mexican Trustee shall be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, security or other document unless requested in writing to do so by the Holders of not less than a majority in aggregate principal amount of the Notes then outstanding;  provided  that if the Trustee or the Mexican Trustee determine in its discretion to make any such investigation, then they shall be entitled, upon reasonable prior notice and during normal business hours, to examine the books and
 
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records and the premises of the Issuer, personally or by agent or attorney, and the reasonable expenses of every such examination shall be paid by the Issuer or, if paid by the Trustee, the Mexican Trustee or any predecessor Trustee or Mexican Trustee, shall be reimbursed by the Issuer upon demand.
(i) The permissive rights of the Trustee or the Mexican Trustee to do things enumerated in this Indenture shall not be construed as a duty. The Trustee and the Mexican Trustee shall not be answerable for other than their respective negligence or willful misconduct.
(j) The Trustee shall not be responsible for the computation of any adjustment to the Conversion Rate or for any determination as to whether an adjustment is required and shall not be deemed to have knowledge of any adjustment unless and until it shall have received the notice from the Issuer contemplated by  Section 12.05(e) .
(k) The Trustee shall not be deemed to have knowledge of any Default or Event of Default except (i) any Event of Default occurring pursuant to  Section 6.01(a)  or  Section 6.01(b) , or (ii) any Event of Default of which a Trust Officer of the Trustee shall have received written notification or otherwise obtained actual knowledge.
(l) Whenever by the terms of this Indenture, the Trustee shall be required to transmit notices or reports to any or all Holders, the Trustee shall be entitled to conclusively rely on the information provided by the Registrar as to the names and addresses of the Holders as being correct. If the Registrar is other than the Trustee, the Trustee shall not be responsible for the accuracy of such information.
(m) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by (i) the Trustee in each of its capacities hereunder (including as Registrar and Conversion Agent); (ii) to each agent, custodian, and any other such Persons employed to act hereunder; and (iii) to the Mexican Trustee.
(n) In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts or war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services (it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to avoid and mitigate the effects of such occurrences and to resume performance as soon as practicable under the circumstances).
(o) The Trustee or the Mexican Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture.
(p) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
 
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SECTION 7.03. Individual Rights of the Trustee. Subject to Section 7.10, the Trustee in its individual or any other capacity may become the owner or pledgee of Notes with the same rights it would have if it were not the Trustee and may otherwise deal with the Issuer or an Affiliate of the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights.
SECTION 7.04. Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes. It shall not be accountable for the Issuer’s use of the proceeds from the Notes or any money paid to the Issuer or upon the Issuer’s direction under any provision of this Indenture. It shall not be responsible for the use or application of any money received by any Paying Agent other than the Trustee, and it shall not be responsible for any statement or recital herein or any statement in the Notes or any other document in connection with the sale of the Notes or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of Default occurs and is continuing and if it is known to a Trust Officer of the Trustee, the Trustee shall mail to each Holder a notice of the Default or Event of Default within 90 days after it occurs. Except in the case of a Default or Event of Default in payment of principal of, or Interest on, any Note, the Trustee may withhold the notice if and so long as a committee of the Trustee’s Trust Officers in good faith determines that withholding the notice is in the interest of the Holders.
SECTION 7.06. Representation of the Mexican Trustee. Pursuant to Section I of Article 217 and Section V of Article 213 of the LGTOC, the Mexican Trustee hereby represents that it has confirmed the date set forth in the balance sheet dated December 31, 2010 of the Issuer and the Net Total Assets.
SECTION 7.07. Compensation and Indemnity. The Issuer shall pay to the Trustee and the Mexican Trustee from time to time and the Trustee and the Mexican Trustee shall be entitled to such compensation for its acceptance of this Indenture and its services hereunder as the Issuer, the Trustee and the Mexican Trustee shall from time to time agree in writing. The Trustee’s and the Mexican Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee and the Mexican Trustee, as applicable, promptly upon request for all reasonable disbursements, advances and expenses incurred or made by or on behalf of it in addition to the compensation for its services. Such expenses may include the reasonable compensation, disbursements and expenses of the Trustee’s or the Mexican Trustee’s agents, counsel and other persons not regularly in its employ;  provided  that Trustee and the Mexican Trustee shall provide the Issuer reasonable advance notice of any expenditure not in the ordinary course of business;  provided, further , that the Issuer shall have no obligation to reimburse the Trustee and the Mexican Trustee with respect to any such expense, disbursement or advance as may be attributable to the Trustee’s or the Mexican Trustee’s negligence, willful misconduct or bad faith.
 
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The Issuer shall indemnify the Trustee and the Mexican Trustee, or any predecessor Trustee or Mexican Trustee, for, and to hold it harmless against, any and all loss, liability, damage, claim or expense, including Taxes (other than Taxes based upon, measured by or determined by the income of the Trustee and the Mexican Trustee), incurred without negligence, willful misconduct or bad faith on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending itself against any claim (whether asserted by the Issuer, or any Holder or any other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder or in connection with enforcing the provisions of this Section. The Trustee and the Mexican Trustee, as applicable, shall notify the Issuer promptly of any claim for which it may seek indemnity. Failure by the Trustee or the Mexican Trustee to so notify the Issuer shall not relieve the Issuer of its obligations hereunder. The Issuer shall defend the claim with counsel designated by the Issuer, who may be outside counsel to the Issuer but shall in all events be reasonably satisfactory to the Trustee or the Mexican Trustee, as applicable, and the Trustee and the Mexican Trustee, as applicable, shall cooperate in the defense. In addition, the Trustee and the Mexican Trustee, as applicable, may retain one separate counsel and, if deemed advisable by such counsel, local counsel, and the Issuer shall pay the reasonable fees and expenses of such separate counsel and local counsel. The indemnification herein extends to any settlement;  provided  that the Issuer will not be liable for any settlement made without its consent;  provided ,  further , that such consent will not be unreasonably withheld.
The Trustee shall have a Lien prior to the Notes on all money or property held or collected by the Trustee to secure the Issuer’s payment obligations to the Trustee and the Mexican Trustee in this  Section 7.07 , except that held in trust to pay principal and Interest, if any, on Notes. Such Liens and the Issuer’s obligations under this  Section 7.07  shall survive the satisfaction and discharge of this Indenture and the resignation or removal of the Trustee.
When the Trustee or the Mexican Trustee incurs expenses or renders services after a Bankruptcy Event of Default occurs, the expenses and the compensation for the services (including the fees and expenses of its agents and counsel) are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of the Trustee. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as provided in this Section 7.08 .
The Trustee may resign at any time and be discharged from the trust hereby created by so notifying the Issuer. The Holders of a majority in principal amount of the then outstanding Notes may remove the Trustee by so notifying the Trustee and the Issuer in writing and may appoint a successor Trustee. The Issuer may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or its property; or
 
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(iv) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Issuer shall promptly appoint a successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Notes may appoint a successor Trustee to replace the successor Trustee appointed by the Issuer.
If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee, at the Issuer’s expense, the Issuer or the Holders of at least 10% in principal amount of the then outstanding Notes may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee after written request by any Holder who has been a Holder for at least six months fails to comply with Section 7.10 , such Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee;  provided  that all sums owing to the retiring Trustee hereunder have been paid and subject to the Lien provided for in  Section 7.07 . Notwithstanding the replacement of the Trustee pursuant to this  Section 7.08 , the Issuer’s obligations under  Section 7.07  shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Upon request of any such successor Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the preceding paragraph.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business (including the trust created by this Indenture) to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act shall be the successor Trustee with the same effect as if the successor Trustee had been named as the Trustee herein. If the Mexican Trustee consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust business (including the trust created by this Indenture) to, another corporation or national banking association, the resulting, surviving or transferee corporation or national banking association without any further act shall be the successor Mexican Trustee with the same effect as if the successor Mexican Trustee had been named as the Mexican Trustee herein.
SECTION 7.10. Eligibility, Disqualification. The Trustee shall at all times be a Trustee hereunder that is a corporation organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate
 
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trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Indenture. When (a) the Issuer delivers to the Trustee for cancellation all Notes theretofore authenticated (other than any other Notes which have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes have been authenticated and delivered) and not theretofore canceled, or (b) all the Notes not theretofore canceled or delivered to the Trustee for cancellation have become due and payable, and the Issuer deposits with the Trustee in trust or delivers to the Holders amounts in U.S. Legal Tender or U.S. Government Obligations, or, where required, ADSs or any combination thereof sufficient (calculated as set forth under the terms of this Indenture with respect to such payment) to pay at maturity, on any Tax Redemption Date, Change of Control Purchase Date, upon conversion or otherwise all of the Notes (other than any Notes which have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and Interest, if any, due or to become due to such date and to satisfy any related obligation to deliver ADS, and if the Issuer also pays, or causes to be paid, all other sums payable hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as to (i) rights of registration of transfer, substitution, replacement and exchange and conversion of Notes, (ii) rights hereunder of Holders to receive payments of principal of and Interest, if any, on the Notes, (iii) the obligations under Section 2.03  and  Section 8.05  hereof and (iv) the rights, obligations and immunities of the Trustee hereunder), and the Trustee, on demand of the Issuer accompanied by an Officer’s Certificate and an Opinion of Counsel as required by  Section 10.03 and at the Issuer’s cost and expense, shall execute proper instruments acknowledging satisfaction of and discharging this Indenture;  provided ,  however , the Issuer hereby agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred by the Trustee and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Notes.
SECTION 8.02. Deposited Monies to be Held in Trust by Trustee. Subject to Section 8.04, all monies and securities deposited with the Trustee pursuant to  Section 8.01  shall be held in trust and applied by it to the payment, notwithstanding the provisions of Article XI, either directly or through the Paying Agent, to the Holders of the particular Notes for the payment or conversion of which such monies or securities have been deposited with the Trustee, of all sums due and to become due thereon for principal and Interest, if any. The Issuer shall pay and indemnify the Trustee against any Tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to  Section 8.01  or the principal and Interest received in respect thereof other than any such Tax, fee or other charge which by law is for the account of the Holders of the Notes.
SECTION 8.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of this Indenture, all monies then held by any Paying Agent (other than the Trustee) shall, upon the Issuer’s demand, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such monies.
 
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SECTION 8.04. Return of Unclaimed Monies. Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of, or Interest, if any, on Notes and not applied but remaining unclaimed by the Holders thereof for two years after the date upon which the principal of, or Interest on such Notes, as the case may be, have become due and payable, shall be repaid to the Issuer by the Trustee on demand;  provided ,  however , that the Issuer, or the Trustee at the request of the Issuer, shall have first caused notice of such payment to the Issuer to be mailed to each Holder of a Note entitled thereto no less than 30 days prior to such payment and all liability of the Trustee shall thereupon cease with respect to such monies; and the Holder of any of such Notes shall thereafter look only to the Issuer for any payment which such Holder may be entitled to collect unless an applicable abandoned property law designates another Person.
SECTION 8.05. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 8.02  by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to  Section 8.01  until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with  Section 8.02 ;  provided ,  however , that if the Issuer makes any payment of Interest on or principal of any Note following the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders thereof to receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without the Consent of Holders. The Issuer, the Mexican Trustee and the Trustee may amend this Indenture or the Notes without notice to or the consent of any Holder to:
(a) cure any ambiguity, omission, defect or inconsistency in this Indenture or the Notes;
(b) provide for the assumption by a surviving or successor corporation of the obligations of the Issuer under the Indenture or evidence and provide for the acceptance of appointment of a successor Trustee pursuant to this Indenture;
(c) provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Internal Revenue Code);
(d) add guarantees with respect to the Notes;
(e) secure the Notes;
 
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(f) add to the Issuer’s covenants for the benefit of the Holders or surrender any right or power conferred upon the Issuer;
(g) make any change that does not materially adversely affect the rights of any Holder;
(h) comply with the provisions of any clearing agency, clearing corporation or clearing system, including DTC, the Trustee or the Registrar with respect to the provisions of this Indenture or the Notes relating to transfers and exchanges of Notes; and
(i) conform the terms of this Indenture or the Notes to the description thereof in the Offering Memorandum.
SECTION 9.02. With the Consent of Holders. Subject to Section 6.07, the Issuer, the Mexican Trustee and the Trustee may amend this Indenture or the Notes with the written consent of the Holders of at least a majority in aggregate principal amount of the then outstanding Notes (including without limitation consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes).
Subject to Section 6.04 and Section 6.07, the Holders of a majority in principal amount of the then-outstanding Notes (including without limitation by consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes) may waive compliance in a particular instance by the Issuer with any provision of this Indenture or the Notes.
However, without the consent of each Holder of an outstanding Note affected, an amendment or waiver under this Section 9.02  may not, with respect to any Notes held by a non-consenting Holder:
(a) reduce the amount of Notes whose Holders must consent to an amendment or waiver;
(b) reduce the rate of or change or have the effect of changing the time for payment of Interest on any Notes;
(c) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;
(d) make any Notes payable in money other than that stated in the Notes;
(e) make any change in provisions of this Indenture entitling each Holder to receive payment of principal and Interest on such Holder’s Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default;
(f) reduce the Change of Control Payment of any Note or amend or modify in any manner adverse to the Holders, the Issuer’s obligation to make payment of such Change of Control Payment, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise;
 
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(g) make any change in the provisions of the Indenture described under Section 4.12 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes;
(h) make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes; and
(i) make any change that impairs or adversely affects the conversion rights of any Notes.
To secure a consent or waiver of the Holders under this Section 9.02, it shall not be necessary for such Holders to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Article IX becomes effective, the Issuer shall mail to the Holders a notice briefly describing the amendment or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment or waiver under this Article IX.
SECTION 9.03. [Reserved].
SECTION 9.04. Revocation and Effect of Consents. Until an amendment or waiver becomes effective, a consent to it by a Holder is a continuing consent by such Holder and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent is not made on any Note. However, any such Holder or subsequent Holder may revoke the consent as to his or her Note or portion of a Note if the Trustee receives the notice of revocation before the date on which the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Notes have consented to the amendment or waiver.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment or waiver. If a record date is fixed, then notwithstanding the provisions of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to consent to such amendment or waiver or to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. No consent shall be valid or effective for more than 90 days after such record date unless consents from Holders of the principal amount of Notes required hereunder for such amendment or waiver to be effective shall have also been given and not revoked within such 90-day period.
After an amendment or waiver becomes effective it shall bind every Holder, unless it is of the type described in clauses (a) through (i) of  Section 9.02 . In such cases, the amendment or waiver shall bind each Holder who has consented to it and every subsequent Holder of a Note or portion of a Note that evidences the same debt as the consenting Holder’s Note.
 
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SECTION 9.05. Notation on or Exchange of Notes. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article IX may, and shall if required by the Trustee, bear a notation in the form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Issuer and the Trustee, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Trustee in exchange for outstanding Notes without charge to the Holders of the Notes, except as specified in  Section 2.07 .
SECTION 9.06. Trustee Protected. The Trustee and the Mexican Trustee shall sign any amendment or supplemental indenture authorized pursuant to this Article IX if such amendment or supplemental indenture does not adversely affect the rights, duties, liabilities or immunities of the Trustee or the Mexican Trustee. If it does, the Trustee or the Mexican Trustee, as applicable, may, but need not, sign it. In signing such amendment or supplemental indenture, the Trustee and the Mexican Trustee shall be entitled to receive, and shall be fully protected in relying upon, (in addition to the documents required by Section 10.04 ) an Officer’s Certificate and an Opinion of Counsel as conclusive evidence, and each stating that such amendment or supplemental indenture is authorized or permitted by this Indenture, that it is not inconsistent herewith, and that it will be valid and binding upon the Issuer in accordance with its terms.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Issuer’s Representations. Pursuant to Articles 210, 210 Bis, 213 and other applicable Articles of the LGTOC, the Issuer hereby represents that:
(a) the offering and sale of the Notes, as well as the execution of this Indenture and any other documents relating to the offering and sale of the Notes, were approved by the shareholders of the Issuer at a extraordinary shareholders meeting of the Issuer held on February 24, 2011;
(b) as provided in paragraph I(b) of Article 213 of the LGTOC, the documentation and information included in the Offering Memorandum, and used as a basis for the issuance of the Notes, have been prepared based on the audited consolidated financial statements of the Issuer corresponding to the period ended as of December 31, 2010, certified by Mr. Celin Zorilla Rizo, certified public accountant (the “ Financial Statements ”). A copy of the Financial Statements is attached as Exhibit G hereto;
(c) for purposes of paragraph II (only in connection with paragraph III of Article 210 of the LGTOC) and paragraph V(a) of Article 213 of the LGTOC, based on the Financial Statements, as of December 31, 2010, the (i) total stockholders’ equity ( capital contable ) of the Issuer was Ps.213,700 million, (ii) the Issuer’s paid-in capital stock was Ps.108,722 million, (iii) the amount of the total assets of the Issuer was Ps.515,097 million, (iv) the amount of the total liabilities of the Issuer was Ps.301,397 million and (v) the amount of the net total assets of the Issuer (the “ Net Total Assets ”) was Ps.213,700 million.
 
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(d) at the extraordinary shareholders meeting of the Issuer held on February 24, 2011, the Issuer’s shareholders authorized any two members of the Board of Directors to execute the Notes;
(e) the Notes will not be secured by any collateral;
(f) Exhibit H attached hereto includes a summary of the terms of the offering and sale of the Notes, including the information set forth in Article 213 of the LGTOC; and
(g) the proceeds of the offering of the Notes shall be used to pay the cost of the capped call transactions described in the Offering Memorandum and to repay indebtedness, including indebtedness under the Financing Agreement and  Certificados Bursátiles .
SECTION 10.02. Notices. Any notice or communication among the Issuer, the Mexican Trustee and the Trustee to any of the others is duly given if in writing and delivered in person or mailed by first-class mail, with postage prepaid (registered or certified, return receipt requested), or sent by facsimile or overnight air couriers guaranteeing next day delivery, to the other’s address as stated in  Section 10.09 . The Issuer, the Mexican Trustee or the Trustee by notice to each of the others may designate additional or different addresses for subsequent notices or communications. The Trustee and the Mexican Trustee may rely upon and comply with instructions or directions sent via unsecured facsimile or email transmission and the Trustee and the Mexican Trustee shall not be liable for any loss, liability or expense of any kind incurred by the Issuer or the Holders due to the Trustee’s or the Mexican Trustee’s reliance upon and compliance with instructions or directions given by unsecured facsimile or email transmission, provided, however, that such losses have not arisen from the negligence or willful misconduct of the Trustee or the Mexican Trustee, it being understood that the failure of the Trustee or the Mexican Trustee to verify or confirm that the person providing the instructions or directions, is, in fact, an authorized person does not constitute negligence or willful misconduct.
All notices and communications (other than those sent to Holders) shall be deemed to have been duly given at the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, if mailed; when transmission is confirmed, if transmitted by facsimile; and the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next day delivery. Notwithstanding the foregoing, (i) all notices to the Trustee shall be effective only upon receipt by a Trust Officer of the Trustee and (ii) all notices to the Mexican Trustee shall be effective only upon receipt by a trust officer of the Mexican Trustee.
Any notice or communication to a Holder shall be mailed by first-class mail, with postage prepaid, to his or her address shown on the Register kept by the Registrar and shall be deemed to have been given on the date of such mailing. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
 
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If the Issuer sends a notice or communication to Holders, it shall send a copy to the Trustee and each Agent at the same time. Any notice required to be given by the Issuer may be given by the Trustee on the Issuer’s behalf and at the expense of Issuer.
All notices or communications shall be in writing.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods, provided, however, that, the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Issuer agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee:
(A) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in  Section 10.04 ) stating that, in the opinion of such person, all conditions precedent and covenants, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(B) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee (which shall include the statements set forth in  Section 10.04 ) stating that, in the opinion of such counsel, all such conditions precedent and covenants have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i) a statement that the person making such certificate or opinion has read such covenant or condition;
(ii) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
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(iii) a statement that, in the opinion of such person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Any Officer’s Certificate may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such Officer knows that the opinion with respect to the matters upon which his or her certificate may be based as aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon certificates, statements or opinions of, or representations by, an Officer or Officers of the Issuer, or other Persons or firms deemed appropriate by such counsel, unless such counsel knows that the certificates, statements or opinions or representations with respect to the matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officer’s Certificate, statement or Opinion of Counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representation by an accountant (who may be an employee of the Issuer), or firm of accountants, unless such Officer or counsel, as the case may be, knows that the certificate or opinion or representation with respect to the accounting matters upon which his or her certificate, statement or opinion may be based as aforesaid is erroneous.
SECTION 10.05. Rules by Trustee and Agents. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Registrar or Paying Agent may make reasonable rules and set reasonable requirements for its functions.
SECTION 10.06. Business Days. A “Business Day” is any day that is not a Saturday, Sunday or other day on which commercial banks in New York City or Mexico City are authorized or required by law or other governmental action to remain closed. If any Interest Payment Date or other payment date is not a Business Day at a place of payment, payment may be made at that place on the next succeeding day that is a Business Day, and no Interest or other amount shall accrue as a result of any such postponement.
SECTION 10.07. No Recourse Against Others. No director, officer, employee or shareholder, as such, of the Issuer from time to time shall have any liability for any obligations of the Issuer under the Notes or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. This waiver and release are part of the consideration for the Notes. Each of such directors, officers, employees and shareholders is a third party beneficiary of this  Section 10.07 .
SECTION 10.08. Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
 
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SECTION 10.09. Other Provisions. The Issuer initially appoints the Trustee as Paying Agent, Registrar, Conversion Agent and authenticating agent.
The Issuer’s address is:
CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4415
The Trustee’s address is:
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Fax: 212-815-5390 or 212-815-5366
The Mexican Trustee’s address is:
The Bank of New York Mellon, S.A., Institución de Banca Múltiple
c/o The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Fax: 212-815-5390 or 212-815-5366
Banamex’s address is:
Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex
Calzada del Valle No. 350 Oriente, 1º Piso
Colonia del Valle
66220 San Pedro Garza García, Nuevo León
México
Phone: +52 81 1226 1984
Fax: +52 81 1226 2097
Attention: Nelly Wing
E mail: nwing@banamex.com
SECTION 10.10. Governing Law. (a) THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO AND HOLDERS OF NOTES BY ACCEPTING A BENEFICIAL INTEREST IN THE NOTES EACH HEREBY WAIVE ANY
 
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RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
(i) agrees that any suit, action or proceeding against it arising out of or relating to this Indenture or the Notes, as the case may be, may be instituted in any U.S. Federal or State court located in the State of New York, County of New York and in the courts of its own corporate domicile, in respect of actions brought against the relevant party as a defendant,
(ii) waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,
(iii) irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding and waives the right to challenge such submission in any other jurisdiction that it may be entitled by reason of its present or future domicile or other reason,
(iv) agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and
(v) agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.
(c) The Issuer has appointed Corporate Creations Network Inc., 1040 Avenue of the Americas # 2400, New York, NY 10018 (U.S.A.) as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any U.S. Federal or State court located in the State of New York, County of New York. The Issuer hereby represents and warrants that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer agrees to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Issuer agrees that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer of a successor agent in The City of New York, New York as authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer.
 
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(d) To the extent that the Issuer has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under this Indenture or the Notes.
(e) Nothing in this Section 10.10 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
SECTION 10.11. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Issuer or a Subsidiary of the Issuer. Any such other indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.12. Successors. All agreements of the Issuer in this Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Indenture shall bind its successors.
SECTION 10.13. Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 10.14. Table of Contents, Headings, etc. The Table of Contents, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 10.15. Currency Indemnity. (a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer under or in connection with the Notes or this Indenture, including damages. To the greatest extent permitted under applicable law, any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer or any Subsidiary of the Issuer or otherwise) by any Holder in respect of any sum expressed to be due to it from the Issuer shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). To the greatest extent permitted under applicable law, if that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer shall indemnify and hold harmless the recipient against any loss or cost sustained by it in making any such purchase to the greatest extent permitted under applicable law. For the purposes of this  Section 10.15 , it will be sufficient for the Holder to certify that it would have suffered a loss had an actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
 
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(b) The indemnities of the Issuer contained in this Section 10.15, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuer under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer; (iii) shall apply irrespective of any waiver granted by any Holder or the Trustee from time to time; (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order; and (v) may not be enforceable under Mexican law.
SECTION 10.16. Adjustments for Currency Exchange Rates. In the event that any amount used in any calculation in this Indenture is expressed in Pesos, such amount shall, for purposes of such calculation, be deemed to be converted into U.S. Legal Tender at the spot rate of exchange in The City of New York at which the Trustee on the date of determination is able to purchase U.S. Legal Tender with such amount. The “spot rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of, or conversion into, U.S. Legal Tender.
SECTION 10.17. Change in ADSs or CPOs. (a) If the Issuer’s ADSs issued under a depositary receipt program sponsored by the Issuer cease to represent the Issuer’s CPOs, all references in this Indenture to the Issuer’s ADSs will be deemed to have been replaced by a reference to:
(i) the number of CPOs of the Issuer corresponding to the Issuer’s ADSs on the last day on which the Issuer’s CPOs were represented by ADSs issued under a depositary receipt program sponsored by the Issuer; and
(ii) as adjusted pursuant to the adjustment provisions below, any other property the Issuer’s ADSs represented as if such other property had been distributed to holders of the Issuer’s ADSs on that day.
(b) If the Issuer’s Ordinary Shares cease to be the securities underlying such CPOs issued under a depositary receipt program sponsored by the Issuer, all references in this Indenture to the Issuer’s CPOs will be deemed to have been replaced by a reference to:
(i) the number of Ordinary Shares of the Issuer corresponding to the Issuer’s CPOs on the last day on which the Issuer’s Ordinary Shares constituted the securities underlying CPOs issued under a depositary receipt program sponsored by the Issuer; and
(ii) as adjusted pursuant to the adjustment provisions below, any other property the Issuer’s CPOs represented as if such other property had been distributed to holders of the Issuer’s CPOs on that day.
SECTION 10.18. USA PATRIOT ACT. The parties hereto acknowledge that, in accordance with Section 326 of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA Patriot Act ”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Indenture agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA Patriot Act.
 
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ARTICLE XI
SUBORDINATION
SECTION 11.01. Notes Subordinated to Senior Indebtedness and Equal in Right of Payment to Unsecured Subordinated Indebtedness . The Issuer covenants and agrees, and each Holder by his acceptance thereof likewise covenants and agrees, that all Notes are subject to the provisions of this Article XI; and each Person holding any Note, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions and acknowledges that such provisions are for the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Each Holder authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate, in the sole discretion of the Trustee, to acknowledge or effectuate the subordination between the Holders and the holders of Senior Indebtedness as provided in this Article XI and appoints the Trustee as such Holder’s attorney-in-fact for any and all such purposes.
The payment of the principal of, premium, if any, and Interest on and any other payment due pursuant to this Indenture or any Notes issued hereunder (including, without limitation, the payment or deposit of the Change of Control Payment pursuant to Article III) or upon conversion, if applicable, shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the Issue Date or thereafter created, incurred, assumed or guaranteed.
Each Holder by accepting a Note acknowledges and agrees that the subordination provision set forth in this Article XI are, and are intended to be, an inducement and consideration to each holder of any Senior Indebtedness of the Issuer, whether such Senior Indebtedness was created before or after the issuance of the Notes, to acquire and continue to hold, or to continue to hold, such Senior Indebtedness, and such holder of Senior Indebtedness shall be deemed conclusively to have relied upon such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness, and such holder is made an obligee hereunder and may enforce directly such subordination provisions.
The Issuer agrees, and each Holder by accepting a Note acknowledges and agrees, that the Indebtedness evidenced by the Note is equal in right of payment to Issuer’s current unsecured subordinated Indebtedness, which includes $715,000,000 of Issuer’s 4.875% Convertible Subordinated Notes due 2015 issued on March 30, 2010, and to any future unsecured subordinated Indebtedness.
SECTION 11.02. Notes Subordinated to Prior Payment of All Senior Indebtedness On Dissolution, Liquidation, Reorganization, etc., of the Issuer . Upon any payment or distribution of the assets of the Issuer of any kind or character, whether in cash, property or securities
 
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(including any collateral at any time securing the Notes, other than money or U.S. Government Obligations deposited in trust as described in Section 11.07), to creditors upon any dissolution, winding-up, total or partial liquidation,  concurso mercantil , quiebra  or reorganization of the Issuer (whether voluntary or involuntary, or in bankruptcy, insolvency, reorganization, liquidation, or receivership proceedings, or upon an assignment for the benefit of creditors, or any marshalling of the assets of the Issuer, or upon any similar proceedings), then in such event:
(a) all Senior Indebtedness (including principal thereof and interest thereon) shall first be paid in full before any Payment of the Notes (as defined in  Section 11.05 ) is made;
(b) any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities (including any collateral at any time securing the Notes, other than money or U.S. Government Obligations deposited in trust as described in  Section 11.07 ), to which the Holders or the Trustee on behalf of the Holders would be entitled except for the provisions of this Article XI, including any such payment or distribution which may be payable or deliverable by reason of the payment of another debt of the Issuer being subordinated to the payment of the Notes, shall be paid or delivered by any debtor, custodian or other person making such payment or distribution, directly to the holders of the Senior Indebtedness or their Representative or Representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section 11.02, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, shall be received by the Trustee or the Holders before all Senior Indebtedness is paid in full, such payment or distribution (subject to the provisions of  Section 11.06  and Section 11.07 ) shall be held in trust for the benefit of, and shall be immediately paid or delivered by the Trustee or such Holders, as the case may be, to the holders of Senior Indebtedness remaining unpaid, or their Representative or Representatives, ratably according to the aggregate amounts remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full after giving effect to any concurrent payment or distribution, or provision therefor, to or for the holders of such Senior Indebtedness.
The Issuer shall give prompt notice to the Trustee of any dissolution, winding-up, liquidation, concurso mercantil, quiebra or reorganization of the Issuer.
Upon any prepayment, payment or distribution of assets of the Issuer referred to in this Article XI, the Trustee, subject to the provisions of  Section 7.01  and  Section 7.02 , and the Holders shall be entitled to conclusively rely upon any order or decree by any court of competent jurisdiction in which such dissolution, winding-up, liquidation or reorganization proceeding is pending, or a certificate of the liquidating trustee or agent or other person making any
 
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distribution to the Trustee or to the Holders, for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other Indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XI;  provided  that the foregoing shall apply only if such court, trustee, liquidating trustee or other person has been fully apprised of the provisions of this Article XI.
SECTION 11.03. Holders to be Subrogated to Right of Holders of Senior Indebtedness. Subject to the prior payment in full of all Senior Indebtedness, the Holders shall be subrogated (equally and ratably with the holders of any Indebtedness of the Issuer which by its express terms is subordinated to Indebtedness of the Issuer to substantially the same extent as the Notes are subordinated and is entitled to like rights of subrogation) to the rights of the holders of Senior Indebtedness to receive payments or distributions of assets of the Issuer applicable to the Senior Indebtedness until the principal of and Interest on the Notes shall be paid in full, and for purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness of assets, whether in cash, property or securities, distributable to the holders of Senior Indebtedness under the provisions hereof to which the Holders would be entitled except for the provisions of this Article XI, and no payment pursuant to the provisions of this Article XI to the holders of Senior Indebtedness by the Holders shall, as among the Issuer, its creditors other than the holders of Senior Indebtedness, and the Holders, be deemed to be a payment by the Issuer to or on account of Senior Indebtedness, it being understood that the provisions of this Article XI are, and are intended, solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Indebtedness, on the other hand.
SECTION 11.04. Obligations of the Issuer Unconditional. Nothing contained in this Article XI or elsewhere in this Indenture or in any Note is intended to or shall impair the obligation of the Issuer, which is absolute and unconditional, to pay to the Holders the principal of and Interest on the Notes, as and when the same shall become due and payable in accordance with the terms of the Notes, or to affect the relative rights of the Holders and other creditors of the Issuer other than the holders of Senior Indebtedness, nor shall anything herein or therein prevent the Trustee or any Holder from exercising all remedies otherwise permitted by applicable law upon the happening of an Event of Default under this Indenture, subject to the provisions of Article VI, and the rights, if any, under this Article XI of the holders of Senior Indebtedness in respect of assets, whether in cash, property or securities, of the Issuer received upon the exercise of any such remedy.
SECTION 11.05. Issuer Not to Make Payment with Respect to Notes in Certain Circumstances. (a) Subject to Section 11.14 , upon the occurrence of any default in the payment of principal of (or premium, if any) or interest on Senior Indebtedness (a “ Payment Default ”), unless and until the amount of Senior Indebtedness affected by such Payment Default then due shall have been paid in full, or such Payment Default shall have been cured or waived or shall have ceased to exist, the Issuer shall not pay principal of, premium, if any, or Interest on the Notes or any other amount due pursuant to this Indenture or any Notes or make any deposit pursuant to Article III or  Section 8.01  and shall not repurchase, redeem or otherwise retire any Notes (collectively, “ Payment of the Notes ”).
 
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(b) Unless Section 11.02 shall be applicable, upon (1) the occurrence of a default on Designated Senior Indebtedness (other than a Payment Default) that occurs and is continuing that permits the holders of such Designated Senior Indebtedness (or their Representative or Representatives) to accelerate its maturity and (2) receipt by the Issuer and the Trustee from the holders of such Designated Senior Indebtedness or their respective agents or Representatives of written notice (a “ Payment Blockage Notice ”) of such occurrence and the imposition of a Payment Blockage Period hereunder, then the Issuer shall not make any Payment of the Notes for a period (the “ Payment Blockage Period ”) commencing on the earlier of the date of receipt by the Issuer or the Trustee of such notice and ending on the earlier of (subject to any blockage of payments that may then be in effect under this  Section 11.05 ) (x) the date 179 days after such date, (y) the date such default shall have been cured or waived in writing or shall have ceased to exist or such Senior Indebtedness shall have been discharged, or (z) the date such Payment Blockage Period shall have been terminated by written notice to the Issuer or the Trustee from such holders of such Designated Senior Indebtedness, or their respective agents or Representatives, after which, in case of clause (x), (y) or (z), as the case may be, the Issuer shall resume making any and all required payments (unless such Designated Senior Indebtedness has been accelerated). Notwithstanding any other provision of this Indenture, only one Payment Blockage Period may be commenced within any consecutive 365-day period, and no event of default with respect to any Designated Senior Indebtedness that existed or was continuing on the date of the commencement of any Payment Blockage Period with respect to such Designated Senior Indebtedness shall be, or can be made, the basis for the commencement of a second Payment Blockage Period whether or not within a period of 365 consecutive days unless such event of default shall have been cured or waived for a period of not less than 90 consecutive days. In no event will a Payment Blockage Period extend beyond 179 days.
(c) In the event that, notwithstanding the provisions of this Section 11.05, any Payment of the Notes shall be made by or on behalf of the Issuer and received by the Trustee, any Holder or any Paying Agent (or, if the Issuer is acting as its own Paying Agent, money for any such payment shall be segregated and held in trust), which payment was prohibited by this  Section 11.05 , then, unless and until the amount of Senior Indebtedness then due, as to which a default shall have occurred, shall have been paid in full, or such default shall have been cured or waived, such payment (subject, in each case, to the provisions of Section 11.06  and  Section 11.07 ) shall be held in trust for the benefit of, and shall be immediately paid over to, the holders of Senior Indebtedness or their Representative or Representatives, ratably according to the aggregate amounts remaining unpaid on account of the principal of and interest on the Senior Indebtedness held or represented by each, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of Senior Indebtedness. The Issuer shall give prompt written notice to the Trustee of any default under any Senior Indebtedness or under any agreement pursuant to which Senior Indebtedness may have been issued.
SECTION 11.06. Notice to Trustee. (a) The Issuer shall give prompt written notice to the Trustee of any fact known to the Issuer which would prohibit the making of any payment to or by the Trustee in respect of the Notes, but failure to give such notice shall not affect the subordination provided in this Article XI of the Notes to Senior Indebtedness. Within 30 calendar days after the occurrence of any event which would constitute a Default or an Event of
 
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Default, the Issuer shall deliver notice to the Trustee of such events, their status and what action the Issuer is taking or proposes to take in respect thereof. Notwithstanding the provisions of this Article XI or any other provision of this Indenture, the Trustee shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee, unless and until a Trust Officer of the Trustee shall have received written notice thereof from the Issuer or from the holder or holders of Senior Indebtedness or from their Representative or Representatives; and, prior to the receipt of any such notice, the Trustee, subject to the provisions of  Section 7.01  and  Section 7.02 , shall be entitled to assume conclusively that no such facts exist.
(b) The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Indebtedness (or a Representative of such holder) to establish that such notice has been given by a holder of Senior Indebtedness or a Representative of any such holder. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Article XI, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of each Person under this Article XI, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
SECTION 11.07. Application by Trustee of Monies Deposited with It. Money or U.S. Government Obligations deposited in trust with the Trustee pursuant to  Section   8.01  and not in violation of this Article XI shall be for the sole benefit of Holders and shall thereafter not be subject to the subordination provisions of this Article XI. Otherwise, any deposit of monies by the Issuer with the Trustee or any Paying Agent (whether or not in trust) for the payment of the principal of or Interest on any Notes shall be subject to the provisions of  Sections 11.01 ,  11.02 ,  11.03  and  11.05 ; except that, if at least three Business Days prior to the date on which by the terms of this Indenture any such monies may become payable for any purpose (including, without limitation, the payment of either the principal of or Interest on any Note), a Trust Officer of the Trustee shall not have received with respect to such monies the notice provided for in  Section 11.06 , then the Trustee or any Paying Agent shall have full power and authority to receive such monies and to apply such monies to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it within three Business Days prior to or after such date. This Section 11.07  shall be construed solely for the benefit of the Trustee and the Paying Agent and shall not otherwise affect the rights that holders of Senior Indebtedness may have to recover any such payments from the Holders in accordance with the provisions of this Article XI.
SECTION 11.08. Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders of Senior Indebtedness. No right of any present or future holders of any Senior Indebtedness to enforce subordination, as herein provided, shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Issuer with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such
 
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holder may have or be otherwise charged with. The holders of any Senior Indebtedness may extend, renew, modify or amend the terms of such Senior Indebtedness or any security therefor and release, sell or exchange such security and otherwise deal freely with the Issuer, all without affecting the liabilities and obligations of the parties to this Indenture or the Holders. No amendment of this Article XI or any defined terms used herein or any other Sections referred to in this Article XI which adversely affects the rights hereunder of holders of Senior Indebtedness, shall be effective unless the holders of such Senior Indebtedness (required pursuant to the terms of such Senior Indebtedness to give such consent) have consented thereto.
SECTION 11.09. Trustee to Effectuate Subordination. Each Holder by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to acknowledge and effectuate the subordination provided in this Article XI and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 11.10. Right of Trustee to Hold Senior Indebtedness. The Trustee, in its individual capacity, shall be entitled to all of the rights set forth in this Article XI in respect of any Senior Indebtedness at any time held by it to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Nothing in this Article XI shall apply to claims of, or payments to, the Trustee under or pursuant to  Section 7.07 .
SECTION 11.11. Article XI Not to Prevent Events of Default. The failure to make a Payment of the Notes by reason of any provision in this Article XI shall not be construed as preventing the occurrence of an Event of Default under  Section 6.01 .
SECTION 11.12. No Fiduciary Duty Created to Holders of Senior Indebtedness. Notwithstanding any other provision in this Article XI, the Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness by virtue of the provisions of this Article XI or otherwise. With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants or obligations as are specifically set forth in this Article XI and no implied covenants or obligations with respect to holders of Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION 11.13. Article Applicable to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Issuer and be then acting hereunder, the term “Trustee” as used in this Article XI shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Article XI in addition to or in place of the Trustee;  provided, however , that  Section 11.06 ,  Section 11.10  and  Section 11.12  shall not apply to the Issuer if it acts as Paying Agent.
SECTION 11.14. Certain Conversion Deemed Payment. For the purposes of this Article XI only, (1) the issuance and delivery of Junior Securities upon conversion of Notes in accordance with Article XII shall not be deemed to constitute a payment or distribution on account of the principal of or premium or Interest on Notes or on account of the purchase, redemption, retirement or other acquisition of Notes and shall not be prohibited by  Section 11.02 , and (2) the payment, issuance or delivery of cash, property or securities (other than Junior
 
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Securities) upon conversion of a Note shall be deemed to constitute payment on account of principal of such Note. The term “ Junior Securities ” means (a) shares of any stock of any class, ordinary participation certificates ( certificados de participación ordinarios ) or other securities having stock of the Issuer as underlying securities or ADRs, of the Issuer and (b) securities of the Issuer which are subordinated in right of payment to all Senior Indebtedness which may be outstanding at the time of issuance or delivery of such securities to substantially the same extent as, or to a greater extent than, the Notes are so subordinated as provided in this Article XI. Nothing contained in this Article XI or elsewhere in this Indenture or in the Notes is intended to or shall impair, as among the Issuer, its creditors other than holders of Senior Indebtedness and the Holders of the Notes, the right, which is absolute and unconditional, of the Holder of any Note to convert such Note in accordance with Article XII.
SECTION 11.15. Contractual Subordination. This Article XI represents a bona fide agreement of contractual subordination pursuant to Section 510(b) of the Title 11, U.S. Code.
SECTION 11.16. Acceleration of Notes. If payment of the Notes is accelerated because of an Event of Default, the Issuer shall promptly notify holders of Senior Indebtedness (or their Representative or Representatives) of the acceleration.
ARTICLE XII
CONVERSION
SECTION 12.01. Right to Convert. Subject to and upon compliance with the provisions of this Indenture, each Holder shall have the right, at such Holder’s option, to convert at any time after June 30, 2011 and prior to the close of business on the fourth Business Day immediately preceding the Maturity Date,  provided, however , that a Holder may convert a Note or portion thereof subject to an election for repurchase only if such Holder withdraws such election in accordance with  Section 3.04(e)  to convert the principal amount of any Note held by such Holder, or any portion of such principal amount which is U.S.$1,000 or an integral multiple thereof, provided further that the portion not so converted is in a minimum principal amount of U.S.$100,000, into fully paid and non-assessable CPOs;  provided  that the Issuer’s obligation to deliver CPOs shall, except as otherwise provided in this Article XII, be satisfied by delivering a number of ADSs based on the Conversion Rate in effect at such time, by surrender of the Note to be so converted in whole or in part in the manner provided in  Section 12.02 . A Holder is not entitled to any rights of a holder of ADSs until such Holder has converted his or her Notes to ADSs, and only to the extent such Notes are deemed to have been converted to ADSs under this Article XII.
SECTION 12.02. Exercise of Conversion Privilege; Issuance of ADSs on Conversion; No Adjustment for Interest or Dividends . To exercise, in whole or in part, the conversion privilege with respect to any Note, the Holder of such Note shall surrender such Note, duly endorsed, at an office or agency maintained by the Issuer pursuant to  Section 4.04 , and shall give a duly signed written notice of conversion, in the form provided on the Notes or available from the Conversion Agent (or such other notice which is acceptable to the Issuer) to the Conversion Agent, that the Holder elects to convert such Note or such portion thereof specified in said notice and the Conversion Agent shall give notice to the Issuer (at the address provided in Section
 
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10.09 with a copy to Francisco J. Contreras Navarro (Fax: +1 52 81 8888 4519)) and Banco Nacional de México, S.A., Integrante del Grupo Financiero Banamex (“ Banamex ”) (at the address provided in  Section 10.09 ) of receipt of such notice. Such notice shall also state the name or names (with address or addresses) in which the certificate or certificates for ADSs which are issuable on such conversion shall be issued, and shall be accompanied by transfer Taxes, if required pursuant to Section 12.07 . Each such Note surrendered for conversion shall, unless the ADSs issuable on conversion are to be issued in the same name as the registration of such Note, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Issuer duly executed by, the Holder or his or her duly authorized attorney. The date on which the requirements set forth in this paragraph have been satisfied with respect to a Note (or portion thereof) will be the “ Conversion Date ” and a converting Holder will become the record holder of any ADSs upon such conversion as of such Conversion Date. To exercise, in whole or in part, the conversion privilege with respect to a beneficial interest in a Global Security, a holder of such a beneficial interest must comply with the Depositary’s procedures for converting a beneficial interest in a Global Security and pay any funds required by the sixth paragraph of this  Section 12.02  or by  Section 12.07 . Subject to the foregoing procedures, any Holder of a Definitive Security who wishes to exercise the conversion privilege with respect to such Definitive Security must (i) complete and manually sign the Conversion Notice on the back of the Note, or a facsimile of the Conversion Notice; (ii) deliver the Conversion Notice, which is irrevocable, and the Note to the Conversion Agent; (iii) if required by the Issuer or the Conversion Agent, furnish appropriate endorsements and transfer documents; (iv) pay all transfer or similar Taxes if required pursuant to  Section 12.07 ; and (v) if required under the terms of this Indenture, pay funds equal to the amount of Interest payable on the next Interest Payment Date.
On the third Business Day following the relevant Conversion Date, the Issuer shall issue and shall deliver or shall cause issuance and delivery (such delivery referred to herein as the “ Settlement ”) to such Holder at the office or agency maintained by the Issuer for such purpose pursuant to  Section 4.04 , a certificate or certificates for, or effect a book-entry transfer through the Depositary with respect to, the number of ADSs issuable upon the conversion of such Note or portion thereof in accordance with the provisions of this Article XII.
No Interest shall accrue on Notes between the Conversion Date and the Settlement date.
If any calculation required in order to determine the number of ADSs the Issuer must deliver in respect of a given conversion of Notes is based on data or other information that will not be available to the Issuer on the date the requirements set forth in the first paragraph of this  Section 12.02  have been satisfied, the Issuer will delay Settlement of that conversion until no later than the third Business Day after the relevant data or information becomes available. In case any Note of a denomination of an integral multiple greater than U.S.$1,000 is surrendered for partial conversion, and subject to  Section 2.02 , the Issuer shall execute, and the Trustee shall authenticate and deliver to the Holder of the Note so surrendered, without charge to him or her, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Note  provided  that the minimum principal amount of such new note is U.S.$100,000.
Each conversion shall be deemed to have been effected with respect to a Note (or portion thereof) on the Conversion Date, and the Person in whose name any certificate or certificates for
 
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ADSs are issuable upon such conversion shall be deemed to have become on said date the holder of record of the ADSs represented thereby. Any such surrender on any date when the Issuer’s stock transfer books are closed shall constitute the Person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date upon which such Note is surrendered.
If any Note or a portion thereof is surrendered for conversion after 5:00 p.m. New York City time on a Record Date but prior to 9:00 a.m. New York City time on the immediately following Interest Payment Date, Holders of such Notes at 5:00 p.m. New York City time on the regular Record Date will receive payment of the Interest payable on such Notes on the corresponding Interest Payment Date notwithstanding the conversion of such Notes at any time after the close of business on the Record Date. Any Note or portion thereof surrendered for conversion by a Holder during the period from 5:00 p.m. New York City time on the Record Date through 9:00 a.m. New York City time on the immediately following Interest Payment Date shall be accompanied by payment, in funds acceptable to the Issuer, of an amount equal to the Interest otherwise payable on such Interest Payment Date on the principal amount being converted;  provided, however , that no such payment need be made (1) if the Notes are surrendered for conversion after 5:00 p.m. New York City Time on the Record Date immediately preceding the Maturity Date, (2) if the Issuer has specified a Tax Redemption Date that is after a Record Date and on or prior to the corresponding Interest Payment Date, (3) if the Issuer has specified a Change of Control Purchase Date that is after a Record Date and on or prior to the corresponding Interest Payment Date or (4) to the extent of any overdue Interest, if any overdue Interest exists at the time of conversion with respect to such Note. An amount equal to such payment shall be paid by the Issuer on such Interest Payment Date to the Holder at the close of business on such Record Date;  provided ,  however , that if the Issuer defaults in the payment of Interest, if applicable, on such Interest Payment Date, such amount shall be paid to the Person who made such required payment. Except as provided in this  Section 12.02 , no payment of Interest shall be made and no adjustment shall be made for Interest accrued, if any, on any Note converted or for dividends on any shares issued upon the conversion of such Note as provided in this Article XII.
With respect to any Notes bearing a Restricted Securities Legend on the date of conversion, the ADSs distributed upon conversion will be issued in physical certificated form, will not be held in book-entry form through the facilities of the Depositary and shall be treated as “restricted securities,” and the Issuer will affix the applicable Restricted ADS Legend that is set forth in  Exhibit E  hereto upon such ADSs;  provided  that if any such ADSs are being immediately resold pursuant to Rule 144, such ADSs need not be issued with such legend in connection with such sale.
Upon conversion, a Holder will not be entitled to any additional cash payment for Interest unless such conversion occurs between a Record Date and the corresponding Interest Payment Date. Except in such case, by delivering the amount of cash and/or the number of ADSs issuable on conversion to the Trustee, the Issuer will be deemed to have satisfied its obligation to pay the principal amount of the Notes so converted and its obligation to pay Interest, attributable to the period from the most recent Interest Payment Date to, but not including the Conversion Date (which amount will be deemed paid in full rather than cancelled, extinguished or forfeited).
 
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SECTION 12.03. No Issuance of Fractional Shares. No fractional portions of ADSs shall be issued upon conversion of Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full ADSs which shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered for conversion. If any fractional portions of ADSs otherwise would be issuable upon the conversion of any Note or Notes, the Issuer will deliver a number of ADSs rounded up to the nearest whole number of ADSs.
SECTION 12.04. Conversion Rate. The Conversion Rate shall be as specified in the form of Note attached as Exhibit A hereto, subject to adjustment as provided in this Article XII.
Section 12.05. Conversion Rate Adjustments. (a) The applicable Conversion Rate shall be adjusted from time to time by the Issuer as follows, except that the Issuer will not make any adjustments to the Conversion Rate if Holders participate (as a result of holding Notes and at the same time as ADS holders participate) in any of the transactions described below as if such Holders held a number of ADSs equal to the applicable Conversion Rate, multiplied by the principal amount (expressed in thousands) of Notes held by such Holders without having to convert their Notes. A Holder will be deemed to have so participated if the transaction results in an issuance of securities or a distribution of other property that are held by the ADS depositary or the CPO trustee (to the extent required to be later distributed by the CPO trustee to the ADS depository for the benefit of such Holders of the Notes) at the time of conversion of such Notes into ADSs.
(i) If the Issuer issues solely Ordinary Shares as a dividend or any other distribution (including by recapitalization of retained earnings) on all or substantially all Ordinary Shares, or if the Issuer effects a share split or share combination of its Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	  	OS	  	 	 	
 	  	OS0	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following (x) the date fixed for the determination of holders of Ordinary Shares entitled to receive such dividend or distribution or (y) the date on which such split or combination becomes effective, as applicable (such date specified in clause (x) or (y), the “ Dividend Record Date ”);	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Dividend Record Date;	
 
OS0 =	  	 
the number of Ordinary Shares outstanding immediately prior to the open of business on the Dividend Record Date; and	
 
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OS =	  	the number of Ordinary Shares that would have been outstanding immediately prior to the open of business on the Dividend Record Date as adjusted to take into account such dividend, distribution, split or combination.	
If any dividend or distribution of the type described in this clause (i) is declared that results in an adjustment pursuant to this clause (i) but is not so paid or made, or the outstanding Ordinary Shares are not split or combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective (in the case of a dividend or distribution) as of the earliest of the date (A) the Issuer’s shareholders’ meeting or Board of Directors determines not to pay such dividend or distribution, (B) the non-payment of such dividend is publicly announced or (C) the dividend was to have been paid, or (in the case of a stock split or combination) the date on which such split or combination was to have been effective, to the Conversion Rate that would then be in effect if such dividend, distribution, share split or share combination had not been declared or announced.
(ii) If the Issuer distributes to all or substantially all holders of Ordinary Shares any rights, options, warrants or other securities entitling them for a period of not more than 45 calendar days from the record date for such distribution to subscribe for or purchase Ordinary Shares (or securities convertible into Ordinary Shares), at a price per Ordinary Share (or conversion price per Ordinary Share) less than the average of the Last Reported Sale Prices of the Ordinary Shares for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the declaration date for such distribution, the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	(OS0 + X)	  	 	 	
 	 	(OS0 + Y)	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the date fixed for the determination of shareholders entitled to receive such rights, options, warrants or other securities (such date, the “ Rights Distribution Record Date ”);	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following the Rights Distribution Record Date;	
 
OS0 =	  	 
the number of Ordinary Shares outstanding immediately prior to the open of business on the Rights Distribution Record Date;	
 
X =	  	 
the total number of Ordinary Shares issuable pursuant to such rights, options, warrants or other securities;	
 
and	  	 	
 
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Y =	  	the number of Ordinary Shares equal to the aggregate price payable to exercise such rights, options, warrants or other securities  divided by  the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the distribution of such rights, options, warrants or other securities.	
If such rights, options, warrants or other securities are not so issued, the Conversion Rate will remain the Conversion Rate that would then be in effect if a Rights Distribution Record Date for such distribution had not been fixed. In addition, to the extent that Ordinary Shares are not delivered after the expiration of such rights, options, warrants or other securities, the Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect had the adjustments made upon the issuance of such rights, options, warrants or other securities been made on the basis of delivery of only the number of Ordinary Shares actually delivered.
For purposes of this clause (ii), in determining whether any rights, options, warrants or other securities entitle the holders to subscribe for or purchase Ordinary Shares at less than the average of the Last Reported Sale Prices of Ordinary Shares for each Trading Day in the applicable 10 consecutive Trading Day Period, there shall be taken into account any consideration the Issuer receives for such rights, options, warrants or other securities and any amount payable on exercise thereof, with the value of such consideration if other than cash to be determined by the Issuer’s Board of Directors.
(iii) If the Issuer distributes shares of its Capital Stock, evidences of its Indebtedness, other assets or property or rights or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of Ordinary Shares, excluding
(A) dividends or distributions and rights, options, warrants and other securities described in clause (i) or (ii) above or clause (v) below;
(B) dividends or distributions paid exclusively in cash, including as described in clause (iv) below;
(C) dividends or distributions effected pursuant to a reclassification, merger, sale, conveyance or other transaction described in  Section 12.06 , where such dividend or distribution becomes Reference Property as described in  Section 12.06 ; and
(D) Spin-Offs to which the provisions set forth below in this clause (iii) shall apply;
then the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	SP0	  	 	 	
 	 	(SP0 - FMV)	  	 	 	
 
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where,	  	 	
 	 	
CR0 =	  	the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such distribution;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such record date;	
 
SP0 =	  	 
the average of the Last Reported Sale Prices of Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and	
 
FMV =	  	 
the fair market value (as determined by the Issuer’s Board of Directors or a committee thereof) of the shares of Capital Stock, evidences of Indebtedness, assets, property, rights or warrants distributed with respect to each outstanding Ordinary Share as of the open of business on the Ex-Dividend Date for such distribution;	
provided that if “FMV” as set forth above is equal to or greater than “SP0” as set forth above, in lieu of the foregoing adjustment, adequate provision will be made so that each Holder shall receive on the date on which the distributed property is distributed to holders of Ordinary Shares, for each U.S.$1,000 principal amount of Notes, the amount of distributed property such Holder would have received had such Holder owned a number of Ordinary Shares that it would have been entitled to receive based on the Conversion Rate on the record date for such distribution;  provided further  that if the Issuer’s Board of Directors determines “FMV” for purposes of the foregoing adjustment by reference to the trading market for any securities, it must in doing so consider the prices in such market over the same period used in computing the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
With respect to an adjustment pursuant to this clause (iii) where there has been a payment of a dividend or other distribution on the Ordinary Shares or shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit (a “ Spin-Off ”), the Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	(FMV + MP0)	  	 	 	
 	 	MP0	  	 	 	

where,	  	 	
 	 	
CR0 =	  	the applicable Conversion Rate in effect immediately prior to the opening of business on the Business Day immediately following the record date for the Spin-Off;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the opening of business on the Business Day immediately following such record date;	
 
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FMV =	  	the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of Ordinary Shares applicable to one Ordinary Share over the first 10 consecutive Trading Day period immediately following, and including, the Ex-Dividend Date of the Spin-Off (the “ Valuation Period ”); and	
 
MP0 =	  	 
the average of the Last Reported Sale Prices of the Ordinary Shares over the Valuation Period.	
The adjustment to the applicable Conversion Rate under the preceding paragraph of this clause (iii) will be made immediately after the open of business on the day after the last day of the Valuation Period, but will be given effect as of the open of business on the Business Day immediately following the record date for the Spin-Off. For purposes of determining the applicable Conversion Rate in respect of any conversion during the Valuation Period, references within the portion of this clause (iii) related to Spin-Offs to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and including, the Ex-Dividend Date of such Spin-Off to, but excluding, the Conversion Date.
If any distribution or spin-off described in this clause (iii) results in an adjustment to the Conversion Rate but such distribution or Spin-Off is not so made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such distribution or Spin-Off had not been declared.
(iv) If the Issuer makes or pays any cash dividend or any other cash distribution to all, or substantially all, holders of the outstanding Ordinary Shares, the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	SP0	  	 	 	
 	 	(SP0 - C)	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day immediately following the record date for such dividend or distribution;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day immediately following such record date;	
 
SP0 =	  	 
the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and	
 
C =	  	 
the amount in cash per share the Issuer distributes to holders of the Ordinary Shares.	
 
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If such dividend or distribution results in an adjustment to the Conversion Rate under the preceding paragraph and such dividend or distribution is not so paid or made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.
(v) If (A) the Issuer or any of its Subsidiaries makes a payment in respect of a tender offer or exchange offer for the Ordinary Shares, and (B) the cash and value of any other consideration included in the payment per Ordinary Share exceeds the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “ Expiration Date ”), the applicable Conversion Rate will be adjusted based on the following formula:

CR = CR0 ×    	 	AC + (SP x OS)	  	 	 	
 	 	(SP x OS0)	  	 	 	

where,	  	 	
 
CR0 =	  	 
the applicable Conversion Rate in effect immediately prior to the open of business on the Business Day next succeeding the Expiration Date;	
 
CR =	  	 
the applicable Conversion Rate in effect immediately after the open of business on the Business Day next succeeding the Expiration Date;	
 
AC =	  	 
the aggregate value of all cash and any other consideration (as determined by the Issuer’s Board of Directors or a committee thereof) paid or payable for Ordinary Shares purchased in such tender or exchange offer;	
 
OS0 =	  	 
the number of Ordinary Shares outstanding immediately prior to the time (the “Expiration Time”) such tender or exchange offer expires (prior to giving effect to such tender or exchange offer);	
 
OS =	  	 
the number of Ordinary Shares outstanding immediately after the Expiration Time (after giving effect to such tender or exchange offer); and	
 
SP =	  	 
the average of the Last Reported Sale Prices of the Ordinary Shares over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the Expiration Date.	
The adjustment to the Conversion Rate under this clause (v) will be made at the close of business on the tenth Trading Day immediately following, and including, the Trading Day next succeeding the Expiration Date, but will be given effect as of the open of business on the Business Day following the Expiration Date. For purposes of determining the applicable Conversion Rate in respect of any conversion during the 10 Trading Days commencing on, and including, the Trading Day next succeeding the Expiration Date of any tender or exchange offer, references to 10 Trading Days shall be deemed replaced with such lesser number of Trading Days as have elapsed from, and
 
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including, the Trading Day next succeeding the Expiration Date to, but excluding the Conversion Date. If the Issuer or one of its Subsidiaries is obligated to purchase the Ordinary Shares pursuant to any such tender or exchange offer but the Issuer or the relevant Subsidiary is permanently prevented by applicable law from effecting any such purchase or all or any portion of such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made or had only been made in respect of the purchases that had been effected.
(vi) Notwithstanding the foregoing, if any calculation required to be made in determining the adjustment to the Conversion Rate under this  Section 12.05(a)  cannot be made at such time because the facts required for such determination cannot be ascertained, the Issuer will make such determination as soon as practicable upon such information becoming determinate, and such adjustment will be made with retroactive effect to the first such date where the adjustment is required to be made.
(vii) To the extent that any event would give rise to an adjustment to be made under more than one of the clauses set forth above, or holders of the Issuer’s Ordinary Shares have the right to elect between distributions that would be covered by more than one of such clauses, the Issuer shall, in good faith, determine the adjustment to be made, including, if applicable, the order of the adjustments.
(b) The Issuer may at its option and in addition to the adjustments required by Section 12.05(a), increase the applicable Conversion Rate to avoid or diminish income Tax to holders of ADSs or rights to purchase ADSs in connection with a dividend or distribution of Ordinary Shares (or rights to acquire Ordinary Shares) or similar event. When a Holder is deemed to have received a distribution or dividend subject to Tax withholding and such deemed distribution or dividend does not give rise to any cash from which any applicable withholding Tax or backup withholding can be satisfied, if the Issuer pays withholding Taxes or applies backup withholding on behalf of a Holder, the Issuer may, at its option, set off such payments against subsequent deliveries of ADSs in respect of the Notes (or against payment on the ADSs).
(c) The Conversion Rate in effect on the Issue Date reflects that, as of the Issue Date, each ADS represents ten (10) CPOs of the Issuer and each CPO has two (2) series A shares and one (1) series B share of the Issuer’s Ordinary Shares as underlying securities. If in conjunction with one of the foregoing adjustment events or otherwise (i) the number of the Issuer’s CPOs represented by each ADS should change, (ii) the number of the Ordinary Shares underlying each CPO should change, (iii) one series of Ordinary Shares were to be disproportionately affected by such event as compared to the other series of Ordinary Shares, or (iv) any other change occurs in the composition of the assets underlying the CPOs or ADSs not contemplated or adequately addressed by the foregoing adjustments, and the applicable Conversion Rate (as so adjusted) does not produce a fair and equitable result, the Issuer will (and the Issuer will instruct the relevant ADS depositary or CPO trustee to) adopt such method as it may deem equitable and practicable vis-à-vis the holders for the purpose of effecting such adjustment to the Conversion Rate.
 
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(d) No adjustment in the applicable Conversion Rate shall be required unless such adjustment would require an increase or decrease of at least 1% in the Conversion Rate;  provided ,  however , that (i) any adjustments which by reason of this Section 12.05(d)  are not required to be made shall be carried forward and taken into account in any subsequent adjustment and (ii) the Issuer shall adjust the Conversion Rate at least annually to account for any such carried forward adjustments. All calculations under this Article XII shall be made by the Issuer and shall be made to the nearest ten thousandth of an ADS. Notwithstanding the foregoing, all adjustments not previously made shall have effect and be made upon conversion of any of the Notes.
Without limiting the foregoing, the Issuer shall not be required to adjust the Conversion Rate: (i) upon the issuance of any Ordinary Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on the Issuer’s securities and the investment of additional optional amounts in Ordinary Shares under any plan; (ii) upon the issuance of any Ordinary Shares, or options or rights to purchase Ordinary Shares, pursuant to any present or future employee, director or consultant benefit plan or program of, or assumed by, the Issuer or any of its Subsidiaries; (iii) upon the issuance of any Ordinary Shares pursuant to any option, warrant, right or exercisable, exchangeable or convertible security not described in the preceding clause and outstanding as of the Issue Date; (iv) for a change in the par value of the Ordinary Shares; or (iv) for Interest.
(e) Whenever the Conversion Rate is adjusted as provided in this Section 12.05, the Issuer shall promptly file with the Trustee and any Conversion Agent other than the Trustee an Officer’s Certificate setting forth the Conversion Rate after such adjustment, detailing the calculation of the Conversion Rate and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Issuer shall prepare and issue a press release containing the relevant information and notify the Trustee and the Trustee shall furnish a copy of such notice to the Holders. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.
(f) If any distribution or transaction described in Section 12.05(a) above has not yet resulted in an adjustment to the applicable Conversion Rate on the applicable Conversion Date, and the ADSs the Holder will receive on Settlement are not entitled to participate in the relevant distribution or transaction (because they were not held on a related record date), then promptly after such distribution or transaction has occurred, the Issuer will adjust the number of ADSs to be delivered to the Holder as the Issuer determines is appropriate to reflect the relevant distribution or transaction.
(g) For purposes of this Section 12.05, the number of Ordinary Shares at any time outstanding shall not include Ordinary Shares held in the treasury of the Issuer. The Issuer shall not pay any dividend or make any distribution on Ordinary Shares held in the treasury of the Issuer.
(h) Except as stated in this Section 12.05 and Section 12.12, the Issuer shall not be required to adjust the Conversion Rate. If, however, the application of the provisions of this  Section 12.05  would result in a decrease in the Conversion Rate, no adjustment to the
 
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Conversion Rate shall be made (other than as a result of a reverse share split or share combination).
(i) The Issuer shall not take any action pursuant to this Section 12.05 without complying, if applicable, with any applicable rules of any stock exchange on which the ADSs are listed at the relevant time.
SECTION 12.06. Effect of Reclassification, Consolidation, Merger, Combination, Sale, Lease or Transfer. In the event of any (i) reclassification or change of the outstanding Ordinary Shares (other than changes resulting from a subdivision or combination), (ii) consolidation, merger or combination involving the Issuer (other than a merger in which the Issuer is the surviving corporation and which does not result in any reclassification of, or change (other than changes resulting from a subdivision or combination) in, outstanding Ordinary Shares), (iii) sale, assignment, conveyance, transfer, lease or other disposition to another Person of the property and assets of the Issuer and its Subsidiaries as an entirety or substantially as an entirety, or (iv) statutory Ordinary Share exchange, in each case as a result of which holders of Ordinary Shares shall be entitled to receive stock, other securities, other property, assets or cash (or any combination thereof) with respect to or in exchange for such Ordinary Shares, then the Issuer or the successor or purchasing corporation, as the case may be, shall execute with the Trustee a supplemental indenture providing that Holders shall thereafter be entitled to convert Notes into the kind and amount of shares of stock and other securities, property, assets or cash (or any combination thereof, but subject to the provisions of Article XI) that a holder of a number of ADSs equal to the Conversion Rate immediately prior to such transaction would have owned or been entitled to receive upon such transaction (such property, the “ Reference Property ”), subject to the right of such Holder to receive the Make Whole Fundamental Change Premium upon compliance with the provisions of  Section 12.12 . In such a case, any increase in the Conversion Rate by the additional ADSs described in  Section 12.12  will not be payable in additional ADSs, but will represent a right to receive the aggregate amount of cash, securities or other property into which the additional Ordinary Shares would convert in the transaction from the surviving entity (or a direct or indirect parent thereof). In the event holders of Ordinary Shares have the opportunity to elect the form of consideration to be received in a reclassification, change, consolidation, merger, combination, sale, lease, assignment, conveyance or other transfer, the Reference Property into which the Notes will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of the Ordinary Shares that affirmatively make such an election, subject to any limitations to which the holders of Ordinary Shares are subject, including pro rata reductions applicable to any portion of the consideration payable. The Issuer shall notify the Conversion Agent and Holders of the weighted average and composition of such Reference Property promptly after determination thereof. The Issuer shall not become party to any such reclassification, change, consolidation, merger combination, sale, lease, assignment, conveyance or other transfer unless the terms of such transaction are consistent with the foregoing. Such supplemental indenture shall provide for adjustments that shall be as nearly equivalent as may be practicable to the adjustments provided for in this Article XII and shall contain such additional provisions to protect the interests of the Holders of the Notes as the Issuer’s Board of Directors shall reasonably consider necessary by reason of the foregoing.
 
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If the Notes become convertible into Reference Property, the Issuer shall notify the Trustee and issue a press release containing the relevant information. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section 12.06 shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales, leases, assignments, conveyances or other transfers. If this  Section 12.06  applies to any event or occurrence,  Section 12.05  shall not apply.
SECTION 12.07. Taxes, Duties, Fees and Costs of Issuance of ADSs or CPOs. If a Holder receives ADSs upon conversion as provided in this Indenture, the Issuer will pay any (a) documentary, stamp or similar issue or transfer Tax, duties or fees, and (b) fees of the depositary for the ADSs, in either case, in connection with the creation or delivery of such ADSs in satisfaction of such conversion, unless in either case, such payment is due because the Holder requests any ADSs to be issued in a name other than the Holder’s name, in which case the Holder will make such payment. In addition, the Issuer will pay any fees or costs in connection with the issuance of the Issuer’s CPOs representing Ordinary Shares as may be needed to allow the Issuer to deposit CPOs with the ADS depositary to create the ADSs deliverable upon conversion of Notes.
SECTION 12.08. Obligation to Cause Sufficient Ordinary Shares, CPOs and ADSs to be Issued for Purposes of Satisfying any Settlement of Conversions . The Issuer shall take all actions reasonably necessary to ensure that, upon every conversion of a Note, ADSs will be available for delivery, and will be delivered, upon such conversion promptly and as provided in this Article XII. The Issuer agrees that all Ordinary Shares underlying CPOs which may be issued and transferred to the CPO trustee upon conversion of Notes, and all CPOs which may be released upon conversion of Notes, shall be duly authorized and validly issued and that upon such issuance and delivery, the Holder of Notes will receive good and valid title to such ADSs, free and clear of all Liens, encumbrances and claims. In furtherance of the foregoing, the Issuer will comply with the following covenants:
(a) the Issuer shall not declare any dividend, subdivision or other distribution of the Issuer’s Ordinary Shares that would cause an anti-dilution adjustment under the Notes unless, (x) at such time, the Issuer holds, or the shareholders concurrently approve, a sufficient number of Available Treasury Shares and (y) as soon as practicable, but in no event later than 45 days following the actions described in subclause (x), a sufficient number of CPOs is authorized and available for release, in each case to satisfy the Issuer’s obligations in connection with a conversion of all Notes taking into account such adjustment; and
(b) within 45 days of any event that causes or with the passage of time would cause the maximum number of Ordinary Shares or CPOs, necessary to satisfy the Issuer’s obligations in connection with a conversion of all Notes following such event to exceed the number of Available Treasury Shares or available CPOs, the Issuer will cause a sufficient number of Available Treasury Shares to be authorized or CPOs to be authorized and available for release, in order to satisfy its obligations in connection with a conversion of all Notes following such event.
 
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For so long as the ADSs are listed on the New York Stock Exchange, the Issuer will take actions reasonably necessary for the listing on the New York Stock Exchange of all ADSs deliverable on conversion of Notes and will take all actions (including obtaining or giving approvals and consents and paying listing fees) reasonably necessary to ensure that each ADS delivered on conversion of a Note will, upon such delivery be so listed.
SECTION 12.09. Responsibility of Trustee and the Conversion Agent. The Trustee and any other Conversion Agent shall not at any time be under any duty of responsibility to any Holders to determine whether any facts exist which may require any adjustment of the Conversion Rate, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed, or herein or in any supplemental indenture provided to be employed, in making the same. The Trustee and any other Conversion Agent shall not be accountable with respect to the validity or value (or the kind or amount) of any ADSs, or of any securities or property, which may at any time be issued or delivered upon the conversion of any Note; and the Trustee makes no representations with respect thereto. The Trustee and any other Conversion Agent shall not be responsible for any failure of the Issuer to issue, transfer or deliver any ADSs or stock certificates or other securities or property or cash upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Issuer contained in this Article XII. Without limiting the generality of the foregoing, the Trustee and any other Conversion Agent shall not have any responsibility to determine the correctness of any provisions contained in any supplemental indenture entered into pursuant to  Section 12.06  relating either to the kind or amount of shares of stock or securities or property (including cash) receivable by Holders upon the conversion of its Notes after any event referred to in such  Section 12.06  or to any adjustment to be made with respect thereto, but, subject to the provisions of  Section 7.01 , may accept as conclusive evidence of the correctness of any such provisions, and shall be protected in relying upon, the Officer’s Certificate and Opinion of Counsel (which the Issuer shall be obligated to file with the Trustee prior to the execution of any such supplemental indenture) with respect thereto. Neither the Trustee nor any Conversion Agent shall have any duties to holders of the Issuer’s Ordinary Shares obtained by such holder under this Article XII, or any duty to monitor whether the Issuer issues (timely or otherwise) ADSs to Holders under this Article XII. In addition, without limiting the generality of the foregoing, the Trustee and any other Conversion Agent shall not have any responsibility to determine whether or to ensure that any ADS issued upon conversion of a Restricted Note shall bear any legend required by  Section 2.06(d)  or  Section 12.02  or the restricted or unrestricted CUSIP numbers contemplated by  Section 2.14 , or compliance with any similar provision relating to the ADSs, nor shall the Trustee or any Conversion Agent be responsible for ensuring compliance with the restrictions set forth in  Section 12.11 .
Except as otherwise provided herein, the Issuer or its agents shall be responsible for making all calculations and determinations called for under this Indenture and the Notes. These calculations include, but are not limited to, determinations of the last reported sale prices of ADSs, accrued Interest payable on the Notes and the applicable Conversion Rate. The Issuer or its agents shall make all these calculations and determinations in good faith and, absent manifest error, the Issuer’s calculations will be final and binding on holders of Notes. The Issuer or its agents shall provide a schedule of the Issuer’s calculations to each of the Trustee and the Conversion Agent, and each of the Trustee and Conversion Agent shall be entitled to rely conclusively upon the accuracy of the Issuer’s calculations without independent verification.
 
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Neither the Trustee nor the Conversion Agent shall have any duty to monitor the stock price. The Trustee will forward the Issuer’s calculations to any Holder upon the written request of that Holder.
Section 12.10. [Reserved].
SECTION 12.11. Restriction on ADSs Issuable Upon Conversion. (a) ADSs to be issued upon conversion of Notes that bear a Restricted Securities Legend at the time of such conversion shall be physically delivered in certificated form to the Holders converting such Notes and the certificate representing such ADSs shall bear the Restricted ADS Legend unless removed in accordance with  Section 12.11(c) .
(b) If (i) ADSs to be issued upon conversion of Notes that bear a Restricted Securities Legend at the time of such conversion are to be registered in a name other than that of the Holder of such Note or (ii) ADSs represented by a certificate bearing the Restricted ADS Legend are transferred subsequently by such Holder, then, unless (i) with respect to ADSs issued upon conversion of Restricted Notes, the Restricted Securities Legend on the Global Securities has been removed pursuant to Section 2.07(c)  or (ii) a shelf registration statement has become effective with respect to the resale of such ADSs and such ADSs are being transferred pursuant thereto, the Holder must deliver to the transfer agent for the ADSs a certificate in substantially the form of  Exhibit F  hereto as to compliance with the restrictions on transfer applicable to such ADSs and neither the transfer agent nor the registrar for the ADSs shall be required to register any transfer of such ADSs not so accompanied by a properly completed certificate.
(c) Except in connection with a transfer described in Section 12.11(b), if certificates representing ADSs are issued upon the registration of transfer, exchange or replacement of any other certificate representing ADSs bearing the Restricted ADS Legend, or if a request is made to remove such Restricted ADS Legend from certificates representing ADSs, the certificates so issued shall bear the Restricted ADS Legend, or the Restricted ADS Legend shall not be removed, as the case may be, unless there is delivered to the Issuer such satisfactory evidence, which, except in the case of a transfer made pursuant to Rule 144 under the Securities Act, may include an opinion of counsel pursuant to the laws in the State of New York, as may be reasonably required by the Issuer, that neither the legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144 under the Securities Act or that such ADSs are securities that are not “restricted” within the meaning of Rule 144 under the Securities Act. Upon provision to the Issuer of such reasonably satisfactory evidence, the Issuer shall cause the transfer agent for the ADSs to countersign and deliver certificates representing ADSs that do not bear the legend.
(d) Notwithstanding Section 12.11(c), any certificate representing ADSs issued upon conversion of Notes (or security issued in exchange or substitution therefor) as to which the restrictions on transfer shall have expired in accordance with their terms or that has been transferred, replaced or exchanged on or after the date that the Issuer, pursuant to  Section 2.07(c) , removes the Restricted Securities Legend from the Notes, or that has been transferred pursuant to a resale registration statement that has been declared effective under the Securities Act may, upon surrender of such stock certificate to the Registrar for exchange, be exchanged for
 
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a new certificate, of like tenor and aggregate number of ADSs, which shall not bear any Restricted ADS Legend.
Section 12.12. Make Whole Premium Upon a Fundamental Change. (a) If there shall have occurred a Fundamental Change, the Issuer shall pay a “ Make Whole Fundamental Change Premium ” to the Holders of the Notes who elect to convert their Notes in connection with such Fundamental Change. A conversion of Notes will be deemed for these purposes to be “in connection with” such Fundamental Change if the notice of conversion of the Notes is received by the Conversion Agent from, and including, the later of (1) 30 scheduled Trading Days before the anticipated effective date of such Fundamental Change and (2) the date on which the Issuer notifies the Holders of the anticipated “ Effective Date ” of a Fundamental Change (in accordance with the next sentence and the next succeeding sentence) and ending 30 Business Days following the actual Effective Date (but, in the case of a Change of Control, ending prior to the close of business on the Business Day immediately preceding the Change of Control Purchase Date). The Issuer will notify Holders and the Trustee of the anticipated Effective Date and issue a press release as soon as practicable after the Issuer first determines the anticipated Effective Date;  provided  that in no event will the Issuer be required to provide such notice to the Holders and the Trustee before the earlier of such time as the Issuer or its Affiliates (A) has publicly disclosed or acknowledged the circumstances giving rise to such anticipated Fundamental Change or (B) is required to publicly disclose under applicable law or the rules of any stock exchange on which the Issuer’s equity is then listed the circumstances giving rise to such anticipated Fundamental Change. The Issuer will use its commercially reasonable efforts to make such determination in time to deliver such notice no later than 30 days prior to such anticipated Effective Date.
In respect of Conversion Dates falling prior to the anticipated Effective Date, the settlement shall occur on the third Business Day following the relevant Conversion Date at the then applicable Conversion Rate without regard to the Make Whole Fundamental Change Premium and the Additional ADSs shall be delivered on the actual Effective Date in settlement of all such conversions. In respect of Conversion Dates falling on or after the actual Effective Date of the Fundamental Change, the settlement shall occur on the third Business Day following the relevant Conversion Date at the then applicable Conversion Rate (adjusted for the Make Whole Fundamental Change Premium).
Notwithstanding the foregoing, if any information required in order to calculate the conversion consideration deliverable will not be available as of the applicable settlement date, the Issuer will deliver the Additional ADSs resulting from that adjustment on the third Trading Day after the earliest Trading Day on which such calculation can be made.
The Make Whole Fundamental Change Premium will consist of an increase in the Conversion Rate for such Notes by a number of additional ADSs (the “ Additional ADSs ”) per U.S.$1,000 principal amount of Notes, as determined in accordance with the table below, based on the Effective Date and the price (the “ ADS Price ”) paid (or deemed paid) in the Fundamental Change per ADS (or, if applicable, the price per Ordinary Share or per CPO, transposed into a price per ADS). If the holders of ADSs receive only cash in a conversion in connection with a Fundamental Change described in clause (3) of the definition of Fundamental Change, the ADS Price shall be the cash amount paid per ADS. Otherwise, the ADS Price shall be the average of
 
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the Last Reported Sale Prices of the ADSs over the five Trading Day period ending on, and including, the Trading Day immediately preceding the Effective Date.
The ADS Prices set forth in the column headings of the table below shall be adjusted as of any date on which the Conversion Rate of the Notes is otherwise adjusted. The adjusted ADS Prices will equal the ADS Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the ADS Price adjustment and the denominator of which is the Conversion Rate as so adjusted. The number of additional ADSs set forth in the table below will be adjusted in the same manner as the Conversion Rate as set forth in  Section 12.05  hereof, other than as a result of an adjustment of the Conversion Rate by adding the Make Whole Fundamental Change Premium as described above.

ADS Price	 	
Effective Date	  	$8.68	 	  	$10.00	 	  	$12.50	 	  	$15.00	 	  	$17.50	 	  	$20.00	 	  	$25.00	 	  	$30.00	 	  	$35.00	 	  	$40.00	 	  	$50.00	 	
March 15, 2011	  	 	26.5863	  	  	 	22.2972	  	  	 	15.5061	  	  	 	11.4846	  	  	 	8.8818	  	  	 	7.0843	  	  	 	4.7979	  	  	 	3.4276	  	  	 	2.5283	  	  	 	1.9012	  	  	 	1.1034	  	
March 15, 2012	  	 	26.5863	  	  	 	22.2425	  	  	 	15.1238	  	  	 	11.0096	  	  	 	8.4052	  	  	 	6.6408	  	  	 	4.4439	  	  	 	3.1544	  	  	 	2.3186	  	  	 	1.7396	  	  	 	1.0059	  	
March 15, 2013	  	 	26.5863	  	  	 	21.9970	  	  	 	14.5099	  	  	 	10.3128	  	  	 	7.7326	  	  	 	6.0294	  	  	 	3.9707	  	  	 	2.7968	  	  	 	2.0483	  	  	 	1.5340	  	  	 	0.8843	  	
March 15, 2014	  	 	26.5863	  	  	 	21.6170	  	  	 	13.6547	  	  	 	9.3653	  	  	 	6.8333	  	  	 	5.2239	  	  	 	3.3622	  	  	 	2.3459	  	  	 	1.7127	  	  	 	1.2818	  	  	 	0.7379	  	
March 15, 2015	  	 	26.5863	  	  	 	20.7665	  	  	 	12.2837	  	  	 	7.9616	  	  	 	5.5607	  	  	 	4.1217	  	  	 	2.5687	  	  	 	1.7759	  	  	 	1.2969	  	  	 	0.9734	  	  	 	0.5617	  	
March 15, 2016	  	 	26.5863	  	  	 	19.2156	  	  	 	10.1309	  	  	 	5.9021	  	  	 	3.7925	  	  	 	5.6589	  	  	 	1.5833	  	  	 	1.0938	  	  	 	0.8078	  	  	 	0.6129	  	  	 	0.3565	  	
March 15, 2017	  	 	26.5863	  	  	 	16.3088	  	  	 	6.5195	  	  	 	2.8036	  	  	 	1.4054	  	  	 	0.8579	  	  	 	0.4936	  	  	 	0.3566	  	  	 	0.2713	  	  	 	0.2088	  	  	 	0.1217	  	
March 15, 2018	  	 	26.5863	  	  	 	11.3789	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	
If the exact ADS Prices and effective dates are not set forth in the table above and the ADS Price is:
(1) between two adjacent ADS Price amounts in the table or the Effective Date is between two adjacent Effective Dates in the table, the number of Additional ADSs will be determined by a straight-line interpolation between the number of Additional ADSs set forth for the higher and lower ADS Price amounts and the two dates based on a 365-day year, as applicable.
(2) greater than U.S.$50 per ADS (subject to adjustment in the same manner as the ADS Prices set forth in the column headings of the table above), no additional ADSs will be issued upon conversion.
(3) less than U.S.$8.68 per ADS (subject to adjustment in the same manner as the ADS Prices set forth in the column headings of the table above), no additional ADSs will be issued upon conversion.
 
83

Notwithstanding the foregoing paragraphs, in no event will the total number of ADSs issuable upon conversion of a Note exceed 115.2074 per U.S.$1,000 principal amount of Notes, subject to adjustment in the same manner as the Conversion Rate as set forth in  Section 12.05(a)  hereof.
(b) The Issuer, or the Trustee at the direction of the Issuer, shall mail a notice of a Fundamental Change (the “ Fundamental Change Notice ”) to the Holders as shown on the Register and issue a press release not more than 5 days after the applicable Effective Date at the addresses as shown on the Register, with a copy to the Trustee and the Paying Agent. The Fundamental Change Notice, which shall govern the terms of the settlement of any conversion (or purchase, if applicable) in connection with a Fundamental Change, shall include such disclosures as are required by law and shall state, to the extent applicable: (i) the events causing a Fundamental Change; (ii) the Effective Date; (iii) if applicable, the last date on which a Holder may exercise the Change of Control purchase right; (iv) the Change of Control Payment if applicable; (v) if applicable, the date of the purchase (the “ Change of Control Purchase Date ”), which is to be no earlier than the 20th and no later than the 35th calendar day following the Effective Date; (vi) the name and address of the Paying Agent and the Conversion Agent; (vii) if applicable, the applicable Conversion Rate and, if applicable, any adjustments to the applicable Conversion Rate; (viii) if applicable, that the Notes with respect to which a Change of Control repurchase election has been delivered by a Holder may be converted only if the Holder withdraws the Change of Control repurchase election in accordance with the terms of this Indenture; and (ix) if applicable, the procedures that Holders must follow to require the Issuer to purchase their Notes. Unless and until the Trustee shall receive a Fundamental Change Notice, the Trustee may assume without inquiry that no Fundamental Change has occurred.
[remainder of page intentionally left blank]
 
84

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed and attested, all as of the date first above written, signifying their agreements contained in this Indenture.

CEMEX, S.A.B. DE C.V.	
 	 	
By:	 	    /s/ Rodrigo Treviño Muguerza	
 	 	Name: Rodrigo Treviño Muguerza	
 	 	Title:   Attorney-in-Fact	
 	
THE BANK OF NEW YORK MELLON,	
 	 	as Trustee	
 	 	
By:	 	    /s/ Catherine F. Donohue	
 	 	Name: Catherine F. Donohue	
 	 	Title:   Vice President	
 	
THE BANK OF NEW YORK MELLON,	
 	 	S.A., INSTITUCIÓN DE BANCA	
 	 	MÚLTIPLE, as Mexican Trustee	
 	 	
By:	 	    /s/ Mónica Jiménez Labora Sarabia	
 	 	Name: Mónica Jiménez Labora Sarabia	
 	 	Title:   Delegada Fiduciaria	

EXHIBIT A – FORM OF NOTE

[Include the following legend for Global Securities only (the “Global Securities Legend”):]	  	[Incluir la siguiente leyenda si se trata únicamente de Títulos Globales (la “Leyenda para los Títulos Globales”):]	
 	 	
“THIS IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY CEMEX, S.A.B. DE C.V., (THE “ COMPANY ”) THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS CONVERTIBLE SUBORDINATED NOTE FOR ALL PURPOSES.	  	“EL PRESENTE CONSTITUYE UN TÍTULO GLOBAL EN TÉRMINOS DEL ACTA DE EMISIÓN QUE SE MENCIONA MÁS ADELANTE Y SE ENCUENTRA INSCRITO A NOMBRE DEL DEPOSITARIO O UNA PERSONA DESIGNADA POR EL MISMO, QUIEN PODRÁ SER TRATADO POR CEMEX, S.A.B. DE C.V., (LA “ COMPAÑÍA ”) EL FIDUCIARIO Y CUALQUIERA DE SUS AGENTES, COMO TITULAR Y TENEDOR DE ESTA OBLIGACIÓN CONVERTIBLE SUBORDINADA PARA TODOS LOS EFECTOS A QUE HAYA LUGAR.	
 	 	
[As part of the Global Securities Legend, include the following legend on all Global Securities for which DTC is to be the Depositary :]	  	[Como parte de la Leyenda para los Títulos Globales, incluir la siguiente leyenda en todos los Títulos Globales cuyo Depositario sea DTC :]	
 	 	
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“ DTC ”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.	  	A MENOS QUE ESTE TÍTULO SEA PRESENTADO POR UN REPRESENTANTE AUTORIZADO DE THE DEPOSITORY TRUST COMPANY, UNA SOCIEDAD CONSTITUIDA CONFORME A LAS LEYES DE NUEVA YORK (“ DTC ”), A LA COMPAÑÍA O A SU AGENTE DE REGISTRO O TRANSMISIÓN, CANJE O PAGO, Y QUE UN TÍTULO EMITIDO ESTÉ INSCRITO A NOMBRE DE CEDE & CO. O ALGÚN OTRO NOMBRE SOLICITADO POR UN REPRESENTANTE AUTORIZADO DE DTC (Y CUALQUIER PAGO SE EFECTÚE A CEDE & CO. O A DICHA OTRA ENTIDAD SOLICITADA POR EL REPRESENTANTE AUTORIZADO DE DTC), CUALQUIER TRANSMISIÓN, PRENDA U OTRO USO DEL PRESENTE POR VALOR O CON CUALQUIER OTRO OBJETO, POR PARTE O EN FAVOR DE CUALQUIER PERSONA, SERÁ INDEBIDO EN TANTO SU TITULAR REGISTRADO, CEDE & CO., TENGA ALGÚN DERECHO SOBRE EL MISMO.	
 	 	
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE REGISTERED FORM IN THE CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.”	  	HASTA EN TANTO ESTE TÍTULO GLOBAL SE CANJEE TOTAL O PARCIALMENTE POR TÍTULOS VALOR NOMINATIVOS DEFINITIVOS EN LOS SUPESTOS PREVISTOS EN EL ACTA DE EMISIÓN, EN SU CASO, ESTE TÍTULO GLOBAL NO PODRÁ SER TRANSMITIDO SINO EN SU TOTALIDAD POR EL DEPOSITARIO A FAVOR DE UNA PERSONA DESIGNADA POR EL DEPOSITARIO, O POR LA PERSONA DESIGNADA POR EL DEPOSITARIO A FAVOR DEL DEPOSITARIO U OTRA PERSONA DESIGNADA POR EL DEPOSITARIO, O POR EL DEPOSITARIO O DICHA PERSONA DESIGNADA A FAVOR DE UN DEPOSITARIO SUCESOR O UNA PERSONA DESIGNADA POR DICHO DEPOSITARIO SUCESOR.”	
 	 	
[Include the following legend on all Rule 144A Notes that are Restricted Notes (the “Restricted Securities Legend for Rule 144A Notes”) :]	  	[Incluir la siguiente leyenda en todas las Obligaciones de la Regla 144A que tengan el carácter de Obligaciones Restringidas (la “Leyenda para las Obligaciones Restringidas para Obligaciones de la Regla 144A”) :]	
 	 	
THIS SECURITY AND THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:	  	ESTE TÍTULO VALOR Y LAS ACCIONES DE DEPOSITARIO AMERICANAS QUE SE EMITAN UNA VEZ REALIZADA LA CONVERSIÓN DEL MISMO, NO SE ENCUENTRAN INSCRITOS AL AMPARO DE LA LEY DE VALORES DE 1933 Y SUS REFORMAS (LA “ LEY DE VALORES ”), Y NO PUEDE SER OFRECIDO, VENDIDO, PIGNORADO O ENAJENADO EN CUALQUIER OTRA FORMA SALVO DE CONFORMIDAD CON LO DISPUESTO EN LA SIGUIENTE ORACIÓN. EN RAZÓN DE LA ADQUISICIÓN DEL PRESENTE O DE CUALQUIER DERECHO DE TITULARIDAD INDIRECTA DEL MISMO, EL ADQUIRENTE:	
 	 	
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND	  	(1) DECLARA RESPECTO DE SÍ MISMO Y DE CUALQUIER PERSONA POR CUYA CUENTA ACTÚE, QUE ES UN “COMPRADOR INSTITUCIONAL CALIFICADO” (EN TÉRMINOS DE LA DEFINICIÓN CONTENIDA EN LA REGLA 144A DE LA LEY DE VALORES) Y TIENE LA FACULTAD ABSOLUTA DE TOMAR DECISIONES DE INVERSIÓN CON RESPECTO A DICHA CUENTA, Y	
 	 	
(2) AGREES FOR THE BENEFIT OF CEMEX, S.A.B. DE C.V. THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ISSUE DATE HEREOF (OR OF ANY SUBSEQUENTLY ISSUED SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT:	  	(2) SE OBLIGA, EN BENEFICIO DE CEMEX, S.A.B. DE C.V. A NO OFRECER, VENDER, PIGNORAR O ENAJENAR EN CUALQUIER OTRA FORMA ESTE TÍTULO VALOR O CUALQUIER DERECHO DE TITULARIDAD INDIRECTA SOBRE EL MISMO ANTES DE LA FECHA QUE OCURRA MÁS TARDE DE ENTRE (X) UN AÑO A PARTIR DE LA ÚLTIMA FECHA DE EMISIÓN DEL PRESENTE (O DE CUALQUIER VALOR EMITIDO SUBSECUENTEMENTE) O CUALQUIER PERÍODO MÁS CORTO PERMITIDO POR LA REGLA 144 DE LA LEY DE VALORES O CUALQUIER DISPOSICIÓN SUCESORA DE LA MISMA, Y (Y) CUALQUIER FECHA POSTERIOR, EN SU CASO, PREVISTA EN LA LEGISLACIÓN APLICABLE, SALVO:	
 	 	
(A) TO CEMEX, S.A.B. DE C.V., OR	  	(A) A CEMEX, S.A.B. DE C.V., O	
 	 	
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR	  	(B) AL AMPARO DE UN DOCUMENTO DE REGISTRO QUE SE ENCUENTRE VIGENTE DE CONFORMIDAD CON LA LEY DE VALORES, O	
 
A-1

 	 	 	
(C) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, OR	  	(C) A UN COMPRADOR INSTITUCIONAL CALIFICADO SEGÚN DICHO TÉRMINO SE DEFINE EN LA REGLA 144A DE LA LEY DE VALORES, QUE EFECTÚE LA COMPRA POR CUENTA PROPIA O DE UN COMPRADOR INSTITUCIONAL CALIFICADO MEDIANTE UNA TRANSMISIÓN QUE CUMPLA CON LOS REQUISITOS PREVISTOS EN LA REGLA 144A Y A QUIEN SE DÉ AVISO DE QUE LA ENAJENACIÓN SE HACE AL AMPARO DE LA REGLA 144A, O	
 	 	
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR	  	(D) AL AMPARO DE UNA EXENCIÓN DE LOS REQUISITOS DE REGISTRO CONFORME A LA REGLA 144 DE LA LEY DE VALORES, O DE CUALQUIER OTRA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES, O	
 	 	
(E) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT.	  	(E) AFUERA DE LOS ESTADOS UNIDOS DE CONFORMIDAD CON LA REGLA 903 O LA REGLA 904 DE LA REGULACIÓN S CONFORME A LA LEY DE VALORES.	
 	 	
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) OR (E) ABOVE, CEMEX, S.A.B. DE C.V. AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.	  	PREVIO AL REGISTRO DE CUALQUIER OPERACIÓN CELEBRADA EN TÉRMINOS DEL INCISO (2)(D) O (E) ANTERIOR, CEMEX, S.A.B. DE C.V. Y EL FIDUCIARIO SE RESERVAN EL DERECHO DE EXIGIR LA ENTREGA DE AQUÉLLAS OPINIONES LEGALES, CERTIFICACIONES U OTRAS CONSTANCIAS QUE RAZONABLEMENTE REQUIERAN A EFECTO DE DETERMINAR QUE LA TRANSMISIÓN PROPUESTA CUMPLE CON LO DISPUESTO POR LA LEY DE VALORES Y LAS LEYES ESTATALES EN MATERIA DE VALORES APLICABLES. NO SE OTORGA DECLARACIÓN ALGUNA EN CUANTO A LA EXISTENCIA DE UNA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES.	
 	 	
[Include the following legend on all Regulation S Notes that are Restricted Notes (the “Restricted Securities Legend for Regulation S Notes”) :]	  	[Incluir la siguiente leyenda en todas las Obligaciones de Regulación S que tengan el carácter de Obligaciones Restringidas (la “Leyenda para las Obligaciones Restringidas para Obligaciones de Regulación S”) :]	
 	 	
THIS SECURITY AND THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THIS SECURITY, HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:	  	ESTE TÍTULO VALOR Y LAS ACCIONES DE DEPOSITARIO AMERICANAS QUE SE EMITAN UNA VEZ REALIZADA LA CONVERSIÓN DEL MISMO, NO SE ENCUENTRAN INSCRITOS AL AMPARO DE LA LEY DE VALORES DE 1933 Y SUS REFORMAS (LA “ LEY DE VALORES ”), Y NO PUEDE SER OFRECIDO, VENDIDO, PIGNORADO O ENAJENADO EN CUALQUIER OTRA FORMA SALVO DE CONFORMIDAD CON LO DISPUESTO EN LA SIGUIENTE ORACIÓN. EN RAZÓN DE LA ADQUISICIÓN DEL PRESENTE O DE CUALQUIER DERECHO DE TITULARIDAD INDIRECTA DEL MISMO, EL ADQUIRENTE:	
 	 	
(1) REPRESENTS IT IS ACQUIRING THE NOTES IN AN “OFFSHORE TRANSACTION” AS DEFINED IN RULE 902(H) UNDER THE SECURITIES ACT;	  	(1) DECLARA QUE ADQUIERE LAS OBLIGACIONES EN UNA “OPERACIÓN EN EL EXTERIOR” EN TÉRMINOS DE LA DEFINICIÓN CONTENIDA EN LA REGLA 902(H) DE LA LEY DE VALORES;	
 	 	
(2) AGREES FOR THE BENEFIT OF CEMEX, S.A.B. DE C.V. THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT), EXCEPT:	  	(2) SE OBLIGA, EN BENEFICIO DE CEMEX, S.A.B. DE C.V. A NO OFRECER, VENDER, PIGNORAR O ENAJENAR EN CUALQUIER OTRA FORMA ESTE TÍTULO VALOR O CUALQUIER DERECHO DE TITULARIDAD INDIRECTA SOBRE EL MISMO ANTES DE LA FECHA EN QUE TERMINE EL PERIODO DE CUMPLIMIENTO DE DISTRIBUCIÓN DE 40 DÍAS (SEGÚN SE DEFINE EN LA REGULACIÓN S DE LA LEY DE VALORES), SALVO:	
 	 	
(A) TO CEMEX, S.A.B. DE C.V., OR	  	(A) A CEMEX, S.A.B. DE C.V., O	
 	 	
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR	  	(B) AL AMPARO DE UN DOCUMENTO DE REGISTRO QUE SE ENCUENTRE VIGENTE DE CONFORMIDAD CON LA LEY DE VALORES, O	
 	 	
(C) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, OR	  	(C) A UN COMPRADOR INSTITUCIONAL CALIFICADO SEGÚN DICHO TÉRMINO SE DEFINE EN LA REGLA 144A DE LA LEY DE VALORES, QUE EFECTÚE LA COMPRA POR CUENTA PROPIA O DE UN COMPRADOR INSTITUCIONAL CALIFICADO MEDIANTE UNA TRANSMISIÓN QUE CUMPLA CON LOS REQUISITOS PREVISTOS EN LA REGLA 144A Y A QUIEN SE DÉ AVISO DE QUE LA ENAJENACIÓN SE HACE AL AMPARO DE LA REGLA 144A, O	
 	 	
(D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, OR	  	(D) AL AMPARO DE UNA EXENCIÓN DE LOS REQUISITOS DE REGISTRO CONFORME A LA REGLA 144 DE LA LEY DE VALORES, O DE CUALQUIER OTRA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES, O	
 	 	
(E) OUTSIDE THE UNITED STATES IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT.	  	(E) AFUERA DE LOS ESTADOS UNIDOS DE CONFORMIDAD CON LA REGLA 903 O LA REGLA 904 DE LA REGULACIÓN S CONFORME A LA LEY DE VALORES.	
 
A-2

 	 	 	
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(D) OR (E) ABOVE, CEMEX, S.A.B. DE C.V. AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.	  	PREVIO AL REGISTRO DE CUALQUIER OPERACIÓN CELEBRADA EN TÉRMINOS DEL INCISO (2)(D) O (E) ANTERIOR, CEMEX, S.A.B. DE C.V. Y EL FIDUCIARIO SE RESERVAN EL DERECHO DE EXIGIR LA ENTREGA DE AQUÉLLAS OPINIONES LEGALES, CERTIFICACIONES U OTRAS CONSTANCIAS QUE RAZONABLEMENTE REQUIERAN A EFECTO DE DETERMINAR QUE LA TRANSMISIÓN PROPUESTA CUMPLE CON LO DISPUESTO POR LA LEY DE VALORES Y LAS LEYES ESTATALES EN MATERIA DE VALORES APLICABLES. NO SE OTORGA DECLARACIÓN ALGUNA EN CUANTO A LA EXISTENCIA DE UNA EXENCIÓN A LOS REQUISITOS DE INSCRIPCIÓN PREVISTOS EN LA LEY DE VALORES.	
 
A-3

[FORM OF FACE OF NOTE] [FORMATO DEL ANVERSO DE LAS OBLIGACIONES]

No.            	  	No.            	
 
Principal Amount U.S.$            	  	 
Monto principal EUA$            	
 
[If the Note is a Global Security include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Security attached hereto]	  	 
[Si se trata de Título Global, incluir los siguientes dos renglones:
ajustado en términos del Apéndice de Aumentos y
Disminuciones en el Título Global que se anexa a la presente]	
 
144A NOTES RESTRICTED CUSIP: 151290 BA0	  	 
Clave CUSIP Obligaciones 144A Restringidas: 151290 BA0	
144A NOTES RESTRICTED ISIN: US151290BA07	  	Clave ISIN Obligaciones 144A Restringidas: US151290BA07	
144A NOTES COMMON CODE: 060640190	  	Clave Común Obligaciones 144A: 060640190	
144A NOTES UNRESTRICTED CUSIP: 151290 BC6	  	Clave CUSIP Obligaciones 144A Irrestricta: 151290 BC6	
144A NOTES UNRESTRICTED ISIN: US151290BC62	  	Clave ISIN Obligaciones 144A Irrestricta: US151290BC62	
REGULATION S NOTES CUSIP: P2253T HW2	  	Clave CUSIP Obligaciones de la Regulación S: P2253T HW2	
REGULATION S NOTES ISIN: USP2253THW29	  	Clave ISIN Obligaciones de la Regulación S: USP2253THW29	
REGULATION S NOTES COMMON CODE: 060694303	  	Clave Común Obligaciones de la Regulación S: 060694303	

3.75% CONVERTIBLE SUBORDINATED NOTES
DUE 2018	  	 
OBLIGACIONES CONVERTIBLES SUBORDINADAS
CON RENDIMIENTO DEL 3.75% CON VENCIMIENTO EN 2018	

CEMEX, S.A.B. de C.V., a publicly traded stock corporation with variable capital ( sociedad anónima bursátil de capital variable ) organized under the laws of Mexico (together with its successors and assigns, the “ Issuer ”), promises to pay to [            ], or registered assigns, the principal sum of [            ] Dollars (U.S.$[            ]) [ If the Note is Global Security, add the following:  , as revised by the Schedule of Exchanges of Interest in Global Security attached hereto], on March 15, 2018.	  	 
CEMEX, S.A.B. de C.V., una sociedad anónima bursátil de responsabilidad limitada constituida de conformidad con las leyes de México (en conjunto con sus sucesores y cesionarios, la “ Emisora ”), prometer pagar a [            ], o a sus cesionarios registrados, la cantidad principal de [            ] dólares (EUA$[            ]) [ Si se trata de un Título Global, añadir lo siguiente:  , ajustada en términos del Apéndice de Canjes de Derechos Sobre el Título Global que se anexa ala presente], el 15 de marzo de 2018.	

Interest Payment Dates: March 15 and September 15	  	 
Fechas de Pago de Intereses: 15 de marzo y 15 de septiembre	
Record Dates: March 1 and September 1	  	Fechas de Registro: 1 de marzo y 1 de septiembre	

Dated: March 15, 2011	  	 
Fecha: 15 de marzo de 2011	

Additional provisions of this Note are set forth on the other side of this Note.	  	 
El reverso de esta Obligación contiene disposiciones adicionales.	
 
A-4

 	 	 	
IN WITNESS WHEREOF, the Issuer has caused this Note to
be signed manually or by facsimile by duly authorized officers.	  	EN TESTIMONIO DE LO ANTERIOR, la Emisora ha
hecho que la presente Obligación haya sido firmada
manualmente o por facsímile por sus representantes autorizados.	

CEMEX, S.A.B. DE C.V.	
 	
By/Por:                                                                                          	
 	 	Name/Nombre:	
 	 	Title/Cargo: Member of the Board of
Directors/Miembro del Consejo de Administración	

By/Por:                                                                                          	
 	 	Name/Nombre:	
 	 	Title/Cargo: Member of the Board of
Directors/Miembro del Consejo de Administración	
THE BANK OF NEW YORK MELLON, S.A.,
        INSTITUCIÓN DE BANCA MÚLTIPLE,
        as Mexican Trustee/como representante común en México

        By/Por:                                                                           	
        Name/Nombre:	
        Title/Cargo:	

Trustee’s Certificate of Authentication:	  	Certificado de Autentificación del Fiduciario:	
 	 	
This is one of the Notes described in the
within-mentioned Indenture:	  	La presente es una de las Obligaciones descritas en el Acta de Emisión a que se hace referencia:	
THE BANK OF NEW YORK MELLON, as Trustee/como Fiduciario

        By/Por:                                                                                                       	
                    Authorized Signatory/Representante Autorizado	
 	
        Date/Fecha:                                                                                               	

A-5

 	 	 	
[FORM OF REVERSE SIDE OF NOTE]	  	[FORMATO DEL REVERSO DE LOS TÍTULOS]	
 	 	
CEMEX, S.A.B. DE C.V.	  	 	
 	 	
3.75% CONVERTIBLE SUBORDINATED NOTES
DUE 2018	  	OBLIGACIONES CONVERTIBLES SUBORDINADAS
CON RENDIMIENTO
DEL 3.75% CON VENCIMIENTO EN 2018	
 	 	
Capitalized terms used by not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.	  	A menos que se indique lo contrario, los términos que se utilizan en la presente con mayúscula inicial tendrán los significados asignados a los mismos en el Acta de Emisión que se menciona a continuación.	
 	 	
1.      INTEREST. CEMEX, S.A.B. de C.V. a publicly traded stock corporation with variable capital ( sociedad anónima bursátil de capital variable ) organized under the laws of Mexico (together with its successors and assigns, the “ Issuer ”), promises to pay Interest on the principal amount of this Note at the rate per annum shown above;  provided  that such rate may be increased from time to time as provided in the Indenture, including Section 4.09  and  Section 6.02(b)  thereof. The Issuer will pay Interest semi-annually in arrears on March 15 and September 15 of each year, beginning September 15, 2011. Interest on the Notes will accrue from the most recent Interest Payment Date on which Interest has been paid or, if no Interest has been paid, from March 15, 2011. Interest, if any, will be computed on the basis of a 360-day year comprised of twelve 30-day months. The Issuer shall pay any increased Interest required to be paid by it pursuant to Section 4.09  and  Section 6.02(b)  of the Indenture in the manner and on the dates otherwise provided herein for the payment of Interest. To the extent lawful, the Issuer shall pay Interest (including post-petition Interest in any proceeding under any Bankruptcy Law) on overdue principal at the interest rate borne by the Notes per annum; it shall pay Interest (including post-petition Interest in any proceeding under any Bankruptcy Law) on overdue installments of Interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.	  	1.      INTERESES. CEMEX, S.A.B. de C.V. una sociedad anónima bursátil de capital variable constituida de conformidad con las leyes de México (en conjunto con sus sucesores y cesionarios, la “ Emisora ”), promete pagar Intereses sobre el importe principal de esta Obligación a la tasa anual antes indicada;  en el entendido  de que dicha tasa podrá incrementarse de tiempo en tiempo de conformidad con lo dispuesto en el Acta de Emisión, incluyendo su Sección 4.09  y su  Sección 6.02(b) . La Emisora pagará Intereses por semestres vencidos los días 15 de marzo y 15 de septiembre de cada año, comenzado el 15 de septiembre de 2011. Las Obligaciones devengarán Intereses desde la última Fecha de Pago de Intereses en que se hayan pagado Intereses o, si no se han pagado Intereses, desde el 15 de marzo de 2011. En su caso, los Intereses se calcularán sobre la base de un año de 360 días y 12 meses de 30 días cada uno. En la medida permitida por la ley, la Emisora pagará cualesquiera Intereses adicionales que deba pagar de conformidad con lo dispuesto en la  Sección 4.09  y la  Sección 6.02(b)  del Acta de Emisión, en la forma y las fechas estipuladas en la misma en cuanto al pago de Intereses. En la medida permitida por la ley, la Emisora pagará Intereses (incluyendo Intereses posteriores a la presentación de cualquier demanda al amparo de alguna Ley de Quiebras) sobre cualquier importe principal vencido, a la tasa de interés anual devengada por las Obligaciones que se encuentre vigente en ese momento; y en la medida permitida por la ley pagará Intereses (incluyendo tras la presentación de cualquier demanda al amparo de alguna Ley de Quiebras) sobre cualesquiera Intereses vencidos (“ Intereses Moratorios ”), a la misma tasa, independientemente de cualquier período de gracia aplicable. Los Intereses se calcularán sobre la base de un año de 360 días y 12 meses de 30 días.	
 	 	
All payments made by the Issuer under, or with respect to, the Notes will be made free and clear of, and without withholding or deduction for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless the Issuer is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.	  	Todos los pagos efectuados por la Emisora conforme a las Obligaciones o en relación con las mismas irán libres de toda retención o deducción a cuenta de cualesquiera Impuestos establecidos o determinados por cualquier Jurisdicción Impositiva o en representación de la misma, a menos que la Emisora esté obligada a retener o deducir Impuestos por disposición de ley o en razón de la interpretación oficial o aplicación de la misma. En dicho supuesto, la Emisora pagará a cada Tenedor de Obligaciones las Cantidades Adicionales previstas en el Acta de Emisión, sujeto a las restricciones establecidas en la propia Acta de Emisión.	
 	 	
2.      METHOD OF PAYMENT. The Issuer will pay Interest on the Notes (except Defaulted Interest) on the Business Day on which any such Interest on any Note is due and payable to the Person in whose name each Note is registered at the close of business on the March 1 and September 1 immediately preceding the relevant Interest Payment Date (each a “ Record Date ”) (other than as provided in the Indenture). A Holder must surrender Notes to a Paying Agent to collect principal payments. On the Business Day prior to the date on which any payment is to be made on the Notes, the Issuer will deposit with the Trustee or with the Paying Agent an amount of money in immediately available funds sufficient to make such payment.	  	2.      FORMA DE PAGO. La Emisora pagará cualesquiera Intereses respecto de las Obligaciones (salvo Intereses Moratorios) a más tardar el Día Hábil en que dicho importe de Intereses sobre las Obligaciones sean exigibles y pagaderos a la Persona a cuyo nombre se encuentre inscrita dicha Obligación al cierre de horas hábiles del 1 de marzo y el 1 de septiembre inmediatamente anteriores a la Fecha de Pago de Intereses correspondiente (cada una de dichas fechas, una “ Fecha de Registro ”) (salvo por lo dispuesto en el Acta de Emisión). Para efectos de todo pago de principal, el Tenedor deberá entregar sus Obligaciones al Agente de Pago. A más tardar el Día Hábil previo a la fecha en que el importe principal de las Obligaciones deba pagarse, la Emisora depositará con el Fiduciario o con el Agente de Pagos, en fondos inmediatamente disponibles, la cantidad suficiente para realizar dicho pago.	
 	 	
The Issuer will pay the principal of and Interest on the Notes at the office or agency of the Issuer maintained for such purpose, in U.S. Legal Tender. Until otherwise designated by the Issuer, the Issuer’s office or agency maintained for such purpose will be the principal Corporate Trust Office of the Trustee (as defined below). However, the Issuer may pay principal and Interest by check payable in such money, and may mail such check to the Holders of the Notes at their respective addresses as set forth in the Register of Holders. Payments in respect of Notes represented by a Global Security (including principal and Interest) will be made by the transfer of immediately available funds to the accounts specified by DTC. The Issuer will make all payments in respect of a Definitive Security (including principal and Interest) by mailing a check to the registered address of each Holder thereof as set forth in the Note Register;  provided , however , that payments on the Notes may also be made, in the case of a Holder of at least U.S.$1,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant Record Date (or such other date as the Trustee may accept in its discretion).	  	La Emisora pagará el importe principal y los Intereses de las Obligaciones en la oficina o agencia mantenida para dicho efecto por la misma, en Moneda de los E.U.A. A menos que la Emisora designe otro lugar, su oficina o agencia para dicho efecto serán las Oficinas del Departamento de Fideicomisos Empresariales del Fiduciario (según la definición asignada a dicho término más adelante). Sin embargo, la Emisora podrá efectuar pagos de principal e Intereses mediante cheque denominado en dicha moneda, y podrá enviar por correo dicho cheque a los domicilios que los Tenedores de Obligaciones tengan inscritos en el registro de Tenedores. Los pagos sobre las Obligaciones amparadas por un Título Global (incluyendo principal e Intereses) se efectuarán mediante transferencia de fondos inmediatamente disponibles a las cuentas indicadas por DTC. La Emisora efectuará todos los pagos correspondientes a Títulos Definitivos (incluyendo principal e Intereses) mediante cheque enviado por correo al domicilio que cada Tenedor tenga inscrito en el registro de Obligaciones;  en el entendido, sin embargo,  de que tratándose de cualquier Tenedor de Obligaciones por un monto principal total de cuando menos EUA$1,000,000, los pagos sobre las Obligaciones también podrán efectuarse mediante transferencia electrónica a una cuenta en dólares de los E.U.A. mantenida por el destinatario del pago en un banco de los Estados Unidos, si dicho Tenedor elige la opción de recibir dichos pagos por transferencia electrónica mediante el envío de un aviso por escrito proporcionado los datos de su cuenta al Fiduciario o al Agente de Pagos, a más tardar en la fecha correspondiente a los 15 días inmediatamente anteriores a la Fecha de Registro aplicable (o cualquier otra fecha aceptable para el Fiduciario a su entera discreción).	
 
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3.      PAYING AGENT AND REGISTRAR. Initially, The Bank of New York Mellon (together with any successor Trustee under the Indenture referred to below, the “Trustee”), will act as Paying Agent, Conversion Agent and Registrar. The Issuer may change the Paying Agent, Conversion Agent, Registrar or co-registrar without prior notice. Subject to certain limitations in the Indenture, the Issuer or any of its Subsidiaries may act in any such capacity.	  	3.      AGENTE DE PAGOS Y AGENTE DE REGISTRO. The Bank of New York Mellon (en conjunto con cualquier Fiduciario sucesor en términos del Acta de Emisión, el “Fiduciario”) actuará inicialmente como Agente de Pagos, Agente de Conversión y Agente de Registro. La Emisora podrá reemplazar al Agente de Pagos, al Agente de Conversión, al Agente de Registro o agente de registro adjunto, sin necesidad de dar aviso previo. Sujeto a ciertas restricciones previstas en el Acta de Emisión, ni la Emisora ni sus Subsidiaras podrán actuar con alguna de dichas capacidades.	
 	 	
4.      INDENTURE. The Issuer issued the Notes under an Indenture dated as of March 15, 2011 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”) between the Issuer, the Trustee and the Mexican Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to, and qualified by, all such terms, certain of which are summarized hereon, and Holders are referred to the Indenture for a statement of such terms. However, to the extent any provision of any Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.	  	4.      ACTA DE EMISIÓN. La Emisora emitió las Obligaciones al amparo de un Acta de Emisión de fecha 15 de marzo de 2011 (tal y como la misma se modifique o adicione de tiempo en tiempo de acuerdo con sus términos, el “ Acta de Emisión ”), suscrita por la Emisora, el Fiduciario y el Representante Común Mexicano. Los términos de las Obligaciones incluyen los previstos en el Acta de Emisión. Las Obligaciones están sujetas y condicionadas a la totalidad de dichos términos, algunos de los cuales están resumidos en la presente, y los Tenedores deberán consultar el Acta de Emisión para conocer dichos términos. Sin embargo, en la medida en que alguna disposición de esta Obligación contravenga lo expresamente dispuesto en el Acta de Emisión, prevalecerán las disposiciones del Acta de Emisión. Por el hecho de aceptar una Obligación, todo Tenedor conviene en sujetarse a todos los términos y las disposiciones del Acta de Emisión, tal como la misma se modifique o adicione de tiempo en tiempo.	
 	 	
5.      REDEMPTION AND REPURCHASE. The Notes are subject to certain redemption and repurchase provisions under Article III  of the Indenture	  	5.      AMORTIZACIÓN Y RECOMPRA. Las Obligaciones están sujetas a ciertas disposiciones en materia de amortización y recompra contenidas en el  Artículo III  del Acta de Emisión.	
 	 	
(A)   Optional Redemption by the Issuer for Changes in Withholding Taxes	  	(A)   Amortización a opción de la Emisora debido a reformas legales fiscales	
 	 	
If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of any Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article V  of the Indenture, shall be treated for this purpose as the date of such transaction) the Issuer would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding Tax rate of 10% with respect to the Notes (as described in  Section 4.12  of the Indenture), then, at the Issuer’s option, the Notes may be redeemed in whole, but not in part, at any time on giving not less than 30 days nor more than 60 days’ notice to each Holder, at a redemption price equal to 100% of the outstanding principal amount,  plus  Interest, if any, up to but not including the Tax Redemption Date;  provided ,  however , that (1) no Tax Redemption Notice may be given earlier than 90 days prior to the earliest date on which the Issuer would be obligated to pay the Additional Amounts described in the preceding sentence if a payment on the Notes were then due, (2) at the time such Tax Redemption Notice is given such obligation to pay such Additional Amounts remains in effect and (3) the Issuer shall have satisfied the additional requirements set forth below. Such Tax Redemption Notice shall also contain the items required in Section 3.01(e)  of the Indenture, including the calculation of the Make Whole Fundamental Change Premium.	  	Si en virtud de alguna reforma o cambio en las leyes (o en las reglas o los reglamentos promulgados al amparo de las mismas) en materia fiscal de alguna Jurisdicción Impositiva, o de alguna reforma o cambio en la interpretación oficial o aplicación de dichas leyes, reglas o reglamentos que tenga efectos generalizados, que entre en vigor en la Fecha de Emisión (que para estos efectos y tratándose de cualquier fusión, consolidación u otra operación descrita y permitida en el  Artículo V  del Acta de Emisión será la fecha de celebración de dicha operación) o después de la misma, la Emisora, tras tomar todas las medidas razonables para evitarlo, se vería obligada a pagar Cantidades Adicionales por encima de las correspondientes a una tasa de retención de Impuestos del 10% en relación con las Obligaciones (conforme a lo descrito en la  Sección 4.12  del Acta de Emisión), la Emisora tendrá la opción, previo aviso a cada Tenedor con no menos de 30 ni más de 60 días de anticipación, de amortizar en cualquier momento las Obligaciones, en su totalidad y no sólo en parte, a un precio de amortización equivalente al 100% del monto principal insoluto  más  Intereses, en su caso, a la Fecha de Amortización por Motivos Fiscales pero sin incluir dicha fecha;  en el entendido, sin embargo,  de que (1) no se podrá dar ningún Aviso de Amortización por Motivos Fiscales antes del plazo de 90 días anterior a la primera fecha en que la Emisora hubiere estado obligada a pagar las Cantidades Adicionales descritas en la oración que antecede si el pago sobre las Obligaciones hubiese sido exigible en dicha fecha, (2) la obligación de pagar dichas Cantidades Adicionales deberá estar vigente a la fecha de envío de dicho Aviso de Amortización por Motivos Fiscales, y (3) la Emisora deberá haber cumplido con los requisitos adicionales previstos a continuación. Dicho Aviso de Amortización por Motivos Fiscales también deberá contener la información exigida por la Sección 3.01(e)  del Acta de Emisión, incluyendo el cálculo de la Prima por Prepago Debido a un Cambio Fundamental.	
 	 	
Prior to the publication of any Tax Redemption Notice pursuant to this provision, the Issuer will deliver to the Trustee:	  	Antes de publicar cualquier Aviso de Amortización por Motivos Fiscales, la Emisora enviará al Fiduciario:	
 	 	
(i) an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	  	(i) un Certificado Expedido por los Funcionarios manifestando que la Emisora tiene derecho de efectuar una amortización y describiendo los hechos que acrediten la verificación de la condición suspensiva que dio origen al derecho de amortización de la Emisora, y	
 	 	
(ii) an Opinion of Counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	  	(ii) una Opinión Legal de reconocido prestigio en la Jurisdicción Impositiva relevante, en el sentido de que la Emisora está o estará obligada a pagar dichas Cantidades Adicionales como resultado de dicha reforma o cambio.	
 	 	
This Tax Redemption Notice, once delivered by the Issuer to the Trustee, will be irrevocable.	  	Una vez enviado por la Emisora al Fiduciario, el Aviso de Amortización por Motivos Fiscales será irrevocable.	
 	 	
(B)   Repurchase at the Option of Holders Upon Certain Fundamental Changes	  	(B)   Recompra a opción de los Tenedores en caso de Ciertos Cambios Fundamentales	
 	 	
Upon the occurrence of a Change of Control, the Issuer shall notify the Holders and the Trustee in writing of such occurrence and shall be required to make an offer to repurchase all Notes then outstanding at a repurchase price in cash equal to 100% of the principal amount thereof,  plus  Interest, to, but excluding, the Change of Control Purchase Date as defined in the Indenture (unless the Change of Control Purchase Date is between a Record Date and the Interest Payment Date to which it relates, in which case the Issuer will pay Interest on such Interest Payment Date to the Holder of record on such Record Date and the Change of Control Payment will be equal to 100% of the principal amount of the Notes subject to repurchase and will not include Interest).	  	Tras ocurrir un Cambio de Control, la Emisora dará aviso por escrito de dicha circunstancia a los Tenedores y el Fiduciario y estará obligada a realizar una oferta de recompra respecto de todas las Obligaciones en circulación, a un precio de recompra en efectivo equivalente al 100% del importe principal  más  los Intereses devengados por las mismas hasta, pero excluyendo, la Fecha de Compra por Cambio de Control (según la definición asignada a dicho término en el Acta de Emisión) (a menos que la Fecha de Compra por Cambio de Control se ubique entre una Fecha de Registro y su correspondiente Fecha de Pago de Intereses, en cuyo caso la Emisora pagará Intereses en dicha Fecha de Pago de Intereses al Tenedor inscrito a dicha Fecha de Registro, y el Pago por Cambio de Control será equivalente al 100% del importe de las Obligaciones objeto de recompra y no incluirá Intereses).	
 
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6.      SUBORDINATION. The payment of the principal of, premium, if any, and Interest on and any other payment due pursuant to this Notes (including, without limitation, the payment or deposit of the Change of Control Payment pursuant to Article III of the Indenture) or upon conversion, if applicable, shall be subordinated and subject in right of payment to the prior payment in full of all Senior Indebtedness, whether outstanding at the Issue Date or thereafter created, incurred, assumed or guaranteed in accordance with the provisions of Article XI of the Indenture, and each Holder by accepting a Note acknowledges and agrees to be bound by such provisions. The Issuer agrees, and each Holder by accepting a Note acknowledges and agrees, that the Indebtedness evidenced by the Note is equal in right of payment to the Issuer’s current unsecured subordinated Indebtedness, which includes U.S.$715,000,000 of the Issuer’s 4.875% Convertible Subordinated Notes due 2015 issued on March 30, 2010, and to any future unsecured subordinated Indebtedness.	  	6.      SUBORDINACIÓN. El pago del importe principal, la prima, si la hubiere, los Intereses y cualesquiera otros pagos exigibles de conformidad con esta Obligación (incluyendo, de manera enunciativa pero no limitativa, el pago o depósito del Pago por Cambio de Control conforme al  Artículo III  del Acta de Emisión) o después de su conversión, en caso de ser aplicable, estarán subordinados y sujetos, por lo que se refiere al derecho a su pago, en la medida y forma que se establece a continuación, al pago previo e íntegro de toda la Deuda Preferente, ya sea que la misma se encuentre en circulación a la Fecha de Emisión o se cree, incurra, asuma o garantice posteriormente de conformidad con lo dispuesto en el Artículo XI  del Acta de Emisión, y cada Tenedor, por el hecho de aceptar una Obligación, reconoce y conviene en sujetarse a dichas disposiciones. La Emisora, y cada Tenedor, por el hecho de aceptar una Obligación, reconoce y acepta que la Deuda documentada por esta Obligación es igual en cuanto al derecho de pago que cualquier otra Deuda subordinada sin garantía específica existente de la Emisora, incluyendo un monto de EUA$715,000,000 de Obligaciones Convertibles Subordinadas con Rendimiento de 4.875% con Vencimiento en 2015 emitidas por la Emisora el 30 de marzo de 2010, y cualquier otra Deuda subordinada sin garantía específica futura.	
 	 	
7.      DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form without coupons in denominations of U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes at the office of the Registrar in accordance with the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents. No service charge will be imposed by the Issuer, the Trustee or the Registrar for any registration of transfer or exchange of Notes, but any Tax or similar governmental charge required by law or permitted by the Indenture because upon exchange a Holder requests any ADSs to be issued in a name other than such Holder’s name will be paid by such Holder. The Issuer is not required to transfer or exchange any Note surrendered for repurchase or conversion except for any portion of that Note not being repurchased or converted, as the case may be.	  	7.      DENOMINACIONES, TRANSMISIÓN, CANJE. Las Obligaciones son nominativas, no llevan adheridos cupones y se emiten en denominaciones de EUA$100,000 y múltiplos íntegros de EUA$1,000 por encima de dicha cantidad. Todo Tenedor podrá solicitar la inscripción de la transmisión o el canje de sus Obligaciones en la oficina del Agente de Registro de acuerdo con lo dispuesto en el Acta de Emisión. El Agente de Registro y el Fiduciario podrán exigir que el Tenedor proporcione, entre otras cosas, los endosos y demás instrumentos de transmisión necesarios. La Emisora, el Fiduciario o el Agente de Registro no impondrán al Tenedor cargo alguno en razón de la inscripción de la transmisión o el canje de Obligaciones, pero el Tenedor será responsable del pago de cualesquiera Impuestos u otros cargos gubernamentales que resulten aplicables en razón de que el Tenedor solicite la emisión de ADSs a nombre de persona distinta de sí mismo. La Emisora no estará obligada a inscribir la transmisión o canje de cualquier Obligación entregado a la misma para su compra o conversión, sino por lo que toca a la porción de dicha Obligación que no vaya a ser objeto de compra o conversión, según el caso.	
 	 	
8.      PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated as its owner for all purposes.	  	8.      PERSONAS CONSIDERADAS COMO PROPIETARIOS. El Tenedor inscrito de una Obligación será considerado como propietario de la misma para cualesquiera efectos.	
 	 	
9.      AMENDMENTS AND WAIVERS. Subject to certain exceptions set forth in the Indenture, with the written consent of the Holders of a majority in principal amount of the then-outstanding Notes (including without limitation by consents obtained in connection with a purchase of, or a tender offer or exchange offer for, Notes) (i) the Issuer, the Trustee and the Mexican Trustee may amend the Indenture or the Notes, and (ii) may waive compliance in a particular instance by the Issuer with any provision of the Indenture or this Note.	  	9.      MODIFICACIONES Y DISPENSAS. Sujeto a ciertas excepciones previstas en el Acta de Emisión, se requiere el consentimiento por escrito de los Tenedores de cuando menos la mayoría del monto principal total de las Obligaciones que se encuentren en circulación en ese momento (incluyendo, de manera enunciativa pero no limitativa, los consentimientos recibidos con motivo de una compra de Obligaciones u oferta de compra o canje relativa a las Obligaciones), para (i) la modificación del Acta de Emisión o las Obligaciones por parte de la Emisora, el Fiduciario y el Representante Común Mexicano y (ii) dispensar el cumplimiento de cualquier disposición contenida en el Acta de Emisión o esta Obligación por parte de la Emisora.	
 	 	
Without the consent of each Holder of an outstanding Note affected, an amendment or waiver under  Section 9.02  of the Indenture may not (with respect to any Notes held by a non-consenting Holder): (a) reduce the amount of Notes whose Holders must consent to an amendment or waiver; (b) reduce the rate of or change or have the effect of changing the time for payment of Interest on any Notes; (c) reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor; (d) make any Notes payable in money other than that stated in the Notes; (e) make any change in provisions of the Indenture entitling each Holder to receive payment of principal and Interest on such Holder’s Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of Notes to waive Defaults or Events of Default; (f) reduce the Change of Control Payment of any Note or amend or modify in any manner adverse to the Holders, the Issuer’s obligation to make payment of such Change of Control Payment, whether through an amendment or waiver of provisions in the covenants, definitions or otherwise; (g) make any change in the provisions of the Indenture described under Section 4.12  of the Indenture that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; (h) make any change to the provisions of the Indenture or the Notes that adversely affect the ranking of the Notes; and (i) make any change that impairs or adversely affects the conversion rights of any Notes.	  	Ninguna modificación o dispensa en términos de lo dispuesto en la  Sección 9.02  del Acta de Emisión podrá, salvo con el consentimiento de cada Tenedor de una Obligación en circulación afectado por la misma: (a) reducir el monto de las Obligaciones cuyos Tenedores pueden aprobar una modificación u otorgar una dispensa; (b) reducir la tasa de interés sobre cualesquiera Obligaciones, o cambiar o modificar de cualquier forma que tenga los mismos efectos que un cambio de fecha, la fecha de pago de Intereses sobre cualesquiera Obligaciones; (c) reducir el monto principal de cualesquiera Obligaciones, o cambiar o modificar de cualquier forma que tenga los mismos efectos que un cambio de fecha, la fecha fija de vencimiento de cualesquiera Obligaciones, o cambiar la fecha en que cualesquiera Obligaciones puedan ser objeto de amortización, o reducir el precio de amortización de las mismas; (d) disponer que cualesquiera Obligaciones sean pagaderas en alguna moneda distinta a la expresada en las Obligaciones; (e) cambiar las disposiciones del Acta de Emisión en cualquier forma que confiera a cada Tenedor el derecho a recibir el pago del principal de las Obligaciones e Intereses sobre las Obligaciones de dicho Tenedor en la fecha exigible o después de la misma o a entablar juicio para exigir dicho pago, o permitir que los Tenedores de la mayoría del importe principal de las Obligaciones dispensen Incumplimientos o Causaes de Incumplimiento; (f) reducir el Pago por Cambio de Control correspondiente a cualquier Obligación, o reformar o modificar en cualquier forma adversa para los Tenedores la obligación de la Emisora de efectuar dicho Pago por Cambio de Control, ya sea a través de modificaciones o renuncias de las disposiciones correspondientes a las obligaciones o definiciones o cualquier otra; (g) hacer cualquier cambio en las disposiciones descritas en la Sección 4.12  del Acta de Emisión que afecte en forma adversa los derechos de cualquier Tenedor o modifique los términos de las Obligaciones en forma tal que resulte en la pérdida de una exención de Impuestos; (h) hacer cualquier cambio en las disposiciones del Acta de Emisión o las Obligaciones que afecte en forma adversa el orden de prelación de las Obligaciones; o (i) hacer cualquier cambio que precluya o afecte en forma adversa los derechos de conversión correspondientes a cualesquiera Obligaciones.	
 
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The Issuer, the Trustee and the Mexican Trustee may amend the Indenture or this Note without notice to or the consent of any Holder to (a) cure any ambiguity, omission, defect or inconsistency in the Indenture or this Note; (b) provide for the assumption by a surviving or successor corporation of the obligations of the Issuer under the Indenture or evidence and provide for the acceptance of appointment of a successor Trustee pursuant to the Indenture; (c) provide for uncertificated Notes in addition to or in place of certificated Notes (provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Internal Revenue Code or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Internal Revenue Code); (d) add guarantees with respect to this Note; (e) secure this Note; (f) add to the Issuer’s covenants for the benefit of the Holders or surrender any right or power conferred upon the Issuer; (g) make any change that does not materially adversely affect the rights of any Holder; (h) comply with the provisions of any clearing agency, clearing corporation or clearing system, including DTC, the Trustee or the Registrar with respect to the provisions of the Indenture or this Note relating to transfers and exchanges of Notes; and (i) conform the terms of the Indenture or this Note to the description thereof in the Offering Memorandum.	  	La Emisora, el Fiduciario y el Representante Común Mexicano podrán modificar el Acta de Emisión o las Obligaciones sin necesidad de dar aviso u obtener el consentimiento de Tenedor alguno, para: (a) corregir cualquier ambigüedad, omisión, defecto o inconsistencia en el Acta de Emisión o las Obligaciones; (b) realizar aquellos actos necesarios en relación con la asunción de las obligaciones de la Emisora conforme al Acta de Emisión por alguna sociedad fusionante o sucesora de la Emisora, o hacer constar y reflejar la aceptación del nombramiento de un Fiduciario sucesor de conformidad con el Acta de Emisión; (c) prever la emisión de Obligaciones no amparadas por títulos, además o en lugar de Obligaciones amparadas por títulos (siempre que las Obligaciones no amparadas por títulos sean registradas para efectos de lo dispuesto por la Sección 163(f) del Código Fiscal Interno ( Internal Revenue Code ) o de manera tal que las Obligaciones no amparadas por títulos se apeguen a la descripción contenida en la Sección 163(f)(2)(B) del Código Fiscal Interno); (d) agregar garantías con respecto a las Obligaciones; (e) garantizar las Obligaciones; (f) agregar obligaciones de la Emisora en beneficio de los Tenedores, o renunciar a cualquier derecho o facultad conferida a la Emisora; (g) hacer cualquier arreglo que no afecte en forma adversa y significativa los derechos de cualquier Tenedor; (h) cumplir con lo dispuesto por cualquier cámara, agencia o sistema de compensación, incluyendo DTC, el Fiduciario o el Agente de Registro con respecto a lo dispuesto por el Acta de Emisión o las Obligaciones en relación con la transmisión y el canje de las Obligaciones; e (i) ajustar los términos del Acta de Emisión o las Obligaciones a fin de que se apeguen a lo descrito en el Prospecto de Colocación.	
 	 	
To secure a consent or waiver of the Holders, it shall not be necessary for such Holders to approve the particular form of any proposed amendment or waiver, but it shall be sufficient if such consent approves the substance thereof.	  	Para obtener cualquier consentimiento o dispensa de parte de los Tenedores no será necesario que dichos Tenedores aprueben la forma específica de la modificación o dispensa propuesta, sino que bastará con que dicho consentimiento apruebe las cuestiones de fondo de la misma.	
 	 	
10.    DEFAULTS AND REMEDIES. An “Event of Default ” with respect to any Notes occurs if: (a) the Issuer defaults in the payment in respect of the principal of any Note when due at maturity, upon redemption or repurchase pursuant to  Article III  of the Indenture, upon declaration of acceleration or otherwise, whether or not such payment is prohibited by the subordination provisions set forth in  Article XI  of the Indenture; (b) the Issuer defaults in the payment of any installment of Interest on the Notes when due and payable, whether or not such payment is prohibited by the subordination provisions set forth in  Article XI  of the Indenture, including any Interest payable in connection with a redemption or repurchase pursuant to  Article III  of the Indenture and Additional Interest, if any, and continuance of such default for a period of 30 days or more; (c) the Issuer defaults in the delivery when due of all ADSs deliverable upon conversion with respect to the Notes in accordance with Article XII  of the Indenture, which default continues for a period of five Business Days or more; (d) the Issuer fails to provide a timely Fundamental Change Notice in accordance with  Section 12.12  of the Indenture; (e) the Issuer fails to comply with the covenant described in clause (b) of Section 12.08  of the Indenture; (f) failure by the Issuer to comply with the covenant described in clause (a) of Section 12.08  of the Indenture that continues for a period of 30 days after the Issuer receives written notice of such failure from the Trustee or the Holders of at least 25% in principal amount of the Notes then outstanding; (g) the Issuer defaults (other than a default set forth in paragraphs (a) through (f) above) in the performance of, or breaches, any other covenant or agreement of the Issuer set forth in the Indenture or this Note and fails to remedy such default or breach within a period of 45 days after its receipt of written notice thereof from the Trustee or the Holders of at least 25% in aggregate principal amount of the then outstanding Notes; (h) the Issuer or any of the Issuer’s “Significant Subsidiaries” (as defined in Article 1, Rule 1-02 of Regulation S-X) defaults with respect to any mortgage, agreement or other instrument under which there is outstanding, or by which there is secured or evidenced, any Indebtedness for money borrowed having a principal amount in excess of U.S.$50 million in the aggregate, whether such Indebtedness now exists or shall hereafter be created, (i) resulting in such Indebtedness becoming or being declared due and payable prior to its express maturity date or (ii) constituting a failure to pay at least U.S.$50 million of such Indebtedness when due and payable (after the expiration of any applicable grace period) at its stated maturity, upon required repurchase, upon declaration or otherwise; provided, that any such Event of Default shall be deemed cured and not continuing upon payment of such Indebtedness or rescission of such declaration; (i) a final judgment for the payment of U.S.$50 million or more (excluding any amounts covered by insurance or bond) is rendered against the Issuer or any Significant Subsidiary by a court of competent jurisdiction, which judgment is not discharged, stayed, vacated, paid or otherwise satisfied within 60 days after (i) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (ii) the date on which all rights to appeal have been extinguished; or (j) a Bankruptcy Event of Default.	  	10.    INCUMPLIMIENTOS Y RECURSOS. Ocurrirá una “ Causa de Incumplimiento ” respecto a cualquier Obligación si: (a) la Emisora incumple con el pago del importe principal de cualquier Obligación en la fecha en que dicho pago sea exigible, ya sea a su vencimiento, contra su amortización o recompra conforme al Artículo III  del Acta de Emisión, en razón de una declaración de vencimiento anticipado o por cualquier otro motivo, independientemente de que dicho pago esté o no prohibido de conformidad con lo dispuesto respecto de la subordinación en el  Artículo XI  del Acta de Emisión; (b) la Emisora incumple con el pago de cualesquiera Intereses sobre cualquier Obligación en la fecha en que los mismos sean exigibles y pagaderos, independientemente de que dicho pago esté o no prohibido de conformidad con lo dispuesto respecto de la subordinación en el Artículo XI  del Acta de Emisión, incluyendo cualesquiera Intereses pagaderos con motivo de una amortización o recompra en términos del Artículo III  del Acta de Emisión, si dicho incumplimiento subsiste durante un período de 30 días o más; (c) la Emisora incumple con la entrega, en la fecha debida, de las ADSs que deban entregarse con motivo de la conversión de Obligaciones en términos del  Artículo XII del Acta de Emisión, y dicho incumplimiento subsiste durante un período de cinco Días Hábiles o más; (d) la Emisora incumple con la entrega oportuna de un Aviso de Cambio Fundamental de conformidad con lo dispuesto en la Sección 12.12  del Acta de Emisión; (e) la Emisora incumple el compromiso descrito en el inciso (b) de la  Sección 12.08  del Acta de Emisión; (f) la Emisora incumple el compromiso descrito en el inciso (a) de la  Sección 12.08  del Acta de Emisión y dicho incumplimiento continúa durante un período de 30 días posteriores a la recepción por la Emisora de un aviso por escrito de dicho incumplimiento de parte del Fiduciario o los Tenedores de cuando menos el 25% del monto principal de las Obligaciones que en ese momento se encuentren en circulación; (g) la Emisora incumple (en forma distinta a lo previsto a los incisos (a) a (f) anteriores) o viola cualquier otro contrato o convenio de la misma de conformidad con el Acta de Emisión o las Obligaciones y no subsana dicho incumplimiento o violación dentro del plazo de 45 días contados a partir de la recepción de un aviso por escrito al respecto de parte del Fiduciario o los Tenedores de cuando menos el 25% del monto principal de las Obligaciones que en ese momento se encuentren en circulación; (h) la Emisora o cualquiera de sus “Subsidiarias Significativas” (según dicho término se define en el Artículo 1, Regla 1-02 del Reglamento S-X) incurre en algún incumplimiento con cualquier hipoteca, contrato o instrumento en virtud del cual se encuentre insoluta o se garantice o haga constar cualquier Deuda por concepto de dinero obtenido en préstamo cuyo monto principal total ascienda a más de EUA$50 millones, independientemente de que dicha Deuda exista actualmente o se contrate en el futuro, (i) que dé como resultado que dicha Deuda se vuelva o se declare exigible y pagadera antes de su fecha programada de vencimiento, y (ii) que represente un incumplimiento de pago de cuando menos EUA$50 millones de dicha Deuda en la fecha en que dicha cantidad sea exigible y pagadera (después de haber vencido cualquier período de gracia aplicable), ya sea que dicha fecha sea su fecha programada de vencimiento, recompra obligatoria, declaración de vencimiento u otra fecha; en el entendido de que dicha Causa de Incumplimiento se tendrá por subsanada y no subsistente tras el pago de dicha Deuda o la rescisión de dicha declaración; (i) algún tribunal competente dicta sentencia definitiva en contra de la Emisora o cualquier Subsidiaria Significativa, condenándola al pago de EUA$50 millones o más (excluyendo cualesquiera cantidades amparadas por seguros o fianzas), y dicha sentencia no se deshecha, suspende, desestima, paga o en cualquier otra forma libera dentro de los 60 días siguientes a (i) la fecha de prescripción del derecho a interponer un recurso en contra de la misma sin que se haya interpuesto recurso alguno, o (ii) la fecha en que se hayan agotado todos los derechos de interposición de recursos; o (j) ocurre alguna Causa de Incumplimiento por Quiebra.	
 
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If an Event of Default (other than an Event of Default with respect to the Issuer specified in paragraph (j) above) occurs and is continuing, then and in every such case (i) the Trustee, by written notice to the Issuer, or (ii) the Holders of at least 25% in aggregate principal amount of the then outstanding Notes, by written notice to the Issuer and the Trustee, may, and the Trustee at the request of such Holders shall, declare all of the unpaid principal of, and Interest, on all the Notes to be due and payable. Upon such declaration such principal amount, and Interest, shall become immediately due and payable, notwithstanding anything contained in the Indenture or this Note to the contrary, but subject to the provisions of  Article XI  of the Indenture. If the Event of Default with respect to the Issuer specified in paragraph (j) above occurs, all unpaid principal of, and Interest on, the Notes then outstanding shall become automatically due and payable, subject to the provisions of  Article XI  of the Indenture, without any declaration or other act on the part of the Trustee or any Holder.	  	En caso de que haya ocurrido y subsista alguna Causa de Incumplimiento (distinta de una Causa de Incumplimiento respecto a la Emisora conforme a lo previsto en el inciso (i) anterior, entonces y en cada uno de dichos casos (i) el Fiduciario, mediante aviso por escrito a la Emisora, o (ii) los Tenedores de cuando menos el 25% del monto principal insoluto de las Obligaciones que en ese momento se encuentren en circulación, mediante aviso por escrito a la Emisora y al Fiduciario, podrán declarar y a solicitud de dichos Tenedores el Fiduciario declarará exigible y pagadero el importe total del monto principal insoluto de las Obligaciones y los Intereses sobre las mismas. Tras dicha declaración, dicho monto principal e Intereses se volverán inmediatamente exigibles y pagaderos no obstante cualquier disposición en contrario contenida en el Acta de Emisión o las Obligaciones pero sujeto a lo dispuesto en el Artículo XI del Acta de Emisión. En caso de que se actualice la Causa de Incumplimiento prevista en el inciso (j) anterior con respecto a la Emisora, la totalidad del importe principal de las Obligaciones y los Intereses sobre las Obligaciones que se encuentren en circulación en ese momento se volverán inmediatamente exigibles y pagaderos sujeto a lo dispuesto en el Artículo XI del Acta de Emisión, sin necesidad de declaración o acto ulterior alguno por parte del Fiduciario o cualquier Tenedor.	
 	 	
Notwithstanding any other provision in Article VI of the Indenture, if an Event of Default occurs arising out of the Issuer’s breach of its obligation to file or furnish reports or other financial information as required under the Indenture, the Issuer may elect to pay Additional Interest on the Notes as the sole remedy for such Event of Default, and the Trustee and the Holders will not have any right under the Indenture to accelerate the maturity of the Notes as a result of any such Event of Default, except as provided below. If elected, the Issuer shall pay Additional Interest to all Holders at a rate equal to 0.50% per annum through the 180th day after the occurrence of such Event of Default (which shall be the 135 th  day after the end of the 45-day grace period set forth in  Section 6.01(g)  of the Indenture),or such earlier date on which the Event of Default relating to the reporting obligations referred to in this paragraph shall have been cured or waived. On the 181st day, such Additional Interest will cease to accrue (or earlier, if the Event of Default relating to the reporting obligations referred to in this paragraph shall have been cured or waived prior to such 181st day) and, if the Event of Default is continuing on such 181st day, the Notes will be subject to acceleration as provided in the above paragraph. The provisions hereof will not affect the rights of the Holders in the event of the occurrence of any other Event of Default, and are separate and distinct from, and in addition to, the obligation of the Issuer to increase the interest rate of, and the amount of Interest payable on, the Notes pursuant to  Section 4.09 of the Indenture, except as otherwise provided therein. Any Additional Interest paid pursuant to this paragraph will be payable at the times and in the manner provided for the payment of regular Interest on the Notes. In order to elect to pay Additional Interest on the Notes as the sole remedy during the first 180 days after the occurrence of an Event of Default relating to the failure to comply with reporting obligations in accordance with this paragraph, the Issuer must notify all Holders and the Trustee and Paying Agent of such election on or before the close of business on the fifth Business Day after the date on which such Event of Default first occurs. If the Issuer fails to timely give such notice, does not pay such Additional Interest or elects not to pay such Additional Interest, the Notes will be immediately subject to acceleration as provided in the above paragraph.	  	No obstante cualquier otra disposición contenida en el  Artículo VI  del Acta de Emisión, si ocurre alguna Causa de Incumplimiento como resultado del incumplimiento de las obligaciones de presentación o entrega de información financiera de la Emisora en términos del Acta de Emisión, la Emisora tendrá la opción de pagar Intereses Adicionales sobre las Obligaciones a manera de medio exclusivo de subsanar dicha Causa de Incumplimiento, en cuyo caso el Fiduciario y los Tenedores no tendrán derecho alguno al amparo del Acta de Emisión para declarar vencidas las Obligaciones en forma anticipada como resultado de dicha Causa de Incumplimiento, excepto por lo previsto más adelante. De elegir dicha opción, la Emisora pagará Intereses Adicionales a todos los Tenedores a una tasa equivalente al 0.50% anual hasta el 180o. día posterior a la actualización de dicha Causa de Incumplimiento (mismo que coincidirá con el 135o. día siguiente al vencimiento del período de gracia de 45 días previsto en la  Sección 6.01(g) del Acta de Emisión) o hasta aquélla fecha anterior en que se subsane o dispense la Causa de Incumplimiento relativa a las obligaciones de entrega de información citadas en este inciso. Dichos Intereses Adicionales dejarán de devengarse el 181o. día (o antes, en caso de que la Causa de Incumplimiento relativa a las obligaciones de entrega de información citadas en este inciso se subsane o dispense antes de dicho 181o. día) y, si la Causa de Incumplimiento aún subsiste en dicho 181o. día, las Obligaciones estarán sujetas a vencimiento anticipado de conformidad con lo antes dispuesto. Lo antes dispuesto no afectará los derechos de los Tenedores en caso de que ocurra alguna otra Causa de Incumplimiento, y es independiente, distinto y adicional a la obligación de la Emisora de incrementar la tasa de interés y el monto de los Intereses pagaderos sobre las Obligaciones de conformidad con la  Sección 4.09  del Acta de Emisión a menos que la presente disponga lo contrario. Cualesquiera Intereses Adicionales pagaderos de conformidad con lo dispuesto en este párrafo se pagarán en las fechas y la forma prescritas para el pago de Intereses ordinarios sobre las Obligaciones. Para elegir la opción de pagar Intereses Adicionales como medio exclusivo para subsanar durante los primeros 180 días siguientes a la actualización de una Causa de Incumplimiento derivada de la falta de cumplimiento de las obligaciones de entrega de información conforme a este párrafo, la Emisora deberá dar aviso de su elección a todos los Tenedores y al Fiduciario y Agente de Pagos a más tardar al cierre de las horas hábiles del quinto Día Hábil posterior a la fecha en que haya ocurrido por vez primera dicha Causa de Incumplimiento. Si la Emisora incumple con el envío oportuno de dicho aviso, no paga dichos Intereses Adicionales u opta por no pagar dichos Intereses Adicionales, las Obligaciones quedarán inmediatamente sujetas a vencimiento anticipado de conformidad con lo antes dispuesto.	
 	 	
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require an indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. Except in the case of a Default or Event of Default in payment of principal of, or interest on, this Note, the Trustee may withhold from Holders notice of any continuing default (except a default in payment of principal, or Interest, if applicable) if and so long as a committee of the Trustee’s Trust Officers in good faith determines that withholding the notice is in the interests of Holders. The Issuer must furnish an annual compliance certificate to the Trustee.	  	Los Tenedores no podrán hacer valer el Acta de Emisión o las Obligaciones sino en la forma prevista en el Acta de Emisión. El Fiduciario podrá exigir indemnización satisfactoria antes de realizar cualquier acto para exigir el cumplimiento del Acta de Emisión o las Obligaciones. Sujeto a ciertas excepciones, los tenedores de la mayoría del importe principal de las Obligaciones que se encuentren en circulación en un momento dado podrán girar instrucciones al Fiduciario con respecto al ejercicio de los poderes o facultades del mismo. Salvo que se trate de un Incumplimiento o Causa de Incumplimiento con el pago de principal de cualquier Obligación o Intereses sobre la misma, el Fiduciario podrá abstenerse de dar aviso de la subsistencia de cualquier incumplimiento (salvo que se trate de un incumplimiento con el pago del principal o, en su caso, Intereses sobre cualquier Obligación), siempre y cuando un comité formado por sus Delegados Fiduciarios determine de buena fe que el diferimiento de dicho aviso es en interés de los Tenedores. La Emisora deberá proporcionar al Fiduciario un informe anual respecto al cumplimiento de sus obligaciones	
 	 	
11.    TRUSTEE DEALINGS WITH THE ISSUER. The Trustee or any of its Affiliates, in their individual or any other capacities, may make or continue loans to or guaranteed by, accept deposits from and perform services for the Issuer or its Affiliates and may otherwise deal with the Issuer or its Affiliates as if it were not Trustee.	  	11.    OPERACIONES ENTRE EL FIDUCIARIO Y LA EMISORA. El Fiduciario o cualquiera de sus Filiales, ya sea en lo individual o con cualquier otro carácter, podrá otorgar o extender créditos a la Emisora o créditos garantizados por la misma, aceptar depósitos de parte de la Emisora y prestar servicios a ésta o a sus Filiales, y podrá por demás celebrar operaciones con la Emisora o sus Filiales como si no ocupase el cargo de Fiduciario.	
 
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12.    NO RECOURSE AGAINST OTHERS. No director, officer, employee or shareholder, as such, of the Issuer from time to time shall have any liability for any obligations of the Issuer under the Notes or this Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the Notes.	  	12.    AUSENCIA DE RECURSOS CONTRA TERCEROS. Ninguna Persona que de tiempo en tiempo tenga el carácter de consejero, funcionario, empleado o accionista de la Emisora será en razón de dicha circunstancia y en momento alguno responsable de las obligaciones de la Emisora bajo las Obligaciones o el Acta de Emisión, o respecto de cualquier demanda en razón o que esté basada o relacionada con dichas obligaciones o su creación. Por el hecho de aceptar una Obligación, su Tenedor dispensa dicha responsabilidad y los libera de la misma. Esta liberación y dispensa forman parte de la contraprestación por las Obligaciones.	
 	 	
13.    AUTHENTICATION. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.	  	13.    VALIDACIÓN. Esta Obligación no será válida a menos que contenga la firma autógrafa del Fiduciario o un agente de validación.	
 	 	
14.    ABBREVIATIONS. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN CO = tenants in common, TEN ENT = tenants by the entireties, JT TEN = joint tenants with right of survivorship and not as tenants in common, CUST = Custodian and U/G/M/A = Uniform Gifts to Minors Act.	  	14.    ABREVIATURAS. Podrán utilizarse abreviaturas de uso común a nombre de cualquier Tenedor o su cesionario, incluyendo: TEN CO = tenedores en común, TEN INT = tenedores indivisibles, TEN MA = tenedores mancomunados con derechos transferibles por sucesión y no como tenedores en común, CUST = Custodio, y L/U/D/M = Ley Uniforme Sobre las Donaciones a Menores ( Uniform Gifts to Minors Act ).	
 	 	
15.    CONVERSION. Subject to and upon compliance with the provisions of the Indenture, the registered Holder of this Note has the right, at such Holder’s option, to convert at any time after June 30, 2011 and prior to the close of business on the fourth Business Day immediately preceding the Maturity Date (or in case this Note or any portion hereof is subject to a Tax Redemption Notice or a duly completed election for repurchase, before the close of business on the Business Day prior to the Tax Redemption Date or the Change of Control Purchase Date, as the case may be (unless the Issuer defaults in payment due upon redemption or repurchase)) to convert each U.S.$1,000 principal amount of Notes into 88.6211 ADSs of the Issuer, as adjusted from time to time as provided in the Indenture, including with respect to the Make Whole Fundamental Change Premium, upon surrender of this Note to the Issuer at the office or agency maintained for such purpose (and at such other offices or agencies designated for such purpose by the Issuer), accompanied by written notice of conversion duly executed (and if the ADSs to be issued on conversion are to be issued in any name other than that of the registered Holder of this Note by instruments of transfer, in form satisfactory to the Issuer, duly executed by the registered Holder or its duly authorized attorney) and, in case such surrender shall be made during the period after 5 p.m., New York City time on the Record Date immediately preceding any Interest Payment Date through 9:00 a.m. New York City time on such Interest Payment Date, also accompanied by payment, in funds acceptable to the Issuer, of an amount equal to the Interest, otherwise payable on such Interest Payment Date on the principal amount of this Note then being converted;  provided , however , that no such payment need be made if the Notes are surrendered for conversion after the final Record Date. Subject to the aforesaid requirement for a payment in the event of conversion after the close of business on a Record Date immediately preceding an Interest Payment Date, no adjustment shall be made on conversion for Interest accrued hereon or for dividends on ADSs delivered on conversion. The right to convert this Note is subject to the provisions of the Indenture relating to conversion rights in the case of certain consolidations, mergers, or sales or transfers of substantially all the Issuer’s assets.	  	15.    CONVERSIÓN. Sujeto a lo dispuesto en esta Acta de Emisión y una vez que se haya cumplido con lo previsto en la misma, el Tenedor inscrito de esta Obligación tendrá el derecho, a elección de dicho Tenedor, de convertir, en cualquier momento después del 30 de junio de 2011 y antes del cierre de las horas hábiles del cuarto Día Hábil inmediatamente anterior a la Fecha de Vencimiento (o si esta Obligación o parte de la misma está sujeta a un Aviso de Amortización por Motivos Fiscales o a una solicitud de recompra debidamente requisitada, con anterioridad al cierre de las horas hábiles del Día Hábil anterior a la Fecha de Amortización por Motivos Fiscales o la Fecha de Compra por Cambio de Control, según sea el caso (a menos que la Emisora incumpla con el pago correspondiente a dicha amortización o recompra)), cada EUA$1,000 del monto principal de sus Obligaciones a 88.6211 ADSs de la Emisora, razón que estará sujeta a ajuste de tiempo en tiempo conforme a lo previsto en el Acta de Emisión, incluyendo por lo que se refiere a la Prima por Prepago Debido a un Cambio Fundamental, mediante la entrega de esta Obligación a la Emisora en la oficina o agencia mantenida por la misma para dicho efecto (y en cualesquiera otras oficinas o agencias que la Emisora designe para dicho efecto), acompañada de un aviso de conversión debidamente requisitado (y si las ADSs que dicho Tenedor recibirá con motivo de la conversión van a emitirse a nombre de Persona distinta al Tenedor inscrito de esta Obligación, por instrumentos de transmisión en forma satisfactoria para la Emisora, debidamente firmados por el Tenedor o su representante autorizado), y en caso de que la entrega se efectúe durante el período comprendido de las 5:00 p.m., hora de la ciudad de Nueva York, de la Fecha de Registro inmediatamente anterior a cualquier Fecha de Pago de Intereses, a las 9:00 a.m., hora de la ciudad de Nueva York, de dicha Fecha de Pago de Intereses, deberá ir acompañada del pago, en fondos aceptables para la Emisora, de una cantidad igual a los Intereses que de otra forma serían pagaderos en dicha Fecha de Pago de Intereses sobre el monto principal que se está convirtiendo;  en el entendido, sin embargo,  de que no será necesario pago alguno si las Obligaciones se entregan para su conversión después de la Fecha de Registro final. Sujeto al requisito de pago en caso de conversión posterior al cierre de las horas hábiles de la Fecha de Registro inmediatamente anterior a cualquier Fecha de Pago de Intereses, al momento de conversión no se efectuará ajuste alguno por concepto de los dividendos pagados sobre las ADSs que se entreguen como resultado de la conversión. El derecho a convertir esta Obligación está sujeto a las disposiciones en materia de conversión previstas en el Acta de Emisión en caso de ciertas fusiones o consolidaciones, o de la venta o transmisión de sustancialmente todos los activos de la Emisora.	
 	 	
No fractional portions of ADSs shall be issued upon conversion of Notes. If more than one Note shall be surrendered for conversion at one time by the same Holder, the number of full ADSs which shall be issuable upon conversion shall be computed on the basis of the aggregate principal amount of the Notes (or specified portions thereof to the extent permitted hereby) so surrendered for conversion. If any fractional portions of ADSs otherwise would be issuable upon the conversion of any Note or Notes, the Issuer will deliver a number of ADSs rounded up to the nearest whole number of ADSs.	  	No se emitirán fracciones de ADSs con motivo de la conversión de Obligaciones. Si un mismo Tenedor entrega al mismo tiempo más de una Obligación para su conversión, el número de ADSs íntegras a emitirse con motivo de dicha conversión se calculará con base en el monto principal total de las Obligaciones (o las porciones designadas de las mismos, en la medida permitida por la presente) entregadas para su conversión. En caso de que salvo por lo antes dispuesto debieran emitirse fracciones de ADSs con motivo de la conversión de cualquier Obligación o cualesquiera Obligaciones, la Emisora entregará un número de ADSs redondeado al alza para reflejar el número de ADSs completas más próximo.	
 
A-11

 	 	 	
If a Fundamental Change occurs and a Holder elects to convert its Notes, the Issuer will, under certain circumstances, increase the Conversion Rate for the Notes so surrendered for conversion by a number of additional ADSs. A conversion of Notes will be deemed for these purposes to be “in connection with” such Fundamental Change if the notice of conversion of the Notes is received by the Conversion Agent from, and including, the later of (i) 30 scheduled Trading Days before the anticipated effective date of such Fundamental Change and (ii) the date on which the Issuer notifies the Holders of the anticipated effective date of a Fundamental Change (in accordance with the next sentence and the next succeeding sentence) and ending 30 Business Days following the actual effective date of such Fundamental Change (but, in the case of a Change of Control, ending prior to the close of business on the Business Day immediately preceding the Change of Control Purchase Date). The Issuer will notify Holders and the Trustee of the anticipated effective date of such Fundamental Change and issue a press release as soon as practicable after the Issuer first determines the anticipated effective date of such Fundamental Change  provided  that in no event will the Issuer be required to provide such notice to the Holders and the Trustee before the earlier of such time as the Issuer or its Affiliates (a) has publicly disclosed or acknowledged the circumstances giving rise to such anticipated Fundamental Change or (b) is required to publicly disclose under applicable law or the rules of any stock exchange on which the Issuer’s equity is then listed the circumstances giving rise to such anticipated Fundamental Change. The Issuer will use its commercially reasonable efforts to make such determination in time to deliver such notice no later than 30 days prior to such anticipated effective date of such Fundamental Change. The number of additional ADSs by which the Conversion Rate will be increased will be determined by reference to  Section 12.12  of the Indenture, based on the date on which the Fundamental Change occurs or becomes effective and the ADS price paid (or deemed paid) per ADS (or, if applicable, the price per Ordinary Share, transposed into a price per ADS) in the Fundamental Change. In no event will the Issuer increase the Conversion Rate to more than 115.2074 ADSs per U.S.$1,000 principal amount of Notes, subject to adjustment in the same manner as the Conversion Rate as set forth in  Section 12.05(a)  of the Indenture.	  	En caso de que haya ocurrido un Cambio Fundamental y un Tenedor opte por la conversión de sus Obligaciones, la Emisora ajustará la Tasa de Conversión aplicable a las Obligaciones entregadas para su conversión, agregando ADSs adicionales. Para estos efectos, toda conversión de Obligaciones se considerará hecha “en relación con” dicho Cambio Fundamental si el Agente de Conversión recibe el aviso de conversión respectivo dentro del período comprendido desde e incluyendo B- la fecha que coincida con el 30o. Día de Operaciones anterior a la fecha efectiva prevista de dicho Cambio Fundamental y C- la fecha en que la Emisora notifique a los Tenedores la “Fecha Efectiva” prevista de un Cambio Fundamental (de acuerdo con la siguiente oración y la oración que le sigue), la que ocurra más tarde de entre ambas fechas, hasta y que concluya el 30o. Día Hábil posterior a la verdadera Fecha Efectiva (pero, tratándose de un Cambio de Control, que concluya con anterioridad al cierre de las horas hábiles del Día Hábil inmediatamente anterior a la Fecha de Compra por Cambio de Control). La Emisora notificará a los Tenedores y al Fiduciario la Fecha Efectiva prevista de dicho Cambio Fundamental y emitirá un comunicado de prensa tan pronto como ello sea posible después de determinar por vez primera dicha Fecha Efectiva prevista; en el entendido, de que la Emisora no estará obligada en ningún caso a dar dicho aviso a los Tenedores y al Fiduciario antes de que la Emisora o sus Filiales (a) hayan aceptado y revelado al público las circunstancias que hayan dado lugar a dicho Cambio Fundamental previsto, o estén obligadas, de conformidad con la legislación aplicable o las reglas establecidas por cualquier bolsa de valores en la que se encuentren listadas para su cotización las acciones de la Emisora, a revelar al público las circunstancias que dieron lugar a dicho Cambio Fundamental previsto. La Emisora hará esfuerzos comercialmente razonables para realizar dicha determinación a tiempo de poder enviar dicho aviso con cuando menos 30 días de anticipación a dicha Fecha Efectiva prevista. El número de ADSs en que se incrementará la Tasa de Conversión se determinará conforme a lo dispuesto en la Sección 12.12 del Acta de Emisión, con base en la fecha en que ocurra el Cambio Fundamental o el mismo surta efectos, y el precio por ADS pagado (o que se presuma pagado) (o, en su caso, el precio por Acción Ordinaria, transpolado a un precio por ADS) en relación con el Cambio Fundamental. La Emisora no incrementará en ningún caso la Tasa de Conversión a más de 115.2074 ADSs por U.S.$1,000 del principal de las Obligaciones, sujeto a ajuste en los mismos términos que la Tasa de Conversión conforme a lo previsto en la Sección 12.05(a) del Acta de Emisión.	
 	 	
16.    GOVERNING LAW. THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. HOLDERS OF NOTES BY ACCEPTING A BENEFICIAL INTEREST IN THE NOTES AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS NOTE OR ANY TRANSACTION RELATED HERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.	  	16.    LEGISLACIÓN APLICABLE. ESTA OBLIGACIÓN SE REGIRÁ POR LA LEY DEL ESTADO DE NUEVA YORK Y SE INTERPRETARÁ DE CONFORMIDAD CON LA MISMA. EN LA MEDIDA MÁS AMPLIA PERMITIDA POR LA LEGISLACIÓN APLICABLE, LOS TENEDORES DE OBLIGACIONES, POR EL SIMPLE HECHO DE ACEPTAR LOS DERECHOS DE BENEFICIARIO CORRESPONDIENTES A LAS MISMAS, RENUNCIAN A CUALQUIER DERECHO QUE PUEDAN TENER CON RESPECTO A LA CELEBRACIÓN DE JUICIOS ANTE JURADO EN RELACIÓN CON CUALQUIER ACCIÓN, PROCEDIMIENTO O CONTRADEMANDA DERIVADA DE ESTA OBLIGACIÓN O RELACIONADA CON LA MISMA.	
 	 	
17.    AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES. The Issuer has appointed Corporate Creations Network Inc., 1040 Avenue of the Americas # 2400, New York, NY 10018 (U.S.A.) as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or this Note which may be instituted in any U.S. Federal or State court located in the State of New York, County of New York. The Issuer has agreed that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer of a successor agent in The City of New York, New York as authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer. To the extent that the Issuer has or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer hereby irrevocably waives and agrees not to plead or claim such immunity in respect of its obligations under the Indenture or this Note.	  	17.    AGENTE PARA EMPLAZAMIENTOS; SOMETIMIENTO A JURISDICCIÓN; REUNCIA A INMUNIDADES. La Emisora ha nombrado a Corporate Creations Network, Inc., 1040 Avenue of the Americas #2400, New York, NY 10018 (E.U.A.) como agente autorizado (el “ Agente Autorizado ”) al que podrá corrérsele traslado de todos los escritos, emplazamientos y requerimientos relativos a cualquier juicio, acción o procedimiento surgido como resultado o que esté basado en el Acta de Emisión o las Obligaciones y pueda interponerse ante cualquier tribunal federal o estatal con sede en el estado de Nueva York, condado de Nueva York. La Emisora ha convenido que el nombramiento del Agente Autorizado será irrevocable en tanto se encuentre en circulación cualquiera de las Obligaciones o hasta que la Emisora nombre de manera irrevocable y para dicho efecto a un agente autorizado sucesor en la ciudad de Nueva York, Nueva York y dicho agente sucesor haya aceptado su nombramiento. Todo emplazamiento entendido con el Agente Autorizado se considerará en todo sentido como un emplazamiento personal entendido con la Emisora. En la medida en que la Emisora esté sujeta o en el futuro adquiera cualquier inmunidad (soberana o de otro tipo) en contra de cualquier acción, juicio o procedimiento, la jurisdicción de cualquier tribunal, separación en juicio o cualquier proceso legal (ya sea que se trate de emplazamiento, adhesión u otro concepto) respecto de sí misma o de cualquiera de sus bienes, en este acto la Emisora renuncia irrevocablemente y se obliga a no invocar dicha inmunidad respecto de sus obligaciones conforme al Acta de Emisión o a esta Obligación.	
 	 	
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to the Issuer at the address set forth for notice in the Indenture.	  	A solicitud por escrito de cualquier Tenedor, la Emisora proporcionará a dicho Tenedor, sin costo alguno, una copia del Acta de Emisión que contenga el texto de esta Obligación en letra más grande. Dichas solicitudes podrán dirigirse a la Emisora al domicilio previsto para el envío de avisos en el Acta de Emisión.	
 	 	
For purposes of paragraph of Article 210 of the LGTOC, based on the Financial Statements, as of December 31, 2010, the (i) total stockholders’ equity ( capital contable ) of the Issuer was Ps.213,700 million, (ii) the Issuer’s paid-in capital stock was	  	Para efectos de lo dispuesto en la fracción II del artículo 210 de la LGTOC, de acuerdo con los Estados Financieros al 31 de diciembre de 2010: (i) el capital contable de la Emisora ascendía a Ps.213,700 millones; (ii) el capital social pagado de la Emisora	
 
A-12

 	 	 	
Ps.108,722 million, (iii) the amount of the total assets of the Issuer was Ps.515,097 million, (iv) the amount of the total liabilities of the Issuer was Ps.301,397 million and (v) the amount of the net total assets of the Issuer was Ps.213,700 million.	  	ascendía a Ps.108,722 millones; (iii) el valor de los activos totales de la Emisora ascendía a Ps.515,097 millones; (iv) el importe de los pasivos de la Emisora ascendía a Ps.301,397 millones; y (v) el valor del activo total neto de la Emisora ascendía a Ps.213,700 millones.	
 	 	
The corporate purpose of the Issuer, includes, among other items, (i) to acquire or subscribe shares and to participate in the capital or the administration of all types of national or foreign companies or partnerships, and (ii) the issuance, endorsement, receipt, aval and any other form of subscription of negotiable instruments and to carry out all kind of transactions with them.	  	El objeto social de la Emisora comprende, entre otros fines, (i) adquirir o suscribir acciones, y participar en el capital o en la administración de todo tipo de sociedades o asociaciones, nacionales o extranjeras, y (ii) la emisión, endoso, aceptación, aval y cualquier otra forma de suscripción de títulos de crédito y la realización de todo tipo de operaciones con los mismos.	
 	 	
The Spanish version of the Indenture will be registered with the Public Registry of Property and Commerce of Monterrey, Nuevo León, México under mercantile file number 532*9.	  	La versión en español del Acta de Emisión será inscrita en el Registro Público de la Propiedad y del Comercio de la ciudad de Monterrey, Nuevo León, México bajo el folio mercantil 532*9.	
 	 	
This Note has been issued in English and Spanish text side-by-side. In case of any inconsistency or question as to the proper interpretation or construction of this Note between the text in English and the text in Spanish, the English text shall control in all cases.	  	Esta Obligación se emite a dos columnas en inglés y español. En caso de cualquier discrepancia o duda en cuanto a la correcta interpretación de esta Obligación entre sus versiones en inglés y español, imperará en todo caso la versión en inglés.	
 
A-13

SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an interest in another Global Security or for a Definitive Security, or exchanges of a part of another Global Security or Definitive Security for an interest in this Global Security, have been made:

Date of Transfer	  	Amount of Decrease
in Principal Amount
of this Global
Security	  	Amount of Increase
in Principal Amount
of this Global
Security	  	Principal Amount of
this Global Security
following such
increase or decrease	  	Signature of
Authorized
Signatory of Trustee
or Registrar	
 
A-14

FORM OF CONVERSION NOTICE
UNRESTRICTED NOTES
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: Global Finance Americas

Re:	  	3.75% Convertible Subordinated Notes due 2018 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
The undersigned, registered owner of the aggregate amount of Notes specified below, hereby irrevocably exercises the option to convert such Notes, or a portion thereof herein designated (which is U.S.$1,000 or an integral multiple thereof and provided that if only a portion is converted that the portion not so converted is in a minimum principal amount of U.S.$100,000), into Ordinary Shares of the Issuer deliverable in the form of ADSs in accordance with the terms of the Indenture, and directs that the ADSs issuable and deliverable upon the conversion and any Notes representing any unconverted principal amount, be issued and delivered in book-entry form through the facilities of DTC, for credit to the account of the Person indicated below, unless a different name has been indicated below. If ADSs or any portion of the Notes not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer Taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of Interest and Taxes accompanies this notice of conversion.
The undersigned represents that, as of the date hereof, it has not delivered a purchase notice as described under the Indenture with respect to its Notes.
The undersigned acknowledges and agrees that no ADSs will be delivered prior to the effectiveness of any registration statement under the Securities Act relating to the ADSs, unless the Conversion Agent receives a deposit certificate in the form provided under the ADS Deposit Agreement and duly signed and completed on behalf of the applicable beneficial owner. The forms of such certificates are available from the Conversion Agent.
No ADSs will be delivered on conversion until any amount payable by the undersigned on account of Interest is paid, any certificates evidencing specified Notes not held in book-entry form are duly endorsed or assigned to the Issuer or in blank and surrendered and any Taxes or other charges or documents required in connection with the transfer on conversion, and any other required items, are delivered to the Conversion Agent.
 
A-15

Conversion of the specified number of Notes is subject to the requirements established by the Issuer and the ADSs depositary pursuant to the Indenture and the ADS Deposit Agreement, as well as to the procedures of DTC and Indeval, as in effect from time to time. Each conversion shall be deemed to have been effected with respect to a Note (or portion thereof) on the Conversion Date, and the Person in whose name any certificate or certificates for ADSs are issuable upon such conversion shall be deemed to have become on said date the holder of record of the ADSs represented thereby. Any such surrender on any date when the Issuer’s stock transfer books are closed shall constitute the Person in whose name the certificates are to be issued as the record holder thereof for all purposes on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Rate in effect on the date upon which such Note is surrendered. Prior to such conversion, the undersigned will have no rights derived from, or in connection with, the ADSs issuable upon conversion.
Please provide the information requested below, as applicable:
1. PLEASE SPECIFY THE NOTES HELD AND THE PORTION THEREOF TO BE CONVERTED:

Principal amount held: U.S.$	 	 	
 	 	 	
CUSIP number(s):	 	 	
 	 	 	
DTC account where held:	 	 	
 	 	 	
Principal amount being converted (if less than all): U.S.$	 	 	
All Notes to be converted will be converted into ADSs of the Issuer and, together with any unconverted Notes, will be delivered in book-entry form to the DTC account specified above.
2. IF OTHER ARRANGEMENTS ARE DESIRED, please specify the type, number and form of ADSs to be delivered upon conversion and the name(s) of the account holder(s) or registered owner(s), by checking the appropriate boxes and providing the information requested:
ADSs
 	 	 	 	 	
Book Entry:	 	 	 	 	
Number of ADSs:	 	 	 	 	

DTC Account:	 	 	 	 	
Unconverted Notes
 	 	 	 	 	
Book Entry:	 	 	 	 	
Number of ADSs:	 	 	 	 	

DTC Account:	 	 	 	 	
Please sign and date this notice in the space provided below.
[Signature page follows]
 
A-16

DATE:
(Please Print):

(Name)

(Signature)
Title:

 	  	(If the holder is a corporation,
partnership or fiduciary, the title of the
Person signing on behalf of the holder
must be stated)	

(Address)

(City, State and Zip Code)

(Area Code and Telephone Number)

(Fax Number)

(Email Address)

Signature Guarantee:	 	 	
 	 	(Signature must be guaranteed)	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
A-17

FORM OF CONVERSION NOTICE
RESTRICTED NOTES
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: Global Finance Americas

Re:	  	3.75% Convertible Subordinated Notes due 2018 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee, and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
The undersigned, owner of the aggregate amount of Notes specified below, hereby irrevocably exercises the option to convert such Notes, or a portion thereof herein designated (which is U.S.$1,000 or an integral multiple thereof and provided that if only a portion is converted that the portion not so converted is in a minimum principal amount of U.S.$100,000)), into Ordinary Shares of the Issuer deliverable only in the form of ADSs in accordance with the terms of the Indenture, and directs that the ADSs issuable and deliverable upon the conversion and any Notes representing any unconverted principal amount, be issued and delivered in book-entry form through the facilities of DTC, for credit to the account of the Person indicated below, unless restricted ADSs are to be issued and delivered in the event of any conversion of Notes (x) within 12 months after the date of issuance of the Notes, or (y) by any person that is an Affiliate of the Issuer. Restricted ADSs are not eligible for delivery in book-entry form through the facilities of DTC but instead will be issued and delivered as uncertificated ADSs registered in the name of the owner on the books of Citibank, N.A., the ADS Depositary. If ADSs or any portion of the Notes not converted are to be issued in the name of a Person other than the undersigned, the undersigned will pay all transfer Taxes payable with respect thereto. Any amount required to be paid by the undersigned on account of Interest and Taxes accompanies this notice of conversion.
The undersigned represents that, as of the date hereof, it has not delivered a purchase notice as described under the Indenture with respect to its Notes.
The undersigned understands that, upon conversion of Notes, freely transferable ADSs will be delivered only if (i) the Notes are being converted upon the expiration of twelve months after their date of issuance, and (ii) the converting Note holder is not an Affiliate of the Issuer.
No ADSs will be delivered on conversion until any amount payable by the undersigned on account of Interest is paid, any certificates evidencing specified Notes not held in book-entry form are duly endorsed or assigned to the Issuer or in blank and surrendered and any Taxes or other charges or documents required in connection with the transfer on conversion, and any other required items, are delivered to the Conversion Agent.
 
A-18

Conversion of the specified number of Notes is subject to the requirements established by the Issuer and the ADSs depositary pursuant to the Indenture and the ADS Deposit Agreement, as well as to the procedures of DTC and Indeval, as in effect from time to time. Prior to such conversion, the undersigned will have no rights derived from, or in connection with, the ADSs issuable upon conversion.
Please provide the information requested below, as applicable:
1. PLEASE SPECIFY THE NOTES TO BE CONVERTED:

Principal amount being converted: U.S.$	  	 	
CUSIP number(s):	  	 	
 	 	 	
DTC account where held:	  	 	
2. IF NOTES ARE BEING CONVERTED UPON THE EXPIRATION OF A SIX MONTH PERIOD AFTER THE DATE OF ISSUANCE OF THE NOTES AND ADSs IN UNRESTRICTED FORM ARE REQUESTED, the holder of Notes being converted certifies by checking the box that s/he/it is not an Affiliate of the Issuer.
3. IF UNRESTRICTED ADSs ARE BEING REQUESTED, please provide the following ADS delivery instructions:

Name of DTC Participant acting for undersigned:	  	 	
 	 	
DTC Participant Account No.:	  	 	
 	 	
Account No. for undersigned at DTC Participant (f/b/o information):	  	 	
 	 	
Onward Delivery Instructions of undersigned:	  	 	
 	 	
Contact person at DTC Participant:	  	 	
 	 	
Daytime telephone number of contact person at DTC Participant:	  	 	
 	 	
Email of contact person at DTC Participant:	  	 	
 
A-19

4. IF RESTRICTED ADSs ARE BEING REQUESTED, please provide the following ADS delivery instructions:

 	 	
Name of Restricted ADS holder:	  	 	
 	 	
Street Address:	  	 	
 	 	
City, State, and Country:	  	 	
 	 	
Nationality:	  	 	
 	 	
Social Security or Tax Identification Number:	  	 	
Please sign and date this notice in the space provided below.
[Signature page follows]
 
A-20

 	 	 	 	 	
DATE:	 	 	  	 	
 	 	 	
(Please Print):	 	 	  	 	

 	 	(Name)	  	 	

 	 	(Signature)	  	 	
 	 	Title:	  	 	
 	 	 	  	 	
 	 	(If the holder is a corporation, partnership or
fiduciary, the title of the Person signing on behalf
of the holder must be stated)	

 	 	(Address)	  	 	

 	 	(City, State and Zip Code)	  	 	

 	 	(Area Code and Telephone Number)	  	 	

 	 	(Fax Number)	  	 	

 	 	(Email Address)	  	 	
SIGNATURE GUARANTEE

Name of Firm Issuing Guarantee:	 	 	

Authorized Signature of Officer:	 	 	

Title of Officer Signing This Guarantee:	 	 	

Address:	 	 	

 	

Area Code and Telephone Number:	  	 	

Dated:	  	 	
 
A-21

The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
A-22

OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Note repurchased by the Issuer pursuant to Section 3.03 of the Indenture, check the box: [    ]
If you wish to have a portion of this Note purchased by the Issuer pursuant to Section 3.03 of the Indenture, state the amount (in multiples of U.S.$1,000): U.S.$          . (If you elect to have your Note purchased in part, the portion of the Note not redeemed must have an aggregate principle amount of at least U.S.$100,000.)
Your Signature:                                                                                                               
(Sign exactly as your name appears on the other side of this Note)
Date:                                                  
Medallion Signature Guarantee:                                              
 
A-23

EXHIBIT B
FORM OF CERTIFICATION
FOR TRANSFER PURSUANT TO RULE 144
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: Global Finance Americas
 
 	Re:	3.75% Convertible Subordinated Notes due 2018 (the “Notes”) of CEMEX,	
 	    	S.A.B. de C.V. (the “Issuer”) (144A Note CUSIP: 151290 BA0 (restricted),	
 	    	151290 BC6 (unrestricted); Regulation S Note CUSIP: P2253T HW2)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed sale of U.S.$         aggregate principal amount of the Notes, which represent an interest in a Global Security beneficially owned by the undersigned (“Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]

By:	 	 	  	 	

 	 	 	 	 	
Authorized Signature	 	 	  	 	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
 
B-1

The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
B-2

EXHIBIT C
FORM OF CERTIFICATION
FOR TRANSFER PURSUANT TO REGULATION S
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	3.75% Convertible Subordinated Notes due 2018 (the “Notes”) of CEMEX,	
 	    	S.A.B. de C.V. (the “Issuer”) (144A Note CUSIP: 151290 BA0 (restricted),	
 	    	151290 BC6 (unrestricted); Regulation S Note CUSIP: P2253T HW2)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “ Securities Act ”), as the case may be.
In connection with our proposed transfer of U.S.$         aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Securities beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
 
C-1

In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]

By:	 	 	  	 	

 	 	 	 	 	
Authorized Signature]	 	 	  	 	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
C-2

EXHIBIT D
FORM OF CERTIFICATION
FOR TRANSFER PURSUANT TO RULE 144A
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	3.75% Convertible Subordinated Notes due 2018 (the “Notes”) of CEMEX,	
 	    	S.A.B. de C.V. (the “Issuer”) (144A Note CUSIP: 151290 BA0 (restricted),	
 	    	151290 BC6 (unrestricted); Regulation S Note CUSIP: P2253T HW2)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “ Securities Act ”), as the case may be.
In connection with our proposed transfer of U.S.$         aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Securities beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended (the “ Securities Act ”) and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You and the Issuer are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]

By:	 	 	  	 	

 	 	 	 	 	
Authorized Signature]	 	 	  	 	
 
D-1

 	 	 	 	 	
Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
FORM OF RESTRICTED ADS LEGEND
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ SECURITIES ACT ”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER: (1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, AND (2) AGREES FOR THE BENEFIT OF CEMEX, S.A.B. de C.V. (THE “ COMPANY ”) THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS SECURITY OR ANY BENEFICIAL INTEREST HEREIN PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LAST ISSUE DATE HEREOF OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144 UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT: (A) TO THE COMPANY, OR (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, OR (C) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (E) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH CLAUSE (D) OR (E) ABOVE (OTHER THAN A TRANSFER PURSUANT TO RULE 144), THE COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
 
E-1

EXHIBIT F
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER OF RESTRICTED ADSs
(Transfers pursuant to Section 12.11(c) of the Indenture)
Citibank, N.A
C/o Rosanne Devonshire
111 Wall Street, 15th Floor
New York, NY 10003
 
 	Re:	Restricted ADSs of CEMEX, S.A.B. de C.V. (the “Issuer”)	
Reference is hereby made to the Indenture, dated as of March 15, 2011 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, The Bank of New York Mellon, as Trustee and The Bank of New York Mellon, S.A., Institución de Banca Múltiple. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to             ADSs represented by the accompanying certificate(s) that were issued upon conversion of Notes and which are held in the name of             (the “Transferor”) to effect the transfer of such ADSs.
Such ADSs are only being transferred:
CHECK ONE BOX BELOW
 
 	(1)	[    ] to the Issuer; or	
 
 	(2)	[    ] pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or	
 
 	(3)	[    ] pursuant to an exemption from registration under the Securities Act of 1933 provided by Rule 144 thereunder; or	
 
 	(4)	[    ] pursuant to a shelf registration statement of the Issuer that has been declared effective under the Securities Act of 1933, in connection with the transfer of such ADSs; or	
 
 	(5)	[    ] pursuant to and in compliance with Regulation S under the Securities Act of 1933.	
[signature page follows]
 
F-1

Unless one of the boxes is checked, the transfer agent will refuse to register any of the ADSs evidenced by this certificate in the name of any Person other than the registered Holder thereof;  provided, however , that if box (2), (3) or (5) is checked, the transfer agent may require, prior to registering any such transfer of the ADSs such certifications and other information, and if box (3) or (5) is checked such legal opinions, as the Issuer has reasonably requested in writing, by delivery to the transfer agent of a standing letter of instruction, to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.

[Name of Transferor]	
 	 	
By:	 	 	
 	 	Name:
Title:	
 	
Medallion Signature Guarantee:	

Dated:
 
F-2

EXHIBIT G
[To include Financial Statements]
 
G-1

EXHIBIT H
Summary of Terms of the Offering
CEMEX, S.A.B. de C.V.
3.25% Convertible Subordinated Notes Due 2016 (the “2016 Notes”)
3.75% Convertible Subordinated Notes Due 2018 (the “2018 Notes”)
(collectively, the “Notes”)
Terms used herein but not defined herein shall have the respective meanings as set forth in the Preliminary Offering Memorandum dated March 8, 2010 (the “Preliminary Offering Memorandum”). All references to dollar amounts are references to U.S. dollars. References to American Depositary Shares (“ADSs”) are to ADSs of the Issuer. Unless specifically stated otherwise, the information in this pricing term sheet assumes the initial purchasers do not exercise their over-allotment options.
 
Issuer	CEMEX, S.A.B. de C.V. (the “Issuer”)	
 
Security Description	3.25% Convertible Subordinated Notes due 2016	
 
 	3.75% Convertible Subordinated Notes due 2018	
 
Format	144A Global Notes / Regulation S Global Notes	
 
Global Coordinators and Active Bookrunners	Citigroup Global Markets, Inc.	
 
 	J.P. Morgan Securities LLC	
 
Joint Passive Bookrunners	Banco Bilbao Vizcaya Argentaria S.A.	
 
 	Merrill Lynch, Pierce, Fenner & Smith Incorporated	
 
 	BNP Paribas Securities Corp.	
 
 	Barclays Capital Inc.	
 
 	HSBC Securities (USA) Inc.	
 
 	ING Financial Markets LLC	
 
 	RBS Securities Inc.	
 
 	Santander Investment Securities Inc.	
 
Co-Managers	Banca IMI S.p.A.	
 
 	Credit Agricole Securities (USA) Inc.	
 
 	Lazard Capital Markets LLC	
 
 	Mizuho Securities USA Inc.	
 
 	Scotia Capital (USA) Inc.	
 
 	The Williams Capitol Group, L.P.	
 
Identifiers (144A Notes)	2016 Notes:	
 
 	CUSIP: 151290 AZ6	
 
 	ISIN: US151290AZ66	
 
 	CUSIP: 151290 BB8 (unrestricted)	
 
 	ISIN: US151290BB89 (unrestricted)	
 
 	2018 Notes:	
 
 	CUSIP: 151290 BA0	
 
 	ISIN: US151290BA07	
 
 	CUSIP: 151290 BC6 (unrestricted)	
ISIN: US151290BC62 (unrestricted)
 
H-1

Identifiers (Regulation S Notes)	2016 Notes:	
 
 	CUSIP: P2253T HV4	
 	ISIN: USP2253THV46	
 
 	2018 Notes:	
 
 	CUSIP: P2253T HW2	
 	ISIN: USP2253THW29	
 
Principal amount offered	U.S.$800,000,000 aggregate principal amount of 2016 Notes	
 	U.S.$600,000,000 aggregate principal amount of 2018 Notes	
 
Over-allotment option	U.S.$177,500,000 aggregate principal amount of 2016 Notes	
 	U.S.$90,000,000 aggregate principal amount of 2018 Notes	
 
Settlement date	March 15, 2011	
 
Final maturity	The 2016 Notes will mature on March 15, 2016	
 	The 2018 Notes will mature on March 15, 2018	
 
Interest payment	March 15 and September 15, beginning on September 15, 2011	
 
Day count convention	360-day year consisting of twelve 30-day months	
 
Annual interest rate	The 2016 Notes will bear interest at a rate equal to 3.25% per annum from March 15, 2011.	
 
 	The 2018 Notes will bear interest at a rate equal to 3.75% per annum from March 15, 2011.	
 
Offering price	The Notes will be issued at a price of 100% of their principal amount, plus accrued interest, if any, from March 15, 2011	
 
Initial conversion price	Approximately U.S.$11.28 per ADS for the 2016 Notes	
 	Approximately U.S.$11.28 per ADS for the 2018 Notes	
 
Initial conversion rate	88.6211 ADSs per U.S.$1,000 principal amount of 2016 Notes	
 	88.6211 ADSs per U.S.$1,000 principal amount of 2018 Notes	
NYSE last reported sale price on
    March 9, 2011	U.S.$8.68 per ADS	
 
Conversion premium	Approximately 30% above the last NYSE last reported sale price on March 9, 2011 for the 2016 Notes.	
 
 	Approximately 30% above the last NYSE last reported sale price on March 9, 2011 for the 2018 Notes.	
 
Denomination	U.S.$100,000 and integral multiples of U.S.$1,000 in excess thereof	
 
H-2

Conversion Rights	Holders may convert their 2016 Notes into the Issuer’s ADSs (which represent CPOs, which in turn have ordinary shares as underlying securities) at an initial conversion rate of 88.6211 ADSs per U.S.$1,000 principal amount of 2016 Notes after June 30, 2011 and prior to the close of business on the fourth Business Day (as defined in the Preliminary Offering Memorandum) immediately preceding the maturity date for the 2016 Notes. The conversion rate is equivalent to an initial conversion price of approximately U.S.$11.28 per ADS.	
 
 	Holders may convert their 2018 Notes into the Issuer’s ADSs (which represent CPOs, which in turn have ordinary shares as underlying securities) at an initial conversion rate of 88.6211 ADSs per U.S.$1,000 principal amount of 2018 Notes after June 30, 2011 and prior to the close of business on the fourth Business Day (as defined in the Preliminary Offering Memorandum) immediately preceding the maturity date for the 2018 Notes. The conversion rate is equivalent to an initial conversion price of approximately U.S.$11.28 per ADS.	
 
 	The indentures governing the Notes contain a covenant requiring the Issuer to cause a sufficient number of Available Treasury Shares (as defined in the Preliminary Offering Memorandum) or CPOs to be authorized in order to satisfy its conversion obligations, within the time limits set forth in the indentures.	
 
Anti-Dilution Adjustments	The conversion rate may be adjusted if certain events occur.	
 
Make Whole Conversion upon Fundamental Change	If a fundamental change (as defined in the Preliminary Offering Memorandum) occurs and a holder elects to convert its Notes in connection with such fundamental change, the Issuer will, under certain circumstances, increase the conversion rate for the Notes so surrendered for conversion. The following tables below set forth the number of additional ADSs to be received per U.S.$1,000 principal amount of the Notes of each series in connection with a fundamental change as described in the Preliminary Offering Memorandum, based on hypothetical ADS prices and effective dates of the fundamental change.	

 	  	ADS Price for the 2016 Notes	 	
Effective Date	  	$8.68	 	  	$10.00	 	  	$12.50	 	  	$15.00	 	  	$.17.50	 	  	$20.00	 	  	$25.00	 	  	$30.00	 	  	$35.00	 	  	$40.00	 	  	$50.00	 	
March 15, 2011	  	 	26.5863	  	  	 	21.3492	  	  	 	13.8100	  	  	 	9.6178	  	  	 	7.0672	  	  	 	5.4033	  	  	 	3.4274	  	  	 	2.3291	  	  	 	1.6453	  	  	 	1.1860	  	  	 	0.6241	  	
March 15, 2012	  	 	26.5863	  	  	 	21.1705	  	  	 	13.1132	  	  	 	8.8004	  	  	 	6.2785	  	  	 	4.6942	  	  	 	2.8961	  	  	 	1.9418	  	  	 	1.3631	  	  	 	0.9789	  	  	 	0.5104	  	
March 15, 2013	  	 	26.5863	  	  	 	20.5085	  	  	 	11.9045	  	  	 	7.5390	  	  	 	5.1335	  	  	 	3.7084	  	  	 	2.2015	  	  	 	1.4568	  	  	 	1.0202	  	  	 	0.7330	  	  	 	0.3800	  	
March 15, 2014	  	 	26.5863	  	  	 	19.1511	  	  	 	9.9350	  	  	 	5.6498	  	  	 	3.5243	  	  	 	2.3947	  	  	 	1.3475	  	  	 	0.8894	  	  	 	0.6305	  	  	 	0.4581	  	  	 	0.2375	  	
March 15, 2015	  	 	26.5863	  	  	 	16.3850	  	  	 	6.4923	  	  	 	2.7265	  	  	 	1.3119	  	  	 	0.7638	  	  	 	0.4115	  	  	 	0.2872	  	  	 	0.2117	  	  	 	0.1567	  	  	 	0.0799	  	
March 15, 2016	  	 	26.5863	  	  	 	11.3789	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	  	 	0.000	  	
 
H-3

The exact ADS prices and effective dates may not be set forth in the table above, in which case if the ADS price is:
 
 	•	 	between two adjacent ADS price amounts in the table or the effective date is between two adjacent effective dates in the table, the number of additional ADSs will be determined by a straight-line interpolation between the number of additional ADSs set forth for the higher and lower ADS price amounts and the two dates based on a 365-day year, as applicable.	
 
 	•	 	greater than U.S.$50 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of the 2016 Notes.	
 
 	•	 	less than U.S.$8.68 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of the 2016 Notes.	
Notwithstanding the foregoing, in no event will the total number of ADSs issuable upon conversion exceed 115.2074 per U.S.$1,000 principal amount of 2016 Notes, although that maximum is subject to adjustment in the same manner as the conversion rate as set forth under “Description of Notes—Conversion Rights—Conversion Rate Adjustments” in the Preliminary Offering Memorandum.

 	  	ADS Price for the 2018 Notes	 	
Effective Date	  	$8.68	 	  	$10.00	 	  	$12.50	 	  	$15.00	 	  	$.17.50	 	  	$20.00	 	  	$25.00	 	  	$30.00	 	  	$35.00	 	  	$40.00	 	  	$50.00	 	
March 15, 2011	  	 	26.5863	  	  	 	22.2972	  	  	 	15.5061	  	  	 	11.4846	  	  	 	8.8818	  	  	 	7.0843	  	  	 	4.7979	  	  	 	3.4276	  	  	 	2.5283	  	  	 	1.9012	  	  	 	1.1034	  	
March 15, 2012	  	 	26.5863	  	  	 	22.2425	  	  	 	15.1238	  	  	 	11.0096	  	  	 	8.4052	  	  	 	6.6408	  	  	 	4.4439	  	  	 	3.1544	  	  	 	2.3186	  	  	 	1.7396	  	  	 	1.0059	  	
March 15, 2013	  	 	26.5863	  	  	 	21.9970	  	  	 	14.5099	  	  	 	10.3128	  	  	 	7.7326	  	  	 	6.0294	  	  	 	3.9707	  	  	 	2.7968	  	  	 	2.0483	  	  	 	1.5340	  	  	 	0.8843	  	
March 15, 2014	  	 	26.5863	  	  	 	21.6170	  	  	 	13.6547	  	  	 	9.3653	  	  	 	6.8333	  	  	 	5.2239	  	  	 	3.3622	  	  	 	2.3459	  	  	 	1.7127	  	  	 	1.2818	  	  	 	0.7379	  	
March 15, 2015	  	 	26.5863	  	  	 	20.7665	  	  	 	12.2837	  	  	 	7.9616	  	  	 	5.5607	  	  	 	4.1217	  	  	 	2.5687	  	  	 	1.7759	  	  	 	1.2969	  	  	 	0.9734	  	  	 	0.5617	  	
March 15, 2016	  	 	26.5863	  	  	 	19.2156	  	  	 	10.1309	  	  	 	5.9021	  	  	 	3.7925	  	  	 	5.6589	  	  	 	1.5833	  	  	 	1.0938	  	  	 	0.8078	  	  	 	0.6129	  	  	 	0.3565	  	
March 15, 2017	  	 	26.5863	  	  	 	16.3088	  	  	 	6.5195	  	  	 	2.8036	  	  	 	1.4054	  	  	 	0.8579	  	  	 	0.4936	  	  	 	0.3566	  	  	 	0.2713	  	  	 	0.2088	  	  	 	0.1217	  	
March 15, 2018	  	 	26.5863	  	  	 	11.3789	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	  	 	0.0000	  	
The exact ADS prices and effective dates may not be set forth in the table above, in which case if the ADS price is:
 
 	•	 	between two adjacent ADS price amounts in the table or the effective date is between two adjacent effective dates in the table, the number of additional ADSs will be determined by a straight-line interpolation between the number of additional ADSs set forth for the higher and lower ADS price amounts and the two dates based on a 365-day year, as applicable.	
 
 	•	 	greater than U.S.$50 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of 2018 Notes.	
 
 	•	 	less than U.S.$8.68 per ADS (subject to adjustment in the same manner as the ADS prices set forth in the column headings of the tables above), no additional ADSs will be issued upon conversion of 2018 Notes.	
 
H-4

Notwithstanding the foregoing, in no event will the total number of ADSs issuable upon conversion exceed 115.2074 per U.S.$1,000 principal amount of 2018 Notes, although that maximum is subject to adjustment in the same manner as the conversion rate as set forth under “Description of Notes—Conversion Rights—Conversion Rate Adjustments” in the Preliminary Offering Memorandum.
 
Repurchase at Option of Holder	•	 	Other than in the event of a change of control, Holders may not require the Issuer to repurchase any Notes prior to their stated maturity date.	
 
 	•	 	If a change of control (as defined in the Preliminary Offering Memorandum) occurs at any time, each Holder will have the right, at that holder’s option, to require the Issuer to purchase all or part of its Notes for cash at a repurchase price equal to 100% of their principal amount, plus accrued and unpaid interest (including additional interest, if any) and additional amounts, if any, up to, but excluding, the repurchase date.	
 
Redemptions	•	 	Other than in the event of a tax redemption, the Issuer may not redeem any Notes prior to their stated maturity date.	
 
 	•	 	In the event of certain changes in the withholding tax treatment relating to payments on the Notes of a series, the Issuer will have the option to redeem the Notes of a series, in whole but not in part, at a redemption price equal to 100% of the outstanding principal amount of the Notes of such series plus any accrued and unpaid interest to the date fixed for redemption and any additional amounts that may be payable, so long as the Issuer is not prohibited from having such an option under the Financing Agreement.	
 
 	•	 	Upon the Issuer giving notice that it will redeem the Notes of a series because of such a change in the withholding tax treatment, holders will have the option to convert their notes of such series as if a fundamental change had occurred.	
 
Use of Proceeds	The estimated net proceeds from this offering, after deducting the initial purchasers’ discounts and commissions and estimated offering expenses, will be approximately U.S.$1,347 million, assuming the initial purchasers do not exercise their over-allotment options, and approximately U.S.$1,637 million if they exercise their over-allotment options in full. The Issuer intends to use approximately U.S.$187,000,000 of the net proceeds from this offering to pay the cost of the capped call transactions described in the Preliminary Offering Memorandum and expect to use a portion of the net proceeds from the sale of additional Notes in the event the initial purchasers exercise their over-allotment options to increase the number of ADSs underlying the capped call transactions on a proportionate basis, and the Issuer intends to use the remaining net proceeds to repay indebtedness, including indebtedness under the Financing Agreement and CBs.	
 
H-5

Capped Call Option	In connection with this offering, the Issuer expects to enter into capped call transactions with one or more financial institutions, covering, subject to customary anti-dilution adjustments, approximately 124.1 million of the Issuer’s ADSs, assuming the initial purchasers do not exercise their over-allotment options. If the initial purchasers exercise their options to purchase additional Notes to cover over-allotments, the Issuer expects to increase the number of ADSs underlying the capped call transactions on a proportionate basis. Because the capped call transactions are cash settled, they will not provide an offset to any ADSs the Issuer may deliver to holders upon conversion of the Notes. The capped call transactions have a cap price 90% higher for the 2016 Notes and 110% higher for the 2018 Notes than the closing price of the Issuer’s ADSs on March 9, 2011.	
 
 	For purposes of hedging these capped call transactions, the Issuer expects that the counterparties to the capped call transactions (or affiliates thereof) (i) may enter into various over-the-counter cash-settled derivative transactions with respect to the Issuer’s CPOs or ADSs and/or purchase the Issuer’s CPOs or ADSs in secondary market transactions concurrently with and shortly after the pricing of the Notes; (ii) and may enter into or unwind various over-the-counter derivatives and/or purchase or sell the Issuer’s CPOs or ADSs in secondary market transactions following the pricing of the Notes and prior to the maturity of the Notes.	
 
New York Stock Exchange Symbol for the Issuer’s ADSs	CX	
 
Governing law	New York	
 
Clearing	The Depositary Trust Company	
Additional Information

1.	Capitalization of CEMEX	
The following table sets forth our consolidated cash and temporary investments, indebtedness and capitalization as of December 31, 2010 (1) on an actual basis; (2) as adjusted to give effect to (i) the issuance of the January 2011 Notes, (ii) the 2011 Prepayments, and (iii) the 2011 Private Exchange; and (3) as further adjusted to give effect to the issuance and sale in this offering of U.S.$ 1,400 million aggregate principal amount of the Notes, the payment of the initial purchasers’ discounts and commissions and the estimated expenses in connection with this offering, and the application of the estimated net proceeds as described under “Use of Proceeds.” The offering of the 2016 Notes is independent of, and not conditioned upon, the offering of the 2018 Notes. The offering of the 2018 Notes is independent of, and not conditioned upon, the offering of the 2016 Notes.
The financial information set forth below is based on information derived from our financial statements, which have been prepared in accordance with MFRS, which differ in significant respects from U.S. GAAP. For further information about our financial presentation, see “Selected Consolidated Financial Information.”
[Table in next page]
 
H-6

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
 	  	As of December 31, 2010	 	
 	  	Actual	 	  	As adjusted(1)	 	  	As further adjusted(2)	 	
 	  	 	 	  	(in millions of Pesos and Dollars)	 	
Cash and investments(3)	  	Ps	8,354	  	  	Ps	13,280	  	  	U.S.$	1,074	  	  	Ps	13,280	  	  	U.S.$	1,074	  	
 	 	 	 	 	 	
Short-term debt(4)	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Secured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Banobras(5)	  	Ps	36	  	  	Ps	36	  	  	U.S.$	3	  	  	Ps	36	  	  	U.S.$	3	  	
Bancomext(5)	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Other secured(6)	  	 	4,358	  	  	 	1,197	  	  	 	97	  	  	 	1,197	  	  	 	97	  	
Unsecured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Other unsecured	  	 	1,243	  	  	 	517	  	  	 	42	  	  	 	517	  	  	 	42	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total short-term debt	  	 	5,637	  	  	 	1,750	  	  	 	142	  	  	 	1,750	  	  	 	142	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Long-term debt	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Secured by the Collateral	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Financing Agreement	  	 	118,241	  	  	 	117,626	  	  	 	9,517	  	  	 	104,500	  	  	 	8,455	  	
CBs(7)	  	 	8,867	  	  	 	6,169	  	  	 	499	  	  	 	4,628	  	  	 	374	  	
Senior Secured Notes(8)(9)	  	 	42,496	  	  	 	56,405	  	  	 	4,564	  	  	 	56,405	  	  	 	4,564	  	
Other secured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Banobras	  	 	169	  	  	 	169	  	  	 	14	  	  	 	169	  	  	 	14	  	
Bancomext	  	 	2,007	  	  	 	2,007	  	  	 	162	  	  	 	2,007	  	  	 	162	  	
Unsecured	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
CEMEX España Euro Notes(10)	  	 	14,834	  	  	 	14,834	  	  	 	1,200	  	  	 	14,834	  	  	 	1,200	  	
Other unsecured	  	 	2,874	  	  	 	2,874	  	  	 	233	  	  	 	2,874	  	  	 	233	  	
Optional Convertible Subordinated Notes(11)	  	 	7,693	  	  	 	7,693	  	  	 	622	  	  	 	7,693	  	  	 	622	  	
The Notes(12)	  	 	—  	  	  	 	—  	  	  	 	—  	  	  	 	13,797	  	  	 	1,116	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total long-term debt	  	 	197,181	  	  	 	207,777	  	  	 	16,811	  	  	 	206,907	  	  	 	16,740	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total debt	  	 	202,818	  	  	 	209,527	  	  	 	16,953	  	  	 	208,657	  	  	 	16,882	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Liability component of Mandatory Convertible Notes(13)	  	 	1,994	  	  	 	1,994	  	  	 	161	  	  	 	1,994	  	  	 	161	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Stockholders’ equity	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Non-controlling interest	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Perpetual debentures(14)	  	 	16,310	  	  	 	14,342	  	  	 	1,160	  	  	 	14,342	  	  	 	1,160	  	
Other	  	 	3,214	  	  	 	3,214	  	  	 	260	  	  	 	3,214	  	  	 	260	  	
Controlling interest(11)(12)(13)	  	 	194,176	  	  	 	194,176	  	  	 	15,710	  	  	 	197,623	  	  	 	15,989	  	
Total stockholders’ equity	  	 	213,700	  	  	 	211,732	  	  	 	17,130	  	  	 	215,179	  	  	 	17,409	  	
 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	  	 	 	 	
Total capitalization(15)	  	 	418,512	  	  	 	423,253	  	  	 	34,244	  	  	 	425,830	  	  	 	34,452	  	

(1)	Reflects the issuance of U.S.$1.0 billion aggregate principal amount of the January 2011 Notes, the 2011 Prepayments and the 2011 Private Exchange. Amounts in Dollars have been converted from Pesos at an exchange rate of Ps12.36 to U.S.$1.00, the CEMEX accounting rate as of December 31, 2010.	
(2)	Reflects additional application of the net proceeds from this offering. Assumes the initial purchasers do not exercise their over-allotment options. Amounts in Dollars have been converted from Pesos at an exchange rate of Ps12.36 to U.S.$1.00, the CEMEX accounting rate as of December 31, 2010.	
(3)	In the “as adjusted” and “as further adjusted” columns, includes cash used to create a reserve for CBs maturing in September 2011 of approximately U.S.$81 million.	
(4)	Includes current portion of long-term debt.	
(5)	Represent obligations with Mexican development banks, which are secured by fixed assets.	
 
H-7

(6)	Represent long-term CBs with maturities during 2011, for which U.S.$81 million of cash has been reserved.	
(7)	Represent CBs maturing in 2012 and thereafter.	
(8)	Includes (i) U.S.$1,250,000,000 aggregate principal amount of 9.50% Senior Secured Notes due 2016 and €350,000,000 aggregate principal amount of 9.625% Senior Secured Notes due 2017 issued by CEMEX Finance LLC on December 14, 2009; (ii) U.S.$500,000,000 additional aggregate principal amount of 9.50% Senior Secured Notes due 2016 issued by CEMEX Finance LLC on January 19, 2010, (iii) U.S.$1,067,665,000 aggregate principal amount of 9.25% Senior Secured Notes due 2020 and €115,346,000 aggregate principal amount of 8.875% Senior Secured Notes due 2017 issued by CEMEX España, acting through its Luxembourg branch, on May 12, 2010 (iv) U.S.$1,000,000,000 aggregate principal amount of 9.000% Senior Secured Notes due 2018 issued by CEMEX on January 11, 2011, and (v) U.S.$125,331,000 additional aggregate principal amount of 9.25% Senior Secured Notes due 2020 issued by CEMEX España, acting through its Luxembourg branch, on March 4, 2011.	
(9)	Amounts in Dollars have been converted from Euros at an exchange rate of U.S.$1.3335 to €1.00, the CEMEX foreign exchange rate as of December 31, 2010.	
(10)	Issued by CEMEX Finance Europe B.V., a special purpose vehicle and wholly-owned subsidiary of CEMEX España, and solely guaranteed by CEMEX España.	
(11)	Under MFRS C-12, the Optional Convertible Subordinated Notes represent a compound instrument, which has a liability component and an equity component. The liability component amounted to U.S.$622 million as of December 31, 2010 and U.S.$614 million at issuance. The equity component, which represents a premium over the option of the noteholders to convert into equity, was recognized net of commissions, within “Other equity reserves” and amounted to U.S.$93 million at issuance (see note 12A and 16B to our consolidated financial statements included elsewhere in this offering memorandum). If the conversion option is exercised, this amount will be reclassified as additional paid-in capital. Although we have not completed our U.S. GAAP reconciliation of our 2010 financial statements, we currently anticipate that there will be a new reconciliation item in our U.S. GAAP reconciliation of our 2010 financial statements in respect of the Optional Convertible Subordinated Notes, the entire principal amount of which we expect will be recorded as debt until conversion under U.S. GAAP. We cannot assure you that we will not identify additional reconciliation items or that this reconciliation item will be reflected therein in accordance with our current expectations.	
(12)	Under MFRS C-12, the Notes, like the Optional Convertible Subordinated Notes referred to in note (11) above, represent a compound instrument, which has a liability component and an equity component, and we expect to have a similar U.S. GAAP reconciliation item in respect of the Notes in our future financial statements. However, the Notes will not be considered as debt for purposes of the leverage ratio calculations under the Financing Agreement. The “as further adjusted” column reflects (i) the expected liability component of the Notes of U.S.$1,116 million, calculated as of the date of this offering memorandum and (ii) the expected equity component of the Notes of U.S.$279 million, calculated net of commissions as of the date of this offering memorandum. The equity component, which represents a premium over the option of the noteholders to convert into equity, is expected to be recognized net of commissions, within “Other equity reserves,” and if the conversion option is exercised, will be reclassified as additional paid-in capital.	
(13)	Under MFRS, the Mandatory Convertible Securities issued in Mexico on December 10, 2009 in exchange for CBs represent a combined instrument with liability and equity components. The liability component, approximately Ps1,994 million (U.S.$161 million) as of December 31, 2010, corresponds to the net present value of interest payments due under the Mandatory Convertible Securities, assuming no early conversion, and was recognized under “Other Financial Obligations” in our balance sheet. The equity component, approximately Ps1,971 million (U.S.$159 million) as of December 31, 2010, represents the difference between principal amount and the liability component, and was recognized within “Other equity reserves” net of commissions in our balance sheet. See notes 12A and 16B to our consolidated financial statements included elsewhere in this offering memorandum.	
(14)	Issued by special purpose vehicles. In accordance with MFRS, these securities are accounted for as equity due to the fact that they do not have a specified maturity date and our option to defer payment of interest. However, for purposes of our U.S. GAAP reconciliation, we record these debentures as debt and interest payments thereon as part of financial expenses in our consolidated income statement.	
(15)	As used in this table, total capitalization equals short- and long-term debt plus the Mandatory Convertible Notes plus the Notes and plus total stockholders’ equity.	
 
H-8

Exhibit 4.22.3
SUPPLEMENTAL INDENTURE NO. 3
 
SUPPLEMENTAL INDENTURE No. 3, dated as of June 6, 2013, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a  besloten vennootschap  organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of April 5, 2011, as supplemented by Supplemental Indenture No. 1, dated as of September 17, 2012, and Supplemental Indenture No. 2, dated as of March 25, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s Floating Rate Senior Secured Notes due 2015 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 3;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 3 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 3 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 3.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01   Effect of This Supplemental Indenture No. 3. This Supplemental Indenture No. 3 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 3, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 3 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 3 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 3 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 3.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 3.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 3 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 3, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
 
 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalezs	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note
Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 3 (Floating Rate Senior Secured Notes due 2015)]

 

 

 
 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 3 (Floating Rate Senior Secured Notes due 2015)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 3 (Floating Rate Senior Secured Notes due 2015)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 
 
[Signature page to Supplemental Indenture No. 3 (Floating Rate Senior Secured Notes due 2015)]

 

 

SCHEDULE I
EXISTING GUARANTORS

 	1.	 	CEMEX México, S.A. de C.V.	
 	2.	 	CEMEX España, S.A.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	

 
Exhibit 4.22.4
 
SUPPLEMENTAL INDENTURE NO. 4
 
SUPPLEMENTAL INDENTURE No. 4, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of April 5, 2011, as supplemented by Supplemental Indenture No. 1, dated as of September 17, 2012, Supplemental Indenture No. 2, dated as of March 25, 2013, and Supplemental Indenture No. 3, dated as of June 6, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s Floating Rate Senior Secured Notes due 2015 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 4;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 4 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 4 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01    Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 4.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01    Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.    Effect of This Supplemental Indenture No. 4. This Supplemental Indenture No. 4 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 4, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 4 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 4 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02    Governing Law.  This Supplemental Indenture No. 4 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03    Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 4.
 
Section 3.04    Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 4.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05    The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 4 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 4, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
 
 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:   	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 4 (Floating Rate Senior Secured Notes due 2015)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 4 (Floating Rate Senior Secured Notes due 2015)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 4 (Floating Rate Senior Secured Notes due 2015)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name: 	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

[Signature page to Supplemental Indenture No. 4 (Floating Rate Senior Secured Notes due 2015)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX México, S.A. de C.V.	
 	2.	 	CEMEX España, S.A.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	CEMEX Egyptian Investments II B.V.	

 
Exhibit 4.23.3
 
SUPPLEMENTAL INDENTURE NO. 3
 
SUPPLEMENTAL INDENTURE No. 3, dated as of June 6, 2013, among CEMEX España, S.A., a corporation ( sociedad anónima ) organized under the laws of Spain, acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on  Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a  besloten vennootschap organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of March 28, 2012, as supplemented by Supplemental Indenture No. 1 thereto, dated as of September 17, 2012, and Supplemental Indenture No. 2 thereto, dated as of March 25, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019 (together, the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 3;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 3 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 3 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01    Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 3.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01    Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.    Effect of This Supplemental Indenture No. 3. This Supplemental Indenture No. 3 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 3, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 3 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 3 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02    Governing Law.  This Supplemental Indenture No. 3 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03    Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 3.
 
Section 3.04    Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 3.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05    The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 3 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 3, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 

3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 3 to be duly executed as of the date first written above.

 	CEMEX España, S.A., acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	By:	 	/s/ Fernando Jose Reiter Landa	
 	 	 	Name:	 	Fernando Jose Reiter Landa	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX, S.A.B. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 3 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 3 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 3 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 
 
[Signature page to Supplemental Indenture No. 3 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX, S.A.B. de C.V.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	

 
Exhibit 4.23.4
 
SUPPLEMENTAL INDENTURE NO. 4
 
SUPPLEMENTAL INDENTURE No. 4, dated as of April 1, 2014, among CEMEX España, S.A., a corporation ( sociedad anónima ) organized under the laws of Spain, acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on  Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of March 28, 2012, as supplemented by Supplemental Indenture No. 1 thereto, dated as of September 17, 2012, Supplemental Indenture No. 2 thereto, dated as of March 25, 2013, and Supplemental Indenture No. 3 thereto, dated as of June 6, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019 (together, the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 4;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 4 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 4 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 4.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 4. This Supplemental Indenture No. 4 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 4, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 4 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 4 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 4 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 4.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 4.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 4 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 4, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
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liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.

 	CEMEX España, S.A., acting through its Luxembourg branch, CEMEX España, S.A., Luxembourg Branch	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX, S.A.B. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 4 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 4 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 4 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name: 	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 4 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name: 	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

 
 
[Signature page to Supplemental Indenture No. 4 (9.875% U.S. Dollar-Denominated Senior Secured Notes Due 2019 and 9.875% Euro-Denominated Senior Secured Notes Due 2019)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX, S.A.B. de C.V.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	CEMEX Corp.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	CEMEX Egyptian Investments II B.V.	

Exhibit 4.24.1
EXECUTION VERSION
DATED 16 October 2013
AMENDMENT AGREEMENT
between
CEMEX, S.A.B. de C.V.
acting for itself and as agent on behalf of each other Obligor
and
CITIBANK INTERNATIONAL PLC
acting for itself and as Agent on behalf of the Finance Parties

RELATING TO THE FACILITIES AGREEMENT
DATED 17 SEPTEMBER 2012

THIS AGREEMENT is dated 16 October 2013 and made between:
 
(1)	CEMEX, S.A.B. de C.V. (the “Parent”) (for itself, and in accordance with Clauses 33.8 and 37.1 of the Facilities Agreement, on behalf of each Obligor); and	
 
(2)	CITIBANK INTERNATIONAL PLC, for itself and as agent of the Finance Parties under the Facilities Agreement (the “ Agent ”).	
IT IS AGREED as follows:
 
1.	DEFINITIONS AND INTERPRETATION	
 
1.1	Definitions	
In this Agreement, “Facilities Agreement” means the facilities agreement dated 17 September 2012 between (amongst others) (1) CEMEX, S.A.B. de C.V.; (2) the financial institutions, noteholders and other entities named therein in their capacity as Original Creditors; (3) Citibank International plc acting as Agent; and (4) Wilmington Trust (London) Limited acting as Security Agent.
 
1.2	Incorporation of defined terms	
 
 	(A)	Unless a contrary indication appears, a term defined in the Facilities Agreement has the same meaning in this Agreement.	
 
 	(B)	The principles of construction set out in the Facilities Agreement shall have effect as if set out in this Agreement.	
 
1.3	Clauses	
In this Agreement any reference to a “Clause” or the “Schedule” is, unless the context otherwise requires, a reference to a Clause or the Schedule to this Agreement.
 
1.4	Third party rights	
Except as otherwise expressly provided in a Finance Document, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement.
 
1.5	Designation	
In accordance with the Facilities Agreement, the Parent and the Agent designate this Agreement as a Finance Document.
 
2.	AMENDMENT	
With effect from the date of this Agreement, the Facilities Agreement shall be amended as set out in the Schedule ( Amendments to Facilities Agreement ) to this Agreement.

3.	REPRESENTATIONS	
The Repeating Representations are deemed to be made by each Obligor (by reference to the facts and circumstances then existing) on the date of this Agreement.
 
4.	CONTINUITY, GUARANTEE CONFIRMATION, NO NOVATION AND FURTHER ASSURANCE	
 
4.1	Continuing obligations	
The provisions of the Facilities Agreement and the other Finance Documents shall, save as amended by this Agreement, continue in full force and effect.
 
4.2	Guarantee confirmation	
The Parent (acting on behalf of each of the Guarantors) hereby confirms for the benefit of the Finance Parties that, notwithstanding any amendments which may be made to the Facilities Agreement pursuant to this Agreement, the guarantee and indemnity obligations undertaken by each of the Guarantors pursuant to Clause 18 ( Guarantee and Indemnity ) of the Facilities Agreement shall remain in full force and effect.
 
4.3	No novation	
The amendment of the Facilities Agreement does not constitute a novation of the obligations of the parties thereto.
 
4.4	Further assurance	
The Parent shall, at the request of the Agent and at its own expense, do all such acts and things necessary or desirable to give effect to the amendments effected or to be effected pursuant to this Agreement.
 
5.	COSTS AND EXPENSES	
The Parent shall within fifteen days of receipt of demand pay (or procure to be paid to) the Agent the amount of all legal fees reasonably incurred by the Agent in connection with the negotiation, preparation, printing and execution of this Agreement.
 
6.	CONSENT OF THE MAJORITY CREDITORS	
Pursuant to Clause 37.1 (Amendments and waivers; Required consents) of the Facilities Agreement, the Agent, by its signature to this Agreement, hereby confirms that it has received the consent of the Majority Creditors to the amendments to the Facilities Agreement as set out in Clause 2 ( Amendment ) and has been authorised by them to execute this Agreement on their behalf.
 
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7.	MISCELLANEOUS	
 
7.1	Incorporation of terms	
The provisions of Clause 33 (Notices), Clause 35 (Partial Invalidity), Clause 36 (Remedies and Waivers) and Clause 41 ( Enforcement ) of the Facilities Agreement shall be incorporated into this Agreement as if set out in full in this Agreement and as if references in those clauses to “this Agreement” or “the Finance Documents” or “any Finance Document” are references to this Agreement.
 
7.2	Counterparts	
This Agreement may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of this Agreement.
 
8.	GOVERNING LAW	
This Agreement and all non-contractual obligations arising from or connected with it are governed by English law.
 
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SCHEDULE
AMENDMENTS TO FACILITIES AGREEMENT
 
1.	Amendments to Clause 1.1 (Definitions)	
 
 	(A)	The following new definitions shall be inserted in alphabetical order in Clause 1.1 (Definitions):	
““CEMEX España Operaciones” means CEMEX España Operaciones S.L.U..”
““Czech Acquisition” means the acquisition of any asset, undertaking or business located in the Czech Republic by a member (or members) of the Group from a member (or members) of the Holcim Group.”
““European Transaction” means the Czech Acquisition, the West German Disposal and the Spanish Combination.”
““Holcim” means Holcim Ltd.”
““Holcim Group” means Holcim and each of its Subsidiaries for the time being.”
““Spanish Combination” means the shareholders agreement and other arrangements entered into or to be entered into between CEMEX España (and any other member of the Group) and a member (or members) of the Holcim Group in relation to CEMEX España Operaciones, pursuant to which a member (or members) of the Holcim Group will contribute assets to CEMEX España Operaciones or its subsidiaries in consideration for the issue to or acquisition by a member (or members) of the Holcim Group of shares in CEMEX España Operaciones.”
““Spanish Combination Termination Mechanism” means the ability of a Group member on or after the fifth anniversary of completion of the Spanish Combination to acquire all of the shares in CEMEX España Operaciones held by any member of the Holcim Group at the relevant time (whether such shares were issued as part of completion of the Spanish Combination or were acquired or subscribed for as part of any capital contribution in CEMEX España Operaciones after completion of the Spanish Combination or otherwise).”
““West German Disposal” means the disposal of any asset, undertaking or business located in western Germany and in the Netherlands or France (to the extent any such asset, undertaking or business in the Netherlands or France is related to operations in western Germany) by a member (or members) of the Group to a member (or members) of the Holcim Group.”
 
 	(B)	The definition of “Financial Indebtedness” in Clause 1.1 (Definitions) shall be amended as follows:	
 
 	(i)	by deleting “.” at the end of paragraph (l);	

 	(ii)	by inserting “,” at the end of paragraph (l); and	
 
 	(iii)	by inserting a new line after paragraph (l) as follows:	
 
 	    	“, and provided that the Spanish Combination Termination Mechanism is not Financial Indebtedness.”	
 
 	(C)	The definition of “Permitted Acquisition” in Clause 1.1 (Definitions) shall be amended as follows:	
 
 	(i)	by deleting “and” at the end of the paragraph (m);	
 
 	(ii)	by inserting “and” at the end of the paragraph (n); and	
 
 	(iii)	by inserting a new paragraph (o) after paragraph (n) as follows:	
 
 	    	“(o) an acquisition pursuant to the European Transaction.”	
 
 	(D)	The definition of “Permitted Disposal” in Clause 1.1 (Definitions) shall be amended as follows:	
 
 	(i)	by deleting “or” at the end of paragraph (v);	
 
 	(ii)	by deleting “.” at the end of the paragraph (w) and replacing it with “; or”; and	
 
 	(iii)	by inserting a new paragraph (x) after paragraph (w) as follows:	
 
 	    	“(x) pursuant to the West German Disposal.”	
 
 	(E)	The definition of “Permitted Guarantee” in Clause 1.1 (Definitions) shall be amended as follows:	
 
 	(i)	by deleting “and” at the end of paragraph (l);	
 
 	(ii)	by deleting “.” at the end of paragraph (m) and replacing it with “; and”; and	
 
 	(iii)	by inserting a new paragraph (n) after paragraph (m) as follows:	
 
 	    	“(n) any guarantee granted in respect of obligations of a Group member under the European Transaction.”	
 
 	(F)	The definition of “Permitted Joint Venture” in Clause 1.1 (Definitions) shall be amended as follows:	
 
 	(i)	by deleting “or” at the end of paragraph (b);	
 
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 	(ii)	by deleting “.” at the end of paragraph (c) and replacing it with “; or”; and	
 
 	(iii)	by inserting a new paragraph (d) after paragraph (c) as follows:	
 
 	    	“(d) such investment is made under or in connection with the Spanish Combination.”	
 
 	(G)	The definition of “Permitted Share Issue” in Clause 1.1 (Definitions) shall be amended as follows:	
 
 	(i)	by deleting “and” at the end of paragraph (f);	
 
 	(ii)	by deleting “.” at the end of paragraph (g) and replacing it with “;”;	
 
 	(iii)	by inserting a new paragraph (h) after paragraph (g) as follows:	
 
 	    	“(h) any issue of shares by CEMEX España Operaciones pursuant to the Spanish Combination; and”; and	
 
 	(iv)	by inserting a new paragraph (i) after the new paragraph (h) as follows:	
 
 	    	“(i) any issue of shares consented to by the Agent acting on the instructions of the Majority Creditors.”	
 
2.	Amendments to Clause 7.7 (Cash replenishment restrictions)	
 
 	(A)	Paragraph (ii) of Clause 7.7(c) shall be amended by deleting “and” at the end of the paragraph.	
 
 	(B)	Paragraph (iii) of Clause 7.7(c) shall be amended by deleting “.” at the end of the paragraph and replacing it with “; and”.	
 
 	(C)	A new paragraph (iv) shall be inserted in Clause 7.7(c) after paragraph (iii) as follows:	
“(iv) notwithstanding the provisions of sub paragraph (ii) above, with effect from the Amendment Date, the aggregate limit of the Subsequent Cash Replenishment Basket shall be re-set to $1,000,000,000, where “Amendment Date” shall mean the date amendments made to this Agreement pursuant to an amendment agreement dated 16 October 2013 become effective.”
 
3.	Amendments to Clause 21.1 (Financial definitions)	
 
 	(A)	The definition of “Debt” in Clause 21.1 (Financial definitions) shall be amended as follows:	
 
 	(i)	by deleting “and” at the end of paragraph (v);	
 
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 	(ii)	by deleting “.” at the end of paragraph (vi) and replacing it with “; and”; and	
 
 	(iii)	by inserting a new paragraph (vii) after paragraph (vi) as follows:	
 
 	    	“(vii) the Spanish Combination Termination Mechanism is not Debt.”	
 
 	(B)	The definition of “Material Disposal” in Clause 21.1 (Financial definitions) shall be amended by inserting the words “and the Spanish Combination” directly before the full stop at the end of the definition.	
 
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SIGNATURES
The Parent
CEMEX, S.A.B. de C.V. (for itself and as agent on behalf of each Obligor)

By:	 	/s/ Hector Jose Vela Dib	 	 	 	 	 	Hector Jose Vela Dib	
The Agent
CITIBANK INTERNATIONAL PLC (for itself and as agent on behalf of the Finance Parties)

By:	 	/s/ Lisa Lee	 	 	 	 	 	Lisa Lee	
 
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Exhibit 4.35.1
 
SUPPLEMENTAL INDENTURE NO. 1
 
SUPPLEMENTAL INDENTURE No. 1, dated as of June 6, 2013, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a  besloten vennootschap  organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and Computershare Trust Company, N.A., as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of September 17, 2012 (the “ Indenture ”), providing for the issuance of the Issuer’s 9.50% Senior Secured Notes due 2018 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 1;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 1 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

 
ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 1.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.

ARTICLE III

MISCELLANEOUS

Section 3.01   Effect of This Supplemental Indenture No. 1. This Supplemental Indenture No. 1 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 1, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 1 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 1 supersede any conflicting provisions included in the Indenture, unless not permitted by law.

Section 3.02   Governing Law.  This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.

Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 1.

Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 1.  Each signed copy shall be an original, but all of them shall represent the same agreement.

Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 1, the Trustee shall be

 
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entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.

[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
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IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
 
 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalezs	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
[Signature page to Supplemental Indenture No. 1 (9.50% Senior Secured Notes due 2018)]

 

 

 
 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
[Signature page to Supplemental Indenture No. 1 (9.50% Senior Secured Notes due 2018)]

 

 

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
[Signature page to Supplemental Indenture No. 1 (9.50% Senior Secured Notes due 2018)]

 

 

 	COMPUTERSHARE TRUST COMPANY, N.A., as Trustee	

 	By:	 	/s/ John M. Wahl	
 	 	 	Name:	 	John M. Wahl	
 	 	 	Title:	 	Corporate Trust Officer	

 
 
[Signature page to Supplemental Indenture No. 1 (9.50% Senior Secured Notes due 2018)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX México, S.A. de C.V.	
 	2.	 	CEMEX Corp.	
 	3.	 	CEMEX España, S.A.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	New Sunward Holding B.V.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	

Exhibit 4.35.2
 
SUPPLEMENTAL INDENTURE NO. 2
 
SUPPLEMENTAL INDENTURE No. 2, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and Computershare Trust Company, N.A., as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of September 17, 2012, as supplemented by Supplemental Indenture No. 1, dated as of June 6, 2013 (as supplemented, the “ Indenture ”), providing for the issuance of the Issuer’s 9.50% Senior Secured Notes due 2018 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 2;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 2 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 2.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 2. This Supplemental Indenture No. 2 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 2, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 2 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 2 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 2 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 2.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 2.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 2 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 2, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 2 to be duly executed as of the date first written above.

 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 2 (9.50% Senior Secured Notes due 2018)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 2 (9.50% Senior Secured Notes due 2018)]

 

 

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jose Antonio Gonzalez Flores	
 	 	 	Name:	Jose Antonio Gonzalez Flores	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 2 (9.50% Senior Secured Notes due 2018)]

 

 

 	COMPUTERSHARE TRUST COMPANY, N.A., as Trustee	

 	By:	 	/s/ John M. Wahl	
 	 	 	Name:	John M. Wahl	
 	 	 	Title:	Corporate Trust Officer	

 
 
[Signature page to Supplemental Indenture No. 2 (9.50% Senior Secured Notes due 2018)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX México, S.A. de C.V.	
 	2.	 	CEMEX Corp.	
 	3.	 	CEMEX España, S.A.	
 	4.	 	CEMEX Research Group AG	
 	5.	 	CEMEX Shipping B.V.	
 	6.	 	CEMEX Asia B.V.	
 	7.	 	CEMEX France Gestion (S.A.S.)	
 	8.	 	CEMEX UK	
 	9.	 	CEMEX Egyptian Investments B.V.	
 	10.	 	New Sunward Holding B.V.	
 	11.	 	CEMEX Concretos, S.A. de C.V.	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	CEMEX Egyptian Investments II B.V.	

 
Exhibit 4.36.1
 
SUPPLEMENTAL INDENTURE NO. 1
 
SUPPLEMENTAL INDENTURE No. 1, dated as of June 6, 2013, among CEMEX Finance LLC, a limited liability company organized and existing pursuant to the laws of the State of Delaware (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on  Schedule I hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a besloten vennootschap  organized under the laws of the. Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of October 12, 2012 (the “ Indenture ”), providing for the issuance of the Issuer’s 9.375% Senior Secured Notes due 2022 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 1;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 1 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 1.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01   Effect of This Supplemental Indenture No. 1. This Supplemental Indenture No. 1 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 1, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 1 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 1 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 1.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 1.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 1, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 2 to be duly executed as of the date first written above.
 
 	CEMEX Finance LLC, as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX, S.A.B. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Research Group, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 1 (9.375% Senior Secured Notes due 2022)]

 

 

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	 	 	 	 	 	
 	By:	 	/s/ Fernando Jose Reiter Landa	
 	 	 	Name:	 	Fernando Jose Reiter Landa	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 1 (9.375% Senior Secured Notes due 2022)]

 

 

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	
 	 	 	 	 	 	
 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 1 (9.375% Senior Secured Notes Due 2022)]

 

 

 	 	 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 

 
[Signature page to Supplemental Indenture No. 1 (9.375% Senior Secured Notes Due 2022)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX, S.A.B. de C.V.	
 	2.	 	CEMEX España, S.A.	
 	3.	 	CEMEX México, S.A. de C.V.	
 	4.	 	New Sunward Holding B.V.	
 	5.	 	CEMEX Asia B.V.	
 	6.	 	CEMEX Concretos, S.A. de C.V.	
 	7.	 	CEMEX Corp.	
 	8.	 	CEMEX Egyptian Investments B.V.	
 	9.	 	CEMEX France Gestion (S.A.S.)	
 	10.	 	CEMEX Research Group AG	
 	11.	 	CEMEX Shipping B.V.	
 	12.	 	CEMEX UK	
 	13.	 	Empresas Tolteca de México, S.A. de C.V.	

 
Exhibit 4.38.1
 
SUPPLEMENTAL INDENTURE NO. 1
 
SUPPLEMENTAL INDENTURE No. 1, dated as of June 6, 2013, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Egyptian Investments II B.V., a  besloten vennootschap  organized under the laws of the Netherlands (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S  E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of March 25, 2013 (the “ Indenture ”), providing for the issuance of the Issuer’s 5.875% Senior Secured Notes due 2019 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 1;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 1 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 1.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01   Effect of This Supplemental Indenture No. 1. This Supplemental Indenture No. 1 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 1, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 1 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 1 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 1.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 1.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 1, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 4 to be duly executed as of the date first written above.
 
 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalezs	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

[Signature page to Supplemental Indenture No. 1 (5.875% Senior Secured Notes due 2019)]

 

 

 
 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 1 (5.875% Senior Secured Notes due 2019)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	 	Attorney-in-Fact	

 
 
[Signature page to Supplemental Indenture No. 1 (5.875% Senior Secured Notes due 2019)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Catherine F. Donohue	
 	 	 	Name:	 	Catherine F. Donohue	
 	 	 	Title:	 	Vice President	

 
 
[Signature page to Supplemental Indenture No. 1 (5.875% Senior Secured Notes due 2019)]

 

 

SCHEDULE I
EXISTING GUARANTORS
 
 	1.	 	CEMEX España, S.A.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Asia B.V.	
 	5.	 	CEMEX Concretos, S.A. de C.V.	
 	6.	 	CEMEX Corp.	
 	7.	 	CEMEX Egyptian Investments B.V.	
 	8.	 	CEMEX France Gestion (S.A.S.)	
 	9.	 	CEMEX Research Group AG	
 	10.	 	CEMEX Shipping B.V.	
 	11.	 	CEMEX UK	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	

Exhibit 4.38.2
 
SUPPLEMENTAL INDENTURE NO. 2
 
SUPPLEMENTAL INDENTURE No. 2, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of March 25, 2013, as supplemented by Supplemental Indenture No. 1, dated as of June 6, 2013 (as supplemented, the “Indenture”), providing for the issuance of the Issuer’s 5.875% Senior Secured Notes due 2019 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 2;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 2 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 2 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 2.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 2. This Supplemental Indenture No. 2 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 2, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 2 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 2 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 2 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 2.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 2.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 2 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 2, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 2 to be duly executed as of the date first written above.

 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 2 (5.875% Senior Secured Notes due 2019)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 2 (5.875% Senior Secured Notes due 2019)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Additional Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

[Signature page to Supplemental Indenture No. 2 (5.875% Senior Secured Notes due 2019)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name: 	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

 
[Signature page to Supplemental Indenture No. 2 (5.875% Senior Secured Notes due 2019)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX España, S.A.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Asia B.V.	
 	5.	 	CEMEX Concretos, S.A. de C.V.	
 	6.	 	CEMEX Corp.	
 	7.	 	CEMEX Egyptian Investments B.V.	
 	8.	 	CEMEX France Gestion (S.A.S.)	
 	9.	 	CEMEX Research Group AG	
 	10.	 	CEMEX Shipping B.V.	
 	11.	 	CEMEX UK	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	CEMEX Egyptian Investments II B.V.	

Exhibit 4.40
CEMEX, S.A.B. de C.V.
THE NOTE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
6.500% SENIOR SECURED NOTES DUE 2019
INDENTURE
Dated as of August 12, 2013

TABLE OF CONTENTS

 	 	 	 	 	 	 	  	Page	 	
 	 	 	
ARTICLE I	 	DEFINITIONS AND INCORPORATION BY REFERENCE	  	 	1	  	
 	 	 	 	 	
 	 	Section 1.1	 	 	 	Definitions	  	 	1	  	
 	 	Section 1.2	 	 	 	[Reserved]	  	 	38	  	
 	 	Section 1.3	 	 	 	Rules of Construction	  	 	38	  	
 	 	 	
ARTICLE II	 	THE NOTES	  	 	38	  	
 	 	 	 	 	
 	 	Section 2.1	 	 	 	Form and Dating	  	 	38	  	
 	 	Section 2.2	 	 	 	Execution and Authentication	  	 	39	  	
 	 	Section 2.3	 	 	 	Registrar, Paying Agent and Transfer Agent	  	 	40	  	
 	 	Section 2.4	 	 	 	Paying Agent to Hold Money in Trust	  	 	40	  	
 	 	Section 2.5	 	 	 	Holder Lists	  	 	41	  	
 	 	Section 2.6	 	 	 	CUSIP Numbers	  	 	41	  	
 	 	Section 2.7	 	 	 	Global Note Provisions	  	 	41	  	
 	 	Section 2.8	 	 	 	Legends	  	 	43	  	
 	 	Section 2.9	 	 	 	Transfer and Exchange	  	 	43	  	
 	 	Section 2.10	 	 	 	Mutilated, Destroyed, Lost or Stolen Notes	  	 	49	  	
 	 	Section 2.11	 	 	 	Temporary Notes	  	 	49	  	
 	 	Section 2.12	 	 	 	Cancellation	  	 	50	  	
 	 	Section 2.13	 	 	 	Defaulted Interest	  	 	50	  	
 	 	Section 2.14	 	 	 	Additional Notes	  	 	51	  	
 	 	 	
ARTICLE III	 	COVENANTS	  	 	52	  	
 	 	 	 	 	
 	 	Section 3.1	 	 	 	Payment of Notes	  	 	52	  	
 	 	Section 3.2	 	 	 	Maintenance of Office or Agency	  	 	52	  	
 	 	Section 3.3	 	 	 	Corporate Existence	  	 	52	  	
 	 	Section 3.4	 	 	 	Payment of Taxes and Other Claims	  	 	53	  	
 	 	Section 3.5	 	 	 	Compliance Certificate	  	 	53	  	
 	 	Section 3.6	 	 	 	Further Instruments and Acts	  	 	53	  	
 	 	Section 3.7	 	 	 	Waiver of Stay, Extension or Usury Laws	  	 	53	  	
 	 	Section 3.8	 	 	 	Change of Control	  	 	54	  	
 	 	Section 3.9	 	 	 	Limitation on Incurrence of Additional Indebtedness	  	 	55	  	
 	 	Section 3.10	 	 	 	[Reserved]	  	 	60	  	
 	 	Section 3.11	 	 	 	Limitation on Restricted Payments	  	 	60	  	
 	 	Section 3.12	 	 	 	Limitation on Asset Sales	  	 	64	  	
 	 	Section 3.13	 	 	 	Limitation on the Ownership of Capital Stock of Restricted Subsidiaries	  	 	68	  	
 	 	Section 3.14	 	 	 	Limitation on Designation of Unrestricted Subsidiaries	  	 	69	  	
 	 	Section 3.15	 	 	 	Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries	  	 	70	  	
 	 	Section 3.16	 	 	 	Limitation on Layered Indebtedness	  	 	72	  	
 
i

TABLE OF CONTENTS
(continued)

 	 	 	 	 	 	 	  	Page	 	
 	 	 	 	 	
 	 	Section 3.17	 	 	 	Limitation on Liens	  	 	72	  	
 	 	Section 3.18	 	 	 	Limitation on Transactions with Affiliates	  	 	73	  	
 	 	Section 3.19	 	 	 	Conduct of Business	  	 	74	  	
 	 	Section 3.20	 	 	 	Reports to Holders	  	 	74	  	
 	 	Section 3.21	 	 	 	Payment of Additional Amounts	  	 	75	  	
 	 	Section 3.22	 	 	 	Suspension of Covenants	  	 	77	  	
 	 	 	
ARTICLE IV	 	SUCCESSOR ISSUER	  	 	79	  	
 	 	 	 	 	
 	 	Section 4.1	 	 	 	Merger, Consolidation and Sale of Assets	  	 	79	  	
 	 	 	
ARTICLE V	 	OPTIONAL REDEMPTION OF NOTES	  	 	82	  	
 	 	 	 	 	
 	 	Section 5.1	 	 	 	Optional Redemption	  	 	82	  	
 	 	Section 5.2	 	 	 	[Reserved]	  	 	82	  	
 	 	Section 5.3	 	 	 	Notices to Trustee	  	 	82	  	
 	 	Section 5.4	 	 	 	Notice of Redemption	  	 	83	  	
 	 	Section 5.5	 	 	 	Selection of Notes to Be Redeemed in Part	  	 	84	  	
 	 	Section 5.6	 	 	 	Deposit of Redemption Price	  	 	84	  	
 	 	Section 5.7	 	 	 	Notes Payable on Redemption Date	  	 	84	  	
 	 	Section 5.8	 	 	 	Unredeemed Portions of Partially Redeemed Note	  	 	85	  	
 	 	 	
ARTICLE VI	 	DEFAULTS AND REMEDIES	  	 	85	  	
 	 	 	 	 	
 	 	Section 6.1	 	 	 	Events of Default	  	 	85	  	
 	 	Section 6.2	 	 	 	Acceleration	  	 	86	  	
 	 	Section 6.3	 	 	 	Other Remedies	  	 	87	  	
 	 	Section 6.4	 	 	 	Waiver of Past Defaults	  	 	87	  	
 	 	Section 6.5	 	 	 	Control by Majority	  	 	87	  	
 	 	Section 6.6	 	 	 	Limitation on Suits	  	 	87	  	
 	 	Section 6.7	 	 	 	Rights of Holders to Receive Payment	  	 	88	  	
 	 	Section 6.8	 	 	 	Collection Suit by Trustee	  	 	88	  	
 	 	Section 6.9	 	 	 	Trustee May File Proofs of Claim, etc	  	 	88	  	
 	 	Section 6.10	 	 	 	Priorities	  	 	89	  	
 	 	Section 6.11	 	 	 	Undertaking for Costs	  	 	89	  	
 	 	 	
ARTICLE VII	 	TRUSTEE	  	 	89	  	
 	 	 	 	 	
 	 	Section 7.1	 	 	 	Duties of Trustee	  	 	89	  	
 	 	Section 7.2	 	 	 	Rights of Trustee	  	 	91	  	
 	 	Section 7.3	 	 	 	Individual Rights of Trustee	  	 	92	  	
 	 	Section 7.4	 	 	 	Trustee’s Disclaimer	  	 	92	  	
 	 	Section 7.5	 	 	 	Notice of Defaults	  	 	92	  	
 	 	Section 7.6	 	 	 	[Reserved]	  	 	93	  	
 
ii

TABLE OF CONTENTS
(continued)

 	 	 	 	 	 	 	  	Page	 	
 	 	 	 	 	
 	 	Section 7.7	 	 	 	Compensation and Indemnity	  	 	93	  	
 	 	Section 7.8	 	 	 	Replacement of Trustee	  	 	94	  	
 	 	Section 7.9	 	 	 	Successor Trustee by Merger	  	 	94	  	
 	 	Section 7.10	 	 	 	Eligibility; Disqualification	  	 	95	  	
 	 	Section 7.11	 	 	 	[Reserved]	  	 	95	  	
 	 	Section 7.12	 	 	 	[Reserved]	  	 	95	  	
 	 	Section 7.13	 	 	 	Authorization and Instruction of the Trustee With Respect to the Collateral	  	 	95	  	
 	 	 	
ARTICLE VIII	 	DEFEASANCE; DISCHARGE OF INDENTURE	  	 	96	  	
 	 	 	 	 	
 	 	Section 8.1	 	 	 	Legal Defeasance and Covenant Defeasance	  	 	96	  	
 	 	Section 8.2	 	 	 	Conditions to Defeasance	  	 	97	  	
 	 	Section 8.3	 	 	 	Application of Trust Money	  	 	98	  	
 	 	Section 8.4	 	 	 	Repayment to Issuer	  	 	98	  	
 	 	Section 8.5	 	 	 	Indemnity for U.S. Government Obligations	  	 	99	  	
 	 	Section 8.6	 	 	 	Reinstatement	  	 	99	  	
 	 	Section 8.7	 	 	 	Satisfaction and Discharge	  	 	99	  	
 	 	 	
ARTICLE IX	 	AMENDMENTS	  	 	100	  	
 	 	 	 	 	
 	 	Section 9.1	 	 	 	Without Consent of Holders	  	 	100	  	
 	 	Section 9.2	 	 	 	With Consent of Holders	  	 	101	  	
 	 	Section 9.3	 	 	 	[Reserved]	  	 	102	  	
 	 	Section 9.4	 	 	 	Revocation and Effect of Consents and Waivers	  	 	102	  	
 	 	Section 9.5	 	 	 	Notation on or Exchange of Notes	  	 	103	  	
 	 	Section 9.6	 	 	 	Trustee to Sign Amendments and Supplements	  	 	103	  	
 	 	 	
ARTICLE X	 	NOTE GUARANTEES	  	 	103	  	
 	 	 	 	 	
 	 	Section 10.1	 	 	 	Note Guarantees	  	 	103	  	
 	 	Section 10.2	 	 	 	Limitation on Liability; Termination, Release and Discharge	  	 	107	  	
 	 	Section 10.3	 	 	 	Right of Contribution	  	 	107	  	
 	 	Section 10.4	 	 	 	No Subrogation	  	 	108	  	
 	 	Section 10.5	 	 	 	French Guarantee Limitation	  	 	108	  	
 	 	Section 10.6	 	 	 	Swiss Guarantee Limitation	  	 	109	  	
 	 	 	
ARTICLE XI	 	COLLATERAL	  	 	111	  	
 	 	 	 	 	
 	 	Section 11.1	 	 	 	The Collateral	  	 	111	  	
 	 	Section 11.2	 	 	 	Release of the Collateral	  	 	111	  	
 
iii

TABLE OF CONTENTS
(continued)

 	 	 	 	 	 	 	  	Page	 	
 	 	 	
ARTICLE XII	 	MISCELLANEOUS	  	 	112	  	
 	 	 	 	 	
 	 	Section 12.1	 	 	 	Notices	  	 	112	  	
 	 	Section 12.2	 	 	 	Communication by Holders with Other Holders	  	 	113	  	
 	 	Section 12.3	 	 	 	Certificate and Opinion as to Conditions Precedent	  	 	113	  	
 	 	Section 12.4	 	 	 	Statements Required in Certificate or Opinion	  	 	113	  	
 	 	Section 12.5	 	 	 	Rules by Trustee, Paying Agent, Transfer Agent and Registrar	  	 	114	  	
 	 	Section 12.6	 	 	 	Legal Holidays	  	 	114	  	
 	 	Section 12.7	 	 	 	Governing Law, etc	  	 	114	  	
 	 	Section 12.8	 	 	 	[Reserved]	  	 	116	  	
 	 	Section 12.9	 	 	 	No Recourse Against Others	  	 	116	  	
 	 	Section 12.10	 	 	 	Successors	  	 	116	  	
 	 	Section 12.11	 	 	 	Duplicate and Counterpart Originals	  	 	116	  	
 	 	Section 12.12	 	 	 	Severability	  	 	116	  	
 	 	Section 12.13	 	 	 	[Reserved]	  	 	116	  	
 	 	Section 12.14	 	 	 	Currency Indemnity	  	 	116	  	
 	 	Section 12.15	 	 	 	Table of Contents; Headings	  	 	117	  	
 	 	Section 12.16	 	 	 	USA PATRIOT Act	  	 	117	  	
 
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EXHIBIT A	  	FORM OF NOTE	
 	 	
EXHIBIT B	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	
 	 	
EXHIBIT C	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	
 	 	
EXHIBIT D	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	
 	 	
EXHIBIT E	  	“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS	
 
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INDENTURE, dated as of August 12, 2013, among CEMEX S.A.B. de C.V., a sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the guarantors listed on Schedule I  hereto, as guarantors of the Issuer’s obligations under this Indenture and the Notes, and The Bank of New York Mellon, as trustee (the “ Trustee ”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuer’s 6.500% Senior Secured Notes due 2019 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2009 Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Issuer or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness will be deemed to have been Incurred at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Issuer or a Restricted Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
“Acquired Subsidiary” means any Subsidiary acquired by the Issuer or any other Subsidiary after the Issue Date in an Acquisition, and any Subsidiaries of such Acquired Subsidiary on the date of such Acquisition.
“Acquiring Subsidiary” means any Subsidiary formed by the Issuer or one of its Subsidiaries solely for the purpose of participating as the acquiring party in any Acquisition, and any Subsidiaries of such Acquiring Subsidiary acquired in such Acquisition.
“Acquisition” means any merger, consolidation, acquisition or lease of assets, acquisition of securities or business combination or acquisition, or any two or more of such transactions, if, upon the completion of such transaction or transactions, the Issuer or any Restricted Subsidiary thereof has acquired an interest in any Person who would be deemed to be a Restricted Subsidiary under this Indenture and was not a Restricted Subsidiary prior thereto.
“Additional Amounts” has the meaning assigned to it in Section 3.21(b).
“Additional Note Certificate” has the meaning assigned to it in Section 2.14(b).

“Additional Note Guarantors” means New Sunward Holding B.V., CEMEX Concretos, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
“Additional Note Supplemental Indenture” means a supplement to this Indenture duly executed and delivered by the Issuer, each Note Guarantor and the Trustee pursuant to  Article IX  providing for the issuance of Additional Notes.
“Additional Notes” has the meaning assigned to it in Section 2.14(a).
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Affiliate Transaction” has the meaning assigned to it in Section 3.18(a).
“Agent Members” has the meaning assigned to it in Section 2.7(b).
“Agents” means, collectively, the Registrar, any co-Registrar, the Paying Agents, the Transfer Agent and any other agent appointed by the Issuer hereunder.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in a Global Note, the rules and procedures of DTC, Euroclear and Clearstream, as the case may be, that apply to such transfer or exchange, including the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream.
“Asset Sale” means any direct or indirect sale, disposition, issuance, conveyance, transfer, lease (other than an operating lease entered into in the ordinary course of business), assignment or other transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by the Issuer or any Restricted Subsidiary of:
 
 	(a)	any Capital Stock other than Capital Stock of the Issuer; or	
 
 	(b)	any property or assets (other than cash, Cash Equivalents or Capital Stock) of the Issuer or any Restricted Subsidiary;	
Notwithstanding the preceding, the following will not be deemed to be Asset Sales:
 
 	(1)	the disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries as permitted under  Section 3.12 ;	
 
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 	(2)	any disposition of equipment that is not usable or is obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;	
 
 	(3)	dispositions of assets in any fiscal year with a Fair Market Value not to exceed U.S.$25 million in the aggregate;	
 
 	(4)	for purposes of Section 3.12 only, the making or disposition of a Permitted Investment or Restricted Payment permitted under  Section 3.11 ;	
 
 	(5)	a disposition to the Issuer or a Restricted Subsidiary, including a Person that is or will become a Restricted Subsidiary immediately after the disposition;	
 
 	(6)	the creation of a Lien permitted under this Indenture (other than a deemed Lien in connection with a Sale and Leaseback Transaction);	
 
 	(7)	(i) the disposition of Receivables Assets pursuant to a Qualified Receivables Transaction and (ii) the disposition of other accounts receivable in the ordinary course of business;	
 
 	(8)	the disposition of any asset constituted by a license of intellectual property in the ordinary course of business;	
 
 	(9)	the disposition of inventory pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under this Indenture;	
 
 	(10)	the disposition of any asset compulsorily acquired by a governmental authority; and	
 
 	(11)	sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements.	
“Asset Sale Offer” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Amount” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Notice” means notice of an Asset Sale Offer made pursuant to Section 3.12, which shall be mailed first class, postage prepaid, to each record Holder as shown on the Note Register within 20 days following the 365th day after the receipt of Net Cash Proceeds of any Asset Sale, with a copy to the Trustee, which notice shall govern the terms of the Asset Sale Offer, and shall state:
 
 	(1)	the circumstances of the Asset Sale or Sales, the Net Cash Proceeds of which are included in the Asset Sale Offer, that an Asset Sale Offer is being made pursuant to  Section 3.12(c) , and that all Notes that are timely tendered will be accepted for payment;	
 
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 	(2)	the Asset Sale Offer Amount and the Asset Sale Offer Payment Date, which date shall be a Business Day no earlier than 30 days nor later than 60 days from the date the Asset Sale Offer Notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Offer Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Offer Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Offer Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on the schedule of increases or decreases thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.12 .	
 
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“Asset Sale Offer Payment Date” has the meaning assigned to it in Section 3.12(f).
“Authenticating Agent” has the meaning assigned to it in Section 2.2(b).
“Authorized Agent” has the meaning assigned to it in Section 12.7(c).
“Axtel Share Forward Transaction” means the Axtel share forward transaction that is governed by a long form confirmation originally dated January 22, 2009, as replaced by a long form confirmation dated September 28, 2010, and as further replaced by a long form confirmation dated March 19, 2012, between Credit Suisse International and Centro Distribuidor de Cemento, S.A. de C.V. (References: External ID: 16059563R4-Risk ID: 10008383) and any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Bancomext Facility” means the U.S.$250,000,000 credit agreement (Crédito Simple), dated October 14, 2008, as amended from time to time ( provided  that the principal amount thereof does not increase above the principal amount outstanding as of August 14, 2009 (except by the amount of any capitalized interest if so provided by such facility and on those terms as of August 14, 2009) less the amount of any repayments and prepayments made in respect of such facility), among the Issuer, as borrower, Banco Nacional de Comercio Exterior, S.N.C., as lender, and CEMEX México, as guarantor, and secured by the mortgage of a cement plant in Ensenada, Baja California, Mexico.
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree or order for relief in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or (ii) a decree or order (A) adjudging any Bankruptcy Party a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (B) approving as properly filed a petition seeking reorganization,  concurso mercantil , arrangement, adjustment or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up or liquidation of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (ii) the consent by any Bankruptcy Party to the entry of a decree or order for relief in respect of such Bankruptcy Party in an involuntary	
 
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 	case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization,  concurso mercantil , or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, or (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors, including the Mexican  Ley de Concursos Mercantiles and  Spanish Law 22/2003 of 9 July ( Ley 22/2003 de 9 de julio , Concursal ), as amended.
“Bankruptcy Party” means the Issuer and any Significant Subsidiary of the Issuer or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Issuer.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ), dated April 22, 2009, among CEMEX Concretos, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, S.N.C., as lender, as in effect on the Issue Date and as amended from time to time, and secured by a mortgage of Planta Yaqui in Hermosillo, Sonora, Mexico.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, Mexico City, Madrid, Amsterdam, London, Paris or Zurich are authorized or required by law, regulation or other governmental action to remain closed.
“Capital Stock” means:
 
 	(1)	with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;	
 
 	(2)	with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person; and	
 
 	(3)	any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above, but excluding any Indebtedness exchangeable into such equity interest in existence on the Issue Date or Incurred pursuant to  Section 3.9 .	
 
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“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Cash Equivalents” means:
 
 	(1)	marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the United Kingdom or any member nation of the European Union or issued by any agency thereof and backed by the full faith and credit of the United States, the United Kingdom, such member nation of the European Union or any European Union central bank, in each case maturing within one year from the date of acquisition thereof;	
 
 	(2)	marketable direct obligations issued by the Mexican government, or issued by any agency thereof, including but not limited to,  Certificados de la Tesorería de la Federación  (Cetes) or  Bonos de Desarrollo del Gobierno Federal  (Bondes), in each case, issued by the government of Mexico and maturing not later than one year after the acquisition thereof;	
 
 	(3)	marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Fitch or any successor thereto;	
 
 	(4)	commercial paper or corporate debt obligations maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 or AAA from S&P, at least F-1 or AAA from Fitch or P-1 or Aaa from Moody’s;	
 
 	(5)	demand deposits, certificates of deposit, time deposits or bankers’ acceptances or other short-term unsecured debt obligations (and any cash or deposits in transit in any of the foregoing) maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the United Kingdom or any country of the European Union, (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than U.S.$500	
 
7

 	million, or (c) in the case of Mexican peso deposits, any financial institution in good standing with Banco de México organized under the laws of Mexico;	
 
 	(6)	repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) and (2) above entered into with any bank meeting the qualifications specified in clause (5) above;	
 
 	(7)	investments in money market funds which invest substantially all of their assets in securities of the types described in clauses (1) through (6), (8) and (9);	
 
 	(8)	certificates of deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco Nacional de Obras y Servicios Públicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(9)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which the Issuer or a Restricted Subsidiary operates and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquisition; and	
 
 	(10)	Investments in mutual funds, managed by banks, with a local currency credit rating of at least MxAA by S&P or other equally reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican Government, or issued by any agency or instrumentality thereof.	
In the case of Investments by any Restricted Subsidiary, Cash Equivalents will also include (a) investments of the type and maturity described in clauses (1) through (10) of any Restricted Subsidiary outside of Mexico in the country in which such Restricted Subsidiary operates, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalents ratings from comparable foreign rating agencies, (b) local currencies and other short-term investments utilized by Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (10) and in this paragraph and (c) investments of the type described in clauses (1) through (9) maturing within one year of the Issue Date.
“Certificados Bursátiles” means debt securities issued by the Issuer guaranteed (por aval) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned subsidiaries of the Issuer, in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores ,  S.A.B. de C.V. ).
 
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“Certificated Note” means any Note issued in fully registered form, other than a Global Note, which shall be substantially in the form of  Exhibit A  hereto, with appropriate legends as specified in  Section 2.8  and  Exhibit A .
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission under the Exchange Act) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Issuer is acquired by any Person;  provided , that the acquisition of beneficial ownership of Capital Stock of the Issuer by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Change of Control Notice” means notice of a Change of Control Offer made pursuant to Section 3.8, which shall be mailed first-class, postage prepaid, to each record Holder as shown on the Note Register within 30 days following the date upon which a Change of Control occurred, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer and shall state:
 
 	(1)	that a Change of Control has occurred, the circumstances or events causing such Change of Control and that a Change of Control Offer is being made pursuant to  Section 3.8 , and that all Notes that are timely tendered will be accepted for payment;	
 
 	(2)	the Change of Control Payment, and the Change of Control Payment Date, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Change of Control Payment with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest from and after the Change of Control Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer will be required to tender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Change of Control Offer;	
 
9

 	(7)	that any Holder electing to have Notes purchased pursuant to the Change of Control Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.8(b) .	
“Change of Control Offer” has the meaning assigned to it in Section 3.8(b).
“Change of Control Payment” has the meaning assigned to it in Section 3.8(a).
“Change of Control Payment Date” has the meaning assigned to it in Section 3.8(b).
“Clearstream” means Clearstream Banking, société anonyme, or the successor to its securities clearance and settlement operations.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means “Transaction Security” as defined in the Intercreditor Agreement from time to time.
“Commission” means the U.S. Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests.
 
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“Compensation Related Hedging Obligations” means (i) the obligations of any Person pursuant to any equity option contract, equity forward contract, equity swap, warrant, rights or other similar agreement designed to hedge risks or obligations relating to employee, director or consultant compensation, pension, benefits or similar activities of the Issuer and/or any of its Subsidiaries and (ii) the obligations of any Person pursuant to any agreement that requires another Person to make payments or deliveries that are otherwise required to be made by the first Person relating to employee, director or consultant compensation, pension, benefits or similar activities of the Issuer and/or any of its Subsidiaries, in each case in the ordinary course of business.
“Consolidated EBITDA” means, for any Person for any period, Consolidated Net Income for such Person for such period, plus the following, without duplication, to the extent deducted or added in calculating such Consolidated Net Income:
 
 	(1)	Consolidated Income Tax Expense for such Person for such period;	
 
 	(2)	Consolidated Interest Expense for such Person for such period net of consolidated interest income for such period;	
 
 	(3)	Consolidated Non-cash Charges for such Person for such period;	
 
 	(4)	the amount of any nonrecurring restructuring charge or reserve deducted in such period in computing Consolidated Net Income;	
 
 	(5)	the net effect on income or loss in respect of Hedging Obligations or other derivative instruments, which shall include, for the avoidance of doubt, all amounts not excluded from Consolidated Net Income pursuant to the proviso in clause (9) thereof; and	
 
 	(6)	net income of such Person attributable to minority interests in Subsidiaries of such Person.	
less (x) all non-cash credits and gains increasing Consolidated Net Income for such Person for such period and (y) all cash payments made by such Person and its Restricted Subsidiaries during such period relating to Consolidated Non-cash Charges that were added back in determining Consolidated EBITDA in any prior period.
“Consolidated Fixed Charge Coverage Ratio” means, for any Person as of any date of determination (the “ Fixed Charge Calculation Date ”), the ratio of the aggregate amount of Consolidated EBITDA of such Person for the four most recent full fiscal quarters for which financial statements are available ending prior to the date of such determination (the “ Four Quarter Period ”) to Consolidated Fixed Charges for such Person for such Four Quarter Period. For purposes of making the computation referred to above, Material Acquisitions and Material Dispositions (as determined in accordance with GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter
 
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Period and on or prior to or simultaneously with the Fixed Charge Calculation Date shall be calculated on a pro forma basis assuming that all such Material Acquisitions and Material Dispositions (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Material Acquisition or Material Disposition that would have required adjustment pursuant to this definition, then the Consolidated Fixed Charge Coverage Ratio shall be calculated giving  pro forma  effect thereto.
For purposes of this definition, whenever pro forma effect is to be given to a Material Acquisition or Material Disposition and the amount of income or earnings relating thereto or with respect to other  pro forma  calculations under this definition, such  pro forma  calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer. If any Indebtedness bears a floating rate of interest and is being given  pro forma  effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a  pro forma  basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio,”
 
 	(a)	interest on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined thereafter will be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on such date of determination;	
 
 	(b)	if interest on any Indebtedness actually Incurred on such date of determination may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on such date of determination will be deemed to have been in effect during the Four Quarter Period; and	
 
 	(c)	notwithstanding clause (a) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by Hedging Obligations, will be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.	
 
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“Consolidated Fixed Charges” means, for any Person for any period, the sum, without duplication, of:
 
 	(1)	Consolidated Interest Expense for such Person for such period, plus	
 
 	(2)	to the extent not included in (1) above, payments during such period in respect of the financing costs of financial derivatives in the form of equity swaps, plus	
 
 	(3)	the product of:	
 
 	(a)	the amount of all cash and non-cash dividend payments on any series of Preferred Stock or Disqualified Capital Stock of such Person (other than dividends paid in Qualified Capital Stock) or any Subsidiary of such Person (Restricted Subsidiary in the case of the Issuer) paid, accrued or scheduled to be paid or accrued during such period, excluding dividend payments on Preferred Stock or Disqualified Capital Stock paid, accrued or scheduled to be paid to such Person or another Subsidiary (Restricted Subsidiary in the case of the Issuer), times	
 
 	(b)	a fraction, the numerator of which is one and the denominator of which is one minus the then current effective tax rate of such Person in its principal taxpaying jurisdiction (Mexico, in the case of the Issuer), expressed as a decimal.	
“Consolidated Income Tax Expense” means, with respect to any Person for any period, the provision for federal, state and local income and asset taxes payable, including current and deferred taxes, by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period as determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any Person for any period, the sum of, without duplication determined on a consolidated basis in accordance with GAAP:
 
 	(1)	the aggregate of cash and non-cash interest expense of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period determined on a consolidated basis in accordance with GAAP, including, without limitation the following for such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) whether or not interest expense in accordance with GAAP:	
 
 	(a)	any amortization or accretion of debt discount or any interest paid on Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) in the form of additional Indebtedness,	
 
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 	(b)	any amortization of deferred financing costs; provided, that any such amortization resulting from costs incurred prior to the Issue Date shall be excluded for the calculation of Consolidated Interest Expense,	
 
 	(c)	the net costs under Hedging Obligations relating to Indebtedness (including amortization of fees but excluding foreign exchange adjustments on the notional amounts of the Hedging Obligations),	
 
 	(d)	all capitalized interest,	
 
 	(e)	the interest portion of any deferred payment obligation,	
 
 	(f)	commissions, discounts and other fees and charges Incurred in respect of letters of credit or bankers’ acceptances or in connection with sales or other dispositions of accounts receivable and related assets,	
 
 	(g)	any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries (Restricted Subsidiary in the case of the Issuer) or secured by a Lien on the assets of such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Issuer), whether or not such Guarantee or Lien is called upon, and	
 
 	(h)	any interest accrued in respect of Indebtedness without a maturity date; and	
 
 	(2)	the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) during such period.	
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate net income (or loss) of such Person and its Subsidiaries for such period on a consolidated basis (after deducting (i) the portion of such net income attributable to minority interests in Subsidiaries of such Person and (ii) any interest paid or accrued in respect of Indebtedness without a maturity date), determined in accordance with GAAP;  provided , that there shall be excluded therefrom:
 
 	(1)	net after-tax gains and losses from Asset Sale transactions or abandonments or reserves relating thereto;	
 
 	(2)	net after-tax items classified as extraordinary gains or losses;	
 
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 	(3)	the net income (but not loss) of any Subsidiary of such Person (non-Note Guarantor in the case of the Issuer) to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary (non-Note Guarantor in the case of the Issuer) or any law, regulation, agreement or judgment applicable to any such distribution;	
 
 	(4)	any net income (loss) of any Person (other than the Issuer) if such Person is not a Restricted Subsidiary, except that the Issuer’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash distributed by such Person during such period to the Issuer or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in this clause);	
 
 	(5)	[Reserved];	
 
 	(6)	any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;	
 
 	(7)	any gain (or loss) from foreign exchange translation or change in net monetary position;	
 
 	(8)	any gain (or loss) from the cumulative effect of changes in accounting principles; and	
 
 	(9)	any net gain or loss (after any offset) resulting in such period from Hedging Obligations or other derivative instruments; provided, that the net effect on income or loss (including in any prior periods) shall be included upon any termination or early extinguishment of such Hedging Obligations or other derivative instrument, other than any Hedging Obligations with respect to Indebtedness (that is not itself a Hedging Obligation) and that are extinguished concurrently with the termination or other prepayment of such Indebtedness.	
“Consolidated Non-cash Charges” means, for any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill and other Intangible Assets) and other non-cash expenses or losses of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which constitutes an accrual of or a reserve for cash charges for any future period or the amortization of a prepaid cash expense paid in a prior period).
“Consolidated Tangible Assets” means, for any Person at any time, the total consolidated assets of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) as set forth on the balance sheet as of the most recent fiscal quarter of such Person, prepared in accordance with GAAP, less Intangible Assets.
 
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“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, 4E, New York, New York 10286, Attention: International Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer.
“Covenant Defeasance” has the meaning assigned to it in Section 8.1(c).
“Covenant Suspension Event” has the meaning assigned to it in Section 3.22(b).
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, conciliador, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning assigned to it in Section 2.13 and Section 1, paragraph 2 of the Form of Reverse Side of Note contained in  Exhibit A  hereto.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate setting forth the basis of such valuation.
“Designation” has the meaning assigned to it in Section 3.14(a).
“Designation Amount” has the meaning assigned to it in clause (iii) of Section 3.14(a).
“Disposition” means, with respect to any property, any sale, lease, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the Holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the Holder thereof, in any case, on or prior to the 91st day after the final maturity date of the Notes, but excluding with respect to Mexican companies, any shares of such Mexican company that are part of the variable portion of its Capital Stock and that are redeemable under the Mexican General Law of Business Corporations ( Ley General de Sociedades Mercantiles ).
 
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“Distribution Compliance Period” means, in respect of any Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Issuer that is a clearing agency registered under the Exchange Act.
“Equity Offering” has the meaning assigned to it in Section 5 of the Form of Reverse Side of Note contained in Exhibit A hereto.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V., or its successor in such capacity.
“Event of Default” has the meaning assigned to it in Section 6.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Existing Senior Notes” means the U.S. Dollar-denominated 9.50% Senior Secured Notes due 2016 guaranteed by the Issuer, the Euro-denominated 9.625% Senior Secured Notes due 2017 guaranteed by the Issuer, the U.S. Dollar-denominated 9.25% Senior Secured Notes due 2020 guaranteed by the Issuer, the Euro-denominated 8.875% Senior Secured Notes due 2017 guaranteed by the Issuer, the U.S. Dollar-denominated 9.000% Senior Secured Notes due 2018 issued by the Issuer, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2015 issued by the Issuer, the U.S. Dollar-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Issuer, the Euro-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Issuer, the U.S. Dollar-denominated 9.50% Senior Secured Notes due 2018 issued by the Issuer, the U.S. Dollar-denominated 9.375% Senior Secured Notes due 2022 guaranteed by the Issuer and the U.S. Dollar-denominated 5.875% Senior Secured Notes due 2019 issued by the Issuer.
“Facilities Agreement” means the facilities agreement, dated as of September 17, 2012, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as new administrative agent, and the Security Agent, as such agreement may be amended, modified or waived from time to time.
“Facilities Agreement Indebtedness” means the Indebtedness that is subject to and outstanding under the Facilities Agreement.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction. Fair Market Value shall be determined, except as otherwise provided, by the Issuer in good faith.
“Fitch” means Fitch Ratings and any successor to its rating agency business.
 
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“Four Quarter Period” has the meaning assigned to it in the definition of “Consolidated Fixed Charge Coverage Ratio” above.
“Free Reserves Available for Distribution” has the meaning assigned to it in Section 10.6(c).
“French Note Guarantor” has the meaning assigned to it in Section 10.5(a).
“GAAP” means IFRS as in effect on August 12, 2013. At any time, and from time to time, after the Issue Date, the Issuer may elect to apply IFRS as in effect at such time in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election;  provided , that any such election, once made, shall be irrevocable. The Issuer shall give notice of any such election to the Trustee.
“Global Note” means any Note issued in fully registered form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of  Exhibit A , with appropriate legends as specified in Section 2.8  and  Exhibit A  hereto.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
 
 	(1)	to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise, or	
 
 	(2)	entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part,	
provided, that “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning assigned to it in Section 10.1(a).
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Note Register.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
 
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“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and “ Incurrence ,” “ Incurred ” and “ Incurring ” will have meanings correlative to the preceding).
“Indebtedness” means with respect to any Person, without duplication:
 
 	(1)	the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money;	
 
 	(2)	the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, including any perpetual bonds, debenture notes or similar instruments without regard to maturity date;	
 
 	(3)	all Capitalized Lease Obligations of such Person;	
 
 	(4)	all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all payment obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities accounted for as current liabilities (in accordance with GAAP) arising in the ordinary course of business) to the extent of any reimbursement obligations in respect thereof;	
 
 	(5)	reimbursement obligations with respect to letters of credit, banker’s acceptances or similar credit transactions;	
 
 	(6)	Guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) through (10) below;	
 
 	(7)	all Indebtedness of any other Person of the type referred to in clauses (1) through (6) which is secured by any Lien on any property or asset of the first Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Indebtedness so secured;	
 
 	(8)	all obligations under Hedging Obligations or other derivatives of such Person;	
 
 	(9)	all liabilities (contingent or otherwise) of such Person in connection with a sale or other disposition of accounts receivable and related assets (not including Qualified Receivables Transactions), irrespective of their treatment under GAAP or IFRS; and	
 
 	(10)	all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any;  provided , that:	
 
 	(a)	if the Disqualified Capital Stock does not have a fixed repurchase price, such maximum fixed repurchase price will be calculated in accordance with the terms of the Disqualified Capital Stock as if the Disqualified Capital Stock were purchased on any date on which Indebtedness will be required to be determined pursuant to this Indenture, and	
 
 	(b)	if the maximum fixed repurchase price is based upon, or measured by, the fair market value of the Disqualified Capital Stock, the fair market value will be the Fair Market Value thereof.	
 
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“Indenture” means this Indenture as amended or supplemented from time to time, including the Schedule and Exhibits hereto.
“Intangible Assets” means with respect to any Person all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights and all other items which would be treated as intangibles on the consolidated balance sheet of such Person prepared in accordance with GAAP.
“Intercreditor Agreement” means the intercreditor agreement, dated as of September 17, 2012, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as facility agent, and the Security Agent, as such agreement may be amended from time to time.
“Interest Payment Date” means the stated due date of an installment of interest on the Notes as specified in the Form of Face of Note contained in  Exhibit A  hereto.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Inventory Financing” means a financing arrangement pursuant to which the Issuer or any of its Restricted Subsidiaries sells inventory to a bank or other institution (or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Investment” means, with respect to any Person, any (1) direct or indirect loan, advance or other extension of credit (including, without limitation, a Guarantee) to any other Person, (2) capital contribution (by means of any transfer of cash or other property to others or
 
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any payment for property or services for the account or use of others) to any other Person, or (3) purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by any other Person. “Investment” will exclude accounts receivable, extensions of credit in connection with supplier or customer financings consistent with industry or past practice, advance payment of capital expenditures arising in the ordinary course of business, deposits arising in the ordinary course of business and transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of a Lien or the Incurring or permitting to subsist of Indebtedness) conducted in the ordinary course of business on arm’s-length terms.
For purposes of Section 3.11, the Issuer will be deemed to have made an “Investment” in an Unrestricted Subsidiary at the time of its Designation, which will be valued at the Fair Market Value of the sum of the net assets of such Unrestricted Subsidiary multiplied by the percentage equity ownership of the Issuer and its Restricted Subsidiaries in such designated Unrestricted Subsidiary at the time of its Designation and the amount of any Indebtedness of such Unrestricted Subsidiary or owed to the Issuer or any Restricted Subsidiary immediately following such Designation. Any property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer. If the Issuer or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of a Restricted Subsidiary (including any issuance and sale of Capital Stock by a Restricted Subsidiary) such that, after giving effect to any such sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment on the date of any such sale or disposition equal to sum of the Fair Market Value of the Capital Stock of such former Restricted Subsidiary held by the Issuer or any Restricted Subsidiary immediately following such sale or other disposition and the amount of any Indebtedness of such former Restricted Subsidiary Guaranteed by the Issuer or any Restricted Subsidiary or owed to the Issuer or any other Restricted Subsidiary immediately following such sale or other disposition. The acquisition by the Issuer or any Restricted Subsidiary of the Issuer of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made without giving effect to subsequent changes in value.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Investment Return” means, in respect of any Investment (other than a Permitted Investment) made after the Issue Date by the Issuer or any Restricted Subsidiary:
 
 	(1)	the cash proceeds received by the Issuer upon the sale, liquidation or repayment of such Investment or, in the case of a Guarantee, the amount of the Guarantee upon the unconditional release of the Issuer and its Restricted Subsidiaries in full, less any payments previously made by the Issuer or any Restricted Subsidiary in respect of such Guarantee;	
 
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 	(2)	in the case of the Revocation of the Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:	
 
 	(a)	the Issuer’s Investment in such Unrestricted Subsidiary at the time of such Revocation;	
 
 	(b)	that portion of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time of Revocation that is proportionate to the Issuer’s equity interest in such Unrestricted Subsidiary at the time of Revocation; and	
 
 	(c)	the Designation Amount with respect to such Unrestricted Subsidiary upon its Designation which was treated as a Restricted Payment;	
 
 	(3)	in the event the Issuer or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, the existing Investment of the Issuer and its Restricted Subsidiaries in such Person,	
in the case of each of (1), (2) and (3), up to the amount of such Investment that was treated as a Restricted Payment under Section 3.11  less the amount of any previous Investment Return in respect of such Investment.
“Issue Date” means the first date of issuance of the Notes under this Indenture and following a Partial Covenant Suspension Event or a Covenant Suspension Event, except under  “Optional Redemption for Changes in Withholding Taxes ” under clause (5) in  Exhibit A  hereto,  Section 3.22  and the definition of “Permitted Liens,” the most recent Partial Covenant Reversion Date or Reversion Date, as applicable.
“Issue Date Notes” means the U.S.$1,000,000,000 aggregate principal amount of Notes originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
“Issuer” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns.
“Issuer Order” has the meaning assigned to it in Section 2.2(c).
“Legal Defeasance” has the meaning assigned to it in Section 8.1(b).
“Legal Holiday” has the meaning assigned to it in Section 12.6.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. The Issuer or any Restricted Subsidiary shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor).
 
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“Material Acquisition” means:
 
 	(1)	an Investment by the Issuer or any Restricted Subsidiary in any other Person pursuant to which such Person will become a Restricted Subsidiary, or will be merged with or into the Issuer or any Restricted Subsidiary;	
 
 	(2)	the acquisition by the Issuer or any Restricted Subsidiary of the assets of any Person (other than a Subsidiary of the Issuer) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business; or	
 
 	(3)	any Revocation with respect to an Unrestricted Subsidiary;	
in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Material Disposition” means any Asset Sale and, whether or not constituting an Asset Sale, (1) any sale or other disposition of Capital Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale or other disposition of property or assets excluded from the definition of Asset Sale by clause (4) of that definition, in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Maturity Date” means December 10, 2019.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries from such Asset Sale, net of:
 
 	(1)	reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions);	
 
 	(2)	taxes paid or payable in respect of such Asset Sale after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;	
 
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 	(3)	repayment of Indebtedness secured by a Lien permitted under this Indenture that is required to be repaid in connection with such Asset Sale; and	
 
 	(4)	appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, but excluding any reserves with respect to Indebtedness.	
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Custodian” means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee.
“Note Guarantee” means any guarantee of the Issuer’s Obligations under this Indenture and the Notes by any Note Guarantor pursuant to  Article X .
“Note Guarantors” means (i) each of the Issuer’s Restricted Subsidiaries that executes this Indenture as a Note Guarantor or an Additional Note Guarantor and (ii) each of the Issuer’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Note Guarantor, and their respective successors and assigns; provided, that any Person constituting a Note Guarantor as described above shall cease to constitute a Note Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture.
“Note Register” has the meaning assigned to it in Section 2.3(a).
“Notes” means any of the Issuer’s 6.500% Senior Secured Notes due 2019 issued and authenticated pursuant to this Indenture.
“Obligations” means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under the documentation governing such Indebtedness, including, in the case of the Notes and the Note Guarantees, this Indenture.
“Officer” means, when used in connection with any action to be taken by the Issuer or a Note Guarantor, as the case may be, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Secretary or an attorney-in-fact of the Issuer or such Note Guarantor, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person, who must be the principal executive officer, the principal financial officer, the treasurer, the Vice President – Corporate Finance, the principal accounting officer or an attorney-in-fact of such Person, that meets the requirements set forth in this Indenture.
 
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“Opinion of Counsel” means a written opinion of counsel, who, unless otherwise indicated in this Indenture, may be an employee of or counsel for the Issuer, and who shall be reasonably acceptable to the Trustee.
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,  except :
 
 	(1)	Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;	
 
 	(2)	Notes, or portions thereof, for the payment, redemption or, in the case of an Asset Sale Offer or Change of Control Offer, purchase of which, money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or an Affiliate of the Issuer) in trust or set aside and segregated in trust by the Issuer or an Affiliate of the Issuer (if the Issuer or such Affiliate is acting as the Paying Agent) for the Holders of such Notes;  provided , that if Notes (or portions thereof) are to be redeemed or purchased, notice of such redemption or purchase has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;	
 
 	(3)	Notes which have been surrendered pursuant to Section 2.9 or Notes in exchange for which or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser in whose hands such Notes are valid obligations of the Issuer; and	
 
 	(4)	solely to the extent provided in Article VIII, Notes which are subject to Legal Defeasance or Covenant Defeasance as provided in  Article VIII ;	
provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, a Note Guarantor or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
“Partial Covenant Reversion Date” has the meaning set forth under Section 3.22(e).
 
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“Partial Covenant Suspension Date” has the meaning set forth under Section 3.22(c).
“Partial Covenant Suspension Event” has the meaning set forth under Section 3.22(a).
“Partial Suspended Covenants” has the meaning set forth under Section 3.22(a).
“Partial Suspension Period” has the meaning set forth under Section 3.22(e).
“Paying Agent” has the meaning assigned to it in Section 2.3(a).
“Permitted Asset Swap Transaction” means a transaction consisting substantially of the concurrent (i) disposition by the Issuer or any of its Restricted Subsidiaries of any asset, property or cash consideration (other than a Restricted Subsidiary) in exchange for assets, property or cash consideration transferred to the Issuer or a Restricted Subsidiary, to be used in a Permitted Business or (ii) disposition by the Issuer or any of its Restricted Subsidiaries of Capital Stock of a Restricted Subsidiary in exchange for Capital Stock of another Restricted Subsidiary or of Capital Stock of any Person that becomes a Restricted Subsidiary after giving effect to such transaction;  provided , that any cash or Cash Equivalents received in such a transaction shall constitute Net Cash Proceeds to be applied in accordance with  Section 3.12 .
“Permitted Business” means the business or businesses conducted by the Issuer and its Restricted Subsidiaries as of the Issue Date and any business ancillary, complementary or related thereto or any other business that would not constitute a substantial change to the general nature of its business from that carried on as of the Issue Date.
“Permitted Indebtedness” has the meaning set forth in Section 3.9(b).
“Permitted Investments” means:
 
 	(1)	Investments by the Issuer or any Restricted Subsidiary in any Person that is, or that result in any Person becoming, immediately after such Investment, a Restricted Subsidiary or constituting a merger or consolidation of such Person into the Issuer or with or into a Restricted Subsidiary;	
 
 	(2)	any Investment in the Issuer;	
 
 	(3)	Investments in cash and Cash Equivalents;	
 
 	(4)	any extension, modification or renewal of any Investments existing as of the Issue Date (but not Investments involving additional advances, contributions or other investments of cash or property or other increases thereof, other than as a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms of such Investment as of the Issue Date);	
 
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 	(5)	Investments permitted pursuant to clause (ii), (vi) or (vii) of Section 3.18(b);	
 
 	(6)	Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, modifications and renewals thereof;	
 
 	(7)	Investments made by the Issuer or its Restricted Subsidiaries as a result of non-cash consideration permitted to be received in connection with an Asset Sale made in compliance with  Section 3.12 ;	
 
 	(8)	Investments in the form of Hedging Obligations or Compensation Related Hedging Obligations permitted under clause (iv) of  Section 3.9(b) ;	
 
 	(9)	Investments in existence on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or any Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date;  provided , that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted by this Indenture;	
 
 	(10)	Investments by the Issuer or any Restricted Subsidiary in a Receivables Entity in connection with a Qualified Receivables Transaction which does not constitute an Asset Sale by virtue of clause (7) of the definition thereof; provided ,  however , that any such Investments are made only in the form of Receivables Assets;	
 
 	(11)	Investments in marketable securities or instruments, to fund the Issuer’s or a Restricted Subsidiary’s pension and other employee-related obligations in the ordinary course of business pursuant to compensation arrangements approved by the Board of Directors or senior management of the Issuer;	
 
 	(12)	any Investment that:	
 
 	(a)	when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding (net of cash benefits to the Issuer or a Restricted Subsidiary from Investments pursuant to this clause (12)), does not exceed the greater of U.S.$250 million and 3% of Consolidated Tangible Assets; or	
 
 	(b)	when taken together with all other Investments made pursuant to this clause (12) in any fiscal year that are at the time outstanding, does not exceed U.S.$100 million in any fiscal year;	
 
 	(13)	Investments in the Capital Stock of any Person other than a Restricted Subsidiary that are required to be held pursuant to an involuntary governmental order of condemnation, nationalization, seizure or expropriation or other similar order with respect to Capital Stock of such	
 
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 	Person (prior to which order such Person was a Restricted Subsidiary); provided, that such Person contests such order in good faith in appropriate proceedings;	
 
 	(14)	repurchases of Existing Senior Notes or the Notes;	
 
 	(15)	Investments in the SPV Perpetuals or the notes related thereto; provided, that any payment or other contribution to one of the special purpose vehicles issuing the SPV Perpetuals in connection with such Investment is promptly paid or contributed to the Issuer or a Restricted Subsidiary following receipt thereof;	
 
 	(16)	any Investment that constitutes Indebtedness permitted under clause (vii)(E) of Section 3.9(b); and	
 
 	(17)	(a) Investments to which the Issuer or any of its Restricted Subsidiaries is contractually committed as of the Issue Date in any Person other than a Subsidiary in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities and (b) Investments in any Person other than a Subsidiary in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities up to U.S.$100 million in any calendar year minus the amount of any guarantees under clause (xviii) of  Section 3.9(b) .	
“Permitted Liens” means any of the following:
 
 	(1)	statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and materialmen 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 and any other Liens created by operation of law;	
 
 	(2)	Liens Incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other types of social security or (ii) other insurance maintained by the Issuer and its Subsidiaries in compliance with the Facilities Agreement (or any refinancing thereof);	
 
 	(3)	Liens 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;	
 
 	(4)	any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
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 	(5)	(i) Liens existing on the Issue Date other than in respect of the Collateral and (ii) Liens in respect of the Collateral to the extent equally and ratably securing the Notes and the Permitted Secured Obligations;	
 
 	(6)	any Lien on property acquired by the Issuer or its Restricted Subsidiaries after the Issue Date that was existing on the date of acquisition of such property;  provided , that such Lien was not incurred in anticipation of such acquisition, and any Lien created to secure all or any part 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 Issuer or any of its Restricted Subsidiaries after the Issue Date;  provided further , that (A) any such Lien permitted pursuant to this clause (6) 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) and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to, or is acquired for specific use with, such acquired property; and (B) if applicable, any such Lien shall be created within nine months after, in the case of property, its acquisition, or, in the case of improvements, their completion;	
 
 	(7)	any Liens renewing, extending or refunding any Lien permitted by clause (5)(i) above; provided, that such Lien is not extended to other property (or, instead, is only extended to equivalent property) and the principal amount of Indebtedness secured by such Lien immediately prior thereto is not increased or the maturity thereof reduced, except that the principal amount secured by any such Lien in respect of:	
 
 	(a)	hedging obligations or other derivatives where there are fluctuations in mark-to-market exposures of those hedging obligations or other derivatives,	
 
 	(b)	Indebtedness consisting of any “Certificados Bursátiles de Largo Plazo” or the Bancomext Facility, or any Refinancing thereof, where principal may increase by virtue of capitalization of interest, and	
 
 	(c)	the Banobras Facility to the extent additional amounts are drawn thereunder,	
may be increased by the amount of such fluctuations, capitalizations or drawings, as the case may be;
 
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 	(8)	Liens on Receivables Assets or Capital Stock of a Receivables Subsidiary, in each case granted in connection with a Qualified Receivables Transaction;	
 
 	(9)	Liens granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of business;	
 
 	(10)	any Lien permitted by the Trustee, acting pursuant to the instructions of at least 50% of the Holders;	
 
 	(11)	any Lien granted by the Issuer or any of its Restricted Subsidiaries to secure Indebtedness under a Permitted Liquidity Facility; provided, that: (i) such Lien is not granted in respect of the Collateral, and (ii) the maximum amount of such Indebtedness secured by such Lien does not exceed U.S.$500 million at any time; or	
 
 	(12)	in addition to the Liens permitted by the foregoing clauses (1) through (11), Liens securing obligations of the Issuer and its Restricted Subsidiaries that in the aggregate secure obligations in an amount not in excess of the greater of (i) 5% of Consolidated Tangible Assets and (ii) U.S.$700 million.	
“Permitted Liquidity Facility” means a loan facility or facilities made available to the Issuer or any Restricted Subsidiary;  provided , that the aggregate principal amount of utilized and unutilized commitments under such facilities must not exceed U.S.$1 billion (or its equivalent in another currency) at any time.
“Permitted Merger Jurisdiction” has the meaning set forth in Section 4.1(a).
“Permitted Secured Obligations” means (i) the Facilities Agreement Indebtedness and any refinancing thereof made in accordance with the Facilities Agreement that is secured by the Collateral, (ii) notes (or similar instruments, including  Certificados Bursátiles ) outstanding on the date of the Facilities Agreement required to be secured by the Collateral pursuant to their terms, or any refinancing thereof permitted by the Facilities Agreement, (iii) future Indebtedness secured by the Collateral to the extent permitted by the Facilities Agreement and (iv) the Existing Senior Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with and at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.
 
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“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Private Placement Legend” has the meaning assigned to it in Section 2.8(b).
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of financing all or any part of the purchase price or cost of construction of any property other than Capital Stock;  provided , that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of Refinancing.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Issuer or any Restricted Subsidiary pursuant to which the Issuer or any Restricted Subsidiary may sell, convey, assign or otherwise transfer to a Receivables Entity any Receivables Assets to obtain funding for the operations of the Issuer and its Restricted Subsidiaries:
 
 	(1)	for which no term of any portion of the Indebtedness or any other obligations (contingent or otherwise) or securities Incurred or issued by any Person in connection therewith:	
 
 	(a)	directly or indirectly provides for recourse to, or any obligation of, the Issuer or any Restricted Subsidiary in any way, whether pursuant to a Guarantee or otherwise, except for Standard Undertakings,	
 
 	(b)	directly or indirectly subjects any property or asset of the Issuer or any Restricted Subsidiary (other than Capital Stock of a Receivables Subsidiary) to the satisfaction thereof, except for Standard Undertakings, or	
 
 	(c)	results in such Indebtedness, other obligations or securities constituting Indebtedness of the Issuer or a Restricted Subsidiary, including following a default thereunder, and	
 
 	(2)	for which the terms of any Affiliate Transaction between the Issuer or any Restricted Subsidiary, on the one hand, and any Receivables Entity, on the other, other than Standard Undertakings and Permitted Investments, are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Issuer, and	
 
 	(3)	in connection with which, neither the Issuer nor any Restricted Subsidiary has any obligation to maintain or preserve a Receivable Entity’s financial condition, cause a Receivables Entity to achieve certain levels of operating results, fund losses of a Receivables Entity, or except in connection with Standard Undertakings, purchase assets of a Receivables Entity.	
 
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“Rating Agencies” mean Fitch, Moody’s and S&P. In the event that Fitch, Moody’s or S&P is no longer in existence or issuing ratings, such organization may be replaced by a nationally recognized statistical rating organization (as defined in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act or any successor provision) designated by the Issuer with notice to the Trustee.
“Receivables Assets” means:
 
 	(1)	accounts receivable, leases, conditional sale agreements, instruments, chattel paper, installment sale contracts, obligations, general intangibles, and other similar assets, in each case relating to goods, inventory or services of the Issuer and its Subsidiaries,	
 
 	(2)	equipment and equipment residuals relating to any of the foregoing,	
 
 	(3)	contractual rights, Guarantees, letters of credit, Liens, insurance proceeds, collections and other similar assets, in each case related to the foregoing, and	
 
 	(4)	proceeds of all of the foregoing.	
“Receivables Entity” means a Receivables Subsidiary or any other Person not an Affiliate of the Issuer, in each case whose sole business activity is to engage in Qualified Receivables Transactions, including to issue securities or other interests in connection with a Qualified Receivables Transaction.
“Receivables Subsidiary” means an Unrestricted Subsidiary of the Issuer that engages in no activities other than Qualified Receivables Transactions and activities related thereto and that is designated by the Issuer as a Receivables Subsidiary. Any such designation by the Issuer will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate of the Issuer.
“Record Date” has the meaning assigned to it in the Form of Face of Note contained in Exhibit A hereto.
“Redemption Date” means, with respect to any redemption of the Notes, the date fixed for such redemption pursuant to this Indenture and the Notes.
 
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“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness in exchange for or to refinance, repay, redeem, replace, defease or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” will have correlative meanings.
“Refinancing Indebtedness” means Indebtedness of the Issuer or any Restricted Subsidiary issued to Refinance any other Indebtedness of the Issuer or a Restricted Subsidiary so long as:
 
 	(1)	the aggregate principal amount (or initial accreted value, if applicable) of such new Indebtedness as of the date of such proposed Refinancing does not exceed the aggregate principal amount (or accreted value as of such date, if applicable) of the Indebtedness being Refinanced (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred by the Issuer in connection with such Refinancing);	
 
 	(2)	such new Indebtedness has:	
 
 	(a)	a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced, and	
 
 	(b)	a final maturity that is equal to or later than the final maturity of the Indebtedness being Refinanced or, in the case of Indebtedness without a stated maturity, December 14, 2017; and	
 
 	(3)	if the Indebtedness being Refinanced is:	
 
 	(a)	Indebtedness of the Issuer, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(b)	Indebtedness of a Note Guarantor, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(c)	Indebtedness of any of the Restricted Subsidiaries, then such Refinancing Indebtedness will be Indebtedness of such Restricted Subsidiary, the Issuer and/or any Note Guarantor, and	
 
 	(d)	Subordinated Indebtedness, then such Refinancing Indebtedness shall be subordinate to the Notes or the relevant Note Guarantee, if applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.	
Notwithstanding the foregoing, with respect to any hedging obligations or derivatives outstanding on the Issue Date in respect of the Axtel Share Forward Transaction, “Refinancing Indebtedness” shall mean any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
 
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“Registrar” has the meaning assigned to it in Section 2.3(a).
“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Note” has the meaning assigned to it in Section 2.1(e).
“Resale Restriction Termination Date” means for any Restricted Note (or beneficial interest therein), that is (a) not a Regulation S Global Note, the date on which the Issuer instructs the Trustee in writing to remove the Private Placement Legend from the Restricted Notes in accordance with the procedures described in  Section 2.9(h)  (which instruction is expected to be given on or about the one year anniversary of the issuance of the Restricted Notes) or (b) a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the date on which the Distribution Compliance Period therefor terminates.
“Restricted Note” means any Issue Date Note (or beneficial interest therein) or any Additional Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act until such time as:
 
 	(i)	the Resale Restriction Termination Date therefor has passed; or	
 
 	(ii)	the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.9 or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.	
“Restricted Obligations” has the meaning assigned to it in Section 10.6(b).
“Restricted Payment” has the meaning set forth in Section 3.11(a).
“Restricted Subsidiary” means any Subsidiary of the Issuer, which at the time of determination is not an Unrestricted Subsidiary.
“Reversion Date” has the meaning assigned to in Section 3.22(e).
“Revocation” has the meaning set forth in Section 3.14(c).
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Note” has the meaning assigned to it in Section 2.1(d).
“S&P” means Standard & Poor’s Ratings Group and any successor to its rating agency business.
 
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“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Issuer or a Restricted Subsidiary of any property, whether owned by the Issuer or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agent” means Wilmington Trust (London) Limited, as security agent under the Intercreditor Agreement.
“Security Documents” has the meaning assigned to it in Section 7.13.
“Senior Indebtedness” means (i) the Notes and any other Indebtedness of the Issuer or any Note Guarantor that ranks equal in right of payment with the Notes or the relevant Note Guarantee, as the case may be or (ii) Indebtedness for borrowed money or constituting Capitalized Lease Obligations of any Restricted Subsidiary other than a Note Guarantor.
“Significant Subsidiary” means a Subsidiary of the Issuer constituting a “Significant Subsidiary” of the Issuer in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act in effect on the date hereof.
“Similar Business” means (1) any business engaged in by the Issuer or any Restricted Subsidiary on the Issue Date, and (2) any business or other activities, including non-profit or charitable activities, that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses and activities in which the Issuer or any Restricted Subsidiary is engaged on the Issue Date, including, but not limited to, infrastructure projects, public works programs and consumer or supplier financing.
“Special Record Date” has the meaning assigned to it in Section 2.13(a).
“SPV Perpetuals” means the perpetual debentures issued by special purpose vehicles in December 2006, February 2007 and March 2007, as amended or supplemented from time to time.
“Standard Undertakings” means representations, warranties, covenants, indemnities and similar obligations, including servicing obligations, entered into by the Issuer or any Subsidiary of the Issuer in connection with a Qualified Receivables Transaction, which are customary in similar non-recourse receivables securitization, purchase or financing transactions.
“Subordinated Indebtedness” means, with respect to the Issuer or any Note Guarantor, any Indebtedness of the Issuer or such Note Guarantor, as the case may be, which is expressly subordinated in right of payment to the Notes or the relevant Note Guarantee, as the case may be.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than
 
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fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (X) such Person, (Y) such Person and one or more of its other Subsidiaries or (Z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “Subsidiary” shall refer to a Subsidiary of the Issuer.
“Successor Issuer” has the meaning assigned to it in Section 4.1(a).
“Successor Note Guarantor” has the meaning assigned to it in Section 4.1(b).
“Suspended Covenants” has the meaning assigned to it in Section 3.22(b).
“Suspension Date” has the meaning assigned to it in Section 3.22(c).
“Suspension Period” has the meaning assigned to it in Section 3.22(e).
“Swiss Note Guarantor” has the meaning assigned to it in Section 10.6(a).
“Taxes” has the meaning assigned to it in Section 3.21(a).
“Taxing Jurisdiction” has the meaning assigned to it in Section 3.21(a).
“Transfer Agent” has the meaning assigned to it in Section 2.3(a).
“Transportation Agreements” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, having direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Trustee” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Undervalued Asset” has the meaning assigned to it in Section 10.6(g).
“USA PATRIOT Act” has the meaning assigned to it in Section 12.16.
 
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“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of, or guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.
“U.S. Legal Tender” means such coin or currency of the United States of America, as at the time of payment shall be legal tender for the payment of public and private debts.
“U.S. Person” means a “U.S. person” as defined in Regulation S.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Unrestricted Subsidiary” means any Subsidiary of the Issuer designated as such pursuant to Section 3.14 . Any such Designation may be revoked by the Issuer, subject to the provisions of such covenant.
“Voting Stock” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (calculated to the nearest one-twelfth) obtained by dividing:
 
 	(1)	the sum of the products obtained by multiplying:	
 
 	(a)	the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by	
 
 	(b)	the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment; by	
 
 	(2)	the then outstanding aggregate principal amount or liquidation preference, as the case may be, of such Indebtedness.	
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary (Restricted Subsidiary in the case of the Issuer) of which at least 99.5% of the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
 
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Section 1.2 [Reserved].
Section 1.3 Rules of Construction. Unless the context otherwise requires:
 
 	(1)	a term has the meaning assigned to it;	
 
 	(2)	an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;	
 
 	(3)	“or” is not exclusive;	
 
 	(4)	“including” means including without limitation;	
 
 	(5)	words in the singular include the plural and words in the plural include the singular; and	
 
 	(6)	references to the payment of principal of the Notes shall include applicable premium, if any.	
ARTICLE II
THE NOTES
Section 2.1 Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by the Issuer pursuant to a Purchase Agreement, dated as of August 5, 2013, among the Issuer, the Note Guarantors party thereto and J.P. Morgan Securities LLC, HSBC Securities (USA) Inc. BNP Paribas Securities Corp. and Credit Agricole Securities (USA) Inc., as Initial Purchasers with respect to the Notes. The Notes will initially be issued as one or more Global Notes in fully registered form without interest coupons, and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Each such Global Note shall constitute a single Note for all purposes under this Indenture. Certificated Notes, if issued pursuant to the terms hereof, will be issued in fully registered certificated form without coupons. The Notes may only be issued in definitive fully registered form without coupons and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of  Exhibit A  hereto.
(b) The terms and provisions of the Notes, the form of which is in Exhibit A hereto, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer, the Note Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes (including Additional Notes) shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class and are otherwise treated as a single issue of securities.
(c) The Notes may have notations, legends or endorsements as specified in Section 2.8 or as otherwise required by law, stock exchange rule or DTC, Euroclear or
 
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Clearstream rule or usage. The Issuer and the Trustee shall approve any changes to the form of the Notes attached to this Indenture and any additional notation, legend or endorsement required to be inserted on them. Each Note shall be dated the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a “ Rule 144A Global Note ”). Each Rule 144A Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC. In no event shall any Person hold an interest in a Rule 144A Global Note other than in or through accounts maintained at DTC.
(e) Notes originally offered and sold outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Notes (each, a “ Regulation S Global Note ”). Each Regulation S Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC by or on behalf of Euroclear or Clearstream. In no event shall any Person hold an interest in a Regulation S Global Note other than in or through accounts maintained at DTC by or on behalf of Euroclear or Clearstream.
Section 2.2 Execution and Authentication.
(a) Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until manually authenticated by an authorized signatory of the Trustee or an agent appointed by the Trustee (and reasonably acceptable to the Issuer) for such purpose (an “ Authenticating Agent ”). The signature of an authorized signatory of the Trustee or an Authenticating Agent on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. Unless limited by the terms of its appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by an Authenticating Agent.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Issuer signed by an Officer of the Issuer (the “ Issuer Order ”). An Issuer Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
(d) In case a Successor Issuer has executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Successor Issuer be exchanged for other Notes executed in the name of the Successor Issuer with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of the Successor Issuer, shall
 
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authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a Successor Issuer pursuant to this  Section 2.2  in exchange or substitution for or upon registration of transfer of any Notes, such Successor Issuer, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
Section 2.3 Registrar, Paying Agent and Transfer Agent.
(a) The Issuer shall maintain an office or agency in the Borough of Manhattan, City of New York, that shall keep a register of the Notes (the “ Note Register ”) and of their transfer and exchange (the “ Registrar ”), where Notes may be presented or surrendered for registration of transfer or for exchange (the “ Transfer Agent ”), where Notes may be presented for payment (the “ Paying Agent ”) and for the service of notices and demands to or upon the Issuer in respect of the Notes and this Indenture. The Issuer may have one or more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. In addition, the Issuer undertakes to the extent possible, to use reasonable efforts to maintain a Paying Agent in a member state of the European Union that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC regarding taxation of savings income.
(b) The Issuer shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to  Section 7.7 . The Issuer or any Affiliate of the Issuer may act as Paying Agent, Registrar or co-Registrar, or transfer agent.
(c) The Issuer initially designates the Corporate Trust Office of the Trustee as such office or agency of the Issuer as required by  Section 2.3(a)  and appoints the Trustee as Registrar, Paying Agent, Transfer Agent and agent for service of demands and notices in connection with the Notes and this Indenture, until such time as another Person is appointed as such.
Section 2.4 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any Default by the Issuer or any Note Guarantor in making any such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.4 , the Paying Agent (if other than the Issuer or any Affiliate of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any
 
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Bankruptcy Law with respect to the Issuer or any Affiliate of the Issuer, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
Section 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. At any time that the Trustee is not the Registrar the Issuer shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.6 CUSIP Numbers.
The Issuer in issuing Notes may use “CUSIP” numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Securities “CUSIP” number in notices to the Holders as a convenience to such Holders;  provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any changes in the “CUSIP” numbers.
Section 2.7 Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian and (iii) bear the appropriate legends as set forth in  Section 2.8  and  Exhibit A  hereto. Any Global Note may be represented by one or more certificates. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture.
(b) Except as provided in clause (iii) of Section 2.7(c), members of, or participants in, DTC (“Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian, and DTC may be treated by the Issuer, any Note Guarantor, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by DTC or (ii) impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including DTC, or its nominee, Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
 
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(c) Except as provided in this Section 2.7(c), owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes in exchange for such beneficial interests.
 
 	(i)	Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such beneficial interests if (A) DTC notifies the Issuer that it is unwilling or unable to continue as depositary for such Global Note or (B) DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Issuer within 90 days of such notice. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this clause (i) of this  Section 2.7(c) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and deliver to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations, and the Registrar shall register such exchanges in the Note Register.	
 
 	(ii)	The owner of a beneficial interest in a Global Note will be entitled to receive Certificated Notes in exchange for such interest if an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members through DTC on behalf of the owner of a beneficial interest in a Global Note directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Note for Certificated Notes, subject to and in accordance with the Applicable Procedures, the Issuer shall promptly execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to such beneficial owner, Certificated Notes in a principal amount equal to such beneficial interest in such Global Note.	
 
 	(iii)	If (A) an event described in clause (i) of Section 2.7(c) occurs and Certificated Notes are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner the instructions described in clause (ii) of  Section 2.7(c)  and Certificated Notes are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to  Section 6.6 hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Certificated Notes had been issued.	
 
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Section 2.8 Legends.
(a) Each Global Note shall bear the legend specified therefor in Exhibit A hereto on the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in Exhibit A hereto on the face thereof (the “ Private Placement Legend ”).
(c) Each Note shall bear the Mexican law legend specified therefor in Exhibit A hereto on the face thereof.
Section 2.9 Transfer and Exchange.
(a) Transfers of Beneficial Interests in a Rule 144A Global Note. If the owner of a beneficial interest in a Rule 144A Global Note that is a Restricted Note wishes to transfer such interest (or portion thereof) pursuant to Rule 144 (if available) or to a Non-U.S. Person pursuant to Regulation S:
 
 	(i)	upon receipt by the Registrar of:	
 
 	(A)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Regulation S Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(B)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(C)	a certificate in the form of Exhibit B or Exhibit C hereto, as applicable, duly executed by the transferor;	
 
 	(ii)	the Note Custodian shall increase the Regulation S Global Note and decrease the Rule 144A Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
 
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(b) Transfers of Beneficial Interests in a Regulation S Global Note. Subject to the Applicable Procedures, the following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note that is a Restricted Note:
 
 	(i)	If the owner of a beneficial interest in a Regulation S Global Note that is a Restricted Note wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A:	
 
 	(A)	upon receipt by the Registrar of:	
 
 	(1)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(2)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(3)	a certificate in the form of Exhibit D hereto, duly executed by the transferor;	
 
 	(B)	the Note Custodian shall increase the Rule 144A Global Note and decrease the Regulation S Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(c) Other Transfers. Any registration of transfer of Restricted Notes (including Certificated Notes) not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with  Section 2.9(d) .
(d) Use and Removal of Private Placement Legends. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing (or not required to bear upon such transfer, exchange or replacement) a Private Placement Legend, the Note Custodian and Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note or Certificated Notes if they have been issued pursuant to  Section 2.7(c)  that does not bear a Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
 
 	(i)	such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of  Exhibit C  hereto, and an Opinion of Counsel reasonably satisfactory to the Registrar;	
 
 	(ii)	such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor and, in the case of any such Restricted Notes, the Issuer has complied with the applicable procedures for delegending in accordance with  Section 2.9(h) ; or	
 
 	(iii)	in connection with such registration of transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably satisfactory to the Issuer and the Registrar to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.	
 
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The Holder of a Global Note bearing a Private Placement Legend may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to this  Section 2.9(d) .
(e) Consolidation of Global Notes and Exchange of Certificated Notes for Beneficial Interests in Global Notes. If a Global Note not bearing a Private Placement Legend is Outstanding at the time of a removal of legends pursuant to Section 2.9(h) , any interests in a Global Note delegended pursuant to  Section 2.9(h)  shall be exchanged for interests in such Outstanding Global Note, subject to the proviso at the end of  Section 2.14(a) .
(f) Retention of Documents. The Registrar and the Trustee shall retain copies of all letters, notices and other written communications received pursuant to this  Article II  and in accordance with the Trustee’s, or if different, the Registrar’s, record retention procedures. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar or the Trustee, as the case may be.
(g) General Provisions Relating to Transfers and Exchanges.
 
 	(i)	Subject to the other provisions of this Section 2.9, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met;  provided , that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.	
 
 	(ii)	To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II , the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, Certificated Notes and Global Notes, as applicable, at the Registrar’s or co-Registrar’s request.	
 
 	(iii)	No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer and the Trustee may require	
 
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 	payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to  Section 3.8 ,  Section 3.9, Section 5.1  or  Section 9.5 ).	
 
 	(iv)	The Registrar or co-Registrar shall not be required to register the transfer of or exchange of (x) any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.	
 
 	(v)	Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar or the Note Custodian shall be affected by notice to the contrary.	
 
 	(vi)	All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.	
 
 	(vii)	Subject to Section 2.7 and this Section 2.9, in connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged.	
(h) Applicable Procedures for Delegending.
 
 	(i)	Promptly after one year has elapsed following (A) the Issue Date or (B) if the Issuer has issued Additional Notes with the same terms and the same CUSIP number as the Issue Date Notes pursuant to this Indenture within one year following the Issue Date, the date of original issuances of such Additional Notes, if the relevant Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Issuer where no conditions of Rule 144 are	
 
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 	then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Issuer shall:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Notes, and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;	
 
 	(2)	notify Holders of such Notes that the Private Placement Legend has been removed or deemed removed; and	
 
 	(3)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
In no event will the failure of the Issuer to provide any notice set forth in this paragraph or of the Trustee to remove the Private Placement Legend constitute a failure by the Issuer to comply with any of its covenants or agreements set forth in  Section 6.1  or otherwise. Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Restricted Note for exchange to the Registrar in accordance with the provisions of Article II  of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend. The Issuer shall notify the Trustee in writing upon occurrence of the Resale Restriction Termination Date for any Note.
 
 	(ii)	In the case of a Regulation S Global Note, after the Resale Restriction Termination Date of any such Regulation S Global Note, the Issuer may, at its sole option:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Regulation S Global Note (including setting forth the basis for such removal), and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from such Regulation S Global Note without further action on the part of Holders; and	
 
 	(2)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
 
 	(iii)	Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (A) each reference	
 
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 	in this Section 2.9(h) to “one year” and in the Private Placement Legend described in Section 2.8(b)  and  Exhibit A  hereto to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, and (B) all corresponding references in this Indenture (including the definition of Resale Restriction Termination Date), the Notes and the Private Placement Legends thereon shall be deemed for all purposes hereof to be references to such changed period;  provided , that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws;  provided further  that if such change does not apply to existing Notes, all references to “one year” in this Indenture shall not be deemed for all purposes hereof to be references to such changed period. This  Section 2.9(h)  shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.	
(i) No Obligation of the Trustee.
 
 	(i)	The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, Agent Members or any other Persons with respect to the accuracy of the records of DTC or its nominee or of Agent Members, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners.	
 
 	(ii)	The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.	
 
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Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery, a replacement Note for such mutilated, lost or stolen Note, of like tenor and principal amount, bearing a number not contemporaneously Outstanding if:
 
 	(i)	the requirements of Section 8-405 of the Uniform Commercial Code are met,	
 
 	(ii)	the Holder satisfies any other reasonable requirements of the Trustee, and	
 
 	(iii)	neither the Issuer nor the Trustee has received notice that such Note has been acquired by a protected purchaser (as defined in  Section 8-303  of the Uniform Commercial Code).	
If required by the Trustee or the Issuer, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar and the Note Custodian from any loss that any of them may suffer if a Note is replaced.
(b) Upon the issuance of any new Note under this Section 2.10, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.10 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Note Guarantor and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Section 2.11 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer will prepare and execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuer pursuant to  Section 2.3  for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery in exchange therefor, one or more definitive Notes
 
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representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.12 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or upon written request of the Issuer, return to the Issuer all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange upon Issuer Order.
Section 2.13 Defaulted Interest.
When any installment of interest becomes overdue (a “Defaulted Interest”), such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) shall be paid by the Issuer, at its election, as provided in clause (a) or clause (b) below.
(a) The Issuer may elect to make payment of any Defaulted Interest (including any interest payable on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “ Special Record Date ”), which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this  Section 2.13(a) . Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to clause (b) below; or
 
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(b) The Issuer may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this  Section 2.13(b) , such manner of payment shall be deemed practicable by the Trustee. The Trustee shall in the name and at the expense of the Issuer cause prompt notice of the proposed payment and the date thereof to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register.
Section 2.14 Additional Notes.
(a) The Issuer may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“ Additional Notes ”) that shall have terms and conditions identical to those of the other Outstanding Notes, except with respect to:
 
 	(i)	the Issue Date;	
 
 	(ii)	the amount of interest payable on the first Interest Payment Date therefor;	
 
 	(iii)	the issue price; and	
 
 	(iv)	any adjustments necessary in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any agreement applicable to such Additional Notes, which are not adverse in any material respect to the Holder of any Outstanding Notes (other than such Additional Notes).	
The Notes issued on the Issue Date and any Additional Notes shall be treated as a single series for all purposes under this Indenture;  provided , that the Issuer may use different CUSIP or other similar numbers among Issue Date Notes and among Additional Notes to the extent required to comply with securities or tax law requirements, including to permit delegending pursuant to  Section 2.9(h) .
(b) With respect to any Additional Notes, the Issuer will set forth in an Officer’s Certificate of the Issuer (the “ Additional Note Certificate ”), copies of which will be delivered to the Trustee, the following information:
 
 	(i)	the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;	
 
 	(ii)	the Issue Date and the issue price of such Additional Notes; provided, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code, unless such Additional Notes have a separate CUSIP or other similar number from other Notes; and	
 
 	(iii)	whether such Additional Notes will be subject to transfer restrictions under the Securities Act (or other applicable securities laws).	
 
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ARTICLE III
COVENANTS
Section 3.1 Payment of Notes.
(a) The Issuer shall pay the principal of and interest (including Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the manner provided in the Notes and in this Indenture. Prior to 10:00 a.m. New York City time, on the Business Day prior to each Interest Payment Date and the Maturity Date, the Issuer shall deposit with the Paying Agent in immediately available funds U.S. Legal Tender sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. If the Issuer or an Affiliate of the Issuer is acting as Paying Agent, the Issuer or such Affiliate shall, prior to 10:00 a.m. New York City time on the Business Day prior to each Interest Payment Date and the Maturity Date, segregate and hold in trust U.S. Legal Tender, sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or an Affiliate of the Issuer) holds in accordance with this Indenture U.S. Legal Tender designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
(b) The Issuer hereby instructs the Trustee to establish an “Issue Date Note Account” for reception of the interest and principal payments for the Issue Date Notes.
Section 3.2 Maintenance of Office or Agency.
(a) The Issuer shall maintain each office or agency required under Section 2.3. The Issuer will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Issuer may also from time to time designate one or more other offices or agencies (in or outside of the City of New York) where the Notes may be presented or surrendered for registration of transfer or for exchange and may from time to time rescind any such designation;  provided ,  however , that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
Section 3.3 Corporate Existence. Subject to Article IV, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
 
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Section 3.4 Payment of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Issuer or any Restricted Subsidiary or for which it or any of them are otherwise liable, or upon the income, profits or property of the Issuer or any Restricted Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Lien upon the property of the Issuer or any Restricted Subsidiary;  provided ,  however , that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of the Issuer), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.5 Compliance Certificate. The Issuer and each Note Guarantor shall deliver to the Trustee within 105 days after the end of each fiscal year of the Issuer (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue Date) an Officer’s Certificate stating that in the course of the performance by the signers of their duties as Officers of the Issuer or such Note Guarantor, as the case may be, they would normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during the previous fiscal year. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Issuer or such Note Guarantor is taking or proposes to take with respect thereto.
Section 3.6 Further Instruments and Acts.
(a) The Issuer and each Note Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture.
(b) The Issuer and the Note Guarantors shall take, and shall cause their Subsidiaries party thereto to take, any and all actions required under the Intercreditor Agreement and the Security Documents to cause the Intercreditor Agreement and the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Note Guarantors hereunder, a valid and enforceable perfected security interest on all the Collateral, in favor of the Security Agent for the equal and ratable benefit of the Holders of the Notes, and the other Permitted Secured Obligations, first in priority to any and all security interests at any time granted upon the Collateral, subject in all respects to Liens imposed by law and Liens for judgments, taxes, assessments or governmental charges.
Section 3.7 Waiver of Stay, Extension or Usury Laws. The Issuer and each Note Guarantor covenant (to the fullest extent permitted by applicable law) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or such Note Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Issuer and each Note Guarantor hereby expressly waives (to the fullest extent permitted by applicable law) all benefit or
 
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advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 3.8 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon through the date of purchase (the “ Change of Control Payment ”).
(b) Within 30 days following the date upon which the Change of Control occurred, the Issuer must send, by first-class mail, a notice to each Holder, with a copy to the Trustee, offering to purchase the Notes as described above (a “ Change of Control Offer ”). The Change of Control Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Change of Control Payment Date ”).
(c) On the Change of Control Payment Date, the Issuer will, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(d) If only a portion of a Note is purchased pursuant to a Change of Control Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);  provided , that each new Note shall be in a minimum principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
 
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(e) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if:
 
 	(i)	a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or	
 
 	(ii)	notice of redemption has been given pursuant to this Indenture as described under Section 5.4 unless and until there is a default in payment of the applicable redemption price.	
(f) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations in connection with the purchase of Notes in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by doing so.
Section 3.9 Limitation on Incurrence of Additional Indebtedness.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness, including Acquired Indebtedness, except that the Issuer and/or any of the Note Guarantors may Incur Indebtedness, including Acquired Indebtedness, if, at the time of and immediately after giving  pro forma  effect to the Incurrence thereof and the application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Issuer is greater than or equal to 2.0 to 1.0.
(b) Notwithstanding clause (a) above, the Issuer and/or any of its Restricted Subsidiaries, as applicable, may Incur the following Indebtedness (“ Permitted Indebtedness ”):
 
 	(i)	Indebtedness not to exceed U.S.$1,000,000,000 in respect of the Notes, excluding Additional Notes;	
 
 	(ii)	Guarantees by (A) any Note Guarantor of Indebtedness of the Issuer or another Note Guarantor permitted under this Indenture and (B) the Issuer of Indebtedness of any Note Guarantor;  provided , that if any such Guarantee is of Subordinated Indebtedness, then the obligations of the Issuer under the Notes and this Indenture or the Note Guarantee of such Note Guarantor, as applicable, will be senior to the Guarantee of such Subordinated Indebtedness;	
 
 	(iii)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries outstanding on the Issue Date (excluding Indebtedness permitted under clauses (v), (vi), (vii) or (x) of this definition of Permitted Indebtedness);	
 
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 	(iv)	Hedging Obligations, Compensation Related Hedging Obligations and any Guarantees thereof and any reimbursement obligations with respect to letters of credit related thereto, in each case entered into by the Issuer and/or any of its Restricted Subsidiaries;  provided , that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;	
 
 	(v)	intercompany Indebtedness between the Issuer and any Restricted Subsidiary or between any Restricted Subsidiaries;  provided , that in the event that at any time any such Indebtedness ceases to be held by the Issuer or a Restricted Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause (v) at the time such event occurs;	
 
 	(vi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;  provided , that such Indebtedness is extinguished within five Business Days of Incurrence; or (B) any cash pooling or other cash management agreements in place with a bank or financial institution but only to the extent of offsetting credit balances of the Issuer and/or its Restricted Subsidiaries pursuant to such cash pooling or other cash management agreement;	
 
 	(vii)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries represented by (A) endorsements of negotiable instruments in the ordinary course of business (excluding an  aval ), (B) documentary credits (including all forms of letter of credit), performance bonds or guarantees, advance payments, bank guarantees, bankers’ acceptances, surety or appeal bonds or similar instruments for the account of, or guaranteeing performance by, the Issuer and/or any Restricted Subsidiary in the ordinary course of business, (C) reimbursement obligations with respect to letters of credit in the ordinary course of business, (D) reimbursement obligations with respect to letters of credit and performance Guarantees in the ordinary course of business to the extent required pursuant to the terms of any Investment made pursuant to clause (12) of the definition of “Permitted Investment” and (E) other Guarantees by the Issuer and/or any Restricted Subsidiary in favor of a bank or financial institution in respect of obligations of that bank or financial institution to a third party in an amount not to exceed U.S.$500 million at any one time outstanding;  provided , that in the case of clauses (B), (C) and (D), upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;	
 
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 	(viii)	Refinancing Indebtedness in respect of:	
 
 	(A)	Indebtedness (other than Indebtedness owed to the Issuer or any Subsidiary of the Issuer) Incurred pursuant to clause (a) above (it being understood that no Indebtedness outstanding on the Issue Date is Incurred pursuant to such clause (a) above), or	
 
 	(B)	Indebtedness Incurred pursuant to clause (i), (ii) or (iii) above or this clause (viii);	
 
 	(ix)	Capitalized Lease Obligations, Sale and Leaseback Transactions, export credit facilities with a maturity of at least one year and Purchase Money Indebtedness of, including Guarantees of any of the foregoing by, the Issuer and/or any Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed U.S.$1 billion;	
 
 	(x)	Indebtedness arising from agreements entered into by the Issuer and/or a Restricted Subsidiary providing for bona fide indemnification, adjustment of purchase price or similar obligations not for financing purposes, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary (including minority interests);  provided , that in the case of a disposition, the maximum aggregate liability in respect of such Indebtedness shall at no time exceed the gross proceeds actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;	
 
 	(xi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries in an aggregate amount not to exceed U.S.$1 billion at any one time outstanding;  provided , that no more than U.S.$250 million of such Indebtedness at any one time outstanding (excluding any Indebtedness under a Permitted Liquidity Facility) may be Incurred by Restricted Subsidiaries that are not Note Guarantors, which amount shall be increased by the corresponding amount of other Indebtedness of Restricted Subsidiaries other than the Note Guarantors outstanding on the Issue Date and subsequently repaid from time to time but in any event not to exceed U.S.$500 million at any one time outstanding;  provided ,  further ,  however , that (A) the Issuer and/or any of its Restricted Subsidiaries may Incur Indebtedness under a Permitted Liquidity Facility and (B) in the event that the Issuer and/or any of its Restricted Subsidiaries shall have Incurred Indebtedness under a Permitted Liquidity Facility that increases the amount outstanding at such time pursuant to this clause (xi) in excess of U.S.$ 1 billion, then up to U.S.$1.2 billion may be Incurred pursuant to this clause (xi) at any one time outstanding;	
 
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 	(xii)	(A) Indebtedness of the Issuer and/or any of its Restricted Subsidiaries in respect of factoring arrangements or Inventory Financing arrangements or (B) other Indebtedness of the Issuer and/or any of its Restricted Subsidiaries with a maturity of 12 months or less for working capital purposes, not to exceed in the aggregate at any one time (calculated as of the end of the most recent fiscal quarter for which consolidated financial information of the Issuer is available) the greater of:	
 
 	(1)	The sum of:	
 
 	(x)	20% of the net book value of the inventory of the Issuer and its Restricted Subsidiaries and	
 
 	(y)	20% of the net book value of the accounts receivable of the Issuer and its Restricted Subsidiaries (excluding accounts receivable pledged to secure Indebtedness or subject to a Qualified Receivables Transaction), less, in each case, the amount of any permanent repayments or reductions of commitments in respect of such Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to comply with  Section 3.12 ; or	
 
 	(2)	U.S.$350 million;	
 
 	(xiii)	[Reserved];	
 
 	(xiv)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business;  provided , that such Indebtedness shall be permitted to be Incurred only at such time that the Facilities Agreement (or any refinancing thereof) shall contain an exception to allow the Incurrence of Indebtedness to pay taxes;	
 
 	(xv)	Indebtedness Incurred pursuant to the Banobras Facility;	
 
 	(xvi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries Incurred and/or issued to refinance Qualified Receivables Transactions in existence on the Issue Date;	
 
 	(xvii)	Acquired Indebtedness in an aggregate amount at any one time outstanding under this clause (xvii) not to exceed U.S.$100 million; and	
 
 	(xviii)	(A) any Indebtedness that constitutes an Investment that the Issuer and/or any of its Restricted Subsidiaries is contractually committed to	
 
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 	Incur as of the Issue Date in any Person (other than a Subsidiary) in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities; and (B) Guarantees up to U.S.$100 million in any calendar year by the Issuer and/or any Restricted Subsidiary of Indebtedness of any Person in which the Issuer or any of its Restricted Subsidiaries maintains an equity Investment minus any Investment other than such guarantees in such Person during such calendar year pursuant to clause (17)(b) of the definition of “Permitted Investments.”	
(c) Notwithstanding anything to the contrary contained in this Section 3.9,
 
 	(i)	The Issuer shall not, and shall not permit any Note Guarantor to, Incur any Permitted Indebtedness pursuant to  Section 3.9(b)  if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Indebtedness unless such Indebtedness shall be subordinated to the Notes or the applicable Note Guarantee, as the case may be, to at least the same extent as such Subordinated Indebtedness.	
 
 	(ii)	For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with this  Section 3.9 , the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness for purposes of this  Section 3.9 . For purposes of determining compliance with this  Section 3.9 , mark-to-market fluctuations of hedging obligations or derivatives outstanding on the Issue Date shall not constitute Incurrence of Indebtedness.	
 
 	(iii)	For purposes of determining compliance with this Section 3.9, the principal amount of Indebtedness denominated in foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;  provided , that if such Indebtedness is Incurred to refinance other Indebtedness denominated in foreign currency, and such refinancing would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such	
 
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 	Indebtedness being refinanced. Notwithstanding any other provision of this Section 3.9, the maximum amount of Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.	
 
 	(iv)	For purposes of determining compliance with this Section 3.9:	
 
 	(A)	in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including, without limitation, in  Section 3.9(a) , the Issuer, in its sole discretion, will classify such item of Indebtedness at the time of Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and may later reclassify all or a portion of such item of Indebtedness as having been Incurred pursuant to any other clause to the extent such Indebtedness could be Incurred pursuant to such clause at the time of such reclassification; and	
 
 	(B)	the Issuer will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above, including, without limitation,  Section 3.9(a) .	
Section 3.10 [Reserved].
Section 3.11 Limitation on Restricted Payments.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, take any of the following actions (each, a “ Restricted Payment ”):
 
 	(i)	declare or pay any dividend or return of capital or make any distribution on or in respect of shares of Capital Stock of the Issuer or any Restricted Subsidiary to holders of such Capital Stock, other than:	
 
 	(A)	dividends, distributions or returns on capital payable in Qualified Capital Stock of the Issuer,	
 
 	(B)	dividends, distributions or returns on capital payable to the Issuer and/or a Restricted Subsidiary,	
 
 	(C)	dividends, distributions or returns of capital made on a pro rata basis to the Issuer and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder);	
 
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 	(ii)	purchase, redeem or otherwise acquire or retire for value:	
 
 	(A)	any Capital Stock of the Issuer, or	
 
 	(B)	any Capital Stock of any Restricted Subsidiary held by an Affiliate of the Issuer or any Preferred Stock of a Restricted Subsidiary, except for:	
 
 	(1)	Capital Stock held by the Issuer or a Restricted Subsidiary, or	
 
 	(2)	purchases, redemptions, acquisitions or retirements for value of Capital Stock on a pro rata basis from the Issuer and/or any Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand, according to their respective percentage ownership of the Capital Stock of such Restricted Subsidiary;	
 
 	(iii)	make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Subordinated Indebtedness; or	
 
 	(iv)	make any Investment (other than Permitted Investments);	
if at the time of the Restricted Payment immediately after giving effect thereto:
 
 	(A)	a Default or an Event of Default shall have occurred and be continuing;	
 
 	(B)	the Issuer is not able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); or	
 
 	(C)	the aggregate amount (the amount expended for these purposes, if other than in cash, being the Fair Market Value of the relevant property at the time of the making thereof) of the proposed Restricted Payment and all other Restricted Payments made subsequent to the Issue Date up to the date thereof, less any Investment Return calculated as of the date thereof, shall exceed the sum of:	
 
 	(1)	50% of cumulative Consolidated Net Income of the Issuer or, if cumulative Consolidated Net Income of the Issuer is a loss, minus (i) 100% of the loss, accrued during the period, treated as one accounting period, beginning on the first full fiscal quarter after the Issue Date to the end of the most recent fiscal quarter for which consolidated financial information of the Issuer is available and (ii) the amount of cash benefits to the Issuer or a Restricted Subsidiary that is netted against Investments in Similar Businesses pursuant to clause (12) of the definition of “Permitted Investments”; plus	
 
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 	(2)	100% of the aggregate net cash proceeds received by the Issuer from any Person from any:	
 
 	•	 	contribution to the equity capital of the Issuer (not representing an interest in Disqualified Capital Stock) or issuance and sale of Qualified Capital Stock of the Issuer, in each case, subsequent to the Issue Date, or	
 
 	•	 	issuance and sale subsequent to the Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at such time as it was a Restricted Subsidiary) of any Indebtedness for borrowed money of the Issuer or any Restricted Subsidiary that has been converted into or exchanged for Qualified Capital Stock of the Issuer,	
excluding, in each case, any net cash proceeds:
 
 	•	 	received from a Subsidiary of the Issuer;	
 
 	•	 	used to redeem Notes under Article V;	
 
 	•	 	used to acquire Capital Stock or other assets from an Affiliate of the Issuer; or	
 
 	•	 	applied in accordance with clause (ii)(B) or (iii)(A) of Section 3.11(b) below.	
(b) Notwithstanding Section 3.11(a), this Section 3.11 does not prohibit:
 
 	(i)	the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration pursuant to  Section 3.11(a) ;	
 
 	(ii)	if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Issuer,	
 
 	(A)	in exchange for Qualified Capital Stock of the Issuer, or	
 
 	(B)	through the application of the net cash proceeds received by the Issuer from a substantially concurrent sale of Qualified Capital Stock of the Issuer or a contribution to the equity capital of the Issuer not representing an interest in Disqualified Capital Stock, in each case not received from a Subsidiary of the Issuer;	
 
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provided, that the value of any such Qualified Capital Stock issued in exchange for such acquired Capital Stock and any such net cash proceeds shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iii)	if no Default or Event of Default shall have occurred and be continuing, the voluntary prepayment, purchase, defeasance, redemption or other acquisition or retirement for value of any Subordinated Indebtedness:	
 
 	(A)	solely in exchange for, or through the application of net cash proceeds of a substantially concurrent sale, other than to a Subsidiary of the Issuer, of Qualified Capital Stock of the Issuer, or	
 
 	(B)	solely in exchange for Refinancing Indebtedness for such Subordinated Indebtedness,	
provided, that the value of any Qualified Capital Stock issued in exchange for Subordinated Indebtedness and any net cash proceeds referred to above shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iv)	repurchases by the Issuer of Common Stock of the Issuer or options, warrants or other securities exercisable or convertible into Common Stock of the Issuer from employees or directors of the Issuer or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment or directorship of the employees or directors, in an amount not to exceed U.S.$5 million in any calendar year and any repurchases other than in connection with compensation of Common Stock of the Issuer pursuant to binding written agreements in effect on the Issue Date;	
 
 	(v)	payments of dividends on Disqualified Capital Stock issued pursuant to the covenant described under Section 3.9 ;  provided ,  however , that such dividends shall be excluded in the calculation of the amount of Restricted Payments;	
 
 	(vi)	non-cash repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights;	
 
 	(vii)	cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Issuer;	
 
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 	(viii)	purchases of any Subordinated Indebtedness of the Issuer (A) at a purchase price not greater than 101% of the principal amount thereof (together with accrued and unpaid interest) in the event of the occurrence of a Change of Control or (B) at a purchase price not greater than 100% of the principal amount thereof (together with accrued and unpaid interest) in the event of an Asset Sale in accordance with provisions similar to those set forth under  Section 3.12 ;  provided ,  however , that prior to such purchase of any such Subordinated Indebtedness, the Issuer has made the Change of Control Offer or Asset Sale Offer as provided under  Section 3.8  or Section 3.12 , respectively, and has purchased all Notes validly tendered and not properly withdrawn pursuant thereto;	
 
 	(ix)	recapitalization of earnings on or in respect of the Qualified Capital Stock of the Issuer pursuant to which additional Qualified Capital Stock of the Issuer or the right to subscribe for additional Capital Stock of the Issuer is issued to the existing shareholders of the Issuer on a  pro rata  basis (which, for the avoidance of doubt, shall not allow any payment in cash to be made in respect of Qualified Capital Stock of the Issuer pursuant to this clause (ix)); and	
 
 	(x)	so long as (A) no Default or Event of Default shall have occurred and be continuing (or result therefrom) and (B) the Issuer could Incur at least U.S.$1.00 of additional Debt pursuant to  Section 3.9(a) , payment of any dividends on Capital Stock (other than Disqualified Capital Stock) of the Issuer in an aggregate amount which, when taken together with all dividends paid pursuant to this clause (x), does not exceed U.S.$50 million in any calendar year;  provided , that such dividends shall be included in the calculation of the amount of Restricted Payments.	
 
 	(xi)	[Reserved]	
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (i) (without duplication for the declaration of the relevant dividend), (iv), (viii) and (x) above shall be included in such calculation and amounts expended pursuant to clauses (ii), (iii), (v), (vi), (vii) and (ix) above shall not be included in such calculation.
Section 3.12 Limitation on Asset Sales.
(a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
 
 	(i)	the Issuer or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (to be determined as of the date on which such sale is contracted) of the assets sold or otherwise disposed of, and	
 
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 	(ii)	other than in respect of Permitted Asset Swap Transactions, at least 80% of the consideration received for the assets sold by the Issuer or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale;  provided ,  however , for the purposes of this clause (ii), the following are also deemed to be cash or Cash Equivalents:	
 
 	(A)	the assumption of Indebtedness (other than Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Sale;	
 
 	(B)	any securities, notes or obligation received by the Issuer or any Restricted Subsidiary from the transferee that are, within 180 days after the Asset Sale, converted by the Issuer or such Restricted Subsidiary into cash, to the extent of cash received in that conversion;	
 
 	(C)	Capital Stock of a Person who is or who, after giving effect to such Asset Sale, becomes, a Restricted Subsidiary; and	
 
 	(D)	any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in connection with such Asset Sale having an aggregate Fair Market Value which, when taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (D) since the Issue Date, does not exceed the sum of (1) 3.0% of Consolidated Tangible Assets of the Issuer calculated as of the end of the most recent fiscal quarter for which consolidated financial information is available (with the Fair Market Value of each item of Designated Non-cash Consideration being measured as of the date it was received and without giving effect to subsequent changes in value of any such item of Designated Non-cash Consideration) and (2) the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.	
(b) The Issuer or any Restricted Subsidiary may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
 
 	(i)	repay any Senior Indebtedness for borrowed money or constituting a Capitalized Lease Obligation and permanently reduce the commitments with respect thereto, or	
 
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 	(ii)	purchase:	
 
 	(A)	assets (except for current assets as determined in accordance with GAAP or Capital Stock) to be used by the Issuer or any Restricted Subsidiary in a Permitted Business, or	
 
 	(B)	substantially all of the assets of a Permitted Business or Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary from a Person other than the Issuer and its Restricted Subsidiaries.	
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the Asset Sale as described in clause (i) or (ii) of  Section 3.12(b) , the Issuer will make an offer to purchase Notes (the “ Asset Sale Offer ”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “ Asset Sale Offer Amount ”). The Issuer will purchase pursuant to an Asset Sale Offer from all tendering Holders on a  pro rata  basis, and, at the Issuer’s option, on a pro rata  basis with the holders of any other Senior Indebtedness with similar provisions requiring the Issuer to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Issuer may satisfy its obligations under this  Section 3.12  with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
(d) Pending the final application of any Net Cash Proceeds pursuant to this Section 3.12, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(e) The purchase of Notes pursuant to an Asset Sale Offer shall occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale. The Issuer may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$100 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$100 million, shall be applied as required pursuant to this  Section 3.12 .
(f) Each Asset Sale Offer Notice shall be mailed first class, postage prepaid, to the record Holders as shown on the Note Register within 20 days following such 365th day (or such earlier date as the Issuer shall have elected to make such Asset Sale Offer), with a copy to the Trustee offering to purchase the Notes as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Asset Sale Offer Payment Date ”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part, in minimum denominations of U.S.$200,000 and in any integral multiples of U.S.$1,000 in excess thereof in exchange for cash.
 
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(g) On the Asset Sale Offer Payment Date, the Issuer shall, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(h) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Issuer shall purchase the Notes and the other Senior Indebtedness on a  pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased shall be issued in the name of the holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a global note shall be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled and cannot be reissued.
(i) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this  Section 3.12 , the Issuer shall comply with these laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of this Indenture by doing so.
(j) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds shall be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Issuer may use any remaining Net Cash Proceeds for general corporate purposes of the Issuer and its Restricted Subsidiaries.
(k) In the event of the transfer of substantially all (but not all) of the property and assets of the Issuer and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under  Article IV , the Successor Issuer shall be deemed to have sold the properties and assets of the Issuer and its Restricted Subsidiaries not so transferred for purposes of this Section 3.12 , and shall comply with the provisions of this  Section 3.12  with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Issuer or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this  Section 3.12 .
 
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(l) If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale, is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this  Section 3.12  within 365 days of conversion or disposition.
Section 3.13 Limitation on the Ownership of Capital Stock of Restricted Subsidiaries. The Issuer shall not permit any Person other than the Issuer or another Restricted Subsidiary to, directly or indirectly, own or control any Capital Stock of any Restricted Subsidiary, except for:
 
 	(i)	Capital Stock owned by such Person on the Issue Date;	
 
 	(ii)	directors’ qualifying shares;	
 
 	(iii)	the sale or Disposition of 100% of the shares of the Capital Stock of any Restricted Subsidiary held by the Issuer and its Restricted Subsidiaries to any Person other than the Issuer or another Restricted Subsidiary effected in accordance with, as applicable,  Section 3.12  and  Article IV ;	
 
 	(iv)	in the case of a Restricted Subsidiary other than a Restricted Subsidiary that is a Wholly Owned Subsidiary,	
 
 	(A)	the issuance by that Restricted Subsidiary of Capital Stock on a pro rata basis to the Issuer and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of such Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder); or	
 
 	(B)	sales, transfers and other dispositions of Capital Stock in a Restricted Subsidiary to the extent required by, or made pursuant to, buy/sell, put/call or similar shareholder arrangements set forth in binding agreements in effect on the Issue Date; and	
 
 	(v)	the sale of Capital Stock of a Restricted Subsidiary by the Issuer or another Restricted Subsidiary or the sale or issuance by a Restricted Subsidiary of its newly-issued Capital Stock if such sale or issuance is made in compliance with  Section 3.12  and either:	
 
 	(A)	such Restricted Subsidiary is no longer a Subsidiary, and the continuing Investment of the Issuer and its Restricted Subsidiaries in such former Restricted Subsidiary is in compliance with  Section 3.11 , or	
 
 	(B)	such Restricted Subsidiary continues to be a Restricted Subsidiary.	
 
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Section 3.14 Limitation on Designation of Unrestricted Subsidiaries.
(a) The Issuer may designate after the Issue Date any Subsidiary of the Issuer other than a Note Guarantor as an Unrestricted Subsidiary under this Indenture (a “ Designation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and any transactions between the Issuer or any of its Restricted Subsidiaries and such Unrestricted Subsidiary are in compliance with  Section 3.18;	
 
 	(ii)	at the time of and after giving effect to such Designation, the Issuer could Incur U.S.$1.00 of additional Indebtedness pursuant to  Section 3.9(a) ;	
 
 	(iii)	the Issuer would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation and treating such Designation as an Investment at the time of Designation) as a Restricted Payment pursuant to  Section 3.11(a)  in an amount (the “ Designation Amount ”) equal to the amount of the Issuer’s Investment in such Subsidiary on such date; and	
 
 	(iv)	the terms of any Affiliate Transaction existing on the date of such Designation between the Subsidiary being designated (and its Subsidiaries) and the Issuer or any Restricted Subsidiary would be permitted under Section 3.18  if entered into immediately following such Designation.	
(b) Neither the Issuer nor any Restricted Subsidiary shall at any time:
 
 	(i)	provide credit support for, subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);	
 
 	(ii)	be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary; or	
 
 	(iii)	be directly or indirectly liable for any Indebtedness which provides that the Holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary.	
 
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(c) The Issuer may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “ Revocation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and	
 
 	(ii)	all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation, if Incurred at such time, would have been permitted to be Incurred for all purposes of this Indenture.	
(d) The Designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary shall be deemed to include the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries. All Designations and Revocations must be evidenced by an Officer’s Certificate of the Issuer, delivered to the Trustee certifying compliance with the preceding provisions.
Section 3.15 Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
 
 	(i)	pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;	
 
 	(ii)	make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or	
 
 	(iii)	transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.	
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
 
 	(i)	applicable law, rule, regulation or order;	
 
 	(ii)	this Indenture;	
 
 	(iii)	any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof;  provided , that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;	
 
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 	(iv)	customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;	
 
 	(v)	any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;	
 
 	(vi)	restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided , that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);	
 
 	(vii)	customary restrictions imposed on the transfer of copyrighted or patented materials;	
 
 	(viii)	an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this  Section 3.15(b) ;  provided , that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;	
 
 	(ix)	Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;	
 
 	(x)	Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this  Section 3.15(b)  above on the property so acquired;	
 
 	(xi)	restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;	
 
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 	(xii)	customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;	
 
 	(xiii)	restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9 ;  provided , that such restrictions (A) are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) constitute financial covenants or similar restrictions that limit the ability to pay dividends or make distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the declaration or payment of dividends or other distributions; and	
 
 	(xiv)	net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.	
Section 3.16 Limitation on Layered Indebtedness.
The Issuer shall not, and shall not permit any Note Guarantor to, directly or indirectly, Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness, unless such Indebtedness is expressly subordinate in right of payment to the Notes or, in the case of a Note Guarantor, its Note Guarantee, to the same extent, on the same terms and for so long (except as a result of the provisions of the Intercreditor Agreement applicable to Facilities Agreement Indebtedness and any refinancing thereof) as such Indebtedness is subordinate to such other Indebtedness.
Section 3.17 Limitation on Liens.
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, incur, grant, assume or suffer to exist any Liens of any kind (except for Permitted Liens) (a) against or upon any of their respective properties or assets, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade payables or (b) deemed to exist in respect of Capitalized Lease Obligations (including any Capitalized Lease Obligations in respect of Sale and Leaseback Transactions), in each case, unless contemporaneously therewith effective provision is made:
 
 	(i)	in the case of the Issuer or any Restricted Subsidiary that is not a Note Guarantor, to secure the Notes and all other amounts due under this Indenture; and	
 
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 	(ii)	in the case of a Note Guarantor, to secure such Note Guarantor’s Note Guarantee of the Notes and all other amounts due under this Indenture,	
in each case, equally and ratably with such Indebtedness or other obligation (or, in the event that such Indebtedness is subordinated in right of payment to the Notes or such Note Guarantee, as the case may be, prior to such Indebtedness or other obligation) with a Lien on the same properties and assets securing such Indebtedness or other obligation for so long as such Indebtedness or other obligation is secured by such Lien.
Section 3.18 Limitation on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any Affiliate of the Issuer (each an “ Affiliate Transaction ”), unless the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Issuer;
(b) The provisions of Section 3.18(a) above shall not apply to:
 
 	(i)	Affiliate Transactions with or among the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries;	
 
 	(ii)	reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Issuer or any Restricted Subsidiary as determined in good faith by the Issuer’s Board of Directors or, to the extent consistent with past practice, senior management;	
 
 	(iii)	Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date with modifications, extensions and replacements thereof not materially adverse to the Issuer and its Restricted Subsidiaries) as determined in good faith by the Issuer’s senior management;	
 
 	(iv)	any Restricted Payments in compliance with Section 3.11;	
 
 	(v)	payments and issuances of Qualified Capital Stock to any officers, directors and employees of the Issuer or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other stock subscription or shareholder agreement, and any employment agreements, stock option plans or other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such officers, directors or employees that are, in each case, approved in good faith by the Board of Directors or, to the extent consistent with past practice, senior management of the Issuer;	
 
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 	(vi)	loans and advances to officers, directors and employees of the Issuer or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business in amounts consistent with the past practice of the Issuer or such Restricted Subsidiary; and	
 
 	(vii)	loans made by the Issuer or any Restricted Subsidiary to employees or directors in an aggregate amount not to exceed U.S.$15 million (or its equivalent in another currency) at any time outstanding.	
Section 3.19 Conduct of Business. The Issuer and its Restricted Subsidiaries shall not engage in any business other than a Permitted Business.
Section 3.20 Reports to Holders.
(a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Issuer shall:
 
 	(i)	provide the Trustee and the Holders with:	
 
 	(A)	annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));	
 
 	(B)	reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Issuer in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year;	
 
 	(C)	such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and	
 
 	(ii)	file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) within the periods specified for such filings under the Exchange Act (whether or not applicable to the Issuer).	
(b) In addition, at any time when the Issuer is not subject to or is not current in its reporting obligations under clause (ii) of  Section 3.20(a) , the Issuer shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
 
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(c) Notwithstanding anything in this Indenture to the contrary, the Issuer shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iv) of  Section 6.1(a)  or for any other purpose hereunder until 75 days after the date any report hereunder is due.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 3.21 Payment of Additional Amounts.
(a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”) imposed or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “ Taxing Jurisdiction ”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided ,  however , that the foregoing obligation to pay Additional Amounts does not apply to:
 
 	(i)	any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),	
 
 	(ii)	any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,	
 
 	(iii)	any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of	
 
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 	the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,	
 
 	(iv)	any Taxes payable otherwise than by deduction or withholding from payments on the Notes,	
 
 	(v)	any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directives,	
 
 	(vi)	any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,	
 
 	(vii)	any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or	
 
 	(viii)	any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.	
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
 
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(d) The exception to the Issuer’s obligations to pay Additional Amounts stated in clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice or (ii) Article 195, Section II, paragraph (a) of the Mexican Income Tax Law  (Ley del Impuesto Sobre la Renta ) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such clause is expressly required by the applicable Mexican laws and regulations in order to apply Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on their own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations. In addition, clause (b)(iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service  (Servicio de Administración Tributaria ) or the Mexican Ministry of Finance and Public Credit  (Secretaría de Hacienda y Crédito Público ) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Section 3.22 Suspension of Covenants.
(a) During any period of time that the Notes do not have Investment Grade Ratings from two of the Rating Agencies and (i) the Consolidated Leverage Ratio of the Issuer is less than 3.5:1 and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred
 
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to as a “Partial Covenant Suspension Event”), the Issuer and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under Sections  3.12 ,  3.13 ,  3.14(b) ,  3.15 ,  3.18 ,  3.19  and  4.1(a)(ii)  (collectively, the “ Partial Suspended Covenants ”).
(b) During any period of time that (i) the Notes have Investment Grade Ratings from two of the Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Covenant Suspension Event ”), the Issuer and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under  Sections 3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14(b) , 3.15 ,  3.16 ,  3.18 ,  3.19  and  4.1(a)(ii)  (collectively, the “ Suspended Covenants ”).
(c) In addition, (x) no Subsidiary that is a Restricted Subsidiary on the date of the occurrence of a Partial Covenant Suspension Event (the “ Partial Covenant Suspension Date ”) or a Covenant Suspension Event (the “ Suspension Date ”) may be redesignated as an Unrestricted Subsidiary during the Partial Suspension Period or the Suspension Period, as applicable and (y) each Additional Note Guarantor shall be released from its obligation to guarantee the Notes on the date of a Partial Covenant Suspension Event or a Covenant Suspension Event, as the case may be.
(d) The Additional Note Guarantors shall be released from their obligation to guarantee the Notes upon the occurrence of a Partial Covenant Suspension Event or a Covenant Suspension Event;  provided , that upon the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, the guarantee of the Notes by the Additional Note Guarantors shall be reinstated in accordance with and subject to the conditions in  Section 3.22(e).
(e) In the event that the Issuer and its Restricted Subsidiaries are not subject to the Partial Suspended Covenants or the Suspended Covenants, as the case may be, for any period of time as a result of the foregoing, and on any subsequent date (in the case of Partial Suspended Covenants, such subsequent date being the “ Partial Covenant Reversion Date ” and, in the case of Suspended Covenants, such subsequent date being the “ Reversion Date ”) (i) the Consolidated Leverage Ratio of the Issuer is not less than 3.5:1 during the applicable Partial Suspension Period or (ii) the Notes do not have Investment Grade Ratings from at least two of the Rating Agencies during the applicable Suspension Period, then in each case in clauses (i) and (ii), the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Partial Suspended Covenants or the Suspended Covenants, as applicable, and the Notes will again be guaranteed by the Additional Note Guarantors (unless, solely with respect to any Additional Note Guarantor, the conditions for release as described under  Section 10.2  are otherwise satisfied during the Partial Suspension Period or the Suspension Period, as applicable). The Issuer shall cause such Additional Note Guarantor to promptly execute and deliver to the Trustee a supplemental indenture hereto in form and substance reasonably satisfactory to the Trustee in accordance with the provisions of  Article IX , evidencing that such Additional Note Guarantor’s guarantee on substantially the terms set forth in  Article X . The period of time between the Partial Covenant Suspension Date and the Partial Covenant Reversion Date is referred to as the “ Partial Suspension Period ” and the period of time between the Suspension Date and the Reversion Date is referred to as the “ Suspension Period .” Notwithstanding that the Partial Suspended Covenants, the Suspended Covenants and the guarantees by the Additional Note
 
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Guarantors may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Partial Suspended Covenants during the Partial Suspension Period or the Suspended Covenants during the Suspension Period, as the case may be (or upon termination of the applicable Partial Suspension Period or the Suspension Period or after that time based solely on events that occurred during the applicable Partial Suspension Period or the Suspension Period, as the case may be).
(f) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be classified to have been Incurred pursuant to  Section 3.9(a)  or  Section 3.9(b)  (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 3.9(a)  or  3.9(b) , such Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of  Section 3.9(b) . Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under  Section 3.11  shall be made as though  Section 3.11  had been in effect since the Issue Date and throughout the Suspension Period. The Issuer will give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date. After any such notice of the occurrence of a Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and effect. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under  Section 3.11(a) .
(g) The Issuer will give the Trustee written notice of any Partial Covenant Suspension Event or any Covenant Suspension Event and in any case no later than five (5) Business Days after such Partial Covenant Suspension Event or Covenant Suspension Event has occurred. In the absence of such notice, the Trustee shall assume that the Partial Suspended Covenants or the Suspended Covenants, as applicable, apply and are in full force and effect.
(h) For purposes of this Section 3.22 only, “Consolidated Leverage Ratio” and all associated definitions shall have the meaning set forth in  Exhibit E  hereto.
ARTICLE IV
SUCCESSOR ISSUER
Section 4.1 Merger, Consolidation and Sale of Assets.
(a) The Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Issuer shall be the surviving or continuing corporation, or	
 
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 	(B)	the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) substantially as an entirety (the “ Successor Issuer ”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and	
 
 	(2)	shall expressly assume, by a supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this Section 4.1(a)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction), the Issuer or such Successor Issuer, as the case may be:	
 
 	(A)	shall have a Consolidated Fixed Charge Coverage Ratio that shall be not less than the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or	
 
 	(B)	shall be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a);	
 
 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;	
 
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 	(iv)	in the case of a transaction resulting in a Successor Issuer, each Note Guarantor has confirmed by supplemental indenture that its Note Guarantee shall apply for Obligations of the Successor Issuer in respect of this Indenture and the Notes; and	
 
 	(v)	if the Issuer merges with a Person, or the Successor Issuer is, organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, as applicable:	
 
 	(A)	the Holders of the Notes shall not recognize income, gain or loss for the purposes of the income tax laws of the United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and shall be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;	
 
 	(B)	any payment of interest or principal under or relating to the Notes or any Guarantees shall be paid in compliance with any requirements under  Section 3.21 ; and	
 
 	(C)	no other taxes on income, including capital gains, shall be payable by Holders of the Notes under the laws of the United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon; provided, that the Holder does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.	
The provisions of clauses (ii) and (iii) of this Section 4.1(a) will not apply to:
 
 	(x)	any transfer of the properties or assets of a Restricted Subsidiary to the Issuer;	
 
 	(y)	any merger of a Restricted Subsidiary into the Issuer; or	
 
 	(z)	any merger of the Issuer into a Note Guarantor or a Wholly Owned Subsidiary of the Issuer.	
For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
 
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The Successor Issuer will succeed to, and be substituted for, such Issuer under this Indenture and the Notes, as applicable. For the avoidance of doubt, compliance with this  Section 4.1  will not affect the obligations of the Issuer (including a Successor Issuer, if applicable) under  Section 3.8  if applicable.
(b) Each Note Guarantor shall not, and the Issuer shall not cause or permit any such Note Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Issuer) that is not a Note Guarantor unless:
 
 	(i)	such Person (if such Person is the surviving entity) (the “Successor Note Guarantor”) assumes all of the obligations of such Note Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	such Note Guarantee is to be released as provided under Section 10.2(b); or	
 
 	(iii)	such sale or other disposition of substantially all of such Note Guarantor’s assets is made in accordance with  Section 3.12 .	
Subject to certain limitations described in this Indenture, the Successor Note Guarantor will succeed to, and be substituted for, such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee. The provisions of clauses (i), (ii) and (iii) of this  Section 4.1(b)  will not apply to:
 
 	(x)	any transfer of the properties or assets of a Note Guarantor to the Issuer or another Note Guarantor;	
 
 	(y)	any merger of a Note Guarantor into the Issuer or another Note Guarantor; or	
 
 	(z)	any merger of a Note Guarantor into a Wholly Owned Subsidiary of the Issuer.	
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 Optional Redemption. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, subject to the conditions and at the redemption prices specified in the Form of Note in  Exhibit A  hereto.
Section 5.2 [Reserved].
Section 5.3 Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to the optional redemption provisions of Section 5.1  hereof, it shall furnish to the Trustee, at least 45
 
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days but not more than 60 days before the Redemption Date, an Officer’s Certificate setting forth: (a) the Redemption Date, (b) the principal amount of Notes to be redeemed, (c) the CUSIP numbers of the Notes, (d) the redemption price and (e) the amount of interest to be paid with respect to each multiple of U.S.$1,000 principal amount of Notes to be redeemed.
Section 5.4 Notice of Redemption.
(a) The Issuer shall prepare and mail or cause to be mailed a notice of redemption, in the manner provided for in Section 12.1 , not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.
(b) All notices of redemption shall state:
 
 	(i)	the Redemption Date,	
 
 	(ii)	the redemption price and the amount of any accrued interest payable as provided in Section 5.7,	
 
 	(iii)	whether or not the Issuer is redeeming all Outstanding Notes,	
 
 	(iv)	if the Issuer is not redeeming all Outstanding Notes, the aggregate principal amount of Notes that the Issuer is redeeming and the aggregate principal amount of Notes that will be Outstanding after the partial redemption, as well as the identification of the particular Notes, or portions of the particular Notes, that the Issuer is redeeming,	
 
 	(v)	if the Issuer is redeeming only part of a Note, the notice that relates to that Note shall state that on and after the Redemption Date, upon surrender of that Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount of the Note remaining unredeemed,	
 
 	(vi)	that on the Redemption Date the redemption price and any accrued interest payable to the Redemption Date as provided in  Section 5.7  will become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Issuer defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, will cease to accrue on and after the Redemption Date,	
 
 	(vii)	the place or places where a Holder must surrender Notes for payment of the redemption price and any accrued interest payable on the Redemption Date, and	
 
 	(viii)	the CUSIP number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP number.	
 
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(c) At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s names and at its expense; provided, however, that the Issuer shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding  Section 5.4(b) .
Section 5.5 Selection of Notes to Be Redeemed in Part.
(a) If the Issuer is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a national securities exchange, on a pro rata basis, by lot or by any other method as the Trustee shall deem fair and appropriate; provided, however, that if a partial redemption is made with the proceeds of an Equity Offering, selection of the Notes, or portions of the Notes, for redemption shall be made by the Trustee only on a pro rata basis, or on as nearly a pro rata basis as is practicable (subject to the procedures of DTC), unless the method is otherwise prohibited. The Trustee shall make the selection from the then Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than 30 nor more than 60 days prior to the relevant Redemption Date from the then Outstanding Notes not previously called-for redemption. No Notes of U.S.$200,000 principal amount or less shall be redeemed in part. The Trustee may select for redemption portions with minimum denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof.
(b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed.
Section 5.6 Deposit of Redemption Price.
On or prior to 10 :00 a.m. New York City time, on the Business Day prior to the Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or a Note Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in  Section 2.4 ) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Issuer is redeeming on that date.
Section 5.7 Notes Payable on Redemption Date.
If the Issuer, or the Trustee on behalf of the Issuer, gives notice of redemption in accordance with this Article V, the Notes, or the portions of Notes, called-for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Issuer shall default in the payment of the redemption price and accrued interest) the Notes or the portions of Notes shall cease to bear interest. Upon surrender
 
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of any Note for redemption in accordance with the notice, the Issuer shall pay the Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Issuer shall fail to pay any Note called-for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
Section 5.8 Unredeemed Portions of Partially Redeemed Note.
Upon surrender of a Note that is to be redeemed in part, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of the Note, at the expense of the Issuer, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered, provided, that each new Note will be in a principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
 
 	(i)	default in the payment when due of the principal of or premium, if any, on any Notes, including the failure to make a required payment to purchase Notes tendered pursuant to an optional redemption, a Change of Control Offer or an Asset Sale Offer;	
 
 	(ii)	default for 30 days or more in the payment when due of interest or Additional Amounts on any Notes;	
 
 	(iii)	the failure to perform or comply with any of the provisions described under Article IV;	
 
 	(iv)	the failure by the Issuer or any Restricted Subsidiary to comply with, or in the case of non-guarantor Restricted Subsidiaries, to perform according to, any other covenant or agreement contained in this Indenture or in the Notes for 45 days or more after written notice to the Issuer from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes;	
 
 	(v)	default by the Issuer or any Restricted Subsidiary under any Indebtedness which:	
 
 	(A)	is caused by a failure to pay principal of, or premium, if any, when due or interest on such Indebtedness prior to the later of the expiration of any applicable grace period provided in such Indebtedness on the date of such default or five (5) days past when due; or	
 
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 	(B)	results in the acceleration of such Indebtedness prior to its stated maturity;	
and the principal or accreted amount of Indebtedness covered by clauses (v)(A) or (v)(B) of this Section 6.1(a) at the relevant time, aggregates U.S.$50 million or more;
 
 	(vi)	failure by the Issuer or any of its Restricted Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$100 million or more, which judgment(s) are not paid, discharged or stayed for a period of 60 days or more;	
 
 	(vii)	a Bankruptcy Event of Default; or	
 
 	(viii)	except as permitted herein, any Note Guarantee is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any Note Guarantor, or any Person acting on behalf of any Note Guarantor, denies or disaffirms such Note Guarantor’s obligations under its Note Guarantee.	
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
(b) The Issuer shall deliver within 30 days to the Trustee written notice of any event which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in clause (vii) of Section 6.1(a) above with respect to the Issuer) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of then Outstanding Notes may declare the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in clause (vii) of  Section 6.1(a)  above occurs with respect to the Issuer, then the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
 
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(b) At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences:
 
 	(i)	if the rescission would not conflict with any judgment or decree;	
 
 	(ii)	if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration;	
 
 	(iii)	to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and	
 
 	(iv)	if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances.	
Section 6.3 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, the Holders of a majority in principal amount of the then Outstanding Notes may waive any existing Default or Event of Default, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any Notes.
Section 6.5 Control by Majority. The Holders of a majority in principal amount of the then Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. Subject to  Section 7.1  and  Section 7.2 , however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture;  provided ,  however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Section 6.6 Limitation on Suits.
(a) No Holder of any Notes shall have any right to institute any proceeding with respect hereto or for any remedy hereunder, unless:
 
 	(i)	such Holder gives to the Trustee written notice of a continuing Event of Default;	
 
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 	(ii)	Holders of at least 25% in principal amount of the then Outstanding Notes make a written request to pursue the remedy;	
 
 	(iii)	such Holders of the Notes provide to the Trustee indemnity satisfactory to it;	
 
 	(iv)	the Trustee does not comply within 60 days; and	
 
 	(v)	during such 60 day period the Holders of a majority in principal amount of the then Outstanding Notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request;	
provided, that a Holder of a Note may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such Note on or after the respective due dates expressed in such Note.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation,  Section 6.6 ), the right of any Holder to receive payment of principal or interest on the Notes held by such Holder, on or after the respective due dates, Redemption Dates or repurchase date expressed in this Indenture or the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default specified in clause (i) and (ii) of Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer and each Note Guarantor for the whole amount then due and owing (together with applicable interest on any overdue principal and, to the extent lawful, interest on overdue interest) and the amounts provided for in  Section 7.7 .
Section 6.9 Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of the Notes is then due):
 
 	(i)	file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Issuer, any Note Guarantor or any Subsidiary of the Issuer or their respective creditors or properties; and	
 
 	(ii)	collect and receive any monies or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture.	
Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
 
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in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to  Section 7.7 .
(b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer or, to the extent the Trustee collects any amount pursuant to Article X hereof from any Note Guarantor, to such Note Guarantor, or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Issuer, fix a record date and payment date for any payment to Holders pursuant to this  Section 6.10 .
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to  Section 6.7  or a suit by Holders of more than 10% in principal amount of Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same
 
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degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
 
 	(i)	the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and	
 
 	(ii)	in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture.	
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
 
 	(i)	this clause (c) does not limit the effect of clause (b) of this Section 7.1;	
 
 	(ii)	the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and	
 
 	(iii)	the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.2 ,  6.4  or  6.5 .	
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this  Article VII .
 
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(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting at the direction of the Issuer or any Note Guarantor, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has received written notice at the Corporate Trust Office of any event which is in fact such a default, and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
 
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(i) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(k) In no event shall the Trustee be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Trustee has been advised of the possibility of such damages.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.
(m) The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Note Guarantors or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Transfer Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with  Section 7.10 .
Section 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in payment of principal or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
 
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Section 7.6 [Reserved].
Section 7.7 Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the review, negotiation, execution and delivery of this Indenture or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
(b) The Issuer and each Note Guarantor shall jointly and severally indemnify the Trustee against any and all loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this  Section 7.7 ) and of defending itself against any claims (whether asserted by any Holder, the Issuer, any Note Guarantor or otherwise). The Trustee shall notify the Issuer and each Note Guarantor promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer or any Note Guarantor shall not relieve the Issuer or any Note Guarantor of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided , that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuer and the Trustee in connection with such defense. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
(c) To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee’s right to receive payment of any amounts due under this  Section 7.7  shall not be subordinate to any other liability or Indebtedness of the Issuer.
(d) The Issuer’s obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Bankruptcy Event of Default, the expenses are intended to constitute expenses of administration under any Bankruptcy Law;  provided ,  however , that this shall not affect the Trustee’s rights as set forth in this  Section 7.7  or  Section 6.10 .
 
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Section 7.8 Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Issuer. The Holders of a majority in principal amount of the then Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Issuer. The Issuer shall remove the Trustee if:
 
 	(i)	the Trustee fails to comply with Section 7.10;	
 
 	(ii)	the Trustee is adjudged bankrupt or insolvent;	
 
 	(iii)	a receiver or other public officer takes charge of the Trustee or its property; or	
 
 	(iv)	the Trustee otherwise becomes incapable of acting.	
(b) If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in principal amount of the then Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in  Section 7.7(c) .
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the then Outstanding Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7  shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee.
 
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(b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates of authentication and such delivery shall be valid for purposes of this Indenture.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 [Reserved].
Section 7.12 [Reserved].
Section 7.13 Authorization and Instruction of the Trustee With Respect to the Collateral.
Each Holder and the Issuer authorize and instruct the Trustee (a) to enter into (or cause an agent or grant such powers of attorney to enter into), on its own behalf and on behalf of the Holders of Notes, such documents (the “ Security Documents ”) as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) in order to create and maintain the security interest of the Trustee and the Holders of Notes in the Collateral as may from time to time be provided to equally and ratably secure the Notes, (b) to grant such powers of attorney and to do or cause to be done all such acts and things, on its own behalf and in the name and on behalf of the Holders of Notes, as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) to create and maintain the security interest of the Trustee and the Holders of Notes in such Collateral, (c) to appoint the Security Agent to serve as direct representative of the Trustee and the Holders of Notes in connection with the creation and maintenance of the security interest of the Trustee and the Holders of Notes in such Collateral, (d) to accept the security interest in the Collateral on behalf of each Holder, and (e) to grant powers in favor of an attorney to execute an accession public deed before a Spanish notary public accepting the security interest in the Collateral on behalf of the Holders of Notes. It is understood and acknowledged that, in certain circumstances, the Security Documents may be amended, modified or waived without the consent of the Trustee or the Holders of Notes. It is understood and acknowledged that the Security Agent, in addition to being appointed by and acting on behalf of the Trustee and the Holders of Notes, has also been appointed by and is acting on behalf of (and may in the future be appointed by and act on behalf of) other creditors of the Issuer and its Subsidiaries. The Trustee will not have the right to cause the Security Agent to foreclose on the Collateral upon the occurrence of an Event of Default in respect of the Notes. The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer
 
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and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1 Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option, at any time, elect to have either Section 8.1(b) or (c) be applied to all Outstanding Notes upon compliance with the conditions set forth in  Section 8.2 .
(b) Upon the Issuer’s exercise under Section 8.1(a) of the option applicable to this clause (b), the Issuer shall, subject to the satisfaction of the conditions set forth in  Section 8.2 , be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in  Section 8.2  are satisfied (hereinafter, “ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the then Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of  Section 8.3  hereof and the other sections of this Indenture referred to in subclause (i) or (ii) of this clause (b), and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
 
 	(i)	the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in  Section 2.4  payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due,	
 
 	(ii)	the Issuer’s obligations with respect to such Notes under Article II and Section 3.2 hereof,	
 
 	(iii)	the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s obligations in connection therewith, and	
 
 	(iv)	this Article VIII.	
Subject to compliance with this Article VIII, the Issuer may exercise its option under this clause (b) notwithstanding the prior exercise of its option under  Section 8.1(c)  hereof.
(c) Upon the Issuer’s exercise under Section 8.1(a) hereof of the option applicable to this clause (c), the Issuer shall, subject to the satisfaction of the applicable conditions set forth in  Section 8.2 , be released from its obligations under Sections 3.4 ,  3.5 ,  3.8 ,  3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14 ,  3.15 ,  3.16 ,  3.17 ,  3.18 ,  3.19 ,  3.20 , 3.21, 3.22,  4.1(a)  and  4.1(b)  hereof with respect to the then Outstanding Notes on and after the date the conditions set forth below
 
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are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the then Outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under clause (iii) of  Section 6.1(a)  (solely with respect to any failure to perform under or comply with clause (ii) or (iii) of  Section 4.1(a) ), clause (iv) of  Section 6.1(a)  or clause (v) of Section 6.1(a)  hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.2 Conditions to Defeasance. The Issuer may exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(a) the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders cash in U.S. Legal Tender or U.S. Government Obligations, in such amounts as will be sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest (including Additional Amounts) on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer to the effect that:
 
 	(i)	the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling; or	
 
 	(ii)	since the Issue Date, there has been a change in the applicable U.S. federal income tax law,	
in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
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(d) no Default or Event of Default shall have occurred and be continuing on the date of the deposit pursuant to Section 8.2(a)  (except any Default or Event of Default resulting from the failure to comply with  Section 3.9  as a result of the borrowing of the funds required to effect such deposit);
(e) the Trustee has received an Officer’s Certificate stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(f) the Issuer has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over any other creditors of the Issuer or any Subsidiary of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(h) the Issuer has delivered to the Trustee an Opinion of Counsel from counsel reasonably acceptable to the Trustee and independent of the Issuer to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Section 8.3 Application of Trust Money.
The Trustee shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall apply the deposited U.S. Legal Tender or U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 8.4 Repayment to Issuer.
(a) The Trustee and the Paying Agent shall promptly turn over to the Issuer upon request any excess money or securities held by them upon payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal of, premium or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors.
 
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Section 8.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
Section 8.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VIII  by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Issuer under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this  Article VIII  until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with this  Article VIII ;  provided ,  however , that, if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.7 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Outstanding Notes when:
(a) either:
 
 	(i)	all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust) have been delivered to the Trustee for cancellation; or	
 
 	(ii)	all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient without reinvestment to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment;	
(b) the Issuer has paid all other sums payable under this Indenture and the Notes by it; and
 
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(c) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without notice to or consent of any Holder:
 
 	(i)	to cure any ambiguity, omission, defect or inconsistency;	
 
 	(ii)	to comply with Article IV in respect of the assumption by a Successor Issuer of the obligations of the Issuer under the Notes and this Indenture;	
 
 	(iii)	to provide for uncertificated Notes in addition to or in place of Certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;	
 
 	(iv)	to add guarantees with respect to the Notes or to secure the Notes;	
 
 	(v)	to add to the covenants of the Issuer or the Note Guarantors for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer or the Note Guarantors;	
 
 	(vi)	to make any change that does not, in the opinion of the Issuer as conclusively evidenced by an Officer’s Certificate to such effect, adversely affect the rights of any Holder in any material respect;	
 
 	(vii)	to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the section “Description of Notes” in the Offering Memorandum to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture or the Notes or Note Guarantees;	
 
 	(viii)	to comply with the requirements of any applicable securities depositary;	
 
 	(ix)	to provide for the issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.14, which will have terms substantially identical to the other Outstanding Notes except as specified in  Section 2.13 , or  Section 2.14 , and which will be treated, together with any other Outstanding Notes, as a single issue of securities; or	
 
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 	(x)	in order to effect and maintain the listing of the Notes on the Global Exchange Market of the Irish Stock Exchange.	
(b) After an amendment or supplement under this Section 9.1 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this  Section 9.1 .
Section 9.2 With Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). Subject to  Section 6.4 , the Holder or Holders of a majority in aggregate principal amount of the then Outstanding Notes may waive compliance by the Issuer and the Note Guarantors with any provision of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver may not:
 
 	(i)	reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver;	
 
 	(ii)	reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on any Notes;	
 
 	(iii)	reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;	
 
 	(iv)	make any Notes payable in money other than that stated in the Notes;	
 
 	(v)	make any change in the provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any, and interest on such Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of the then Outstanding Notes to waive Defaults or Events of Default;	
 
 	(vi)	amend, change or modify in any material respect any obligations of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred or make and consummate an Asset Sale Offer with respect to any Asset Sale that has been consummated;	
 
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 	(vii)	make any change in the provisions of this Indenture described under Section 3.21 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; or	
 
 	(viii)	make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes.	
(b) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment, supplement or waiver under this  Section 9.2 .
(d) The Notes issued on the Issue Date, and any Additional Notes part of the same series, will be treated as a single series for all purposes under this Indenture, including with respect to waivers and amendments. For the purposes of calculating the aggregate principal amount of Notes that have consented to or voted in favor of any amendment, waiver, consent, modifications or other similar action, the Issuer (acting reasonably and in good faith) shall be entitled to select a record date as of which the principal amount of any Notes shall be calculated in such consent or voting process.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment, supplement or waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment, supplement or waiver becomes effective, it shall bind every Holder, except as otherwise provided in this  Article IX . An amendment, supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of written consents under  Section 9.2 .
(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
 
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Section 9.5 Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer, in exchange for the Note, will execute and upon Issuer Order, the Trustee will authenticate and make available for delivery a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement.
Section 9.6 Trustee to Sign Amendments and Supplements. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this  Article IX  if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver, the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to  Section 7.1  and Section 7.2 ) shall be fully protected in relying upon, in addition to the documents required by  Section 12.4 , an Opinion of Counsel and an Officer’s Certificate each stating that such amendment, supplement or waiver is authorized or permitted by this Indenture and that all conditions precedent to the execution of such amendment, supplement or waiver have been complied with.
ARTICLE X
NOTE GUARANTEES
Section 10.1 Note Guarantees.
(a) Each Note Guarantor hereby fully and unconditionally guarantees, as primary obligor and not merely as surety, jointly and severally with each other Note Guarantor, to each Holder and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations (such guaranteed Obligations, the “ Guaranteed Obligations ”). Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and agrees to pay, in addition to the amounts stated in Section 10.1(f) , any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing or exercising any rights under any Note Guarantee.
(b) In no event shall the Trustee or the Holders be obligated to take any action, obtain any judgment or file any claim prior to enforcing or exercising any rights under any Note Guarantee.
(c) Each Note Guarantor further agrees that its Note Guarantee constitutes an absolute and unconditional and continuing guarantee. Each Note Guarantor hereby waives, to the extent permitted by law:
 
 	(i)	any claim as to the legality, validity, regularity or enforceability of this Indenture, the Notes or any other agreement;	
 
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 	(ii)	any claim as to the lack of authority of the Issuer to execute or deliver this Indenture, the Notes or any other agreement;	
 
 	(iii)	diligence, presentation to, demand of payment from and protest to the Issuer of any of the Obligations and notice of protest for nonpayment;	
 
 	(iv)	the occurrence of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(v)	notice of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(vi)	the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement;	
 
 	(vii)	any extension or renewal of the Obligations, this Indenture, the Notes or any other agreement;	
 
 	(viii)	any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;	
 
 	(ix)	the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Issuer;	
 
 	(x)	any setoff, counterclaim, recoupment, termination or defense of any kind or nature which may be available to or asserted by any Note Guarantor or the Issuer against the Holders or the Trustee;	
 
 	(xi)	any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, any collateral securing this Indenture and the Notes and any right to require that any resort be had by the Trustee or any Holder to any such collateral;	
 
 	(xii)	the failure of the Trustee or any Holder to exercise any right or remedy against any other Note Guarantor;	
 
 	(xiii)	any change in the ownership of the Issuer;	
 
 	(xiv)	any change in the laws, rules or regulations of any jurisdiction;	
 
 	(xv)	any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of the Issuer under this Indenture or the Notes or of any Note Guarantor under its Note Guarantee; and	
 
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 	(xvi)	any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.	
(d) Each of the Note Guarantors further expressly waives irrevocably and unconditionally:
 
 	(i)	Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) before claiming from it under this Indenture;	
 
 	(ii)	Any right to which it may be entitled to have the assets of the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) first be used, applied or depleted as payment of the Issuer’s or the Note Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by any of the Note Guarantors hereunder;	
 
 	(iii)	Any right to which it may be entitled to have claims hereunder divided between the Note Guarantors;	
 
 	(iv)	To the extent applicable, the benefits of orden, excusión, división, quita and espera and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other related or applicable articles that are not explicitly set forth herein because of Note Guarantor’s knowledge thereof of the  Código Civil Federal  of Mexico, and the  Código Civil  of each State of the Mexican Republic and the Federal District of Mexico.	
(e) The obligations assumed by each Note Guarantor hereunder shall not be affected by the absence of judicial request of payment by a Holder to the Issuer or by whether any such person takes timely action pursuant to articles 2848 and 2849 of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and the Federal District of Mexico and each Note Guarantor hereby expressly waives the provisions of such articles.
(f) The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Note
 
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Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(g) Except as provided in Section 10.2, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than payment of the Obligations in full.
(h) Each Note Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(i) In furtherance of the foregoing and not in limitation of any other right which the Trustee or any Holder has at law or in equity against each Note Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note
Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of:
 
 	(i)	the unpaid amount of such Obligations then due and owing; and	
 
 	(ii)	accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law);	
provided, that any delay by the Trustee in giving such written demand shall in no event affect any Note Guarantor’s obligations under its Note Guarantee.
(j) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand:
 
 	(i)	the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby; and	
 
 	(ii)	in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantor for the purposes of this Note Guarantee.	
 
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Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Subject to the limitations set out in Section 10.5 and Section 10.6, the obligations of each Note Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its obligations under its Note Guarantee in the event that:
 
 	(i)	there is a Legal Defeasance of the Notes pursuant to Article VIII;	
 
 	(ii)	there is a sale or other disposition of Capital Stock of such Note Guarantor following which such Note Guarantor is no longer a direct or indirect Subsidiary of the Issuer;	
 
 	(iii)	such Note Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 3.14;	
 
 	(iv)	solely with respect to an Additional Note Guarantor, either (A) the Facilities Agreement Indebtedness has been repaid in full and such Additional Note Guarantor is not a guarantor of the Indebtedness Incurred to refinance such Facilities Agreement Indebtedness or (B) at least 85% of the outstanding Indebtedness of the Issuer and its Restricted Subsidiaries is not guaranteed by such Additional Note Guarantor; or	
 
 	(v)	solely with respect to an Additional Note Guarantor, upon the occurrence of a Partial Covenant Suspension Event or Covenant Suspension Event until the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, at which time the guarantee of the Notes by such Additional Note Guarantor shall be reinstated unless such Additional Note Guarantor would have been released at any time during the Partial Suspension Period or the Suspension Period, as applicable, pursuant to clause (i), (ii), (iii) or (iv) of this Section 10.2(b) .	
Section 10.3 Right of Contribution.
Each Note Guarantor that makes a payment or distribution under a Note Guarantee will be entitled to a contribution from each other Note Guarantor in a  pro rata  amount, based on the net assets of each Note Guarantor determined in accordance with GAAP. The provisions of this  Section 10.3  shall in no respect limit the obligations and liabilities of each Note Guarantor to the Trustee and the Holders and each Note Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Note Guarantor hereunder.
 
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Section 10.4 No Subrogation.
Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full in cash or Cash Equivalents of all Obligations. If any amount shall be paid to any Note Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full in cash or Cash Equivalents, such amount shall be held by such Note Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Note Guarantor, and shall, forthwith upon receipt by such Note Guarantor, be turned over to the Trustee in the exact form received by such Note Guarantor (duly endorsed by such Note Guarantor to the Trustee, if required), to be applied against the Obligations.
Section 10.5 French Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in France (a “French Note Guarantor”) are subject to the limitations set out in this  Section 10.5 .
(b) The obligations and liabilities of any French Note Guarantor under the Indenture and the Notes, and in particular under this  Article X , shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of article(s) L. 241-3 or L. 242-6 of the French Commercial Code or any other law or regulations having the same effect, as interpreted by French courts.
(c) The obligations and liabilities of any French Note Guarantor under this Article X for the Issuer’s obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Issuer to the extent directly or indirectly on-lent to such French Note Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash-pooling arrangements or other cash management agreements,  provided , that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Note Guarantor under this  Article X , it being specified that any payment made by a French Note Guarantor under this  Article X  in respect of the obligations of the Issuer shall reduce  pro tanto the outstanding amount of the intercompany loans due by such French Note Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by the French Note Guarantor or its relevant direct or indirect Subsidiary shall reduce  pro tanto  the amount payable by the French Note Guarantor under this  Article X .
(d) It is acknowledged that no French Note Guarantor is acting jointly and severally with the other Note Guarantors and no French Note Guarantor shall therefore be considered as “co-débiteur solidaire” as to its obligations pursuant to the guarantee given pursuant to this  Article X .
 
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Section 10.6 Swiss Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this  Section 10.6 .
(b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, the Notes or any other agreement, and in particular under this  Article X , in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned and controlled subsidiaries (the “ Restricted Obligations ”) shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested,  provided , that such limitation is a requirement under applicable law (including any case law) at that point in time and that such limitation shall not free the Swiss Note Guarantor from its obligations in excess thereof, but merely postpone the performance date until such time as performance is permitted notwithstanding such limitation.
(c) For the purpose of this clause, “Free Reserves Available for Distribution” means an amount equal to the maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the balance sheet profit and any freely disposable reserves available for this purpose, in each case in accordance with applicable Swiss law).
(d) As soon as possible after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, immediately thereafter, pay the amount corresponding to the Free Reserves Available for Distribution to the Trustee (save to the extent provided below).
(e) In respect of the Restricted Obligations, the Swiss Note Guarantor shall:
 
 	(i)	if and to the extent required by applicable law in force at the relevant time:	
 
 	(A)	subject to any applicable double taxation treaties, deduct Swiss withholding tax at the rate of 35 percent (or such other rate as is in force at that time) from any payment made by it;	
 
 	(B)	pay any such deduction to the Swiss Federal Tax Administration; and	
 
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 	(C)	notify and provide evidence to the Trustee that the Swiss withholding tax has been paid to the Swiss Federal Tax Administration;	
 
 	(ii)	to the extent such deduction is made, not be required to make a gross-up, indemnify or otherwise hold harmless the Trustee or the Holders for the deduction of the Swiss withholding tax notwithstanding anything to the contrary contained in the Indenture, the Notes or any other agreement, unless grossing up is permitted under the laws of Switzerland then in force and  provided , that this should not in any way limit any obligations of any non-Swiss Note Guarantors under the Indenture, the Notes or any other agreement to indemnify the Trustee or the Holders in respect of the deduction of the Swiss withholding tax. The Swiss Note Guarantor shall use all reasonable efforts to procure that any person which is entitled to a full or partial refund of any Swiss withholding tax paid pursuant to paragraph (a) above will, as soon as possible after the deduction of the Swiss withholding tax: (y) request a refund of the Swiss withholding tax under any applicable law (including double taxation treaties) and (z) pay to the Trustee upon receipt any amount so refunded.	
(f) The Swiss Note Guarantor will take, and cause to be taken, all and any other action, including, without limitation, the passing of any shareholders’ resolutions to approve any payment or other performance under the Indenture and the Notes and the receipt of any confirmations from the Swiss Note Guarantor’s auditors, whether following a request to discharge a Restricted Obligation or which may be required as a matter of mandatory Swiss law in force at the time it is required to make a payment or perform other obligations under the Indenture, the Notes or any other agreement in order to allow a prompt payment or performance of other obligations under the Indenture or the Notes.
(g) If the enforcement of the Restricted Obligations would be limited due to the effects referred to in this Section 10.6 and if any asset of the Swiss Note Guarantor has a book value that is less than its market value (an “ Undervalued Asset ”), the Swiss Note Guarantor shall, to the extent permitted by applicable law and its accounting standards (i) write up the book value of such Undervalued Asset such that its balance sheet reflects a book value that is equal to the market value of such Undervalued Asset, and (ii) make reasonable efforts to realize the Undervalued Asset for a sum which is at least equal to the market value of such asset. Without prejudice to the rights of the Trustee and the Holders under the Indenture, the Notes or any other agreement, the Swiss Note Guarantor will only be required to realize an Undervalued Asset if such asset is not necessary for the Swiss Note Guarantor’s business ( nicht betriebsnotwendig ).
 
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ARTICLE XI
COLLATERAL
Section 11.1 The Collateral. Subject to Section 11.2, the Issuer and the Note Guarantors agree that the Notes will be at all times secured by a first-priority security interest in the Collateral on at least an equal and ratable basis with the Permitted Secured Obligations.
Section 11.2 Release of the Collateral.
(a) The Notes will cease to be secured by a security interest in the Collateral in accordance with the provisions of the Intercreditor Agreement.
(b) In addition to the Collateral release provisions set forth in the Intercreditor Agreement, the Notes will cease to be secured by a security interest on the Collateral upon:
 
 	(i)	(A) payment in full of the principal of, any accrued and unpaid interest on, the Notes and all other amounts or Obligations that are due and payable at or prior to the time such principal, accrued and unpaid interest, if any, are paid, (B) a satisfaction and discharge of this Indenture or (C) a Legal Defeasance or Covenant Defeasance pursuant to  Article VIII ; or	
 
 	(ii)	a refinancing of the Facilities Agreement Indebtedness in full as a result of which the Collateral does not secure Indebtedness Incurred to refinance such Facilities Agreement Indebtedness.	
 
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer and the Note Guarantors:
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4417
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286 Attention: International Corporate Trust
Fax: 212-815-5915
The Issuer or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) All notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to DTC, delivery of which shall be deemed to satisfy the requirements of this paragraph.
(c) Each such notice shall be deemed to have been given on the date of delivery or mailing. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to them if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(d) Subject to Section 7.1(c) and Section 7.2(a), the Trustee shall accept electronic transmissions; provided, that (i) the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give
 
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such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information and (ii) each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(e) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the Note Register and shall be sufficiently given if so mailed within the time prescribed.
(f) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(g) Any notice or communication delivered to the Issuer under the provisions herein shall constitute notice to the Note Guarantors.
Section 12.2 Communication by Holders with Other Holders.
Holders may communicate with other Holders with respect to their rights under this Indenture (including the Note Guarantees) or the Notes.
Section 12.3 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 12.4 Statements Required in Certificate or Opinion.
Each certificate or opinion, including an Opinion of Counsel or Officer’s Certificate, with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has read such covenant or condition;
 
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(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 12.5 Rules by Trustee, Paying Agent, Transfer Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Paying Agent, Transfer Agent and the Registrar may make reasonable rules for their functions.
Section 12.6 Legal Holidays.
A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City, Mexico, Madrid, Amsterdam, London, Paris or Zurich. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 12.7 Governing Law, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR EACH NOTE GUARANTEE OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
 
 	(i)	agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Note Guarantees) or the Notes, as the case may be, may be instituted in any Federal or state court sitting in the City of New York and County of New York and in the courts of its own corporate domicile, in respect of actions brought against it as a defendant,	
 
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 	(ii)	waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,	
 
 	(iii)	irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding,	
 
 	(iv)	agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and	
 
 	(v)	agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.	
(c) The Issuer and the Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. The Issuer and the Note Guarantors (other than CEMEX Corp.) hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Note Guarantors (other than CEMEX Corp.) agree to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Issuer and the Note Guarantors (other than CEMEX Corp.) agree that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer and the Note Guarantors (other than CEMEX Corp.) of a successor agent in the City of New York, New York as each of their authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Note Guarantors (other than CEMEX Corp.).
(d) To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors hereby irrevocably waive and agree not to plead or claim such immunity in respect of their obligations under this Indenture or the Notes.
(e) Nothing in this Section 12.7 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
 
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Section 12.8 [Reserved].
Section 12.9 No Recourse Against Others.
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or this Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
Section 12.10 Successors. All agreements of the Issuer and any Note Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11 Duplicate and Counterpart Originals.
The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or pdf shall be deemed to be their original signatures for all purposes.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13 [Reserved].
Section 12.14 Currency Indemnity.
(a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and any Note Guarantor under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, a Note Guarantor or any Subsidiary of the Issuer or otherwise) by any Holder of the Notes in respect of any sum expressed to be due to it from the Issuer or any Note Guarantor shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer and the Note Guarantors shall jointly and severally indemnify and hold harmless the recipient, to the greatest extent permitted by law, against any loss or cost sustained by it in making any such purchase. For the purposes of this  Section 12.14 , it will be sufficient for the Holder of a Note to certify that it would have suffered a loss had an
 
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actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
(b) The indemnities of the Issuer and the Note Guarantors contained in this Section 12.14, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuer and the Note Guarantors under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer and the Note Guarantors; (iii) shall apply irrespective of any waiver granted by any Holder of the Notes or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
Section 12.15 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 12.16 USA PATRIOT Act.
The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA PATRIOT Act ”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Signature page follows]
 
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

CEMEX, S.A.B. de C.V., as Issuer	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
EACH OF THE NOTE GUARANTORS LISTED BELOW	
 	
CEMEX México, S.A. de C.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
CEMEX Concretos, S.A. de C.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
Empresas Tolteca de México, S.A. de C.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
New Sunward Holding B.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	

 	 	 	
CEMEX España, S.A.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
Cemex Asia B.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
CEMEX Corp.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
Cemex Egyptian Investments B.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	
 	
Cemex Egyptian Investments II B.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib

Title:   Attorney-in-Fact	

 	 	 	
CEMEX France Gestion (S.A.S.)	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib
Title:   Attorney-in-Fact	
 	
Cemex Research Group AG	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib
Title:   Attorney-in-Fact	
 	
Cemex Shipping B.V.	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib
Title:   Attorney-in-Fact	
 	
CEMEX UK	
 	 	
By:	 	    /s/ Héctor José Vela Dib	
Name: Héctor José Vela Dib
Title:   Attorney-in-Fact	

 	 	 	
THE BANK OF NEW YORK MELLON,
as Trustee	
 	 	
By:	 	    /s/ Catherine F. Donohue
Name: Catherine F. Donohue
Title: Vice President	

SCHEDULE I
NOTE GUARANTORS
 
1.	CEMEX México, S.A. de C.V. (Mexico)	
 
2.	CEMEX Concretos, S.A. de C.V. (Mexico)	
 
3.	Empresas Tolteca de México, S.A. de C.V. (Mexico)	
 
4.	New Sunward Holding B.V. (the Netherlands)	
 
5.	CEMEX España, S.A. (Spain)	
 
6.	Cemex Asia B.V. (the Netherlands)	
 
7.	CEMEX Corp. (Delaware)	
 
8.	Cemex Egyptian Investments B.V. (the Netherlands)	
 
9.	Cemex Egyptian Investments II B.V (the Netherlands)	
 
10.	CEMEX France Gestion (S.A.S.) (France)	
 
11.	Cemex Research Group AG (Switzerland)	
 
12.	Cemex Shipping B.V. (the Netherlands)	
 
13.	CEMEX UK (United Kingdom)	

EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”]
[Include the following legend on all Notes that are Restricted Notes:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND [ Include the following on all Regulation S Notes that are Restricted Notes:  , PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO CEMEX, S.A.B. DE C.V., (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR
 
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(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS LEGEND CAN ONLY BE REMOVED AT THE OPTION OF THE ISSUER.”
[Include the following on all Regulation S Notes that are Restricted Notes: PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] EACH PERSON ACQUIRING AN OWNERSHIP INTEREST IN THE NOTES (1) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT EITHER (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S) AND IS OUTSIDE THE UNITED STATES OR (C) IS ACQUIRING SUCH OWNERSHIP INTEREST PURSUANT TO A VALID REGISTRATION STATEMENT OR IN ANOTHER TRANSACTION EXEMPT FROM SUCH REGISTRATION; (2) AGREES THAT [ Include the following on all Regulation S Notes that are Restricted Notes:  PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] (X) IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS, AND IN ANY CASE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; (Y) PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE BANK OF NEW YORK MELLON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (Z) IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “UNITED STATES”, “U.S. PERSON” AND “OFFSHORE TRANSACTION” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
[Include the following legend on all Notes as the Mexican law legend:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE NATIONAL SECURITIES REGISTRY ( REGISTRO NACIONAL DE VALORES ) MAINTAINED BY THE MEXICAN NATIONAL BANKING AND SECURITIES COMMISSION  (COMISIÓN NACIONAL BANCARIA Y DE VALORES , OR CNBV), AND MAY NOT BE OFFERED OR SOLD PUBLICLY, OR OTHERWISE BE SUBJECT TO BROKERAGE ACTIVITIES, IN MEXICO, EXCEPT THAT THE NOTES MAY BE OFFERED IN MEXICO TO QUALIFIED OR INSTITUTIONAL INVESTORS PURSUANT TO THE PRIVATE PLACEMENT EXEMPTION SET FORTH UNDER ARTICLE 8 OF THE MEXICAN SECURITIES MARKET LAW ( LEY DEL MERCADO DE VALORES ). THE NOTES EVIDENCED
 
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HEREBY AND THE OFFERING MEMORANDUM RELATED THERETO ARE SOLELY OUR RESPONSIBILITY AND HAVE NOT BEEN REVIEWED OR AUTHORIZED BY THE CNBV.”]
 
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FORM OF FACE OF NOTE
6.500% Senior Secured Notes due 2019
 
No.         	Principal Amount U.S.$                      	
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
CUSIP NO.             
ISIN NO.             
CEMEX, S.A.B. de C.V. (together with its successors and assigns, the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of                U.S. Dollars [ If the Note is a Global Note ,  add the following , as revised by the Schedule of Increases and Decreases in Global Note attached hereto, on December 10, 2019.
Interest Payment Dates: June 10 and December 10, commencing on December 10, 2013
Record Dates: May 25 and November 25
 
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Additional provisions of this Note are set forth on the other side of this Note.

CEMEX, S.A.B. de C.V.	
 	 	
By:	 	 	
 	 	Name:
Title:	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK MELLON
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.

By:                                           	  	 	Date:                                           	  	
        Authorized Signatory	  	 	 	 	
 
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FORM OF REVERSE SIDE OF NOTE
6.500% Senior Secured Notes due 2019
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.	Interest	
CEMEX, S.A.B. de C.V., a publicly traded stock corporation with variable capital (sociedad anónima bursátil de capital variable ) organized under the laws of the United Mexican States (together with its successors and assigns, the “ Issuer ”), promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Issuer will pay interest semiannually in arrears on each Interest Payment Date of each year commencing December 10, 2013;  provided , that if any such Interest Payment Date is not a Business Day, then such payment shall be made on the next succeeding Business Day. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from August 12, 2013;  provided , that if there is no existing Default or Event of Default on the payment of interest, and if this Note is authenticated between a Record Date referred to on the face hereof and the next succeeding Interest Payment Date (but after August 12, 2013), interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from August 12, 2013. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Each interest period shall end on (but not include) the relevant interest payment date.
All payments made by the Issuer in respect of the Notes will be made free and clear of and without deduction or withholding for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless such withholding or deduction is required by law or by the interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
 
2.	Method of Payment	
By at least 10:00 a.m. (New York City time) on the Business Day prior to the date on which any principal of or interest on any Note is due and payable, the Issuer shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Issuer will pay interest (except Defaulted Interest) on the applicable Interest Payment Date to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date, except as
 
1

provided in Section 2.13 of the Indenture with respect to Defaulted Interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer will pay principal and interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by the DTC. The Issuer will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each registered Holder thereof as set forth in the Note Register;  provided ,  however , that payments on the Notes may also be made, in the case of a Holder of at least U.S.$10,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 10 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
 
3.	Paying Agent and Registrar	
Initially, The Bank of New York Mellon, the Trustee under the Indenture, will act as Trustee, Paying Agent and Registrar. The Issuer may appoint and change any Paying Agent, Registrar or co-Registrar without notice to any Holder. The Issuer, any Note Guarantor or any of their respective Affiliates may act as Paying Agent, Registrar or co-Registrar.
 
4.	Indenture	
The Issuer issued the Notes under an Indenture, dated as of August 12, 2013 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Issuer, the Note Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general senior obligations, which are secured by a first priority security interest in the Collateral on an equal and ratable basis with the other Permitted Secured Obligations, subject to the Collateral release provisions set forth in the Intercreditor Agreement. U.S.$1,000,000,000 in aggregate principal amount of Notes will be initially issued on the Issue Date. Subject to the conditions set forth in the Indenture and without the consent of the Holders, the Issuer may issue Additional Notes. All Notes will be treated as a single series of securities under the Indenture. The Indenture imposes certain limitations on, among other things, the ability of the Issuer and its Restricted Subsidiaries to: Incur Indebtedness, make Restricted Payments, incur Liens, designate Unrestricted Subsidiaries, make Asset Sales, enter into transactions with Affiliates, or consolidate or merge or transfer or convey all or substantially all of the Issuer’s assets.
To guarantee the due and punctual payment of the principal of (and premium, if any) and interest on the Notes and all other amounts payable by the Issuer under the Indenture
 
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and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Note Guarantors have unconditionally guaranteed, jointly and severally, such obligations pursuant to the terms of the Indenture. Each Note Guarantee will be subject to release as provided in the Indenture.
The obligations of each Note Guarantor in respect of its Note Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance, fraudulent transfer, or similar illegal transfer under federal or state law or the law of the jurisdiction or formation and incorporation of such Note Guarantors.
 
5.	Optional Redemption	
Except as stated below, the Issuer may not redeem the Notes. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, on and after December 10, 2017, at the following redemption prices, expressed as percentages of the principal amount thereof, if redeemed during the twelve-month period commencing on December 10, of any year set forth below, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption:

Year	  	Percentage	 	
2017	  	 	103.250	% 	
2018	  	 	101.625	% 	
2019 and thereafter	  	 	100.000	% 	
provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to December 10, 2017, the Issuer will have the right, at its option, to redeem any of the Notes, in whole or in part, at any time or from time to time prior to their maturity at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes and (2) the sum of the present value of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 50 basis points, plus, in each case, any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption,  provided , however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count
 
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basis) of the Comparable Treasury Issue (as defined below), assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price (as defined below) for such Redemption Date.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker (as defined below) as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers (as defined below) appointed by the Issuer.
“Comparable Treasury Price” means, with respect to any Redemption Date (1) the average of the Reference Treasury Dealer Quotations (as defined below) for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker or Issuer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means any one of J.P. Morgan Securities LLC, HSBC Securities (USA) Inc., or their respective affiliates which are primary United States government securities dealers and not less than two other leading primary United States government securities dealers in New York City reasonably designated by the Issuer;  provided ,  however , that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “ Primary Treasury Dealer ”), the Issuer will substitute therefore another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker or Issuer, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker or Issuer by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such Redemption Date.
Optional Redemption upon Equity Offerings. At any time, or from time to time, on or prior to December 10, 2016,the Issuer may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem in the aggregate up to 35% of the aggregate principal amount of the Notes issued pursuant to the Indenture at a redemption price equal to 106.500% of the principal amount thereof plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided , that:
 
 	•	 	after giving effect to any such redemption at least 65% of the aggregate principal amount of the Notes issued under the Indenture remains outstanding; and	
 
 	•	 	the Issuer shall make such redemption not more than 90 days after the consummation of such Equity Offering;	
 
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provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from exercising such an option under the Facilities Agreement.
“Equity Offering” means any public or private sale of Qualified Capital Stock after the Issue Date for cash other than issuances to any Subsidiary of the Issuer.
Optional Redemption for Changes in Withholding Taxes. If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article IV  shall be treated for this purpose as the date of such transaction) we would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding tax rate of 10% with respect to the Notes (see “Additional Amounts”), then, at our option, all, but not less than all, of the Notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the outstanding principal amount, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided ,  however , that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which we would be obligated to pay these Additional Amounts if a payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect;  provided ,  further ,  however , that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to the publication of any notice of redemption pursuant to this provision, the Issuer will deliver to the Trustee:
 
 	•	 	an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	
 
 	•	 	an opinion of outside legal counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	
This notice, once delivered by the Issuer to the Trustee, will be irrevocable.
In the case of any partial redemption, selection of the Notes for redemption will be made in accordance with Article V of the Indenture. On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called-for redemption as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
 
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6.	Mandatory Repurchase Provisions	
Change Of Control Offer. Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest through the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Issuer must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by applicable law.
Asset Sale Offer. The Indenture imposes certain limitations on the ability of the Issuer and its Restricted Subsidiaries to make Asset Sales. In the event the proceeds from a permitted Asset Sale exceed certain amounts and are not applied as specified in the Indenture, the Issuer will be required to make an Asset Sale Offer to purchase to the extent of such remaining proceeds each Holder’s Notes together with holders of certain other Indebtedness at 100% of the principal amount thereof, plus accrued interest (if any) to the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
 
7.	Denominations; Transfer; Exchange	
The Notes are in fully registered form without coupons, and only in denominations of principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar shall not be required to register the transfer or exchange of (x) any Note for a period beginning: (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.
 
8.	Persons Deemed Owners	
The registered holder of this Note may be treated as the owner of it for all purposes.
 
9.	Unclaimed Money	
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment.
 
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10.	Discharge Prior to Redemption or Maturity	
Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
 
11.	Amendment, Waiver	
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended or supplemented without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Issuer and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with  Article IV  of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Issuer or the Note Guarantors, or to make any change that does not adversely affect the rights of any Holder, or to provide for the issuance of Additional Notes.
 
12.	Defaults and Remedies	
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be due and payable immediately. A Bankruptcy Event of Default will result in the Notes being due and payable immediately upon the occurrence of such Bankruptcy Event of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
 
13.	Trustee Dealings with the Issuer and the Note Guarantors	
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, any Note Guarantor or its Affiliates and may otherwise deal with the Issuer, any Note Guarantor or its Affiliates with the same rights it would have if it were not Trustee.
 
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14.	No Recourse Against Others	
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or the Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each holder waives and releases all such liability.
 
15.	Authentication	
Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.
 
16.	Abbreviations	
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (= Uniform Gift to Minors Act).
 
17.	CUSIP Numbers	
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused CUSIP or other similar numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
18.	Governing Law	
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
 
19.	Currency of Account; Conversion of Currency.	
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and the Note Guarantors under or in connection with the Notes or the Indenture, including damages. The Issuer and the Note Guarantors will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
 
20.	Agent for Service; Submission to Jurisdiction; Waiver of Immunities.	
The Issuer and the Note Guarantors have agreed that any suit, action or proceeding against the Issuer or any Note Guarantor brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal
 
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court in the City of New York and County of New York and in the courts of their respective corporate domiciles, in respect of actions brought against them as defendants. The Issuer and the Note Guarantors (other than CEMEX Corp.) have irrevocably submitted to the jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Issuer and the Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as each of their authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. To the extent that any of the Issuer and the Note Guarantors (other than CEMEX Corp.) have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors (other than CEMEX Corp.) have irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya # 325
Colonia Valle del Campestre
Garza García, Nuevo León, México 66265
Tel: +5281-8888-8888
 
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint                      as agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

Date:	 	 	 	 	  	Your Signature:	  	 	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	

Sign exactly as your name appears on the other side of this Note.	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:

Date of
Exchange	  	Amount of decrease in
Principal Amount of this Global Note	  	Amount of increase in
Principal Amount of this
Global Note	  	Principal Amount of this
Global Note following
such decrease or
increase	  	Signature of authorized
signatory of Trustee or
Note Custodian	

 
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 3.8 or Section 3.12 of the Indenture, check either box:

¨	  	¨	
Section 3.8	  	Section 3.12	
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.12 of the Indenture, state the principal amount (which must be in minimum denominations of U.S.$200,000 and in an integral multiple of U.S.$1,000):

U.S.$	  	 	 	 	 	 	

Date:	 	 	 	Your Signature	 	 	 	 	 	 	
 	 	 	 	(Sign exactly as your name appears on the
other side of the Note)	 	 	

Signature Guarantee:	 	 	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	 	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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EXHIBIT B
FORM OF CERTIFCATION FOR TRANSFER PURSUANT TO REGULATION S
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Re: 6.500% Senior Secured Notes due 2019 (the “Notes”) of
CEMEX, S.A.B. de C.V. (the “Issuer”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 12, 2013 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), as the case may be.
In connection with our proposed transfer of U.S.$         aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
 
B-1

You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 	 	Very truly yours,	 	 	
 	 	 	
 	 	[Name of Transferor]	 	 	

 	 	By:	 	 	 	 	 	 	

 	 	 	 	 	 	 	
 	 	Authorized Signature]	 	 	 	 	 	 	

 	 	 	 	
Signature Guarantee:	 	 	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	 	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
B-2

EXHIBIT C
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Re: 6.500% Senior Secured Notes due 2019 (the “Notes”) of
CEMEX, S.A.B. de C.V. (the “Issuer”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 12, 2013 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$         aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 	 	Very truly yours,	 	 	
 	 	 	
 	 	[Name of Transferor]	 	 	
 	 	 	 	
 	 	By:	 	 	 	 	

 	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Authorized Signature	 	 	

 	 	 	
Signature Guarantee:	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
C-1

EXHIBIT D
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A
[Date]
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Re: 6.500% Senior Secured Notes due 2019 (the “Notes”) of
CEMEX, S.A.B. de C.V. (the “Issuer”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of August 12, 2013 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$         aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Note beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended, and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 	 	Very truly yours,	 	 	
 	 	 	
 	 	[Name of Transferor]	 	 	
 	 	 	 	
 	 	By:	 	 	 	 	

 	 	 	 	 	
 	 	 	 	 	 	 	
 	 	Authorized Signature]	 	 	
 
D-1

 	 	 	 	 	
 	 	 	
Signature Guarantee:	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS
The definition of “Consolidated Leverage Ratio” comes from the 2009 Financing Agreement, as in effect immediately prior to giving effect to the amendment and restatement thereof on September 17, 2012, and is to be used solely for purposes of calculating the Consolidated Leverage Ratio in the context of determining whether a Partial Covenant Suspension Event has occurred.
“2012 CB Amount” means an aggregate amount equal to the Relevant Existing Financial Indebtedness maturing on or prior to the 2012 CB Maturity Date.
“2012 CB Maturity Date” means the final maturity date of the Relevant Existing Financial Indebtedness maturing in September, 2012 (being 21 September, 2012).
“Acceptable Bank” means:
 
 	(a)	a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A- or higher by Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency;	
 
 	(b)	any other bank or financial institution in a jurisdiction in which a member of the Group conducts commercial operations where such member of the Group, in the ordinary course of trading, subscribes for certificates of deposit issued by such bank or financial institution; or	
 
 	(c)	any other bank or financial institution approved by the Administrative Agent.	
“Accession Letter” means a document substantially in the form set out in Schedule 4 (Form of Accession Letter ) of the 2009 Financing Agreement.
“Additional Guarantor” means a company that becomes an Additional Guarantor in accordance with Clause 28  (Changes to the Obligors)  of the 2009 Financing Agreement.
“Additional Security Provider” means a company that becomes an Additional Security Provider in accordance with Clause 28  (Changes to the Obligors)  of the 2009 Financing Agreement.
“Administrative Agent” means Citibank International PLC, as administrative agent of the Finance Parties (other than itself) under the 2009 Financing Agreement.
“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.
 
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“Applicable GAAP” means:
 
 	(a)	in the case of the Issuer, Mexican FRS or, if adopted by the Issuer in accordance with Clause 22.3 (Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS;	
 
 	(b)	in the case of CEMEX España, Spanish GAAP or, if adopted by CEMEX España in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS; and	
 
 	(c)	in the case of any other Obligor, the generally accepted accounting principles applying to it in the country of its incorporation or in a jurisdiction agreed to by the Administrative Agent or, if adopted by the relevant Obligor, IFRS.	
“Authorised Signatory” means, in relation to any Obligor, any person who is duly authorised and in respect of whom the Administrative Agent has received a certificate signed by a director or another Authorised Signatory of such Obligor setting out the name and signature of such person and confirming such person’s authority to act.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ) between CEMEX CONCRETOS, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, Sociedad Nacional de Crédito, Institución de Banca de Desarrollo, as lender ( “Banobras ”), in an aggregate principal amount equal to Mex$5,000,000,000.00 (five billion pesos), dated April 22, 2009, which was formalized by means of public deeds number 116,380 and 116,381 dated April 22, 2009, granted before Mr. José Angel Villalobos Magaña, notary public number 9 for Mexico, Federal District, as such facility may be amended from time to time.
“Base Currency” means US dollars.
“Base Currency Amount” means on any date:
 
 	(a)	in relation to an amount or Exposure denominated in the Base Currency, that amount or the amount of that Exposure; and	
 
 	(b)	in relation to an amount or Exposure denominated in a currency other than the Base Currency, that amount or the amount of that Exposure converted into the Base Currency at:	
 
 	(i)	for the purposes of determining the Majority Participating Creditors, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date on which such determination is made (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Issuer and the Participating Creditors); and	
 
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 	(ii)	for all other purposes, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date which is five Business Days before that date (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Issuer and the Participating Creditors).	
“Bilateral Bank Facilities” means the facilities described in Part IB of Part II of Schedule 1 (The Original Participating Creditors)  of the 2009 Financing Agreement.
“Borrower” means an Original Borrower unless it has ceased to be a Borrower in accordance with Clause 28.2  (Resignation of a Borrower)  of the 2009 Financing Agreement.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Madrid, New York, Amsterdam and Mexico City (in the case of Mexico City, if applicable, as specified by a governmental authority), and:
 
 	(a)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, a currency other than euro) the principal financial centre of the country of that currency; or	
 
 	(b)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, euro) any TARGET Day.	
“Business Plan” means the five year business plan of the Group delivered in conjunction with the 2009 Financing Agreement.
“Capital Expenditure” means any expenditure or obligation in respect of expenditure which, in accordance with Applicable GAAP of the Issuer, is treated as capital expenditure (and including the capital element of any expenditure or obligation incurred in connection with a Capital Lease) (and, solely for the purposes of paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement, the maximum amount of Capital Expenditure of the Group permitted in the Financial Year ending on or about 31 December 2009 will be increased by an amount not exceeding $50,000,000 in aggregate to the extent necessary to take into account currency fluctuations or additional costs and expenses contemplated by (or that have occurred since the date of) the Business Plan).
“Capital Lease” means, as to any person, the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of the Issuer under Applicable GAAP and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable GAAP of the Issuer.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designed) of capital stock of a corporation, any and all equivalent ownership interests in a person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
 
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“Cash Equivalent Investments” means at any time:
 
 	(a)	certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;	
 
 	(b)	any investment in marketable debt obligations issued or expressly guaranteed by the government of Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group conducts commercial operations if that member of the Group makes investments in such debt obligations in the ordinary course of its trading) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;	
 
 	(c)	commercial paper not convertible into or exchangeable for any other security:	
 
 	(i)	for which a recognised trading market exists;	
 
 	(ii)	issued by an issuer incorporated in Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group makes investments in such debt obligations in the ordinary course of trading);	
 
 	(iii)	which matures within one year after the relevant date of calculation; and	
 
 	(iv)	which has a credit rating of either A-1 or higher by S&P or F 1 or higher by Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;	
 
 	(d)	sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);	
 
 	(e)	any investment in money market funds which (i) have a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch or P-1 or higher by Moody’s, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (f) and (g) below and (iii) can be turned into cash on not more than 30 days’ notice; or	
 
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 	(f)	any deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco National de Obras y Sevicios Publicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(g)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which any member of the Group conducts commercial operations and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquiring such investment;	
 
 	(h)	investments in mutual funds, managed by banks or financial institutions, with a local currency credit rating of at least MxAA by S&P or equivalent by any other reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican government, or issued by any agency or instrumentality thereof; and	
 
 	(i)	any other debt security, certificate of deposit, commercial paper, bill of exchange, investment in money market funds or material funds approved by the Majority Participating Creditors, in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).	
“CB Cash Replenishment Amount” means, for a particular Relevant Prepayment Period, the amount of cash in hand of the Issuer on a consolidated basis to be applied by the Issuer to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement at any time during that Relevant Prepayment Period provided that such amount, together with the CB Disposal Proceeds Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Disposal Proceeds Replenishment Amount” means for a particular Relevant Prepayment Period, the amount of any Disposal Proceeds received by any member of the Group during that Relevant Prepayment Period to be applied by the Issuer to the CB Reserve pursuant to paragraph (b) of Clause 13.3  (Mandatory prepayments: Certificados Bursátiles Reserve)  of the 2009 Financing Agreement provided that such amount, together with the CB Cash Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Reserve” means the reserve created by the Issuer or any of its Subsidiaries for the purposes of holding the proceeds of any Permitted Fundraising that, as set out in the relevant CB Reserve Certificate, are to be applied in accordance with Clause 13.3  (Mandatory prepayments: Certificados Bursátiles Reserve)  of the 2009 Financing Agreement.
 
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“CB Reserve Certificate” means a certificate signed by a Responsible Officer of the Issuer setting out, with respect to a Permitted Fundraising the net cash proceeds of which are to be applied in accordance with Clause 13.3  (Mandatory prepayments: Certificados Bursátiles Reserve)  of the 2009 Financing Agreement:
 
 	(i)	the amount of proceeds from the relevant Permitted Fundraising that the Issuer wishes to be applied to the CB Reserve (such amount to not exceed the aggregate amount of the Relevant Existing Financial Indebtedness that is due to mature within the Relevant Prepayment Period to which it applies); and	
 
 	(ii)	specific details of the Relevant Existing Financial Indebtedness to which any amounts are designated by the Issuer to be applied including the total aggregate amount of such Relevant Existing Financial Indebtedness and the date on which such Relevant Existing Financial Indebtedness matures.	
“CB Reserve Shortfall” means at any time, for a particular Relevant Prepayment Period, an amount equal to the lower of:
 
 	(i)	the aggregate amount of (A) any voluntary prepayments made to Participating Creditors pursuant to Clause 12.2 ( Voluntary prepayment of Exposures ) of the 2009 Financing Agreement from proceeds standing to the credit of the CB Reserve in that Relevant Prepayment Period and (B) the 2012 CB Amount; and	
 
 	(ii)	the principal amount of any Relevant Existing Financial Indebtedness then outstanding in that Relevant Prepayment Period.	
“Change of Control” means that the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended) of 20 per cent. or more in voting power of the outstanding voting stock of the Issuer is acquired by any person,  provided that  the acquisition of beneficial ownership of capital stock of the Issuer by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Charged Property” means all of the assets of the Security Providers which from time to time are, or are expressed to be, the subject of the Transaction Security.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate)  of the 2009 Financing Agreement.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) EBITDA for the one (1) year period ending on such date to (b) Consolidated Interest Expense for the one (1) year period ending on such date.
 
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“Consolidated Debt” means, at any date, the sum (without duplication) of (a) the aggregate amount of all Debt of the Issuer and its Subsidiaries at such date, which shall include the amount of any recourse in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness,  plus  (b) to the extent not included in Debt, the aggregate net mark-to-market amount of all derivative financing in the form of equity swaps outstanding at such date (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents).
“Consolidated Funded Debt” means, for any period, Consolidated Debt less the sum (without duplication) of (i) all obligations of such person to pay the deferred purchase price of property or services, (ii) all obligations of such person as lessee under Capital Leases, and (iii) all obligations of such person with respect to product invoices incurred in connection with export financing.
“Consolidated Interest Expense” means, for any period, the sum of the (1) total gross cash and non cash interest expense of the Issuer and its consolidated Subsidiaries relating to Consolidated Funded Debt of such persons, (2) any amortization or accretion of debt discount or any interest paid on Consolidated Funded Debt of such person and its Subsidiaries in the form of additional Financial Indebtedness (but excluding any amortization of deferred financing and debt issuance costs), (3) the net costs under Treasury Transactions in respect of interest rates (but excluding amortization of fees), (4) any amounts paid in cash on preferred stock, and (5) any interest paid or accrued in respect of Consolidated Funded Debt without a maturity date, regardless of whether considered interest expense under Applicable GAAP of the Issuer. For purposes of calculating Consolidated Interest Expense for the Reference Period ending 30 June 2010, $131,406,696.17 shall be deducted, constituting the amount of interest paid in respect of perpetual debentures on 1 July 2009 for the period ending 30 June 2009.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Funded Debt on such date to (b) EBITDA for the one (1) year period ending on such date.
“Core Bank Facilities” means the Syndicated Bank Facilities, the Bilateral Bank Facilities and the Promissory Notes.
“Creditor’s Representative” means:
 
 	(a)	with respect to each of the Syndicated Bank Facilities, the person appointed as the agent of the creditors in relation to such Facility under the Existing Finance Documents relating to such Facility;	
 
 	(b)	with respect to each other Core Bank Facility, the Participating Creditor with an Exposure under that Facility; and	
 
 	(c)	with respect to each USPP Note, the Participating Creditor with an Exposure under that USPP Note.	
“Debt” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments, including the perpetual bonds, (iii) the aggregate net mark-to-market
 
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of Treasury Transactions (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents) of such person but excluding Treasury Transactions relating to the rate or price of energy or any commodity, (iv) all obligations of such person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of trading, (v) all obligations of such person as lessee under Capital Leases, (vi) all Debt of others secured by Security on any asset of such person, up to the value of such asset, (vii) all obligations of such person with respect to product invoices incurred in connection with export financing, (viii) all obligations of such person under repurchase agreements for the stock issued by such person or another person, (ix) all obligations of such person in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness and (x) all guarantees of such person in respect of any of the foregoing  provided ,  however,  that for the purposes of calculating the Consolidated Funded Debt element of the Consolidated Leverage Ratio, Relevant Convertible/Exchangeable Obligations shall be excluded from each of the foregoing paragraphs (i) to (x) inclusive ( provided that , in the case of outstanding Financial Indebtedness under any Relevant Convertible/Exchangeable Obligations (1) only the principal amount thereof shall be excluded and (2) such exclusion shall apply only for so long as such amounts remain subordinated in accordance with the terms of that definition) and (b) amounts falling within paragraph (v) of the definition of Excluded Fundraising Proceeds, for the period in which they are held by the Issuer or any member of the Group pending application in accordance with the terms of the 2009 Financing Agreement, shall be deducted from the aggregate Debt calculation resulting from this definition. For the avoidance of doubt, all letters of credit, banker’s acceptances or similar credit transactions, including reimbursement obligations in respect thereof are not Debt until they are required to be funded.
“Debt Documents” means the Finance Documents, the “Refinancing Documents” (as defined in the Intercreditor Agreement) and the “Noteholder Documents” (as defined in the Intercreditor Agreement).
“Debt Reduction Satisfaction Date” means the first date following 30 September 2010 on which:
 
 	(a)	the Base Currency Amount of the Exposures of Participating Creditors under the Facilities (calculated as at the date that any reduction of Exposures occurs and in accordance with the 2009 Financing Agreement) has been reduced by an aggregate amount equal to at least U.S.$1,000,000,000 compared to the Exposures of Participating Creditors under the Facilities as at 30 September 2010; and	
 
 	(b)	the amount of Consolidated Funded Debt is at least U.S.$1,000,000,000 (or its equivalent in any other currency) lower than the level of Consolidated Funded Debt as at 30 September 2010 (for the avoidance of doubt, when used in this sub-paragraph, Consolidated Funded Debt shall not include any Relevant Convertible/Exchangeable Obligations),	
with notification of the occurrence of such date being provided by the Parent delivering a certificate to the Administrative Agent signed by an Authorised Signatory confirming that (a) and (b) above have been met.
 
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“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of (a) operating income ( utilidad de operación ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Issuer consistently applied for such period.
“Discontinued Operations” means operations that are accounted for as discontinued operations pursuant to Applicable GAAP of the Issuer for which the Disposal of such assets has not yet occurred.
“Disposal” means a sale, lease, license, transfer, loan or other disposal by a person of any asset (including shares in any Subsidiary or other company), undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).
“Disposal Proceeds” means:
 
 	(i)	the cash consideration received by any member of Group (including any amount received from a person who is not a member of the Group in repayment of intercompany debt save to the extent that the creditor in respect of the intercompany debt is obliged to repay that amount to the purchaser at or about completion of the Disposal) for any Disposal;	
 
 	(ii)	any proceeds of any Disposal received in the form of Marketable Securities that are required to be disposed of for cash (after deducting reasonable expenses incurred by the party disposing of those Marketable Securities to persons other than members of the Group) pursuant to the criteria set out at paragraph (h) of the definition of Permitted Disposal; and	
 
 	(iii)	any proceeds of any Disposal received in any other form to the extent disposed of or otherwise converted into cash within 90 days of receipt; and	
 
 	(iv)	any consideration falling within paragraphs (i) to (iii) above that is received by any member of the Group from the Disposal of assets of the Group in Venezuela prior to the date of the 2009 Financing Agreement,	
but excluding any Excluded Disposal Proceeds and, in every case, after deducting:
 
 	(1)	any reasonable expenses which are incurred by the disposing party of such assets with respect to that Disposal to persons who are not members of the Group;	
 
 	(2)	any Tax incurred and required to be paid by the disposing party in connection with that Disposal (as reasonably determined by the disposing party on the basis of rates existing at the time of the disposal and taking account of any available credit, deduction or allowance);	
 
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“EBITDA” means, for any period, the sum for the Issuer and its Subsidiaries, determined on a consolidated basis of (a) operating income ( utilidad de operacion ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Issuer, subject to the adjustments herein, consistently applied for such period and adjusted for Discontinued EBITDA as follows: if the amount of Discontinued EBITDA is a positive amount, then EBITDA shall increase by such amount, and if the amount of Discontinued EBITDA is a negative amount, then EBITDA shall decrease by the absolute value of such amount. For the purposes of calculating EBITDA for any applicable period pursuant to any determination of the Consolidated Leverage Ratio (but not the Consolidated Coverage Ratio): (A) (i) if at any time during such applicable period the Borrower or any of its Subsidiaries shall have made any Material Disposal, the EBITDA for such applicable period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposal for such applicable period (but when the Material Disposal is by way of lease, income received by the Issuer or any of its Subsidiaries under such lease shall be included in EBITDA) and (ii) if at any time during such applicable period the Issuer or any of its Subsidiaries shall have made any Material Acquisition, EBITDA for such applicable period shall be calculated after giving  pro forma  effect thereto as if such Material Acquisition had occurred on the first day of such applicable period. Additionally, if since the beginning of such applicable period any person that subsequently shall have become a Subsidiary or was merged or consolidated with the Issuer or any of its Subsidiaries as a result of a Material Acquisition occurring during such applicable period shall have made any Material Disposal or Material Acquisition of property that would have required an adjustment pursuant to clause (i) or (ii) above if made by the Issuer or any of its Subsidiaries during such applicable period, EBITDA for such period shall be calculated after giving  pro forma  effect thereto as if such Material Disposal or Material Acquisition had occurred on the first day of such applicable period; and (B) EBITDA will be recalculated by multiplying each month’s EBITDA by the Ending Exchange Rate and dividing the amount obtained thereto by the exchange rate used by the Issuer in preparation of its monthly financial statements in accordance with Applicable GAAP of the Issuer to convert $ into Mexican pesos (such recalculated EBITDA being the  “Recalculated EBITDA” ).
“Ending Exchange Rate” means the exchange rate at the end of a Reference Period for converting $ into Mexican pesos as used by the Issuer and its auditors in preparation of the Issuer’s financial statements in accordance with Applicable GAAP of the Issuer.
“Excluded Disposal Proceeds” means any CB Disposal Proceeds Replenishment Amount and the proceeds of any Disposal of:
 
 	(i)	inventory or trade receivables in the ordinary course of trading of the disposing entity;	
 
 	(ii)	assets pursuant to a Permitted Securitisation programme existing as at the date of the 2009 Financing Agreement (or any rollover or extension of such a Permitted Securitisation);	
 
 	(iii)	any asset from any member of the Group to another member of the Group on arm’s length terms and for fair market or book value;	
 
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 	(iv)	any assets the consideration for which (when aggregated with the consideration for any related Disposals) is less than $5,000,000 (or its equivalent in any other currency);	
 
 	(v)	assets leased or licensed to any director, officer or employee of any member of the Group in connection with and as part of the ordinary course of the service or employment arrangements of the Group;	
 
 	(vi)	Marketable Securities (other than Marketable Securities received as consideration for a Disposal as envisaged in paragraphs (ii) and (iii) of the definition of Disposal Proceeds); and	
 
 	(vii)	any cash or other assets arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to any settlement, disposal, transfer, assignment, closeout or other termination of such Permitted Put/Call Transaction.	
“Excluded Fundraising Proceeds” means the proceeds of:
 
 	(i)	a Permitted Fundraising falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraph (a) of the definition thereof (or paragraph (b) of the definition thereof, to the extent that it relates to Short Term Certificados Bursatiles) (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (i), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group);	
 
 	(ii)	a Permitted Fundraising falling within paragraph (f)(ii) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraphs (a) to (e) of the definition thereof (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (ii), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group).	
 
 	(iii)	any transaction between members of the Group;	
 
 	(iv)	Permitted Securitisations;	
 
 	(v)	prior to the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraph (c) of that definition or, after the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraphs (a), (b) or (c) of that definition  provided that  any Relevant Existing Financial Indebtedness due to mature within the particular Relevant Prepayment	
 
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 	Period and the proceeds of such Permitted Fundraising are to be applied in accordance with Clause 13.3 (Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement;	
 
 	(vi)	subject to Clause 13.4(ii) of the 2009 Financing Agreement, a Permitted Fundraising falling within paragraph (c) of that definition and applied or to be applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement; and	
 
 	(vii)	a Permitted Fundraising arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to, any settlement, disposal, transfer, assignment, close-out or other termination of such Permitted Put/Call Transaction.	
“Executive Compensation Plan” means any stock option plan, restricted stock plan or retirement plan which the Issuer or any other Obligor customarily provides to its employees, consultants and directors.
“Existing Facility Agreements” means the facility agreements and other documents described in Part II, Schedule 1  ( The Original Participating Creditors) of the 2009 Financing Agreement.
“Existing Finance Documents” means each Existing Facility Agreement, the USPP Note Guarantee, the “Finance Documents” as defined in any Existing Facility Agreement and the “Facility Transaction Documents” as defined in Exhibit H to the NY Law Amendment Agreement (but in each case excluding any document that is designated a “ Finance Document ” or “ Facility Transaction Document ” by an Obligor and the relevant Creditor’s Representative under an Existing Facility Agreement after the date of the 2009 Financing Agreement).
“Existing Financial Indebtedness” means:
 
 	(a)	the Financial Indebtedness described in Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement  provided that  the principal amount of such Financial Indebtedness does not increase above the principal amount outstanding as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) less the amount of any repayments and prepayments made in respect of such Financial Indebtedness;	
 
 	(b)	the Financial Indebtedness described in Part II of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles, working capital or other operating facilities that replace or refinance such Financial Indebtedness;	
 
 	(c)	the Financial Indebtedness described in Part III of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Capital Leases that replace (and relate to the same or similar assets as) such Financial Indebtedness;	
 
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 	(d)	the Financial Indebtedness described in Part IV of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Inventory Financing or factoring arrangements that replace (and relate to the same or similar assets as) such Financial Indebtedness; and	
 
 	(e)	the Banobras Facility and any other facility that replaces or refinances such facility provided that any such replacement or refinancing facility is (i) with a development bank controlled by the Mexican Government or (ii) with any other financial institution to finance public works or infrastructure assets,	
provided that (i) the aggregate principal amount of such Existing Financial Indebtedness falling under each of paragraphs (b) to (e) of this definition shall not be increased above the principal amount of Financial Indebtedness committed or capable of being drawn down under the Financial Indebtedness referred to in that paragraph of this definition as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) and (ii), for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) above need not satisfy the requirements of paragraph (f) of the definition of Permitted Financial Indebtedness.
“Exposure” means, at any time:
 
 	(a)	in relation to a Participating Creditor and a Syndicated Bank Facility or Bilateral Bank Facility, that Participating Creditor’s participation in Loans made under the relevant Facility at that time;	
 
 	(b)	in relation to Participating Creditor and a Promissory Note, the principal amount owed to that Participating Creditor under that Promissory Note at that time; and	
 
 	(c)	in relation to a Participating Creditor and a USPP Note, the principal amount owed to that Participating Creditor under that USPP Note at that time.	
“Facility” means a Core Bank Facility and each USPP Note.
“Fee Letter” means any letter or agreement between the Administrative Agent or Security Agent and the Issuer setting out (i) the upfront fee and (ii) the level of fees payable in respect of the services and obligations performed by those agents under the relevant New Finance Documents.
“Finance Document” means each New Finance Document and each Existing Finance Document.
 
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“Finance Party” means the Administrative Agent, the Security Agent, each Creditor’s Representative or a Participating Creditor.
“Financial Indebtedness” means any indebtedness for or in respect of:
 
 	(a)	moneys borrowed and debit balances at banks or other financial institutions;	
 
 	(b)	any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);	
 
 	(c)	any amount raised pursuant to a note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (including, without limitation, any perpetual bonds);	
 
 	(d)	the amount of any liability in respect of any lease or hire purchase contract which would (in accordance with Applicable GAAP of the Issuer) be treated as a finance or capital lease;	
 
 	(e)	receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under Applicable GAAP of the Issuer);	
 
 	(f)	any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the mark-to-market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);	
 
 	(g)	any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;	
 
 	(h)	any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under Applicable GAAP of the Issuer;	
 
 	(i)	any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply;	
 
 	(j)	any arrangement pursuant to which an asset sold or otherwise disposed of by that person may be re-acquired by a member of the Group (whether following the exercise of an option or otherwise) and any Inventory Financing;	
 
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 	(k)	any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under Applicable GAAP of the Issuer; and	
 
 	(l)	the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (k) above.	
“Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
“Financial Year” means the annual accounting period of the Issuer ending on or about 31 December in each year.
“Fitch” means Fitch Ratings Limited or any successor thereto from time to time.
“Group” means the Issuer and each of its Subsidiaries for the time being.
“Guarantors” means the Original Guarantors and any Additional Guarantor other than any Original Guarantor or Additional Guarantor which has ceased to be a Guarantor pursuant to Clause 28.4 (Resignation of Guarantor) of the 2009 Financing Agreement and has not subsequently become an Additional Guarantor pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement and “ Guarantor ” means any of them.
“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“Intellectual Property” means:
 
 	(a)	any patents, trademarks, service marks, designs, business names, copyrights, design rights, data-base rights, inventions, knowhow and other intellectual property rights and interests, whether registered or unregistered; and	
 
 	(b)	the benefit of all applications and rights to use such assets of each member of the Group.	
“Intercreditor Agreement” means the intercreditor agreement dated on or about the date of the 2009 Financing Agreement and made between, among others, the Issuer, Wilmington Trust (London) Limited as Security Agent, Citibank International PLC as Administrative Agent, the Participating Creditors and any other creditors of the Group that may accede to it from time to time in accordance with its terms, as such agreement may be amended from time to time.
“Inventory Financing” means a financing arrangement pursuant to which a member of the Group sells inventory to a bank or other institution (or a special purpose vehicle or partnership
 
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incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
“Joint Venture Investment” has the meaning given to such term in sub-paragraph (b) (ii) of the definition of Permitted Joint Venture.
“Loan” means:
 
 	(a)	in relation to a Syndicated Bank Facility or Bilateral Bank Facility, a loan made or to be made under such Facility or the principal amount outstanding for the time being of that loan; and	
 
 	(b)	in relation to a Promissory Note, the Exposure of the Participating Creditors for the time being under that Promissory Note.	
“Majority Participating Creditors” means, at any time, a Participating Creditor or Participating Creditors the Base Currency Amount of whose Exposures under the Facilities at that time aggregate 66.67 per cent. or more of the Base Currency Amount of all the Exposures of the Participating Creditors under all of the Facilities at that time.
“Marketable Securities” means securities (whether equity, debt or other securities) which are listed on a stock exchange or for which a trading market exists (whether on market or over the counter) but excluding: (A) shares in any member of the Group, and (B) any shares in Axtel, S.A.B. de C.V.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit, division or line of business or (b) acquisition of or other investment in the Capital Stock of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Material Disposal” means any Disposal of property or series of related Disposals of property that yields gross proceeds to the Issuer or any of its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Mexican FRS” means Mexican Financial Reporting Standards (Normas de Información Financiera) as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 (Financial Statements).
“Mexican pesos,” “Mex$,” “MXN” and “pesos” means the lawful currency of Mexico.
“Mexico” means the United Mexican States.
 
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“Moody’s” means Moody’s Investor Services Limited or any successor to its ratings business.
“NAFTA” means the North American Free Trade Agreement.
“New Finance Document” means the 2009 Financing Agreement, the NY Law Amendment Agreement, the Intercreditor Agreement, each Transaction Security Document, any Accession Letter, any Fee Letter, any Resignation Letter and any other document designated as a “ New Finance Document ” by the Administrative Agent and the Issuer.
“New Equity Securities” means
 
 	(i)	The U.S.$977.5 million aggregate principal amount of 3.25% convertible subordinated notes due 2016, including U.S.$177.5 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2016; and	
 
 	(ii)	U.S.$690 million aggregate principal amount of 3.75% convertible subordinated notes due 2018, including U.S.$90 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2018.	
in each case, issued on 15 March 2011 by the Issuer.
“NY Law Amendment Agreement” means the omnibus amendment agreement dated on or about the date of the 2009 Financing Agreement between, among others, the Issuer and the Participating Creditors with Exposures under those Existing Facility Agreements (other than the USPP Note Agreement) that are governed by the laws of the State of New York, as such agreement may be amended from time to time.
“Obligors” means the Borrowers, the Guarantors and the Security Providers and “Obligor” means any of them.
“Original Borrowers” means, together with the Issuer, the Subsidiaries of the Issuer listed in Part I of Schedule 1 ( The Original Parties ) of the 2009 Financing Agreement as borrowers or issuers.
“Original Financial Statements” means (a) in relation to the Issuer, its audited unconsolidated and consolidated financial statements for its Financial Year ended 31 December 2008 accompanied by an audit opinion of KPMG Cardenas Dosal, S.C.; (b) in relation to CEMEX España, its audited consolidated financial statements for its financial year ended 31 December 2008; and (c) in relation to any other borrower or guarantor under the 2009 Financing Agreement, its most recent annual financial statements (audited, if available).
“Original Guarantors” means the Subsidiaries of the Issuer listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as guarantors, together with the Issuer.
 
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“Original Participating Creditors” means the financial institutions and noteholders listed in Part II of Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement as creditors.
“Original Security Providers” means the Subsidiaries of the Issuer listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as security providers.
“Participating Creditor” means:
 
 	(a)	any Original Participating Creditor; and	
 
 	(b)	any person which has become a Party in accordance with Clause 27 (Changes to the Participating Creditors), of the 2009 Financing Agreement,	
which in each case has not ceased to be a Party in accordance with the terms of the 2009 Financing Agreement.
“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Party” means a party to the 2009 Financing Agreement.
“Permitted Acquisition” means:
 
 	(a)	an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;	
 
 	(b)	an acquisition of shares or securities pursuant to a Permitted Share Issue;	
 
 	(c)	an acquisition of cash or securities which are Cash Equivalent Investments;	
 
 	(d)	an acquisition to which a member of the Group is contractually committed as at the date of the 2009 Financing Agreement, with the material terms of those acquisitions requiring consideration payable in excess of $10,000,000 described in the list delivered to the Administrative Agent under paragraph 4(f) of Part I (Initial Conditions Precedent) of Schedule 2 of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such acquisition subsequent to the date of the 2009 Financing Agreement);	
 
 	(e)	the incorporation of a company which on incorporation becomes a member of the Group or which is a special purpose vehicle, whether a member of the Group or not;	
 
 	(f)	an acquisition that constitutes a Permitted Joint Venture;	
 
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 	(g)	an acquisition of assets and, if applicable, cash, in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash element of any such acquisition must not be more than 20 per cent. of the aggregate consideration for the acquisition; and (ii) the maximum aggregate market value of the assets acquired pursuant to all such transactions must not be more than $100,000,000 (or its equivalent in any other currency) in any Financial Year;	
 
 	(h)	any acquisition of shares of the Issuer pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(i)	any other acquisition consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors;	
 
 	(j)	an acquisition of shares in the Issuer to the extent that a member of the Group has an obligation to deliver such shares to any holder(s) of convertible securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible securities; and	
 
 	(k)	any other acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them)  provided that  the aggregate amount of the consideration for such acquisitions (when aggregated with the aggregate amount of Joint Venture Investment falling within paragraph (b)(iii)(1) of the definition of Permitted Joint Venture in that Financial Year) does not exceed $100,000,000 (or its equivalent in any other currencies) in any Financial Year.	
“Permitted Disposal” means any sale, lease, licence, transfer or other disposal which, except in the case of Disposals as between members of the Group, is on arm’s length terms:
 
 	(a)	of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;	
 
 	(b)	of any asset by a member of the Group (the “Disposing Company”) to another member of the Group (the “ Acquiring Company ”), but if:	
 
 	(i)	the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;	
 
 	(ii)	the Disposing Company had given Transaction Security over the asset, the Acquiring Company must give equivalent Transaction Security over that asset; and	
 
 	(iii)	the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company,	
 
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provided that the conditions set out in paragraphs (i), (ii) and (iii) above shall only apply if the applicable assets are shares or if all or substantially all of the assets of the Disposing Company are being disposed of;
 
 	(c)	of obsolete or redundant vehicles, machinery, parts and equipment in the ordinary course of trading;	
 
 	(d)	of cash or Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;	
 
 	(e)	constituted by a licence of Intellectual Property in the ordinary course of trading;	
 
 	(f)	to a Joint Venture, to the extent permitted by Clause 24.17 (Joint ventures) of the 2009 Financing Agreement;	
 
 	(g)	arising as a result of any Permitted Security;	
 
 	(h)	of any shares in a member of the Group (provided that all such shares in that entity owned by a member of the Group are the subject of the Disposal) or of any other asset, in each case on arm’s length terms and for full market value where:	
 
 	(i)	no less than 85 per cent. of the consideration for the Disposal is payable to the Group in cash or Marketable Securities paid or received by a member of the Group at completion of the Disposal ( provided that  where a portion of that 85 per cent. is comprised of Marketable Securities, those Marketable Securities must be disposed of for cash to a person that is not a member of the Group within 90 days of completion);	
 
 	(ii)	if the aggregate consideration for the Disposal (when aggregated with the consideration for any related Disposals) is equal to 5 per cent. or more of the value of consolidated assets of the Group, the Issuer has delivered to the Administrative Agent a certificate signed by an Authorised Signatory confirming that, on a  pro forma  basis, assuming that the Disposal had been completed and the proceeds had been applied in accordance with Clause 13 ( Mandatory Prepayment ) of the 2009 Financing Agreement immediately prior to the first day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement, the Issuer would have been in compliance with the financial covenants in paragraphs (a) and (b) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement as at the last day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement; and	
 
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 	(iii)	the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(i)	of any asset compulsorily acquired by a governmental authority provided that the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(j)	of any receivables disposed of pursuant to a factoring or similar receivables financing arrangement that is otherwise permitted under the 2009 Financing Agreement (including, for the avoidance of doubt, the Banobras Facility);	
 
 	(k)	of any inventory disposed of pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(l)	of any plant or equipment disposed of pursuant to a sale and lease-back arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(m)	of any asset to which a member of the Group was contractually committed as at the date of the 2009 Financing Agreement, with all material terms of those disposals which relate to the disposal of assets with a value of at least $10,000,000 being described in Schedule 14  (Disposals)  of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such Disposal subsequent to the date of the 2009 Financing Agreement);	
 
 	(n)	of receivables disposed of pursuant to a Permitted Securitisation;	
 
 	(o)	of land or buildings arising as a result of lease or licence in the ordinary course of its trading;	
 
 	(p)	of any shares of the Issuer pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(q)	of shares, common equity securities in the Issuer or reference property in connection with the same to the extent that a member of the Group has an obligation to deliver such shares, common equity securities or reference property to any holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities or to any counterparty pursuant to the terms of any Permitted Put/Call Transaction;	
 
 	(r)	of assets and, if applicable, cash in exchange for other assets and, if applicable, cash, of equal or higher value provided that : (i) the cash	
 
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 	element of any such Disposal must not be more than 20 per cent. of the aggregate consideration for the Disposal; and (ii) the maximum aggregate market value of all assets disposed of in such transactions must not be more than $100,000,000 (or its equivalent in any other currencies) in any Financial Year; or	
 
 	(s)	otherwise approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors.	
“Permitted Financial Indebtedness” means Financial Indebtedness:
 
 	(a)	incurred or arising under the Finance Documents;	
 
 	(b)	that is Existing Financial Indebtedness;	
 
 	(c)	owed to a member of the Group;	
 
 	(d)	that constitutes a Permitted Securitisation;	
 
 	(e)	arising under Capital Leases, factoring arrangements, Inventory Financing arrangements or export credit facilities for the purchase of equipment ( provided that  any Security granted in relation to any such facility relates solely to equipment, the purchase of which was financed under such Facility) or pursuant to sale and lease-back transactions provided that  the maximum aggregate Financial Indebtedness of members of the Group under such transactions (excluding any Existing Financial Indebtedness) does not exceed $350,000,000 at any time;	
 
 	(f)	arising:	
 
 	(i)	pursuant to an issuance of bonds, notes or other debt securities, or of convertible or exchangeable securities by:	
 
 	(A)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that issued the relevant Existing Financial Indebtedness that is being refinanced or replaced (whether acting as co-issuers or otherwise but, for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued so as to be applied in repayment or prepayment of the Exposures of the	
 
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 	Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as co-issuers or otherwise, (and, for the avoidance of doubt, such securities may be issued with an original issue discount) on the capital markets in each case subscribed or paid for in full in cash on issue (unless such securities are exchanged on issue for other securities that constitute Existing Financial Indebtedness falling within paragraph (a) of the definition thereof on issue)  provided that  (other than any conversion into common equity securities of the Issuer) no principal repayments are scheduled (and no call options can be exercised) in respect thereof until after the Termination Date;	
 
 	(ii)	under a loan facility in respect of which the only borrowers are:	
 
 	(A)	in the case of loan facilities entered into to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that borrowed the relevant Existing Financial Indebtedness that is being refinanced or replaced, (whether acting as joint or multiple borrowers but for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of loan facilities entered into so as to refinance or replace the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as joint or multiple borrowers,	
provided that no principal repayments are scheduled (and no mandatory prepayment obligations arise save as a result of unlawfulness affecting a creditor in respect of such loan facility) in respect thereof until after the Termination Date,
and further provided that (1) the terms applicable to such issuance under paragraph (f)(i) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) taken as a whole are no more restrictive or onerous than the terms applicable to the Facilities, and the terms applicable to such incurrence under paragraph (f)(ii) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) are no more restrictive or onerous than the terms applicable to the Facilities; (2) the proceeds of such issuance or incurrence are applied (to the
 
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extent required) in accordance with Clause 13 (Mandatory prepayment) of the 2009 Financing Agreement; (3) if proceeds of such issuance or incurrence are, to the extent required under the 2009 Financing Agreement, being used to replace or refinance (x) Financial Indebtedness which shares in the Transaction Security or (y) the CEMEX España Euro Notes, such Financial Indebtedness issued or incurred shall be entitled to share in the Transaction Security in accordance with (and on the terms of) the Intercreditor Agreement,  provided that  in the case of Financial Indebtedness issued or incurred to replace or refinance the CEMEX España Euro Notes, such Financial Indebtedness shall only be entitled to share in the Transaction Security if, prior to the first replacement or refinancing of the CEMEX España Euro Notes, the Debt Reduction Satisfaction Date has occurred; and (4) for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) of the definition of Existing Financial Indebtedness need not satisfy the requirements of this paragraph (f);
 
 	(g)	that constitutes a Permitted Liquidity Facility;	
 
 	(h)	that becomes Financial Indebtedness solely as a result of any change in Applicable GAAP of the Issuer after the date of the 2009 Financing Agreement and that existed prior to the date of such change in Applicable GAAP of the Issuer (or that replaces, and is on substantially the same terms as, such Financial Indebtedness);	
 
 	(i)	of any person acquired by a member of the Group pursuant to an acquisition falling within paragraphs (d) or (f) of the definition of Permitted Acquisition  provided that : (i) such Financial Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the acquisition; and (ii) the aggregate amount of any such Financial Indebtedness of members of the Group does not exceed $100,000,000 at any time;	
 
 	(j)	under Treasury Transactions entered into in accordance with Clause 24.26 (Treasury Transactions) of the 2009 Financing Agreement;	
 
 	(k)	incurred pursuant to or in connection with any cash pooling or other cash management agreements in place with a bank or financial institution, but only to the extent of offsetting credit balances of the Issuer or its Subsidiaries pursuant to such cash pooling or other cash management arrangement;	
 
 	(l)	constituting Financial Indebtedness for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of trading;	
 
 	(m)	that constitutes a Permitted Joint Venture;	
 
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 	(n)	approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors; and	
 
 	(o)	that, when aggregated with the principal amount of any other Financial Indebtedness not falling within paragraphs (a) to (n) above, does not exceed $200,000,000 (or its equivalent in other currencies) in aggregate at any time.	
“Permitted Fundraising” means:
 
 	(a)	any issuance of equity securities by the Issuer paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and not redeemable on or prior to the Termination Date and where such issue does not lead to a Change of Control;	
 
 	(b)	any issuance of equity-linked securities issued by any member of the Group that are linked solely to, and result only in the issuance of, equity securities of the Issuer otherwise entitled to be issued under this definition (and that do not, for the avoidance of doubt, result in the issuance of any equity securities by such member of the Group) and that are paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and where such issue does not lead to a Change of Control ( provided that  such securities do not provide for the payment of interest in cash and are not redeemable on or prior to the Termination Date); and	
 
 	(c)	any incurrence of Financial Indebtedness falling within paragraph (f) of the definition of Permitted Financial Indebtedness.	
“Permitted Fundraising Proceeds” means the cash proceeds received by any member of the Group from a Permitted Fundraising other than Excluded Fundraising Proceeds after deducting:
 
 	(i)	any reasonable expenses which are incurred by the relevant member(s) of the Group with respect to that Permitted Fundraising owing to persons who are not members of the Group; and	
 
 	(ii)	any Tax incurred and required to be paid by the relevant member(s) of the Group with respect to that Permitted Fundraising (as reasonably determined by the relevant member(s) of the Group on the basis of rates existing at the time and taking account of any available credit, deduction or allowance).	
“Permitted Joint Venture” means any investment in any Joint Venture where:
 
 	(a)	such investment exists or a member of the Group is contractually committed to such investment at the date of the 2009 Financing Agreement and, if the value of the Group’s investment in such Joint Venture is $50,000,000 or greater (as shown in the Original Financial Statements of the Issuer) is detailed in Schedule 12 (Permitted Joint Ventures) of the 2009 Financing Agreement; or	
 
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 	(b)	such investment is made after the date of the 2009 Financing Agreement and:	
 
 	(i)	either the investment has been consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors or the Joint Venture is engaged in a business substantially the same as that carried on by the Group; and	
 
 	(ii)	in any Financial Year of the Issuer, the aggregate of:	
 
 	(1)	all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;	
 
 	(2)	the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and	
 
 	(3)	the market value of any assets transferred by any member of the Group to any such Joint Venture,	
minus
 
 	(4)	from and including 1 January 2010, an amount up to, but not exceeding, $100,000,000 (or its equivalent in other currencies) in any Financial Year that represents all cash amounts received by any member of the Group (i) relating to dividends, repayment of loans or distributions of any other nature in respect of any such Joint Ventures in that Financial Year and (ii) as a result of or in relation to any disposals of shares, interests or participations, divestments, capital reductions or any similar decreases of interest in any such Joint Ventures in that Financial Year, does not exceed $100,000,000 (or its equivalent in other currencies) or such greater amount as the Administrative Agent (acting on the instructions of the Majority Participating Creditors) may agree (such amount being the “Joint Venture Investment”); and	
 
 	(iii)	the Issuer has (by written notice to the Administrative Agent prior to the end of the Financial Year in which the investment is made) designated the Joint Venture Investment as counting against:	
 
 	(1)	paragraph (k) of the definition of Permitted Acquisition; or	
 
 	(2)	the maximum amount of Capital Expenditure permitted in that Financial Year under paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement.	
 
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“Permitted Liquidity Facilities” means a loan facility or facilities made available to one or more members of the Group by one or more Participating Creditors (or their respective Affiliates)  provided that  the aggregate principal amount of utilised and unutilised commitments under such facilities must not exceed $1,000,000,000 (or its equivalent in any other currency) at any time.
“Permitted Put/Call Transaction” means any call option, call spread, capped call transaction, put option, put spread, capped put transaction or any combination of the foregoing and/or any other Treasury Transaction or transactions having a similar effect to any of the foregoing, in each case entered into, sold or purchased not for speculative purposes but for the purposes of managing specific risks or exposures associated with any issuance of Relevant Convertible Securities/Exchangeable Obligations.
“Permitted Securitisations” means a transaction or series of related transactions providing for the securitisation of receivables and related assets by the Issuer or its Subsidiaries, including a sale at a discount,  provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not a member of the Group in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organised in Mexico, a true sale), and not merely a pledge, under the laws and regulations of the jurisdiction in which such originator is organised; and (ii) except for customary representations, warranties, covenants and indemnities, such sale, transfer or other securitisation is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables.
“Permitted Security” means:
 
 	(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 Applicable GAAP of the Issuer shall have been made;	
 
 	(B)	Security granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements in place with a bank or financial institution falling within paragraph (k) of the definition of Permitted Financial Indebtedness);	
 
 	(C)	statutory liens of landlords and liens of carriers, warehousemen, mechanics and materialment incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or other appropriate provision, if any, as shall be required by Applicable GAAP of the Issuer shall have been made;	
 
 	(D)	liens incurred or deposits made in the ordinary course of business in connection with (1) workers’ compensation, unemployment insurance and	
 
E-27

 	other types of social security, or (2) other insurance maintained by the Group in accordance with Clause 24.9 ( Insurance ) of the 2009 Financing Agreement;	
 
 	(E)	any attachment or judgment lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(F)	Security and Quasi-Security existing on the date of the 2009 Financing Agreement as described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement (or any replacement of Security or Quasi-Security in accordance with paragraph 3 of Schedule 15 ( Hedging Parameters ) of the 2009 Financing Agreement or any equivalent Security or Quasi-Security for Existing Financial Indebtedness that is a refinancing or replacement of Existing Financial Indebtedness)  provided that  the principal amount secured thereby is not increased (save that principal amounts secured by Security or Quasi-Security in respect of:	
 
 	(1)	Treasury Transactions where there are fluctuations in the mark-to-market exposures of those Treasury Transactions;	
 
 	(2)	Existing Financial Indebtedness under paragraph (a) of the definition where principal may increase by virtue of capitalisation of interest; and,	
 
 	(3)	the Banobras Facility, where further drawings may be made provided that the maximum amount outstanding under such facility does not exceed Mex$5,000,000,000 at any time,	
may be increased by the amount of such fluctuations or capitalisations, as the case may be);
 
 	(G)	any Security or Quasi-Security permitted by the Administrative Agent, acting on the instructions of the Majority Participating Creditors;	
 
 	(H)	any Security created or deemed created pursuant to a Permitted Securitisation;	
 
 	(I)	any Security granted by any member of the Group to secure Financial Indebtedness under a Permitted Liquidity Facility  provided that : (1) such Security is not granted in respect of assets that are the subject of the Transaction Security; and (2) the maximum aggregate amount of the Financial Indebtedness secured by such Security does not exceed $500,000,000 at any time;	
 
 	(J)	any Security granted by the Issuer or any member of the Group incorporated in Mexico in favour of a Mexican development bank (sociedad  nacional de	
 
E-28

 	crédito) controlled by the government of Mexico (including Banco Nacional de Comercio Exterior, S.N.C., and Banco Nacional de Obras y Sevicios Publicos, S.N.C.) securing indebtedness of the members of the Group in an aggregate additional amount of such indebtedness not exceeding $250,000,000 (or its equivalent in any other currency);	
 
 	(K)	any Security or Quasi-Security granted in connection with any Treasury Transaction, excluding any Treasury Transaction described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement, that constitutes Permitted Financial Indebtedness  provided that  the aggregate value of the assets that are the subject of such Security or Quasi-Security does not exceed $200,000,000 (or its equivalent in other currencies) at any time;	
 
 	(L)	Security or Quasi-Security granted or arising over receivables, inventory, plant or equipment that are the subject of an arrangement falling within paragraph (e) of the definition of Permitted Financial Indebtedness;	
 
 	(M)	the Transaction Security including, for the avoidance of doubt, any sharing in the Transaction Security referred to in paragraph (f) of the definition of Permitted Financial Indebtedness;	
 
 	(N)	any Quasi-Security that is created or deemed created on shares of the Issuer under paragraph (q) of the definition of Permitted Disposals by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Quasi-Security is customary for such transaction;	
 
 	(O)	in addition to the Security and Quasi-Security permitted by the foregoing paragraphs (A) to (N), Security or Quasi-Security securing indebtedness of the Issuer and its Subsidiaries (taken as a whole) not in excess of $500,000,000.	
“Permitted Share Issue” means:
 
 	(a)	a Permitted Fundraising falling within paragraphs (a) or (b) of the definition thereof;	
 
 	(b)	an issue of shares by a member of the Group which is a Subsidiary of the Issuer to another member of the Group or the Issuer (and, where the member of the Group has a minority shareholder, to that minority shareholder on a pro rata basis) where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms;	
 
 	(c)	an issue of shares by the Issuer to comply with an obligation in respect of any Executive Compensation Plan; or	
 
E-29

 	(d)	an issue of common equity securities of the Issuer either (i) by the Issuer or (ii) to any member of the Group where the Issuer or that member of the Group has an obligation to deliver such shares to a counterparty pursuant to the terms of a Permitted Put/Call Transaction or an obligation to deliver such shares to the holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities.	
“Promissory Notes” means the promissory notes described in Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.
“Quasi Security” means an arrangement or transaction in which the Issuer or any Subsidiary:
 
 	(i)	sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;	
 
 	(ii)	sells, transfers or otherwise disposes of any of its receivables on recourse terms;	
 
 	(iii)	enters into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or	
 
 	(iv)	enters into any other preferential arrangement having a similar effect,	
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Properties.
“Reference Period” means a period of four consecutive Financial Quarters.
“Relevant Convertible/Exchangeable Obligations” means: (a) any Financial Indebtedness incurred by any person the terms of which provide that satisfaction of the principal amount owing under such Financial Indebtedness (whether on or prior to its maturity and whether as a result of bankruptcy, liquidation or other default by such person or otherwise) shall occur solely by delivery of shares or common equity securities in the Issuer; and (b) any Financial Indebtedness under any Subordinated Optional Convertible Securities.
“Relevant Existing Financial Indebtedness” means any Existing Financial Indebtedness set out in:
 
E-30

 	(i)	paragraph (a) of the definition of Existing Financial Indebtedness to the extent that it relates to Part I.C (Mexican Public Debt Instruments ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement; and/or	
 
 	(ii)	paragraph (b) of the definition of Existing Financial Indebtedness to the extent it relates to Part II.A (Short Term Certificados Bursátiles ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles that replace or refinance such Existing Financial Indebtedness.	
“Relevant Prepayment Period” means the period commencing on the date of receipt of the proceeds of a Permitted Fundraising by a member of the Group and ending on the later of:
 
 	(a)	the date falling 364 days thereafter; and	
 
 	(b)	the 2012 CB Maturity Date.	
“Resignation Letter” means a document substantially in the form set out in Part I of Schedule 11 (Form of Resignation Letter ) of the 2009 Financing Agreement.
“Responsible Officer” means the Chief Financial Officer and/or Chief Controlling Officer of the Issuer or a person holding equivalent status (or higher).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto from time to time.
“SEC” means the U.S. Securities Exchange Commission and any successor thereto.
“Secured Parties” means each Finance Party from time to time to the 2009 Financing Agreement and any Receiver or Delegate.
“Security “ means a mortgage, charge, pledge, lien, security trust or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Security Agent” means Wilmington Trust (London) Limited as security agent of the Secured Parties.
“Security Providers” means the Original Security Providers and any Additional Security Provider other than any Original Security Provider or Additional Security Provider which has ceased to be a Security Provider pursuant to Clause 28.6 ( Resignation of a Security Provider ) of the 2009 Financing Agreement and has not subsequently become an Additional Security Provider pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement, and “ Security Provider ” means any of them.
“Short-Term Certificados Bursatiles” means any securities with a term of not more than 12 months issued by the Issuer in the Mexican capital markets with the approval of the Mexican National Banking and Securities Banking and Securities Commission and listed on the Mexican Stock Exchange.
 
E-31

“Spanish GAAP” means the Spanish General Accounting Plan (Plan general Contable) approved by Royal Decree 1514/2007 as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 ( Financial Statements ) of the 2009 Financing Agreement.
“Subordinated Optional Convertible Securities” means any Financial Indebtedness incurred by any member of the Group meeting the requirements of paragraph (f)(i) of the definition of Permitted Financial Indebtedness (including that no principal repayments are scheduled (and no call options can be exercised) until after the Termination Date) (which may, for the avoidance of doubt, include a fundraising the proceeds of which are applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement)) the terms of which provide that such indebtedness is capable of optional conversion into equity securities of the Issuer and that repayment of principal and accrued but unpaid interest thereon is subordinated (under terms customary for an issuance of such Financial Indebtedness) to all senior Financial Indebtedness of the Issuer (including, but not limited to, all Exposures of Participating Creditors) except for: (i) indebtedness that states, or is issued under a deed, indenture, agreement or other instrument that states, that it is subordinated to or ranks equally with any Subordinated Optional Convertible Securities and (ii) indebtedness between or among members of the Group.
“Subsidiary” means in relation to any company or corporation, a company or corporation:
 
 	(a)	which is controlled, directly or indirectly, by the first mentioned company or corporation;	
 
 	(b)	more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or	
 
 	(c)	which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,	
and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
“Syndicated Bank Facilities” means the facilities described in Part IA of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on 19 November 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.
 
E-32

“Tax” means any tax, levy, impost, duty or other charge, deduction or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Termination Date” means 14 February 2014.
“Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.
“Transaction Security Documents” means each of the documents listed as being a Transaction Security Document in paragraph 2(e) of Part I of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement and any document required to be delivered to the Administrative Agent under paragraph 3(d) of Part II of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents (and any other Debt Documents).
“Treasury Transactions” means any derivatives transaction (i) that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), (ii) that is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets and that is a forward, swap, future, option or other derivative (including one or more spot transactions that are equivalent to any of the foregoing) on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made or (iii) that is a combination of these transactions, it being understood that any Executive Compensation Plan permitted by the 2009 Financing Agreement is not a Treasury Transaction.
“USPP Note” means a note issued under the USPP Note Agreement.
“USPP Note Agreement” means the consolidated, amended and restated note purchase agreement described in Part II of Schedule 1 ( Original Participating Creditors ) of the 2009 Financing Agreement.
“USPP Note Guarantee” means the consolidated, amended and restated note guarantee granted in favour of the USPP Noteholders.
“USPP Noteholders” means the holders from time to time of the notes issued pursuant to the USPP Note Agreement.
 
E-33

Exhibit 4.40.1
 
SUPPLEMENTAL INDENTURE NO. 1
 
SUPPLEMENTAL INDENTURE No. 1, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of August 12, 2013 (the “ Indenture ”), providing for the issuance of the Issuer’s 6.500% Senior Secured Notes due 2019 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 1;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 1 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 1.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 1. This Supplemental Indenture No. 1 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 1, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 1 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 1 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 1.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 1.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 1, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 1 to be duly executed as of the date first written above.

 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (6.500% Senior Secured Notes due 2019)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
 
[Signature page to Supplemental Indenture No. 1 (6.500% Senior Secured Notes due 2019)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name: 	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (6.500% Senior Secured Notes due 2019)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name: 	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

[Signature page to Supplemental Indenture No. 1 (6.500% Senior Secured Notes due 2019)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX España, S.A.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Asia B.V.	
 	5.	 	CEMEX Concretos, S.A. de C.V.	
 	6.	 	CEMEX Corp.	
 	7.	 	CEMEX Egyptian Investments B.V.	
 	8.	 	CEMEX France Gestion (S.A.S.)	
 	9.	 	CEMEX Research Group AG	
 	10.	 	CEMEX Shipping B.V.	
 	11.	 	CEMEX UK	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	Egyptian Investments II B.V.	

 

Exhibit 4.41

 	  	 	 	RAFAEL MONJO CARRIÓ	  	 	 	
 	  	 	 	Notary Public	  	 	 	 	
 	  	 	 	C/ Monte Esquinza, 6	  	 	 	 	 	
 	  	 	 	28010 MADRID	  	 	 	 	 	 	
 	  	 	 	Tel.: 91 418 32 80 Fax: 91 319 90 46	  	 	 	 	 	 	 	

ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A. GRANTED BY THE ENTITIES “THE BANK OF NEW YORK MELLON” and “CEMEX ESPAÑA, S.A.”
NUMBER ONE THOUSAND SIX HUNDRED AND THIRTY
In Madrid, at my office on the twelfth of August of two thousand and thirteen.
Before me, RAFAEL MONJO CARRIO, Notary Public of Madrid and its Bar Association
APPEAR
Party of the first part. – MRS. MARTA GARCÍA LÓPEZ, of legal age, Spanish nationality, domiciled for these purposes in Madrid, calle José Abascal, number 45; with National Identification Card number 02634855-K.
Party of the second part. – MR. ÁNGEL MÉNDEZ MOLINA, of legal age, domiciled for these purposes in Madrid, calle Hernández de Tejada, number 1; with National Identification Card No. 25713441-Q.

ACTING:
The first, in the name and representation of THE BANK OF NEW YORK MELLON (hereinafter, the “Bank”), entity constituted in accordance with the laws of the State of New York (United States of America), with its corporate domicile at One Wall Street, New York, N.Y. 10286, United States of America, which in turn acts in representation and to the benefit of the holders of Senior Secured Notes for an added principal maximum amount of  one billion U.S. dollars,  at an interest rate of  6.500%, with maturity in 2019 , notwithstanding the cases of early repayment that have been foreseen, issued under the bond issuance agreement (Indenture) governed by the laws of the State of New York (United States of America), signed on August 12, 2013 by, among others,  CEMEX S.A.B. de C.V.,  a variable stock corporation constituted under the laws of Mexico, as issuer, and The Bank of New York Mellon, as Trustee (hereinafter, together with its subsequent modifications or novations, the “Bonds Issuance”).
She makes use of the power of attorney in effect, as affirmed, in her favor, conferred through the document granted before the Notary

 	 	 	

Public of New York, Mr. Danny Lee, on the twelfth of August of two thousand and thirteen, a photocopy of which has been shown to me and the original, duly stamped according to the La Hague Convention of October 5, 1961, I will attach hereto, by means of written substantiation, when it is submitted to me.
The second party, in name and representation of the entity CEMEX ESPAÑA, S.A., entity governed under the laws of Spain (formerly Compañía Valenciana de Cementos Portland, S.A.), and with its corporate domicile in Madrid, calle Hernández de Tejada, number 1, the purpose of which, among others, is the manufacture, production, marketing and distribution of all kinds of sacks and containers or similar articles, of paper or any other material, for the packaging of cement, etc.
It was constituted for an indefinite duration in the document authorized by the Notary Public at the time in Valencia, Mr. Juan Bautista Roch Contelles,

on April 30, 1917, adapted to current legislation through the document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert, on July 13, 1990; with said constitution REGISTERED in the Commercial Registry of Valencia, under volume 122, book 28 of companies, section 3 of corporations, page 354, registry 1. The adaptation is registered in the aforementioned Registry, under volume 2854, book 10, general section, page V2533, registry 165. The bylaws of the company were also amended through another public document authorized by the Notary Public of Madrid, Mr. Antonio Francés y de Mateo on August 12, 1993, with number 6796 of his notarial records, under record 200.
The above indicated current domicile was moved, through document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert, on June 29, 1995, with number 1489 of his notarial records, and registered in the Commercial Registry of Madrid, under volume 9743 and 9744, section 8, of the Book of Companies, folio 1 and 166, page number M-156542 records 1 and 2.

 	 	 	

Its name was changed to its current name through the agreement taken by the General Shareholders Meeting of the Company, in its meeting held on the twenty-fourth of June of two thousand and two, recorded as a document of public record, before me on the same day, under number 662 of my records, registry number 122.
Its Tax Identification number is: A-46.004.214.
He makes use of the powers in effect, as affirmed, in his power, conferred by agreement taken by the Administrative Board of the Company, at its meeting held on the twenty-fifth of July of two thousand and thirteen, recorded as a document of public record, before me, on the twenty-sixth of July of two thousand and thirteen, under number 1496 of my records, as accredited to me with an authorized copy of said document, which I have before me.
For the purposes established in article 98 of Law 24/2001 and in accordance with the Resolution

of the General Directorate for Registries and Notary Affairs of April 12, 2002, I certify that, in my opinion, I consider that the representative powers accredited are sufficient for the execution of this document under the terms indicated below.
BENEFICIAL OWNERSHIP. – I, the Notary Public, expressly confirm that I have complied with the obligation of identifying the beneficial owner as imposed by Law 10/2010 of April 28, the result of which is recorded in a document authorized before me, on the eleventh of November of two thousand and ten, under number 2387 of my records, which has been modified since then as attested by the representative of the Company.
The parties appearing before me have, in my opinion, as they appear, the legal capacity and legitimate interest necessary to grant this  ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A.  and, for such purpose, in their capacity, and for all applicable legal purposes,
THEY HEREBY DECLARE
I. That, by virtue of the policy agreement granted before me on November 8, 2012, registered with number 3530 in Section A of the Registry Book

 	 	 	

(hereinafter the “Pledge Policy”), CEMEX, S.A.B. de C.V. and New Sunward Holding B.V. constituted certain real pledge rights (hereinafter the “ Pledges ”) over the shares of the company CEMEX España, S.A. in its name.
II. That, in accordance with the Creditors Relation Agreement (as this is defined in the Pledge Policy), the creditors of the CEMEX group, in virtue of the issuance of bonds such as the Bonds Issuance will have the consideration of  Additional Notes Creditors  and, therefore, of  Secured Parties  according to the terms established in the Creditors Relation Agreement and in the Pledge Policy, and may obtain the benefit of the Pledges through their adhesion to the Pledge Policy according to the provisions of Clause 16 of the same.

IV. That, in accordance with the provisions of Clause 16 of the Pledge Policy, the Secured Parties in whose benefit the Relationship Manager acted, among which include the Bank, as  trustee  of the holders of bonds of the Bonds Issuance, may adhere to the Pledge Policy and ratify the content of the same, accepting the Pledges constituted in their favor as guarantee of the corresponding Secured Obligations, through appearance before me.
Said adhesions will be carried out through the granting of the corresponding adhesion deed or policy, all without the need for a new consent from the pledgors, for having provided said consent previously in the Creditor Relation Agreement and in the Pledge Policy itself.
V. That the Bank expressly declares that the adhesion referred to in the Stipulations of this Document is formalized as a mere instrument of execution of the rights attributed to the Bank in the Pledge Policy, from which it is derived, so

 	 	 	

that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
VI. That by virtue of the foregoing, the Bank wishes to grant this Adhesion Deed (hereinafter the “Deed”) in accordance with the following
STIPULATIONS
ONE. – ADHESION TO THE PLEDGE POLICY.
The Bank, through this Deed, adheres to, ratifies and approves the Pledge Policy to the fullest extent, the entire content of which it declares to know, therefore giving such granting full value and legal efficacy and accepting that the payment obligations resulting from the Bonds Issuance dated the twelfth of August of two thousand thirteen are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.

The Bank REQUIRES from me, the Notary Public, to NOTIFY this adhesion to WILMINGTON TRUST (LONDON) LIMITED , domiciled for these purposes on the Third Floor, 1 King’s Arms Yard, London, United Kingdom, EC2R 7AF (attention Sajada Afzal), in her capacity as Relationship Manager and I, the Notary Public, accept said requirement.
CEMEX España, S.A., appears herein for the purposes of acknowledging itself as notified of this adhesion.
TWO. – APPLICABLE LAW AND JURISDICTION.
2.1 This Deed is subject to Spanish common law.
2.2 The Parties submit themselves expressly to the jurisdiction and competence of the Courts and Tribunals of Madrid for all matters that may result from the validity, interpretation, fulfillment and execution of this Deed.
HANDLING OF DATA. – The appearing parties accept the incorporation of their data and the copy of identification documents in the files of the Notary Public in order to carry out the functions inherent to the notarial activity and for the communication of data established in the Public Administration

 	 	 	

Law and, as applicable, for the Notary Public who follows the current one. They may exercise their rights to access, rectify, cancel and oppose at the authorizing Notary’s office.
It is thus stated and executed.
And I, the Notary Public, ATTEST:
a. – To have identified the appearing parties through their identification documents, indicated in the appearance clause, which have been shown to me.
b. – That the appearing parties, in my opinion, have the capacity and legal standing for the granting hereof.
c. – That the granting hereof by the appearing parties is legal, duly informed and made willingly.
d. – That I have read this public instrument to the grantors thereof, having previously advised them of their right to read it for themselves,

which they have done, and they have stated that they have been duly made aware of the entire content of the same, and they provide their consent, all in accordance with article 193 of the Notarial Regulations.
e. – That this public instrument is executed in six notarized pages, series BF numbers: 0954972 and the five following numbers in correlated order, I, the Notary Public, attest.
The signatures of the appearing parties follow.- Signed RAFAEL MONJO CARRIÓ Signed. Notary Seal.
CERTIFICATE. – To record that on the thirteenth of August of two thousand and thirteen, I left filed at the Post Office Branch, located at office 2825494, E.O MINISTRY OF PUBLIC ADMINISTRATIONS, as a Certificate and notification of receipt, the non-certified copy of this deed, and that the official in charge of the service has given to me the receipt which bears the sending number RR 26804064 9ES.
All of which I attest and that this certificate is issued after the deed on which it is based, on this sheet of notarized paper, of the BN series. In Madrid on the thirteenth of August of two thousand and thirteen.

 	 	 	

Signed RAFAEL MONJO CARRIÓ. Signed. Notary Seal.
CERTIFICATE. – I, the Notary Public, issue this certificate to record that on today’s date, the sixteenth of August of two thousand and thirteen, I have received a copy of the power of attorney granted by the entity THE BANK OF NEW YORK MELLON, before the Notary Public of New York, Mr. Danny Lee, on the twelfth of August of two thousand and thirteen, duly legalized with the La Hague apostille, and I, the Notary Public, consider that the representative of the entity has sufficient powers to formalize the deed which is the object hereof. I leave a copy of said power incorporated hereto, forming an integral part of the same.
And with nothing further to record, I issue this document over this sole sheet of notarized paper and I, the Notary Public, attest.
Signed RAFAEL MONJO CARRIÓ. Signed. Notary Seal.

Exhibit 4.42
CEMEX, S.A.B. de C.V.
THE NOTE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
7.250% SENIOR SECURED NOTES DUE 2021
INDENTURE
Dated as of October 2, 2013

TABLE OF CONTENTS

 	 	 	    	 	  	Page	 	
 	 	
ARTICLE I        DEFINITIONS AND INCORPORATION BY REFERENCE	  	 	1	  	
 	 	 	 	
 	 	Section 1.1	    	Definitions	  	 	1	  	
 	 	Section 1.2	    	[Reserved]	  	 	37	  	
 	 	Section 1.3	    	Rules of Construction	  	 	38	  	
 	 	
ARTICLE II        THE NOTES	  	 	38	  	
 	 	 	 	
 	 	Section 2.1	    	Form and Dating	  	 	38	  	
 	 	Section 2.2	    	Execution and Authentication	  	 	39	  	
 	 	Section 2.3	    	Registrar, Paying Agent and Transfer Agent	  	 	40	  	
 	 	Section 2.4	    	Paying Agent to Hold Money in Trust	  	 	40	  	
 	 	Section 2.5	    	Holder Lists	  	 	41	  	
 	 	Section 2.6	    	CUSIP Numbers	  	 	41	  	
 	 	Section 2.7	    	Global Note Provisions	  	 	41	  	
 	 	Section 2.8	    	Legends	  	 	43	  	
 	 	Section 2.9	    	Transfer and Exchange	  	 	43	  	
 	 	Section 2.10	    	Mutilated, Destroyed, Lost or Stolen Notes	  	 	49	  	
 	 	Section 2.11	    	Temporary Notes	  	 	49	  	
 	 	Section 2.12	    	Cancellation	  	 	50	  	
 	 	Section 2.13	    	Defaulted Interest	  	 	50	  	
 	 	Section 2.14	    	Additional Notes	  	 	51	  	
 	 	
ARTICLE III      COVENANTS	  	 	52	  	
 	 	 	 	
 	 	Section 3.1	    	Payment of Notes	  	 	52	  	
 	 	Section 3.2	    	Maintenance of Office or Agency	  	 	52	  	
 	 	Section 3.3	    	Corporate Existence	  	 	52	  	
 	 	Section 3.4	    	Payment of Taxes and Other Claims	  	 	53	  	
 	 	Section 3.5	    	Compliance Certificate	  	 	53	  	
 	 	Section 3.6	    	Further Instruments and Acts	  	 	53	  	
 	 	Section 3.7	    	Waiver of Stay, Extension or Usury Laws	  	 	53	  	
 	 	Section 3.8	    	Change of Control	  	 	54	  	
 	 	Section 3.9	    	Limitation on Incurrence of Additional Indebtedness	  	 	55	  	
 	 	Section 3.10	    	[Reserved]	  	 	60	  	
 	 	Section 3.11	    	Limitation on Restricted Payments	  	 	60	  	
 	 	Section 3.12	    	Limitation on Asset Sales	  	 	64	  	
 	 	Section 3.13	    	Limitation on the Ownership of Capital Stock of Restricted Subsidiaries	  	 	68	  	
 	 	Section 3.14	    	Limitation on Designation of Unrestricted Subsidiaries	  	 	69	  	
 	 	Section 3.15	    	Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries	  	 	70	  	
 	 	Section 3.16	    	Limitation on Layered Indebtedness	  	 	72	  	
 
i

TABLE OF CONTENTS
(continued)

 	 	 	    	 	  	Page	 	
 	 	 	 	
 	 	Section 3.17	    	Limitation on Liens	  	 	72	  	
 	 	Section 3.18	    	Limitation on Transactions with Affiliates	  	 	73	  	
 	 	Section 3.19	    	Conduct of Business	  	 	74	  	
 	 	Section 3.20	    	Reports to Holders	  	 	74	  	
 	 	Section 3.21	    	Payment of Additional Amounts	  	 	75	  	
 	 	Section 3.22	    	Suspension of Covenants	  	 	77	  	
 	 	
ARTICLE IV      SUCCESSOR ISSUER	  	 	79	  	
 	 	 	 	
 	 	Section 4.1	    	Merger, Consolidation and Sale of Assets	  	 	79	  	
 	 	
ARTICLE V       OPTIONAL REDEMPTION OF NOTES	  	 	82	  	
 	 	 	 	
 	 	Section 5.1	    	Optional Redemption	  	 	82	  	
 	 	Section 5.2	    	[Reserved]	  	 	82	  	
 	 	Section 5.3	    	Notices to Trustee	  	 	82	  	
 	 	Section 5.4	    	Notice of Redemption	  	 	83	  	
 	 	Section 5.5	    	Selection of Notes to Be Redeemed in Part	  	 	84	  	
 	 	Section 5.6	    	Deposit of Redemption Price	  	 	84	  	
 	 	Section 5.7	    	Notes Payable on Redemption Date	  	 	84	  	
 	 	Section 5.8	    	Unredeemed Portions of Partially Redeemed Note	  	 	85	  	
 	 	
ARTICLE VI      DEFAULTS AND REMEDIES	  	 	85	  	
 	 	 	 	
 	 	Section 6.1	    	Events of Default	  	 	85	  	
 	 	Section 6.2	    	Acceleration	  	 	86	  	
 	 	Section 6.3	    	Other Remedies	  	 	87	  	
 	 	Section 6.4	    	Waiver of Past Defaults	  	 	87	  	
 	 	Section 6.5	    	Control by Majority	  	 	87	  	
 	 	Section 6.6	    	Limitation on Suits	  	 	87	  	
 	 	Section 6.7	    	Rights of Holders to Receive Payment	  	 	88	  	
 	 	Section 6.8	    	Collection Suit by Trustee	  	 	88	  	
 	 	Section 6.9	    	Trustee May File Proofs of Claim, etc.	  	 	88	  	
 	 	Section 6.10	    	Priorities	  	 	89	  	
 	 	Section 6.11	    	Undertaking for Costs	  	 	89	  	
 	 	
ARTICLE VII     TRUSTEE	  	 	89	  	
 	 	 	 	
 	 	Section 7.1	    	Duties of Trustee	  	 	89	  	
 	 	Section 7.2	    	Rights of Trustee	  	 	91	  	
 	 	Section 7.3	    	Individual Rights of Trustee	  	 	92	  	
 	 	Section 7.4	    	Trustee’s Disclaimer	  	 	92	  	
 	 	Section 7.5	    	Notice of Defaults	  	 	92	  	
 	 	Section 7.6	    	[Reserved]	  	 	93	  	
 
ii

TABLE OF CONTENTS
(continued)

 	 	 	    	 	  	Page	 	
 	 	 	 	
 	 	Section 7.7	    	Compensation and Indemnity	  	 	93	  	
 	 	Section 7.8	    	Replacement of Trustee	  	 	94	  	
 	 	Section 7.9	    	Successor Trustee by Merger	  	 	94	  	
 	 	Section 7.10	    	Eligibility; Disqualification	  	 	95	  	
 	 	Section 7.11	    	[Reserved]	  	 	95	  	
 	 	Section 7.12	    	[Reserved]	  	 	95	  	
 	 	Section 7.13	    	Authorization and Instruction of the Trustee With Respect to the Collateral	  	 	95	  	
 	 	
ARTICLE VIII     DEFEASANCE; DISCHARGE OF INDENTURE	  	 	96	  	
 	 	 	 	
 	 	Section 8.1	    	Legal Defeasance and Covenant Defeasance	  	 	96	  	
 	 	Section 8.2	    	Conditions to Defeasance	  	 	97	  	
 	 	Section 8.3	    	Application of Trust Money	  	 	98	  	
 	 	Section 8.4	    	Repayment to Issuer	  	 	98	  	
 	 	Section 8.5	    	Indemnity for U.S. Government Obligations	  	 	99	  	
 	 	Section 8.6	    	Reinstatement	  	 	99	  	
 	 	Section 8.7	    	Satisfaction and Discharge	  	 	99	  	
 	 	
ARTICLE IX      AMENDMENTS	  	 	100	  	
 	 	 	 	
 	 	Section 9.1	    	Without Consent of Holders	  	 	100	  	
 	 	Section 9.2	    	With Consent of Holders	  	 	101	  	
 	 	Section 9.3	    	[Reserved]	  	 	102	  	
 	 	Section 9.4	    	Revocation and Effect of Consents and Waivers	  	 	102	  	
 	 	Section 9.5	    	Notation on or Exchange of Notes	  	 	103	  	
 	 	Section 9.6	    	Trustee to Sign Amendments and Supplements	  	 	103	  	
 	 	
ARTICLE X        NOTE GUARANTEES	  	 	103	  	
 	 	 	 	
 	 	Section 10.1	    	Note Guarantees	  	 	103	  	
 	 	Section 10.2	    	Limitation on Liability; Termination, Release and Discharge	  	 	107	  	
 	 	Section 10.3	    	Right of Contribution	  	 	107	  	
 	 	Section 10.4	    	No Subrogation	  	 	108	  	
 	 	Section 10.5	    	French Guarantee Limitation	  	 	108	  	
 	 	Section 10.6	    	Swiss Guarantee Limitation	  	 	109	  	
 	 	
ARTICLE XI      COLLATERAL	  	 	111	  	
 	 	 	 	
 	 	Section 11.1	    	The Collateral	  	 	111	  	
 	 	Section 11.2	    	Release of the Collateral	  	 	111	  	
 
iii

TABLE OF CONTENTS
(continued)

 	 	 	    	 	  	Page	 	
 	 	
ARTICLE XII      MISCELLANEOUS	  	 	112	  	
 	 	 	 	
 	 	Section 12.1	    	Notices	  	 	112	  	
 	 	Section 12.2	    	Communication by Holders with Other Holders	  	 	113	  	
 	 	Section 12.3	    	Certificate and Opinion as to Conditions Precedent	  	 	113	  	
 	 	Section 12.4	    	Statements Required in Certificate or Opinion	  	 	113	  	
 	 	Section 12.5	    	Rules by Trustee, Paying Agent, Transfer Agent and Registrar	  	 	114	  	
 	 	Section 12.6	    	Legal Holidays	  	 	114	  	
 	 	Section 12.7	    	Governing Law, etc.	  	 	114	  	
 	 	Section 12.8	    	[Reserved]	  	 	116	  	
 	 	Section 12.9	    	No Recourse Against Others	  	 	116	  	
 	 	Section 12.10	    	Successors	  	 	116	  	
 	 	Section 12.11	    	Duplicate and Counterpart Originals	  	 	116	  	
 	 	Section 12.12	    	Severability	  	 	116	  	
 	 	Section 12.13	    	[Reserved]	  	 	116	  	
 	 	Section 12.14	    	Currency Indemnity	  	 	116	  	
 	 	Section 12.15	    	Table of Contents; Headings	  	 	117	  	
 	 	Section 12.16	    	USA PATRIOT Act	  	 	117	  	
 
iv

 	 	 	
 	 	
EXHIBIT A	  	FORM OF NOTE	
 	 	
EXHIBIT B	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	
 	 	
EXHIBIT C	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	
 	 	
EXHIBIT D	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	
 	 	
EXHIBIT E	  	“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS	
 
v

INDENTURE, dated as of October 2, 2013, among CEMEX, S.A.B. de C.V., a sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the guarantors listed on Schedule I  hereto, as guarantors of the Issuer’s obligations under this Indenture and the Notes, and The Bank of New York Mellon, as trustee (the “ Trustee ”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuer’s 7.250% Senior Secured Notes due 2021 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2009 Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Issuer or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness will be deemed to have been Incurred at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Issuer or a Restricted Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
“Acquired Subsidiary” means any Subsidiary acquired by the Issuer or any other Subsidiary after the Issue Date in an Acquisition, and any Subsidiaries of such Acquired Subsidiary on the date of such Acquisition.
“Acquiring Subsidiary” means any Subsidiary formed by the Issuer or one of its Subsidiaries solely for the purpose of participating as the acquiring party in any Acquisition, and any Subsidiaries of such Acquiring Subsidiary acquired in such Acquisition.
“Acquisition” means any merger, consolidation, acquisition or lease of assets, acquisition of securities or business combination or acquisition, or any two or more of such transactions, if, upon the completion of such transaction or transactions, the Issuer or any Restricted Subsidiary thereof has acquired an interest in any Person who would be deemed to be a Restricted Subsidiary under this Indenture and was not a Restricted Subsidiary prior thereto.
“Additional Amounts” has the meaning assigned to it in Section 3.21(b).
“Additional Note Certificate” has the meaning assigned to it in Section 2.14(b).

“Additional Note Guarantors” means New Sunward Holding B.V., CEMEX Concretos, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
“Additional Note Supplemental Indenture” means a supplement to this Indenture duly executed and delivered by the Issuer, each Note Guarantor and the Trustee pursuant to  Article IX  providing for the issuance of Additional Notes.
“Additional Notes” has the meaning assigned to it in Section 2.14(a).
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Affiliate Transaction” has the meaning assigned to it in Section 3.18(a).
“Agent Members” has the meaning assigned to it in Section 2.7(b).
“Agents” means, collectively, the Registrar, any co-Registrar, the Paying Agents, the Transfer Agent and any other agent appointed by the Issuer hereunder.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in a Global Note, the rules and procedures of DTC, Euroclear and Clearstream, as the case may be, that apply to such transfer or exchange, including the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream.
“Asset Sale” means any direct or indirect sale, disposition, issuance, conveyance, transfer, lease (other than an operating lease entered into in the ordinary course of business), assignment or other transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by the Issuer or any Restricted Subsidiary of:
 
 	(a)	any Capital Stock other than Capital Stock of the Issuer; or	
 
 	(b)	any property or assets (other than cash, Cash Equivalents or Capital Stock) of the Issuer or any Restricted Subsidiary;	
Notwithstanding the preceding, the following will not be deemed to be Asset Sales:
 
 	(1)	the disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries as permitted under  Section 3.12 ;	
 
2

 	(2)	any disposition of equipment that is not usable or is obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;	
 
 	(3)	dispositions of assets in any fiscal year with a Fair Market Value not to exceed U.S.$25 million in the aggregate;	
 
 	(4)	for purposes of Section 3.12 only, the making or disposition of a Permitted Investment or Restricted Payment permitted under  Section 3.11 ;	
 
 	(5)	a disposition to the Issuer or a Restricted Subsidiary, including a Person that is or will become a Restricted Subsidiary immediately after the disposition;	
 
 	(6)	the creation of a Lien permitted under this Indenture (other than a deemed Lien in connection with a Sale and Leaseback Transaction);	
 
 	(7)	(i) the disposition of Receivables Assets pursuant to a Qualified Receivables Transaction and (ii) the disposition of other accounts receivable in the ordinary course of business;	
 
 	(8)	the disposition of any asset constituted by a license of intellectual property in the ordinary course of business;	
 
 	(9)	the disposition of inventory pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under this Indenture;	
 
 	(10)	the disposition of any asset compulsorily acquired by a governmental authority; and	
 
 	(11)	sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements.	
“Asset Sale Offer” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Amount” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Notice” means notice of an Asset Sale Offer made pursuant to Section 3.12, which shall be mailed first class, postage prepaid, to each record Holder as shown on the Note Register within 20 days following the 365th day after the receipt of Net Cash Proceeds of any Asset Sale, with a copy to the Trustee, which notice shall govern the terms of the Asset Sale Offer, and shall state:
 
 	(1)	the circumstances of the Asset Sale or Sales, the Net Cash Proceeds of which are included in the Asset Sale Offer, that an Asset Sale Offer is being made pursuant to  Section 3.12(c) , and that all Notes that are timely tendered will be accepted for payment;	
 
3

 	(2)	the Asset Sale Offer Amount and the Asset Sale Offer Payment Date, which date shall be a Business Day no earlier than 30 days nor later than 60 days from the date the Asset Sale Offer Notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Offer Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Offer Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Offer Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on the schedule of increases or decreases thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.12 .	
 
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“Asset Sale Offer Payment Date” has the meaning assigned to it in Section 3.12(f).
“Authenticating Agent” has the meaning assigned to it in Section 2.2(b).
“Authorized Agent” has the meaning assigned to it in Section 12.7(c).
“Axtel Share Forward Transaction” means the Axtel share forward transaction that is governed by a long form confirmation originally dated January 22, 2009, as replaced by long form confirmations dated September 28, 2010 and March 19, 2012, and as further replaced by a long form confirmation dated August 27, 2013, between Credit Suisse International and Centro Distribuidor de Cemento, S.A. de C.V. (References: External ID: 16059563R5-Risk ID: 10008383) and any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Bancomext Facility” means the U.S.$250,000,000 credit agreement (Crédito Simple), dated October 14, 2008, as amended from time to time ( provided  that the principal amount thereof does not increase above the principal amount outstanding as of August 14, 2009 (except by the amount of any capitalized interest if so provided by such facility and on those terms as of August 14, 2009) less the amount of any repayments and prepayments made in respect of such facility), among the Issuer, as borrower, Banco Nacional de Comercio Exterior, S.N.C., as lender, and CEMEX México, as guarantor, and secured by the mortgage of a cement plant in Ensenada, Baja California, Mexico.
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree or order for relief in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or (ii) a decree or order (A) adjudging any Bankruptcy Party a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (B) approving as properly filed a petition seeking reorganization,  concurso mercantil , arrangement, adjustment or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up or liquidation of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (ii) the consent by any Bankruptcy Party to the entry of a decree	
 
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 	or order for relief in respect of such Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization,  concurso mercantil , or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, or (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors, including the Mexican  Ley de Concursos Mercantiles and  Spanish Law 22/2003 of 9 July  (Ley 22/2003 de 9 de julio , Concursal ), as amended.
“Bankruptcy Party” means the Issuer and any Significant Subsidiary of the Issuer or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Issuer.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ), dated April 22, 2009, among CEMEX Concretos, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, S.N.C., as lender, as in effect on the Issue Date and as amended from time to time, and secured by a mortgage of Planta Yaqui in Hermosillo, Sonora, Mexico.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, Mexico City, Madrid, Amsterdam, London, Paris or Zurich are authorized or required by law, regulation or other governmental action to remain closed.
“Capital Stock” means:
 
 	(1)	with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;	
 
 	(2)	with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person; and	
 
 	(3)	any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above, but excluding any Indebtedness exchangeable into such equity interest in existence on the Issue Date or Incurred pursuant to  Section 3.9 .	
 
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“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Cash Equivalents” means:
 
 	(1)	marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the United Kingdom or any member nation of the European Union or issued by any agency thereof and backed by the full faith and credit of the United States, the United Kingdom, such member nation of the European Union or any European Union central bank, in each case maturing within one year from the date of acquisition thereof;	
 
 	(2)	marketable direct obligations issued by the Mexican government, or issued by any agency thereof, including but not limited to,  Certificados de la Tesorería de la Federación  (Cetes) or  Bonos de Desarrollo del Gobierno Federal  (Bondes), in each case, issued by the government of Mexico and maturing not later than one year after the acquisition thereof;	
 
 	(3)	marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Fitch or any successor thereto;	
 
 	(4)	commercial paper or corporate debt obligations maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 or AAA from S&P, at least F-1 or AAA from Fitch or P-1 or Aaa from Moody’s;	
 
 	(5)	demand deposits, certificates of deposit, time deposits or bankers’ acceptances or other short-term unsecured debt obligations (and any cash or deposits in transit in any of the foregoing) maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the United Kingdom or any country of the European Union, (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than U.S.$500	
 
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 	million, or (c) in the case of Mexican peso deposits, any financial institution in good standing with Banco de México organized under the laws of Mexico;	
 
 	(6)	repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) and (2) above entered into with any bank meeting the qualifications specified in clause (5) above;	
 
 	(7)	investments in money market funds which invest substantially all of their assets in securities of the types described in clauses (1) through (6), (8) and (9);	
 
 	(8)	certificates of deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco Nacional de Obras y Servicios Públicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(9)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which the Issuer or a Restricted Subsidiary operates and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquisition; and	
 
 	(10)	Investments in mutual funds, managed by banks, with a local currency credit rating of at least MxAA by S&P or other equally reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican Government, or issued by any agency or instrumentality thereof.	
In the case of Investments by any Restricted Subsidiary, Cash Equivalents will also include (a) investments of the type and maturity described in clauses (1) through (10) of any Restricted Subsidiary outside of Mexico in the country in which such Restricted Subsidiary operates, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalents ratings from comparable foreign rating agencies, (b) local currencies and other short-term investments utilized by Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (10) and in this paragraph and (c) investments of the type described in clauses (1) through (9) maturing within one year of the Issue Date.
“Certificados Bursátiles” means debt securities issued by the Issuer guaranteed (por aval) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned subsidiaries of the Issuer, in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores ,  S.A.B. de C.V. ).
 
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“Certificated Note” means any Note issued in fully registered form, other than a Global Note, which shall be substantially in the form of  Exhibit A  hereto, with appropriate legends as specified in  Section 2.8  and  Exhibit A .
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission under the Exchange Act) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Issuer is acquired by any Person;  provided , that the acquisition of beneficial ownership of Capital Stock of the Issuer by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Change of Control Notice” means notice of a Change of Control Offer made pursuant to Section 3.8, which shall be mailed first-class, postage prepaid, to each record Holder as shown on the Note Register within 30 days following the date upon which a Change of Control occurred, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer and shall state:
 
 	(1)	that a Change of Control has occurred, the circumstances or events causing such Change of Control and that a Change of Control Offer is being made pursuant to  Section 3.8 , and that all Notes that are timely tendered will be accepted for payment;	
 
 	(2)	the Change of Control Payment, and the Change of Control Payment Date, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Change of Control Payment with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest from and after the Change of Control Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer will be required to tender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Change of Control Offer;	
 
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 	(7)	that any Holder electing to have Notes purchased pursuant to the Change of Control Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.8(b) .	
“Change of Control Offer” has the meaning assigned to it in Section 3.8(b).
“Change of Control Payment” has the meaning assigned to it in Section 3.8(a).
“Change of Control Payment Date” has the meaning assigned to it in Section 3.8(b).
“Clearstream” means Clearstream Banking, société anonyme, or the successor to its securities clearance and settlement operations.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means “Transaction Security” as defined in the Intercreditor Agreement from time to time.
“Commission” means the U.S. Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests.
 
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“Compensation Related Hedging Obligations” means (i) the obligations of any Person pursuant to any equity option contract, equity forward contract, equity swap, warrant, rights or other similar agreement designed to hedge risks or obligations relating to employee, director or consultant compensation, pension, benefits or similar activities of the Issuer and/or any of its Subsidiaries and (ii) the obligations of any Person pursuant to any agreement that requires another Person to make payments or deliveries that are otherwise required to be made by the first Person relating to employee, director or consultant compensation, pension, benefits or similar activities of the Issuer and/or any of its Subsidiaries, in each case in the ordinary course of business.
“Consolidated EBITDA” means, for any Person for any period, Consolidated Net Income for such Person for such period, plus the following, without duplication, to the extent deducted or added in calculating such Consolidated Net Income:
 
 	(1)	Consolidated Income Tax Expense for such Person for such period;	
 
 	(2)	Consolidated Interest Expense for such Person for such period net of consolidated interest income for such period;	
 
 	(3)	Consolidated Non-cash Charges for such Person for such period;	
 
 	(4)	the amount of any nonrecurring restructuring charge or reserve deducted in such period in computing Consolidated Net Income;	
 
 	(5)	the net effect on income or loss in respect of Hedging Obligations or other derivative instruments, which shall include, for the avoidance of doubt, all amounts not excluded from Consolidated Net Income pursuant to the proviso in clause (9) thereof; and	
 
 	(6)	net income of such Person attributable to minority interests in Subsidiaries of such Person.	
less (x) all non-cash credits and gains increasing Consolidated Net Income for such Person for such period and (y) all cash payments made by such Person and its Restricted Subsidiaries during such period relating to Consolidated Non-cash Charges that were added back in determining Consolidated EBITDA in any prior period.
“Consolidated Fixed Charge Coverage Ratio” means, for any Person as of any date of determination (the “ Fixed Charge Calculation Date ”), the ratio of the aggregate amount of Consolidated EBITDA of such Person for the four most recent full fiscal quarters for which financial statements are available ending prior to the date of such determination (the “ Four Quarter Period ”) to Consolidated Fixed Charges for such Person for such Four Quarter Period. For purposes of making the computation referred to above, Material Acquisitions and Material Dispositions (as determined in accordance with GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter
 
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Period and on or prior to or simultaneously with the Fixed Charge Calculation Date shall be calculated on a pro forma basis assuming that all such Material Acquisitions and Material Dispositions (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Material Acquisition or Material Disposition that would have required adjustment pursuant to this definition, then the Consolidated Fixed Charge Coverage Ratio shall be calculated giving  pro forma  effect thereto.
For purposes of this definition, whenever pro forma effect is to be given to a Material Acquisition or Material Disposition and the amount of income or earnings relating thereto or with respect to other  pro forma  calculations under this definition, such  pro forma  calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer. If any Indebtedness bears a floating rate of interest and is being given  pro forma  effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a  pro forma  basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio,”
 
 	(a)	interest on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined thereafter will be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on such date of determination;	
 
 	(b)	if interest on any Indebtedness actually Incurred on such date of determination may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on such date of determination will be deemed to have been in effect during the Four Quarter Period; and	
 
 	(c)	notwithstanding clause (a) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by Hedging Obligations, will be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.	
 
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“Consolidated Fixed Charges” means, for any Person for any period, the sum, without duplication, of:
 
 	(1)	Consolidated Interest Expense for such Person for such period, plus	
 
 	(2)	to the extent not included in (1) above, payments during such period in respect of the financing costs of financial derivatives in the form of equity swaps, plus	
 
 	(3)	the product of:	
 
 	(a)	the amount of all cash and non-cash dividend payments on any series of Preferred Stock or Disqualified Capital Stock of such Person (other than dividends paid in Qualified Capital Stock) or any Subsidiary of such Person (Restricted Subsidiary in the case of the Issuer) paid, accrued or scheduled to be paid or accrued during such period, excluding dividend payments on Preferred Stock or Disqualified Capital Stock paid, accrued or scheduled to be paid to such Person or another Subsidiary (Restricted Subsidiary in the case of the Issuer), times	
 
 	(b)	a fraction, the numerator of which is one and the denominator of which is one minus the then current effective tax rate of such Person in its principal taxpaying jurisdiction (Mexico, in the case of the Issuer), expressed as a decimal.	
“Consolidated Income Tax Expense” means, with respect to any Person for any period, the provision for federal, state and local income and asset taxes payable, including current and deferred taxes, by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period as determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any Person for any period, the sum of, without duplication determined on a consolidated basis in accordance with GAAP:
 
 	(1)	the aggregate of cash and non-cash interest expense of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period determined on a consolidated basis in accordance with GAAP, including, without limitation the following for such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) whether or not interest expense in accordance with GAAP:	
 
 	(a)	any amortization or accretion of debt discount or any interest paid on Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) in the form of additional Indebtedness,	
 
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 	(b)	any amortization of deferred financing costs; provided, that any such amortization resulting from costs incurred prior to the Issue Date shall be excluded for the calculation of Consolidated Interest Expense,	
 
 	(c)	the net costs under Hedging Obligations relating to Indebtedness (including amortization of fees but excluding foreign exchange adjustments on the notional amounts of the Hedging Obligations),	
 
 	(d)	all capitalized interest,	
 
 	(e)	the interest portion of any deferred payment obligation,	
 
 	(f)	commissions, discounts and other fees and charges Incurred in respect of letters of credit or bankers’ acceptances or in connection with sales or other dispositions of accounts receivable and related assets,	
 
 	(g)	any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries (Restricted Subsidiary in the case of the Issuer) or secured by a Lien on the assets of such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Issuer), whether or not such Guarantee or Lien is called upon, and	
 
 	(h)	any interest accrued in respect of Indebtedness without a maturity date; and	
 
 	(2)	the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) during such period.	
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate net income (or loss) of such Person and its Subsidiaries for such period on a consolidated basis (after deducting (i) the portion of such net income attributable to minority interests in Subsidiaries of such Person and (ii) any interest paid or accrued in respect of Indebtedness without a maturity date), determined in accordance with GAAP;  provided , that there shall be excluded therefrom:
 
 	(1)	net after-tax gains and losses from Asset Sale transactions or abandonments or reserves relating thereto;	
 
 	(2)	net after-tax items classified as extraordinary gains or losses;	
 
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 	(3)	the net income (but not loss) of any Subsidiary of such Person (non-Note Guarantor in the case of the Issuer) to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary (non-Note Guarantor in the case of the Issuer) or any law, regulation, agreement or judgment applicable to any such distribution;	
 
 	(4)	any net income (loss) of any Person (other than the Issuer) if such Person is not a Restricted Subsidiary, except that the Issuer’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash distributed by such Person during such period to the Issuer or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in this clause);	
 
 	(5)	[Reserved];	
 
 	(6)	any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;	
 
 	(7)	any gain (or loss) from foreign exchange translation or change in net monetary position;	
 
 	(8)	any gain (or loss) from the cumulative effect of changes in accounting principles; and	
 
 	(9)	any net gain or loss (after any offset) resulting in such period from Hedging Obligations or other derivative instruments;  provided , that the net effect on income or loss (including in any prior periods) shall be included upon any termination or early extinguishment of such Hedging Obligations or other derivative instrument, other than any Hedging Obligations with respect to Indebtedness (that is not itself a Hedging Obligation) and that are extinguished concurrently with the termination or other prepayment of such Indebtedness.	
“Consolidated Non-cash Charges” means, for any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill and other Intangible Assets) and other non-cash expenses or losses of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which constitutes an accrual of or a reserve for cash charges for any future period or the amortization of a prepaid cash expense paid in a prior period).
“Consolidated Tangible Assets” means, for any Person at any time, the total consolidated assets of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) as set forth on the balance sheet as of the most recent fiscal quarter of such Person, prepared in accordance with GAAP, less Intangible Assets.
 
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“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, 4E, New York, New York 10286, Attention: International Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer.
“Covenant Defeasance” has the meaning assigned to it in Section 8.1(c).
“Covenant Suspension Event” has the meaning assigned to it in Section 3.22(b).
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, conciliador, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning assigned to it in Section 2.13 and Section 1, paragraph 2 of the Form of Reverse Side of Note contained in  Exhibit A  hereto.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate setting forth the basis of such valuation.
“Designation” has the meaning assigned to it in Section 3.14(a).
“Designation Amount” has the meaning assigned to it in clause (iii) of Section 3.14(a).
“Disposition” means, with respect to any property, any sale, lease, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the Holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the Holder thereof, in any case, on or prior to the 91st day after the final maturity date of the Notes, but excluding with respect to Mexican companies, any shares of such Mexican company that are part of the variable portion of its Capital Stock and that are redeemable under the Mexican General Law of Business Corporations ( Ley General de Sociedades Mercantiles ).
 
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“Distribution Compliance Period” means, in respect of any Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Issuer that is a clearing agency registered under the Exchange Act.
“Equity Offering” has the meaning assigned to it in Section 5 of the Form of Reverse Side of Note contained in Exhibit A hereto.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V., or its successor in such capacity.
“Event of Default” has the meaning assigned to it in Section 6.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Existing Senior Notes” means the U.S. Dollar-denominated 9.50% Senior Secured Notes due 2016 guaranteed by the Issuer, the Euro-denominated 9.625% Senior Secured Notes due 2017 guaranteed by the Issuer, the U.S. Dollar-denominated 9.25% Senior Secured Notes due 2020 guaranteed by the Issuer, the Euro-denominated 8.875% Senior Secured Notes due 2017 guaranteed by the Issuer, the U.S. Dollar-denominated 9.000% Senior Secured Notes due 2018 issued by the Issuer, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2015 issued by the Issuer, the U.S. Dollar-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Issuer, the Euro-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Issuer, the U.S. Dollar-denominated 9.50% Senior Secured Notes due 2018 issued by the Issuer, the U.S. Dollar-denominated 9.375% Senior Secured Notes due 2022 guaranteed by the Issuer, the U.S. Dollar-denominated 5.875% Senior Secured Notes due 2019 issued by the Issuer, the U.S. Dollar-denominated 6.500% Senior Secured Notes due 2019 issued by the Issuer and the FRNs.
“Facilities Agreement” means the facilities agreement, dated as of September 17, 2012, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as new administrative agent, and the Security Agent, as such agreement may be amended, modified or waived from time to time.
“Facilities Agreement Indebtedness” means the Indebtedness that is subject to and outstanding under the Facilities Agreement.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction. Fair Market Value shall be determined, except as otherwise provided, by the Issuer in good faith.
 
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“Fitch” means Fitch Ratings and any successor to its rating agency business.
“Four Quarter Period” has the meaning assigned to it in the definition of “Consolidated Fixed Charge Coverage Ratio” above.
“Free Reserves Available for Distribution” has the meaning assigned to it in Section 10.6(c).
“French Note Guarantor” has the meaning assigned to it in Section 10.5(a).
“FRNs” means the Issuer’s Floating Rate Senior Secured Notes due 2018 issued on the Issue Date.
“GAAP” means IFRS as in effect on October 2, 2013At any time, and from time to time, after the Issue Date, the Issuer may elect to apply IFRS as in effect at such time in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election;  provided , that any such election, once made, shall be irrevocable. The Issuer shall give notice of any such election to the Trustee.
“Global Note” means any Note issued in fully registered form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of  Exhibit A , with appropriate legends as specified in Section 2.8  and  Exhibit A  hereto.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
 
 	(1)	to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise, or	
 
 	(2)	entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part,	
provided, that “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning assigned to it in Section 10.1(a).
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Note Register.
 
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“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and “ Incurrence ,” “ Incurred ” and “ Incurring ” will have meanings correlative to the preceding).
“Indebtedness” means with respect to any Person, without duplication:
 
 	(1)	the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money;	
 
 	(2)	the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, including any perpetual bonds, debenture notes or similar instruments without regard to maturity date;	
 
 	(3)	all Capitalized Lease Obligations of such Person;	
 
 	(4)	all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all payment obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities accounted for as current liabilities (in accordance with GAAP) arising in the ordinary course of business) to the extent of any reimbursement obligations in respect thereof;	
 
 	(5)	reimbursement obligations with respect to letters of credit, banker’s acceptances or similar credit transactions;	
 
 	(6)	Guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) through (10) below;	
 
 	(7)	all Indebtedness of any other Person of the type referred to in clauses (1) through (6) which is secured by any Lien on any property or asset of the first Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Indebtedness so secured;	
 
 	(8)	all obligations under Hedging Obligations or other derivatives of such Person;	
 
 	(9)	all liabilities (contingent or otherwise) of such Person in connection with a sale or other disposition of accounts receivable and related assets (not including Qualified Receivables Transactions), irrespective of their treatment under GAAP or IFRS; and	
 
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 	(10)	all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any;  provided , that:	
 
 	(a)	if the Disqualified Capital Stock does not have a fixed repurchase price, such maximum fixed repurchase price will be calculated in accordance with the terms of the Disqualified Capital Stock as if the Disqualified Capital Stock were purchased on any date on which Indebtedness will be required to be determined pursuant to this Indenture, and	
 
 	(b)	if the maximum fixed repurchase price is based upon, or measured by, the fair market value of the Disqualified Capital Stock, the fair market value will be the Fair Market Value thereof.	
“Indenture” means this Indenture as amended or supplemented from time to time, including the Schedule and Exhibits hereto.
“Intangible Assets” means with respect to any Person all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights and all other items which would be treated as intangibles on the consolidated balance sheet of such Person prepared in accordance with GAAP.
“Intercreditor Agreement” means the intercreditor agreement, dated as of September 17, 2012, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as facility agent, and the Security Agent, as such agreement may be amended from time to time.
“Interest Payment Date” means the stated due date of an installment of interest on the Notes as specified in the Form of Face of Note contained in  Exhibit A  hereto.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Inventory Financing” means a financing arrangement pursuant to which the Issuer or any of its Restricted Subsidiaries sells inventory to a bank or other institution (or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
 
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“Investment” means, with respect to any Person, any (1) direct or indirect loan, advance or other extension of credit (including, without limitation, a Guarantee) to any other Person, (2) capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to any other Person, or (3) purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by any other Person. “Investment” will exclude accounts receivable, extensions of credit in connection with supplier or customer financings consistent with industry or past practice, advance payment of capital expenditures arising in the ordinary course of business, deposits arising in the ordinary course of business and transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of a Lien or the Incurring or permitting to subsist of Indebtedness) conducted in the ordinary course of business on arm’s-length terms.
For purposes of Section 3.11, the Issuer will be deemed to have made an “Investment” in an Unrestricted Subsidiary at the time of its Designation, which will be valued at the Fair Market Value of the sum of the net assets of such Unrestricted Subsidiary multiplied by the percentage equity ownership of the Issuer and its Restricted Subsidiaries in such designated Unrestricted Subsidiary at the time of its Designation and the amount of any Indebtedness of such Unrestricted Subsidiary or owed to the Issuer or any Restricted Subsidiary immediately following such Designation. Any property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer. If the Issuer or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of a Restricted Subsidiary (including any issuance and sale of Capital Stock by a Restricted Subsidiary) such that, after giving effect to any such sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment on the date of any such sale or disposition equal to sum of the Fair Market Value of the Capital Stock of such former Restricted Subsidiary held by the Issuer or any Restricted Subsidiary immediately following such sale or other disposition and the amount of any Indebtedness of such former Restricted Subsidiary Guaranteed by the Issuer or any Restricted Subsidiary or owed to the Issuer or any other Restricted Subsidiary immediately following such sale or other disposition. The acquisition by the Issuer or any Restricted Subsidiary of the Issuer of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Issuer or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made without giving effect to subsequent changes in value.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Investment Return” means, in respect of any Investment (other than a Permitted Investment) made after the Issue Date by the Issuer or any Restricted Subsidiary:
 
 	(1)	the cash proceeds received by the Issuer upon the sale, liquidation or repayment of such Investment or, in the case of a Guarantee, the amount of the Guarantee upon the unconditional release of the Issuer and its Restricted Subsidiaries in full, less any payments previously made by the Issuer or any Restricted Subsidiary in respect of such Guarantee;	
 
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 	(2)	in the case of the Revocation of the Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:	
 
 	(a)	the Issuer’s Investment in such Unrestricted Subsidiary at the time of such Revocation;	
 
 	(b)	that portion of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time of Revocation that is proportionate to the Issuer’s equity interest in such Unrestricted Subsidiary at the time of Revocation; and	
 
 	(c)	the Designation Amount with respect to such Unrestricted Subsidiary upon its Designation which was treated as a Restricted Payment;	
 
 	(3)	in the event the Issuer or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, the existing Investment of the Issuer and its Restricted Subsidiaries in such Person,	
in the case of each of (1), (2) and (3), up to the amount of such Investment that was treated as a Restricted Payment under Section 3.11  less the amount of any previous Investment Return in respect of such Investment.
“Issue Date” means the first date of issuance of the Notes under this Indenture and following a Partial Covenant Suspension Event or a Covenant Suspension Event, except under “ Optional Redemption for Changes in Withholding Taxes ” under clause (5) in  Exhibit A  hereto,  Section 3.22  and the definition of “Permitted Liens,” the most recent Partial Covenant Reversion Date or Reversion Date, as applicable.
“Issue Date Notes” means the U.S.$1,000,000,000 aggregate principal amount of Notes originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
“Issuer” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns.
“Issuer Order” has the meaning assigned to it in Section 2.2(c).
“Legal Defeasance” has the meaning assigned to it in Section 8.1(b).
“Legal Holiday” has the meaning assigned to it in Section 12.6.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. The Issuer or any
 
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Restricted Subsidiary shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor).
“Material Acquisition” means:
 
 	(1)	an Investment by the Issuer or any Restricted Subsidiary in any other Person pursuant to which such Person will become a Restricted Subsidiary, or will be merged with or into the Issuer or any Restricted Subsidiary;	
 
 	(2)	the acquisition by the Issuer or any Restricted Subsidiary of the assets of any Person (other than a Subsidiary of the Issuer) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business; or	
 
 	(3)	any Revocation with respect to an Unrestricted Subsidiary;	
in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Material Disposition” means any Asset Sale and, whether or not constituting an Asset Sale, (1) any sale or other disposition of Capital Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale or other disposition of property or assets excluded from the definition of Asset Sale by clause (4) of that definition, in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Maturity Date” means January 15, 2021.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries from such Asset Sale, net of:
 
 	(1)	reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions);	
 
 	(2)	taxes paid or payable in respect of such Asset Sale after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;	
 
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 	(3)	repayment of Indebtedness secured by a Lien permitted under this Indenture that is required to be repaid in connection with such Asset Sale; and	
 
 	(4)	appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, but excluding any reserves with respect to Indebtedness.	
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Custodian” means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee.
“Note Guarantee” means any guarantee of the Issuer’s Obligations under this Indenture and the Notes by any Note Guarantor pursuant to  Article X .
“Note Guarantors” means (i) each of the Issuer’s Restricted Subsidiaries that executes this Indenture as a Note Guarantor or an Additional Note Guarantor and (ii) each of the Issuer’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Note Guarantor, and their respective successors and assigns; provided, that any Person constituting a Note Guarantor as described above shall cease to constitute a Note Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture.
“Note Register” has the meaning assigned to it in Section 2.3(a).
“Notes” means any of the Issuer’s 7.250% Senior Secured Notes due 2021 issued and authenticated pursuant to this Indenture.
“Obligations” means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under the documentation governing such Indebtedness, including, in the case of the Notes and the Note Guarantees, this Indenture.
“Officer” means, when used in connection with any action to be taken by the Issuer or a Note Guarantor, as the case may be, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Secretary or an attorney-in-fact of the Issuer or such Note Guarantor, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person, who must be the principal executive officer, the principal financial officer, the treasurer, the Vice President – Corporate Finance, the principal accounting officer or an attorney-in-fact of such Person, that meets the requirements set forth in this Indenture.
 
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“Opinion of Counsel” means a written opinion of counsel, who, unless otherwise indicated in this Indenture, may be an employee of or counsel for the Issuer, and who shall be reasonably acceptable to the Trustee.
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,  except :
 
 	(1)	Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;	
 
 	(2)	Notes, or portions thereof, for the payment, redemption or, in the case of an Asset Sale Offer or Change of Control Offer, purchase of which, money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or an Affiliate of the Issuer) in trust or set aside and segregated in trust by the Issuer or an Affiliate of the Issuer (if the Issuer or such Affiliate is acting as the Paying Agent) for the Holders of such Notes;  provided , that if Notes (or portions thereof) are to be redeemed or purchased, notice of such redemption or purchase has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;	
 
 	(3)	Notes which have been surrendered pursuant to Section 2.9 or Notes in exchange for which or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser in whose hands such Notes are valid obligations of the Issuer; and	
 
 	(4)	solely to the extent provided in Article VIII, Notes which are subject to Legal Defeasance or Covenant Defeasance as provided in  Article VIII ;	
provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, a Note Guarantor or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
“Partial Covenant Reversion Date” has the meaning set forth under Section 3.22(e).
 
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“Partial Covenant Suspension Date” has the meaning set forth under Section 3.22(c).
“Partial Covenant Suspension Event” has the meaning set forth under Section 3.22(a).
“Partial Suspended Covenants” has the meaning set forth under Section 3.22(a).
“Partial Suspension Period” has the meaning set forth under Section 3.22(e).
“Paying Agent” has the meaning assigned to it in Section 2.3(a).
“Permitted Asset Swap Transaction” means a transaction consisting substantially of the concurrent (i) disposition by the Issuer or any of its Restricted Subsidiaries of any asset, property or cash consideration (other than a Restricted Subsidiary) in exchange for assets, property or cash consideration transferred to the Issuer or a Restricted Subsidiary, to be used in a Permitted Business or (ii) disposition by the Issuer or any of its Restricted Subsidiaries of Capital Stock of a Restricted Subsidiary in exchange for Capital Stock of another Restricted Subsidiary or of Capital Stock of any Person that becomes a Restricted Subsidiary after giving effect to such transaction;  provided , that any cash or Cash Equivalents received in such a transaction shall constitute Net Cash Proceeds to be applied in accordance with  Section 3.12 .
“Permitted Business” means the business or businesses conducted by the Issuer and its Restricted Subsidiaries as of the Issue Date and any business ancillary, complementary or related thereto or any other business that would not constitute a substantial change to the general nature of its business from that carried on as of the Issue Date.
“Permitted Indebtedness” has the meaning set forth in Section 3.9(b).
“Permitted Investments” means:
 
 	(1)	Investments by the Issuer or any Restricted Subsidiary in any Person that is, or that result in any Person becoming, immediately after such Investment, a Restricted Subsidiary or constituting a merger or consolidation of such Person into the Issuer or with or into a Restricted Subsidiary;	
 
 	(2)	any Investment in the Issuer;	
 
 	(3)	Investments in cash and Cash Equivalents;	
 
 	(4)	any extension, modification or renewal of any Investments existing as of the Issue Date (but not Investments involving additional advances, contributions or other investments of cash or property or other increases thereof, other than as a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms of such Investment as of the Issue Date);	
 
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 	(5)	Investments permitted pursuant to clause (ii), (vi) or (vii) of Section 3.18(b);	
 
 	(6)	Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, modifications and renewals thereof;	
 
 	(7)	Investments made by the Issuer or its Restricted Subsidiaries as a result of non-cash consideration permitted to be received in connection with an Asset Sale made in compliance with  Section 3.12 ;	
 
 	(8)	Investments in the form of Hedging Obligations or Compensation Related Hedging Obligations permitted under clause (iv) of  Section 3.9(b) ;	
 
 	(9)	Investments in existence on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or any Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date;  provided , that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted by this Indenture;	
 
 	(10)	Investments by the Issuer or any Restricted Subsidiary in a Receivables Entity in connection with a Qualified Receivables Transaction which does not constitute an Asset Sale by virtue of clause (7) of the definition thereof; provided ,  however , that any such Investments are made only in the form of Receivables Assets;	
 
 	(11)	Investments in marketable securities or instruments, to fund the Issuer’s or a Restricted Subsidiary’s pension and other employee-related obligations in the ordinary course of business pursuant to compensation arrangements approved by the Board of Directors or senior management of the Issuer;	
 
 	(12)	any Investment that:	
 
 	(a)	when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding (net of cash benefits to the Issuer or a Restricted Subsidiary from Investments pursuant to this clause (12)), does not exceed the greater of U.S.$250 million and 3% of Consolidated Tangible Assets; or	
 
 	(b)	when taken together with all other Investments made pursuant to this clause (12) in any fiscal year that are at the time outstanding, does not exceed U.S.$100 million in any fiscal year;	
 
 	(13)	Investments in the Capital Stock of any Person other than a Restricted Subsidiary that are required to be held pursuant to an involuntary governmental order of condemnation, nationalization, seizure or expropriation or other similar order with respect to Capital Stock of such	
 
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 	Person (prior to which order such Person was a Restricted Subsidiary); provided, that such Person contests such order in good faith in appropriate proceedings;	
 
 	(14)	repurchases of Existing Senior Notes or the Notes;	
 
 	(15)	Investments in the SPV Perpetuals or the notes related thereto; provided, that any payment or other contribution to one of the special purpose vehicles issuing the SPV Perpetuals in connection with such Investment is promptly paid or contributed to the Issuer or a Restricted Subsidiary following receipt thereof;	
 
 	(16)	any Investment that constitutes Indebtedness permitted under clause (vii)(E) of Section 3.9(b); and	
 
 	(17)	(a) Investments to which the Issuer or any of its Restricted Subsidiaries is contractually committed as of the Issue Date in any Person other than a Subsidiary in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities and (b) Investments in any Person other than a Subsidiary in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities up to U.S.$100 million in any calendar year minus the amount of any guarantees under clause (xviii) of  Section 3.9(b) .	
“Permitted Liens” means any of the following:
 
 	(1)	statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and materialmen 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 and any other Liens created by operation of law;	
 
 	(2)	Liens Incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other types of social security or (ii) other insurance maintained by the Issuer and its Subsidiaries in compliance with the Facilities Agreement (or any refinancing thereof);	
 
 	(3)	Liens 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;	
 
 	(4)	any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
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 	(5)	(i) Liens existing on the Issue Date other than in respect of the Collateral and (ii) Liens in respect of the Collateral to the extent equally and ratably securing the Notes and the Permitted Secured Obligations;	
 
 	(6)	any Lien on property acquired by the Issuer or its Restricted Subsidiaries after the Issue Date that was existing on the date of acquisition of such property;  provided , that such Lien was not incurred in anticipation of such acquisition, and any Lien created to secure all or any part 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 Issuer or any of its Restricted Subsidiaries after the Issue Date;  provided further , that (A) any such Lien permitted pursuant to this clause (6) 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) and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to, or is acquired for specific use with, such acquired property; and (B) if applicable, any such Lien shall be created within nine months after, in the case of property, its acquisition, or, in the case of improvements, their completion;	
 
 	(7)	any Liens renewing, extending or refunding any Lien permitted by clause (5)(i) above; provided, that such Lien is not extended to other property (or, instead, is only extended to equivalent property) and the principal amount of Indebtedness secured by such Lien immediately prior thereto is not increased or the maturity thereof reduced, except that the principal amount secured by any such Lien in respect of:	
 
 	(a)	hedging obligations or other derivatives where there are fluctuations in mark-to-market exposures of those hedging obligations or other derivatives,	
 
 	(b)	Indebtedness consisting of any “Certificados Bursátiles de Largo Plazo” or the Bancomext Facility, or any Refinancing thereof, where principal may increase by virtue of capitalization of interest, and	
 
 	(c)	the Banobras Facility to the extent additional amounts are drawn thereunder,	
may be increased by the amount of such fluctuations, capitalizations or drawings, as the case may be;
 
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 	(8)	Liens on Receivables Assets or Capital Stock of a Receivables Subsidiary, in each case granted in connection with a Qualified Receivables Transaction;	
 
 	(9)	Liens granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of business;	
 
 	(10)	any Lien permitted by the Trustee, acting pursuant to the instructions of at least 50% of the Holders;	
 
 	(11)	any Lien granted by the Issuer or any of its Restricted Subsidiaries to secure Indebtedness under a Permitted Liquidity Facility;  provided , that: (i) such Lien is not granted in respect of the Collateral, and (ii) the maximum amount of such Indebtedness secured by such Lien does not exceed U.S.$500 million at any time; or	
 
 	(12)	in addition to the Liens permitted by the foregoing clauses (1) through (11), Liens securing obligations of the Issuer and its Restricted Subsidiaries that in the aggregate secure obligations in an amount not in excess of the greater of (i) 5% of Consolidated Tangible Assets and (ii) U.S.$700 million.	
“Permitted Liquidity Facility” means a loan facility or facilities made available to the Issuer or any Restricted Subsidiary;  provided , that the aggregate principal amount of utilized and unutilized commitments under such facilities must not exceed U.S.$1 billion (or its equivalent in another currency) at any time.
“Permitted Merger Jurisdiction” has the meaning set forth in Section 4.1(a).
“Permitted Secured Obligations” means (i) the Facilities Agreement Indebtedness and any refinancing thereof made in accordance with the Facilities Agreement that is secured by the Collateral, (ii) notes (or similar instruments, including  Certificados Bursátiles ) outstanding on the date of the Facilities Agreement required to be secured by the Collateral pursuant to their terms, or any refinancing thereof permitted by the Facilities Agreement, (iii) future Indebtedness secured by the Collateral to the extent permitted by the Facilities Agreement and (iv) the Existing Senior Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with and at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.
 
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“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Private Placement Legend” has the meaning assigned to it in Section 2.8(b).
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of financing all or any part of the purchase price or cost of construction of any property other than Capital Stock;  provided , that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of Refinancing.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Issuer or any Restricted Subsidiary pursuant to which the Issuer or any Restricted Subsidiary may sell, convey, assign or otherwise transfer to a Receivables Entity any Receivables Assets to obtain funding for the operations of the Issuer and its Restricted Subsidiaries:
 
 	(1)	for which no term of any portion of the Indebtedness or any other obligations (contingent or otherwise) or securities Incurred or issued by any Person in connection therewith:	
 
 	(a)	directly or indirectly provides for recourse to, or any obligation of, the Issuer or any Restricted Subsidiary in any way, whether pursuant to a Guarantee or otherwise, except for Standard Undertakings,	
 
 	(b)	directly or indirectly subjects any property or asset of the Issuer or any Restricted Subsidiary (other than Capital Stock of a Receivables Subsidiary) to the satisfaction thereof, except for Standard Undertakings, or	
 
 	(c)	results in such Indebtedness, other obligations or securities constituting Indebtedness of the Issuer or a Restricted Subsidiary, including following a default thereunder, and	
 
 	(2)	for which the terms of any Affiliate Transaction between the Issuer or any Restricted Subsidiary, on the one hand, and any Receivables Entity, on the other, other than Standard Undertakings and Permitted Investments, are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Issuer, and	
 
 	(3)	in connection with which, neither the Issuer nor any Restricted Subsidiary has any obligation to maintain or preserve a Receivable Entity’s financial condition, cause a Receivables Entity to achieve certain levels of operating results, fund losses of a Receivables Entity, or except in connection with Standard Undertakings, purchase assets of a Receivables Entity.	
 
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“Rating Agencies” mean Fitch, Moody’s and S&P. In the event that Fitch, Moody’s or S&P is no longer in existence or issuing ratings, such organization may be replaced by a nationally recognized statistical rating organization (as defined in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act or any successor provision) designated by the Issuer with notice to the Trustee.
“Receivables Assets” means:
 
 	(1)	accounts receivable, leases, conditional sale agreements, instruments, chattel paper, installment sale contracts, obligations, general intangibles, and other similar assets, in each case relating to goods, inventory or services of the Issuer and its Subsidiaries,	
 
 	(2)	equipment and equipment residuals relating to any of the foregoing,	
 
 	(3)	contractual rights, Guarantees, letters of credit, Liens, insurance proceeds, collections and other similar assets, in each case related to the foregoing, and	
 
 	(4)	proceeds of all of the foregoing.	
“Receivables Entity” means a Receivables Subsidiary or any other Person not an Affiliate of the Issuer, in each case whose sole business activity is to engage in Qualified Receivables Transactions, including to issue securities or other interests in connection with a Qualified Receivables Transaction.
“Receivables Subsidiary” means an Unrestricted Subsidiary of the Issuer that engages in no activities other than Qualified Receivables Transactions and activities related thereto and that is designated by the Issuer as a Receivables Subsidiary. Any such designation by the Issuer will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate of the Issuer.
“Record Date” has the meaning assigned to it in the Form of Face of Note contained in Exhibit A hereto.
“Redemption Date” means, with respect to any redemption of the Notes, the date fixed for such redemption pursuant to this Indenture and the Notes.
 
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“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness in exchange for or to refinance, repay, redeem, replace, defease or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” will have correlative meanings.
“Refinancing Indebtedness” means Indebtedness of the Issuer or any Restricted Subsidiary issued to Refinance any other Indebtedness of the Issuer or a Restricted Subsidiary so long as:
 
 	(1)	the aggregate principal amount (or initial accreted value, if applicable) of such new Indebtedness as of the date of such proposed Refinancing does not exceed the aggregate principal amount (or accreted value as of such date, if applicable) of the Indebtedness being Refinanced (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred by the Issuer in connection with such Refinancing);	
 
 	(2)	such new Indebtedness has:	
 
 	(a)	a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced, and	
 
 	(b)	a final maturity that is equal to or later than the final maturity of the Indebtedness being Refinanced or, in the case of Indebtedness without a stated maturity, December 14, 2017; and	
 
 	(3)	if the Indebtedness being Refinanced is:	
 
 	(a)	Indebtedness of the Issuer, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(b)	Indebtedness of a Note Guarantor, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(c)	Indebtedness of any of the Restricted Subsidiaries, then such Refinancing Indebtedness will be Indebtedness of such Restricted Subsidiary, the Issuer and/or any Note Guarantor, and	
 
 	(d)	Subordinated Indebtedness, then such Refinancing Indebtedness shall be subordinate to the Notes or the relevant Note Guarantee, if applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.	
Notwithstanding the foregoing, with respect to any hedging obligations or derivatives outstanding on the Issue Date in respect of the Axtel Share Forward Transaction, “Refinancing Indebtedness” shall mean any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
 
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“Registrar” has the meaning assigned to it in Section 2.3(a).
“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Note” has the meaning assigned to it in Section 2.1(e).
“Resale Restriction Termination Date” means for any Restricted Note (or beneficial interest therein), that is (a) not a Regulation S Global Note, the date on which the Issuer instructs the Trustee in writing to remove the Private Placement Legend from the Restricted Notes in accordance with the procedures described in  Section 2.9(h)  (which instruction is expected to be given on or about the one year anniversary of the issuance of the Restricted Notes) or (b) a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the date on which the Distribution Compliance Period therefor terminates.
“Restricted Note” means any Issue Date Note (or beneficial interest therein) or any Additional Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act until such time as:
 
 	(i)	the Resale Restriction Termination Date therefor has passed; or	
 
 	(ii)	the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.9 or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.	
“Restricted Obligations” has the meaning assigned to it in Section 10.6(b).
“Restricted Payment” has the meaning set forth in Section 3.11(a).
“Restricted Subsidiary” means any Subsidiary of the Issuer, which at the time of determination is not an Unrestricted Subsidiary.
“Reversion Date” has the meaning assigned to in Section 3.22(e).
“Revocation” has the meaning set forth in Section 3.14(c).
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Note” has the meaning assigned to it in Section 2.1(d).
“S&P” means Standard & Poor’s Ratings Group and any successor to its rating agency business.
 
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“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Issuer or a Restricted Subsidiary of any property, whether owned by the Issuer or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agent” means Wilmington Trust (London) Limited, as security agent under the Intercreditor Agreement.
“Security Documents” has the meaning assigned to it in Section 7.13.
“Senior Indebtedness” means (i) the Notes and any other Indebtedness of the Issuer or any Note Guarantor that ranks equal in right of payment with the Notes or the relevant Note Guarantee, as the case may be or (ii) Indebtedness for borrowed money or constituting Capitalized Lease Obligations of any Restricted Subsidiary other than a Note Guarantor.
“Significant Subsidiary” means a Subsidiary of the Issuer constituting a “Significant Subsidiary” of the Issuer in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act in effect on the date hereof.
“Similar Business” means (1) any business engaged in by the Issuer or any Restricted Subsidiary on the Issue Date, and (2) any business or other activities, including non-profit or charitable activities, that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses and activities in which the Issuer or any Restricted Subsidiary is engaged on the Issue Date, including, but not limited to, infrastructure projects, public works programs and consumer or supplier financing.
“Special Record Date” has the meaning assigned to it in Section 2.13(a).
“SPV Perpetuals” means the perpetual debentures issued by special purpose vehicles in December 2006, February 2007 and March 2007, as amended or supplemented from time to time.
“Standard Undertakings” means representations, warranties, covenants, indemnities and similar obligations, including servicing obligations, entered into by the Issuer or any Subsidiary of the Issuer in connection with a Qualified Receivables Transaction, which are customary in similar non-recourse receivables securitization, purchase or financing transactions.
“Subordinated Indebtedness” means, with respect to the Issuer or any Note Guarantor, any Indebtedness of the Issuer or such Note Guarantor, as the case may be, which is expressly subordinated in right of payment to the Notes or the relevant Note Guarantee, as the case may be.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than
 
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fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (X) such Person, (Y) such Person and one or more of its other Subsidiaries or (Z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “Subsidiary” shall refer to a Subsidiary of the Issuer.
“Successor Issuer” has the meaning assigned to it in Section 4.1(a).
“Successor Note Guarantor” has the meaning assigned to it in Section 4.1(b).
“Suspended Covenants” has the meaning assigned to it in Section 3.22(b).
“Suspension Date” has the meaning assigned to it in Section 3.22(c).
“Suspension Period” has the meaning assigned to it in Section 3.22(e).
“Swiss Note Guarantor” has the meaning assigned to it in Section 10.6(a).
“Taxes” has the meaning assigned to it in Section 3.21(a).
“Taxing Jurisdiction” has the meaning assigned to it in Section 3.21(a).
“Transfer Agent” has the meaning assigned to it in Section 2.3(a).
“Transportation Agreements” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, having direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Trustee” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Undervalued Asset” has the meaning assigned to it in Section 10.6(g).
“USA PATRIOT Act” has the meaning assigned to it in Section 12.16.
 
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“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of, or guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.
“U.S. Legal Tender” means such coin or currency of the United States of America, as at the time of payment shall be legal tender for the payment of public and private debts.
“U.S. Person” means a “U.S. person” as defined in Regulation S.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Unrestricted Subsidiary” means any Subsidiary of the Issuer designated as such pursuant to Section 3.14 . Any such Designation may be revoked by the Issuer, subject to the provisions of such covenant.
“Voting Stock” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (calculated to the nearest one-twelfth) obtained by dividing:
 
 	(1)	the sum of the products obtained by multiplying:	
 
 	(a)	the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by	
 
 	(b)	the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment; by	
 
 	(2)	the then outstanding aggregate principal amount or liquidation preference, as the case may be, of such Indebtedness.	
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary (Restricted Subsidiary in the case of the Issuer) of which at least 99.5% of the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
Section 1.2 [Reserved].
 
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Section 1.3 Rules of Construction. Unless the context otherwise requires:
 
 	(1)	a term has the meaning assigned to it;	
 
 	(2)	an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;	
 
 	(3)	“or” is not exclusive;	
 
 	(4)	“including” means including without limitation;	
 
 	(5)	words in the singular include the plural and words in the plural include the singular; and	
 
 	(6)	references to the payment of principal of the Notes shall include applicable premium, if any.	
ARTICLE II
THE NOTES
Section 2.1 Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by the Issuer pursuant to a Purchase Agreement, dated as of September 25, 2013, among the Issuer, the Note Guarantors party thereto and BBVA Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and RBS Securities Inc., as Initial Purchasers with respect to the Notes. The Notes will be issued as one or more Global Notes in fully registered form without interest coupons, and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Each such Global Note shall constitute a single Note for all purposes under this Indenture. Certificated Notes, if issued pursuant to the terms hereof, will be issued in fully registered certificated form without coupons. The Notes may only be issued in definitive fully registered form without coupons and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of  Exhibit A  hereto.
(b) The terms and provisions of the Notes, the form of which is in Exhibit A hereto, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer, the Note Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes (including Additional Notes) shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class and are otherwise treated as a single issue of securities.
(c) The Notes may have notations, legends or endorsements as specified in Section 2.8 or as otherwise required by law, stock exchange rule or DTC, Euroclear or Clearstream rule or usage. The Issuer and the Trustee shall approve any changes to the form of the Notes attached to this Indenture and any additional notation, legend or endorsement required to be inserted on them. Each Note shall be dated the date of its authentication.
 
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(d) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a “ Rule 144A Global Note ”). Each Rule 144A Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC. In no event shall any Person hold an interest in a Rule 144A Global Note other than in or through accounts maintained at DTC.
(e) Notes originally offered and sold outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Notes (each, a “ Regulation S Global Note ”). Each Regulation S Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC by or on behalf of Euroclear or Clearstream. In no event shall any Person hold an interest in a Regulation S Global Note other than in or through accounts maintained at DTC by or on behalf of Euroclear or Clearstream.
Section 2.2 Execution and Authentication.
(a) Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until manually authenticated by an authorized signatory of the Trustee or an agent appointed by the Trustee (and reasonably acceptable to the Issuer) for such purpose (an “ Authenticating Agent ”). The signature of an authorized signatory of the Trustee or an Authenticating Agent on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. Unless limited by the terms of its appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by an Authenticating Agent.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Issuer signed by an Officer of the Issuer (the “ Issuer Order ”). An Issuer Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
(d) In case a Successor Issuer has executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Successor Issuer be exchanged for other Notes executed in the name of the Successor Issuer with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of the Successor Issuer, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If
 
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Notes shall at any time be authenticated and delivered in any new name of a Successor Issuer pursuant to this Section 2.2 in exchange or substitution for or upon registration of transfer of any Notes, such Successor Issuer, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
Section 2.3 Registrar, Paying Agent and Transfer Agent.
(a) The Issuer shall maintain an office or agency in the Borough of Manhattan, City of New York, that shall keep a register of the Notes (the “ Note Register ”) and of their transfer and exchange (the “ Registrar ”), where Notes may be presented or surrendered for registration of transfer or for exchange (the “ Transfer Agent ”), where Notes may be presented for payment (the “ Paying Agent ”) and for the service of notices and demands to or upon the Issuer in respect of the Notes and this Indenture. The Issuer may have one or more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. In addition, the Issuer undertakes to the extent possible, to use reasonable efforts to maintain a Paying Agent in a member state of the European Union that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC regarding taxation of savings income.
(b) The Issuer shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to  Section 7.7 . The Issuer or any Affiliate of the Issuer may act as Paying Agent, Registrar or co-Registrar, or transfer agent.
(c) The Issuer initially designates the Corporate Trust Office of the Trustee as such office or agency of the Issuer as required by  Section 2.3(a)  and appoints the Trustee as Registrar, Paying Agent, Transfer Agent and agent for service of demands and notices in connection with the Notes and this Indenture, until such time as another Person is appointed as such.
Section 2.4 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any Default by the Issuer or any Note Guarantor in making any such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.4 , the Paying Agent (if other than the Issuer or any Affiliate of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Issuer or any Affiliate of the Issuer, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
 
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Section 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. At any time that the Trustee is not the Registrar the Issuer shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.6 CUSIP Numbers.
The Issuer in issuing Notes may use “CUSIP” numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Securities “CUSIP” number in notices to the Holders as a convenience to such Holders;  provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any changes in the “CUSIP” numbers.
Section 2.7 Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian and (iii) bear the appropriate legends as set forth in  Section 2.8  and  Exhibit A  hereto. Any Global Note may be represented by one or more certificates. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture.
(b) Except as provided in clause (iii) of Section 2.7(c), members of, or participants in, DTC (“Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian, and DTC may be treated by the Issuer, any Note Guarantor, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by DTC or (ii) impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including DTC, or its nominee, Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
 
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(c) Except as provided in this Section 2.7(c), owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes in exchange for such beneficial interests.
 
 	(i)	Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such beneficial interests if (A) DTC notifies the Issuer that it is unwilling or unable to continue as depositary for such Global Note or (B) DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Issuer within 90 days of such notice. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this clause (i) of this  Section 2.7(c) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and deliver to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations, and the Registrar shall register such exchanges in the Note Register.	
 
 	(ii)	The owner of a beneficial interest in a Global Note will be entitled to receive Certificated Notes in exchange for such interest if an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members through DTC on behalf of the owner of a beneficial interest in a Global Note directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Note for Certificated Notes, subject to and in accordance with the Applicable Procedures, the Issuer shall promptly execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to such beneficial owner, Certificated Notes in a principal amount equal to such beneficial interest in such Global Note.	
 
 	(iii)	If (A) an event described in clause (i) of Section 2.7(c) occurs and Certificated Notes are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner the instructions described in clause (ii) of  Section 2.7(c)  and Certificated Notes are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to  Section 6.6  hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Certificated Notes had been issued.	
 
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Section 2.8 Legends.
(a) Each Global Note shall bear the legend specified therefor in Exhibit A hereto on the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in Exhibit A hereto on the face thereof (the “ Private Placement Legend ”).
(c) Each Note shall bear the Mexican law legend specified therefor in Exhibit A hereto on the face thereof.
Section 2.9 Transfer and Exchange.
(a) Transfers of Beneficial Interests in a Rule 144A Global Note. If the owner of a beneficial interest in a Rule 144A Global Note that is a Restricted Note wishes to transfer such interest (or portion thereof) pursuant to Rule 144 (if available) or to a Non-U.S. Person pursuant to Regulation S:
 
 	(i)	upon receipt by the Registrar of:	
 
 	(A)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Regulation S Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(B)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(C)	a certificate in the form of Exhibit B or Exhibit C hereto, as applicable, duly executed by the transferor;	
 
 	(ii)	the Note Custodian shall increase the Regulation S Global Note and decrease the Rule 144A Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(b) Transfers of Beneficial Interests in a Regulation S Global Note. Subject to the Applicable Procedures, the following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note that is a Restricted Note:
 
 	(i)	If the owner of a beneficial interest in a Regulation S Global Note that is a Restricted Note wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A:	
 
 	(A)	upon receipt by the Registrar of:	
 
 	(1)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
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 	(2)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(3)	a certificate in the form of Exhibit D hereto, duly executed by the transferor;	
 
 	(B)	the Note Custodian shall increase the Rule 144A Global Note and decrease the Regulation S Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(c) Other Transfers. Any registration of transfer of Restricted Notes (including Certificated Notes) not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with  Section 2.9(d) .
(d) Use and Removal of Private Placement Legends. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing (or not required to bear upon such transfer, exchange or replacement) a Private Placement Legend, the Note Custodian and Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note or Certificated Notes if they have been issued pursuant to  Section 2.7(c)  that does not bear a Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
 
 	(i)	such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of  Exhibit C  hereto, and an Opinion of Counsel reasonably satisfactory to the Registrar;	
 
 	(ii)	such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor and, in the case of any such Restricted Notes, the Issuer has complied with the applicable procedures for delegending in accordance with  Section 2.9(h) ; or	
 
 	(iii)	in connection with such registration of transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably satisfactory to the Issuer and the Registrar to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.	
 
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The Holder of a Global Note bearing a Private Placement Legend may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to this  Section 2.9(d) .
(e) Consolidation of Global Notes and Exchange of Certificated Notes for Beneficial Interests in Global Notes. If a Global Note not bearing a Private Placement Legend is Outstanding at the time of a removal of legends pursuant to Section 2.9(h) , any interests in a Global Note delegended pursuant to  Section 2.9(h)  shall be exchanged for interests in such Outstanding Global Note, subject to the proviso at the end of  Section 2.14(a) .
(f) Retention of Documents. The Registrar and the Trustee shall retain copies of all letters, notices and other written communications received pursuant to this  Article II  and in accordance with the Trustee’s, or if different, the Registrar’s, record retention procedures. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar or the Trustee, as the case may be.
(g) General Provisions Relating to Transfers and Exchanges.
 
 	(i)	Subject to the other provisions of this Section 2.9, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met;  provided , that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.	
 
 	(ii)	To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II , the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, Certificated Notes and Global Notes, as applicable, at the Registrar’s or co-Registrar’s request.	
 
 	(iii)	No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer and the Trustee may require	
 
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 	payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to  Section 3.8 ,  Section 3.9 ,  Section 5.1  or  Section 9.5 ).	
 
 	(iv)	The Registrar or co-Registrar shall not be required to register the transfer of or exchange of (x) any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.	
 
 	(v)	Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar or the Note Custodian shall be affected by notice to the contrary.	
 
 	(vi)	All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.	
 
 	(vii)	Subject to Section 2.7 and this Section 2.9, in connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged.	
(h) Applicable Procedures for Delegending.
 
 	(i)	Promptly after one year has elapsed following (A) the Issue Date or (B) if the Issuer has issued Additional Notes with the same terms and the same CUSIP number as the Issue Date Notes pursuant to this Indenture within one year following the Issue Date, the date of original issuances of such Additional Notes, if the relevant Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Issuer where no conditions of Rule 144 are	
 
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 	then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Issuer shall:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Notes, and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;	
 
 	(2)	notify Holders of such Notes that the Private Placement Legend has been removed or deemed removed; and	
 
 	(3)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
In no event will the failure of the Issuer to provide any notice set forth in this paragraph or of the Trustee to remove the Private Placement Legend constitute a failure by the Issuer to comply with any of its covenants or agreements set forth in  Section 6.1  or otherwise. Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Restricted Note for exchange to the Registrar in accordance with the provisions of  Article II  of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend. The Issuer shall notify the Trustee in writing upon occurrence of the Resale Restriction Termination Date for any Note.
 
 	(ii)	In the case of a Regulation S Global Note, after the Resale Restriction Termination Date of any such Regulation S Global Note, the Issuer may, at its sole option:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Regulation S Global Note (including setting forth the basis for such removal), and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from such Regulation S Global Note without further action on the part of Holders; and	
 
 	(2)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
 
 	(iii)	Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (A) each reference	
 
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 	in this Section 2.9(h) to “one year” and in the Private Placement Legend described in Section 2.8(b)  and  Exhibit A  hereto to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, and (B) all corresponding references in this Indenture (including the definition of Resale Restriction Termination Date), the Notes and the Private Placement Legends thereon shall be deemed for all purposes hereof to be references to such changed period;  provided , that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws;  provided further  that if such change does not apply to existing Notes, all references to “one year” in this Indenture shall not be deemed for all purposes hereof to be references to such changed period. This  Section 2.9(h)  shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.	
(i) No Obligation of the Trustee.
 
 	(i)	The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, Agent Members or any other Persons with respect to the accuracy of the records of DTC or its nominee or of Agent Members, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners.	
 
 	(ii)	The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.	
 
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Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery, a replacement Note for such mutilated, lost or stolen Note, of like tenor and principal amount, bearing a number not contemporaneously Outstanding if:
 
 	(i)	the requirements of Section 8-405 of the Uniform Commercial Code are met,	
 
 	(ii)	the Holder satisfies any other reasonable requirements of the Trustee, and	
 
 	(iii)	neither the Issuer nor the Trustee has received notice that such Note has been acquired by a protected purchaser (as defined in  Section 8-303  of the Uniform Commercial Code).	
If required by the Trustee or the Issuer, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar and the Note Custodian from any loss that any of them may suffer if a Note is replaced.
(b) Upon the issuance of any new Note under this Section 2.10, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.10 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Note Guarantor and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Section 2.11 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer will prepare and execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuer pursuant to  Section 2.3  for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery in exchange therefor, one or more definitive Notes
 
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representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.12 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or upon written request of the Issuer, return to the Issuer all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange upon Issuer Order.
Section 2.13 Defaulted Interest.
When any installment of interest becomes overdue (a “Defaulted Interest”), such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) shall be paid by the Issuer, at its election, as provided in clause (a) or clause (b) below.
(a) The Issuer may elect to make payment of any Defaulted Interest (including any interest payable on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “ Special Record Date ”), which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this  Section 2.13(a) . Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to clause (b) below; or
 
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(b) The Issuer may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this  Section 2.13(b) , such manner of payment shall be deemed practicable by the Trustee. The Trustee shall in the name and at the expense of the Issuer cause prompt notice of the proposed payment and the date thereof to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register.
Section 2.14 Additional Notes.
(a) The Issuer may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“ Additional Notes ”) that shall have terms and conditions identical to those of the other Outstanding Notes, except with respect to:
 
 	(i)	the Issue Date;	
 
 	(ii)	the amount of interest payable on the first Interest Payment Date therefor;	
 
 	(iii)	the issue price; and	
 
 	(iv)	any adjustments necessary in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any agreement applicable to such Additional Notes, which are not adverse in any material respect to the Holder of any Outstanding Notes (other than such Additional Notes).	
The Notes issued on the Issue Date and any Additional Notes shall be treated as a single series for all purposes under this Indenture;  provided , that the Issuer may use different CUSIP or other similar numbers among Issue Date Notes and among Additional Notes to the extent required to comply with securities or tax law requirements, including to permit delegending pursuant to  Section 2.9(h) .
(b) With respect to any Additional Notes, the Issuer will set forth in an Officer’s Certificate of the Issuer (the “ Additional Note Certificate ”), copies of which will be delivered to the Trustee, the following information:
 
 	(i)	the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;	
 
 	(ii)	the Issue Date and the issue price of such Additional Notes; provided, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code, unless such Additional Notes have a separate CUSIP or other similar number from other Notes; and	
 
 	(iii)	whether such Additional Notes will be subject to transfer restrictions under the Securities Act (or other applicable securities laws).	
 
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ARTICLE III
COVENANTS
Section 3.1 Payment of Notes.
(a) The Issuer shall pay the principal of and interest (including Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the manner provided in the Notes and in this Indenture. Prior to 10:00 a.m. New York City time, on the Business Day prior to each Interest Payment Date and the Maturity Date, the Issuer shall deposit with the Paying Agent in immediately available funds U.S. Legal Tender sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. If the Issuer or an Affiliate of the Issuer is acting as Paying Agent, the Issuer or such Affiliate shall, prior to 10:00 a.m. New York City time on the Business Day prior to each Interest Payment Date and the Maturity Date, segregate and hold in trust U.S. Legal Tender, sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or an Affiliate of the Issuer) holds in accordance with this Indenture U.S. Legal Tender designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
(b) The Issuer hereby instructs the Trustee to establish an “Issue Date Note Account” for reception of the interest and principal payments for the Issue Date Notes.
Section 3.2 Maintenance of Office or Agency.
(a) The Issuer shall maintain each office or agency required under Section 2.3. The Issuer will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Issuer may also from time to time designate one or more other offices or agencies (in or outside of the City of New York) where the Notes may be presented or surrendered for registration of transfer or for exchange and may from time to time rescind any such designation;  provided ,  however , that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
Section 3.3 Corporate Existence. Subject to Article IV, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
 
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Section 3.4 Payment of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Issuer or any Restricted Subsidiary or for which it or any of them are otherwise liable, or upon the income, profits or property of the Issuer or any Restricted Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Lien upon the property of the Issuer or any Restricted Subsidiary;  provided ,  however , that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of the Issuer), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.5 Compliance Certificate. The Issuer and each Note Guarantor shall deliver to the Trustee within 105 days after the end of each fiscal year of the Issuer (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue Date) an Officer’s Certificate stating that in the course of the performance by the signers of their duties as Officers of the Issuer or such Note Guarantor, as the case may be, they would normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during the previous fiscal year. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Issuer or such Note Guarantor is taking or proposes to take with respect thereto.
Section 3.6 Further Instruments and Acts.
(a) The Issuer and each Note Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture.
(b) The Issuer and the Note Guarantors shall take, and shall cause their Subsidiaries party thereto to take, any and all actions required under the Intercreditor Agreement and the Security Documents to cause the Intercreditor Agreement and the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Note Guarantors hereunder, a valid and enforceable perfected security interest on all the Collateral, in favor of the Security Agent for the equal and ratable benefit of the Holders of the Notes, and the other Permitted Secured Obligations, first in priority to any and all security interests at any time granted upon the Collateral, subject in all respects to Liens imposed by law and Liens for judgments, taxes, assessments or governmental charges.
Section 3.7 Waiver of Stay, Extension or Usury Laws. The Issuer and each Note Guarantor covenant (to the fullest extent permitted by applicable law) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or such Note Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Issuer and each Note Guarantor hereby expressly waives (to the fullest extent permitted by applicable law) all benefit or
 
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advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 3.8 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon through the date of purchase (the “ Change of Control Payment ”).
(b) Within 30 days following the date upon which the Change of Control occurred, the Issuer must send, by first-class mail, a notice to each Holder, with a copy to the Trustee, offering to purchase the Notes as described above (a “ Change of Control Offer ”). The Change of Control Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Change of Control Payment Date ”).
(c) On the Change of Control Payment Date, the Issuer will, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(d) If only a portion of a Note is purchased pursuant to a Change of Control Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);  provided , that each new Note shall be in a minimum principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
 
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(e) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if:
 
 	(i)	a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or	
 
 	(ii)	notice of redemption has been given pursuant to this Indenture as described under Section 5.4 unless and until there is a default in payment of the applicable redemption price.	
(f) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations in connection with the purchase of Notes in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by doing so.
Section 3.9 Limitation on Incurrence of Additional Indebtedness.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness, including Acquired Indebtedness, except that the Issuer and/or any of the Note Guarantors may Incur Indebtedness, including Acquired Indebtedness, if, at the time of and immediately after giving  pro forma  effect to the Incurrence thereof and the application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Issuer is greater than or equal to 2.0 to 1.0.
(b) Notwithstanding clause (a) above, the Issuer and/or any of its Restricted Subsidiaries, as applicable, may Incur the following Indebtedness (“ Permitted Indebtedness ”):
 
 	(i)	Indebtedness not to exceed U.S.$1,000,000,000 in respect of the Notes, excluding Additional Notes, and Indebtedness consisting of the FRNs;	
 
 	(ii)	Guarantees by (A) any Note Guarantor of Indebtedness of the Issuer or another Note Guarantor permitted under this Indenture and (B) the Issuer of Indebtedness of any Note Guarantor;  provided , that if any such Guarantee is of Subordinated Indebtedness, then the obligations of the Issuer under the Notes and this Indenture or the Note Guarantee of such Note Guarantor, as applicable, will be senior to the Guarantee of such Subordinated Indebtedness;	
 
 	(iii)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries outstanding on the Issue Date (excluding Indebtedness permitted under clauses (v), (vi), (vii) or (x) of this definition of Permitted Indebtedness);	
 
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 	(iv)	Hedging Obligations, Compensation Related Hedging Obligations and any Guarantees thereof and any reimbursement obligations with respect to letters of credit related thereto, in each case entered into by the Issuer and/or any of its Restricted Subsidiaries;  provided , that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;	
 
 	(v)	intercompany Indebtedness between the Issuer and any Restricted Subsidiary or between any Restricted Subsidiaries;  provided , that in the event that at any time any such Indebtedness ceases to be held by the Issuer or a Restricted Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause (v) at the time such event occurs;	
 
 	(vi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;  provided , that such Indebtedness is extinguished within five Business Days of Incurrence; or (B) any cash pooling or other cash management agreements in place with a bank or financial institution but only to the extent of offsetting credit balances of the Issuer and/or its Restricted Subsidiaries pursuant to such cash pooling or other cash management agreement;	
 
 	(vii)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries represented by (A) endorsements of negotiable instruments in the ordinary course of business (excluding an  aval ), (B) documentary credits (including all forms of letter of credit), performance bonds or guarantees, advance payments, bank guarantees, bankers’ acceptances, surety or appeal bonds or similar instruments for the account of, or guaranteeing performance by, the Issuer and/or any Restricted Subsidiary in the ordinary course of business, (C) reimbursement obligations with respect to letters of credit in the ordinary course of business, (D) reimbursement obligations with respect to letters of credit and performance Guarantees in the ordinary course of business to the extent required pursuant to the terms of any Investment made pursuant to clause (12) of the definition of “Permitted Investment” and (E) other Guarantees by the Issuer and/or any Restricted Subsidiary in favor of a bank or financial institution in respect of obligations of that bank or financial institution to a third party in an amount not to exceed U.S.$500 million at any one time outstanding;  provided , that in the case of clauses (B), (C) and (D), upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;	
 
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 	(viii)	Refinancing Indebtedness in respect of:	
 
 	(A)	Indebtedness (other than Indebtedness owed to the Issuer or any Subsidiary of the Issuer) Incurred pursuant to clause (a) above (it being understood that no Indebtedness outstanding on the Issue Date is Incurred pursuant to such clause (a) above), or	
 
 	(B)	Indebtedness Incurred pursuant to clause (i), (ii) or (iii) above or this clause (viii);	
 
 	(ix)	Capitalized Lease Obligations, Sale and Leaseback Transactions, export credit facilities with a maturity of at least one year and Purchase Money Indebtedness of, including Guarantees of any of the foregoing by, the Issuer and/or any Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed U.S.$1 billion;	
 
 	(x)	Indebtedness arising from agreements entered into by the Issuer and/or a Restricted Subsidiary providing for bona fide indemnification, adjustment of purchase price or similar obligations not for financing purposes, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary (including minority interests);  provided , that in the case of a disposition, the maximum aggregate liability in respect of such Indebtedness shall at no time exceed the gross proceeds actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;	
 
 	(xi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries in an aggregate amount not to exceed U.S.$1 billion at any one time outstanding;  provided , that no more than U.S.$250 million of such Indebtedness at any one time outstanding (excluding any Indebtedness under a Permitted Liquidity Facility) may be Incurred by Restricted Subsidiaries that are not Note Guarantors, which amount shall be increased by the corresponding amount of other Indebtedness of Restricted Subsidiaries other than the Note Guarantors outstanding on the Issue Date and subsequently repaid from time to time but in any event not to exceed U.S.$500 million at any one time outstanding;  provided ,  further ,  however , that (A) the Issuer and/or any of its Restricted Subsidiaries may Incur Indebtedness under a Permitted Liquidity Facility and (B) in the event that the Issuer and/or any of its Restricted Subsidiaries shall have Incurred Indebtedness under a Permitted Liquidity Facility that increases the amount outstanding at such time pursuant to this clause (xi) in excess of U.S.$ 1 billion, then up to U.S.$1.2 billion may be Incurred pursuant to this clause (xi) at any one time outstanding;	
 
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 	(xii)	(A) Indebtedness of the Issuer and/or any of its Restricted Subsidiaries in respect of factoring arrangements or Inventory Financing arrangements or (B) other Indebtedness of the Issuer and/or any of its Restricted Subsidiaries with a maturity of 12 months or less for working capital purposes, not to exceed in the aggregate at any one time (calculated as of the end of the most recent fiscal quarter for which consolidated financial information of the Issuer is available) the greater of:	
 
 	(1)	The sum of:	
 
 	(x)	20% of the net book value of the inventory of the Issuer and its Restricted Subsidiaries and	
 
 	(y)	20% of the net book value of the accounts receivable of the Issuer and its Restricted Subsidiaries (excluding accounts receivable pledged to secure Indebtedness or subject to a Qualified Receivables Transaction),	
less, in each case, the amount of any permanent repayments or reductions of commitments in respect of such Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to comply with Section 3.12 ; or
 
 	(2)	U.S.$350 million;	
 
 	(xiii)	[Reserved];	
 
 	(xiv)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business;  provided , that such Indebtedness shall be permitted to be Incurred only at such time that the Facilities Agreement (or any refinancing thereof) shall contain an exception to allow the Incurrence of Indebtedness to pay taxes;	
 
 	(xv)	Indebtedness Incurred pursuant to the Banobras Facility;	
 
 	(xvi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries Incurred and/or issued to refinance Qualified Receivables Transactions in existence on the Issue Date;	
 
 	(xvii)	Acquired Indebtedness in an aggregate amount at any one time outstanding under this clause (xvii) not to exceed U.S.$100 million; and	
 
 	(xviii)	(A) any Indebtedness that constitutes an Investment that the Issuer and/or any of its Restricted Subsidiaries is contractually committed to	
 
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 	Incur as of the Issue Date in any Person (other than a Subsidiary) in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities; and (B) Guarantees up to U.S.$100 million in any calendar year by the Issuer and/or any Restricted Subsidiary of Indebtedness of any Person in which the Issuer or any of its Restricted Subsidiaries maintains an equity Investment minus any Investment other than such guarantees in such Person during such calendar year pursuant to clause (17)(b) of the definition of “Permitted Investments.”	
(c) Notwithstanding anything to the contrary contained in this Section 3.9,
 
 	(i)	The Issuer shall not, and shall not permit any Note Guarantor to, Incur any Permitted Indebtedness pursuant to  Section 3.9(b)  if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Indebtedness unless such Indebtedness shall be subordinated to the Notes or the applicable Note Guarantee, as the case may be, to at least the same extent as such Subordinated Indebtedness.	
 
 	(ii)	For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with this  Section 3.9 , the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness for purposes of this  Section 3.9 . For purposes of determining compliance with this  Section 3.9 , mark-to-market fluctuations of hedging obligations or derivatives outstanding on the Issue Date shall not constitute Incurrence of Indebtedness.	
 
 	(iii)	For purposes of determining compliance with this Section 3.9, the principal amount of Indebtedness denominated in foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;  provided , that if such Indebtedness is Incurred to refinance other Indebtedness denominated in foreign currency, and such refinancing would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such	
 
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 	Indebtedness being refinanced. Notwithstanding any other provision of this Section 3.9, the maximum amount of Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.	
 
 	(iv)	For purposes of determining compliance with this Section 3.9:	
 
 	(A)	in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including, without limitation, in  Section 3.9(a) , the Issuer, in its sole discretion, will classify such item of Indebtedness at the time of Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and may later reclassify all or a portion of such item of Indebtedness as having been Incurred pursuant to any other clause to the extent such Indebtedness could be Incurred pursuant to such clause at the time of such reclassification; and	
 
 	(B)	the Issuer will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above, including, without limitation,  Section 3.9(a) .	
Section 3.10 [Reserved].
Section 3.11 Limitation on Restricted Payments.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, take any of the following actions (each, a “ Restricted Payment ”):
 
 	(i)	declare or pay any dividend or return of capital or make any distribution on or in respect of shares of Capital Stock of the Issuer or any Restricted Subsidiary to holders of such Capital Stock, other than:	
 
 	(A)	dividends, distributions or returns on capital payable in Qualified Capital Stock of the Issuer,	
 
 	(B)	dividends, distributions or returns on capital payable to the Issuer and/or a Restricted Subsidiary,	
 
 	(C)	dividends, distributions or returns of capital made on a pro rata basis to the Issuer and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder);	
 
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 	(ii)	purchase, redeem or otherwise acquire or retire for value:	
 
 	(A)	any Capital Stock of the Issuer, or	
 
 	(B)	any Capital Stock of any Restricted Subsidiary held by an Affiliate of the Issuer or any Preferred Stock of a Restricted Subsidiary, except for:	
 
 	(1)	Capital Stock held by the Issuer or a Restricted Subsidiary, or	
 
 	(2)	purchases, redemptions, acquisitions or retirements for value of Capital Stock on a pro rata basis from the Issuer and/or any Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand, according to their respective percentage ownership of the Capital Stock of such Restricted Subsidiary;	
 
 	(iii)	make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Subordinated Indebtedness; or	
 
 	(iv)	make any Investment (other than Permitted Investments);	
if at the time of the Restricted Payment immediately after giving effect thereto:
 
 	(A)	a Default or an Event of Default shall have occurred and be continuing;	
 
 	(B)	the Issuer is not able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); or	
 
 	(C)	the aggregate amount (the amount expended for these purposes, if other than in cash, being the Fair Market Value of the relevant property at the time of the making thereof) of the proposed Restricted Payment and all other Restricted Payments made subsequent to the Issue Date up to the date thereof, less any Investment Return calculated as of the date thereof, shall exceed the sum of:	
 
 	(1)	50% of cumulative Consolidated Net Income of the Issuer or, if cumulative Consolidated Net Income of the Issuer is a loss, minus (i) 100% of the loss, accrued during the period, treated as one accounting period, beginning on the first full fiscal quarter after the Issue Date to the end of the most recent fiscal quarter for which consolidated financial information of the Issuer is available and (ii) the amount of cash benefits to the Issuer or a Restricted Subsidiary that is netted against Investments in Similar Businesses pursuant to clause (12) of the definition of “Permitted Investments”; plus	
 
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 	(2)	100% of the aggregate net cash proceeds received by the Issuer from any Person from any:	
 
 	•	 	contribution to the equity capital of the Issuer (not representing an interest in Disqualified Capital Stock) or issuance and sale of Qualified Capital Stock of the Issuer, in each case, subsequent to the Issue Date, or	
 
 	•	 	issuance and sale subsequent to the Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at such time as it was a Restricted Subsidiary) of any Indebtedness for borrowed money of the Issuer or any Restricted Subsidiary that has been converted into or exchanged for Qualified Capital Stock of the Issuer,	
excluding, in each case, any net cash proceeds:
 
 	•	 	received from a Subsidiary of the Issuer;	
 
 	•	 	used to redeem Notes under Article V;	
 
 	•	 	used to acquire Capital Stock or other assets from an Affiliate of the Issuer; or	
 
 	•	 	applied in accordance with clause (ii)(B) or (iii)(A) of Section 3.11(b) below.	
(b) Notwithstanding Section 3.11(a), this Section 3.11 does not prohibit:
 
 	(i)	the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration pursuant to  Section 3.11(a) ;	
 
 	(ii)	if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Issuer,	
 
 	(A)	in exchange for Qualified Capital Stock of the Issuer, or	
 
 	(B)	through the application of the net cash proceeds received by the Issuer from a substantially concurrent sale of Qualified Capital Stock of the Issuer or a contribution to the equity capital of the Issuer not representing an interest in Disqualified Capital Stock, in each case not received from a Subsidiary of the Issuer;	
 
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provided, that the value of any such Qualified Capital Stock issued in exchange for such acquired Capital Stock and any such net cash proceeds shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iii)	if no Default or Event of Default shall have occurred and be continuing, the voluntary prepayment, purchase, defeasance, redemption or other acquisition or retirement for value of any Subordinated Indebtedness:	
 
 	(A)	solely in exchange for, or through the application of net cash proceeds of a substantially concurrent sale, other than to a Subsidiary of the Issuer, of Qualified Capital Stock of the Issuer, or	
 
 	(B)	solely in exchange for Refinancing Indebtedness for such Subordinated Indebtedness,	
provided, that the value of any Qualified Capital Stock issued in exchange for Subordinated Indebtedness and any net cash proceeds referred to above shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iv)	repurchases by the Issuer of Common Stock of the Issuer or options, warrants or other securities exercisable or convertible into Common Stock of the Issuer from employees or directors of the Issuer or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment or directorship of the employees or directors, in an amount not to exceed U.S.$5 million in any calendar year and any repurchases other than in connection with compensation of Common Stock of the Issuer pursuant to binding written agreements in effect on the Issue Date;	
 
 	(v)	payments of dividends on Disqualified Capital Stock issued pursuant to the covenant described under Section 3.9 ;  provided ,  however , that such dividends shall be excluded in the calculation of the amount of Restricted Payments;	
 
 	(vi)	non-cash repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights;	
 
 	(vii)	cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Issuer;	
 
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 	(viii)	purchases of any Subordinated Indebtedness of the Issuer (A) at a purchase price not greater than 101% of the principal amount thereof (together with accrued and unpaid interest) in the event of the occurrence of a Change of Control or (B) at a purchase price not greater than 100% of the principal amount thereof (together with accrued and unpaid interest) in the event of an Asset Sale in accordance with provisions similar to those set forth under  Section 3.12 ;  provided ,  however , that prior to such purchase of any such Subordinated Indebtedness, the Issuer has made the Change of Control Offer or Asset Sale Offer as provided under Section 3.8  or  Section 3.12 , respectively, and has purchased all Notes validly tendered and not properly withdrawn pursuant thereto;	
 
 	(ix)	recapitalization of earnings on or in respect of the Qualified Capital Stock of the Issuer pursuant to which additional Qualified Capital Stock of the Issuer or the right to subscribe for additional Capital Stock of the Issuer is issued to the existing shareholders of the Issuer on a  pro rata  basis (which, for the avoidance of doubt, shall not allow any payment in cash to be made in respect of Qualified Capital Stock of the Issuer pursuant to this clause (ix)); and	
 
 	(x)	so long as (A) no Default or Event of Default shall have occurred and be continuing (or result therefrom) and (B) the Issuer could Incur at least U.S.$1.00 of additional Debt pursuant to  Section 3.9(a) , payment of any dividends on Capital Stock (other than Disqualified Capital Stock) of the Issuer in an aggregate amount which, when taken together with all dividends paid pursuant to this clause (x), does not exceed U.S.$50 million in any calendar year;  provided , that such dividends shall be included in the calculation of the amount of Restricted Payments.	
 
 	(xi)	[Reserved]	
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (i) (without duplication for the declaration of the relevant dividend), (iv), (viii) and (x) above shall be included in such calculation and amounts expended pursuant to clauses (ii), (iii), (v), (vi), (vii) and (ix) above shall not be included in such calculation.
Section 3.12 Limitation on Asset Sales.
(a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
 
 	(i)	the Issuer or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (to be determined as of the date on which such sale is contracted) of the assets sold or otherwise disposed of, and	
 
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 	(ii)	other than in respect of Permitted Asset Swap Transactions, at least 80% of the consideration received for the assets sold by the Issuer or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale;  provided ,  however , for the purposes of this clause (ii), the following are also deemed to be cash or Cash Equivalents:	
 
 	(A)	the assumption of Indebtedness (other than Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Sale;	
 
 	(B)	any securities, notes or obligation received by the Issuer or any Restricted Subsidiary from the transferee that are, within 180 days after the Asset Sale, converted by the Issuer or such Restricted Subsidiary into cash, to the extent of cash received in that conversion;	
 
 	(C)	Capital Stock of a Person who is or who, after giving effect to such Asset Sale, becomes, a Restricted Subsidiary; and	
 
 	(D)	any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in connection with such Asset Sale having an aggregate Fair Market Value which, when taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (D) since the Issue Date, does not exceed the sum of (1) 3.0% of Consolidated Tangible Assets of the Issuer calculated as of the end of the most recent fiscal quarter for which consolidated financial information is available (with the Fair Market Value of each item of Designated Non-cash Consideration being measured as of the date it was received and without giving effect to subsequent changes in value of any such item of Designated Non-cash Consideration) and (2) the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.	
(b) The Issuer or any Restricted Subsidiary may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
 
 	(i)	repay any Senior Indebtedness for borrowed money or constituting a Capitalized Lease Obligation and permanently reduce the commitments with respect thereto, or	
 
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 	(ii)	purchase:	
 
 	(A)	assets (except for current assets as determined in accordance with GAAP or Capital Stock) to be used by the Issuer or any Restricted Subsidiary in a Permitted Business, or	
 
 	(B)	substantially all of the assets of a Permitted Business or Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary from a Person other than the Issuer and its Restricted Subsidiaries.	
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the Asset Sale as described in clause (i) or (ii) of  Section 3.12(b) , the Issuer will make an offer to purchase Notes (the “ Asset Sale Offer ”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “ Asset Sale Offer Amount ”). The Issuer will purchase pursuant to an Asset Sale Offer from all tendering Holders on a  pro rata  basis, and, at the Issuer’s option, on a pro rata  basis with the holders of any other Senior Indebtedness with similar provisions requiring the Issuer to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Issuer may satisfy its obligations under this  Section 3.12  with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
(d) Pending the final application of any Net Cash Proceeds pursuant to this Section 3.12, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(e) The purchase of Notes pursuant to an Asset Sale Offer shall occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale. The Issuer may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$100 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$100 million, shall be applied as required pursuant to this  Section 3.12 .
(f) Each Asset Sale Offer Notice shall be mailed first class, postage prepaid, to the record Holders as shown on the Note Register within 20 days following such 365th day (or such earlier date as the Issuer shall have elected to make such Asset Sale Offer), with a copy to the Trustee offering to purchase the Notes as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Asset Sale Offer Payment Date ”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part, in minimum denominations of U.S.$200,000 and in any integral multiples of U.S.$1,000 in excess thereof in exchange for cash.
 
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(g) On the Asset Sale Offer Payment Date, the Issuer shall, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(h) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Issuer shall purchase the Notes and the other Senior Indebtedness on a  pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased shall be issued in the name of the holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a global note shall be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled and cannot be reissued.
(i) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this  Section 3.12 , the Issuer shall comply with these laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of this Indenture by doing so.
(j) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds shall be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Issuer may use any remaining Net Cash Proceeds for general corporate purposes of the Issuer and its Restricted Subsidiaries.
(k) In the event of the transfer of substantially all (but not all) of the property and assets of the Issuer and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under  Article IV , the Successor Issuer shall be deemed to have sold the properties and assets of the Issuer and its Restricted Subsidiaries not so transferred for purposes of this Section 3.12 , and shall comply with the provisions of this  Section 3.12  with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Issuer or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this  Section 3.12 .
 
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(l) If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale, is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this  Section 3.12  within 365 days of conversion or disposition.
Section 3.13 Limitation on the Ownership of Capital Stock of Restricted Subsidiaries. The Issuer shall not permit any Person other than the Issuer or another Restricted Subsidiary to, directly or indirectly, own or control any Capital Stock of any Restricted Subsidiary, except for:
 
 	(i)	Capital Stock owned by such Person on the Issue Date;	
 
 	(ii)	directors’ qualifying shares;	
 
 	(iii)	the sale or Disposition of 100% of the shares of the Capital Stock of any Restricted Subsidiary held by the Issuer and its Restricted Subsidiaries to any Person other than the Issuer or another Restricted Subsidiary effected in accordance with, as applicable,  Section 3.12  and  Article IV ;	
 
 	(iv)	in the case of a Restricted Subsidiary other than a Restricted Subsidiary that is a Wholly Owned Subsidiary,	
 
 	(A)	the issuance by that Restricted Subsidiary of Capital Stock on a pro rata basis to the Issuer and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of such Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder); or	
 
 	(B)	sales, transfers and other dispositions of Capital Stock in a Restricted Subsidiary to the extent required by, or made pursuant to, buy/sell, put/call or similar shareholder arrangements set forth in binding agreements in effect on the Issue Date; and	
 
 	(v)	the sale of Capital Stock of a Restricted Subsidiary by the Issuer or another Restricted Subsidiary or the sale or issuance by a Restricted Subsidiary of its newly-issued Capital Stock if such sale or issuance is made in compliance with  Section 3.12  and either:	
 
 	(A)	such Restricted Subsidiary is no longer a Subsidiary, and the continuing Investment of the Issuer and its Restricted Subsidiaries in such former Restricted Subsidiary is in compliance with  Section 3.11 , or	
 
 	(B)	such Restricted Subsidiary continues to be a Restricted Subsidiary.	
 
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Section 3.14 Limitation on Designation of Unrestricted Subsidiaries.
(a) The Issuer may designate after the Issue Date any Subsidiary of the Issuer other than a Note Guarantor as an Unrestricted Subsidiary under this Indenture (a “ Designation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and any transactions between the Issuer or any of its Restricted Subsidiaries and such Unrestricted Subsidiary are in compliance with  Section 3.18;	
 
 	(ii)	at the time of and after giving effect to such Designation, the Issuer could Incur U.S.$1.00 of additional Indebtedness pursuant to  Section 3.9(a) ;	
 
 	(iii)	the Issuer would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation and treating such Designation as an Investment at the time of Designation) as a Restricted Payment pursuant to  Section 3.11(a)  in an amount (the “ Designation Amount ”) equal to the amount of the Issuer’s Investment in such Subsidiary on such date; and	
 
 	(iv)	the terms of any Affiliate Transaction existing on the date of such Designation between the Subsidiary being designated (and its Subsidiaries) and the Issuer or any Restricted Subsidiary would be permitted under Section 3.18  if entered into immediately following such Designation.	
(b) Neither the Issuer nor any Restricted Subsidiary shall at any time:
 
 	(i)	provide credit support for, subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);	
 
 	(ii)	be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary; or	
 
 	(iii)	be directly or indirectly liable for any Indebtedness which provides that the Holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary.	
 
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(c) The Issuer may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “ Revocation ”) only if:
 
(i)	no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and	
 
 	(ii)	all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation, if Incurred at such time, would have been permitted to be Incurred for all purposes of this Indenture.	
(d) The Designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary shall be deemed to include the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries. All Designations and Revocations must be evidenced by an Officer’s Certificate of the Issuer, delivered to the Trustee certifying compliance with the preceding provisions.
Section 3.15 Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
 
 	(i)	pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;	
 
 	(ii)	make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or	
 
 	(iii)	transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.	
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
 
 	(i)	applicable law, rule, regulation or order;	
 
 	(ii)	this Indenture;	
 
 	(iii)	any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof;  provided , that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;	
 
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 	(iv)	customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;	
 
 	(v)	any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;	
 
 	(vi)	restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary;  provided , that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);	
 
 	(vii)	customary restrictions imposed on the transfer of copyrighted or patented materials;	
 
 	(viii)	an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this  Section 3.15(b) ;  provided , that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;	
 
 	(ix)	Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;	
 
 	(x)	Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this  Section 3.15(b)  above on the property so acquired;	
 
 	(xi)	restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;	
 
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 	(xii)	customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;	
 
 	(xiii)	restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under  Section 3.9 ;  provided , that such restrictions (A) are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) constitute financial covenants or similar restrictions that limit the ability to pay dividends or make distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the declaration or payment of dividends or other distributions; and	
 
 	(xiv)	net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.	
Section 3.16 Limitation on Layered Indebtedness.
The Issuer shall not, and shall not permit any Note Guarantor to, directly or indirectly, Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness, unless such Indebtedness is expressly subordinate in right of payment to the Notes or, in the case of a Note Guarantor, its Note Guarantee, to the same extent, on the same terms and for so long (except as a result of the provisions of the Intercreditor Agreement applicable to Facilities Agreement Indebtedness and any refinancing thereof) as such Indebtedness is subordinate to such other Indebtedness.
Section 3.17 Limitation on Liens.
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, incur, grant, assume or suffer to exist any Liens of any kind (except for Permitted Liens) (a) against or upon any of their respective properties or assets, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade payables or (b) deemed to exist in respect of Capitalized Lease Obligations (including any Capitalized Lease Obligations in respect of Sale and Leaseback Transactions), in each case, unless contemporaneously therewith effective provision is made:
 
 	(i)	in the case of the Issuer or any Restricted Subsidiary that is not a Note Guarantor, to secure the Notes and all other amounts due under this Indenture; and	
 
 	(ii)	in the case of a Note Guarantor, to secure such Note Guarantor’s Note Guarantee of the Notes and all other amounts due under this Indenture,	
 
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in each case, equally and ratably with such Indebtedness or other obligation (or, in the event that such Indebtedness is subordinated in right of payment to the Notes or such Note Guarantee, as the case may be, prior to such Indebtedness or other obligation) with a Lien on the same properties and assets securing such Indebtedness or other obligation for so long as such Indebtedness or other obligation is secured by such Lien.
Section 3.18 Limitation on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any Affiliate of the Issuer (each an “ Affiliate Transaction ”), unless the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Issuer;
(b) The provisions of Section 3.18(a) above shall not apply to:
 
 	(i)	Affiliate Transactions with or among the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries;	
 
 	(ii)	reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Issuer or any Restricted Subsidiary as determined in good faith by the Issuer’s Board of Directors or, to the extent consistent with past practice, senior management;	
 
 	(iii)	Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date with modifications, extensions and replacements thereof not materially adverse to the Issuer and its Restricted Subsidiaries) as determined in good faith by the Issuer’s senior management;	
 
 	(iv)	any Restricted Payments in compliance with Section 3.11;	
 
 	(v)	payments and issuances of Qualified Capital Stock to any officers, directors and employees of the Issuer or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other stock subscription or shareholder agreement, and any employment agreements, stock option plans or other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such officers, directors or employees that are, in each case, approved in good faith by the Board of Directors or, to the extent consistent with past practice, senior management of the Issuer;	
 
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 	(vi)	loans and advances to officers, directors and employees of the Issuer or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business in amounts consistent with the past practice of the Issuer or such Restricted Subsidiary; and	
 
 	(vii)	loans made by the Issuer or any Restricted Subsidiary to employees or directors in an aggregate amount not to exceed U.S.$15 million (or its equivalent in another currency) at any time outstanding.	
Section 3.19 Conduct of Business. The Issuer and its Restricted Subsidiaries shall not engage in any business other than a Permitted Business.
Section 3.20 Reports to Holders.
(a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Issuer shall:
 
 	(i)	provide the Trustee and the Holders with:	
 
 	(A)	annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));	
 
 	(B)	reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Issuer in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year;	
 
 	(C)	such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and	
 
 	(ii)	file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) within the periods specified for such filings under the Exchange Act (whether or not applicable to the Issuer).	
(b) In addition, at any time when the Issuer is not subject to or is not current in its reporting obligations under clause (ii) of  Section 3.20(a) , the Issuer shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
 
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(c) Notwithstanding anything in this Indenture to the contrary, the Issuer shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iv) of  Section 6.1(a)  or for any other purpose hereunder until 75 days after the date any report hereunder is due.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 3.21 Payment of Additional Amounts.
(a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”) imposed or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “ Taxing Jurisdiction ”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided ,  however , that the foregoing obligation to pay Additional Amounts does not apply to:
 
 	(i)	any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),	
 
 	(ii)	any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,	
 
 	(iii)	any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of	
 
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 	the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,	
 
 	(iv)	any Taxes payable otherwise than by deduction or withholding from payments on the Notes,	
 
 	(v)	any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directives,	
 
 	(vi)	any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,	
 
 	(vii)	any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or	
 
 	(viii)	any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.	
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
 
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(d) The exception to the Issuer’s obligations to pay Additional Amounts stated in clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice or (ii) Article 195, Section II, paragraph (a) of the Mexican Income Tax Law ( Ley del Impuesto Sobre la Renta ) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such clause is expressly required by the applicable Mexican laws and regulations in order to apply Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on their own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations. In addition, clause (b)(iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service ( Servicio de Administración Tributaria ) or the Mexican Ministry of Finance and Public Credit ( Secretaría de Hacienda y Crédito Público ) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Section 3.22 Suspension of Covenants.
(a) During any period of time that the Notes do not have Investment Grade Ratings from two of the Rating Agencies and (i) the Consolidated Leverage Ratio of the Issuer is less than 3.5:1 and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred
 
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to as a “Partial Covenant Suspension Event”), the Issuer and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under Sections  3.12 ,  3.13 ,  3.14(b) ,  3.15 ,  3.18 ,  3.19  and  4.1(a)(ii)  (collectively, the “ Partial Suspended Covenants ”).
(b) During any period of time that (i) the Notes have Investment Grade Ratings from two of the Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Covenant Suspension Event ”), the Issuer and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under  Sections   3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14(b) , 3.15 ,  3.16 ,  3.18 ,  3.19  and  4.1(a)(ii)  (collectively, the “ Suspended Covenants ”).
(c) In addition, (x) no Subsidiary that is a Restricted Subsidiary on the date of the occurrence of a Partial Covenant Suspension Event (the “ Partial Covenant Suspension Date ”) or a Covenant Suspension Event (the “ Suspension Date ”) may be redesignated as an Unrestricted Subsidiary during the Partial Suspension Period or the Suspension Period, as applicable and (y) each Additional Note Guarantor shall be released from its obligation to guarantee the Notes on the date of a Partial Covenant Suspension Event or a Covenant Suspension Event, as the case may be.
(d) The Additional Note Guarantors shall be released from their obligation to guarantee the Notes upon the occurrence of a Partial Covenant Suspension Event or a Covenant Suspension Event;  provided , that upon the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, the guarantee of the Notes by the Additional Note Guarantors shall be reinstated in accordance with and subject to the conditions in  Section 3.22(e).
(e) In the event that the Issuer and its Restricted Subsidiaries are not subject to the Partial Suspended Covenants or the Suspended Covenants, as the case may be, for any period of time as a result of the foregoing, and on any subsequent date (in the case of Partial Suspended Covenants, such subsequent date being the “ Partial Covenant Reversion Date ” and, in the case of Suspended Covenants, such subsequent date being the “ Reversion Date ”) (i) the Consolidated Leverage Ratio of the Issuer is not less than 3.5:1 during the applicable Partial Suspension Period or (ii) the Notes do not have Investment Grade Ratings from at least two of the Rating Agencies during the applicable Suspension Period, then in each case in clauses (i) and (ii), the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Partial Suspended Covenants or the Suspended Covenants, as applicable, and the Notes will again be guaranteed by the Additional Note Guarantors (unless, solely with respect to any Additional Note Guarantor, the conditions for release as described under  Section 10.2  are otherwise satisfied during the Partial Suspension Period or the Suspension Period, as applicable). The Issuer shall cause such Additional Note Guarantor to promptly execute and deliver to the Trustee a supplemental indenture hereto in form and substance reasonably satisfactory to the Trustee in accordance with the provisions of  Article IX , evidencing that such Additional Note Guarantor’s guarantee on substantially the terms set forth in  Article X . The period of time between the Partial Covenant Suspension Date and the Partial Covenant Reversion Date is referred to as the “ Partial Suspension Period ” and the period of time between the Suspension Date and the Reversion Date is referred to as the “ Suspension Period .” Notwithstanding that the Partial Suspended Covenants, the Suspended Covenants and the guarantees by the Additional Note
 
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Guarantors may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Partial Suspended Covenants during the Partial Suspension Period or the Suspended Covenants during the Suspension Period, as the case may be (or upon termination of the applicable Partial Suspension Period or the Suspension Period or after that time based solely on events that occurred during the applicable Partial Suspension Period or the Suspension Period, as the case may be).
(f) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be classified to have been Incurred pursuant to  Section 3.9(a)  or  Section 3.9(b)  (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 3.9(a)  or  3.9(b) , such Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of  Section 3.9(b) . Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under  Section 3.11  shall be made as though  Section 3.11  had been in effect since the Issue Date and throughout the Suspension Period. The Issuer will give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date. After any such notice of the occurrence of a Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and effect. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under  Section 3.11(a) .
(g) The Issuer will give the Trustee written notice of any Partial Covenant Suspension Event or any Covenant Suspension Event and in any case no later than five (5) Business Days after such Partial Covenant Suspension Event or Covenant Suspension Event has occurred. In the absence of such notice, the Trustee shall assume that the Partial Suspended Covenants or the Suspended Covenants, as applicable, apply and are in full force and effect.
(h) For purposes of this Section 3.22 only, “Consolidated Leverage Ratio” and all associated definitions shall have the meaning set forth in  Exhibit E  hereto.
ARTICLE IV
SUCCESSOR ISSUER
Section 4.1 Merger, Consolidation and Sale of Assets.
(a) The Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Issuer shall be the surviving or continuing corporation, or	
 
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 	(B)	the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) substantially as an entirety (the “ Successor Issuer ”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and	
 
 	(2)	shall expressly assume, by a supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction), the Issuer or such Successor Issuer, as the case may be:	
 
 	(A)	shall have a Consolidated Fixed Charge Coverage Ratio that shall be not less than the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or	
 
 	(B)	shall be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a);	
 
 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;	
 
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 	(iv)	in the case of a transaction resulting in a Successor Issuer, each Note Guarantor has confirmed by supplemental indenture that its Note Guarantee shall apply for Obligations of the Successor Issuer in respect of this Indenture and the Notes; and	
 
 	(v)	if the Issuer merges with a Person, or the Successor Issuer is, organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, as applicable:	
 
 	(A)	the Holders of the Notes shall not recognize income, gain or loss for the purposes of the income tax laws of the United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and shall be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;	
 
 	(B)	any payment of interest or principal under or relating to the Notes or any Guarantees shall be paid in compliance with any requirements under  Section 3.21 ; and	
 
 	(C)	no other taxes on income, including capital gains, shall be payable by Holders of the Notes under the laws of the United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon;  provided , that the Holder does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.	
The provisions of clauses (ii) and (iii) of this Section 4.1(a) will not apply to:
 
 	(x)	any transfer of the properties or assets of a Restricted Subsidiary to the Issuer;	
 
 	(y)	any merger of a Restricted Subsidiary into the Issuer; or	
 
 	(z)	any merger of the Issuer into a Note Guarantor or a Wholly Owned Subsidiary of the Issuer.	
For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
 
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The Successor Issuer will succeed to, and be substituted for, such Issuer under this Indenture and the Notes, as applicable. For the avoidance of doubt, compliance with this  Section 4.1  will not affect the obligations of the Issuer (including a Successor Issuer, if applicable) under  Section 3.8  if applicable.
(b) Each Note Guarantor shall not, and the Issuer shall not cause or permit any such Note Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Issuer) that is not a Note Guarantor unless:
 
 	(i)	such Person (if such Person is the surviving entity) (the “Successor Note Guarantor”) assumes all of the obligations of such Note Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	such Note Guarantee is to be released as provided under Section 10.2(b); or	
 
 	(iii)	such sale or other disposition of substantially all of such Note Guarantor’s assets is made in accordance with  Section 3.12 .	
Subject to certain limitations described in this Indenture, the Successor Note Guarantor will succeed to, and be substituted for, such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee. The provisions of clauses (i), (ii) and (iii) of this  Section 4.1(b)  will not apply to:
 
 	(x)	any transfer of the properties or assets of a Note Guarantor to the Issuer or another Note Guarantor;	
 
 	(y)	any merger of a Note Guarantor into the Issuer or another Note Guarantor; or	
 
 	(z)	any merger of a Note Guarantor into a Wholly Owned Subsidiary of the Issuer.	
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 Optional Redemption. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, subject to the conditions and at the redemption prices specified in the Form of Note in  Exhibit A  hereto.
Section 5.2 [Reserved].
Section 5.3 Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to the optional redemption provisions of  Section 5.1  hereof, it shall furnish to the Trustee, at least 45
 
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days but not more than 60 days before the Redemption Date, an Officer’s Certificate setting forth: (a) the Redemption Date, (b) the principal amount of Notes to be redeemed, (c) the CUSIP numbers of the Notes, (d) the redemption price and (e) the amount of interest to be paid with respect to each multiple of U.S.$1,000 principal amount of Notes to be redeemed.
Section 5.4 Notice of Redemption.
(a) The Issuer shall prepare and mail or cause to be mailed a notice of redemption, in the manner provided for in Section 12.1 , not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.
(b) All notices of redemption shall state:
 
 	(i)	the Redemption Date,	
 
 	(ii)	the redemption price and the amount of any accrued interest payable as provided in Section 5.7,	
 
 	(iii)	whether or not the Issuer is redeeming all Outstanding Notes,	
 
 	(iv)	if the Issuer is not redeeming all Outstanding Notes, the aggregate principal amount of Notes that the Issuer is redeeming and the aggregate principal amount of Notes that will be Outstanding after the partial redemption, as well as the identification of the particular Notes, or portions of the particular Notes, that the Issuer is redeeming,	
 
 	(v)	if the Issuer is redeeming only part of a Note, the notice that relates to that Note shall state that on and after the Redemption Date, upon surrender of that Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount of the Note remaining unredeemed,	
 
 	(vi)	that on the Redemption Date the redemption price and any accrued interest payable to the Redemption Date as provided in  Section 5.7  will become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Issuer defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, will cease to accrue on and after the Redemption Date,	
 
 	(vii)	the place or places where a Holder must surrender Notes for payment of the redemption price and any accrued interest payable on the Redemption Date, and	
 
 	(viii)	the CUSIP number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP number.	
 
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(c) At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s names and at its expense; provided, however, that the Issuer shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding  Section 5.4(b) .
Section 5.5 Selection of Notes to Be Redeemed in Part.
(a) If the Issuer is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a national securities exchange, on a pro rata basis, by lot or by any other method as the Trustee shall deem fair and appropriate; provided, however, that if a partial redemption is made with the proceeds of an Equity Offering, selection of the Notes, or portions of the Notes, for redemption shall be made by the Trustee only on a pro rata basis, or on as nearly a pro rata basis as is practicable (subject to the procedures of DTC), unless the method is otherwise prohibited. The Trustee shall make the selection from the then Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than 30 nor more than 60 days prior to the relevant Redemption Date from the then Outstanding Notes not previously called-for redemption. No Notes of U.S.$200,000 principal amount or less shall be redeemed in part. The Trustee may select for redemption portions with minimum denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof.
(b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed.
Section 5.6 Deposit of Redemption Price.
On or prior to 10 :00 a.m. New York City time, on the Business Day prior to the Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or a Note Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in  Section 2.4 ) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Issuer is redeeming on that date.
Section 5.7 Notes Payable on Redemption Date.
If the Issuer, or the Trustee on behalf of the Issuer, gives notice of redemption in accordance with this Article V, the Notes, or the portions of Notes, called-for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Issuer shall default in the payment of the redemption price and accrued interest) the Notes or the portions of Notes shall cease to bear interest. Upon surrender
 
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of any Note for redemption in accordance with the notice, the Issuer shall pay the Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Issuer shall fail to pay any Note called-for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
Section 5.8 Unredeemed Portions of Partially Redeemed Note.
Upon surrender of a Note that is to be redeemed in part, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of the Note, at the expense of the Issuer, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered,  provided , that each new Note will be in a principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
 
 	(i)	default in the payment when due of the principal of or premium, if any, on any Notes, including the failure to make a required payment to purchase Notes tendered pursuant to an optional redemption, a Change of Control Offer or an Asset Sale Offer;	
 
 	(ii)	default for 30 days or more in the payment when due of interest or Additional Amounts on any Notes;	
 
 	(iii)	the failure to perform or comply with any of the provisions described under Article IV;	
 
 	(iv)	the failure by the Issuer or any Restricted Subsidiary to comply with, or in the case of non-guarantor Restricted Subsidiaries, to perform according to, any other covenant or agreement contained in this Indenture or in the Notes for 45 days or more after written notice to the Issuer from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes;	
 
 	(v)	default by the Issuer or any Restricted Subsidiary under any Indebtedness which:	
 
 	(A)	is caused by a failure to pay principal of, or premium, if any, when due or interest on such Indebtedness prior to the later of the expiration of any applicable grace period provided in such Indebtedness on the date of such default or five (5) days past when due; or	
 
 	(B)	results in the acceleration of such Indebtedness prior to its stated maturity;	
 
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and the principal or accreted amount of Indebtedness covered by clauses (v)(A) or (v)(B) of this Section 6.1(a)  at the relevant time, aggregates U.S.$50 million or more;
 
 	(vi)	failure by the Issuer or any of its Restricted Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$100 million or more, which judgment(s) are not paid, discharged or stayed for a period of 60 days or more;	
 
 	(vii)	a Bankruptcy Event of Default; or	
 
 	(viii)	except as permitted herein, any Note Guarantee is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any Note Guarantor, or any Person acting on behalf of any Note Guarantor, denies or disaffirms such Note Guarantor’s obligations under its Note Guarantee.	
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
(b) The Issuer shall deliver within 30 days to the Trustee written notice of any event which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in clause (vii) of Section 6.1(a) above with respect to the Issuer) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of then Outstanding Notes may declare the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in clause (vii) of  Section 6.1(a)  above occurs with respect to the Issuer, then the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences:
 
 	(i)	if the rescission would not conflict with any judgment or decree;	
 
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 	(ii)	if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration;	
 
 	(iii)	to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and	
 
 	(iv)	if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances.	
Section 6.3 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, the Holders of a majority in principal amount of the then Outstanding Notes may waive any existing Default or Event of Default, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any Notes.
Section 6.5 Control by Majority. The Holders of a majority in principal amount of the then Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. Subject to  Section 7.1  and  Section 7.2 , however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture;  provided ,  however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Section 6.6 Limitation on Suits.
(a) No Holder of any Notes shall have any right to institute any proceeding with respect hereto or for any remedy hereunder, unless:
 
 	(i)	such Holder gives to the Trustee written notice of a continuing Event of Default;	
 
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 	(ii)	Holders of at least 25% in principal amount of the then Outstanding Notes make a written request to pursue the remedy;	
 
 	(iii)	such Holders of the Notes provide to the Trustee indemnity satisfactory to it;	
 
 	(iv)	the Trustee does not comply within 60 days; and	
 
 	(v)	during such 60 day period the Holders of a majority in principal amount of the then Outstanding Notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request;	
provided, that a Holder of a Note may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such Note on or after the respective due dates expressed in such Note.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation,  Section 6.6 ), the right of any Holder to receive payment of principal or interest on the Notes held by such Holder, on or after the respective due dates, Redemption Dates or repurchase date expressed in this Indenture or the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default specified in clause (i) and (ii) of Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer and each Note Guarantor for the whole amount then due and owing (together with applicable interest on any overdue principal and, to the extent lawful, interest on overdue interest) and the amounts provided for in  Section 7.7 .
Section 6.9 Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of the Notes is then due):
 
 	(i)	file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Issuer, any Note Guarantor or any Subsidiary of the Issuer or their respective creditors or properties; and	
 
 	(ii)	collect and receive any monies or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture.	
Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
 
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in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to  Section 7.7 .
(b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer or, to the extent the Trustee collects any amount pursuant to Article X hereof from any Note Guarantor, to such Note Guarantor, or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Issuer, fix a record date and payment date for any payment to Holders pursuant to this  Section 6.10 .
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to  Section 6.7  or a suit by Holders of more than 10% in principal amount of Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
 
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(b) Except during the continuance of a Default or an Event of Default:
 
 	(i)	the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and	
 
 	(ii)	in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture.	
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
 
 	(i)	this clause (c) does not limit the effect of clause (b) of this Section 7.1;	
 
 	(ii)	the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and	
 
 	(iii)	the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.2 ,  6.4  or  6.5 .	
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this  Article VII .
 
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(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting at the direction of the Issuer or any Note Guarantor, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has received written notice at the Corporate Trust Office of any event which is in fact such a default, and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
 
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(i) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(k) In no event shall the Trustee be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Trustee has been advised of the possibility of such damages.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.
(m) The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Note Guarantors or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Transfer Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with  Section 7.10 .
Section 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in payment of principal or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
 
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Section 7.6 [Reserved].
Section 7.7 Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the review, negotiation, execution and delivery of this Indenture or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
(b) The Issuer and each Note Guarantor shall jointly and severally indemnify the Trustee against any and all loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this  Section 7.7 ) and of defending itself against any claims (whether asserted by any Holder, the Issuer, any Note Guarantor or otherwise). The Trustee shall notify the Issuer and each Note Guarantor promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer or any Note Guarantor shall not relieve the Issuer or any Note Guarantor of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided , that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuer and the Trustee in connection with such defense. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
(c) To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee’s right to receive payment of any amounts due under this  Section 7.7  shall not be subordinate to any other liability or Indebtedness of the Issuer.
(d) The Issuer’s obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Bankruptcy Event of Default, the expenses are intended to constitute expenses of administration under any Bankruptcy Law;  provided ,  however , that this shall not affect the Trustee’s rights as set forth in this  Section 7.7  or  Section 6.10 .
 
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Section 7.8 Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Issuer. The Holders of a majority in principal amount of the then Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Issuer. The Issuer shall remove the Trustee if:
 
 	(i)	the Trustee fails to comply with Section 7.10;	
 
 	(ii)	the Trustee is adjudged bankrupt or insolvent;	
 
 	(iii)	a receiver or other public officer takes charge of the Trustee or its property; or	
 
 	(iv)	the Trustee otherwise becomes incapable of acting.	
(b) If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in principal amount of the then Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in  Section 7.7(c) .
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the then Outstanding Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7  shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee.
 
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(b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates of authentication and such delivery shall be valid for purposes of this Indenture.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 [Reserved].
Section 7.12 [Reserved].
Section 7.13 Authorization and Instruction of the Trustee With Respect to the Collateral.
Each Holder and the Issuer authorize and instruct the Trustee (a) to enter into (or cause an agent or grant such powers of attorney to enter into), on its own behalf and on behalf of the Holders of Notes, such documents (the “ Security Documents ”) as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) in order to create and maintain the security interest of the Trustee and the Holders of Notes in the Collateral as may from time to time be provided to equally and ratably secure the Notes, (b) to grant such powers of attorney and to do or cause to be done all such acts and things, on its own behalf and in the name and on behalf of the Holders of Notes, as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) to create and maintain the security interest of the Trustee and the Holders of Notes in such Collateral, (c) to appoint the Security Agent to serve as direct representative of the Trustee and the Holders of Notes in connection with the creation and maintenance of the security interest of the Trustee and the Holders of Notes in such Collateral, (d) to accept the security interest in the Collateral on behalf of each Holder, and (e) to grant powers in favor of an attorney to execute an accession public deed before a Spanish notary public accepting the security interest in the Collateral on behalf of the Holders of Notes. It is understood and acknowledged that, in certain circumstances, the Security Documents may be amended, modified or waived without the consent of the Trustee or the Holders of Notes. It is understood and acknowledged that the Security Agent, in addition to being appointed by and acting on behalf of the Trustee and the Holders of Notes, has also been appointed by and is acting on behalf of (and may in the future be appointed by and act on behalf of) other creditors of the Issuer and its Subsidiaries. The Trustee will not have the right to cause the Security Agent to foreclose on the Collateral upon the occurrence of an Event of Default in respect of the Notes. The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer
 
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and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1 Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option, at any time, elect to have either Section 8.1(b) or (c) be applied to all Outstanding Notes upon compliance with the conditions set forth in  Section 8.2 .
(b) Upon the Issuer’s exercise under Section 8.1(a) of the option applicable to this clause (b), the Issuer shall, subject to the satisfaction of the conditions set forth in  Section 8.2 , be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in  Section 8.2  are satisfied (hereinafter, “ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the then Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of  Section 8.3  hereof and the other sections of this Indenture referred to in subclause (i) or (ii) of this clause (b), and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
 
 	(i)	the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in  Section 2.4  payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due,	
 
 	(ii)	the Issuer’s obligations with respect to such Notes under Article II and Section 3.2 hereof,	
 
 	(iii)	the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s obligations in connection therewith, and	
 
 	(iv)	this Article VIII.	
Subject to compliance with this Article VIII, the Issuer may exercise its option under this clause (b) notwithstanding the prior exercise of its option under  Section 8.1(c)  hereof.
(c) Upon the Issuer’s exercise under Section 8.1(a) hereof of the option applicable to this clause (c), the Issuer shall, subject to the satisfaction of the applicable conditions set forth in  Section 8.2 , be released from its obligations under Sections   3.4 ,  3.5 ,  3.8 ,  3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14 ,  3.15 ,  3.16 ,  3.17 ,  3.18 ,  3.19 ,  3.20 , 3.21, 3.22,  4.1(a)  and  4.1(b)  hereof with respect to the then Outstanding Notes on and after the date the conditions set forth below
 
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are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the then Outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under clause (iii) of  Section 6.1(a)  (solely with respect to any failure to perform under or comply with clause (ii) or (iii) of  Section 4.1(a) ), clause (iv) of  Section 6.1(a)  or clause (v) of Section 6.1(a)  hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.2 Conditions to Defeasance. The Issuer may exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(a) the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders cash in U.S. Legal Tender or U.S. Government Obligations, in such amounts as will be sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest (including Additional Amounts) on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer to the effect that:
 
 	(i)	the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling; or	
 
 	(ii)	since the Issue Date, there has been a change in the applicable U.S. federal income tax law,	
in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
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(d) no Default or Event of Default shall have occurred and be continuing on the date of the deposit pursuant to Section 8.2(a)  (except any Default or Event of Default resulting from the failure to comply with  Section 3.9  as a result of the borrowing of the funds required to effect such deposit);
(e) the Trustee has received an Officer’s Certificate stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(f) the Issuer has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over any other creditors of the Issuer or any Subsidiary of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(h) the Issuer has delivered to the Trustee an Opinion of Counsel from counsel reasonably acceptable to the Trustee and independent of the Issuer to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Section 8.3 Application of Trust Money.
The Trustee shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall apply the deposited U.S. Legal Tender or U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 8.4 Repayment to Issuer.
(a) The Trustee and the Paying Agent shall promptly turn over to the Issuer upon request any excess money or securities held by them upon payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal of, premium or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors.
 
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Section 8.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
Section 8.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VIII  by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Issuer under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this  Article VIII  until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with this  Article VIII ;  provided ,  however , that, if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.7 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Outstanding Notes when:
(a) either:
 
 	(i)	all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust) have been delivered to the Trustee for cancellation; or	
 
 	(ii)	all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient without reinvestment to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment;	
(b) the Issuer has paid all other sums payable under this Indenture and the Notes by it; and
(c) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
 
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ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without notice to or consent of any Holder:
 
 	(i)	to cure any ambiguity, omission, defect or inconsistency;	
 
 	(ii)	to comply with Article IV in respect of the assumption by a Successor Issuer of the obligations of the Issuer under the Notes and this Indenture;	
 
 	(iii)	to provide for uncertificated Notes in addition to or in place of Certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;	
 
 	(iv)	to add guarantees with respect to the Notes or to secure the Notes;	
 
 	(v)	to add to the covenants of the Issuer or the Note Guarantors for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer or the Note Guarantors;	
 
 	(vi)	to make any change that does not, in the opinion of the Issuer as conclusively evidenced by an Officer’s Certificate to such effect, adversely affect the rights of any Holder in any material respect;	
 
 	(vii)	to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the section “Description of Notes” in the Offering Memorandum to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture or the Notes or Note Guarantees;	
 
 	(viii)	to comply with the requirements of any applicable securities depositary;	
 
 	(ix)	to provide for the issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.14, which will have terms substantially identical to the other Outstanding Notes except as specified in  Section 2.13 , or Section 2.14 , and which will be treated, together with any other Outstanding Notes, as a single issue of securities; or	
 
 	(x)	in order to effect and maintain the listing of the Notes on the Global Exchange Market of the Irish Stock Exchange.	
 
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(b) After an amendment or supplement under this Section 9.1 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this  Section 9.1 .
Section 9.2 With Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). Subject to  Section 6.4 , the Holder or Holders of a majority in aggregate principal amount of the then Outstanding Notes may waive compliance by the Issuer and the Note Guarantors with any provision of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver may not:
 
 	(i)	reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver;	
 
 	(ii)	reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on any Notes;	
 
 	(iii)	reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;	
 
 	(iv)	make any Notes payable in money other than that stated in the Notes;	
 
 	(v)	make any change in the provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any, and interest on such Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of the then Outstanding Notes to waive Defaults or Events of Default;	
 
 	(vi)	amend, change or modify in any material respect any obligations of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred or make and consummate an Asset Sale Offer with respect to any Asset Sale that has been consummated;	
 
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 	(vii)	make any change in the provisions of this Indenture described under Section 3.21 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; or	
 
 	(viii)	make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes.	
(b) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment, supplement or waiver under this  Section 9.2 .
(d) The Notes issued on the Issue Date, and any Additional Notes part of the same series, will be treated as a single series for all purposes under this Indenture, including with respect to waivers and amendments. For the purposes of calculating the aggregate principal amount of Notes that have consented to or voted in favor of any amendment, waiver, consent, modifications or other similar action, the Issuer (acting reasonably and in good faith) shall be entitled to select a record date as of which the principal amount of any Notes shall be calculated in such consent or voting process.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment, supplement or waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment, supplement or waiver becomes effective, it shall bind every Holder, except as otherwise provided in this  Article IX . An amendment, supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of written consents under  Section 9.2 .
(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
 
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Section 9.5 Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer, in exchange for the Note, will execute and upon Issuer Order, the Trustee will authenticate and make available for delivery a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement.
Section 9.6 Trustee to Sign Amendments and Supplements. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this  Article IX  if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver, the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to  Section 7.1  and Section 7.2 ) shall be fully protected in relying upon, in addition to the documents required by  Section 12.4 , an Opinion of Counsel and an Officer’s Certificate each stating that such amendment, supplement or waiver is authorized or permitted by this Indenture and that all conditions precedent to the execution of such amendment, supplement or waiver have been complied with.
ARTICLE X
NOTE GUARANTEES
Section 10.1 Note Guarantees.
(a) Each Note Guarantor hereby fully and unconditionally guarantees, as primary obligor and not merely as surety, jointly and severally with each other Note Guarantor, to each Holder and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations (such guaranteed Obligations, the “ Guaranteed Obligations ”). Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and agrees to pay, in addition to the amounts stated in Section 10.1(f) , any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing or exercising any rights under any Note Guarantee.
(b) In no event shall the Trustee or the Holders be obligated to take any action, obtain any judgment or file any claim prior to enforcing or exercising any rights under any Note Guarantee.
(c) Each Note Guarantor further agrees that its Note Guarantee constitutes an absolute and unconditional and continuing guarantee. Each Note Guarantor hereby waives, to the extent permitted by law:
 
 	(i)	any claim as to the legality, validity, regularity or enforceability of this Indenture, the Notes or any other agreement;	
 
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 	(ii)	any claim as to the lack of authority of the Issuer to execute or deliver this Indenture, the Notes or any other agreement;	
 
 	(iii)	diligence, presentation to, demand of payment from and protest to the Issuer of any of the Obligations and notice of protest for nonpayment;	
 
 	(iv)	the occurrence of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(v)	notice of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(vi)	the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement;	
 
 	(vii)	any extension or renewal of the Obligations, this Indenture, the Notes or any other agreement;	
 
 	(viii)	any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;	
 
 	(ix)	the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Issuer;	
 
 	(x)	any setoff, counterclaim, recoupment, termination or defense of any kind or nature which may be available to or asserted by any Note Guarantor or the Issuer against the Holders or the Trustee;	
 
 	(xi)	any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, any collateral securing this Indenture and the Notes and any right to require that any resort be had by the Trustee or any Holder to any such collateral;	
 
 	(xii)	the failure of the Trustee or any Holder to exercise any right or remedy against any other Note Guarantor;	
 
 	(xiii)	any change in the ownership of the Issuer;	
 
 	(xiv)	any change in the laws, rules or regulations of any jurisdiction;	
 
 	(xv)	any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of the Issuer under this Indenture or the Notes or of any Note Guarantor under its Note Guarantee; and	
 
 	(xvi)	any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.	
 
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(d) Each of the Note Guarantors further expressly waives irrevocably and unconditionally:
 
 	(i)	Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) before claiming from it under this Indenture;	
 
 	(ii)	Any right to which it may be entitled to have the assets of the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) first be used, applied or depleted as payment of the Issuer’s or the Note Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by any of the Note Guarantors hereunder;	
 
 	(iii)	Any right to which it may be entitled to have claims hereunder divided between the Note Guarantors;	
 
 	(iv)	To the extent applicable, the benefits of orden, excusión, división, quita and espera and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other related or applicable articles that are not explicitly set forth herein because of Note Guarantor’s knowledge thereof of the  Código Civil Federal  of Mexico, and the Código Civil  of each State of the Mexican Republic and the Federal District of Mexico.	
(e) The obligations assumed by each Note Guarantor hereunder shall not be affected by the absence of judicial request of payment by a Holder to the Issuer or by whether any such person takes timely action pursuant to articles 2848 and 2849 of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and the Federal District of Mexico and each Note Guarantor hereby expressly waives the provisions of such articles.
(f) The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Note
 
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Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(g) Except as provided in Section 10.2, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than payment of the Obligations in full.
(h) Each Note Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(i) In furtherance of the foregoing and not in limitation of any other right which the Trustee or any Holder has at law or in equity against each Note Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of:
 
 	(i)	the unpaid amount of such Obligations then due and owing; and	
 
 	(ii)	accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law);	
provided, that any delay by the Trustee in giving such written demand shall in no event affect any Note Guarantor’s obligations under its Note Guarantee.
(j) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand:
 
 	(i)	the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby; and	
 
 	(ii)	in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantor for the purposes of this Note Guarantee.	
 
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Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Subject to the limitations set out in Section 10.5 and Section 10.6, the obligations of each Note Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its obligations under its Note Guarantee in the event that:
 
 	(i)	there is a Legal Defeasance of the Notes pursuant to Article VIII;	
 
 	(ii)	there is a sale or other disposition of Capital Stock of such Note Guarantor following which such Note Guarantor is no longer a direct or indirect Subsidiary of the Issuer;	
 
 	(iii)	such Note Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 3.14;	
 
 	(iv)	solely with respect to an Additional Note Guarantor, either (A) the Facilities Agreement Indebtedness has been repaid in full and such Additional Note Guarantor is not a guarantor of the Indebtedness Incurred to refinance such Facilities Agreement Indebtedness or (B) at least 85% of the outstanding Indebtedness of the Issuer and its Restricted Subsidiaries is not guaranteed by such Additional Note Guarantor; or	
 
 	(v)	solely with respect to an Additional Note Guarantor, upon the occurrence of a Partial Covenant Suspension Event or Covenant Suspension Event until the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, at which time the guarantee of the Notes by such Additional Note Guarantor shall be reinstated unless such Additional Note Guarantor would have been released at any time during the Partial Suspension Period or the Suspension Period, as applicable, pursuant to clause (i), (ii), (iii) or (iv) of this  Section 10.2(b) .	
Section 10.3 Right of Contribution.
Each Note Guarantor that makes a payment or distribution under a Note Guarantee will be entitled to a contribution from each other Note Guarantor in a  pro rata  amount, based on the net assets of each Note Guarantor determined in accordance with GAAP. The provisions of this  Section 10.3  shall in no respect limit the obligations and liabilities of each Note Guarantor to the Trustee and the Holders and each Note Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Note Guarantor hereunder.
 
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Section 10.4 No Subrogation.
Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full in cash or Cash Equivalents of all Obligations. If any amount shall be paid to any Note Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full in cash or Cash Equivalents, such amount shall be held by such Note Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Note Guarantor, and shall, forthwith upon receipt by such Note Guarantor, be turned over to the Trustee in the exact form received by such Note Guarantor (duly endorsed by such Note Guarantor to the Trustee, if required), to be applied against the Obligations.
Section 10.5 French Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in France (a “French Note Guarantor”) are subject to the limitations set out in this  Section 10.5 .
(b) The obligations and liabilities of any French Note Guarantor under the Indenture and the Notes, and in particular under this  Article X , shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of article(s) L. 241-3 or L. 242-6 of the French Commercial Code or any other law or regulations having the same effect, as interpreted by French courts.
(c) The obligations and liabilities of any French Note Guarantor under this Article X for the Issuer’s obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Issuer to the extent directly or indirectly on-lent to such French Note Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash-pooling arrangements or other cash management agreements,  provided , that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Note Guarantor under this  Article X , it being specified that any payment made by a French Note Guarantor under this  Article X  in respect of the obligations of the Issuer shall reduce  pro tanto the outstanding amount of the intercompany loans due by such French Note Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by the French Note Guarantor or its relevant direct or indirect Subsidiary shall reduce  pro tanto  the amount payable by the French Note Guarantor under this  Article X .
(d) It is acknowledged that no French Note Guarantor is acting jointly and severally with the other Note Guarantors and no French Note Guarantor shall therefore be considered as “ co-débiteur solidaire ” as to its obligations pursuant to the guarantee given pursuant to this  Article X .
 
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Section 10.6 Swiss Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this  Section 10.6 .
(b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, the Notes or any other agreement, and in particular under this  Article X , in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned and controlled subsidiaries (the “ Restricted Obligations ”) shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested,  provided , that such limitation is a requirement under applicable law (including any case law) at that point in time and that such limitation shall not free the Swiss Note Guarantor from its obligations in excess thereof, but merely postpone the performance date until such time as performance is permitted notwithstanding such limitation.
(c) For the purpose of this clause, “Free Reserves Available for Distribution” means an amount equal to the maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the balance sheet profit and any freely disposable reserves available for this purpose, in each case in accordance with applicable Swiss law).
(d) As soon as possible after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, immediately thereafter, pay the amount corresponding to the Free Reserves Available for Distribution to the Trustee (save to the extent provided below).
(e) In respect of the Restricted Obligations, the Swiss Note Guarantor shall:
 
 	(i)	if and to the extent required by applicable law in force at the relevant time:	
 
 	(A)	subject to any applicable double taxation treaties, deduct Swiss withholding tax at the rate of 35 percent (or such other rate as is in force at that time) from any payment made by it;	
 
 	(B)	pay any such deduction to the Swiss Federal Tax Administration; and	
 
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 	(C)	notify and provide evidence to the Trustee that the Swiss withholding tax has been paid to the Swiss Federal Tax Administration;	
 
 	(ii)	to the extent such deduction is made, not be required to make a gross-up, indemnify or otherwise hold harmless the Trustee or the Holders for the deduction of the Swiss withholding tax notwithstanding anything to the contrary contained in the Indenture, the Notes or any other agreement, unless grossing up is permitted under the laws of Switzerland then in force and  provided , that this should not in any way limit any obligations of any non-Swiss Note Guarantors under the Indenture, the Notes or any other agreement to indemnify the Trustee or the Holders in respect of the deduction of the Swiss withholding tax. The Swiss Note Guarantor shall use all reasonable efforts to procure that any person which is entitled to a full or partial refund of any Swiss withholding tax paid pursuant to paragraph (a) above will, as soon as possible after the deduction of the Swiss withholding tax: (y) request a refund of the Swiss withholding tax under any applicable law (including double taxation treaties) and (z) pay to the Trustee upon receipt any amount so refunded.	
(f) The Swiss Note Guarantor will take, and cause to be taken, all and any other action, including, without limitation, the passing of any shareholders’ resolutions to approve any payment or other performance under the Indenture and the Notes and the receipt of any confirmations from the Swiss Note Guarantor’s auditors, whether following a request to discharge a Restricted Obligation or which may be required as a matter of mandatory Swiss law in force at the time it is required to make a payment or perform other obligations under the Indenture, the Notes or any other agreement in order to allow a prompt payment or performance of other obligations under the Indenture or the Notes.
(g) If the enforcement of the Restricted Obligations would be limited due to the effects referred to in this Section 10.6 and if any asset of the Swiss Note Guarantor has a book value that is less than its market value (an “ Undervalued Asset ”), the Swiss Note Guarantor shall, to the extent permitted by applicable law and its accounting standards (i) write up the book value of such Undervalued Asset such that its balance sheet reflects a book value that is equal to the market value of such Undervalued Asset, and (ii) make reasonable efforts to realize the Undervalued Asset for a sum which is at least equal to the market value of such asset. Without prejudice to the rights of the Trustee and the Holders under the Indenture, the Notes or any other agreement, the Swiss Note Guarantor will only be required to realize an Undervalued Asset if such asset is not necessary for the Swiss Note Guarantor’s business ( nicht betriebsnotwendig ).
 
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ARTICLE XI
COLLATERAL
Section 11.1 The Collateral. Subject to Section 11.2, the Issuer and the Note Guarantors agree that the Notes will be at all times secured by a first-priority security interest in the Collateral on at least an equal and ratable basis with the Permitted Secured Obligations.
Section 11.2 Release of the Collateral.
(a) The Notes will cease to be secured by a security interest in the Collateral in accordance with the provisions of the Intercreditor Agreement.
(b) In addition to the Collateral release provisions set forth in the Intercreditor Agreement, the Notes will cease to be secured by a security interest on the Collateral upon:
 
 	(i)	(A) payment in full of the principal of, any accrued and unpaid interest on, the Notes and all other amounts or Obligations that are due and payable at or prior to the time such principal, accrued and unpaid interest, if any, are paid, (B) a satisfaction and discharge of this Indenture or (C) a Legal Defeasance or Covenant Defeasance pursuant to  Article VIII ; or	
 
 	(ii)	a refinancing of the Facilities Agreement Indebtedness in full as a result of which the Collateral does not secure Indebtedness Incurred to refinance such Facilities Agreement Indebtedness.	
 
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer and the Note Guarantors:
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4417
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Fax: 212-815-5915
The Issuer or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) All notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to DTC, delivery of which shall be deemed to satisfy the requirements of this paragraph.
(c) Each such notice shall be deemed to have been given on the date of delivery or mailing. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to them if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(d) Subject to Section 7.1(c) and Section 7.2(a), the Trustee shall accept electronic transmissions; provided, that (i) the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give
 
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such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information and (ii) each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(e) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the Note Register and shall be sufficiently given if so mailed within the time prescribed.
(f) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(g) Any notice or communication delivered to the Issuer under the provisions herein shall constitute notice to the Note Guarantors.
Section 12.2 Communication by Holders with Other Holders.
Holders may communicate with other Holders with respect to their rights under this Indenture (including the Note Guarantees) or the Notes.
Section 12.3 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 12.4 Statements Required in Certificate or Opinion.
Each certificate or opinion, including an Opinion of Counsel or Officer’s Certificate, with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has read such covenant or condition;
 
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(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 12.5 Rules by Trustee, Paying Agent, Transfer Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Paying Agent, Transfer Agent and the Registrar may make reasonable rules for their functions.
Section 12.6 Legal Holidays.
A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City, Mexico, Madrid, Amsterdam, London, Paris or Zurich. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 12.7 Governing Law, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR EACH NOTE GUARANTEE OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
 
 	(i)	agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Note Guarantees) or the Notes, as the case may be, may be instituted in any Federal or state court sitting in the City of New York and County of New York and in the courts of its own corporate domicile, in respect of actions brought against it as a defendant,	
 
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 	(ii)	waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,	
 
 	(iii)	irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding,	
 
 	(iv)	agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and	
 
 	(v)	agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.	
(c) The Issuer and the Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. The Issuer and the Note Guarantors (other than CEMEX Corp.) hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Note Guarantors (other than CEMEX Corp.) agree to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Issuer and the Note Guarantors (other than CEMEX Corp.) agree that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer and the Note Guarantors (other than CEMEX Corp.) of a successor agent in the City of New York, New York as each of their authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Note Guarantors (other than CEMEX Corp.).
(d) To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors hereby irrevocably waive and agree not to plead or claim such immunity in respect of their obligations under this Indenture or the Notes.
(e) Nothing in this Section 12.7 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
 
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Section 12.8 [Reserved].
Section 12.9 No Recourse Against Others.
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or this Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
Section 12.10 Successors. All agreements of the Issuer and any Note Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11 Duplicate and Counterpart Originals.
The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or pdf shall be deemed to be their original signatures for all purposes.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13 [Reserved].
Section 12.14 Currency Indemnity.
(a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and any Note Guarantor under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, a Note Guarantor or any Subsidiary of the Issuer or otherwise) by any Holder of the Notes in respect of any sum expressed to be due to it from the Issuer or any Note Guarantor shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer and the Note Guarantors shall jointly and severally indemnify and hold harmless the recipient, to the greatest extent permitted by law, against any loss or cost sustained by it in making any such purchase. For the purposes of this  Section 12.14 , it will be sufficient for the Holder of a Note to certify that it would have suffered a loss had an
 
116

actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
(b) The indemnities of the Issuer and the Note Guarantors contained in this Section 12.14, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuer and the Note Guarantors under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer and the Note Guarantors; (iii) shall apply irrespective of any waiver granted by any Holder of the Notes or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
Section 12.15 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 12.16 USA PATRIOT Act.
The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA PATRIOT Act ”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Signature page follows]
 
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

CEMEX, S.A.B. de C.V., as Issuer	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
EACH OF THE NOTE GUARANTORS LISTED BELOW	
 	
CEMEX México, S.A. de C.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
CEMEX Concretos, S.A. de C.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
Empresas Tolteca de México, S.A. de C.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
New Sunward Holding B.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	

 	 	 	
CEMEX España, S.A.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
Cemex Asia B.V.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
CEMEX Corp.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
Cemex Egyptian Investments B.V.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
Cemex Egyptian Investments II B.V.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	

 	 	 	
CEMEX France Gestion (S.A.S.)	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	
 	
Cemex Research Group AG	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	
 	
Cemex Shipping B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	
 	
CEMEX UK	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	

 	 	 	 	 	
THE BANK OF NEW YORK MELLON,
as Trustee	
 	 	
By:	 	/s/ Catherine F. Donohue	
 	 	Name:	 	Catherine F. Donohue	
 	 	Title:	 	Vice President	

SCHEDULE I
NOTE GUARANTORS
 
1.	CEMEX México, S.A. de C.V. (Mexico)	
 
2.	CEMEX Concretos, S.A. de C.V. (Mexico)	
 
3.	Empresas Tolteca de México, S.A. de C.V. (Mexico)	
 
4.	New Sunward Holding B.V. (the Netherlands)	
 
5.	CEMEX España, S.A. (Spain)	
 
6.	Cemex Asia B.V. (the Netherlands)	
 
7.	CEMEX Corp. (Delaware)	
 
8.	Cemex Egyptian Investments B.V. (the Netherlands)	
 
9.	Cemex Egyptian Investments II B.V (the Netherlands)	
 
10.	CEMEX France Gestion (S.A.S.) (France)	
 
11.	Cemex Research Group AG (Switzerland)	
 
12.	Cemex Shipping B.V. (the Netherlands)	
 
13.	CEMEX UK (United Kingdom)	

EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”]
[Include the following legend on all Notes that are Restricted Notes:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND [ Include the following on all Regulation S Notes that are Restricted Notes: , PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO CEMEX, S.A.B. DE C.V., (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR
 
A-1

(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS LEGEND CAN ONLY BE REMOVED AT THE OPTION OF THE ISSUER.”
[Include the following on all Regulation S Notes that are Restricted Notes: PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] EACH PERSON ACQUIRING AN OWNERSHIP INTEREST IN THE NOTES (1) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT EITHER (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S) AND IS OUTSIDE THE UNITED STATES OR (C) IS ACQUIRING SUCH OWNERSHIP INTEREST PURSUANT TO A VALID REGISTRATION STATEMENT OR IN ANOTHER TRANSACTION EXEMPT FROM SUCH REGISTRATION; (2) AGREES THAT [ Include the following on all Regulation S Notes that are Restricted Notes:  PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] (X) IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS, AND IN ANY CASE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; (Y) PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE BANK OF NEW YORK MELLON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (Z) IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “UNITED STATES”, “U.S. PERSON” AND “OFFSHORE TRANSACTION” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
[Include the following legend on all Notes as the Mexican law legend:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE NATIONAL SECURITIES REGISTRY ( REGISTRO NACIONAL DE VALORES ) MAINTAINED BY THE MEXICAN NATIONAL BANKING AND SECURITIES COMMISSION ( COMISIÓN NACIONAL BANCARIA Y DE VALORES , OR CNBV), AND MAY NOT BE OFFERED OR SOLD PUBLICLY, OR OTHERWISE BE SUBJECT TO BROKERAGE ACTIVITIES, IN MEXICO, EXCEPT THAT THE NOTES MAY BE OFFERED IN MEXICO TO QUALIFIED OR INSTITUTIONAL INVESTORS PURSUANT TO THE PRIVATE PLACEMENT EXEMPTION SET FORTH UNDER ARTICLE 8 OF THE MEXICAN SECURITIES MARKET LAW ( LEY DEL MERCADO DE VALORES ). THE NOTES EVIDENCED
 
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HEREBY AND THE OFFERING MEMORANDUM RELATED THERETO ARE SOLELY OUR RESPONSIBILITY AND HAVE NOT BEEN REVIEWED OR AUTHORIZED BY THE CNBV.”]
 
A-3

FORM OF FACE OF NOTE
7.250% Senior Secured Notes due 2021

No.             	  	Principal Amount U.S.$                     	
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
CUSIP NO.             
ISIN NO.             
CEMEX, S.A.B. de C.V. (together with its successors and assigns, the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of                              U.S. Dollars [ If the Note is a Global Note ,  add the following , as revised by the Schedule of Increases and Decreases in Global Note attached hereto, on January 15, 2021.
Interest Payment Dates: January 15 and July 15, commencing on January 15, 2014
Record Dates: January 1 and July 1
 
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Additional provisions of this Note are set forth on the other side of this Note.

 	 	 	 	 	 	CEMEX, S.A.B. de C.V.	
 	 	 	 	 	
 	 	 	 	 	 	By:	 	 	
 	 	 	 	 	 	 	 	Name:	
 	 	 	 	 	 	 	 	Title:	
 	 	 	 	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION	 	 	 	 	 	 	
 	 	 	 	
THE BANK OF NEW YORK MELLON
as Trustee, certifies that this is one of the Notes referred to in the Indenture.	 	 	 	 	 	 	
 	 	 	 	 	
By:	 	 	 	 	 	Date:	 	 	
 	 	Authorized Signatory	 	 	 	 	 	 	
 
A-5

FORM OF REVERSE SIDE OF NOTE
7.250% Senior Secured Notes due 2021
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.	Interest	
CEMEX, S.A.B. de C.V., a publicly traded stock corporation with variable capital (sociedad anónima bursátil de capital variable ) organized under the laws of the United Mexican States (together with its successors and assigns, the “ Issuer ”), promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Issuer will pay interest semiannually in arrears on each Interest Payment Date of each year commencing January 15, 2014;  provided , that if any such Interest Payment Date is not a Business Day, then such payment shall be made on the next succeeding Business Day. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from October 2, 2013;  provided , that if there is no existing Default or Event of Default on the payment of interest, and if this Note is authenticated between a Record Date referred to on the face hereof and the next succeeding Interest Payment Date (but after October 2, 2013), interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from October 2, 2013. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Each interest period shall end on (but not include) the relevant interest payment date.
All payments made by the Issuer in respect of the Notes will be made free and clear of and without deduction or withholding for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless such withholding or deduction is required by law or by the interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
 
2.	Method of Payment	
By at least 10:00 a.m. (New York City time) on the Business Day prior to the date on which any principal of or interest on any Note is due and payable, the Issuer shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Issuer will pay interest (except Defaulted Interest) on the applicable Interest Payment Date to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date, except as
 
1

provided in Section 2.13 of the Indenture with respect to Defaulted Interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer will pay principal and interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by the DTC. The Issuer will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each registered Holder thereof as set forth in the Note Register;  provided ,  however , that payments on the Notes may also be made, in the case of a Holder of at least U.S.$10,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 10 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
 
3.	Paying Agent and Registrar	
Initially, The Bank of New York Mellon, the Trustee under the Indenture, will act as Trustee, Paying Agent and Registrar. The Issuer may appoint and change any Paying Agent, Registrar or co-Registrar without notice to any Holder. The Issuer, any Note Guarantor or any of their respective Affiliates may act as Paying Agent, Registrar or co-Registrar.
 
4.	Indenture	
The Issuer issued the Notes under an Indenture, dated as of October 2, 2013 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Issuer, the Note Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general senior obligations, which are secured by a first priority security interest in the Collateral on an equal and ratable basis with the other Permitted Secured Obligations, subject to the Collateral release provisions set forth in the Intercreditor Agreement. U.S.$1,000,000,000 in aggregate principal amount of Notes will be issued on the Issue Date. Subject to the conditions set forth in the Indenture and without the consent of the Holders, the Issuer may issue Additional Notes. All Notes will be treated as a single series of securities under the Indenture. The Indenture imposes certain limitations on, among other things, the ability of the Issuer and its Restricted Subsidiaries to: Incur Indebtedness, make Restricted Payments, incur Liens, designate Unrestricted Subsidiaries, make Asset Sales, enter into transactions with Affiliates, or consolidate or merge or transfer or convey all or substantially all of the Issuer’s assets.
To guarantee the due and punctual payment of the principal of (and premium, if any) and interest on the Notes and all other amounts payable by the Issuer under the Indenture
 
2

and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Note Guarantors have unconditionally guaranteed, jointly and severally, such obligations pursuant to the terms of the Indenture. Each Note Guarantee will be subject to release as provided in the Indenture.
The obligations of each Note Guarantor in respect of its Note Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance, fraudulent transfer, or similar illegal transfer under federal or state law or the law of the jurisdiction or formation and incorporation of such Note Guarantors.
 
5.	Optional Redemption	
Except as stated below, the Issuer may not redeem the Notes. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, on and after January 15, 2018, at the following redemption prices, expressed as percentages of the principal amount thereof, if redeemed during the twelve-month period commencing on January 15, of any year set forth below, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption:

Year	  	Percentage	 	
2018	  	 	103.625	% 	
2019	  	 	101.813	% 	
2020 and thereafter	  	 	100.000	% 	
provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to January 15, 2018, the Issuer will have the right, at its option, to redeem any of the Notes, in whole or in part, at any time or from time to time prior to their maturity at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes and (2) the sum of the present value of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 60 basis points, plus, in each case, any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption,  provided , however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count
 
3

basis) of the Comparable Treasury Issue (as defined below), assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price (as defined below) for such Redemption Date.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker (as defined below) as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers (as defined below) appointed by the Issuer.
“Comparable Treasury Price” means, with respect to any Redemption Date (1) the average of the Reference Treasury Dealer Quotations (as defined below) for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker or Issuer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means any one of Citigroup Global Markets Inc. or Merrill Lynch, Pierce, Fenner & Smith Incorporated, or their respective affiliates which are primary United States government securities dealers and not less than two other leading primary United States government securities dealers in New York City reasonably designated by the Issuer;  provided ,  however , that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “ Primary Treasury Dealer ”), the Issuer will substitute therefore another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker or Issuer, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker or Issuer by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such Redemption Date.
Optional Redemption upon Equity Offerings. At any time, or from time to time, on or prior to January 15, 2017, the Issuer may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem in the aggregate up to 35% of the aggregate principal amount of the Notes issued pursuant to the Indenture at a redemption price equal to 107.250% of the principal amount thereof plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided , that:
 
 	•	 	after giving effect to any such redemption at least 65% of the aggregate principal amount of the Notes issued under the Indenture remains outstanding; and	
 
 	•	 	the Issuer shall make such redemption not more than 90 days after the consummation of such Equity Offering;	
 
4

provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from exercising such an option under the Facilities Agreement.
“Equity Offering” means any public or private sale of Qualified Capital Stock after the Issue Date for cash other than issuances to any Subsidiary of the Issuer.
Optional Redemption for Changes in Withholding Taxes. If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article IV  shall be treated for this purpose as the date of such transaction) we would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding tax rate of 10% with respect to the Notes (see “Additional Amounts”), then, at our option, all, but not less than all, of the Notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the outstanding principal amount, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided ,  however , that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which we would be obligated to pay these Additional Amounts if a payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect;  provided ,  further ,  however , that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to the publication of any notice of redemption pursuant to this provision, the Issuer will deliver to the Trustee:
 
 	•	 	an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	
 
 	•	 	an opinion of outside legal counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	
This notice, once delivered by the Issuer to the Trustee, will be irrevocable.
In the case of any partial redemption, selection of the Notes for redemption will be made in accordance with Article V of the Indenture. On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called-for redemption as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
 
5

6.	Mandatory Repurchase Provisions	
Change Of Control Offer. Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest through the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Issuer must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by applicable law.
Asset Sale Offer. The Indenture imposes certain limitations on the ability of the Issuer and its Restricted Subsidiaries to make Asset Sales. In the event the proceeds from a permitted Asset Sale exceed certain amounts and are not applied as specified in the Indenture, the Issuer will be required to make an Asset Sale Offer to purchase to the extent of such remaining proceeds each Holder’s Notes together with holders of certain other Indebtedness at 100% of the principal amount thereof, plus accrued interest (if any) to the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
 
7.	Denominations; Transfer; Exchange	
The Notes are in fully registered form without coupons, and only in denominations of principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar shall not be required to register the transfer or exchange of (x) any Note for a period beginning: (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.
 
8.	Persons Deemed Owners	
The registered holder of this Note may be treated as the owner of it for all purposes.
 
9.	Unclaimed Money	
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment.
 
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10.	Discharge Prior to Redemption or Maturity	
Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
 
11.	Amendment, Waiver	
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended or supplemented without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Issuer and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with  Article IV  of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Issuer or the Note Guarantors, or to make any change that does not adversely affect the rights of any Holder, or to provide for the issuance of Additional Notes.
 
12.	Defaults and Remedies	
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be due and payable immediately. A Bankruptcy Event of Default will result in the Notes being due and payable immediately upon the occurrence of such Bankruptcy Event of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
 
13.	Trustee Dealings with the Issuer and the Note Guarantors	
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, any Note Guarantor or its Affiliates and may otherwise deal with the Issuer, any Note Guarantor or its Affiliates with the same rights it would have if it were not Trustee.
 
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14.	No Recourse Against Others	
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or the Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each holder waives and releases all such liability.
 
15.	Authentication	
Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.
 
16.	Abbreviations	
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (= Uniform Gift to Minors Act).
 
17.	CUSIP Numbers	
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused CUSIP or other similar numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
18.	Governing Law	
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
 
19.	Currency of Account; Conversion of Currency.	
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and the Note Guarantors under or in connection with the Notes or the Indenture, including damages. The Issuer and the Note Guarantors will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
 
20.	Agent for Service; Submission to Jurisdiction; Waiver of Immunities.	
The Issuer and the Note Guarantors have agreed that any suit, action or proceeding against the Issuer or any Note Guarantor brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal
 
8

court in the City of New York and County of New York and in the courts of their respective corporate domiciles, in respect of actions brought against them as defendants. The Issuer and the Note Guarantors (other than CEMEX Corp.) have irrevocably submitted to the jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Issuer and the Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as each of their authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. To the extent that any of the Issuer and the Note Guarantors (other than CEMEX Corp.) have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors (other than CEMEX Corp.) have irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya # 325
Colonia Valle del Campestre
Garza García, Nuevo León, México 66265
Tel: +5281-8888-8888
 
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to

 	 	 	 	 	
 	 	(Print or type assignee’s name, address and zip code)	 	 	

 	 	(Insert assignee’s soc. sec. or tax I.D. No.)	 	 	
and irrevocably appoint                                          as agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

Date:	 	 	 	 	 	Your Signature:	 	 	

 	 	 	
Signature Guarantee:	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	 	 	

Sign exactly as your name appears on the other side of this Note.	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:

Date of Exchange	  	Amount of decrease in
Principal Amount of this
Global Note	  	Amount of increase in
Principal Amount of this
Global Note	  	Principal Amount of this
Global Note following
such decrease or increase	  	Signature of authorized
signatory of Trustee or
Note Custodian	

 	  	 	  	 	  	 	  	 	
 
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 3.8 or Section 3.12 of the Indenture, check either box:

¨                	  	¨	
Section 3.8	  	Section 3.12	
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.12 of the Indenture, state the principal amount (which must be in minimum denominations of U.S.$200,000 and in an integral multiple of U.S.$1,000):

U.S.$	 	 	 	 	 	 	 	 	
 	 	 	 	 	
Date:	 	 	 	 	 	Your Signature	 	 	
 	 	 	 	 	 	(Sign exactly as your name appears on the other side of the Note)	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
12

EXHIBIT B
FORM OF CERTIFCATION FOR TRANSFER PURSUANT TO REGULATION S
[Date]

The Bank of New York Mellon	  	 	
101 Barclay Street – 4E	  	 	
New York, NY 10286	  	 	
Attention: International Corporate Trust	  	 	

Re:	  	7.250% Senior Secured Notes due 2021 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 2, 2013 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture  o r Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), as the case may be.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
 
B-1

You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature]	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
B-2

EXHIBIT C
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144
[Date]

The Bank of New York Mellon	  	 	
101 Barclay Street – 4E	  	 	
New York, NY 10286	  	 	
Attention: International Corporate Trust	  	 	

Re:	  	7.250% Senior Secured Notes due 2021 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 2, 2013 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$             aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
C-1

EXHIBIT D
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A
[Date]

The Bank of New York Mellon	  	 	
101 Barclay Street – 4E	  	 	
New York, NY 10286	  	 	
Attention: International Corporate Trust	  	 	

Re:	  	7.250% Senior Secured Notes due 2021 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 2, 2013 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Note beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended, and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature]	
 
D-1

 	 	 	 	 	
Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS
The definition of “Consolidated Leverage Ratio” comes from the 2009 Financing Agreement, as in effect immediately prior to giving effect to the amendment and restatement thereof on September 17, 2012, and is to be used solely for purposes of calculating the Consolidated Leverage Ratio in the context of determining whether a Partial Covenant Suspension Event has occurred.
“2012 CB Amount” means an aggregate amount equal to the Relevant Existing Financial Indebtedness maturing on or prior to the 2012 CB Maturity Date.
“2012 CB Maturity Date” means the final maturity date of the Relevant Existing Financial Indebtedness maturing in September, 2012 (being 21 September, 2012).
“Acceptable Bank” means:
 
 	(a)	a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A- or higher by Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency;	
 
 	(b)	any other bank or financial institution in a jurisdiction in which a member of the Group conducts commercial operations where such member of the Group, in the ordinary course of trading, subscribes for certificates of deposit issued by such bank or financial institution; or	
 
 	(c)	any other bank or financial institution approved by the Administrative Agent.	
“Accession Letter” means a document substantially in the form set out in Schedule 4 (Form of Accession Letter ) of the 2009 Financing Agreement.
“Additional Guarantor” means a company that becomes an Additional Guarantor in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Additional Security Provider” means a company that becomes an Additional Security Provider in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Administrative Agent” means Citibank International PLC, as administrative agent of the Finance Parties (other than itself) under the 2009 Financing Agreement.
“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.
 
E-1

“Applicable GAAP” means:
 
 	(a)	in the case of the Issuer, Mexican FRS or, if adopted by the Issuer in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS;	
 
 	(b)	in the case of CEMEX España, Spanish GAAP or, if adopted by CEMEX España in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS; and	
 
 	(c)	in the case of any other Obligor, the generally accepted accounting principles applying to it in the country of its incorporation or in a jurisdiction agreed to by the Administrative Agent or, if adopted by the relevant Obligor, IFRS.	
“Authorised Signatory” means, in relation to any Obligor, any person who is duly authorised and in respect of whom the Administrative Agent has received a certificate signed by a director or another Authorised Signatory of such Obligor setting out the name and signature of such person and confirming such person’s authority to act.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ) between CEMEX CONCRETOS, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, Sociedad Nacional de Crédito, Institución de Banca de Desarrollo, as lender (“ Banobras ”), in an aggregate principal amount equal to Mex$5,000,000,000.00 (five billion pesos), dated April 22, 2009, which was formalized by means of public deeds number 116,380 and 116,381 dated April 22, 2009, granted before Mr. José Angel Villalobos Magaña, notary public number 9 for Mexico, Federal District, as such facility may be amended from time to time.
“Base Currency” means US dollars.
“Base Currency Amount” means on any date:
 
 	(a)	in relation to an amount or Exposure denominated in the Base Currency, that amount or the amount of that Exposure; and	
 
 	(b)	in relation to an amount or Exposure denominated in a currency other than the Base Currency, that amount or the amount of that Exposure converted into the Base Currency at:	
 
 	(i)	for the purposes of determining the Majority Participating Creditors, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date on which such determination is made (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Issuer and the Participating Creditors); and	
 
 	(ii)	for all other purposes, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date which is five Business Days before that date (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Issuer and the Participating Creditors).	
 
E-2

“Bilateral Bank Facilities” means the facilities described in Part IB of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Borrower” means an Original Borrower unless it has ceased to be a Borrower in accordance with Clause 28.2 ( Resignation of a Borrower ) of the 2009 Financing Agreement.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Madrid, New York, Amsterdam and Mexico City (in the case of Mexico City, if applicable, as specified by a governmental authority), and:
 
 	(a)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, a currency other than euro) the principal financial centre of the country of that currency; or	
 
 	(b)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, euro) any TARGET Day.	
“Business Plan” means the five year business plan of the Group delivered in conjunction with the 2009 Financing Agreement.
“Capital Expenditure” means any expenditure or obligation in respect of expenditure which, in accordance with Applicable GAAP of the Issuer, is treated as capital expenditure (and including the capital element of any expenditure or obligation incurred in connection with a Capital Lease) (and, solely for the purposes of paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement, the maximum amount of Capital Expenditure of the Group permitted in the Financial Year ending on or about 31 December 2009 will be increased by an amount not exceeding $50,000,000 in aggregate to the extent necessary to take into account currency fluctuations or additional costs and expenses contemplated by (or that have occurred since the date of) the Business Plan).
“Capital Lease” means, as to any person, the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of the Issuer under Applicable GAAP and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable GAAP of the Issuer.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designed) of capital stock of a corporation, any and all equivalent ownership interests in a person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
 
E-3

“Cash Equivalent Investments” means at any time:
 
 	(a)	certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;	
 
 	(b)	any investment in marketable debt obligations issued or expressly guaranteed by the government of Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group conducts commercial operations if that member of the Group makes investments in such debt obligations in the ordinary course of its trading) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;	
 	(c)	commercial paper not convertible into or exchangeable for any other security:	
 
 	(i)	for which a recognised trading market exists;	
 
 	(ii)	issued by an issuer incorporated in Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group makes investments in such debt obligations in the ordinary course of trading);	
 
 	(iii)	which matures within one year after the relevant date of calculation; and	
 
 	(iv)	which has a credit rating of either A-1 or higher by S&P or F 1 or higher by Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;	
 
 	(d)	sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);	
 
 	(e)	any investment in money market funds which (i) have a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch or P-1 or higher by Moody’s, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (f) and (g) below and (iii) can be turned into cash on not more than 30 days’ notice; or	
 
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 	(f)	any deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco National de Obras y Servicios Publicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(g)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which any member of the Group conducts commercial operations and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquiring such investment;	
 
 	(h)	investments in mutual funds, managed by banks or financial institutions, with a local currency credit rating of at least MxAA by S&P or equivalent by any other reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican government, or issued by any agency or instrumentality thereof; and	
 
 	(i)	any other debt security, certificate of deposit, commercial paper, bill of exchange, investment in money market funds or material funds approved by the Majority Participating Creditors, in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).	
“CB Cash Replenishment Amount” means, for a particular Relevant Prepayment Period, the amount of cash in hand of the Issuer on a consolidated basis to be applied by the Issuer to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement at any time during that Relevant Prepayment Period  provided that  such amount, together with the CB Disposal Proceeds Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Disposal Proceeds Replenishment Amount” means for a particular Relevant Prepayment Period, the amount of any Disposal Proceeds received by any member of the Group during that Relevant Prepayment Period to be applied by the Issuer to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement  provided that  such amount, together with the CB Cash Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Reserve” means the reserve created by the Issuer or any of its Subsidiaries for the purposes of holding the proceeds of any Permitted Fundraising that, as set out in the relevant CB Reserve Certificate, are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement.
 
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“CB Reserve Certificate” means a certificate signed by a Responsible Officer of the Issuer setting out, with respect to a Permitted Fundraising the net cash proceeds of which are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement:
 
 	(i)	the amount of proceeds from the relevant Permitted Fundraising that the Issuer wishes to be applied to the CB Reserve (such amount to not exceed the aggregate amount of the Relevant Existing Financial Indebtedness that is due to mature within the Relevant Prepayment Period to which it applies); and	
 
 	(ii)	specific details of the Relevant Existing Financial Indebtedness to which any amounts are designated by the Issuer to be applied including the total aggregate amount of such Relevant Existing Financial Indebtedness and the date on which such Relevant Existing Financial Indebtedness matures.	
“CB Reserve Shortfall” means at any time, for a particular Relevant Prepayment Period, an amount equal to the lower of:
 
 	(i)	the aggregate amount of (A) any voluntary prepayments made to Participating Creditors pursuant to Clause 12.2 ( Voluntary prepayment of Exposures ) of the 2009 Financing Agreement from proceeds standing to the credit of the CB Reserve in that Relevant Prepayment Period and (B) the 2012 CB Amount; and	
 
 	(ii)	the principal amount of any Relevant Existing Financial Indebtedness then outstanding in that Relevant Prepayment Period.	
“Change of Control” means that the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended) of 20 per cent. or more in voting power of the outstanding voting stock of the Issuer is acquired by any person,  provided that  the acquisition of beneficial ownership of capital stock of the Issuer by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Charged Property” means all of the assets of the Security Providers which from time to time are, or are expressed to be, the subject of the Transaction Security.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate ) of the 2009 Financing Agreement.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) EBITDA for the one (1) year period ending on such date to (b) Consolidated Interest Expense for the one (1) year period ending on such date.
 
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“Consolidated Debt” means, at any date, the sum (without duplication) of (a) the aggregate amount of all Debt of the Issuer and its Subsidiaries at such date, which shall include the amount of any recourse in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness,  plus  (b) to the extent not included in Debt, the aggregate net mark-to-market amount of all derivative financing in the form of equity swaps outstanding at such date (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents).
“Consolidated Funded Debt” means, for any period, Consolidated Debt less the sum (without duplication) of (i) all obligations of such person to pay the deferred purchase price of property or services, (ii) all obligations of such person as lessee under Capital Leases, and (iii) all obligations of such person with respect to product invoices incurred in connection with export financing.
“Consolidated Interest Expense” means, for any period, the sum of the (1) total gross cash and non cash interest expense of the Issuer and its consolidated Subsidiaries relating to Consolidated Funded Debt of such persons, (2) any amortization or accretion of debt discount or any interest paid on Consolidated Funded Debt of such person and its Subsidiaries in the form of additional Financial Indebtedness (but excluding any amortization of deferred financing and debt issuance costs), (3) the net costs under Treasury Transactions in respect of interest rates (but excluding amortization of fees), (4) any amounts paid in cash on preferred stock, and (5) any interest paid or accrued in respect of Consolidated Funded Debt without a maturity date, regardless of whether considered interest expense under Applicable GAAP of the Issuer. For purposes of calculating Consolidated Interest Expense for the Reference Period ending 30 June 2010, $131,406,696.17 shall be deducted, constituting the amount of interest paid in respect of perpetual debentures on 1 July 2009 for the period ending 30 June 2009.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Funded Debt on such date to (b) EBITDA for the one (1) year period ending on such date.
“Core Bank Facilities” means the Syndicated Bank Facilities, the Bilateral Bank Facilities and the Promissory Notes.
“Creditor’s Representative” means:
 
 	(a)	with respect to each of the Syndicated Bank Facilities, the person appointed as the agent of the creditors in relation to such Facility under the Existing Finance Documents relating to such Facility;	
 
 	(b)	with respect to each other Core Bank Facility, the Participating Creditor with an Exposure under that Facility; and	
 
 	(c)	with respect to each USPP Note, the Participating Creditor with an Exposure under that USPP Note.	
“Debt” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments, including the perpetual bonds, (iii) the aggregate net mark-to-market
 
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of Treasury Transactions (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents) of such person but excluding Treasury Transactions relating to the rate or price of energy or any commodity, (iv) all obligations of such person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of trading, (v) all obligations of such person as lessee under Capital Leases, (vi) all Debt of others secured by Security on any asset of such person, up to the value of such asset, (vii) all obligations of such person with respect to product invoices incurred in connection with export financing, (viii) all obligations of such person under repurchase agreements for the stock issued by such person or another person, (ix) all obligations of such person in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness and (x) all guarantees of such person in respect of any of the foregoing  provided, however , that for the purposes of calculating the Consolidated Funded Debt element of the Consolidated Leverage Ratio, Relevant Convertible/Exchangeable Obligations shall be excluded from each of the foregoing paragraphs (i) to (x) inclusive ( provided that , in the case of outstanding Financial Indebtedness under any Relevant Convertible/Exchangeable Obligations (1) only the principal amount thereof shall be excluded and (2) such exclusion shall apply only for so long as such amounts remain subordinated in accordance with the terms of that definition) and (b) amounts falling within paragraph (v) of the definition of Excluded Fundraising Proceeds, for the period in which they are held by the Issuer or any member of the Group pending application in accordance with the terms of the 2009 Financing Agreement, shall be deducted from the aggregate Debt calculation resulting from this definition. For the avoidance of doubt, all letters of credit, banker’s acceptances or similar credit transactions, including reimbursement obligations in respect thereof are not Debt until they are required to be funded.
“Debt Documents” means the Finance Documents, the “Refinancing Documents” (as defined in the Intercreditor Agreement) and the “Noteholder Documents” (as defined in the Intercreditor Agreement).
“Debt Reduction Satisfaction Date” means the first date following 30 September 2010 on which:
 
 	(a)	the Base Currency Amount of the Exposures of Participating Creditors under the Facilities (calculated as at the date that any reduction of Exposures occurs and in accordance with the 2009 Financing Agreement) has been reduced by an aggregate amount equal to at least U.S.$1,000,000,000 compared to the Exposures of Participating Creditors under the Facilities as at 30 September 2010; and	
 
 	(b)	the amount of Consolidated Funded Debt is at least U.S.$1,000,000,000 (or its equivalent in any other currency) lower than the level of Consolidated Funded Debt as at 30 September 2010 (for the avoidance of doubt, when used in this sub-paragraph, Consolidated Funded Debt shall not include any Relevant Convertible/Exchangeable Obligations),	
with notification of the occurrence of such date being provided by the Parent delivering a certificate to the Administrative Agent signed by an Authorised Signatory confirming that (a) and (b) above have been met.
 
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“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of (a) operating income ( utilidad de operación ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Issuer consistently applied for such period.
“Discontinued Operations” means operations that are accounted for as discontinued operations pursuant to Applicable GAAP of the Issuer for which the Disposal of such assets has not yet occurred.
“Disposal” means a sale, lease, license, transfer, loan or other disposal by a person of any asset (including shares in any Subsidiary or other company), undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).
“Disposal Proceeds” means:
 
 	(i)	the cash consideration received by any member of Group (including any amount received from a person who is not a member of the Group in repayment of intercompany debt save to the extent that the creditor in respect of the intercompany debt is obliged to repay that amount to the purchaser at or about completion of the Disposal) for any Disposal;	
 
 	(ii)	any proceeds of any Disposal received in the form of Marketable Securities that are required to be disposed of for cash (after deducting reasonable expenses incurred by the party disposing of those Marketable Securities to persons other than members of the Group) pursuant to the criteria set out at paragraph (h) of the definition of Permitted Disposal; and	
 
 	(iii)	any proceeds of any Disposal received in any other form to the extent disposed of or otherwise converted into cash within 90 days of receipt; and	
 
 	(iv)	any consideration falling within paragraphs (i) to (iii) above that is received by any member of the Group from the Disposal of assets of the Group in Venezuela prior to the date of the 2009 Financing Agreement,	
but excluding any Excluded Disposal Proceeds and, in every case, after deducting:
 
 	(1)	any reasonable expenses which are incurred by the disposing party of such assets with respect to that Disposal to persons who are not members of the Group;	
 
 	(2)	any Tax incurred and required to be paid by the disposing party in connection with that Disposal (as reasonably determined by the disposing party on the basis of rates existing at the time of the disposal and taking account of any available credit, deduction or allowance);	
 
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“EBITDA” means, for any period, the sum for the Issuer and its Subsidiaries, determined on a consolidated basis of (a) operating income ( utilidad de operacion ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Issuer, subject to the adjustments herein, consistently applied for such period and adjusted for Discontinued EBITDA as follows: if the amount of Discontinued EBITDA is a positive amount, then EBITDA shall increase by such amount, and if the amount of Discontinued EBITDA is a negative amount, then EBITDA shall decrease by the absolute value of such amount. For the purposes of calculating EBITDA for any applicable period pursuant to any determination of the Consolidated Leverage Ratio (but not the Consolidated Coverage Ratio): (A) (i) if at any time during such applicable period the Borrower or any of its Subsidiaries shall have made any Material Disposal, the EBITDA for such applicable period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposal for such applicable period (but when the Material Disposal is by way of lease, income received by the Issuer or any of its Subsidiaries under such lease shall be included in EBITDA) and (ii) if at any time during such applicable period the Issuer or any of its Subsidiaries shall have made any Material Acquisition, EBITDA for such applicable period shall be calculated after giving  pro forma  effect thereto as if such Material Acquisition had occurred on the first day of such applicable period. Additionally, if since the beginning of such applicable period any person that subsequently shall have become a Subsidiary or was merged or consolidated with the Issuer or any of its Subsidiaries as a result of a Material Acquisition occurring during such applicable period shall have made any Material Disposal or Material Acquisition of property that would have required an adjustment pursuant to clause (i) or (ii) above if made by the Issuer or any of its Subsidiaries during such applicable period, EBITDA for such period shall be calculated after giving  pro forma  effect thereto as if such Material Disposal or Material Acquisition had occurred on the first day of such applicable period; and (B) EBITDA will be recalculated by multiplying each month’s EBITDA by the Ending Exchange Rate and dividing the amount obtained thereto by the exchange rate used by the Issuer in preparation of its monthly financial statements in accordance with Applicable GAAP of the Issuer to convert $ into Mexican pesos (such recalculated EBITDA being the “ Recalculated EBITDA ”).
“Ending Exchange Rate” means the exchange rate at the end of a Reference Period for converting $ into Mexican pesos as used by the Issuer and its auditors in preparation of the Issuer’s financial statements in accordance with Applicable GAAP of the Issuer.
“Excluded Disposal Proceeds” means any CB Disposal Proceeds Replenishment Amount and the proceeds of any Disposal of:
 
 	(i)	inventory or trade receivables in the ordinary course of trading of the disposing entity;	
 
 	(ii)	assets pursuant to a Permitted Securitisation programme existing as at the date of the 2009 Financing Agreement (or any rollover or extension of such a Permitted Securitisation);	
 
 	(iii)	any asset from any member of the Group to another member of the Group on arm’s length terms and for fair market or book value;	
 
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 	(iv)	any assets the consideration for which (when aggregated with the consideration for any related Disposals) is less than $5,000,000 (or its equivalent in any other currency);	
 
 	(v)	assets leased or licensed to any director, officer or employee of any member of the Group in connection with and as part of the ordinary course of the service or employment arrangements of the Group;	
 
 	(vi)	Marketable Securities (other than Marketable Securities received as consideration for a Disposal as envisaged in paragraphs (ii) and (iii) of the definition of Disposal Proceeds); and	
 
 	(vii)	any cash or other assets arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to any settlement, disposal, transfer, assignment, closeout or other termination of such Permitted Put/Call Transaction.	
“Excluded Fundraising Proceeds” means the proceeds of:
 
 	(i)	a Permitted Fundraising falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraph (a) of the definition thereof (or paragraph (b) of the definition thereof, to the extent that it relates to Short Term Certificados Bursatiles) (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (i), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group);	
 
 	(ii)	a Permitted Fundraising falling within paragraph (f)(ii) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraphs (a) to (e) of the definition thereof (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (ii), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group).	
 
 	(iii)	any transaction between members of the Group;	
 
 	(iv)	Permitted Securitisations;	
 
 	(v)	prior to the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraph (c) of that definition or, after the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraphs (a), (b) or (c) of that definition  provided that  any Relevant Existing Financial Indebtedness due to mature within the particular Relevant Prepayment	
 
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 	Period and the proceeds of such Permitted Fundraising are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement;	
 
 	(vi)	subject to Clause 13.4(ii) of the 2009 Financing Agreement, a Permitted Fundraising falling within paragraph (c) of that definition and applied or to be applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement; and	
 
 	(vii)	a Permitted Fundraising arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to, any settlement, disposal, transfer, assignment, close-out or other termination of such Permitted Put/Call Transaction.	
“Executive Compensation Plan” means any stock option plan, restricted stock plan or retirement plan which the Issuer or any other Obligor customarily provides to its employees, consultants and directors.
“Existing Facility Agreements” means the facility agreements and other documents described in Part II, Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement.
“Existing Finance Documents” means each Existing Facility Agreement, the USPP Note Guarantee, the “Finance Documents” as defined in any Existing Facility Agreement and the “Facility Transaction Documents” as defined in Exhibit H to the NY Law Amendment Agreement (but in each case excluding any document that is designated a “ Finance Document ” or “ Facility Transaction Document ” by an Obligor and the relevant Creditor’s Representative under an Existing Facility Agreement after the date of the 2009 Financing Agreement).
“Existing Financial Indebtedness” means:
 
 	(a)	the Financial Indebtedness described in Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement  provided that  the principal amount of such Financial Indebtedness does not increase above the principal amount outstanding as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) less the amount of any repayments and prepayments made in respect of such Financial Indebtedness;	
 
 	(b)	the Financial Indebtedness described in Part II of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles, working capital or other operating facilities that replace or refinance such Financial Indebtedness;	
 
 	(c)	the Financial Indebtedness described in Part III of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Capital Leases that replace (and relate to the same or similar assets as) such Financial Indebtedness;	
 
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 	(d)	the Financial Indebtedness described in Part IV of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Inventory Financing or factoring arrangements that replace (and relate to the same or similar assets as) such Financial Indebtedness; and	
 
 	(e)	the Banobras Facility and any other facility that replaces or refinances such facility provided that any such replacement or refinancing facility is (i) with a development bank controlled by the Mexican Government or (ii) with any other financial institution to finance public works or infrastructure assets,	
provided that (i) the aggregate principal amount of such Existing Financial Indebtedness falling under each of paragraphs (b) to (e) of this definition shall not be increased above the principal amount of Financial Indebtedness committed or capable of being drawn down under the Financial Indebtedness referred to in that paragraph of this definition as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) and (ii), for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) above need not satisfy the requirements of paragraph (f) of the definition of Permitted Financial Indebtedness.
“Exposure” means, at any time:
 
 	(a)	in relation to a Participating Creditor and a Syndicated Bank Facility or Bilateral Bank Facility, that Participating Creditor’s participation in Loans made under the relevant Facility at that time;	
 
 	(b)	in relation to Participating Creditor and a Promissory Note, the principal amount owed to that Participating Creditor under that Promissory Note at that time; and	
 
 	(c)	in relation to a Participating Creditor and a USPP Note, the principal amount owed to that Participating Creditor under that USPP Note at that time.	
“Facility” means a Core Bank Facility and each USPP Note.
“Fee Letter” means any letter or agreement between the Administrative Agent or Security Agent and the Issuer setting out (i) the upfront fee and (ii) the level of fees payable in respect of the services and obligations performed by those agents under the relevant New Finance Documents.
“Finance Document” means each New Finance Document and each Existing Finance Document.
 
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“Finance Party” means the Administrative Agent, the Security Agent, each Creditor’s Representative or a Participating Creditor.
“Financial Indebtedness” means any indebtedness for or in respect of:
 
 	(a)	moneys borrowed and debit balances at banks or other financial institutions;	
 
 	(b)	any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);	
 
 	(c)	any amount raised pursuant to a note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (including, without limitation, any perpetual bonds);	
 
 	(d)	the amount of any liability in respect of any lease or hire purchase contract which would (in accordance with Applicable GAAP of the Issuer) be treated as a finance or capital lease;	
 
 	(e)	receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under Applicable GAAP of the Issuer);	
 
 	(f)	any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the mark-to-market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);	
 
 	(g)	any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;	
 
 	(h)	any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under Applicable GAAP of the Issuer;	
 
 	(i)	any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply;	
 
 	(j)	any arrangement pursuant to which an asset sold or otherwise disposed of by that person may be re-acquired by a member of the Group (whether following the exercise of an option or otherwise) and any Inventory Financing;	
 
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 	(k)	any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under Applicable GAAP of the Issuer; and	
 
 	(l)	the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (k) above.	
“Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
“Financial Year” means the annual accounting period of the Issuer ending on or about 31 December in each year.
“Fitch” means Fitch Ratings Limited or any successor thereto from time to time.
“Group” means the Issuer and each of its Subsidiaries for the time being.
“Guarantors” means the Original Guarantors and any Additional Guarantor other than any Original Guarantor or Additional Guarantor which has ceased to be a Guarantor pursuant to Clause 28.4 ( Resignation of Guarantor)  of the 2009 Financing Agreement and has not subsequently become an Additional Guarantor pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement and “ Guarantor ” means any of them.
“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“Intellectual Property” means:
 
 	(a)	any patents, trademarks, service marks, designs, business names, copyrights, design rights, data-base rights, inventions, knowhow and other intellectual property rights and interests, whether registered or unregistered; and	
 
 	(b)	the benefit of all applications and rights to use such assets of each member of the Group.	
“Intercreditor Agreement” means the intercreditor agreement dated on or about the date of the 2009 Financing Agreement and made between, among others, the Issuer, Wilmington Trust (London) Limited as Security Agent, Citibank International PLC as Administrative Agent, the Participating Creditors and any other creditors of the Group that may accede to it from time to time in accordance with its terms, as such agreement may be amended from time to time.
“Inventory Financing” means a financing arrangement pursuant to which a member of the Group sells inventory to a bank or other institution (or a special purpose vehicle or partnership
 
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incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
“Joint Venture Investment” has the meaning given to such term in sub-paragraph (b) (ii) of the definition of Permitted Joint Venture.
“Loan” means:
 
 	(a)	in relation to a Syndicated Bank Facility or Bilateral Bank Facility, a loan made or to be made under such Facility or the principal amount outstanding for the time being of that loan; and	
 
 	(b)	in relation to a Promissory Note, the Exposure of the Participating Creditors for the time being under that Promissory Note.	
“Majority Participating Creditors” means, at any time, a Participating Creditor or Participating Creditors the Base Currency Amount of whose Exposures under the Facilities at that time aggregate 66.67 per cent. or more of the Base Currency Amount of all the Exposures of the Participating Creditors under all of the Facilities at that time.
“Marketable Securities” means securities (whether equity, debt or other securities) which are listed on a stock exchange or for which a trading market exists (whether on market or over the counter) but excluding: (A) shares in any member of the Group, and (B) any shares in Axtel, S.A.B. de C.V.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit, division or line of business or (b) acquisition of or other investment in the Capital Stock of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Material Disposal” means any Disposal of property or series of related Disposals of property that yields gross proceeds to the Issuer or any of its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Mexican FRS” means Mexican Financial Reporting Standards (Normas de Información Financiera) as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 (Financial Statements).
“Mexican pesos,” “Mex$,” “MXN” and “pesos” means the lawful currency of Mexico.
“Mexico” means the United Mexican States.
 
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“Moody’s” means Moody’s Investor Services Limited or any successor to its ratings business.
“NAFTA” means the North American Free Trade Agreement.
“New Finance Document” means the 2009 Financing Agreement, the NY Law Amendment Agreement, the Intercreditor Agreement, each Transaction Security Document, any Accession Letter, any Fee Letter, any Resignation Letter and any other document designated as a “ New Finance Document ” by the Administrative Agent and the Issuer.
“New Equity Securities” means
 
 	(i)	The U.S.$977.5 million aggregate principal amount of 3.25% convertible subordinated notes due 2016, including U.S.$177.5 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2016; and	
 
 	(ii)	U.S.$690 million aggregate principal amount of 3.75% convertible subordinated notes due 2018, including U.S.$90 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2018.	
in each case, issued on 15 March 2011 by the Issuer.
“NY Law Amendment Agreement” means the omnibus amendment agreement dated on or about the date of the 2009 Financing Agreement between, among others, the Issuer and the Participating Creditors with Exposures under those Existing Facility Agreements (other than the USPP Note Agreement) that are governed by the laws of the State of New York, as such agreement may be amended from time to time.
“Obligors” means the Borrowers, the Guarantors and the Security Providers and “Obligor” means any of them.
“Original Borrowers” means, together with the Issuer, the Subsidiaries of the Issuer listed in Part I of Schedule 1 ( The Original Parties ) of the 2009 Financing Agreement as borrowers or issuers.
“Original Financial Statements” means (a) in relation to the Issuer, its audited unconsolidated and consolidated financial statements for its Financial Year ended 31 December 2008 accompanied by an audit opinion of KPMG Cardenas Dosal, S.C.; (b) in relation to CEMEX España, its audited consolidated financial statements for its financial year ended 31 December 2008; and (c) in relation to any other borrower or guarantor under the 2009 Financing Agreement, its most recent annual financial statements (audited, if available).
“Original Guarantors” means the Subsidiaries of the Issuer listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as guarantors, together with the Issuer.
 
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“Original Participating Creditors” means the financial institutions and noteholders listed in Part II of Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement as creditors.
“Original Security Providers” means the Subsidiaries of the Issuer listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as security providers.
“Participating Creditor” means:
 
 	(a)	any Original Participating Creditor; and	
 
 	(b)	any person which has become a Party in accordance with Clause 27 (Changes to the Participating Creditors ), of the 2009 Financing Agreement,	
which in each case has not ceased to be a Party in accordance with the terms of the 2009 Financing Agreement.
“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Party” means a party to the 2009 Financing Agreement.
“Permitted Acquisition” means:
 
 	(a)	an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;	
 
 	(b)	an acquisition of shares or securities pursuant to a Permitted Share Issue;	
 
 	(c)	an acquisition of cash or securities which are Cash Equivalent Investments;	
 
 	(d)	an acquisition to which a member of the Group is contractually committed as at the date of the 2009 Financing Agreement, with the material terms of those acquisitions requiring consideration payable in excess of $10,000,000 described in the list delivered to the Administrative Agent under paragraph 4(f) of Part I (Initial Conditions Precedent) of Schedule 2 of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such acquisition subsequent to the date of the 2009 Financing Agreement);	
 
 	(e)	the incorporation of a company which on incorporation becomes a member of the Group or which is a special purpose vehicle, whether a member of the Group or not;	
 
 	(f)	an acquisition that constitutes a Permitted Joint Venture;	
 
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 	(g)	an acquisition of assets and, if applicable, cash, in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash element of any such acquisition must not be more than 20 per cent. of the aggregate consideration for the acquisition; and (ii) the maximum aggregate market value of the assets acquired pursuant to all such transactions must not be more than $100,000,000 (or its equivalent in any other currency) in any Financial Year;	
 
 	(h)	any acquisition of shares of the Issuer pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(i)	any other acquisition consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors;	
 
 	(j)	an acquisition of shares in the Issuer to the extent that a member of the Group has an obligation to deliver such shares to any holder(s) of convertible securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible securities; and	
 
 	(k)	any other acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them)  provided that  the aggregate amount of the consideration for such acquisitions (when aggregated with the aggregate amount of Joint Venture Investment falling within paragraph (b)(iii)(1) of the definition of Permitted Joint Venture in that Financial Year) does not exceed $100,000,000 (or its equivalent in any other currencies) in any Financial Year.	
“Permitted Disposal” means any sale, lease, licence, transfer or other disposal which, except in the case of Disposals as between members of the Group, is on arm’s length terms:
 
 	(a)	of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;	
 
 	(b)	of any asset by a member of the Group (the “Disposing Company”) to another member of the Group (the “ Acquiring Company ”), but if:	
 
 	(i)	the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;	
 
 	(ii)	the Disposing Company had given Transaction Security over the asset, the Acquiring Company must give equivalent Transaction Security over that asset; and	
 
 	(iii)	the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company,	
 
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provided that the conditions set out in paragraphs (i), (ii) and (iii) above shall only apply if the applicable assets are shares or if all or substantially all of the assets of the Disposing Company are being disposed of;
 
 	(c)	of obsolete or redundant vehicles, machinery, parts and equipment in the ordinary course of trading;	
 
 	(d)	of cash or Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;	
 
 	(e)	constituted by a licence of Intellectual Property in the ordinary course of trading;	
 
 	(f)	to a Joint Venture, to the extent permitted by Clause 24.17 (Joint ventures) of the 2009 Financing Agreement;	
 
 	(g)	arising as a result of any Permitted Security;	
 
 	(h)	of any shares in a member of the Group (provided that all such shares in that entity owned by a member of the Group are the subject of the Disposal) or of any other asset, in each case on arm’s length terms and for full market value where:	
 
 	(i)	no less than 85 per cent. of the consideration for the Disposal is payable to the Group in cash or Marketable Securities paid or received by a member of the Group at completion of the Disposal ( provided that  where a portion of that 85 per cent. is comprised of Marketable Securities, those Marketable Securities must be disposed of for cash to a person that is not a member of the Group within 90 days of completion);	
 
 	(ii)	if the aggregate consideration for the Disposal (when aggregated with the consideration for any related Disposals) is equal to 5 per cent. or more of the value of consolidated assets of the Group, the Issuer has delivered to the Administrative Agent a certificate signed by an Authorised Signatory confirming that, on a  pro forma  basis, assuming that the Disposal had been completed and the proceeds had been applied in accordance with Clause 13 ( Mandatory Prepayment ) of the 2009 Financing Agreement immediately prior to the first day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement, the Issuer would have been in compliance with the financial covenants in paragraphs (a) and (b) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement as at the last day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement; and	
 
 	(iii)	the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
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 	(i)	of any asset compulsorily acquired by a governmental authority provided that the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(j)	of any receivables disposed of pursuant to a factoring or similar receivables financing arrangement that is otherwise permitted under the 2009 Financing Agreement (including, for the avoidance of doubt, the Banobras Facility);	
 
 	(k)	of any inventory disposed of pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(l)	of any plant or equipment disposed of pursuant to a sale and lease-back arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(m)	of any asset to which a member of the Group was contractually committed as at the date of the 2009 Financing Agreement, with all material terms of those disposals which relate to the disposal of assets with a value of at least $10,000,000 being described in Schedule 14  (Disposals)  of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such Disposal subsequent to the date of the 2009 Financing Agreement);	
 
 	(n)	of receivables disposed of pursuant to a Permitted Securitisation;	
 
 	(o)	of land or buildings arising as a result of lease or licence in the ordinary course of its trading;	
 
 	(p)	of any shares of the Issuer pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(q)	of shares, common equity securities in the Issuer or reference property in connection with the same to the extent that a member of the Group has an obligation to deliver such shares, common equity securities or reference property to any holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities or to any counterparty pursuant to the terms of any Permitted Put/Call Transaction;	
 
 	(r)	of assets and, if applicable, cash in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash	
 
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 	element of any such Disposal must not be more than 20 per cent. of the aggregate consideration for the Disposal; and (ii) the maximum aggregate market value of all assets disposed of in such transactions must not be more than $100,000,000 (or its equivalent in any other currencies) in any Financial Year; or	
 
 	(s)	otherwise approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors.	
“Permitted Financial Indebtedness” means Financial Indebtedness:
 
 	(a)	incurred or arising under the Finance Documents;	
 
 	(b)	that is Existing Financial Indebtedness;	
 
 	(c)	owed to a member of the Group;	
 
 	(d)	that constitutes a Permitted Securitisation;	
 
 	(e)	arising under Capital Leases, factoring arrangements, Inventory Financing arrangements or export credit facilities for the purchase of equipment ( provided that  any Security granted in relation to any such facility relates solely to equipment, the purchase of which was financed under such Facility) or pursuant to sale and lease-back transactions  provided that  the maximum aggregate Financial Indebtedness of members of the Group under such transactions (excluding any Existing Financial Indebtedness) does not exceed $350,000,000 at any time;	
 
 	(f)	arising:	
 
 	(i)	pursuant to an issuance of bonds, notes or other debt securities, or of convertible or exchangeable securities by:	
 
 	(A)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that issued the relevant Existing Financial Indebtedness that is being refinanced or replaced (whether acting as co-issuers or otherwise but, for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued so as to be applied in repayment or prepayment of the Exposures of the	
 
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 	Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as co-issuers or otherwise, (and, for the avoidance of doubt, such securities may be issued with an original issue discount) on the capital markets in each case subscribed or paid for in full in cash on issue (unless such securities are exchanged on issue for other securities that constitute Existing Financial Indebtedness falling within paragraph (a) of the definition thereof on issue)  provided that  (other than any conversion into common equity securities of the Issuer) no principal repayments are scheduled (and no call options can be exercised) in respect thereof until after the Termination Date;	
 
 	(ii)	under a loan facility in respect of which the only borrowers are:	
 
 	(A)	in the case of loan facilities entered into to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that borrowed the relevant Existing Financial Indebtedness that is being refinanced or replaced, (whether acting as joint or multiple borrowers but for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of loan facilities entered into so as to refinance or replace the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as joint or multiple borrowers,	
provided that no principal repayments are scheduled (and no mandatory prepayment obligations arise save as a result of unlawfulness affecting a creditor in respect of such loan facility) in respect thereof until after the Termination Date,
and further provided that (1) the terms applicable to such issuance under paragraph (f)(i) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) taken as a whole are no more restrictive or onerous than the terms applicable to the Facilities, and the terms applicable to such incurrence under paragraph (f)(ii) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) are no more restrictive or onerous than the terms applicable to the Facilities; (2) the proceeds of such issuance or incurrence are applied (to the
 
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extent required) in accordance with Clause 13 (Mandatory prepayment) of the 2009 Financing Agreement; (3) if proceeds of such issuance or incurrence are, to the extent required under the 2009 Financing Agreement, being used to replace or refinance (x) Financial Indebtedness which shares in the Transaction Security or (y) the CEMEX España Euro Notes, such Financial Indebtedness issued or incurred shall be entitled to share in the Transaction Security in accordance with (and on the terms of) the Intercreditor Agreement,  provided that  in the case of Financial Indebtedness issued or incurred to replace or refinance the CEMEX España Euro Notes, such Financial Indebtedness shall only be entitled to share in the Transaction Security if, prior to the first replacement or refinancing of the CEMEX España Euro Notes, the Debt Reduction Satisfaction Date has occurred; and (4) for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) of the definition of Existing Financial Indebtedness need not satisfy the requirements of this paragraph (f);
 
 	(g)	that constitutes a Permitted Liquidity Facility;	
 
 	(h)	that becomes Financial Indebtedness solely as a result of any change in Applicable GAAP of the Issuer after the date of the 2009 Financing Agreement and that existed prior to the date of such change in Applicable GAAP of the Issuer (or that replaces, and is on substantially the same terms as, such Financial Indebtedness);	
 
 	(i)	of any person acquired by a member of the Group pursuant to an acquisition falling within paragraphs (d) or (f) of the definition of Permitted Acquisition  provided that : (i) such Financial Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the acquisition; and (ii) the aggregate amount of any such Financial Indebtedness of members of the Group does not exceed $100,000,000 at any time;	
 
 	(j)	under Treasury Transactions entered into in accordance with Clause 24.26 (Treasury Transactions) of the 2009 Financing Agreement;	
 
 	(k)	incurred pursuant to or in connection with any cash pooling or other cash management agreements in place with a bank or financial institution, but only to the extent of offsetting credit balances of the Issuer or its Subsidiaries pursuant to such cash pooling or other cash management arrangement;	
 
 	(l)	constituting Financial Indebtedness for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of trading;	
 
 	(m)	that constitutes a Permitted Joint Venture;	
 
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 	(n)	approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors; and	
 
 	(o)	that, when aggregated with the principal amount of any other Financial Indebtedness not falling within paragraphs (a) to (n) above, does not exceed $200,000,000 (or its equivalent in other currencies) in aggregate at any time.	
“Permitted Fundraising” means:
 
 	(a)	any issuance of equity securities by the Issuer paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and not redeemable on or prior to the Termination Date and where such issue does not lead to a Change of Control;	
 
 	(b)	any issuance of equity-linked securities issued by any member of the Group that are linked solely to, and result only in the issuance of, equity securities of the Issuer otherwise entitled to be issued under this definition (and that do not, for the avoidance of doubt, result in the issuance of any equity securities by such member of the Group) and that are paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and where such issue does not lead to a Change of Control ( provided that  such securities do not provide for the payment of interest in cash and are not redeemable on or prior to the Termination Date); and	
 
 	(c)	any incurrence of Financial Indebtedness falling within paragraph (f) of the definition of Permitted Financial Indebtedness.	
“Permitted Fundraising Proceeds” means the cash proceeds received by any member of the Group from a Permitted Fundraising other than Excluded Fundraising Proceeds after deducting:
 
 	(i)	any reasonable expenses which are incurred by the relevant member(s) of the Group with respect to that Permitted Fundraising owing to persons who are not members of the Group; and	
 
 	(ii)	any Tax incurred and required to be paid by the relevant member(s) of the Group with respect to that Permitted Fundraising (as reasonably determined by the relevant member(s) of the Group on the basis of rates existing at the time and taking account of any available credit, deduction or allowance).	
“Permitted Joint Venture” means any investment in any Joint Venture where:
 
 	(a)	such investment exists or a member of the Group is contractually committed to such investment at the date of the 2009 Financing Agreement and, if the value of the Group’s investment in such Joint Venture is $50,000,000 or greater (as shown in the Original Financial Statements of the Issuer) is detailed in Schedule 12 (Permitted Joint Ventures) of the 2009 Financing Agreement; or	
 
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 	(b)	such investment is made after the date of the 2009 Financing Agreement and:	
 
 	(i)	either the investment has been consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors or the Joint Venture is engaged in a business substantially the same as that carried on by the Group; and	
 
 	(ii)	in any Financial Year of the Issuer, the aggregate of:	
 
 	(1)	all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;	
 
 	(2)	the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and	
 
 	(3)	the market value of any assets transferred by any member of the Group to any such Joint Venture,	
minus
 
 	(4)	from and including 1 January 2010, an amount up to, but not exceeding, $100,000,000 (or its equivalent in other currencies) in any Financial Year that represents all cash amounts received by any member of the Group (i) relating to dividends, repayment of loans or distributions of any other nature in respect of any such Joint Ventures in that Financial Year and (ii) as a result of or in relation to any disposals of shares, interests or participations, divestments, capital reductions or any similar decreases of interest in any such Joint Ventures in that Financial Year, does not exceed $100,000,000 (or its equivalent in other currencies) or such greater amount as the Administrative Agent (acting on the instructions of the Majority Participating Creditors) may agree (such amount being the “Joint Venture Investment”); and	
 
 	(iii)	the Issuer has (by written notice to the Administrative Agent prior to the end of the Financial Year in which the investment is made) designated the Joint Venture Investment as counting against:	
 
 	(1)	paragraph (k) of the definition of Permitted Acquisition; or	
 
 	(2)	the maximum amount of Capital Expenditure permitted in that Financial Year under paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement.	
 
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“Permitted Liquidity Facilities” means a loan facility or facilities made available to one or more members of the Group by one or more Participating Creditors (or their respective Affiliates)  provided that  the aggregate principal amount of utilised and unutilised commitments under such facilities must not exceed $1,000,000,000 (or its equivalent in any other currency) at any time.
“Permitted Put/Call Transaction” means any call option, call spread, capped call transaction, put option, put spread, capped put transaction or any combination of the foregoing and/or any other Treasury Transaction or transactions having a similar effect to any of the foregoing, in each case entered into, sold or purchased not for speculative purposes but for the purposes of managing specific risks or exposures associated with any issuance of Relevant Convertible Securities/Exchangeable Obligations.
“Permitted Securitisations” means a transaction or series of related transactions providing for the securitisation of receivables and related assets by the Issuer or its Subsidiaries, including a sale at a discount,  provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not a member of the Group in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organised in Mexico, a true sale), and not merely a pledge, under the laws and regulations of the jurisdiction in which such originator is organised; and (ii) except for customary representations, warranties, covenants and indemnities, such sale, transfer or other securitisation is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables.
“Permitted Security” means:
 
 	(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 Applicable GAAP of the Issuer shall have been made;	
 
 	(B)	Security granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements in place with a bank or financial institution falling within paragraph (k) of the definition of Permitted Financial Indebtedness);	
 
 	(C)	statutory liens of landlords and liens of carriers, warehousemen, mechanics and materialment incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or other appropriate provision, if any, as shall be required by Applicable GAAP of the Issuer shall have been made;	
 
 	(D)	liens incurred or deposits made in the ordinary course of business in connection with (1) workers’ compensation, unemployment insurance and	
 
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 	other types of social security, or (2) other insurance maintained by the Group in accordance with Clause 24.9 ( Insurance ) of the 2009 Financing Agreement;	
 
 	(E)	any attachment or judgment lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(F)	Security and Quasi-Security existing on the date of the 2009 Financing Agreement as described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement (or any replacement of Security or Quasi-Security in accordance with paragraph 3 of Schedule 15 ( Hedging Parameters ) of the 2009 Financing Agreement or any equivalent Security or Quasi-Security for Existing Financial Indebtedness that is a refinancing or replacement of Existing Financial Indebtedness)  provided that  the principal amount secured thereby is not increased (save that principal amounts secured by Security or Quasi-Security in respect of:	
 
 	(1)	Treasury Transactions where there are fluctuations in the mark-to-market exposures of those Treasury Transactions;	
 
 	(2)	Existing Financial Indebtedness under paragraph (a) of the definition where principal may increase by virtue of capitalisation of interest; and,	
 
 	(3)	the Banobras Facility, where further drawings may be made provided that the maximum amount outstanding under such facility does not exceed Mex$5,000,000,000 at any time,	
may be increased by the amount of such fluctuations or capitalisations, as the case may be);
 
 	(G)	any Security or Quasi-Security permitted by the Administrative Agent, acting on the instructions of the Majority Participating Creditors;	
 
 	(H)	any Security created or deemed created pursuant to a Permitted Securitisation;	
 
 	(I)	any Security granted by any member of the Group to secure Financial Indebtedness under a Permitted Liquidity Facility  provided that : (1) such Security is not granted in respect of assets that are the subject of the Transaction Security; and (2) the maximum aggregate amount of the Financial Indebtedness secured by such Security does not exceed $500,000,000 at any time;	
 
 	(J)	any Security granted by the Issuer or any member of the Group incorporated in Mexico in favour of a Mexican development bank (sociedad  nacional de	
 
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 	crédito) controlled by the government of Mexico (including Banco Nacional de Comercio Exterior, S.N.C., and Banco Nacional de Obras y Servicios Publicos, S.N.C.) securing indebtedness of the members of the Group in an aggregate additional amount of such indebtedness not exceeding $250,000,000 (or its equivalent in any other currency);	
 
 	(K)	any Security or Quasi-Security granted in connection with any Treasury Transaction, excluding any Treasury Transaction described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement, that constitutes Permitted Financial Indebtedness  provided that  the aggregate value of the assets that are the subject of such Security or Quasi-Security does not exceed $200,000,000 (or its equivalent in other currencies) at any time;	
 
 	(L)	Security or Quasi-Security granted or arising over receivables, inventory, plant or equipment that are the subject of an arrangement falling within paragraph (e) of the definition of Permitted Financial Indebtedness;	
 
 	(M)	the Transaction Security including, for the avoidance of doubt, any sharing in the Transaction Security referred to in paragraph (f) of the definition of Permitted Financial Indebtedness;	
 
 	(N)	any Quasi-Security that is created or deemed created on shares of the Issuer under paragraph (q) of the definition of Permitted Disposals by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Quasi-Security is customary for such transaction;	
 
 	(O)	in addition to the Security and Quasi-Security permitted by the foregoing paragraphs (A) to (N), Security or Quasi-Security securing indebtedness of the Issuer and its Subsidiaries (taken as a whole) not in excess of $500,000,000.	
“Permitted Share Issue” means:
 
 	(a)	a Permitted Fundraising falling within paragraphs (a) or (b) of the definition thereof;	
 
 	(b)	an issue of shares by a member of the Group which is a Subsidiary of the Issuer to another member of the Group or the Issuer (and, where the member of the Group has a minority shareholder, to that minority shareholder on a pro rata basis) where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms;	
 
 	(c)	an issue of shares by the Issuer to comply with an obligation in respect of any Executive Compensation Plan; or	
 
 	(d)	an issue of common equity securities of the Issuer either (i) by the Issuer or (ii) to any member of the Group where the Issuer or that member of the Group has an obligation to deliver such shares to a counterparty pursuant to the terms of a Permitted Put/Call Transaction or an obligation to deliver such shares to the holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities.	
 
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“Promissory Notes” means the promissory notes described in Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.
“Quasi Security” means an arrangement or transaction in which the Issuer or any Subsidiary:
 
 	(i)	sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;	
 
 	(ii)	sells, transfers or otherwise disposes of any of its receivables on recourse terms;	
 
 	(iii)	enters into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or	
 
 	(iv)	enters into any other preferential arrangement having a similar effect,	
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Properties.
“Reference Period” means a period of four consecutive Financial Quarters.
“Relevant Convertible/Exchangeable Obligations” means: (a) any Financial Indebtedness incurred by any person the terms of which provide that satisfaction of the principal amount owing under such Financial Indebtedness (whether on or prior to its maturity and whether as a result of bankruptcy, liquidation or other default by such person or otherwise) shall occur solely by delivery of shares or common equity securities in the Issuer; and (b) any Financial Indebtedness under any Subordinated Optional Convertible Securities.
“Relevant Existing Financial Indebtedness” means any Existing Financial Indebtedness set out in:
 
 	(i)	paragraph (a) of the definition of Existing Financial Indebtedness to the extent that it relates to Part I.C ( Mexican Public Debt Instruments ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement; and/or	
 
 	(ii)	paragraph (b) of the definition of Existing Financial Indebtedness to the extent it relates to Part II.A (Short Term Certificados Bursátiles ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles that replace or refinance such Existing Financial Indebtedness.	
 
E-30

“Relevant Prepayment Period” means the period commencing on the date of receipt of the proceeds of a Permitted Fundraising by a member of the Group and ending on the later of:
 
 	(a)	the date falling 364 days thereafter; and	
 
 	(b)	the 2012 CB Maturity Date.	
“Resignation Letter” means a document substantially in the form set out in Part I of Schedule 11 (Form of Resignation Letter ) of the 2009 Financing Agreement.
“Responsible Officer” means the Chief Financial Officer and/or Chief Controlling Officer of the Issuer or a person holding equivalent status (or higher).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto from time to time.
“SEC” means the U.S. Securities Exchange Commission and any successor thereto.
“Secured Parties” means each Finance Party from time to time to the 2009 Financing Agreement and any Receiver or Delegate.
“Security” means a mortgage, charge, pledge, lien, security trust or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Security Agent” means Wilmington Trust (London) Limited as security agent of the Secured Parties.
“Security Providers” means the Original Security Providers and any Additional Security Provider other than any Original Security Provider or Additional Security Provider which has ceased to be a Security Provider pursuant to Clause 28.6 ( Resignation of a Security Provider ) of the 2009 Financing Agreement and has not subsequently become an Additional Security Provider pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement, and “ Security Provider ” means any of them.
“Short-Term Certificados Bursatiles” means any securities with a term of not more than 12 months issued by the Issuer in the Mexican capital markets with the approval of the Mexican National Banking and Securities Banking and Securities Commission and listed on the Mexican Stock Exchange.
 
E-31

“Spanish GAAP” means the Spanish General Accounting Plan (Plan general Contable) approved by Royal Decree 1514/2007 as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 ( Financial Statements ) of the 2009 Financing Agreement.
“Subordinated Optional Convertible Securities” means any Financial Indebtedness incurred by any member of the Group meeting the requirements of paragraph (f)(i) of the definition of Permitted Financial Indebtedness (including that no principal repayments are scheduled (and no call options can be exercised) until after the Termination Date) (which may, for the avoidance of doubt, include a fundraising the proceeds of which are applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement)) the terms of which provide that such indebtedness is capable of optional conversion into equity securities of the Issuer and that repayment of principal and accrued but unpaid interest thereon is subordinated (under terms customary for an issuance of such Financial Indebtedness) to all senior Financial Indebtedness of the Issuer (including, but not limited to, all Exposures of Participating Creditors) except for: (i) indebtedness that states, or is issued under a deed, indenture, agreement or other instrument that states, that it is subordinated to or ranks equally with any Subordinated Optional Convertible Securities and (ii) indebtedness between or among members of the Group.
“Subsidiary” means in relation to any company or corporation, a company or corporation:
 
 	(a)	which is controlled, directly or indirectly, by the first mentioned company or corporation;	
 
 	(b)	more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or	
 
 	(c)	which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,	
and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
“Syndicated Bank Facilities” means the facilities described in Part IA of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on 19 November 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.
 
E-32

“Tax” means any tax, levy, impost, duty or other charge, deduction or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Termination Date” means 14 February 2014.
“Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.
“Transaction Security Documents” means each of the documents listed as being a Transaction Security Document in paragraph 2(e) of Part I of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement and any document required to be delivered to the Administrative Agent under paragraph 3(d) of Part II of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents (and any other Debt Documents).
“Treasury Transactions” means any derivatives transaction (i) that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), (ii) that is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets and that is a forward, swap, future, option or other derivative (including one or more spot transactions that are equivalent to any of the foregoing) on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made or (iii) that is a combination of these transactions, it being understood that any Executive Compensation Plan permitted by the 2009 Financing Agreement is not a Treasury Transaction.
“USPP Note” means a note issued under the USPP Note Agreement.
“USPP Note Agreement” means the consolidated, amended and restated note purchase agreement described in Part II of Schedule 1 ( Original Participating Creditors)  of the 2009 Financing Agreement.
“USPP Note Guarantee” means the consolidated, amended and restated note guarantee granted in favour of the USPP Noteholders.
“USPP Noteholders” means the holders from time to time of the notes issued pursuant to the USPP Note Agreement.
 
E-33

Exhibit 4.42.1
 
SUPPLEMENTAL INDENTURE NO. 1
 
SUPPLEMENTAL INDENTURE No. 1, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of October 2, 2013 (the “ Indenture ”), providing for the issuance of the Issuer’s 7.250% Senior Secured Notes due 2021 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 1;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 1 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 1.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 1. This Supplemental Indenture No. 1 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 1, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 1 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 1 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 1.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 1.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 1, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 1 to be duly executed as of the date first written above.

 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (7.250% Senior Secured Notes due 2021)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (7.250% Senior Secured Notes due 2021)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (7.250% Senior Secured Notes due 2021)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name:	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

 
 
[Signature page to Supplemental Indenture No. 1 (7.250% Senior Secured Notes due 2021)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX España, S.A.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Asia B.V.	
 	5.	 	CEMEX Concretos, S.A. de C.V.	
 	6.	 	CEMEX Corp.	
 	7.	 	CEMEX Egyptian Investments B.V.	
 	8.	 	CEMEX France Gestion (S.A.S.)	
 	9.	 	CEMEX Research Group AG	
 	10.	 	CEMEX Shipping B.V.	
 	11.	 	CEMEX UK	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	Egyptian Investments II B.V.	

Exhibit 4.43

 	  	 	 	RAFAEL MONJO CARRIÓ	  	 	 	
 	  	 	 	Notary Public	  	 	 	 	
 	  	 	 	C/ Monte Esquinza, 6	  	 	 	 	 	
 	  	 	 	28010 MADRID	  	 	 	 	 	 	
 	  	 	 	Tel.: 91 418 32 80 Fax: 91 319 90 46	  	 	 	 	 	 	 	

ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A. GRANTED BY THE ENTITIES “THE BANK OF NEW YORK MELLON” and “CEMEX ESPAÑA, S.A.”
NUMBER ONE THOUSAND NINE HUNDRED AND THIRTY EIGHT.
In Madrid, at my office on the second of October of two thousand and thirteen.
Before me, MR. RAFAEL MONJO CARRIO, Notary Public of Madrid and its Bar Association,
APPEAR
MRS. ANA MARÍA ARIAS SOMALO, of legal age, Spanish nationality, domiciled for these purposes in Madrid, calle José Abascal, number 45, with National Identification Card number 00410487-Y.
MR. JUAN PELEGRÍ Y GIRÓN, of legal age, domiciled for these purposes in Madrid, calle Hernández de Tejada, number 1; with National Identification Card number 01489996-X.

ACTING:
The first, in the name and representation of THE BANK OF NEW YORK MELLON (hereinafter, the “Bank” ), entity constituted in accordance with the laws of the State of New York (United States of America), with its corporate domicile at One Wall Street, New York, N.Y. 10286, United States of America, which in turn acts in representation and to the benefit of the holders of Senior Secured Notes for an added principal maximum amount of 1,000,000,000 U.S. dollars , at an interest rate of  7.250% , with maturity in 2021, notwithstanding the cases of early repayment that have been foreseen, issued under the bond issuance agreement (Indenture) governed by the laws of the State of New York (United States of America), signed on October 2, 2013 by, among others, CEMEX S.A.B. de C.V., a variable stock corporation constituted under the laws of Mexico, as issuer, and The Bank of New York Mellon, as Trustee (hereinafter, together with its subsequent modifications or novations, the “ Bonds Issuance ”).

She makes use of the power of attorney in effect, as affirmed, in her favor, conferred through the document granted before the Notary Public of New York, Mr. Danny Lee, on the second of October of two thousand and thirteen, a photocopy of which has been shown to me and the original, duly stamped according to the La Hague Convention of October 5, 1961, I will attach hereto, by means of written substantiation, when it is submitted to me.
The second party, in name and representation of the entity CEMEX ESPAÑA, S.A., entity governed under the laws of Spain (formerly Compañía Valenciana de Cementos Portland, S.A.), and with its corporate domicile in Madrid, calle Hernández de Tejada, number 1, the purpose of which, among others, is  “the manufacture, production, marketing and distribution of all kinds of sacks and containers or similar articles, of paper or any other material, for the packaging of cement, etc.”

It was constituted for an indefinite duration in the document authorized by the Notary Public at the time in Valencia, Mr. Juan Bautista Roch Contelles, on April 30, 1917, adapted to current legislation through the document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert on July 13, 1990; with said constitution REGISTERED in the Commercial Registry of Valencia, under volume 122, book 28 of companies, section 3 of corporations, page 354, registry 1. The adaptation is registered in the aforementioned Registry, under volume 2854, book 10, general section, page V2533, registry 165. The bylaws of the company were also amended through another public document authorized by the Notary Public of Madrid, Mr. Antonio Francés y de Mateo on August 12, 1993, with number 6796 of his notarial records, under record 200.
The above indicated current domicile was moved, through document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert, on June 29, 1995, with number 1489 of his notarial records, and registered in the Commercial Registry of Madrid, under volume 9743 and 9744, section 8, of the Book of Companies, folio 1 and 166, page number M-156542 records 1 and 2.

Its name was changed to its current name through the agreement taken by the General Shareholders Meeting of the Company, in its meeting held on the twenty-fourth of June of two thousand and two, recorded as a document of public record, before me on the same day, under number 662 of my records, registry number 122.
Its Tax Identification number is: A-46.004.214.
He makes use of the powers in effect, as affirmed, in his power, conferred by agreement taken by the Administrative Board of the Company, at its meeting held on the twenty-fifth of July of two thousand and thirteen and the thirtieth of September two thousand and thirteen, recorded as a document of public record, before me, on the twenty-sixth of July of two thousand and thirteen, under number 1496 of my records and on the first of October of two thousand and thirteen, under number 1924 of my records, respectively, as accredited to me with authorized copies of said documents which I have before me.

For the purposes established in article 98 of Law 24/2001 and in accordance with the Resolution of the General Directorate for Registries and Notary Affairs of April 12, 2002, I certify that, in my opinion, I consider that the representative powers accredited are sufficient for the execution of this document under the terms indicated below.
BENEFICIAL OWNERSHIP. – I, the Notary Public, expressly confirm that I have complied with the obligation of identifying the beneficial owner as imposed by Law 10/2010 of April 28, the result of which is recorded in a document authorized before me, on the eleventh of November of two thousand and ten, under number 2387 of my records, which has been modified since then as attested by the representative of the Company.
The parties appearing before me have, in my opinion, as they appear, the legal capacity and legitimate interest necessary to grant this  ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A.  and, for such purpose, in their capacity and for all applicable legal purposes,

THEY HEREBY DECLARE
I. That, by virtue of the policy agreement granted before me on November 8, 2012, registered with number 3530 in Section A of the Registry Book (hereinafter the “ Pledge Policy ”), CEMEX, S.A.B. de C.V. and New Sunward Holding B.V. constituted certain real pledge rights (hereinafter the “ Pledges ”) over the shares of the company CEMEX España, S.A. in its name.
II. That, in accordance with the Creditors Relation Agreement (as this is defined in the Pledge Policy), the creditors of the CEMEX group, in virtue of the issuance of bonds such as the Bonds Issuance will have the consideration of  Additional Notes Creditors  and, therefore, of  Secured Parties  according to the terms established

in the Creditors Relation Agreement and in the Pledge Policy, and may obtain the benefit of the Pledges through their adhesion to the Pledge Policy according to the provisions of Clause 16 of the same.
IV. That, in accordance with the provisions of Clause 16 of the Pledge Policy, the Secured Parties in whose benefit the Relationship Manager acted, among which include the Bank, as  trustee  of the holders of bonds of the Bonds Issuance, may adhere to the Pledge Policy and ratify the content of the same, accepting the Pledges constituted in their favor as guarantee of the corresponding Secured Obligations, through appearance before me.
Said adhesions will be carried out through the granting of the corresponding adhesion deed or policy, all without the need for a new consent from the pledgors, for having provided said consent previously in the Creditor Relation Agreement and in the Pledge Policy itself.

V. That the Bank expressly declares that the adhesion referred to in the Stipulations of this Document is formalized as a mere instrument of execution of the rights attributed to the Bank in the Pledge Policy, from which it is derived, so that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
VI. That by virtue of the foregoing, the Bank wishes to grant this Adhesion Deed (hereinafter the “Deed”) in accordance with the following
STIPULATIONS:
ONE. – ADHESION TO THE PLEDGE POLICY.
The Bank, through this Deed, adheres to, ratifies and approves the Pledge Policy to the fullest extent, the entire content of which it declares to know, therefore giving such granting full value and legal efficacy and accepting that the

payment obligations resulting from the Bonds Issuance dated the twelfth of August of two thousand thirteen are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
The Bank REQUIRES from me, the Notary Public, to NOTIFY this adhesion to WILMINGTON TRUST (LONDON) LIMITED , domiciled for these purposes on the Third Floor, 1 King’s Arms Yard, London, United Kingdom, EC2R 7AF (attention Sajada Afzal), in her capacity as Relationship Manager and I, the Notary Public, accept said requirement.
CEMEX España, S.A., appears herein for the purposes of acknowledging itself as notified of this adhesion.
TWO. – APPLICABLE LAW AND JURISDICTION.
2.1 This Deed is subject to Spanish common law.
2.2 The Parties submit themselves expressly to the jurisdiction and competence of the Courts and Tribunals of Madrid for all matters that may result from the validity, interpretation, fulfillment and execution of this Deed.
HANDLING OF DATA. – The appearing parties accept the incorporation of their data and the copy of identification documents in the files of the Notary Public in order to carry out the functions inherent

to the notarial activity and for the communication of data established in the Public Administration Law and, as applicable, for the Notary Public who follows the current one. They may exercise their rights to access, rectify, cancel and oppose at the authorizing Notary’s office.
It is thus stated and executed.
And I, the Notary Public, ATTEST:
a. – To have identified the appearing parties through their identification documents, indicated in the appearance clause, which have been shown to me.
b. – That the appearing parties, in my opinion, have the capacity and legal standing for the granting hereof.

c. – That the granting hereof by the appearing parties is legal, duly informed and made willingly.
d. – That I have read this public instrument to the grantors thereof, having previously advised them of their right to read it for themselves, which they have done, and they have stated that they have been duly made aware of the entire content of the same, and they provide their consent, all in accordance with article 193 of the Notarial Regulations.
e. – That this public instrument is executed in six notarized pages, series BN numbers: 0332811 and the five following numbers in correlated order and I, the Notary Public, attest. The signatures of the appearing parties follow. Signed RAFAEL MONJO CARRIÓ. Signed. Notary Seal.
CERTIFICATE. – To record that on the third of October of two thousand and thirteen, I left filed at the Post Office Branch, located at office 2825494, E.O MINISTRY OF PUBLIC ADMINISTRATIONS, as a Certificate and notification of receipt, the notification document of the act above, and that the official in charge of the service has given to me the receipt which bears the sending number RR268040666ES.

All of which I attest and that this certificate is issued after the deed on which it is based, on this last sheet of notarized paper, of the BN series, number 0332816. In Madrid on the third of October of two thousand and thirteen.
Signed. RAFAEL MONJO CARRIÓ. Signed. Notary Seal.
CERTIFICATE. – I, the Notary Public, issue this certificate to record that on today’s date, the fourth of October of two thousand and thirteen, I have received a copy of the power of attorney granted by the entity THE BANK OF NEW YORK MELLON, before the Notary Public of New York, Mr. Danny Lee, on the second of October of two thousand and thirteen, duly legalized with the La Hague apostille, and I, the Notary Public, consider that the representative of the entity has sufficient powers to formalize the deed which is the object hereof. I leave a copy of said power incorporated hereto, forming an integral part of the same.

And with nothing further to record, I issue this document over this sole sheet of notarized paper and I, the Notary Public, attest. Signed. RAFAEL MONJO CARRIÓ. Signed. Notary Seal.

Exhibit 4.44
CEMEX, S.A.B. de C.V.
THE NOTE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
FLOATING RATE SENIOR SECURED NOTES DUE 2018
INDENTURE
Dated as of October 2, 2013

TABLE OF CONTENTS

 	 	 	    	 	  	Page	 	
 	 	
ARTICLE I         DEFINITIONS AND INCORPORATION BY REFERENCE	  	 	1	  	
 	 	 	 	
 	 	Section 1.1	    	Definitions	  	 	1	  	
 	 	Section 1.2	    	[Reserved]	  	 	38	  	
 	 	Section 1.3	    	Rules of Construction	  	 	38	  	
 	 	
ARTICLE II       THE NOTES	  	 	39	  	
 	 	 	 	
 	 	Section 2.1	    	Form and Dating	  	 	39	  	
 	 	Section 2.2	    	Execution and Authentication	  	 	40	  	
 	 	Section 2.3	    	Registrar, Paying Agent and Transfer Agent	  	 	41	  	
 	 	Section 2.4	    	Paying Agent to Hold Money in Trust	  	 	41	  	
 	 	Section 2.5	    	Holder Lists	  	 	42	  	
 	 	Section 2.6	    	CUSIP Numbers	  	 	42	  	
 	 	Section 2.7	    	Global Note Provisions	  	 	42	  	
 	 	Section 2.8	    	Legends	  	 	44	  	
 	 	Section 2.9	    	Transfer and Exchange	  	 	44	  	
 	 	Section 2.10	    	Mutilated, Destroyed, Lost or Stolen Notes	  	 	50	  	
 	 	Section 2.11	    	Temporary Notes	  	 	50	  	
 	 	Section 2.12	    	Cancellation	  	 	51	  	
 	 	Section 2.13	    	Computation of Interest	  	 	51	  	
 	 	Section 2.14	    	Defaulted Interest	  	 	53	  	
 	 	Section 2.15	    	Additional Notes	  	 	54	  	
 	 	
ARTICLE III      COVENANTS	  	 	55	  	
 	 	 	 	
 	 	Section 3.1	    	Payment of Notes	  	 	55	  	
 	 	Section 3.2	    	Maintenance of Office or Agency	  	 	56	  	
 	 	Section 3.3	    	Corporate Existence	  	 	56	  	
 	 	Section 3.4	    	Payment of Taxes and Other Claims	  	 	56	  	
 	 	Section 3.5	    	Compliance Certificate	  	 	56	  	
 	 	Section 3.6	    	Further Instruments and Acts	  	 	56	  	
 	 	Section 3.7	    	Waiver of Stay, Extension or Usury Laws	  	 	57	  	
 	 	Section 3.8	    	Change of Control	  	 	57	  	
 	 	Section 3.9	    	Limitation on Incurrence of Additional Indebtedness	  	 	58	  	
 	 	Section 3.10	    	[Reserved]	  	 	63	  	
 	 	Section 3.11	    	Limitation on Restricted Payments	  	 	63	  	
 	 	Section 3.12	    	Limitation on Asset Sales	  	 	68	  	
 	 	Section 3.13	    	Limitation on the Ownership of Capital Stock of Restricted Subsidiaries	  	 	71	  	
 	 	Section 3.14	    	Limitation on Designation of Unrestricted Subsidiaries	  	 	72	  	
 	 	Section 3.15	    	Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries	  	 	73	  	
 
i

TABLE OF CONTENTS
(continued)

 	 	 	    	 	  	Page	 	
 	 	 	 	
 	 	Section 3.16	    	Limitation on Layered Indebtedness	  	 	75	  	
 	 	Section 3.17	    	Limitation on Liens	  	 	75	  	
 	 	Section 3.18	    	Limitation on Transactions with Affiliates	  	 	76	  	
 	 	Section 3.19	    	Conduct of Business	  	 	77	  	
 	 	Section 3.20	    	Reports to Holders	  	 	77	  	
 	 	Section 3.21	    	Payment of Additional Amounts	  	 	78	  	
 	 	Section 3.22	    	Suspension of Covenants	  	 	81	  	
 	 	
ARTICLE IV      SUCCESSOR ISSUER	  	 	83	  	
 	 	 	 	
 	 	Section 4.1	    	Merger, Consolidation and Sale of Assets	  	 	83	  	
 	 	
ARTICLE V       OPTIONAL REDEMPTION OF NOTES	  	 	86	  	
 	 	 	 	
 	 	Section 5.1	    	Optional Redemption	  	 	86	  	
 	 	Section 5.2	    	[Reserved]	  	 	86	  	
 	 	Section 5.3	    	Notices to Trustee	  	 	86	  	
 	 	Section 5.4	    	Notice of Redemption	  	 	86	  	
 	 	Section 5.5	    	[Reserved]	  	 	87	  	
 	 	Section 5.6	    	Deposit of Redemption Price	  	 	87	  	
 	 	Section 5.7	    	Notes Payable on Redemption Date	  	 	87	  	
 	 	
ARTICLE VI      DEFAULTS AND REMEDIES	  	 	87	  	
 	 	 	 	
 	 	Section 6.1	    	Events of Default	  	 	87	  	
 	 	Section 6.2	    	Acceleration	  	 	88	  	
 	 	Section 6.3	    	Other Remedies	  	 	89	  	
 	 	Section 6.4	    	Waiver of Past Defaults	  	 	89	  	
 	 	Section 6.5	    	Control by Majority	  	 	89	  	
 	 	Section 6.6	    	Limitation on Suits	  	 	90	  	
 	 	Section 6.7	    	Rights of Holders to Receive Payment	  	 	90	  	
 	 	Section 6.8	    	Collection Suit by Trustee	  	 	90	  	
 	 	Section 6.9	    	Trustee May File Proofs of Claim, etc.	  	 	90	  	
 	 	Section 6.10	    	Priorities	  	 	91	  	
 	 	Section 6.11	    	Undertaking for Costs	  	 	91	  	
 	 	
ARTICLE VII     TRUSTEE	  	 	92	  	
 	 	 	 	
 	 	Section 7.1	    	Duties of Trustee	  	 	92	  	
 	 	Section 7.2	    	Rights of Trustee	  	 	93	  	
 	 	Section 7.3	    	Individual Rights of Trustee	  	 	94	  	
 	 	Section 7.4	    	Trustee’s Disclaimer	  	 	94	  	
 	 	Section 7.5	    	Notice of Defaults	  	 	95	  	
 	 	Section 7.6	    	[Reserved]	  	 	95	  	
 
ii

TABLE OF CONTENTS
(continued)

 	 	 	    	 	  	Page	 	
 	 	 	 	
 	 	Section 7.7	    	Compensation and Indemnity	  	 	95	  	
 	 	Section 7.8	    	Replacement of Trustee	  	 	96	  	
 	 	Section 7.9	    	Successor Trustee by Merger	  	 	97	  	
 	 	Section 7.10	    	Eligibility; Disqualification	  	 	97	  	
 	 	Section 7.11	    	[Reserved]	  	 	97	  	
 	 	Section 7.12	    	[Reserved]	  	 	97	  	
 	 	Section 7.13	    	Authorization and Instruction of the Trustee With Respect to the Collateral	  	 	97	  	
 	 	
ARTICLE VIII     DEFEASANCE; DISCHARGE OF INDENTURE	  	 	98	  	
 	 	 	 	
 	 	Section 8.1	    	Legal Defeasance and Covenant Defeasance	  	 	98	  	
 	 	Section 8.2	    	Conditions to Defeasance	  	 	99	  	
 	 	Section 8.3	    	Application of Trust Money	  	 	100	  	
 	 	Section 8.4	    	Repayment to Issuer	  	 	100	  	
 	 	Section 8.5	    	Indemnity for U.S. Government Obligations	  	 	101	  	
 	 	Section 8.6	    	Reinstatement	  	 	101	  	
 	 	Section 8.7	    	Satisfaction and Discharge	  	 	101	  	
 	 	
ARTICLE IX       AMENDMENTS	  	 	102	  	
 	 	 	 	
 	 	Section 9.1	    	Without Consent of Holders	  	 	102	  	
 	 	Section 9.2	    	With Consent of Holders	  	 	103	  	
 	 	Section 9.3	    	[Reserved]	  	 	104	  	
 	 	Section 9.4	    	Revocation and Effect of Consents and Waivers	  	 	104	  	
 	 	Section 9.5	    	Notation on or Exchange of Notes	  	 	105	  	
 	 	Section 9.6	    	Trustee to Sign Amendments and Supplements	  	 	105	  	
 	 	
ARTICLE X         NOTE GUARANTEES	  	 	105	  	
 	 	 	 	
 	 	Section 10.1	    	Note Guarantees	  	 	105	  	
 	 	Section 10.2	    	Limitation on Liability; Termination, Release and Discharge	  	 	109	  	
 	 	Section 10.3	    	Right of Contribution	  	 	110	  	
 	 	Section 10.4	    	No Subrogation	  	 	110	  	
 	 	Section 10.5	    	French Guarantee Limitation	  	 	110	  	
 	 	Section 10.6	    	Swiss Guarantee Limitation	  	 	111	  	
 	 	
ARTICLE XI       COLLATERAL	  	 	113	  	
 	 	 	 	
 	 	Section 11.1	    	The Collateral	  	 	113	  	
 	 	Section 11.2	    	Release of the Collateral	  	 	113	  	
 
iii

TABLE OF CONTENTS
(continued)

 	 	 	    	 	  	Page	 	
 	 	
ARTICLE XII       MISCELLANEOUS	  	 	114	  	
 	 	 	 	
 	 	Section 12.1	    	Notices	  	 	114	  	
 	 	Section 12.2	    	Communication by Holders with Other Holders	  	 	115	  	
 	 	Section 12.3	    	Certificate and Opinion as to Conditions Precedent	  	 	115	  	
 	 	Section 12.4	    	Statements Required in Certificate or Opinion	  	 	115	  	
 	 	Section 12.5	    	Rules by Trustee, Paying Agent, Transfer Agent and Registrar	  	 	116	  	
 	 	Section 12.6	    	Legal Holidays	  	 	116	  	
 	 	Section 12.7	    	Governing Law, etc.	  	 	116	  	
 	 	Section 12.8	    	[Reserved]	  	 	118	  	
 	 	Section 12.9	    	No Recourse Against Others	  	 	118	  	
 	 	Section 12.10	    	Successors	  	 	118	  	
 	 	Section 12.11	    	Duplicate and Counterpart Originals	  	 	118	  	
 	 	Section 12.12	    	Severability	  	 	118	  	
 	 	Section 12.13	    	[Reserved]	  	 	118	  	
 	 	Section 12.14	    	Currency Indemnity	  	 	118	  	
 	 	Section 12.15	    	Table of Contents; Headings	  	 	119	  	
 	 	Section 12.16	    	USA PATRIOT Act	  	 	119	  	
 
iv

 	 	 	
EXHIBIT A	 	FORM OF NOTE	
 	 	
EXHIBIT B	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	
 	 	
EXHIBIT C	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	
 	 	
EXHIBIT D	 	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	
 	 	
EXHIBIT E	 	“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS	
 
v

INDENTURE, dated as of October 2, 2013, among CEMEX, S.A.B. de C.V., a sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the guarantors listed on Schedule I  hereto, as guarantors of the Issuer’s obligations under this Indenture and the Notes, and The Bank of New York Mellon, as trustee (the “ Trustee ”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuer’s Floating Rate Senior Secured Notes due 2018 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2009 Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“3-month Dollar LIBO Rate” has the meaning assigned to it in Section 2.13(c).
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Issuer or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness will be deemed to have been Incurred at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Issuer or a Restricted Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
“Acquired Subsidiary” means any Subsidiary acquired by the Issuer or any other Subsidiary after the Issue Date in an Acquisition, and any Subsidiaries of such Acquired Subsidiary on the date of such Acquisition.
“Acquiring Subsidiary” means any Subsidiary formed by the Issuer or one of its Subsidiaries solely for the purpose of participating as the acquiring party in any Acquisition, and any Subsidiaries of such Acquiring Subsidiary acquired in such Acquisition.
“Acquisition” means any merger, consolidation, acquisition or lease of assets, acquisition of securities or business combination or acquisition, or any two or more of such transactions, if, upon the completion of such transaction or transactions, the Issuer or any Restricted Subsidiary thereof has acquired an interest in any Person who would be deemed to be a Restricted Subsidiary under this Indenture and was not a Restricted Subsidiary prior thereto.
“Additional Amounts” has the meaning assigned to it in Section 3.21(b).

“Additional Note Certificate” has the meaning assigned to it in Section 2.15(b).
“Additional Note Guarantors” means New Sunward Holding B.V., CEMEX Concretos, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
“Additional Note Supplemental Indenture” means a supplement to this Indenture duly executed and delivered by the Issuer, each Note Guarantor and the Trustee pursuant to  Article IX  providing for the issuance of Additional Notes.
“Additional Notes” has the meaning assigned to it in Section 2.15(a).
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Affiliate Transaction” has the meaning assigned to it in Section 3.18(a).
“Agent Members” has the meaning assigned to it in Section 2.7(b).
“Agents” means, collectively, the Registrar, any co-Registrar, the Paying Agents, the Transfer Agent and any other agent appointed by the Issuer hereunder.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in a Global Note, the rules and procedures of DTC, Euroclear and Clearstream, as the case may be, that apply to such transfer or exchange, including the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream.
“Asset Sale” means any direct or indirect sale, disposition, issuance, conveyance, transfer, lease (other than an operating lease entered into in the ordinary course of business), assignment or other transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by the Issuer or any Restricted Subsidiary of:
 
 	(a)	any Capital Stock other than Capital Stock of the Issuer; or	
 
 	(b)	any property or assets (other than cash, Cash Equivalents or Capital Stock) of the Issuer or any Restricted Subsidiary;	
Notwithstanding the preceding, the following will not be deemed to be Asset Sales:
 
 	(1)	the disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries as permitted under  Section 3.12 ;	
 
2

 	(2)	any disposition of equipment that is not usable or is obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;	
 
 	(3)	dispositions of assets in any fiscal year with a Fair Market Value not to exceed U.S.$25 million in the aggregate;	
 
 	(4)	for purposes of Section 3.12 only, the making or disposition of a Permitted Investment or Restricted Payment permitted under  Section 3.11 ;	
 
 	(5)	a disposition to the Issuer or a Restricted Subsidiary, including a Person that is or will become a Restricted Subsidiary immediately after the disposition;	
 
 	(6)	the creation of a Lien permitted under this Indenture (other than a deemed Lien in connection with a Sale and Leaseback Transaction);	
 
 	(7)	(i) the disposition of Receivables Assets pursuant to a Qualified Receivables Transaction and (ii) the disposition of other accounts receivable in the ordinary course of business;	
 
 	(8)	the disposition of any asset constituted by a license of intellectual property in the ordinary course of business;	
 
 	(9)	the disposition of inventory pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under this Indenture;	
 
 	(10)	the disposition of any asset compulsorily acquired by a governmental authority; and	
 
 	(11)	sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements.	
“Asset Sale Offer” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Amount” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Notice” means notice of an Asset Sale Offer made pursuant to Section 3.12, which shall be mailed first class, postage prepaid, to each record Holder as shown on the Note Register within 20 days following the 365th day after the receipt of Net Cash Proceeds of any Asset Sale, with a copy to the Trustee, which notice shall govern the terms of the Asset Sale Offer, and shall state:
 
 	(1)	the circumstances of the Asset Sale or Sales, the Net Cash Proceeds of which are included in the Asset Sale Offer, that an Asset Sale Offer is being made pursuant to  Section 3.12(c) , and that all Notes that are timely tendered will be accepted for payment;	
 
3

 	(2)	the Asset Sale Offer Amount and the Asset Sale Offer Payment Date, which date shall be a Business Day no earlier than 30 days nor later than 60 days from the date the Asset Sale Offer Notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Offer Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Offer Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Offer Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on the schedule of increases or decreases thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.12 .	
 
4

“Asset Sale Offer Payment Date” has the meaning assigned to it in Section 3.12(f).
“Authenticating Agent” has the meaning assigned to it in Section 2.2(b).
“Authorized Agent” has the meaning assigned to it in Section 12.7(c).
“Axtel Share Forward Transaction” means the Axtel share forward transaction that is governed by a long form confirmation originally dated January 22, 2009, as replaced by long form confirmations dated September 28, 2010 and March 19, 2012, and as further replaced by a long form confirmation dated August 27, 2013, between Credit Suisse International and Centro Distribuidor de Cemento, S.A. de C.V. (References: External ID: 16059563R5-Risk ID: 10008383) and any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Bancomext Facility” means the U.S.$250,000,000 credit agreement (Crédito Simple), dated October 14, 2008, as amended from time to time ( provided  that the principal amount thereof does not increase above the principal amount outstanding as of August 14, 2009 (except by the amount of any capitalized interest if so provided by such facility and on those terms as of August 14, 2009) less the amount of any repayments and prepayments made in respect of such facility), among the Issuer, as borrower, Banco Nacional de Comercio Exterior, S.N.C., as lender, and CEMEX México, as guarantor, and secured by the mortgage of a cement plant in Ensenada, Baja California, Mexico.
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree or order for relief in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or (ii) a decree or order (A) adjudging any Bankruptcy Party a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (B) approving as properly filed a petition seeking reorganization,  concurso mercantil , arrangement, adjustment or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up or liquidation of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (ii) the consent by any Bankruptcy Party to the entry of a decree	
 
5

 	or order for relief in respect of such Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization,  concurso mercantil , or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, or (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors, including the Mexican  Ley de Concursos Mercantiles and  Spanish Law 22/2003 of 9 July ( Ley 22/2003 de 9 de julio , Concursal ), as amended.
“Bankruptcy Party” means the Issuer and any Significant Subsidiary of the Issuer or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Issuer.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ), dated April 22, 2009, among CEMEX Concretos, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, S.N.C., as lender, as in effect on the Issue Date and as amended from time to time, and secured by a mortgage of Planta Yaqui in Hermosillo, Sonora, Mexico.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, Mexico City, Madrid, Amsterdam, London, Paris or Zurich are authorized or required by law, regulation or other governmental action to remain closed.
“Business Day Convention” means the following: If any LIBO Rate Reset Date or Interest Payment Date (other than the Maturity Date) would otherwise be a day that is not a Business Day, that LIBO Rate Reset Date or Interest Payment Date will be postponed to the next succeeding Business Day, provided, however, that if that date would fall in the next succeeding calendar month, such date will be the immediately preceding Business Day. If any such LIBO Rate Reset Date or Interest Payment Date (other than the Maturity Date) is postponed or brought forward as described above, the Interest Amount will be adjusted accordingly. If the Maturity Date falls on a day that is not a Business Day, payment of principal and interest on the Notes will be made on the next Business Day, and no interest will accrue for the period from and after the Maturity Date. Postponement as described above will not result in a default.
 
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“Calculation Agent” has the meaning assigned to it in Section 2.13(b).
“Capital Stock” means:
 
 	(1)	with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;	
 
 	(2)	with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person; and	
 
 	(3)	any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above, but excluding any Indebtedness exchangeable into such equity interest in existence on the Issue Date or Incurred pursuant to  Section 3.9 .	
“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Cash Equivalents” means:
 
 	(1)	marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the United Kingdom or any member nation of the European Union or issued by any agency thereof and backed by the full faith and credit of the United States, the United Kingdom, such member nation of the European Union or any European Union central bank, in each case maturing within one year from the date of acquisition thereof;	
 
 	(2)	marketable direct obligations issued by the Mexican government, or issued by any agency thereof, including but not limited to,  Certificados de la Tesorería de la Federación  (Cetes) or  Bonos de Desarrollo del Gobierno Federal  (Bondes), in each case, issued by the government of Mexico and maturing not later than one year after the acquisition thereof;	
 
 	(3)	marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Fitch or any successor thereto;	
 
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 	(4)	commercial paper or corporate debt obligations maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 or AAA from S&P, at least F-1 or AAA from Fitch or P-1 or Aaa from Moody’s;	
 
 	(5)	demand deposits, certificates of deposit, time deposits or bankers’ acceptances or other short-term unsecured debt obligations (and any cash or deposits in transit in any of the foregoing) maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the United Kingdom or any country of the European Union, (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than U.S.$500 million, or (c) in the case of Mexican peso deposits, any financial institution in good standing with Banco de México organized under the laws of Mexico;	
 
 	(6)	repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) and (2) above entered into with any bank meeting the qualifications specified in clause (5) above;	
 
 	(7)	investments in money market funds which invest substantially all of their assets in securities of the types described in clauses (1) through (6), (8) and (9);	
 
 	(8)	certificates of deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco Nacional de Obras y Servicios Públicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(9)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which the Issuer or a Restricted Subsidiary operates and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquisition; and	
 
 	(10)	Investments in mutual funds, managed by banks, with a local currency credit rating of at least MxAA by S&P or other equally reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican Government, or issued by any agency or instrumentality thereof.	
In the case of Investments by any Restricted Subsidiary, Cash Equivalents will also include (a) investments of the type and maturity described in clauses (1) through (10) of any Restricted Subsidiary outside of Mexico in the country in which such Restricted Subsidiary operates, which Investments or obligors (or the parents of such obligors) have ratings described
 
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in such clauses or equivalents ratings from comparable foreign rating agencies, (b) local currencies and other short-term investments utilized by Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (10) and in this paragraph and (c) investments of the type described in clauses (1) through (9) maturing within one year of the Issue Date.
“Certificados Bursátiles” means debt securities issued by the Issuer guaranteed (por aval) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned subsidiaries of the Issuer, in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores ,  S.A.B. de C.V. ).
“Certificated Note” means any Note issued in fully registered form, other than a Global Note, which shall be substantially in the form of  Exhibit A  hereto, with appropriate legends as specified in  Section 2.8  and  Exhibit A .
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission under the Exchange Act) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Issuer is acquired by any Person;  provided , that the acquisition of beneficial ownership of Capital Stock of the Issuer by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Change of Control Notice” means notice of a Change of Control Offer made pursuant to Section 3.8, which shall be mailed first-class, postage prepaid, to each record Holder as shown on the Note Register within 30 days following the date upon which a Change of Control occurred, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer and shall state:
 
 	(1)	that a Change of Control has occurred, the circumstances or events causing such Change of Control and that a Change of Control Offer is being made pursuant to  Section 3.8 , and that all Notes that are timely tendered will be accepted for payment;	
 
 	(2)	the Change of Control Payment, and the Change of Control Payment Date, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Change of Control Payment with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest from and after the Change of Control Payment Date;	
 
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 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer will be required to tender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Change of Control Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Change of Control Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.8(b) .	
“Change of Control Offer” has the meaning assigned to it in Section 3.8(b).
“Change of Control Payment” has the meaning assigned to it in Section 3.8(a).
“Change of Control Payment Date” has the meaning assigned to it in Section 3.8(b).
“Clearstream” means Clearstream Banking, société anonyme, or the successor to its securities clearance and settlement operations.
“Code” means the Internal Revenue Code of 1986, as amended.
 
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“Collateral” means “Transaction Security” as defined in the Intercreditor Agreement from time to time.
“Commission” means the U.S. Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests.
“Compensation Related Hedging Obligations” means (i) the obligations of any Person pursuant to any equity option contract, equity forward contract, equity swap, warrant, rights or other similar agreement designed to hedge risks or obligations relating to employee, director or consultant compensation, pension, benefits or similar activities of the Issuer and/or any of its Subsidiaries and (ii) the obligations of any Person pursuant to any agreement that requires another Person to make payments or deliveries that are otherwise required to be made by the first Person relating to employee, director or consultant compensation, pension, benefits or similar activities of the Issuer and/or any of its Subsidiaries, in each case in the ordinary course of business.
“Consolidated EBITDA” means, for any Person for any period, Consolidated Net Income for such Person for such period, plus the following, without duplication, to the extent deducted or added in calculating such Consolidated Net Income:
 
 	(1)	Consolidated Income Tax Expense for such Person for such period;	
 
 	(2)	Consolidated Interest Expense for such Person for such period net of consolidated interest income for such period;	
 
 	(3)	Consolidated Non-cash Charges for such Person for such period;	
 
 	(4)	the amount of any nonrecurring restructuring charge or reserve deducted in such period in computing Consolidated Net Income;	
 
 	(5)	the net effect on income or loss in respect of Hedging Obligations or other derivative instruments, which shall include, for the avoidance of doubt, all amounts not excluded from Consolidated Net Income pursuant to the proviso in clause (9) thereof; and	
 
 	(6)	net income of such Person attributable to minority interests in Subsidiaries of such Person.	
 
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less (x) all non-cash credits and gains increasing Consolidated Net Income for such Person for such period and (y) all cash payments made by such Person and its Restricted Subsidiaries during such period relating to Consolidated Non-cash Charges that were added back in determining Consolidated EBITDA in any prior period.
“Consolidated Fixed Charge Coverage Ratio” means, for any Person as of any date of determination (the “ Fixed Charge Calculation Date ”), the ratio of the aggregate amount of Consolidated EBITDA of such Person for the four most recent full fiscal quarters for which financial statements are available ending prior to the date of such determination (the “ Four Quarter Period ”) to Consolidated Fixed Charges for such Person for such Four Quarter Period. For purposes of making the computation referred to above, Material Acquisitions and Material Dispositions (as determined in accordance with GAAP) that have been made by the Issuer or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter Period and on or prior to or simultaneously with the Fixed Charge Calculation Date shall be calculated on a  pro forma  basis assuming that all such Material Acquisitions and Material Dispositions (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Issuer or any of its Restricted Subsidiaries since the beginning of such period shall have made any Material Acquisition or Material Disposition that would have required adjustment pursuant to this definition, then the Consolidated Fixed Charge Coverage Ratio shall be calculated giving  pro forma  effect thereto.
For purposes of this definition, whenever pro forma effect is to be given to a Material Acquisition or Material Disposition and the amount of income or earnings relating thereto or with respect to other  pro forma  calculations under this definition, such  pro forma  calculations shall be made in good faith by a responsible financial or accounting officer of the Issuer. If any Indebtedness bears a floating rate of interest and is being given  pro forma  effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Issuer to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a  pro forma  basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Issuer may designate.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio,”
 
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 	(a)	interest on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined thereafter will be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on such date of determination;	
 
 	(b)	if interest on any Indebtedness actually Incurred on such date of determination may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on such date of determination will be deemed to have been in effect during the Four Quarter Period; and	
 
 	(c)	notwithstanding clause (a) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by Hedging Obligations, will be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.	
“Consolidated Fixed Charges” means, for any Person for any period, the sum, without duplication, of:
 
 	(1)	Consolidated Interest Expense for such Person for such period, plus	
 
 	(2)	to the extent not included in (1) above, payments during such period in respect of the financing costs of financial derivatives in the form of equity swaps, plus	
 
 	(3)	the product of:	
 
 	(a)	the amount of all cash and non-cash dividend payments on any series of Preferred Stock or Disqualified Capital Stock of such Person (other than dividends paid in Qualified Capital Stock) or any Subsidiary of such Person (Restricted Subsidiary in the case of the Issuer) paid, accrued or scheduled to be paid or accrued during such period, excluding dividend payments on Preferred Stock or Disqualified Capital Stock paid, accrued or scheduled to be paid to such Person or another Subsidiary (Restricted Subsidiary in the case of the Issuer), times	
 
 	(b)	a fraction, the numerator of which is one and the denominator of which is one minus the then current effective tax rate of such Person in its principal taxpaying jurisdiction (Mexico, in the case of the Issuer), expressed as a decimal.	
“Consolidated Income Tax Expense” means, with respect to any Person for any period, the provision for federal, state and local income and asset taxes payable, including current and deferred taxes, by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period as determined on a consolidated basis in accordance with GAAP.
 
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“Consolidated Interest Expense” means, for any Person for any period, the sum of, without duplication determined on a consolidated basis in accordance with GAAP:
 
 	(1)	the aggregate of cash and non-cash interest expense of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period determined on a consolidated basis in accordance with GAAP, including, without limitation the following for such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) whether or not interest expense in accordance with GAAP:	
 
 	(a)	any amortization or accretion of debt discount or any interest paid on Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) in the form of additional Indebtedness,	
 
 	(b)	any amortization of deferred financing costs; provided, that any such amortization resulting from costs incurred prior to the Issue Date shall be excluded for the calculation of Consolidated Interest Expense,	
 
 	(c)	the net costs under Hedging Obligations relating to Indebtedness (including amortization of fees but excluding foreign exchange adjustments on the notional amounts of the Hedging Obligations),	
 
 	(d)	all capitalized interest,	
 
 	(e)	the interest portion of any deferred payment obligation,	
 
 	(f)	commissions, discounts and other fees and charges Incurred in respect of letters of credit or bankers’ acceptances or in connection with sales or other dispositions of accounts receivable and related assets,	
 
 	(g)	any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries (Restricted Subsidiary in the case of the Issuer) or secured by a Lien on the assets of such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Issuer), whether or not such Guarantee or Lien is called upon, and	
 
 	(h)	any interest accrued in respect of Indebtedness without a maturity date; and	
 
 	(2)	the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) during such period.	
 
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“Consolidated Net Income” means, with respect to any Person for any period, the aggregate net income (or loss) of such Person and its Subsidiaries for such period on a consolidated basis (after deducting (i) the portion of such net income attributable to minority interests in Subsidiaries of such Person and (ii) any interest paid or accrued in respect of Indebtedness without a maturity date), determined in accordance with GAAP;  provided , that there shall be excluded therefrom:
 
 	(1)	net after-tax gains and losses from Asset Sale transactions or abandonments or reserves relating thereto;	
 
 	(2)	net after-tax items classified as extraordinary gains or losses;	
 
 	(3)	the net income (but not loss) of any Subsidiary of such Person (non-Note Guarantor in the case of the Issuer) to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary (non-Note Guarantor in the case of the Issuer) or any law, regulation, agreement or judgment applicable to any such distribution;	
 
 	(4)	any net income (loss) of any Person (other than the Issuer) if such Person is not a Restricted Subsidiary, except that the Issuer’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash distributed by such Person during such period to the Issuer or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in this clause);	
 
 	(5)	[Reserved];	
 
 	(6)	any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;	
 
 	(7)	any gain (or loss) from foreign exchange translation or change in net monetary position;	
 
 	(8)	any gain (or loss) from the cumulative effect of changes in accounting principles; and	
 
 	(9)	any net gain or loss (after any offset) resulting in such period from Hedging Obligations or other derivative instruments;  provided , that the net effect on income or loss (including in any prior periods) shall be included upon any termination or early extinguishment of such Hedging Obligations or other derivative instrument, other than any Hedging Obligations with respect to Indebtedness (that is not itself a Hedging Obligation) and that are extinguished concurrently with the termination or other prepayment of such Indebtedness.	
 
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“Consolidated Non-cash Charges” means, for any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill and other Intangible Assets) and other non-cash expenses or losses of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which constitutes an accrual of or a reserve for cash charges for any future period or the amortization of a prepaid cash expense paid in a prior period).
“Consolidated Tangible Assets” means, for any Person at any time, the total consolidated assets of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Issuer) as set forth on the balance sheet as of the most recent fiscal quarter of such Person, prepared in accordance with GAAP, less Intangible Assets.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, 4E, New York, New York 10286, Attention: International Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer.
“Covenant Defeasance” has the meaning assigned to it in Section 8.1(c).
“Covenant Suspension Event” has the meaning assigned to it in Section 3.22(b).
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, conciliador, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning assigned to it in Section 2.14 and Section 1, paragraph 2 of the Form of Reverse Side of Note contained in  Exhibit A  hereto.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Issuer or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate setting forth the basis of such valuation.
“Designation” has the meaning assigned to it in Section 3.14(a).
“Designation Amount” has the meaning assigned to it in clause (iii) of Section 3.14(a).
 
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“Disposition” means, with respect to any property, any sale, lease, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the Holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is redeemable at the sole option of the Holder thereof, in any case, on or prior to the 91st day after the final maturity date of the Notes, but excluding with respect to Mexican companies, any shares of such Mexican company that are part of the variable portion of its Capital Stock and that are redeemable under the Mexican General Law of Business Corporations ( Ley General de Sociedades Mercantiles ).
“Distribution Compliance Period” means, in respect of any Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Issuer that is a clearing agency registered under the Exchange Act.
“Equity Offering” has the meaning assigned to it in Section 5 of the Form of Reverse Side of Note contained in Exhibit A hereto.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V., or its successor in such capacity.
“Event of Default” has the meaning assigned to it in Section 6.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Existing Senior Notes” means the U.S. Dollar-denominated 9.50% Senior Secured Notes due 2016 guaranteed by the Issuer, the Euro-denominated 9.625% Senior Secured Notes due 2017 guaranteed by the Issuer, the U.S. Dollar-denominated 9.25% Senior Secured Notes due 2020 guaranteed by the Issuer, the Euro-denominated 8.875% Senior Secured Notes due 2017 guaranteed by the Issuer, the U.S. Dollar-denominated 9.000% Senior Secured Notes due 2018 issued by the Issuer, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2015 issued by the Issuer, the U.S. Dollar-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Issuer, the Euro-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Issuer, the U.S. Dollar-denominated 9.50% Senior Secured Notes due 2018 issued by the Issuer, the U.S. Dollar-denominated 9.375% Senior Secured Notes due 2022 guaranteed by the Issuer, the U.S. Dollar-denominated 5.875% Senior Secured Notes due 2019 issued by the Issuer, the U.S. Dollar-denominated 6.500% Senior Secured Notes due 2019 issued by the Issuer and the Other Notes.
 
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“Facilities Agreement” means the facilities agreement, dated as of September 17, 2012, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as new administrative agent, and the Security Agent, as such agreement may be amended, modified or waived from time to time.
“Facilities Agreement Indebtedness” means the Indebtedness that is subject to and outstanding under the Facilities Agreement.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction. Fair Market Value shall be determined, except as otherwise provided, by the Issuer in good faith.
“Fitch” means Fitch Ratings and any successor to its rating agency business.
“Four Quarter Period” has the meaning assigned to it in the definition of “Consolidated Fixed Charge Coverage Ratio” above.
“Free Reserves Available for Distribution” has the meaning assigned to it in Section 10.6(c).
“French Note Guarantor” has the meaning assigned to it in Section 10.5(a).
“GAAP” means IFRS as in effect on October 2, 2013. At any time, and from time to time, after the Issue Date, the Issuer may elect to apply IFRS as in effect at such time in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election;  provided , that any such election, once made, shall be irrevocable. The Issuer shall give notice of any such election to the Trustee.
“Global Note” means any Note issued in fully registered form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of  Exhibit A , with appropriate legends as specified in Section 2.8  and  Exhibit A  hereto.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
 
 	(1)	to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise, or	
 
 	(2)	entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part,	
 
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provided, that “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning assigned to it in Section 10.1(a).
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Note Register.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and “ Incurrence ,” “ Incurred ” and “ Incurring ” will have meanings correlative to the preceding).
“Indebtedness” means with respect to any Person, without duplication:
 
 	(1)	the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money;	
 
 	(2)	the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, including any perpetual bonds, debenture notes or similar instruments without regard to maturity date;	
 
 	(3)	all Capitalized Lease Obligations of such Person;	
 
 	(4)	all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all payment obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities accounted for as current liabilities (in accordance with GAAP) arising in the ordinary course of business) to the extent of any reimbursement obligations in respect thereof;	
 
 	(5)	reimbursement obligations with respect to letters of credit, banker’s acceptances or similar credit transactions;	
 
 	(6)	Guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) through (10) below;	
 
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 	(7)	all Indebtedness of any other Person of the type referred to in clauses (1) through (6) which is secured by any Lien on any property or asset of the first Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Indebtedness so secured;	
 
 	(8)	all obligations under Hedging Obligations or other derivatives of such Person;	
 
 	(9)	all liabilities (contingent or otherwise) of such Person in connection with a sale or other disposition of accounts receivable and related assets (not including Qualified Receivables Transactions), irrespective of their treatment under GAAP or IFRS; and	
 
 	(10)	all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any;  provided , that:	
 
 	(a)	if the Disqualified Capital Stock does not have a fixed repurchase price, such maximum fixed repurchase price will be calculated in accordance with the terms of the Disqualified Capital Stock as if the Disqualified Capital Stock were purchased on any date on which Indebtedness will be required to be determined pursuant to this Indenture, and	
 
 	(b)	if the maximum fixed repurchase price is based upon, or measured by, the fair market value of the Disqualified Capital Stock, the fair market value will be the Fair Market Value thereof.	
“Indenture” means this Indenture as amended or supplemented from time to time, including the Schedule and Exhibits hereto.
“Intangible Assets” means with respect to any Person all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights and all other items which would be treated as intangibles on the consolidated balance sheet of such Person prepared in accordance with GAAP.
“Intercreditor Agreement” means the intercreditor agreement, dated as of September 17, 2012, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as facility agent, and the Security Agent, as such agreement may be amended from time to time.
“Interest Amount” has the meaning assigned to it in Section 2.13(f).
 
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“Interest Payment Date” means the stated due date of an installment of interest on the Notes as specified in  Section 2.13(a)  and the Form of Face of Note contained in  Exhibit A  hereto.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Inventory Financing” means a financing arrangement pursuant to which the Issuer or any of its Restricted Subsidiaries sells inventory to a bank or other institution (or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Investment” means, with respect to any Person, any (1) direct or indirect loan, advance or other extension of credit (including, without limitation, a Guarantee) to any other Person, (2) capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to any other Person, or (3) purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by any other Person. “Investment” will exclude accounts receivable, extensions of credit in connection with supplier or customer financings consistent with industry or past practice, advance payment of capital expenditures arising in the ordinary course of business, deposits arising in the ordinary course of business and transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of a Lien or the Incurring or permitting to subsist of Indebtedness) conducted in the ordinary course of business on arm’s-length terms.
For purposes of Section 3.11, the Issuer will be deemed to have made an “Investment” in an Unrestricted Subsidiary at the time of its Designation, which will be valued at the Fair Market Value of the sum of the net assets of such Unrestricted Subsidiary multiplied by the percentage equity ownership of the Issuer and its Restricted Subsidiaries in such designated Unrestricted Subsidiary at the time of its Designation and the amount of any Indebtedness of such Unrestricted Subsidiary or owed to the Issuer or any Restricted Subsidiary immediately following such Designation. Any property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer. If the Issuer or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of a Restricted Subsidiary (including any issuance and sale of Capital Stock by a Restricted Subsidiary) such that, after giving effect to any such sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary of the Issuer, the Issuer will be deemed to have made an Investment on the date of any such sale or disposition equal to sum of the Fair Market Value of the Capital Stock of such former Restricted Subsidiary held by the Issuer or any Restricted Subsidiary immediately following such sale or other disposition and the amount of any Indebtedness of such former Restricted Subsidiary Guaranteed by the Issuer or any Restricted Subsidiary or owed to the Issuer or any other Restricted Subsidiary immediately following such sale or other disposition. The acquisition by the Issuer or any Restricted Subsidiary of the Issuer of a Person that holds an Investment in a
 
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third Person will be deemed to be an Investment by the Issuer or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made without giving effect to subsequent changes in value.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Investment Return” means, in respect of any Investment (other than a Permitted Investment) made after the Issue Date by the Issuer or any Restricted Subsidiary:
 
 	(1)	the cash proceeds received by the Issuer upon the sale, liquidation or repayment of such Investment or, in the case of a Guarantee, the amount of the Guarantee upon the unconditional release of the Issuer and its Restricted Subsidiaries in full, less any payments previously made by the Issuer or any Restricted Subsidiary in respect of such Guarantee;	
 
 	(2)	in the case of the Revocation of the Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:	
 
 	(a)	the Issuer’s Investment in such Unrestricted Subsidiary at the time of such Revocation;	
 
 	(b)	that portion of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time of Revocation that is proportionate to the Issuer’s equity interest in such Unrestricted Subsidiary at the time of Revocation; and	
 
 	(c)	the Designation Amount with respect to such Unrestricted Subsidiary upon its Designation which was treated as a Restricted Payment;	
 
 	(3)	in the event the Issuer or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, the existing Investment of the Issuer and its Restricted Subsidiaries in such Person,	
in the case of each of (1), (2) and (3), up to the amount of such Investment that was treated as a Restricted Payment under Section 3.11  less the amount of any previous Investment Return in respect of such Investment.
“Issue Date” means the first date of issuance of the Notes under this Indenture and following a Partial Covenant Suspension Event or a Covenant Suspension Event, except under “ Optional Redemption for Changes in Withholding Taxes ” under clause (5) in  Exhibit A  hereto,  Section 3.22  and the definition of “Permitted Liens,” the most recent Partial Covenant Reversion Date or Reversion Date, as applicable.
 
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“Issue Date Notes” means the U.S.$500,000,000 aggregate principal amount of Notes originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
“Issuer” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns.
“Issuer Order” has the meaning assigned to it in Section 2.2(c).
“Legal Defeasance” has the meaning assigned to it in Section 8.1(b).
“Legal Holiday” has the meaning assigned to it in Section 12.6.
“LIBO Rate Reset Date” has the meaning assigned to it in Section 2.13(b).
“LIBOR Interest Determination Date” means the second London Banking Day preceding each LIBO Rate Reset Date.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. The Issuer or any Restricted Subsidiary shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor).
“London Banking Day” means any day on which commercial banks are open for general business (including dealings in foreign exchange and foreign currency deposits) in London.
“Material Acquisition” means:
 
 	(1)	an Investment by the Issuer or any Restricted Subsidiary in any other Person pursuant to which such Person will become a Restricted Subsidiary, or will be merged with or into the Issuer or any Restricted Subsidiary;	
 
 	(2)	the acquisition by the Issuer or any Restricted Subsidiary of the assets of any Person (other than a Subsidiary of the Issuer) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business; or	
 
 	(3)	any Revocation with respect to an Unrestricted Subsidiary;	
in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
 
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“Material Disposition” means any Asset Sale and, whether or not constituting an Asset Sale, (1) any sale or other disposition of Capital Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale or other disposition of property or assets excluded from the definition of Asset Sale by clause (4) of that definition, in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Maturity Date” means October 15, 2018.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents received by the Issuer or any of its Restricted Subsidiaries from such Asset Sale, net of:
 
 	(1)	reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions);	
 
 	(2)	taxes paid or payable in respect of such Asset Sale after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;	
 
 	(3)	repayment of Indebtedness secured by a Lien permitted under this Indenture that is required to be repaid in connection with such Asset Sale; and	
 
 	(4)	appropriate amounts to be provided by the Issuer or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Issuer or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, but excluding any reserves with respect to Indebtedness.	
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Custodian” means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee.
“Note Guarantee” means any guarantee of the Issuer’s Obligations under this Indenture and the Notes by any Note Guarantor pursuant to  Article X .
 
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“Note Guarantors” means (i) each of the Issuer’s Restricted Subsidiaries that executes this Indenture as a Note Guarantor or an Additional Note Guarantor and (ii) each of the Issuer’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Note Guarantor, and their respective successors and assigns; provided, that any Person constituting a Note Guarantor as described above shall cease to constitute a Note Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture.
“Note Register” has the meaning assigned to it in Section 2.3(a).
“Notes” means any of the Issuer’s Floating Rate Senior Secured Notes due 2018 issued and authenticated pursuant to this Indenture.
“Obligations” means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under the documentation governing such Indebtedness, including, in the case of the Notes and the Note Guarantees, this Indenture.
“Officer” means, when used in connection with any action to be taken by the Issuer or a Note Guarantor, as the case may be, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Secretary or an attorney-in-fact of the Issuer or such Note Guarantor, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person, who must be the principal executive officer, the principal financial officer, the treasurer, the Vice President – Corporate Finance, the principal accounting officer or an attorney-in-fact of such Person, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion of counsel, who, unless otherwise indicated in this Indenture, may be an employee of or counsel for the Issuer, and who shall be reasonably acceptable to the Trustee.
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,  except :
 
 	(1)	Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;	
 
 	(2)	Notes, or portions thereof, for the payment, redemption or, in the case of an Asset Sale Offer or Change of Control Offer, purchase of which, money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or an Affiliate of the Issuer) in trust or set aside and segregated in trust by the Issuer or an Affiliate of the Issuer (if the Issuer or such Affiliate is acting as the Paying Agent) for the Holders of such Notes;  provided , that if Notes (or portions thereof) are to be redeemed or purchased, notice of such redemption or purchase has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;	
 
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 	(3)	Notes which have been surrendered pursuant to Section 2.9 or Notes in exchange for which or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser in whose hands such Notes are valid obligations of the Issuer; and	
 
 	(4)	solely to the extent provided in Article VIII, Notes which are subject to Legal Defeasance or Covenant Defeasance as provided in  Article VIII ;	
provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, a Note Guarantor or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
“Other Notes” means the Issuer’s 7.250% Senior Secured Notes due 2021 issued on the Issue Date.
“Partial Covenant Reversion Date” has the meaning set forth under Section 3.22(e).
“Partial Covenant Suspension Date” has the meaning set forth under Section 3.22(c).
“Partial Covenant Suspension Event” has the meaning set forth under Section 3.22(a).
“Partial Suspended Covenants” has the meaning set forth under Section 3.22(a).
“Partial Suspension Period” has the meaning set forth under Section 3.22(e).
“Paying Agent” has the meaning assigned to it in Section 2.3(a).
“Permitted Asset Swap Transaction” means a transaction consisting substantially of the concurrent (i) disposition by the Issuer or any of its Restricted Subsidiaries of any asset, property or cash consideration (other than a Restricted Subsidiary) in exchange for assets, property or cash consideration transferred to the Issuer or a Restricted Subsidiary, to be used in a Permitted Business or (ii) disposition by the Issuer or any of its Restricted Subsidiaries of Capital
 
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Stock of a Restricted Subsidiary in exchange for Capital Stock of another Restricted Subsidiary or of Capital Stock of any Person that becomes a Restricted Subsidiary after giving effect to such transaction;  provided , that any cash or Cash Equivalents received in such a transaction shall constitute Net Cash Proceeds to be applied in accordance with  Section 3.12 .
“Permitted Business” means the business or businesses conducted by the Issuer and its Restricted Subsidiaries as of the Issue Date and any business ancillary, complementary or related thereto or any other business that would not constitute a substantial change to the general nature of its business from that carried on as of the Issue Date.
“Permitted Indebtedness” has the meaning set forth in Section 3.9(b).
“Permitted Investments” means:
 
 	(1)	Investments by the Issuer or any Restricted Subsidiary in any Person that is, or that result in any Person becoming, immediately after such Investment, a Restricted Subsidiary or constituting a merger or consolidation of such Person into the Issuer or with or into a Restricted Subsidiary;	
 
 	(2)	any Investment in the Issuer;	
 
 	(3)	Investments in cash and Cash Equivalents;	
 
 	(4)	any extension, modification or renewal of any Investments existing as of the Issue Date (but not Investments involving additional advances, contributions or other investments of cash or property or other increases thereof, other than as a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms of such Investment as of the Issue Date);	
 
 	(5)	Investments permitted pursuant to clause (ii), (vi) or (vii) of Section 3.18(b);	
 
 	(6)	Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, modifications and renewals thereof;	
 
 	(7)	Investments made by the Issuer or its Restricted Subsidiaries as a result of non-cash consideration permitted to be received in connection with an Asset Sale made in compliance with  Section 3.12 ;	
 
 	(8)	Investments in the form of Hedging Obligations or Compensation Related Hedging Obligations permitted under clause (iv) of  Section 3.9(b) ;	
 
 	(9)	Investments in existence on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or any Investment consisting of any extension, modification or renewal of any Investment existing on the	
 
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 	Issue Date; provided, that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted by this Indenture;	
 
 	(10)	Investments by the Issuer or any Restricted Subsidiary in a Receivables Entity in connection with a Qualified Receivables Transaction which does not constitute an Asset Sale by virtue of clause (7) of the definition thereof;  provided ,  however , that any such Investments are made only in the form of Receivables Assets;	
 
 	(11)	Investments in marketable securities or instruments, to fund the Issuer’s or a Restricted Subsidiary’s pension and other employee-related obligations in the ordinary course of business pursuant to compensation arrangements approved by the Board of Directors or senior management of the Issuer;	
 
 	(12)	any Investment that:	
 
 	(a)	when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding (net of cash benefits to the Issuer or a Restricted Subsidiary from Investments pursuant to this clause (12)), does not exceed the greater of U.S.$250 million and 3% of Consolidated Tangible Assets; or	
 
 	(b)	when taken together with all other Investments made pursuant to this clause (12) in any fiscal year that are at the time outstanding, does not exceed U.S.$100 million in any fiscal year;	
 
 	(13)	Investments in the Capital Stock of any Person other than a Restricted Subsidiary that are required to be held pursuant to an involuntary governmental order of condemnation, nationalization, seizure or expropriation or other similar order with respect to Capital Stock of such Person (prior to which order such Person was a Restricted Subsidiary);  provided , that such Person contests such order in good faith in appropriate proceedings;	
 
 	(14)	repurchases of Existing Senior Notes or the Notes;	
 
 	(15)	Investments in the SPV Perpetuals or the notes related thereto; provided, that any payment or other contribution to one of the special purpose vehicles issuing the SPV Perpetuals in connection with such Investment is promptly paid or contributed to the Issuer or a Restricted Subsidiary following receipt thereof;	
 
 	(16)	any Investment that constitutes Indebtedness permitted under clause (vii)(E) of Section 3.9(b); and	
 
 	(17)	(a) Investments to which the Issuer or any of its Restricted Subsidiaries is contractually committed as of the Issue Date in any Person other than a	
 
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 	Subsidiary in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities and (b) Investments in any Person other than a Subsidiary in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities up to U.S.$100 million in any calendar year minus the amount of any guarantees under clause (xviii) of  Section 3.9(b) .	
“Permitted Liens” means any of the following:
 
 	(1)	statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and materialmen 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 and any other Liens created by operation of law;	
 
 	(2)	Liens Incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other types of social security or (ii) other insurance maintained by the Issuer and its Subsidiaries in compliance with the Facilities Agreement (or any refinancing thereof);	
 
 	(3)	Liens 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;	
 
 	(4)	any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(5)	(i) Liens existing on the Issue Date other than in respect of the Collateral and (ii) Liens in respect of the Collateral to the extent equally and ratably securing the Notes and the Permitted Secured Obligations;	
 
 	(6)	any Lien on property acquired by the Issuer or its Restricted Subsidiaries after the Issue Date that was existing on the date of acquisition of such property;  provided , that such Lien was not incurred in anticipation of such acquisition, and any Lien created to secure all or any part 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 Issuer or any of its Restricted Subsidiaries after the Issue Date;  provided further , that (A) any such Lien permitted pursuant to this clause (6) shall be confined solely to the item or items of property so acquired (including, in the case of any	
 
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 	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) and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to, or is acquired for specific use with, such acquired property; and (B) if applicable, any such Lien shall be created within nine months after, in the case of property, its acquisition, or, in the case of improvements, their completion;	
 
 	(7)	any Liens renewing, extending or refunding any Lien permitted by clause (5)(i) above; provided, that such Lien is not extended to other property (or, instead, is only extended to equivalent property) and the principal amount of Indebtedness secured by such Lien immediately prior thereto is not increased or the maturity thereof reduced, except that the principal amount secured by any such Lien in respect of:	
 
 	(a)	hedging obligations or other derivatives where there are fluctuations in mark-to-market exposures of those hedging obligations or other derivatives,	
 
 	(b)	Indebtedness consisting of any “Certificados Bursátiles de Largo Plazo” or the Bancomext Facility, or any Refinancing thereof, where principal may increase by virtue of capitalization of interest, and	
 
 	(c)	the Banobras Facility to the extent additional amounts are drawn thereunder,	
may be increased by the amount of such fluctuations, capitalizations or drawings, as the case may be;
 
 	(8)	Liens on Receivables Assets or Capital Stock of a Receivables Subsidiary, in each case granted in connection with a Qualified Receivables Transaction;	
 
 	(9)	Liens granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of business;	
 
 	(10)	any Lien permitted by the Trustee, acting pursuant to the instructions of at least 50% of the Holders;	
 
 	(11)	any Lien granted by the Issuer or any of its Restricted Subsidiaries to secure Indebtedness under a Permitted Liquidity Facility;  provided , that: (i) such Lien is not granted in respect of the Collateral, and (ii) the maximum amount of such Indebtedness secured by such Lien does not exceed U.S.$500 million at any time; or	
 
 	(12)	in addition to the Liens permitted by the foregoing clauses (1) through (11), Liens securing obligations of the Issuer and its Restricted Subsidiaries that in the aggregate secure obligations in an amount not in excess of the greater of (i) 5% of Consolidated Tangible Assets and (ii) U.S.$700 million.	
 
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“Permitted Liquidity Facility” means a loan facility or facilities made available to the Issuer or any Restricted Subsidiary;  provided , that the aggregate principal amount of utilized and unutilized commitments under such facilities must not exceed U.S.$1 billion (or its equivalent in another currency) at any time.
“Permitted Merger Jurisdiction” has the meaning set forth in Section 4.1(a).
“Permitted Secured Obligations” means (i) the Facilities Agreement Indebtedness and any refinancing thereof made in accordance with the Facilities Agreement that is secured by the Collateral, (ii) notes (or similar instruments, including  Certificados Bursátiles ) outstanding on the date of the Facilities Agreement required to be secured by the Collateral pursuant to their terms, or any refinancing thereof permitted by the Facilities Agreement, (iii) future Indebtedness secured by the Collateral to the extent permitted by the Facilities Agreement and (iv) the Existing Senior Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with and at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.
“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Private Placement Legend” has the meaning assigned to it in Section 2.8(b).
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of financing all or any part of the purchase price or cost of construction of any property other than Capital Stock;  provided , that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of Refinancing.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
 
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“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Issuer or any Restricted Subsidiary pursuant to which the Issuer or any Restricted Subsidiary may sell, convey, assign or otherwise transfer to a Receivables Entity any Receivables Assets to obtain funding for the operations of the Issuer and its Restricted Subsidiaries:
 
 	(1)	for which no term of any portion of the Indebtedness or any other obligations (contingent or otherwise) or securities Incurred or issued by any Person in connection therewith:	
 
 	(a)	directly or indirectly provides for recourse to, or any obligation of, the Issuer or any Restricted Subsidiary in any way, whether pursuant to a Guarantee or otherwise, except for Standard Undertakings,	
 
 	(b)	directly or indirectly subjects any property or asset of the Issuer or any Restricted Subsidiary (other than Capital Stock of a Receivables Subsidiary) to the satisfaction thereof, except for Standard Undertakings, or	
 
 	(c)	results in such Indebtedness, other obligations or securities constituting Indebtedness of the Issuer or a Restricted Subsidiary, including following a default thereunder, and	
 
 	(2)	for which the terms of any Affiliate Transaction between the Issuer or any Restricted Subsidiary, on the one hand, and any Receivables Entity, on the other, other than Standard Undertakings and Permitted Investments, are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Issuer, and	
 
 	(3)	in connection with which, neither the Issuer nor any Restricted Subsidiary has any obligation to maintain or preserve a Receivable Entity’s financial condition, cause a Receivables Entity to achieve certain levels of operating results, fund losses of a Receivables Entity, or except in connection with Standard Undertakings, purchase assets of a Receivables Entity.	
“Rating Agencies” mean Fitch, Moody’s and S&P. In the event that Fitch, Moody’s or S&P is no longer in existence or issuing ratings, such organization may be replaced by a nationally recognized statistical rating organization (as defined in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act or any successor provision) designated by the Issuer with notice to the Trustee.
 
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“Receivables Assets” means:
 
 	(1)	accounts receivable, leases, conditional sale agreements, instruments, chattel paper, installment sale contracts, obligations, general intangibles, and other similar assets, in each case relating to goods, inventory or services of the Issuer and its Subsidiaries,	
 
 	(2)	equipment and equipment residuals relating to any of the foregoing,	
 
 	(3)	contractual rights, Guarantees, letters of credit, Liens, insurance proceeds, collections and other similar assets, in each case related to the foregoing, and	
 
 	(4)	proceeds of all of the foregoing.	
“Receivables Entity” means a Receivables Subsidiary or any other Person not an Affiliate of the Issuer, in each case whose sole business activity is to engage in Qualified Receivables Transactions, including to issue securities or other interests in connection with a Qualified Receivables Transaction.
“Receivables Subsidiary” means an Unrestricted Subsidiary of the Issuer that engages in no activities other than Qualified Receivables Transactions and activities related thereto and that is designated by the Issuer as a Receivables Subsidiary. Any such designation by the Issuer will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate of the Issuer.
“Record Date” has the meaning assigned to it in the Form of Face of Note contained in Exhibit A hereto.
“Redemption Date” means, with respect to any redemption of the Notes, the date fixed for such redemption pursuant to this Indenture and the Notes.
“Redemption Price” has the meaning assigned to it in the Form of Note contained in Exhibit A hereto.
“Reference Banks” has the meaning assigned to it in Section 2.13(c)(ii).
“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness in exchange for or to refinance, repay, redeem, replace, defease or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” will have correlative meanings.
“Refinancing Indebtedness” means Indebtedness of the Issuer or any Restricted Subsidiary issued to Refinance any other Indebtedness of the Issuer or a Restricted Subsidiary so long as:
 
 	(1)	the aggregate principal amount (or initial accreted value, if applicable) of such new Indebtedness as of the date of such proposed Refinancing does not exceed the aggregate principal amount (or accreted value as of such	
 
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 	date, if applicable) of the Indebtedness being Refinanced (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred by the Issuer in connection with such Refinancing);	
 
 	(2)	such new Indebtedness has:	
 
 	(a)	a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced, and	
 
 	(b)	a final maturity that is equal to or later than the final maturity of the Indebtedness being Refinanced or, in the case of Indebtedness without a stated maturity, December 14, 2017; and	
 
 	(3)	if the Indebtedness being Refinanced is:	
 
 	(a)	Indebtedness of the Issuer, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(b)	Indebtedness of a Note Guarantor, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(c)	Indebtedness of any of the Restricted Subsidiaries, then such Refinancing Indebtedness will be Indebtedness of such Restricted Subsidiary, the Issuer and/or any Note Guarantor, and	
 
 	(d)	Subordinated Indebtedness, then such Refinancing Indebtedness shall be subordinate to the Notes or the relevant Note Guarantee, if applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.	
Notwithstanding the foregoing, with respect to any hedging obligations or derivatives outstanding on the Issue Date in respect of the Axtel Share Forward Transaction, “Refinancing Indebtedness” shall mean any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Registrar” has the meaning assigned to it in Section 2.3(a).
“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Note” has the meaning assigned to it in Section 2.1(e).
“Resale Restriction Termination Date” means for any Restricted Note (or beneficial interest therein), that is (a) not a Regulation S Global Note, the date on which the
 
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Issuer instructs the Trustee in writing to remove the Private Placement Legend from the Restricted Notes in accordance with the procedures described in  Section 2.9(h)  (which instruction is expected to be given on or about the one year anniversary of the issuance of the Restricted Notes) or (b) a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to Section 2.7(c) ), the date on which the Distribution Compliance Period therefor terminates.
“Restricted Note” means any Issue Date Note (or beneficial interest therein) or any Additional Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act until such time as:
 
 	(i)	the Resale Restriction Termination Date therefor has passed; or	
 
 	(ii)	the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.9 or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.	
“Restricted Obligations” has the meaning assigned to it in Section 10.6(b).
“Restricted Payment” has the meaning set forth in Section 3.11(a).
“Restricted Subsidiary” means any Subsidiary of the Issuer, which at the time of determination is not an Unrestricted Subsidiary.
“Reuters Screen LIBOR01” means the display designated as “Page LIBOR01” on Reuters Money 3000 Service or any successor service (or such other page as may replace Page LIBOR01 on that service) or such other service displaying the London Inter-Bank offered rates of major banks, as may replace Reuters Money 3000 Service.
“Reversion Date” has the meaning assigned to in Section 3.22(e).
“Revocation” has the meaning set forth in Section 3.14(c).
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Note” has the meaning assigned to it in Section 2.1(d).
“S&P” means Standard & Poor’s Ratings Group and any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Issuer or a Restricted Subsidiary of any property, whether owned by the Issuer or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Issuer or such Restricted Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property.
 
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“Securities Act” means the Securities Act of 1933, as amended.
“Security Agent” means Wilmington Trust (London) Limited, as security agent under the Intercreditor Agreement.
“Security Documents” has the meaning assigned to it in Section 7.13.
“Senior Indebtedness” means (i) the Notes and any other Indebtedness of the Issuer or any Note Guarantor that ranks equal in right of payment with the Notes or the relevant Note Guarantee, as the case may be or (ii) Indebtedness for borrowed money or constituting Capitalized Lease Obligations of any Restricted Subsidiary other than a Note Guarantor.
“Significant Subsidiary” means a Subsidiary of the Issuer constituting a “Significant Subsidiary” of the Issuer in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act in effect on the date hereof.
“Similar Business” means (1) any business engaged in by the Issuer or any Restricted Subsidiary on the Issue Date, and (2) any business or other activities, including non-profit or charitable activities, that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses and activities in which the Issuer or any Restricted Subsidiary is engaged on the Issue Date, including, but not limited to, infrastructure projects, public works programs and consumer or supplier financing.
“Special Record Date” has the meaning assigned to it in Section 2.14(a).
“SPV Perpetuals” means the perpetual debentures issued by special purpose vehicles in December 2006, February 2007 and March 2007, as amended or supplemented from time to time.
“Standard Undertakings” means representations, warranties, covenants, indemnities and similar obligations, including servicing obligations, entered into by the Issuer or any Subsidiary of the Issuer in connection with a Qualified Receivables Transaction, which are customary in similar non-recourse receivables securitization, purchase or financing transactions.
“Subordinated Indebtedness” means, with respect to the Issuer or any Note Guarantor, any Indebtedness of the Issuer or such Note Guarantor, as the case may be, which is expressly subordinated in right of payment to the Notes or the relevant Note Guarantee, as the case may be.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has
 
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not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (X) such Person, (Y) such Person and one or more of its other Subsidiaries or (Z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “Subsidiary” shall refer to a Subsidiary of the Issuer.
“Successor Issuer” has the meaning assigned to it in Section 4.1(a).
“Successor Note Guarantor” has the meaning assigned to it in Section 4.1(b).
“Suspended Covenants” has the meaning assigned to it in Section 3.22(b).
“Suspension Date” has the meaning assigned to it in Section 3.22(c).
“Suspension Period” has the meaning assigned to it in Section 3.22(e).
“Swiss Note Guarantor” has the meaning assigned to it in Section 10.6(a).
“Taxes” has the meaning assigned to it in Section 3.21(a).
“Taxing Jurisdiction” has the meaning assigned to it in Section 3.21(a).
“Transfer Agent” has the meaning assigned to it in Section 2.3(a).
“Transportation Agreements” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, having direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Trustee” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Undervalued Asset” has the meaning assigned to it in Section 10.6(g).
“USA PATRIOT Act” has the meaning assigned to it in Section 12.16.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of, or guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.
 
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“U.S. Legal Tender” means such coin or currency of the United States of America, as at the time of payment shall be legal tender for the payment of public and private debts.
“U.S. Person” means a “U.S. person” as defined in Regulation S.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Unrestricted Subsidiary” means any Subsidiary of the Issuer designated as such pursuant to Section 3.14 . Any such Designation may be revoked by the Issuer, subject to the provisions of such covenant.
“Voting Stock” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (calculated to the nearest one-twelfth) obtained by dividing:
 
 	(1)	the sum of the products obtained by multiplying:	
 
 	(a)	the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by	
 
 	(b)	the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment; by	
 
 	(2)	the then outstanding aggregate principal amount or liquidation preference, as the case may be, of such Indebtedness.	
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary (Restricted Subsidiary in the case of the Issuer) of which at least 99.5% of the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
Section 1.2 [Reserved].
Section 1.3 Rules of Construction. Unless the context otherwise requires:
 
 	(1)	a term has the meaning assigned to it;	
 
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 	(2)	an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;	
 
 	(3)	“or” is not exclusive;	
 
 	(4)	“including” means including without limitation;	
 
 	(5)	words in the singular include the plural and words in the plural include the singular; and	
 
 	(6)	references to the payment of principal of the Notes shall include applicable premium, if any.	
ARTICLE II
THE NOTES
Section 2.1 Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by the Issuer pursuant to (i) a Purchase Agreement, dated as of September 25, 2013, and (ii) a Purchase Agreement dated as of September 27, 2013, each among the Issuer, the Note Guarantors party thereto and BBVA Securities Inc., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Citigroup Global Markets Inc. and RBS Securities Inc., as Initial Purchasers with respect to the Notes. The Notes will be issued as one or more Global Notes in fully registered form without interest coupons, and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Each such Global Note shall constitute a single Note for all purposes under this Indenture. Certificated Notes, if issued pursuant to the terms hereof, will be issued in fully registered certificated form without coupons. The Notes may only be issued in definitive fully registered form without coupons and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of  Exhibit A  hereto.
(b) The terms and provisions of the Notes, the form of which is in Exhibit A hereto, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer, the Note Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes (including Additional Notes) shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class and are otherwise treated as a single issue of securities.
(c) The Notes may have notations, legends or endorsements as specified in Section 2.8 or as otherwise required by law, stock exchange rule or DTC, Euroclear or Clearstream rule or usage. The Issuer and the Trustee shall approve any changes to the form of the Notes attached to this Indenture and any additional notation, legend or endorsement required to be inserted on them. Each Note shall be dated the date of its authentication.
 
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(d) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a “ Rule 144A Global Note ”). Each Rule 144A Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC. In no event shall any Person hold an interest in a Rule 144A Global Note other than in or through accounts maintained at DTC.
(e) Notes originally offered and sold outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Notes (each, a “ Regulation S Global Note ”). Each Regulation S Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC by or on behalf of Euroclear or Clearstream. In no event shall any Person hold an interest in a Regulation S Global Note other than in or through accounts maintained at DTC by or on behalf of Euroclear or Clearstream.
Section 2.2 Execution and Authentication.
(a) Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until manually authenticated by an authorized signatory of the Trustee or an agent appointed by the Trustee (and reasonably acceptable to the Issuer) for such purpose (an “ Authenticating Agent ”). The signature of an authorized signatory of the Trustee or an Authenticating Agent on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. Unless limited by the terms of its appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by an Authenticating Agent.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Issuer signed by an Officer of the Issuer (the “ Issuer Order ”). An Issuer Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
(d) In case a Successor Issuer has executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Successor Issuer be exchanged for other Notes executed in the name of the Successor Issuer with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of the Successor Issuer, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a Successor Issuer pursuant to this  Section 2.2  in exchange or substitution for or upon registration of transfer of any Notes, such Successor Issuer, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
 
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Section 2.3 Registrar, Paying Agent and Transfer Agent.
(a) The Issuer shall maintain an office or agency in the Borough of Manhattan, City of New York, that shall keep a register of the Notes (the “ Note Register ”) and of their transfer and exchange (the “ Registrar ”), where Notes may be presented or surrendered for registration of transfer or for exchange (the “ Transfer Agent ”), where Notes may be presented for payment (the “ Paying Agent ”) and for the service of notices and demands to or upon the Issuer in respect of the Notes and this Indenture. The Issuer may have one or more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. In addition, the Issuer undertakes to the extent possible, to use reasonable efforts to maintain a Paying Agent in a member state of the European Union that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC regarding taxation of savings income.
(b) The Issuer shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to  Section 7.7 . The Issuer or any Affiliate of the Issuer may act as Paying Agent, Registrar or co-Registrar, or transfer agent.
(c) The Issuer initially designates the Corporate Trust Office of the Trustee as such office or agency of the Issuer as required by  Section 2.3(a)  and appoints the Trustee as Registrar, Paying Agent, Transfer Agent and agent for service of demands and notices in connection with the Notes and this Indenture, until such time as another Person is appointed as such.
Section 2.4 Paying Agent to Hold Money in Trust.
The Issuer shall require each Paying Agent (other than the Trustee) to agree in writing that such Paying Agent shall hold in trust for the benefit of Holders or the Trustee all money held by such Paying Agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any Default by the Issuer or any Note Guarantor in making any such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this Section 2.4 , the Paying Agent (if other than the Issuer or any Affiliate of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Issuer or any Affiliate of the Issuer, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
 
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Section 2.5 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. At any time that the Trustee is not the Registrar the Issuer shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.6 CUSIP Numbers.
The Issuer in issuing Notes may use “CUSIP” numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Securities “CUSIP” number in notices to the Holders as a convenience to such Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any changes in the “CUSIP” numbers.
Section 2.7 Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian and (iii) bear the appropriate legends as set forth in  Section 2.8  and  Exhibit A  hereto. Any Global Note may be represented by one or more certificates. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture.
(b) Except as provided in clause (iii) of Section 2.7(c), members of, or participants in, DTC (“Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian, and DTC may be treated by the Issuer, any Note Guarantor, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by DTC or (ii) impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including DTC, or its nominee, Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
 
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(c) Except as provided in this Section 2.7(c), owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes in exchange for such beneficial interests.
 
 	(i)	Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such beneficial interests if (A) DTC notifies the Issuer that it is unwilling or unable to continue as depositary for such Global Note or (B) DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Issuer within 90 days of such notice. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this clause (i) of this  Section 2.7(c) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and deliver to each beneficial owner identified by DTC in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations, and the Registrar shall register such exchanges in the Note Register.	
 
 	(ii)	The owner of a beneficial interest in a Global Note will be entitled to receive Certificated Notes in exchange for such interest if an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members through DTC on behalf of the owner of a beneficial interest in a Global Note directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Note for Certificated Notes, subject to and in accordance with the Applicable Procedures, the Issuer shall promptly execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to such beneficial owner, Certificated Notes in a principal amount equal to such beneficial interest in such Global Note.	
 
 	(iii)	If (A) an event described in clause (i) of Section 2.7(c) occurs and Certificated Notes are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner the instructions described in clause (ii) of  Section 2.7(c)  and Certificated Notes are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to  Section 6.6  hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Certificated Notes had been issued.	
 
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Section 2.8 Legends.
(a) Each Global Note shall bear the legend specified therefor in Exhibit A hereto on the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in Exhibit A hereto on the face thereof (the “ Private Placement Legend ”).
(c) Each Note shall bear the Mexican law legend specified therefor in Exhibit A hereto on the face thereof.
Section 2.9 Transfer and Exchange.
(a) Transfers of Beneficial Interests in a Rule 144A Global Note. If the owner of a beneficial interest in a Rule 144A Global Note that is a Restricted Note wishes to transfer such interest (or portion thereof) pursuant to Rule 144 (if available) or to a Non-U.S. Person pursuant to Regulation S:
 
 	(i)	upon receipt by the Registrar of:	
 
 	(A)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Regulation S Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(B)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(C)	a certificate in the form of Exhibit B or Exhibit C hereto, as applicable, duly executed by the transferor;	
 
 	(ii)	the Note Custodian shall increase the Regulation S Global Note and decrease the Rule 144A Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(b) Transfers of Beneficial Interests in a Regulation S Global Note. Subject to the Applicable Procedures, the following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note that is a Restricted Note:
 
 	(i)	If the owner of a beneficial interest in a Regulation S Global Note that is a Restricted Note wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A:	
 
 	(A)	upon receipt by the Registrar of:	
 
 	(1)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
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 	(2)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(3)	a certificate in the form of Exhibit D hereto, duly executed by the transferor;	
 
 	(B)	the Note Custodian shall increase the Rule 144A Global Note and decrease the Regulation S Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(c) Other Transfers. Any registration of transfer of Restricted Notes (including Certificated Notes) not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with  Section 2.9(d) .
(d) Use and Removal of Private Placement Legends. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing (or not required to bear upon such transfer, exchange or replacement) a Private Placement Legend, the Note Custodian and Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note or Certificated Notes if they have been issued pursuant to  Section 2.7(c)  that does not bear a Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
 
 	(i)	such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of  Exhibit C  hereto, and an Opinion of Counsel reasonably satisfactory to the Registrar;	
 
 	(ii)	such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor and, in the case of any such Restricted Notes, the Issuer has complied with the applicable procedures for delegending in accordance with  Section 2.9(h) ; or	
 
 	(iii)	in connection with such registration of transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably satisfactory to the Issuer and the Registrar to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.	
 
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The Holder of a Global Note bearing a Private Placement Legend may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to this  Section 2.9(d) .
(e) Consolidation of Global Notes and Exchange of Certificated Notes for Beneficial Interests in Global Notes. If a Global Note not bearing a Private Placement Legend is Outstanding at the time of a removal of legends pursuant to Section 2.9(h) , any interests in a Global Note delegended pursuant to  Section 2.9(h)  shall be exchanged for interests in such Outstanding Global Note, subject to the proviso at the end of  Section 2.15(a) .
(f) Retention of Documents. The Registrar and the Trustee shall retain copies of all letters, notices and other written communications received pursuant to this  Article II  and in accordance with the Trustee’s, or if different, the Registrar’s, record retention procedures. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar or the Trustee, as the case may be.
(g) General Provisions Relating to Transfers and Exchanges.
 
 	(i)	Subject to the other provisions of this Section 2.9, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met;  provided , that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.	
 
 	(ii)	To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II , the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, Certificated Notes and Global Notes, as applicable, at the Registrar’s or co-Registrar’s request.	
 
 	(iii)	No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer and the Trustee may require	
 
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 	payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to  Section 3.8 ,  Section 3.9 ,  Section 5.1  or  Section 9.5 ).	
 
 	(iv)	The Registrar or co-Registrar shall not be required to register the transfer of or exchange of (x) any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.	
 
 	(v)	Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar or the Note Custodian shall be affected by notice to the contrary.	
 
 	(vi)	All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.	
 
 	(vii)	Subject to Section 2.7 and this Section 2.9, in connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged.	
(h) Applicable Procedures for Delegending.
 
 	(i)	Promptly after one year has elapsed following (A) the Issue Date or (B) if the Issuer has issued Additional Notes with the same terms and the same CUSIP number as the Issue Date Notes pursuant to this Indenture within one year following the Issue Date, the date of original issuances of such Additional Notes, if the relevant Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Issuer where no conditions of Rule 144 are	
 
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 	then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Issuer shall:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Notes, and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;	
 
 	(2)	notify Holders of such Notes that the Private Placement Legend has been removed or deemed removed; and	
 
 	(3)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
In no event will the failure of the Issuer to provide any notice set forth in this paragraph or of the Trustee to remove the Private Placement Legend constitute a failure by the Issuer to comply with any of its covenants or agreements set forth in  Section 6.1  or otherwise. Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Restricted Note for exchange to the Registrar in accordance with the provisions of  Article II  of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend. The Issuer shall notify the Trustee in writing upon occurrence of the Resale Restriction Termination Date for any Note.
 
 	(ii)	In the case of a Regulation S Global Note, after the Resale Restriction Termination Date of any such Regulation S Global Note, the Issuer may, at its sole option:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Regulation S Global Note (including setting forth the basis for such removal), and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from such Regulation S Global Note without further action on the part of Holders; and	
 
 	(2)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
 
 	(iii)	Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (A) each reference	
 
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 	in this Section 2.9(h) to “one year” and in the Private Placement Legend described in Section 2.8(b)  and  Exhibit A  hereto to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, and (B) all corresponding references in this Indenture (including the definition of Resale Restriction Termination Date), the Notes and the Private Placement Legends thereon shall be deemed for all purposes hereof to be references to such changed period;  provided , that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws;  provided further  that if such change does not apply to existing Notes, all references to “one year” in this Indenture shall not be deemed for all purposes hereof to be references to such changed period. This  Section 2.9(h)  shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.	
(i) No Obligation of the Trustee.
 
 	(i)	The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, Agent Members or any other Persons with respect to the accuracy of the records of DTC or its nominee or of Agent Members, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners.	
 
 	(ii)	The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.	
 
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Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery, a replacement Note for such mutilated, lost or stolen Note, of like tenor and principal amount, bearing a number not contemporaneously Outstanding if:
 
 	(i)	the requirements of Section 8-405 of the Uniform Commercial Code are met,	
 
 	(ii)	the Holder satisfies any other reasonable requirements of the Trustee, and	
 
 	(iii)	neither the Issuer nor the Trustee has received notice that such Note has been acquired by a protected purchaser (as defined in  Section 8-303  of the Uniform Commercial Code).	
If required by the Trustee or the Issuer, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar and the Note Custodian from any loss that any of them may suffer if a Note is replaced.
(b) Upon the issuance of any new Note under this Section 2.10, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.10 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Note Guarantor and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Section 2.11 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer will prepare and execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuer pursuant to  Section 2.3  for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery in exchange therefor, one or more definitive Notes
 
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representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.12 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or upon written request of the Issuer, return to the Issuer all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange upon Issuer Order.
Section 2.13 Computation of Interest.
Interest on the Notes shall be computed as follows:
(a) The Notes bear interest at a floating rate equal to the 3-month Dollar LIBO Rate for deposits in U.S. dollars determined for the relevant interest period plus 4.75% (475 basis points) from October 2, 2013. Interest on the Notes will be payable, in cash, quarterly in arrears on January 15, April 15, July 15 and October 15 of each year, subject to adjustment in accordance with the Business Day Convention, commencing on January 15, 2014 and at maturity (each an “ Interest Payment Date ”), to Holders of record on the immediately preceding January 1, April 1, July 1 and October 1. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of original issuance. Each interest payment period shall end on (but not include) the relevant Interest Payment Date. Interest on the Notes will be computed on the basis of the actual number of days in the interest period divided by 360.
(b) As long as any Notes are outstanding the Issuer will maintain a calculation agent (the “Calculation Agent”) for calculating the interest rates on the Notes. The Issuer has initially appointed The Bank of New York Mellon to serve as the Calculation Agent, and The Bank of New York Mellon hereby accepts such appointment. The Calculation Agent will reset the rate of interest on the Notes on each Interest Payment Date and with respect to the first interest period, the Issue Date (each also a “ LIBO Rate Reset Date ”). The interest rate set for the Notes on a particular LIBO Rate Reset Date will remain in effect during the interest period commencing on that LIBO Rate Reset Date. Each interest period will be the period from and including a LIBO Rate Reset Date to but excluding the next LIBO Rate Reset Date or until the Maturity Date of the Notes, as the case may be.
(c) The “3-month Dollar LIBO Rate” means the rate determined in accordance with the following provision:
 
 	(i)	On the LIBOR Interest Determination Date, the Calculation Agent will determine the 3-month Dollar LIBO Rate, which will be the rate for deposits in U.S. Dollars having a three-month maturity which appears	
 
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 	on the Reuters Screen LIBOR01 as of 11:00 a.m., London time, on the LIBOR Interest Determination Date; or if such rate does not appear on the Reuters Screen LIBOR01 on any LIBOR Interest Determination Date, then the corresponding rate appearing on the Bloomberg L.P. page “BBAM” as of 11:00 a.m., London time, on the relevant LIBOR Interest Determination Date; or	
 
 	(ii)	If no rate appears on the Reuters Screen LIBOR01 or the Bloomberg L.P. page “BBAM” on the LIBOR Interest Determination Date the rate will be determined on the basis of the rates at which deposits in U.S. Dollars are offered by four major banks in the London interbank market (the “ Reference Banks ”) at approximately 11:00 a.m., London time, on that LIBOR Interest Determination Date to prime banks in the London interbank market for the period of three months commencing on the applicable LIBO Rate Reset Date and in a principal amount that is representative for a single transaction in U.S. Dollars in that market at that time. The Calculation Agent, after consultation with the Issuer, will request the principal London office of each of the Reference Banks to provide a quotation for its rate. If at least two such quotations are provided, then the 3-month Dollar LIBO Rate for that LIBOR Interest Determination Date will be the arithmetic mean of the quotations (rounded, if necessary, to the nearest one-hundredth (0.01) of a percent). If fewer than two quotations are provided as requested, the rate for that LIBOR Interest Determination Date will be the arithmetic mean (rounded, if necessary, to the nearest one-hundredth (0.01) of a percent) of the rates quoted by major banks in New York City, selected by the Calculation Agent, after consultation with the Issuer, at approximately 11:00 a.m., New York City time on that LIBOR Interest Determination Date for loans in U.S. Dollars to leading European banks having a three-month maturity commencing on the applicable LIBO Rate Reset Date and in a principal amount that is representative for a single transaction in U.S. Dollars in that market at that time.	
If the rate cannot be determined in accordance with the foregoing provisions, the “3-month Dollar LIBO Rate” shall mean the 3-month Dollar LIBO Rate determined on the immediately preceding LIBOR Interest Determination Date.
(d) The interest rate determined on a LIBOR Interest Determination Date will become effective on and as of the next LIBO Rate Reset Date. The initial LIBOR Interest Determination Date will be September 30, 2013 for the interest period commencing on October 2, 2013.
(e) The interest rate payable on the Notes will not be higher than the maximum rate permitted by New York state law as that law may be modified by U.S. law of general application.
 
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(f) The Calculation Agent will, as soon as practicable after 11:00 a.m., London time, on each LIBOR Interest Determination Date, in relation to each interest period, calculate the amount of interest (the “ Interest Amount ”) payable in respect of each Note for such interest period. The Interest Amount will be calculated by applying the rate of interest for such interest period to the principal amount of such Note, multiplying the product by the actual number of days in such interest period divided by 360.
(g) The Calculation Agent will cause the rate of interest and Interest Amount for each interest period determined by it, together with the relevant Interest Payment Date, to be notified to the Issuer and the Paying Agent. The Calculation Agent will also notify to each listing authority, stock exchange and/or quotation system (if any) by which the Notes have been admitted to listing, trading and/or quotation as soon as practicable after such determination but in any event not later than the first day of the relevant interest period, the rate of interest, the amount of interest payable in respect of each U.S.$1,000 principal amount of Notes and the Interest Payment Date Notice thereof shall also promptly be given to the holders of the Notes. The Calculation Agent will be entitled to recalculate any Interest Amount (on the basis of the foregoing provisions) without notice in the event of an extension or shortening of the relevant interest period.
(h) All notifications, opinions, determinations, certificates, calculations, quotations and decisions given, expressed, made or obtained for the purposes of this condition by the Calculation Agent will (in the absence of willful default, bad faith or manifest error) be binding on the Issuer, the Paying Agent and the holders of the Notes and (subject to aforesaid) no liability to any such person will attach to the Calculation Agent in connection with the exercise or non-exercise by it of its powers, duties and discretions for such purposes.
(i) All percentages resulting from any of the above calculations will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with five one-millionths of a percentage point being rounded upwards (e.g., 9.876545% (or .09876545) being rounded to 9.87655% (or .0987655)) and all dollar amounts resulting from such calculations will be rounded to the nearest cent (with one-half cent being rounded upwards).
Section 2.14 Defaulted Interest.
When any installment of interest becomes overdue (a “Defaulted Interest”), such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) shall be paid by the Issuer, at its election, as provided in clause (a) or clause (b) below.
(a) The Issuer may elect to make payment of any Defaulted Interest (including any interest payable on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “ Special Record Date ”), which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
 
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such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this  Section 2.14(a) . Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to clause (b) below; or
(b) The Issuer may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this  Section 2.14(b) , such manner of payment shall be deemed practicable by the Trustee. The Trustee shall in the name and at the expense of the Issuer cause prompt notice of the proposed payment and the date thereof to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register.
Section 2.15 Additional Notes.
(a) The Issuer may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“ Additional Notes ”) that shall have terms and conditions identical to those of the other Outstanding Notes, except with respect to:
 
 	(i)	the Issue Date;	
 
 	(ii)	the amount of interest payable on the first Interest Payment Date therefor;	
 
 	(iii)	the issue price; and	
 
 	(iv)	any adjustments necessary in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any agreement applicable to such Additional Notes, which are not adverse in any material respect to the Holder of any Outstanding Notes (other than such Additional Notes).	
The Notes issued on the Issue Date and any Additional Notes shall be treated as a single series for all purposes under this Indenture;  provided , that the Issuer may use different CUSIP or other similar numbers among Issue Date Notes and among Additional Notes to the extent required to comply with securities or tax law requirements, including to permit delegending pursuant to  Section 2.9(h) .
 
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(b) With respect to any Additional Notes, the Issuer will set forth in an Officer’s Certificate of the Issuer (the “ Additional Note Certificate ”), copies of which will be delivered to the Trustee, the following information:
 
 	(i)	the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;	
 
 	(ii)	the Issue Date and the issue price of such Additional Notes; provided, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code, unless such Additional Notes have a separate CUSIP or other similar number from other Notes; and	
 
 	(iii)	whether such Additional Notes will be subject to transfer restrictions under the Securities Act (or other applicable securities laws).	
ARTICLE III
COVENANTS
Section 3.1 Payment of Notes.
(a) The Issuer shall pay the principal of and interest (including Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the manner provided in the Notes and in this Indenture, and, notwithstanding anything to the contrary in the Notes or in this Indenture, in accordance with the Business Day Convention. Prior to 10:00 a.m. New York City time, on the Business Day prior to each Interest Payment Date and the Maturity Date, the Issuer shall deposit with the Paying Agent in immediately available funds U.S. Legal Tender sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. If the Issuer or an Affiliate of the Issuer is acting as Paying Agent, the Issuer or such Affiliate shall, prior to 10:00 a.m. New York City time on the Business Day prior to each Interest Payment Date and the Maturity Date, segregate and hold in trust U.S. Legal Tender, sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or an Affiliate of the Issuer) holds in accordance with this Indenture U.S. Legal Tender designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
(b) The Issuer hereby instructs the Trustee to establish an “Issue Date Note Account” for reception of the interest and principal payments for the Issue Date Notes.
 
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Section 3.2 Maintenance of Office or Agency.
(a) The Issuer shall maintain each office or agency required under Section 2.3. The Issuer will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Issuer may also from time to time designate one or more other offices or agencies (in or outside of the City of New York) where the Notes may be presented or surrendered for registration of transfer or for exchange and may from time to time rescind any such designation;  provided ,  however , that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
Section 3.3 Corporate Existence. Subject to Article IV, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 3.4 Payment of Taxes and Other Claims. The Issuer will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Issuer or any Restricted Subsidiary or for which it or any of them are otherwise liable, or upon the income, profits or property of the Issuer or any Restricted Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Lien upon the property of the Issuer or any Restricted Subsidiary;  provided ,  however , that the Issuer shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of the Issuer), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.5 Compliance Certificate. The Issuer and each Note Guarantor shall deliver to the Trustee within 105 days after the end of each fiscal year of the Issuer (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue Date) an Officer’s Certificate stating that in the course of the performance by the signers of their duties as Officers of the Issuer or such Note Guarantor, as the case may be, they would normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during the previous fiscal year. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Issuer or such Note Guarantor is taking or proposes to take with respect thereto.
Section 3.6 Further Instruments and Acts.
(a) The Issuer and each Note Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture.
 
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(b) The Issuer and the Note Guarantors shall take, and shall cause their Subsidiaries party thereto to take, any and all actions required under the Intercreditor Agreement and the Security Documents to cause the Intercreditor Agreement and the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Note Guarantors hereunder, a valid and enforceable perfected security interest on all the Collateral, in favor of the Security Agent for the equal and ratable benefit of the Holders of the Notes, and the other Permitted Secured Obligations, first in priority to any and all security interests at any time granted upon the Collateral, subject in all respects to Liens imposed by law and Liens for judgments, taxes, assessments or governmental charges.
Section 3.7 Waiver of Stay, Extension or Usury Laws. The Issuer and each Note Guarantor covenant (to the fullest extent permitted by applicable law) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or such Note Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Issuer and each Note Guarantor hereby expressly waives (to the fullest extent permitted by applicable law) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 3.8 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon through the date of purchase (the “ Change of Control Payment ”).
(b) Within 30 days following the date upon which the Change of Control occurred, the Issuer must send, by first-class mail, a notice to each Holder, with a copy to the Trustee, offering to purchase the Notes as described above (a “ Change of Control Offer ”). The Change of Control Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Change of Control Payment Date ”).
(c) On the Change of Control Payment Date, the Issuer will, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
 
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(d) If only a portion of a Note is purchased pursuant to a Change of Control Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);  provided , that each new Note shall be in a minimum principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
(e) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if:
 
 	(i)	a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or	
 
 	(ii)	notice of redemption has been given pursuant to this Indenture as described under Section 5.4 unless and until there is a default in payment of the Redemption Price.	
(f) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations in connection with the purchase of Notes in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by doing so.
Section 3.9 Limitation on Incurrence of Additional Indebtedness.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness, including Acquired Indebtedness, except that the Issuer and/or any of the Note Guarantors may Incur Indebtedness, including Acquired Indebtedness, if, at the time of and immediately after giving  pro forma  effect to the Incurrence thereof and the application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Issuer is greater than or equal to 2.0 to 1.0.
(b) Notwithstanding clause (a) above, the Issuer and/or any of its Restricted Subsidiaries, as applicable, may Incur the following Indebtedness (“ Permitted Indebtedness ”):
 
 	(i)	Indebtedness not to exceed U.S.$500,000,000 in respect of the Notes, excluding Additional Notes, and Indebtedness consisting of the Other Notes;	
 
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 	(ii)	Guarantees by (A) any Note Guarantor of Indebtedness of the Issuer or another Note Guarantor permitted under this Indenture and (B) the Issuer of Indebtedness of any Note Guarantor;  provided , that if any such Guarantee is of Subordinated Indebtedness, then the obligations of the Issuer under the Notes and this Indenture or the Note Guarantee of such Note Guarantor, as applicable, will be senior to the Guarantee of such Subordinated Indebtedness;	
 
 	(iii)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries outstanding on the Issue Date (excluding Indebtedness permitted under clauses (v), (vi), (vii) or (x) of this definition of Permitted Indebtedness);	
 
 	(iv)	Hedging Obligations, Compensation Related Hedging Obligations and any Guarantees thereof and any reimbursement obligations with respect to letters of credit related thereto, in each case entered into by the Issuer and/or any of its Restricted Subsidiaries;  provided , that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;	
 
 	(v)	intercompany Indebtedness between the Issuer and any Restricted Subsidiary or between any Restricted Subsidiaries;  provided , that in the event that at any time any such Indebtedness ceases to be held by the Issuer or a Restricted Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause (v) at the time such event occurs;	
 
 	(vi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;  provided , that such Indebtedness is extinguished within five Business Days of Incurrence; or (B) any cash pooling or other cash management agreements in place with a bank or financial institution but only to the extent of offsetting credit balances of the Issuer and/or its Restricted Subsidiaries pursuant to such cash pooling or other cash management agreement;	
 
 	(vii)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries represented by (A) endorsements of negotiable instruments in the ordinary course of business (excluding an  aval ), (B) documentary credits (including all forms of letter of credit), performance bonds or guarantees, advance payments, bank guarantees, bankers’ acceptances, surety or appeal bonds or similar instruments for the account of, or guaranteeing performance by, the Issuer and/or any Restricted Subsidiary in the ordinary course of business, (C) reimbursement obligations with respect to letters of credit in the ordinary course of	
 
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 	business, (D) reimbursement obligations with respect to letters of credit and performance Guarantees in the ordinary course of business to the extent required pursuant to the terms of any Investment made pursuant to clause (12) of the definition of “Permitted Investment” and (E) other Guarantees by the Issuer and/or any Restricted Subsidiary in favor of a bank or financial institution in respect of obligations of that bank or financial institution to a third party in an amount not to exceed U.S.$500 million at any one time outstanding;  provided , that in the case of clauses (B), (C) and (D), upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;	
 
 	(viii)	Refinancing Indebtedness in respect of:	
 
 	(A)	Indebtedness (other than Indebtedness owed to the Issuer or any Subsidiary of the Issuer) Incurred pursuant to clause (a) above (it being understood that no Indebtedness outstanding on the Issue Date is Incurred pursuant to such clause (a) above), or	
 
 	(B)	Indebtedness Incurred pursuant to clause (i), (ii) or (iii) above or this clause (viii);	
 
 	(ix)	Capitalized Lease Obligations, Sale and Leaseback Transactions, export credit facilities with a maturity of at least one year and Purchase Money Indebtedness of, including Guarantees of any of the foregoing by, the Issuer and/or any Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed U.S.$1 billion;	
 
 	(x)	Indebtedness arising from agreements entered into by the Issuer and/or a Restricted Subsidiary providing for bona fide indemnification, adjustment of purchase price or similar obligations not for financing purposes, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary (including minority interests);  provided , that in the case of a disposition, the maximum aggregate liability in respect of such Indebtedness shall at no time exceed the gross proceeds actually received by the Issuer and its Restricted Subsidiaries in connection with such disposition;	
 
 	(xi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries in an aggregate amount not to exceed U.S.$1 billion at any one time outstanding;  provided , that no more than U.S.$250 million of such Indebtedness at any one time outstanding (excluding any Indebtedness under a Permitted Liquidity Facility) may be Incurred by Restricted Subsidiaries that are not Note Guarantors, which amount shall be increased by the corresponding amount of other Indebtedness of	
 
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 	Restricted Subsidiaries other than the Note Guarantors outstanding on the Issue Date and subsequently repaid from time to time but in any event not to exceed U.S.$500 million at any one time outstanding;  provided , further ,  however , that (A) the Issuer and/or any of its Restricted Subsidiaries may Incur Indebtedness under a Permitted Liquidity Facility and (B) in the event that the Issuer and/or any of its Restricted Subsidiaries shall have Incurred Indebtedness under a Permitted Liquidity Facility that increases the amount outstanding at such time pursuant to this clause (xi) in excess of U.S.$ 1 billion, then up to U.S.$1.2 billion may be Incurred pursuant to this clause (xi) at any one time outstanding;	
 
 	(xii)	(A) Indebtedness of the Issuer and/or any of its Restricted Subsidiaries in respect of factoring arrangements or Inventory Financing arrangements or (B) other Indebtedness of the Issuer and/or any of its Restricted Subsidiaries with a maturity of 12 months or less for working capital purposes, not to exceed in the aggregate at any one time (calculated as of the end of the most recent fiscal quarter for which consolidated financial information of the Issuer is available) the greater of:	
 
 	(1)	The sum of:	
 
 	(x)	20% of the net book value of the inventory of the Issuer and its Restricted Subsidiaries and	
 
 	(y)	20% of the net book value of the accounts receivable of the Issuer and its Restricted Subsidiaries (excluding accounts receivable pledged to secure Indebtedness or subject to a Qualified Receivables Transaction),	
less, in each case, the amount of any permanent repayments or reductions of commitments in respect of such Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to comply with Section 3.12 ; or
 
 	(2)	U.S.$350 million;	
 
 	(xiii)	[Reserved];	
 
 	(xiv)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business;  provided , that such Indebtedness shall be permitted to be Incurred only at such time that the Facilities Agreement (or any refinancing thereof) shall contain an exception to allow the Incurrence of Indebtedness to pay taxes;	
 
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 	(xv)	Indebtedness Incurred pursuant to the Banobras Facility;	
 
 	(xvi)	Indebtedness of the Issuer and/or any of its Restricted Subsidiaries Incurred and/or issued to refinance Qualified Receivables Transactions in existence on the Issue Date;	
 
 	(xvii)	Acquired Indebtedness in an aggregate amount at any one time outstanding under this clause (xvii) not to exceed U.S.$100 million; and	
 
 	(xviii)	(A) any Indebtedness that constitutes an Investment that the Issuer and/or any of its Restricted Subsidiaries is contractually committed to Incur as of the Issue Date in any Person (other than a Subsidiary) in which the Issuer or any of its Restricted Subsidiaries maintains an Investment in equity securities; and (B) Guarantees up to U.S.$100 million in any calendar year by the Issuer and/or any Restricted Subsidiary of Indebtedness of any Person in which the Issuer or any of its Restricted Subsidiaries maintains an equity Investment minus any Investment other than such guarantees in such Person during such calendar year pursuant to clause (17)(b) of the definition of “Permitted Investments.”	
(c) Notwithstanding anything to the contrary contained in this Section 3.9,
 
 	(i)	The Issuer shall not, and shall not permit any Note Guarantor to, Incur any Permitted Indebtedness pursuant to  Section 3.9(b)  if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Indebtedness unless such Indebtedness shall be subordinated to the Notes or the applicable Note Guarantee, as the case may be, to at least the same extent as such Subordinated Indebtedness.	
 
 	(ii)	For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with this  Section 3.9 , the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness for purposes of this  Section 3.9 . For purposes of determining compliance with this  Section 3.9 , mark-to-market fluctuations of hedging obligations or derivatives outstanding on the Issue Date shall not constitute Incurrence of Indebtedness.	
 
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 	(iii)	For purposes of determining compliance with this Section 3.9, the principal amount of Indebtedness denominated in foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;  provided , that if such Indebtedness is Incurred to refinance other Indebtedness denominated in foreign currency, and such refinancing would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this  Section 3.9 , the maximum amount of Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.	
 
 	(iv)	For purposes of determining compliance with this Section 3.9:	
 
 	(A)	in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including, without limitation, in  Section 3.9(a) , the Issuer, in its sole discretion, will classify such item of Indebtedness at the time of Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and may later reclassify all or a portion of such item of Indebtedness as having been Incurred pursuant to any other clause to the extent such Indebtedness could be Incurred pursuant to such clause at the time of such reclassification; and	
 
 	(B)	the Issuer will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above, including, without limitation,  Section 3.9(a) .	
Section 3.10 [Reserved].
Section 3.11 Limitation on Restricted Payments.
(a) The Issuer will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, take any of the following actions (each, a “ Restricted Payment ”):
 
 	(i)	declare or pay any dividend or return of capital or make any distribution on or in respect of shares of Capital Stock of the Issuer or any Restricted Subsidiary to holders of such Capital Stock, other than:	
 
 	(A)	dividends, distributions or returns on capital payable in Qualified Capital Stock of the Issuer,	
 
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 	(B)	dividends, distributions or returns on capital payable to the Issuer and/or a Restricted Subsidiary,	
 
 	(C)	dividends, distributions or returns of capital made on a pro rata basis to the Issuer and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder);	
 
 	(ii)	purchase, redeem or otherwise acquire or retire for value:	
 
 	(A)	any Capital Stock of the Issuer, or	
 
 	(B)	any Capital Stock of any Restricted Subsidiary held by an Affiliate of the Issuer or any Preferred Stock of a Restricted Subsidiary, except for:	
 
 	(1)	Capital Stock held by the Issuer or a Restricted Subsidiary, or	
 
 	(2)	purchases, redemptions, acquisitions or retirements for value of Capital Stock on a pro rata basis from the Issuer and/or any Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand, according to their respective percentage ownership of the Capital Stock of such Restricted Subsidiary;	
 
 	(iii)	make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Subordinated Indebtedness; or	
 
 	(iv)	make any Investment (other than Permitted Investments);	
if at the time of the Restricted Payment immediately after giving effect thereto:
 
 	(A)	a Default or an Event of Default shall have occurred and be continuing;	
 
 	(B)	the Issuer is not able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); or	
 
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 	(C)	the aggregate amount (the amount expended for these purposes, if other than in cash, being the Fair Market Value of the relevant property at the time of the making thereof) of the proposed Restricted Payment and all other Restricted Payments made subsequent to the Issue Date up to the date thereof, less any Investment Return calculated as of the date thereof, shall exceed the sum of:	
 
 	(1)	50% of cumulative Consolidated Net Income of the Issuer or, if cumulative Consolidated Net Income of the Issuer is a loss, minus (i) 100% of the loss, accrued during the period, treated as one accounting period, beginning on the first full fiscal quarter after the Issue Date to the end of the most recent fiscal quarter for which consolidated financial information of the Issuer is available and (ii) the amount of cash benefits to the Issuer or a Restricted Subsidiary that is netted against Investments in Similar Businesses pursuant to clause (12) of the definition of “Permitted Investments”; plus	
 
 	(2)	100% of the aggregate net cash proceeds received by the Issuer from any Person from any:	
 
 	•	 	contribution to the equity capital of the Issuer (not representing an interest in Disqualified Capital Stock) or issuance and sale of Qualified Capital Stock of the Issuer, in each case, subsequent to the Issue Date, or	
 
 	•	 	issuance and sale subsequent to the Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at such time as it was a Restricted Subsidiary) of any Indebtedness for borrowed money of the Issuer or any Restricted Subsidiary that has been converted into or exchanged for Qualified Capital Stock of the Issuer,	
excluding, in each case, any net cash proceeds:
 
 	•	 	received from a Subsidiary of the Issuer;	
 
 	•	 	used to redeem Notes under Article V;	
 
 	•	 	used to acquire Capital Stock or other assets from an Affiliate of the Issuer; or	
 
 	•	 	applied in accordance with clause (ii)(B) or (iii)(A) of Section 3.11(b) below.	
 
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(b) Notwithstanding Section 3.11(a), this Section 3.11 does not prohibit:
 
 	(i)	the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration pursuant to  Section 3.11(a) ;	
 
 	(ii)	if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Issuer,	
 
 	(A)	in exchange for Qualified Capital Stock of the Issuer, or	
 
 	(B)	through the application of the net cash proceeds received by the Issuer from a substantially concurrent sale of Qualified Capital Stock of the Issuer or a contribution to the equity capital of the Issuer not representing an interest in Disqualified Capital Stock, in each case not received from a Subsidiary of the Issuer;	
provided, that the value of any such Qualified Capital Stock issued in exchange for such acquired Capital Stock and any such net cash proceeds shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iii)	if no Default or Event of Default shall have occurred and be continuing, the voluntary prepayment, purchase, defeasance, redemption or other acquisition or retirement for value of any Subordinated Indebtedness:	
 
 	(A)	solely in exchange for, or through the application of net cash proceeds of a substantially concurrent sale, other than to a Subsidiary of the Issuer, of Qualified Capital Stock of the Issuer, or	
 
 	(B)	solely in exchange for Refinancing Indebtedness for such Subordinated Indebtedness,	
provided, that the value of any Qualified Capital Stock issued in exchange for Subordinated Indebtedness and any net cash proceeds referred to above shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iv)	repurchases by the Issuer of Common Stock of the Issuer or options, warrants or other securities exercisable or convertible into Common Stock of the Issuer from employees or directors of the Issuer or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment or directorship of the employees or directors, in an amount not to exceed U.S.$5 million in any calendar year and any repurchases other than in connection with compensation of Common Stock of the Issuer pursuant to binding written agreements in effect on the Issue Date;	
 
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 	(v)	payments of dividends on Disqualified Capital Stock issued pursuant to the covenant described under Section 3.9 ;  provided ,  however , that such dividends shall be excluded in the calculation of the amount of Restricted Payments;	
 
 	(vi)	non-cash repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights;	
 
 	(vii)	cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Issuer;	
 
 	(viii)	purchases of any Subordinated Indebtedness of the Issuer (A) at a purchase price not greater than 101% of the principal amount thereof (together with accrued and unpaid interest) in the event of the occurrence of a Change of Control or (B) at a purchase price not greater than 100% of the principal amount thereof (together with accrued and unpaid interest) in the event of an Asset Sale in accordance with provisions similar to those set forth under  Section 3.12 ;  provided ,  however , that prior to such purchase of any such Subordinated Indebtedness, the Issuer has made the Change of Control Offer or Asset Sale Offer as provided under Section 3.8  or  Section 3.12 , respectively, and has purchased all Notes validly tendered and not properly withdrawn pursuant thereto;	
 
 	(ix)	recapitalization of earnings on or in respect of the Qualified Capital Stock of the Issuer pursuant to which additional Qualified Capital Stock of the Issuer or the right to subscribe for additional Capital Stock of the Issuer is issued to the existing shareholders of the Issuer on a  pro rata  basis (which, for the avoidance of doubt, shall not allow any payment in cash to be made in respect of Qualified Capital Stock of the Issuer pursuant to this clause (ix)); and	
 
 	(x)	so long as (A) no Default or Event of Default shall have occurred and be continuing (or result therefrom) and (B) the Issuer could Incur at least U.S.$1.00 of additional Debt pursuant to  Section 3.9(a) , payment of any dividends on Capital Stock (other than Disqualified Capital Stock) of the Issuer in an aggregate amount which, when taken together with all dividends paid pursuant to this clause (x), does not exceed U.S.$50 million in any calendar year;  provided , that such dividends shall be included in the calculation of the amount of Restricted Payments.	
 
 	(xi)	[Reserved]	
 
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In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (i) (without duplication for the declaration of the relevant dividend), (iv), (viii) and (x) above shall be included in such calculation and amounts expended pursuant to clauses (ii), (iii), (v), (vi), (vii) and (ix) above shall not be included in such calculation.
Section 3.12 Limitation on Asset Sales.
(a) The Issuer will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
 
 	(i)	the Issuer or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (to be determined as of the date on which such sale is contracted) of the assets sold or otherwise disposed of, and	
 
 	(ii)	other than in respect of Permitted Asset Swap Transactions, at least 80% of the consideration received for the assets sold by the Issuer or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale;  provided ,  however , for the purposes of this clause (ii), the following are also deemed to be cash or Cash Equivalents:	
 
 	(A)	the assumption of Indebtedness (other than Subordinated Indebtedness) of the Issuer or any Restricted Subsidiary and the release of the Issuer or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Sale;	
 
 	(B)	any securities, notes or obligation received by the Issuer or any Restricted Subsidiary from the transferee that are, within 180 days after the Asset Sale, converted by the Issuer or such Restricted Subsidiary into cash, to the extent of cash received in that conversion;	
 
 	(C)	Capital Stock of a Person who is or who, after giving effect to such Asset Sale, becomes, a Restricted Subsidiary; and	
 
 	(D)	any Designated Non-cash Consideration received by the Issuer or such Restricted Subsidiary in connection with such Asset Sale having an aggregate Fair Market Value which, when taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (D) since the Issue Date, does not exceed the sum of (1) 3.0% of Consolidated Tangible Assets of the Issuer calculated as of the end of the most recent fiscal quarter for which consolidated financial information is available (with the Fair Market Value of each item of Designated Non-cash Consideration being measured as of the date it was received and without giving effect to subsequent changes in value	
 
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 	of any such item of Designated Non-cash Consideration) and (2) the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.	
(b) The Issuer or any Restricted Subsidiary may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
 
 	(i)	repay any Senior Indebtedness for borrowed money or constituting a Capitalized Lease Obligation and permanently reduce the commitments with respect thereto, or	
 
 	(ii)	purchase:	
 
 	(A)	assets (except for current assets as determined in accordance with GAAP or Capital Stock) to be used by the Issuer or any Restricted Subsidiary in a Permitted Business, or	
 
 	(B)	substantially all of the assets of a Permitted Business or Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary from a Person other than the Issuer and its Restricted Subsidiaries.	
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the Asset Sale as described in clause (i) or (ii) of  Section 3.12(b) , the Issuer will make an offer to purchase Notes (the “ Asset Sale Offer ”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “ Asset Sale Offer Amount ”). The Issuer will purchase pursuant to an Asset Sale Offer from all tendering Holders on a  pro rata  basis, and, at the Issuer’s option, on a pro rata  basis with the holders of any other Senior Indebtedness with similar provisions requiring the Issuer to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Issuer may satisfy its obligations under this  Section 3.12  with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
(d) Pending the final application of any Net Cash Proceeds pursuant to this Section 3.12, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(e) The purchase of Notes pursuant to an Asset Sale Offer shall occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale. The Issuer may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$100 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$100 million, shall be applied as required pursuant to this  Section 3.12 .
 
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(f) Each Asset Sale Offer Notice shall be mailed first class, postage prepaid, to the record Holders as shown on the Note Register within 20 days following such 365th day (or such earlier date as the Issuer shall have elected to make such Asset Sale Offer), with a copy to the Trustee offering to purchase the Notes as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Asset Sale Offer Payment Date ”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part, in minimum denominations of U.S.$200,000 and in any integral multiples of U.S.$1,000 in excess thereof in exchange for cash.
(g) On the Asset Sale Offer Payment Date, the Issuer shall, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(h) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Issuer shall purchase the Notes and the other Senior Indebtedness on a  pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased shall be issued in the name of the holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a global note shall be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled and cannot be reissued.
(i) The Issuer shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this  Section 3.12 , the Issuer shall comply with these laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of this Indenture by doing so.
(j) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds shall be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Issuer may use any remaining Net Cash Proceeds for general corporate purposes of the Issuer and its Restricted Subsidiaries.
 
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(k) In the event of the transfer of substantially all (but not all) of the property and assets of the Issuer and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under  Article IV , the Successor Issuer shall be deemed to have sold the properties and assets of the Issuer and its Restricted Subsidiaries not so transferred for purposes of this Section 3.12 , and shall comply with the provisions of this  Section 3.12  with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Issuer or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this  Section 3.12 .
(l) If at any time any non-cash consideration received by the Issuer or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale, is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this  Section 3.12  within 365 days of conversion or disposition.
Section 3.13 Limitation on the Ownership of Capital Stock of Restricted Subsidiaries. The Issuer shall not permit any Person other than the Issuer or another Restricted Subsidiary to, directly or indirectly, own or control any Capital Stock of any Restricted Subsidiary, except for:
 
 	(i)	Capital Stock owned by such Person on the Issue Date;	
 
 	(ii)	directors’ qualifying shares;	
 
 	(iii)	the sale or Disposition of 100% of the shares of the Capital Stock of any Restricted Subsidiary held by the Issuer and its Restricted Subsidiaries to any Person other than the Issuer or another Restricted Subsidiary effected in accordance with, as applicable,  Section 3.12  and  Article IV ;	
 
 	(iv)	in the case of a Restricted Subsidiary other than a Restricted Subsidiary that is a Wholly Owned Subsidiary,	
 
 	(A)	the issuance by that Restricted Subsidiary of Capital Stock on a pro rata basis to the Issuer and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of such Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder); or	
 
 	(B)	sales, transfers and other dispositions of Capital Stock in a Restricted Subsidiary to the extent required by, or made pursuant to, buy/sell, put/call or similar shareholder arrangements set forth in binding agreements in effect on the Issue Date; and	
 
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 	(v)	the sale of Capital Stock of a Restricted Subsidiary by the Issuer or another Restricted Subsidiary or the sale or issuance by a Restricted Subsidiary of its newly-issued Capital Stock if such sale or issuance is made in compliance with  Section 3.12  and either:	
 
 	(A)	such Restricted Subsidiary is no longer a Subsidiary, and the continuing Investment of the Issuer and its Restricted Subsidiaries in such former Restricted Subsidiary is in compliance with  Section 3.11 , or	
 
 	(B)	such Restricted Subsidiary continues to be a Restricted Subsidiary.	
Section 3.14 Limitation on Designation of Unrestricted Subsidiaries.
(a) The Issuer may designate after the Issue Date any Subsidiary of the Issuer other than a Note Guarantor as an Unrestricted Subsidiary under this Indenture (a “ Designation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and any transactions between the Issuer or any of its Restricted Subsidiaries and such Unrestricted Subsidiary are in compliance with  Section 3.18;	
 
 	(ii)	at the time of and after giving effect to such Designation, the Issuer could Incur U.S.$1.00 of additional Indebtedness pursuant to  Section 3.9(a) ;	
 
 	(iii)	the Issuer would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation and treating such Designation as an Investment at the time of Designation) as a Restricted Payment pursuant to  Section 3.11(a)  in an amount (the “ Designation Amount ”) equal to the amount of the Issuer’s Investment in such Subsidiary on such date; and	
 
 	(iv)	the terms of any Affiliate Transaction existing on the date of such Designation between the Subsidiary being designated (and its Subsidiaries) and the Issuer or any Restricted Subsidiary would be permitted under Section 3.18  if entered into immediately following such Designation.	
(b) Neither the Issuer nor any Restricted Subsidiary shall at any time:
 
 	(i)	provide credit support for, subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);	
 
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 	(ii)	be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary; or	
 
 	(iii)	be directly or indirectly liable for any Indebtedness which provides that the Holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary.	
(c) The Issuer may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “ Revocation ”) only if:
 
(i)	no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and	
 
 	(ii)	all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation, if Incurred at such time, would have been permitted to be Incurred for all purposes of this Indenture.	
(d) The Designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary shall be deemed to include the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries. All Designations and Revocations must be evidenced by an Officer’s Certificate of the Issuer, delivered to the Trustee certifying compliance with the preceding provisions.
Section 3.15 Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) Except as provided in clause (b) below, the Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
 
 	(i)	pay dividends or make any other distributions on or in respect of its Capital Stock to the Issuer or any other Restricted Subsidiary or pay any Indebtedness owed to the Issuer or any other Restricted Subsidiary;	
 
 	(ii)	make loans or advances to, or make any Investment in, the Issuer or any other Restricted Subsidiary; or	
 
 	(iii)	transfer any of its property or assets to the Issuer or any other Restricted Subsidiary.	
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
 
 	(i)	applicable law, rule, regulation or order;	
 
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 	(ii)	this Indenture;	
 
 	(iii)	any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof;  provided , that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Issuer’s senior management;	
 
 	(iv)	customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;	
 
 	(v)	any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;	
 
 	(vi)	restrictions with respect to a Restricted Subsidiary of the Issuer imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary;  provided , that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);	
 
 	(vii)	customary restrictions imposed on the transfer of copyrighted or patented materials;	
 
 	(viii)	an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this  Section 3.15(b) ;  provided , that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Issuer’s senior management;	
 
 	(ix)	Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;	
 
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 	(x)	Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of this  Section 3.15(b)  above on the property so acquired;	
 
 	(xi)	restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management;	
 
 	(xii)	customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;	
 
 	(xiii)	restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under  Section 3.9 ;  provided , that such restrictions (A) are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Issuer’s senior management or (B) constitute financial covenants or similar restrictions that limit the ability to pay dividends or make distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the declaration or payment of dividends or other distributions; and	
 
 	(xiv)	net worth provisions in leases entered into by the Issuer or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Issuer’s senior management.	
Section 3.16 Limitation on Layered Indebtedness.
The Issuer shall not, and shall not permit any Note Guarantor to, directly or indirectly, Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness, unless such Indebtedness is expressly subordinate in right of payment to the Notes or, in the case of a Note Guarantor, its Note Guarantee, to the same extent, on the same terms and for so long (except as a result of the provisions of the Intercreditor Agreement applicable to Facilities Agreement Indebtedness and any refinancing thereof) as such Indebtedness is subordinate to such other Indebtedness.
Section 3.17 Limitation on Liens.
The Issuer shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, incur, grant, assume or suffer to exist any Liens of any kind (except for Permitted Liens) (a) against or upon any of their respective properties or assets, whether owned on the
 
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Issue Date or acquired after the Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade payables or (b) deemed to exist in respect of Capitalized Lease Obligations (including any Capitalized Lease Obligations in respect of Sale and Leaseback Transactions), in each case, unless contemporaneously therewith effective provision is made:
 
 	(i)	in the case of the Issuer or any Restricted Subsidiary that is not a Note Guarantor, to secure the Notes and all other amounts due under this Indenture; and	
 
 	(ii)	in the case of a Note Guarantor, to secure such Note Guarantor’s Note Guarantee of the Notes and all other amounts due under this Indenture,	
in each case, equally and ratably with such Indebtedness or other obligation (or, in the event that such Indebtedness is subordinated in right of payment to the Notes or such Note Guarantee, as the case may be, prior to such Indebtedness or other obligation) with a Lien on the same properties and assets securing such Indebtedness or other obligation for so long as such Indebtedness or other obligation is secured by such Lien.
Section 3.18 Limitation on Transactions with Affiliates.
(a) The Issuer shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any Affiliate of the Issuer (each an “ Affiliate Transaction ”), unless the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Issuer;
(b) The provisions of Section 3.18(a) above shall not apply to:
 
 	(i)	Affiliate Transactions with or among the Issuer and any Restricted Subsidiary or between or among Restricted Subsidiaries;	
 
 	(ii)	reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Issuer or any Restricted Subsidiary as determined in good faith by the Issuer’s Board of Directors or, to the extent consistent with past practice, senior management;	
 
 	(iii)	Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date with modifications, extensions and replacements thereof not materially adverse to the Issuer and its Restricted Subsidiaries) as determined in good faith by the Issuer’s senior management;	
 
 	(iv)	any Restricted Payments in compliance with Section 3.11;	
 
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 	(v)	payments and issuances of Qualified Capital Stock to any officers, directors and employees of the Issuer or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other stock subscription or shareholder agreement, and any employment agreements, stock option plans or other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such officers, directors or employees that are, in each case, approved in good faith by the Board of Directors or, to the extent consistent with past practice, senior management of the Issuer;	
 
 	(vi)	loans and advances to officers, directors and employees of the Issuer or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business in amounts consistent with the past practice of the Issuer or such Restricted Subsidiary; and	
 
 	(vii)	loans made by the Issuer or any Restricted Subsidiary to employees or directors in an aggregate amount not to exceed U.S.$15 million (or its equivalent in another currency) at any time outstanding.	
Section 3.19 Conduct of Business. The Issuer and its Restricted Subsidiaries shall not engage in any business other than a Permitted Business.
Section 3.20 Reports to Holders.
(a) Notwithstanding that the Issuer may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Issuer shall:
 
 	(i)	provide the Trustee and the Holders with:	
 
 	(A)	annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));	
 
 	(B)	reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Issuer in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year;	
 
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 	(C)	such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and	
 
 	(ii)	file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) within the periods specified for such filings under the Exchange Act (whether or not applicable to the Issuer).	
(b) In addition, at any time when the Issuer is not subject to or is not current in its reporting obligations under clause (ii) of  Section 3.20(a) , the Issuer shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding anything in this Indenture to the contrary, the Issuer shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iv) of  Section 6.1(a)  or for any other purpose hereunder until 75 days after the date any report hereunder is due.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 3.21 Payment of Additional Amounts.
(a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”) imposed or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “ Taxing Jurisdiction ”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided ,  however , that the foregoing obligation to pay Additional Amounts does not apply to:
 
 	(i)	any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),	
 
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 	(ii)	any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,	
 
 	(iii)	any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,	
 
 	(iv)	any Taxes payable otherwise than by deduction or withholding from payments on the Notes,	
 
 	(v)	any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directives,	
 
 	(vi)	any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,	
 
 	(vii)	any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or	
 
 	(viii)	any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.	
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing
 
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Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts stated in clause (iii) of Section 3.21(b) will not apply if (i) the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice or (ii) Article 195, Section II, paragraph (a) of the Mexican Income Tax Law ( Ley del Impuesto Sobre la Renta ) (or a substitute or equivalent provision) is in effect, unless (A) the provision of the information, documentation or other evidence described in such clause is expressly required by the applicable Mexican laws and regulations in order to apply Article 195, Section II, paragraph (a) of the Mexican Income Tax Law (or substitute or equivalent provision), (B) the Issuer or any Note Guarantor cannot obtain the information, documentation or other evidence necessary to comply with the applicable Mexican laws and regulations on their own through reasonable diligence and (C) the Issuer or any Note Guarantor would not otherwise meet the requirements for application of the applicable Mexican laws and regulations. In addition, clause (b)(iii) of Section 3.21(b) does not require, and shall not be construed to require, that any holder, including any non-Mexican pension fund, retirement fund, tax-exempt organization or financial institution, register with the Tax Management Service ( Servicio de Administración Tributaria ) or the Mexican Ministry of Finance and Public Credit ( Secretaría de Hacienda y Crédito Público ) to establish eligibility for an exemption from, or a reduction of, Mexican withholding taxes.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection. Payment of any Additional Amounts with respect to interest shall be considered as an interest payment under, or with respect to, the Notes.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
 
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Section 3.22 Suspension of Covenants.
(a) During any period of time that the Notes do not have Investment Grade Ratings from two of the Rating Agencies and (i) the Consolidated Leverage Ratio of the Issuer is less than 3.5:1 and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Partial Covenant Suspension Event ”), the Issuer and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under Sections  3.12 ,  3.13 ,  3.14(b) ,  3.15 ,  3.18 ,  3.19  and  4.1(a)(ii)  (collectively, the “ Partial Suspended Covenants ”).
(b) During any period of time that (i) the Notes have Investment Grade Ratings from two of the Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Covenant Suspension Event ”), the Issuer and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under  Sections 3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14(b) , 3.15 ,  3.16 ,  3.18 ,  3.19  and  4.1(a)(ii)  (collectively, the “ Suspended Covenants ”).
(c) In addition, (x) no Subsidiary that is a Restricted Subsidiary on the date of the occurrence of a Partial Covenant Suspension Event (the “ Partial Covenant Suspension Date ”) or a Covenant Suspension Event (the “ Suspension Date ”) may be redesignated as an Unrestricted Subsidiary during the Partial Suspension Period or the Suspension Period, as applicable and (y) each Additional Note Guarantor shall be released from its obligation to guarantee the Notes on the date of a Partial Covenant Suspension Event or a Covenant Suspension Event, as the case may be.
(d) The Additional Note Guarantors shall be released from their obligation to guarantee the Notes upon the occurrence of a Partial Covenant Suspension Event or a Covenant Suspension Event;  provided , that upon the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, the guarantee of the Notes by the Additional Note Guarantors shall be reinstated in accordance with and subject to the conditions in  Section 3.22(e).
(e) In the event that the Issuer and its Restricted Subsidiaries are not subject to the Partial Suspended Covenants or the Suspended Covenants, as the case may be, for any period of time as a result of the foregoing, and on any subsequent date (in the case of Partial Suspended Covenants, such subsequent date being the “ Partial Covenant Reversion Date ” and, in the case of Suspended Covenants, such subsequent date being the “ Reversion Date ”) (i) the Consolidated Leverage Ratio of the Issuer is not less than 3.5:1 during the applicable Partial Suspension Period or (ii) the Notes do not have Investment Grade Ratings from at least two of the Rating Agencies during the applicable Suspension Period, then in each case in clauses (i) and (ii), the Issuer and its Restricted Subsidiaries will thereafter again be subject to the Partial Suspended Covenants or the Suspended Covenants, as applicable, and the Notes will again be guaranteed by the Additional Note Guarantors (unless, solely with respect to any Additional Note Guarantor, the conditions for release as described under  Section 10.2  are otherwise satisfied
 
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during the Partial Suspension Period or the Suspension Period, as applicable). The Issuer shall cause such Additional Note Guarantor to promptly execute and deliver to the Trustee a supplemental indenture hereto in form and substance reasonably satisfactory to the Trustee in accordance with the provisions of  Article IX , evidencing that such Additional Note Guarantor’s guarantee on substantially the terms set forth in  Article X . The period of time between the Partial Covenant Suspension Date and the Partial Covenant Reversion Date is referred to as the “ Partial Suspension Period ” and the period of time between the Suspension Date and the Reversion Date is referred to as the “ Suspension Period .” Notwithstanding that the Partial Suspended Covenants, the Suspended Covenants and the guarantees by the Additional Note Guarantors may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Partial Suspended Covenants during the Partial Suspension Period or the Suspended Covenants during the Suspension Period, as the case may be (or upon termination of the applicable Partial Suspension Period or the Suspension Period or after that time based solely on events that occurred during the applicable Partial Suspension Period or the Suspension Period, as the case may be).
(f) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be classified to have been Incurred pursuant to  Section 3.9(a)  or  Section 3.9(b)  (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 3.9(a)  or  3.9(b) , such Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of  Section 3.9(b) . Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under  Section 3.11  shall be made as though  Section 3.11  had been in effect since the Issue Date and throughout the Suspension Period. The Issuer will give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date. After any such notice of the occurrence of a Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and effect. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under  Section 3.11(a) .
(g) The Issuer will give the Trustee written notice of any Partial Covenant Suspension Event or any Covenant Suspension Event and in any case no later than five (5) Business Days after such Partial Covenant Suspension Event or Covenant Suspension Event has occurred. In the absence of such notice, the Trustee shall assume that the Partial Suspended Covenants or the Suspended Covenants, as applicable, apply and are in full force and effect.
(h) For purposes of this Section 3.22 only, “Consolidated Leverage Ratio” and all associated definitions shall have the meaning set forth in  Exhibit E  hereto.
 
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ARTICLE IV
SUCCESSOR ISSUER
Section 4.1 Merger, Consolidation and Sale of Assets.
(a) The Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Issuer shall be the surviving or continuing corporation, or	
 
 	(B)	the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) substantially as an entirety (the “ Successor Issuer ”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and	
 
 	(2)	shall expressly assume, by a supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction), the Issuer or such Successor Issuer, as the case may be:	
 
 	(A)	shall have a Consolidated Fixed Charge Coverage Ratio that shall be not less than the Consolidated Fixed Charge Coverage Ratio of the Issuer immediately prior to such transaction; or	
 
 	(B)	shall be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a);	
 
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 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;	
 
 	(iv)	in the case of a transaction resulting in a Successor Issuer, each Note Guarantor has confirmed by supplemental indenture that its Note Guarantee shall apply for Obligations of the Successor Issuer in respect of this Indenture and the Notes; and	
 
 	(v)	if the Issuer merges with a Person, or the Successor Issuer is, organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, as applicable:	
 
 	(A)	the Holders of the Notes shall not recognize income, gain or loss for the purposes of the income tax laws of the United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and shall be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;	
 
 	(B)	any payment of interest or principal under or relating to the Notes or any Guarantees shall be paid in compliance with any requirements under  Section 3.21 ; and	
 
 	(C)	no other taxes on income, including capital gains, shall be payable by Holders of the Notes under the laws of the United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon;  provided , that the Holder does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.	
The provisions of clauses (ii) and (iii) of this Section 4.1(a) will not apply to:
 
 	(x)	any transfer of the properties or assets of a Restricted Subsidiary to the Issuer;	
 
 	(y)	any merger of a Restricted Subsidiary into the Issuer; or	
 
 	(z)	any merger of the Issuer into a Note Guarantor or a Wholly Owned Subsidiary of the Issuer.	
 
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For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
The Successor Issuer will succeed to, and be substituted for, such Issuer under this Indenture and the Notes, as applicable. For the avoidance of doubt, compliance with this  Section 4.1  will not affect the obligations of the Issuer (including a Successor Issuer, if applicable) under  Section 3.8  if applicable.
(b) Each Note Guarantor shall not, and the Issuer shall not cause or permit any such Note Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Issuer) that is not a Note Guarantor unless:
 
 	(i)	such Person (if such Person is the surviving entity) (the “Successor Note Guarantor”) assumes all of the obligations of such Note Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	such Note Guarantee is to be released as provided under Section 10.2(b); or	
 
 	(iii)	such sale or other disposition of substantially all of such Note Guarantor’s assets is made in accordance with  Section 3.12 .	
Subject to certain limitations described in this Indenture, the Successor Note Guarantor will succeed to, and be substituted for, such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee. The provisions of clauses (i), (ii) and (iii) of this  Section 4.1(b)  will not apply to:
 
 	(x)	any transfer of the properties or assets of a Note Guarantor to the Issuer or another Note Guarantor;	
 
 	(y)	any merger of a Note Guarantor into the Issuer or another Note Guarantor; or	
 
 	(z)	any merger of a Note Guarantor into a Wholly Owned Subsidiary of the Issuer.	
 
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ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 Optional Redemption. The Issuer may redeem the Notes at the Redemption Price, plus any accrued and unpaid interest on the principal amount of the Notes to the Redemption Date, subject to the conditions specified in the Form of Note in Exhibit A .
Section 5.2 [Reserved].
Section 5.3 Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to the optional redemption provisions of Section 5.1  hereof, it shall furnish to the Trustee, at least 45 days but not more than 60 days before the Redemption Date, an Officer’s Certificate setting forth: (a) the Redemption Date, (b) the CUSIP numbers of the Notes and (c) the Redemption Price
Section 5.4 Notice of Redemption.
(a) The Issuer shall prepare and mail or cause to be mailed a notice of redemption, in the manner provided for in Section 12.1 , not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.
(b) The notice of redemption shall state:
 
 	(i)	the Redemption Date,	
 
 	(ii)	the Redemption Price and the amount of any accrued interest payable as provided in Section 5.7,	
 
 	(iii)	that on the Redemption Date the Redemption Price and any accrued interest payable to the Redemption Date as provided in  Section 5.7  will become due and payable in respect of each Note, and, unless the Issuer defaults in making the redemption payment, that interest on each Note, will cease to accrue on and after the Redemption Date,	
 
 	(iv)	the place or places where a Holder must surrender Notes for payment of the Redemption Price and any accrued interest payable on the Redemption Date, and	
 
 	(v)	the CUSIP number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP number.	
(c) At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s names and at its expense; provided, however, that the Issuer shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding  Section 5.4(b) .
(d) The notice of redemption, once delivered by the Issuer to the Trustee, shall be irrevocable.
 
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Section 5.5 [Reserved].
Section 5.6 Deposit of Redemption Price.
On or prior to 10 :00 a.m. New York City time, on the Business Day prior to the Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or a Note Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in  Section 2.4 ) an amount of money in immediately available funds sufficient to pay the Redemption Price of, and accrued interest on, the Notes.
Section 5.7 Notes Payable on Redemption Date.
If the Issuer, or the Trustee on behalf of the Issuer, gives notice of redemption in accordance with this Article V, the Notes, shall, on the Redemption Date, become due and payable at the Redemption Price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Issuer shall default in the payment of the Redemption Price and accrued interest) the Notes shall cease to bear interest. Upon surrender of the Notes for redemption in accordance with the notice, the Issuer shall pay the Notes at the Redemption Price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Issuer shall fail to pay the Notes called-for redemption upon their surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the applicable rate borne by the Notes in accordance with Section 2.13 .
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
 
 	(i)	default in the payment when due of the principal of or premium, if any, on any Notes, including the failure to make a required payment to purchase Notes tendered pursuant to an optional redemption, a Change of Control Offer or an Asset Sale Offer;	
 
 	(ii)	default for 30 days or more in the payment when due of interest or Additional Amounts on any Notes;	
 
 	(iii)	the failure to perform or comply with any of the provisions described under Article IV;	
 
 	(iv)	the failure by the Issuer or any Restricted Subsidiary to comply with, or in the case of non-guarantor Restricted Subsidiaries, to perform	
 
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 	according to, any other covenant or agreement contained in this Indenture or in the Notes for 45 days or more after written notice to the Issuer from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes;	
 
 	(v)	default by the Issuer or any Restricted Subsidiary under any Indebtedness which:	
 
 	(A)	is caused by a failure to pay principal of, or premium, if any, when due or interest on such Indebtedness prior to the later of the expiration of any applicable grace period provided in such Indebtedness on the date of such default or five (5) days past when due; or	
 
 	(B)	results in the acceleration of such Indebtedness prior to its stated maturity;	
and the principal or accreted amount of Indebtedness covered by clauses (v)(A) or (v)(B) of this Section 6.1(a)  at the relevant time, aggregates U.S.$50 million or more;
 
 	(vi)	failure by the Issuer or any of its Restricted Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$100 million or more, which judgment(s) are not paid, discharged or stayed for a period of 60 days or more;	
 
 	(vii)	a Bankruptcy Event of Default; or	
 
 	(viii)	except as permitted herein, any Note Guarantee is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any Note Guarantor, or any Person acting on behalf of any Note Guarantor, denies or disaffirms such Note Guarantor’s obligations under its Note Guarantee.	
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
(b) The Issuer shall deliver within 30 days to the Trustee written notice of any event which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in clause (vii) of Section 6.1(a) above with respect to the Issuer) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of then Outstanding Notes may declare the
 
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unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Issuer and the Trustee specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in clause (vii) of  Section 6.1(a)  above occurs with respect to the Issuer, then the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences:
 
 	(i)	if the rescission would not conflict with any judgment or decree;	
 
 	(ii)	if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration;	
 
 	(iii)	to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and	
 
 	(iv)	if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances.	
Section 6.3 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, the Holders of a majority in principal amount of the then Outstanding Notes may waive any existing Default or Event of Default, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any Notes.
Section 6.5 Control by Majority. The Holders of a majority in principal amount of the then Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. Subject to  Section 7.1  and  Section 7.2 , however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture;  provided ,  however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
 
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Section 6.6 Limitation on Suits.
(a) No Holder of any Notes shall have any right to institute any proceeding with respect hereto or for any remedy hereunder, unless:
 
 	(i)	such Holder gives to the Trustee written notice of a continuing Event of Default;	
 
 	(ii)	Holders of at least 25% in principal amount of the then Outstanding Notes make a written request to pursue the remedy;	
 
 	(iii)	such Holders of the Notes provide to the Trustee indemnity satisfactory to it;	
 
 	(iv)	the Trustee does not comply within 60 days; and	
 
 	(v)	during such 60 day period the Holders of a majority in principal amount of the then Outstanding Notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request;	
provided, that a Holder of a Note may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such Note on or after the respective due dates expressed in such Note.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation,  Section 6.6 ), the right of any Holder to receive payment of principal or interest on the Notes held by such Holder, on or after the respective due dates, Redemption Dates or repurchase date expressed in this Indenture or the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default specified in clause (i) and (ii) of Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer and each Note Guarantor for the whole amount then due and owing (together with applicable interest on any overdue principal and, to the extent lawful, interest on overdue interest) and the amounts provided for in  Section 7.7 .
Section 6.9 Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of the Notes is then due):
 
 	(i)	file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and	
 
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 	the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Issuer, any Note Guarantor or any Subsidiary of the Issuer or their respective creditors or properties; and	
 
 	(ii)	collect and receive any monies or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture.	
Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to Section 7.7 .
(b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer or, to the extent the Trustee collects any amount pursuant to Article X hereof from any Note Guarantor, to such Note Guarantor, or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Issuer, fix a record date and payment date for any payment to Holders pursuant to this  Section 6.10 .
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by the Issuer, a suit by a Holder pursuant to  Section 6.7  or a suit by Holders of more than 10% in principal amount of Outstanding Notes.
 
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ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
 
 	(i)	the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and	
 
 	(ii)	in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture.	
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
 
 	(i)	this clause (c) does not limit the effect of clause (b) of this Section 7.1;	
 
 	(ii)	the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and	
 
 	(iii)	the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.2 ,  6.4  or  6.5 .	
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
 
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(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this  Article VII .
(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting at the direction of the Issuer or any Note Guarantor, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney.
 
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(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has received written notice at the Corporate Trust Office of any event which is in fact such a default, and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
(i) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(k) In no event shall the Trustee be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Trustee has been advised of the possibility of such damages.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.
(m) The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Note Guarantors or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Transfer Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with  Section 7.10 .
Section 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
 
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Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in payment of principal or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.6 [Reserved].
Section 7.7 Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the review, negotiation, execution and delivery of this Indenture or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
(b) The Issuer and each Note Guarantor shall jointly and severally indemnify the Trustee against any and all loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this  Section 7.7 ) and of defending itself against any claims (whether asserted by any Holder, the Issuer, any Note Guarantor or otherwise). The Trustee shall notify the Issuer and each Note Guarantor promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer or any Note Guarantor shall not relieve the Issuer or any Note Guarantor of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided , that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuer and the Trustee in connection with such defense. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
(c) To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee
 
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other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee’s right to receive payment of any amounts due under this  Section 7.7  shall not be subordinate to any other liability or Indebtedness of the Issuer.
(d) The Issuer’s obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Bankruptcy Event of Default, the expenses are intended to constitute expenses of administration under any Bankruptcy Law;  provided ,  however , that this shall not affect the Trustee’s rights as set forth in this  Section 7.7  or  Section 6.10 .
Section 7.8 Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Issuer. The Holders of a majority in principal amount of the then Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Issuer. The Issuer shall remove the Trustee if:
 
 	(i)	the Trustee fails to comply with Section 7.10;	
 
 	(ii)	the Trustee is adjudged bankrupt or insolvent;	
 
 	(iii)	a receiver or other public officer takes charge of the Trustee or its property; or	
 
 	(iv)	the Trustee otherwise becomes incapable of acting.	
(b) If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in principal amount of the then Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in  Section 7.7(c) .
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the then Outstanding Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
 
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(f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7  shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates of authentication and such delivery shall be valid for purposes of this Indenture.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 [Reserved].
Section 7.12 [Reserved].
Section 7.13 Authorization and Instruction of the Trustee With Respect to the Collateral.
Each Holder and the Issuer authorize and instruct the Trustee (a) to enter into (or cause an agent or grant such powers of attorney to enter into), on its own behalf and on behalf of the Holders of Notes, such documents (the “ Security Documents ”) as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) in order to create and maintain the security interest of the Trustee and the Holders of Notes in the Collateral as may from time to time be provided to equally and ratably secure the Notes, (b) to grant such powers of attorney and to do or cause to be done all such acts and things, on its own behalf and in the name and on behalf of the Holders of Notes, as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) to create and maintain the security interest of the Trustee and the Holders of Notes in such Collateral, (c) to appoint the Security Agent to serve as direct representative of the Trustee and the Holders of Notes in connection with the creation and maintenance of the security interest of the Trustee and the Holders of Notes in such Collateral, (d) to accept the security interest in the Collateral on behalf of each Holder, and (e) to grant powers in favor of an attorney to execute an accession public deed before a Spanish notary public accepting the security interest in the Collateral on behalf of the Holders of Notes. It is
 
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understood and acknowledged that, in certain circumstances, the Security Documents may be amended, modified or waived without the consent of the Trustee or the Holders of Notes. It is understood and acknowledged that the Security Agent, in addition to being appointed by and acting on behalf of the Trustee and the Holders of Notes, has also been appointed by and is acting on behalf of (and may in the future be appointed by and act on behalf of) other creditors of the Issuer and its Subsidiaries. The Trustee will not have the right to cause the Security Agent to foreclose on the Collateral upon the occurrence of an Event of Default in respect of the Notes. The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1 Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option, at any time, elect to have either Section 8.1(b) or (c) be applied to all Outstanding Notes upon compliance with the conditions set forth in  Section 8.2 .
(b) Upon the Issuer’s exercise under Section 8.1(a) of the option applicable to this clause (b), the Issuer shall, subject to the satisfaction of the conditions set forth in  Section 8.2 , be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in  Section 8.2  are satisfied (hereinafter, “ Legal Defeasance ”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the then Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of  Section 8.3  hereof and the other sections of this Indenture referred to in subclause (i) or (ii) of this clause (b), and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
 
 	(i)	the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in  Section 2.4  payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due,	
 
 	(ii)	the Issuer’s obligations with respect to such Notes under Article II and Section 3.2 hereof,	
 
 	(iii)	the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s obligations in connection therewith, and	
 
 	(iv)	this Article VIII.	
 
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Subject to compliance with this Article VIII, the Issuer may exercise its option under this clause (b) notwithstanding the prior exercise of its option under  Section 8.1(c)  hereof.
(c) Upon the Issuer’s exercise under Section 8.1(a) hereof of the option applicable to this clause (c), the Issuer shall, subject to the satisfaction of the applicable conditions set forth in  Section 8.2 , be released from its obligations under Sections 3.4 ,  3.5 ,  3.8 ,  3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14 ,  3.15 ,  3.16 ,  3.17 ,  3.18 ,  3.19 ,  3.20 , 3.21, 3.22,  4.1(a)  and  4.1(b)  hereof with respect to the then Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “ Covenant Defeasance ”), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the then Outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under clause (iii) of  Section 6.1(a)  (solely with respect to any failure to perform under or comply with clause (ii) or (iii) of  Section 4.1(a) ), clause (iv) of  Section 6.1(a)  or clause (v) of  Section 6.1(a) hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.2 Conditions to Defeasance. The Issuer may exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(a) the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders cash in U.S. Legal Tender or U.S. Government Obligations, in such amounts as will be sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest (including Additional Amounts) on the Notes on the stated date for payment thereof or on the Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer to the effect that:
 
 	(i)	the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling; or	
 
 	(ii)	since the Issue Date, there has been a change in the applicable U.S. federal income tax law,	
in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
 
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(c) in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of the deposit pursuant to Section 8.2(a)  (except any Default or Event of Default resulting from the failure to comply with  Section 3.9  as a result of the borrowing of the funds required to effect such deposit);
(e) the Trustee has received an Officer’s Certificate stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(f) the Issuer has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over any other creditors of the Issuer or any Subsidiary of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(h) the Issuer has delivered to the Trustee an Opinion of Counsel from counsel reasonably acceptable to the Trustee and independent of the Issuer to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Section 8.3 Application of Trust Money.
The Trustee shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to this Article VIII. It shall apply the deposited U.S. Legal Tender or U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 8.4 Repayment to Issuer.
(a) The Trustee and the Paying Agent shall promptly turn over to the Issuer upon request any excess money or securities held by them upon payment of all the obligations under this Indenture.
 
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(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal of, premium or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors.
Section 8.5 Indemnity for U.S. Government Obligations.
The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
Section 8.6 Reinstatement.
If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this Article VIII  by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Issuer under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this  Article VIII  until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with this  Article VIII ;  provided ,  however , that, if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.7 Satisfaction and Discharge.
This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Outstanding Notes when:
(a) either:
 
 	(i)	all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust) have been delivered to the Trustee for cancellation; or	
 
 	(ii)	all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient without reinvestment to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment;	
 
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(b) the Issuer has paid all other sums payable under this Indenture and the Notes by it; and
(c) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without notice to or consent of any Holder:
 
 	(i)	to cure any ambiguity, omission, defect or inconsistency;	
 
 	(ii)	to comply with Article IV in respect of the assumption by a Successor Issuer of the obligations of the Issuer under the Notes and this Indenture;	
 
 	(iii)	to provide for uncertificated Notes in addition to or in place of Certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;	
 
 	(iv)	to add guarantees with respect to the Notes or to secure the Notes;	
 
 	(v)	to add to the covenants of the Issuer or the Note Guarantors for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer or the Note Guarantors;	
 
 	(vi)	to make any change that does not, in the opinion of the Issuer as conclusively evidenced by an Officer’s Certificate to such effect, adversely affect the rights of any Holder in any material respect;	
 
 	(vii)	to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the section “Description of Notes” in the Offering Memorandum to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture or the Notes or Note Guarantees;	
 
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 	(viii)	to comply with the requirements of any applicable securities depositary;	
 
 	(ix)	to provide for the issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.15, which will have terms substantially identical to the other Outstanding Notes except as specified in  Section 2.14 , or Section 2.15 , and which will be treated, together with any other Outstanding Notes, as a single issue of securities; or	
 
 	(x)	in order to effect and maintain the listing of the Notes on the Global Exchange Market of the Irish Stock Exchange.	
(b) After an amendment or supplement under this Section 9.1 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this  Section 9.1 .
Section 9.2 With Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). Subject to  Section 6.4 , the Holder or Holders of a majority in aggregate principal amount of the then Outstanding Notes may waive compliance by the Issuer and the Note Guarantors with any provision of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver may not:
 
 	(i)	reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver;	
 
 	(ii)	reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on any Notes;	
 
 	(iii)	reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the Redemption Price therefor;	
 
 	(iv)	make any Notes payable in money other than that stated in the Notes;	
 
 	(v)	make any change in the provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any, and interest on such Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of the then Outstanding Notes to waive Defaults or Events of Default;	
 
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 	(vi)	amend, change or modify in any material respect any obligations of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred or make and consummate an Asset Sale Offer with respect to any Asset Sale that has been consummated;	
 
 	(vii)	make any change in the provisions of this Indenture described under Section 3.21 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; or	
 
 	(viii)	make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes.	
(b) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment, supplement or waiver under this  Section 9.2 .
(d) The Notes issued on the Issue Date, and any Additional Notes part of the same series, will be treated as a single series for all purposes under this Indenture, including with respect to waivers and amendments. For the purposes of calculating the aggregate principal amount of Notes that have consented to or voted in favor of any amendment, waiver, consent, modifications or other similar action, the Issuer (acting reasonably and in good faith) shall be entitled to select a record date as of which the principal amount of any Notes shall be calculated in such consent or voting process.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment, supplement or waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment, supplement or waiver becomes effective, it shall bind every Holder, except as otherwise provided in this  Article IX . An amendment, supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of written consents under  Section 9.2 .
(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
 
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described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
Section 9.5 Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer, in exchange for the Note, will execute and upon Issuer Order, the Trustee will authenticate and make available for delivery a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement.
Section 9.6 Trustee to Sign Amendments and Supplements. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this  Article IX  if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver, the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to  Section 7.1  and Section 7.2 ) shall be fully protected in relying upon, in addition to the documents required by  Section 12.4 , an Opinion of Counsel and an Officer’s Certificate each stating that such amendment, supplement or waiver is authorized or permitted by this Indenture and that all conditions precedent to the execution of such amendment, supplement or waiver have been complied with.
ARTICLE X
NOTE GUARANTEES
Section 10.1 Note Guarantees.
(a) Each Note Guarantor hereby fully and unconditionally guarantees, as primary obligor and not merely as surety, jointly and severally with each other Note Guarantor, to each Holder and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations (such guaranteed Obligations, the “ Guaranteed Obligations ”). Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and agrees to pay, in addition to the amounts stated in Section 10.1(f) , any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing or exercising any rights under any Note Guarantee.
(b) In no event shall the Trustee or the Holders be obligated to take any action, obtain any judgment or file any claim prior to enforcing or exercising any rights under any Note Guarantee.
 
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(c) Each Note Guarantor further agrees that its Note Guarantee constitutes an absolute and unconditional and continuing guarantee. Each Note Guarantor hereby waives, to the extent permitted by law:
 
 	(i)	any claim as to the legality, validity, regularity or enforceability of this Indenture, the Notes or any other agreement;	
 
 	(ii)	any claim as to the lack of authority of the Issuer to execute or deliver this Indenture, the Notes or any other agreement;	
 
 	(iii)	diligence, presentation to, demand of payment from and protest to the Issuer of any of the Obligations and notice of protest for nonpayment;	
 
 	(iv)	the occurrence of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(v)	notice of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(vi)	the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement;	
 
 	(vii)	any extension or renewal of the Obligations, this Indenture, the Notes or any other agreement;	
 
 	(viii)	any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;	
 
 	(ix)	the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Issuer;	
 
 	(x)	any setoff, counterclaim, recoupment, termination or defense of any kind or nature which may be available to or asserted by any Note Guarantor or the Issuer against the Holders or the Trustee;	
 
 	(xi)	any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, any collateral securing this Indenture and the Notes and any right to require that any resort be had by the Trustee or any Holder to any such collateral;	
 
 	(xii)	the failure of the Trustee or any Holder to exercise any right or remedy against any other Note Guarantor;	
 
 	(xiii)	any change in the ownership of the Issuer;	
 
 	(xiv)	any change in the laws, rules or regulations of any jurisdiction;	
 
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 	(xv)	any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of the Issuer under this Indenture or the Notes or of any Note Guarantor under its Note Guarantee; and	
 
 	(xvi)	any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.	
(d) Each of the Note Guarantors further expressly waives irrevocably and unconditionally:
 
 	(i)	Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) before claiming from it under this Indenture;	
 
 	(ii)	Any right to which it may be entitled to have the assets of the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) first be used, applied or depleted as payment of the Issuer’s or the Note Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by any of the Note Guarantors hereunder;	
 
 	(iii)	Any right to which it may be entitled to have claims hereunder divided between the Note Guarantors;	
 
 	(iv)	To the extent applicable, the benefits of orden, excusión, división, quita and espera and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other related or applicable articles that are not explicitly set forth herein because of Note Guarantor’s knowledge thereof of the  Código Civil Federal  of Mexico, and the Código Civil  of each State of the Mexican Republic and the Federal District of Mexico.	
(e) The obligations assumed by each Note Guarantor hereunder shall not be affected by the absence of judicial request of payment by a Holder to the Issuer or by whether any such person takes timely action pursuant to articles 2848 and 2849 of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and the Federal District of Mexico and each Note Guarantor hereby expressly waives the provisions of such articles.
 
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(f) The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(g) Except as provided in Section 10.2, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than payment of the Obligations in full.
(h) Each Note Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(i) In furtherance of the foregoing and not in limitation of any other right which the Trustee or any Holder has at law or in equity against each Note Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of:
 
 	(i)	the unpaid amount of such Obligations then due and owing; and	
 
 	(ii)	accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law);	
provided, that any delay by the Trustee in giving such written demand shall in no event affect any Note Guarantor’s obligations under its Note Guarantee.
(j) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand:
 
 	(i)	the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby; and	
 
 	(ii)	in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantor for the purposes of this Note Guarantee.	
 
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Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Subject to the limitations set out in Section 10.5 and Section 10.6, the obligations of each Note Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its obligations under its Note Guarantee in the event that:
 
 	(i)	there is a Legal Defeasance of the Notes pursuant to Article VIII;	
 
 	(ii)	there is a sale or other disposition of Capital Stock of such Note Guarantor following which such Note Guarantor is no longer a direct or indirect Subsidiary of the Issuer;	
 
 	(iii)	such Note Guarantor is designated as an Unrestricted Subsidiary in accordance with Section 3.14;	
 
 	(iv)	solely with respect to an Additional Note Guarantor, either (A) the Facilities Agreement Indebtedness has been repaid in full and such Additional Note Guarantor is not a guarantor of the Indebtedness Incurred to refinance such Facilities Agreement Indebtedness or (B) at least 85% of the outstanding Indebtedness of the Issuer and its Restricted Subsidiaries is not guaranteed by such Additional Note Guarantor; or	
 
 	(v)	solely with respect to an Additional Note Guarantor, upon the occurrence of a Partial Covenant Suspension Event or Covenant Suspension Event until the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, at which time the guarantee of the Notes by such Additional Note Guarantor shall be reinstated unless such Additional Note Guarantor would have been released at any time during the Partial Suspension Period or the Suspension Period, as applicable, pursuant to clause (i), (ii), (iii) or (iv) of this  Section 10.2(b) .	
 
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Section 10.3 Right of Contribution.
Each Note Guarantor that makes a payment or distribution under a Note Guarantee will be entitled to a contribution from each other Note Guarantor in a  pro rata  amount, based on the net assets of each Note Guarantor determined in accordance with GAAP. The provisions of this  Section 10.3  shall in no respect limit the obligations and liabilities of each Note Guarantor to the Trustee and the Holders and each Note Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Note Guarantor hereunder.
Section 10.4 No Subrogation.
Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full in cash or Cash Equivalents of all Obligations. If any amount shall be paid to any Note Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full in cash or Cash Equivalents, such amount shall be held by such Note Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Note Guarantor, and shall, forthwith upon receipt by such Note Guarantor, be turned over to the Trustee in the exact form received by such Note Guarantor (duly endorsed by such Note Guarantor to the Trustee, if required), to be applied against the Obligations.
Section 10.5 French Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in France (a “French Note Guarantor”) are subject to the limitations set out in this  Section 10.5 .
(b) The obligations and liabilities of any French Note Guarantor under the Indenture and the Notes, and in particular under this  Article X , shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of article(s) L. 241-3 or L. 242-6 of the French Commercial Code or any other law or regulations having the same effect, as interpreted by French courts.
(c) The obligations and liabilities of any French Note Guarantor under this Article X for the Issuer’s obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Issuer to the extent directly or indirectly on-lent to such French Note Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash-pooling arrangements or other cash management agreements,  provided , that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Note Guarantor under this  Article X , it being specified that any payment made by a French Note Guarantor under this  Article X  in respect of the obligations of the Issuer shall reduce  pro tanto the outstanding amount of the intercompany loans due by such French Note Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by the French Note Guarantor or its relevant direct or indirect Subsidiary shall reduce  pro tanto  the amount payable by the French Note Guarantor under this  Article X .
 
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(d) It is acknowledged that no French Note Guarantor is acting jointly and severally with the other Note Guarantors and no French Note Guarantor shall therefore be considered as “ co-débiteur solidaire ” as to its obligations pursuant to the guarantee given pursuant to this  Article X .
Section 10.6 Swiss Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this  Section 10.6 .
(b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, the Notes or any other agreement, and in particular under this  Article X , in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned and controlled subsidiaries (the “ Restricted Obligations ”) shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested,  provided , that such limitation is a requirement under applicable law (including any case law) at that point in time and that such limitation shall not free the Swiss Note Guarantor from its obligations in excess thereof, but merely postpone the performance date until such time as performance is permitted notwithstanding such limitation.
(c) For the purpose of this clause, “Free Reserves Available for Distribution” means an amount equal to the maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the balance sheet profit and any freely disposable reserves available for this purpose, in each case in accordance with applicable Swiss law).
(d) As soon as possible after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, immediately thereafter, pay the amount corresponding to the Free Reserves Available for Distribution to the Trustee (save to the extent provided below).
(e) In respect of the Restricted Obligations, the Swiss Note Guarantor shall:
 
 	(i)	if and to the extent required by applicable law in force at the relevant time:	
 
 	(A)	subject to any applicable double taxation treaties, deduct Swiss withholding tax at the rate of 35 percent (or such other rate as is in force at that time) from any payment made by it;	
 
 	(B)	pay any such deduction to the Swiss Federal Tax Administration; and	
 
 	(C)	notify and provide evidence to the Trustee that the Swiss withholding tax has been paid to the Swiss Federal Tax Administration;	
 
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 	(ii)	to the extent such deduction is made, not be required to make a gross-up, indemnify or otherwise hold harmless the Trustee or the Holders for the deduction of the Swiss withholding tax notwithstanding anything to the contrary contained in the Indenture, the Notes or any other agreement, unless grossing up is permitted under the laws of Switzerland then in force and  provided , that this should not in any way limit any obligations of any non-Swiss Note Guarantors under the Indenture, the Notes or any other agreement to indemnify the Trustee or the Holders in respect of the deduction of the Swiss withholding tax. The Swiss Note Guarantor shall use all reasonable efforts to procure that any person which is entitled to a full or partial refund of any Swiss withholding tax paid pursuant to paragraph (a) above will, as soon as possible after the deduction of the Swiss withholding tax: (y) request a refund of the Swiss withholding tax under any applicable law (including double taxation treaties) and (z) pay to the Trustee upon receipt any amount so refunded.	
(f) The Swiss Note Guarantor will take, and cause to be taken, all and any other action, including, without limitation, the passing of any shareholders’ resolutions to approve any payment or other performance under the Indenture and the Notes and the receipt of any confirmations from the Swiss Note Guarantor’s auditors, whether following a request to discharge a Restricted Obligation or which may be required as a matter of mandatory Swiss law in force at the time it is required to make a payment or perform other obligations under the Indenture, the Notes or any other agreement in order to allow a prompt payment or performance of other obligations under the Indenture or the Notes.
(g) If the enforcement of the Restricted Obligations would be limited due to the effects referred to in this Section 10.6 and if any asset of the Swiss Note Guarantor has a book value that is less than its market value (an “ Undervalued Asset ”), the Swiss Note Guarantor shall, to the extent permitted by applicable law and its accounting standards (i) write up the book value of such Undervalued Asset such that its balance sheet reflects a book value that is equal to the market value of such Undervalued Asset, and (ii) make reasonable efforts to realize the Undervalued Asset for a sum which is at least equal to the market value of such asset. Without prejudice to the rights of the Trustee and the Holders under the Indenture, the Notes or any other agreement, the Swiss Note Guarantor will only be required to realize an Undervalued Asset if such asset is not necessary for the Swiss Note Guarantor’s business ( nicht betriebsnotwendig ).
 
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ARTICLE XI
COLLATERAL
Section 11.1 The Collateral. Subject to Section 11.2, the Issuer and the Note Guarantors agree that the Notes will be at all times secured by a first-priority security interest in the Collateral on at least an equal and ratable basis with the Permitted Secured Obligations.
Section 11.2 Release of the Collateral.
(a) The Notes will cease to be secured by a security interest in the Collateral in accordance with the provisions of the Intercreditor Agreement.
(b) In addition to the Collateral release provisions set forth in the Intercreditor Agreement, the Notes will cease to be secured by a security interest on the Collateral upon:
 
 	(i)	(A) payment in full of the principal of, any accrued and unpaid interest on, the Notes and all other amounts or Obligations that are due and payable at or prior to the time such principal, accrued and unpaid interest, if any, are paid, (B) a satisfaction and discharge of this Indenture or (C) a Legal Defeasance or Covenant Defeasance pursuant to  Article VIII ; or	
 
 	(ii)	a refinancing of the Facilities Agreement Indebtedness in full as a result of which the Collateral does not secure Indebtedness Incurred to refinance such Facilities Agreement Indebtedness.	
 
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer and the Note Guarantors:
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4417
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street – 4E
New York, NY 10286
Attention: International Corporate Trust
Fax: 212-815-5915
The Issuer or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) All notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to DTC, delivery of which shall be deemed to satisfy the requirements of this paragraph.
(c) Each such notice shall be deemed to have been given on the date of delivery or mailing. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to them if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(d) Subject to Section 7.1(c) and Section 7.2(a), the Trustee shall accept electronic transmissions; provided, that (i) the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give
 
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such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information and (ii) each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(e) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the Note Register and shall be sufficiently given if so mailed within the time prescribed.
(f) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(g) Any notice or communication delivered to the Issuer under the provisions herein shall constitute notice to the Note Guarantors.
Section 12.2 Communication by Holders with Other Holders.
Holders may communicate with other Holders with respect to their rights under this Indenture (including the Note Guarantees) or the Notes.
Section 12.3 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 12.4 Statements Required in Certificate or Opinion.
Each certificate or opinion, including an Opinion of Counsel or Officer’s Certificate, with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has read such covenant or condition;
 
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(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 12.5 Rules by Trustee, Paying Agent, Transfer Agent and Registrar.
The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Paying Agent, Transfer Agent and the Registrar may make reasonable rules for their functions.
Section 12.6 Legal Holidays.
A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City, Mexico, Madrid, Amsterdam, London, Paris or Zurich. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 12.7 Governing Law, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR EACH NOTE GUARANTEE OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
 
 	(i)	agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Note Guarantees) or the Notes, as the case may be, may be instituted in any Federal or state court sitting in the City of New York and County of New York and in the courts of its own corporate domicile, in respect of actions brought against it as a defendant,	
 
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 	(ii)	waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,	
 
 	(iii)	irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding,	
 
 	(iv)	agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and	
 
 	(v)	agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.	
(c) The Issuer and the Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as its authorized agent (the “ Authorized Agent ”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. The Issuer and the Note Guarantors (other than CEMEX Corp.) hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Issuer and the Note Guarantors (other than CEMEX Corp.) agree to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Issuer and the Note Guarantors (other than CEMEX Corp.) agree that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Issuer and the Note Guarantors (other than CEMEX Corp.) of a successor agent in the City of New York, New York as each of their authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Issuer and the Note Guarantors (other than CEMEX Corp.).
(d) To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors hereby irrevocably waive and agree not to plead or claim such immunity in respect of their obligations under this Indenture or the Notes.
(e) Nothing in this Section 12.7 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
 
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Section 12.8 [Reserved].
Section 12.9 No Recourse Against Others.
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or this Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
Section 12.10 Successors. All agreements of the Issuer and any Note Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11 Duplicate and Counterpart Originals.
The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or pdf shall be deemed to be their original signatures for all purposes.
Section 12.12 Severability.
In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13 [Reserved].
Section 12.14 Currency Indemnity.
(a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and any Note Guarantor under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, a Note Guarantor or any Subsidiary of the Issuer or otherwise) by any Holder of the Notes in respect of any sum expressed to be due to it from the Issuer or any Note Guarantor shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer and the Note Guarantors shall jointly and severally indemnify and hold harmless the recipient, to the greatest extent permitted by law, against any loss or cost sustained by it in making any such purchase. For the purposes of this  Section 12.14 , it will be sufficient for the Holder of a Note to certify that it would have suffered a loss had
 
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an actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
(b) The indemnities of the Issuer and the Note Guarantors contained in this Section 12.14, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuer and the Note Guarantors under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer and the Note Guarantors; (iii) shall apply irrespective of any waiver granted by any Holder of the Notes or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
Section 12.15 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 12.16 USA PATRIOT Act.
The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplemented from time to time, the “ USA PATRIOT Act ”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Signature page follows]
 
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

CEMEX, S.A.B. de C.V., as Issuer	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
EACH OF THE NOTE GUARANTORS LISTED BELOW	
 	
CEMEX México, S.A. de C.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
CEMEX Concretos, S.A. de C.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
Empresas Tolteca de México, S.A. de C.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	
 	
New Sunward Holding B.V.	
 	 	
By:	 	/s/ José Antonio González Flores	
Name:	 	José Antonio González Flores	
Title:	 	Attorney-In-Fact	

 	 	 	
CEMEX España, S.A.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
Cemex Asia B.V.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
CEMEX Corp.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
Cemex Egyptian Investments B.V.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	
 	
Cemex Egyptian Investments II B.V.	
 	 	
By:	 	/s/ Héctor José Vela Dib	
Name:	 	Héctor José Vela Dib Flores	
Title:	 	Attorney-In-Fact	

 	 	 	
CEMEX France Gestion (S.A.S.)	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	
 	
Cemex Research Group AG	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	
 	
Cemex Shipping B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	
 	
CEMEX UK	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
Name:	 	Jaime Armando Chapa Gonzalez	
Title:	 	Attorney-In-Fact	

 	 	 	 	 	
THE BANK OF NEW YORK MELLON,
as Trustee	
 	 	
By:	 	/s/ Catherine F. Donohue	
 	 	Name:	 	Catherine F. Donohue	
 	 	Title:	 	Vice President	

SCHEDULE I
NOTE GUARANTORS
 
1.	CEMEX México, S.A. de C.V. (Mexico)	
 
2.	CEMEX Concretos, S.A. de C.V. (Mexico)	
 
3.	Empresas Tolteca de México, S.A. de C.V. (Mexico)	
 
4.	New Sunward Holding B.V. (the Netherlands)	
 
5.	CEMEX España, S.A. (Spain)	
 
6.	Cemex Asia B.V. (the Netherlands)	
 
7.	CEMEX Corp. (Delaware)	
 
8.	Cemex Egyptian Investments B.V. (the Netherlands)	
 
9.	Cemex Egyptian Investments II B.V (the Netherlands)	
 
10.	CEMEX France Gestion (S.A.S.) (France)	
 
11.	Cemex Research Group AG (Switzerland)	
 
12.	Cemex Shipping B.V. (the Netherlands)	
 
13.	CEMEX UK (United Kingdom)	

EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”]
[Include the following legend on all Notes that are Restricted Notes:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND [Include the following on all Regulation S Notes that are Restricted Notes: , PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO CEMEX, S.A.B. DE C.V., (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR
 
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(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS LEGEND CAN ONLY BE REMOVED AT THE OPTION OF THE ISSUER.”
[Include the following on all Regulation S Notes that are Restricted Notes: PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] EACH PERSON ACQUIRING AN OWNERSHIP INTEREST IN THE NOTES (1) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT EITHER (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S) AND IS OUTSIDE THE UNITED STATES OR (C) IS ACQUIRING SUCH OWNERSHIP INTEREST PURSUANT TO A VALID REGISTRATION STATEMENT OR IN ANOTHER TRANSACTION EXEMPT FROM SUCH REGISTRATION; (2) AGREES THAT [ Include the following on all Regulation S Notes that are Restricted Notes:  PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] (X) IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS, AND IN ANY CASE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; (Y) PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE BANK OF NEW YORK MELLON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (Z) IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “UNITED STATES”, “U.S. PERSON” AND “OFFSHORE TRANSACTION” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
[Include the following legend on all Notes as the Mexican law legend:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED WITH THE NATIONAL SECURITIES REGISTRY ( REGISTRO NACIONAL DE VALORES ) MAINTAINED BY THE MEXICAN NATIONAL BANKING AND SECURITIES COMMISSION ( COMISIÓN NACIONAL BANCARIA Y DE VALORES, OR CNBV ), AND MAY NOT BE OFFERED OR SOLD PUBLICLY, OR OTHERWISE BE SUBJECT TO BROKERAGE ACTIVITIES, IN MEXICO, EXCEPT THAT THE NOTES MAY BE OFFERED IN MEXICO TO QUALIFIED OR INSTITUTIONAL INVESTORS PURSUANT TO THE PRIVATE PLACEMENT EXEMPTION SET FORTH UNDER ARTICLE 8 OF THE MEXICAN SECURITIES MARKET LAW ( LEY DEL MERCADO DE VALORES ). THE NOTES EVIDENCED
 
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HEREBY AND THE OFFERING MEMORANDUM RELATED THERETO ARE SOLELY OUR RESPONSIBILITY AND HAVE NOT BEEN REVIEWED OR AUTHORIZED BY THE CNBV.”]
 
A-3

FORM OF FACE OF NOTE
Floating Rate Senior Secured Notes due 2018

No.        	  	Principal Amount U.S.$                     	
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
CUSIP NO.             
ISIN NO.             
CEMEX, S.A.B. de C.V. (together with its successors and assigns, the “Issuer”), promises to pay to Cede & Co., or registered assigns, the principal sum of                      U.S. Dollars [ If the Note is a Global Note ,  add the following , as revised by the Schedule of Increases and Decreases in Global Note attached hereto, on October 15, 2018.
Interest Payment Dates: January 15, April 15, July 15 and October 15 of each year, beginning on January 15, 2014
Record Dates: January 1, April 1, July 1 and October 1
 
A-4

Additional provisions of this Note are set forth on the other side of this Note.

 	 	 	 	 	 	CEMEX, S.A.B. de C.V.	
 	 	 	 	 	
 	 	 	 	 	 	By:	 	 	
 	 	 	 	 	 	 	 	Name:	 	 	
 	 	 	 	 	 	 	 	Title:	 	 	
 	 	 	 	 	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION	 	 	 	 	 	 	 	 	
 	 	 	 	 	
THE BANK OF NEW YORK MELLON	 	 	 	 	 	 	 	 	
as Trustee, certifies that this is one of the Notes referred to in the Indenture.	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	
By:	 	 	 	 	 	 	 	Date:	 	 	
 	 	Authorized Signatory	 	 	 	 	 	 	 	 	
 
A-5

FORM OF REVERSE SIDE OF NOTE
Floating Rate Senior Secured Notes due 2018
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.	Interest	
CEMEX, S.A.B. de C.V., a publicly traded stock corporation with variable capital (sociedad anónima bursátil de capital variable ) organized under the laws of the United Mexican States (together with its successors and assigns, the “ Issuer ”), promises to pay interest on the principal amount of this Note at a floating rate, reset quarterly, equal to 3-month LIBOR (as defined below) for deposits on U.S. dollars plus 4.75% (475 basis points).
The Issuer will pay interest quarterly in arrears on each Interest Payment Date of each year commencing January 15, 2014, and notwithstanding anything to the contrary in this Note or in the Indenture, in accordance with the Business Day Convention. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from October 2, 2013;  provided,  that if there is no existing Default or Event of Default on the payment of interest, and if this Note is authenticated between a Record Date referred to on the face hereof and the next succeeding Interest Payment Date (but after October 2, 2013), interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from October 2, 2013. Each interest payment period shall end on (but not include) the relevant Interest Payment Date. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of the actual number of days in the interest period divided by 360.
The Calculation Agent will reset the rate of interest on the Notes on each Interest Payment Date and, with respect to the first interest period, the Issue Date (each also a “ LIBO Rate Reset Date ”). The interest rate set for the Notes on a particular LIBO Rate Reset Date will remain in effect during the interest period commencing on that LIBO Rate Reset Date. Each interest period will be the period from and including a LIBO Rate Reset Date to but excluding the next LIBO Rate Reset Date or until the Maturity Date of the Notes, as the case may be.
The “3-month Dollar LIBO Rate” means the rate determined in accordance with the following provision:
 
 	•	 	On the LIBOR Interest Determination Date, the Calculation Agent will determine the 3-month Dollar LIBO Rate, which will be the rate for deposits in U.S. Dollars having a three-month maturity which appears on the Reuters Screen LIBOR01 as of 11:00 a.m., London time, on the LIBOR Interest Determination Date; or if such rate does not appear on the Reuters Screen	
 
1

 	LIBOR01 on any LIBOR Interest Determination Date, then the corresponding rate appearing on the Bloomberg L.P. page “BBAM” as of 11:00 a.m., London time, on the relevant LIBOR Interest Determination Date; or	
 
 	•	 	If no rate appears on the Reuters Screen LIBOR01 or the Bloomberg L.P. page “BBAM” on the LIBOR Interest Determination Date the rate will be determined on the basis of the rates at which deposits in U.S. Dollars are offered by four major banks in the London interbank market (the “ Reference Banks ”) at approximately 11:00 a.m., London time, on that LIBOR Interest Determination Date to prime banks in the London interbank market for the period of three months commencing on the applicable LIBO Rate Reset Date and in a principal amount that is representative for a single transaction in U.S. Dollars in that market at that time. The Calculation Agent, after consultation with the Issuer, will request the principal London office of each of the Reference Banks to provide a quotation for its rate. If at least two such quotations are provided, then the 3-month Dollar LIBO Rate for that LIBOR Interest Determination Date will be the arithmetic mean of the quotations (rounded, if necessary, to the nearest one-hundredth (0.01) of a percent). If fewer than two quotations are provided as requested, the rate for that LIBOR Interest Determination Date will be the arithmetic mean (rounded, if necessary, to the nearest one-hundredth (0.01) of a percent) of the rates quoted by major banks in New York City, selected by the Calculation Agent, after consultation with the Issuer, at approximately 11:00 a.m., New York City time on that LIBOR Interest Determination Date for loans in U.S. Dollars to leading European banks having a three-month maturity commencing on the applicable LIBO Rate Reset Date and in a principal amount that is representative for a single transaction in U.S. Dollars in that market at that time.	
If the rate cannot be determined in accordance with the foregoing provisions, the “3-month Dollar LIBO Rate” shall mean the 3-month Dollar LIBO Rate determined on the immediately preceding LIBOR Interest Determination Date.
The interest rate determined on a LIBOR Interest Determination Date will become effective on and as of the next LIBO Rate Reset Date. The initial LIBOR Interest Determination Date will be September 30, 2013 for the interest period commencing on October 2, 2013.
The interest rate payable on the Notes will not be higher than the maximum rate permitted by New York state law as that law may be modified by U.S. law of general application.
All payments made by the Issuer in respect of the Notes will be made free and clear of and without deduction or withholding for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless such withholding or deduction is required by law or by the interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
 
2

2.	Method of Payment	
By at least 10:00 a.m. (New York City time) on the Business Day prior to the date on which any principal of or interest on any Note is due and payable, the Issuer shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Issuer will pay interest (except Defaulted Interest) on the applicable Interest Payment Date, in accordance with the Business Day Convention, to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date, except as provided in  Section 2.13  of the Indenture with respect to Defaulted Interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer will pay principal and interest in U.S. Legal Tender.
Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by the DTC. The Issuer will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each registered Holder thereof as set forth in the Note Register; provided, however, that payments on the Notes may also be made, in the case of a Holder of at least U.S.$10,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 10 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
 
3.	Paying Agent and Registrar	
Initially, The Bank of New York Mellon, the Trustee under the Indenture, will act as Trustee, Paying Agent and Registrar. The Issuer may appoint and change any Paying Agent, Registrar or co-Registrar without notice to any Holder. The Issuer, any Note Guarantor or any of their respective Affiliates may act as Paying Agent, Registrar or co-Registrar.
 
4.	Indenture	
The Issuer issued the Notes under an Indenture, dated as of October 2, 2013 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Issuer, the Note Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general senior obligations, which are secured by a first priority security interest in the Collateral on an equal and ratable basis with the other Permitted Secured Obligations, subject to the Collateral release provisions set forth in the Intercreditor Agreement.
 
3

U.S.$500,000,000 in aggregate principal amount of Notes will be issued on the Issue Date. Subject to the conditions set forth in the Indenture and without the consent of the Holders, the Issuer may issue Additional Notes. All Notes will be treated as a single series of securities under the Indenture. The Indenture imposes certain limitations on, among other things, the ability of the Issuer and its Restricted Subsidiaries to: Incur Indebtedness, make Restricted Payments, incur Liens, designate Unrestricted Subsidiaries, make Asset Sales, enter into transactions with Affiliates, or consolidate or merge or transfer or convey all or substantially all of the Issuer’s assets.
To guarantee the due and punctual payment of the principal of (and premium, if any) and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Note Guarantors have unconditionally guaranteed, jointly and severally, such obligations pursuant to the terms of the Indenture. Each Note Guarantee will be subject to release as provided in the Indenture.
The obligations of each Note Guarantor in respect of its Note Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance, fraudulent transfer, or similar illegal transfer under federal or state law or the law of the jurisdiction or formation and incorporation of such Note Guarantors.
 
5.	Optional Redemption	
Except as stated below, the Issuer may not redeem the Notes.
On or after the Interest Payment Date immediately preceding the Maturity Date, the Issuer will have the right, at its option, to redeem all of the Notes, at any time prior to their maturity, at par (the “ Redemption Price ”), plus any accrued and unpaid interest on the principal amount of the Notes to the Redemption Date; provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from exercising such an option under the Facilities Agreement.
Optional Redemption for Changes in Withholding Taxes. If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article IV  shall be treated for this purpose as the date of such transaction) we would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding tax rate of 10% with respect to the Notes (see “ Additional
 
4

Amounts”), then, at our option, all, but not less than all, of the Notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at the Redemption Price, plus any accrued and unpaid interest on the principal amount of the Notes to the Redemption Date;  provided ,  however , that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which we would be obligated to pay these Additional Amounts if a payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect;  provided ,  further, however , that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to the publication of any notice of redemption pursuant to this provision, the Issuer will deliver to the Trustee:
 
 	•	 	an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	
 
 	•	 	an opinion of outside legal counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	
This notice, once delivered by the Issuer to the Trustee, will be irrevocable.
The issuer will pay the Redemption Price on the Redemption Date. On and after the Redemption Date, interest will cease to accrue on the Notes as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the Redemption Price pursuant to the Indenture.
 
6.	Mandatory Repurchase Provisions	
Change Of Control Offer. Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest through the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Issuer must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by applicable law.
 
5

Asset Sale Offer. The Indenture imposes certain limitations on the ability of the Issuer and its Restricted Subsidiaries to make Asset Sales. In the event the proceeds from a permitted Asset Sale exceed certain amounts and are not applied as specified in the Indenture, the Issuer will be required to make an Asset Sale Offer to purchase to the extent of such remaining proceeds each Holder’s Notes together with holders of certain other Indebtedness at 100% of the principal amount thereof, plus accrued interest (if any) to the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
 
7.	Denominations; Transfer; Exchange	
The Notes are in fully registered form without coupons, and only in denominations of principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar shall not be required to register the transfer or exchange of (x) any Note for a period beginning: (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.
 
8.	Persons Deemed Owners	
The registered holder of this Note may be treated as the owner of it for all purposes.
 
9.	Unclaimed Money	
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment.
 
10.	Discharge Prior to Redemption or Maturity	
Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
 
11.	Amendment, Waiver	
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended or supplemented without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount of
 
6

the then Outstanding Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Issuer and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with  Article IV  of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Issuer or the Note Guarantors, or to make any change that does not adversely affect the rights of any Holder, or to provide for the issuance of Additional Notes.
 
12.	Defaults and Remedies	
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be due and payable immediately. A Bankruptcy Event of Default will result in the Notes being due and payable immediately upon the occurrence of such Bankruptcy Event of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
 
13.	Trustee Dealings with the Issuer and the Note Guarantors	
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, any Note Guarantor or its Affiliates and may otherwise deal with the Issuer, any Note Guarantor or its Affiliates with the same rights it would have if it were not Trustee.
 
14.	No Recourse Against Others	
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or the Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each holder waives and releases all such liability.
 
15.	Authentication	
Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.
 
7

16.	Abbreviations	
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (= Uniform Gift to Minors Act).
 
17.	CUSIP Numbers	
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused CUSIP or other similar numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
18.	Governing Law	
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
 
19.	Currency of Account; Conversion of Currency.	
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and the Note Guarantors under or in connection with the Notes or the Indenture, including damages. The Issuer and the Note Guarantors will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
 
20.	Agent for Service; Submission to Jurisdiction; Waiver of Immunities.	
The Issuer and the Note Guarantors have agreed that any suit, action or proceeding against the Issuer or any Note Guarantor brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal court in the City of New York and County of New York and in the courts of their respective corporate domiciles, in respect of actions brought against them as defendants. The Issuer and the Note Guarantors (other than CEMEX Corp.) have irrevocably submitted to the jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Issuer and the Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as each of their authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. To the extent that any of the Issuer and the Note Guarantors (other than CEMEX Corp.) have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors (other than CEMEX Corp.) have irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
 
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The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya # 325
Colonia Valle del Campestre
Garza García, Nuevo León, México 66265
Tel: +5281-8888-8888
 
9

ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to

 	 	 	 	 	
 	 	(Print or type assignee’s name, address and zip code)	 	 	

 	 	(Insert assignee’s soc. sec. or tax I.D. No.)	 	 	
and irrevocably appoint                                          as agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

Date:	 	 	 	 	 	Your Signature:	 	 	

Signature Guarantee:	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	 	 	

Sign exactly as your name appears on the other side of this Note.	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:

Date of Exchange	  	Amount of decrease in
Principal Amount of this
Global Note	  	Amount of increase in
Principal Amount of this
Global Note	  	Principal Amount of this
Global Note following
such decrease or increase	  	Signature of authorized
signatory of Trustee or
Note Custodian	

 	  	 	  	 	  	 	  	 	
 
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 3.8 or Section 3.12 of the Indenture, check either box:

¨                	  	¨	
Section 3.8	  	Section 3.12	
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.12 of the Indenture, state the principal amount (which must be in minimum denominations of U.S.$200,000 and in an integral multiple of U.S.$1,000): U.S.$            

Date:	 	 	 	 	 	Your Signature	 	 	
 	 	 	 	 	 	(Sign exactly as your name appears on the other side of the Note)	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
12

EXHIBIT B
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S
[Date]

The Bank of New York Mellon	  	 	
101 Barclay Street – 4E	  	 	
New York, NY 10286	  	 	
Attention: International Corporate Trust	  	 	

Re:	  	Floating Rate Senior Secured Notes due 2018 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 2, 2013 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), as the case may be.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
 
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You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature]	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
B-2

EXHIBIT C
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144
[Date]

The Bank of New York Mellon	  	 	
101 Barclay Street – 4E	  	 	
New York, NY 10286	  	 	
Attention: International Corporate Trust	  	 	

Re:	  	Floating Rate Senior Secured Notes due 2018 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 2, 2013 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
C-1

EXHIBIT D
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A
[Date]

The Bank of New York Mellon	  	 	
101 Barclay Street – 4E	  	 	
New York, NY 10286	  	 	
Attention: International Corporate Trust	  	 	

Re:	  	Floating Rate Senior Secured Notes due 2018 (the “Notes”) of CEMEX, S.A.B. de C.V. (the “ Issuer ”)	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 2, 2013 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Note beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended, and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature]	
 
D-1

 	 	 	 	 	
Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS
The definition of “Consolidated Leverage Ratio” comes from the 2009 Financing Agreement, as in effect immediately prior to giving effect to the amendment and restatement thereof on September 17, 2012, and is to be used solely for purposes of calculating the Consolidated Leverage Ratio in the context of determining whether a Partial Covenant Suspension Event has occurred.
“2012 CB Amount” means an aggregate amount equal to the Relevant Existing Financial Indebtedness maturing on or prior to the 2012 CB Maturity Date.
“2012 CB Maturity Date” means the final maturity date of the Relevant Existing Financial Indebtedness maturing in September, 2012 (being 21 September, 2012).
“Acceptable Bank” means:
 
 	(a)	a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A- or higher by Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency;	
 
 	(b)	any other bank or financial institution in a jurisdiction in which a member of the Group conducts commercial operations where such member of the Group, in the ordinary course of trading, subscribes for certificates of deposit issued by such bank or financial institution; or	
 
 	(c)	any other bank or financial institution approved by the Administrative Agent.	
“Accession Letter” means a document substantially in the form set out in Schedule 4 (Form of Accession Letter ) of the 2009 Financing Agreement.
“Additional Guarantor” means a company that becomes an Additional Guarantor in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Additional Security Provider” means a company that becomes an Additional Security Provider in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Administrative Agent” means Citibank International PLC, as administrative agent of the Finance Parties (other than itself) under the 2009 Financing Agreement.
“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.
 
E-1

“Applicable GAAP” means:
 
 	(a)	in the case of the Issuer, Mexican FRS or, if adopted by the Issuer in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS;	
 
 	(b)	in the case of CEMEX España, Spanish GAAP or, if adopted by CEMEX España in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS; and	
 
 	(c)	in the case of any other Obligor, the generally accepted accounting principles applying to it in the country of its incorporation or in a jurisdiction agreed to by the Administrative Agent or, if adopted by the relevant Obligor, IFRS.	
“Authorised Signatory” means, in relation to any Obligor, any person who is duly authorised and in respect of whom the Administrative Agent has received a certificate signed by a director or another Authorised Signatory of such Obligor setting out the name and signature of such person and confirming such person’s authority to act.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ) between CEMEX CONCRETOS, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, Sociedad Nacional de Crédito, Institución de Banca de Desarrollo, as lender (“ Banobras ”), in an aggregate principal amount equal to Mex$5,000,000,000.00 (five billion pesos), dated April 22, 2009, which was formalized by means of public deeds number 116,380 and 116,381 dated April 22, 2009, granted before Mr. José Angel Villalobos Magaña, notary public number 9 for Mexico, Federal District, as such facility may be amended from time to time.
“Base Currency” means US dollars.
“Base Currency Amount” means on any date:
 
 	(a)	in relation to an amount or Exposure denominated in the Base Currency, that amount or the amount of that Exposure; and	
 
 	(b)	in relation to an amount or Exposure denominated in a currency other than the Base Currency, that amount or the amount of that Exposure converted into the Base Currency at:	
 
 	(i)	for the purposes of determining the Majority Participating Creditors, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date on which such determination is made (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Issuer and the Participating Creditors); and	
 
 	(ii)	for all other purposes, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date which is five Business Days before that date (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Issuer and the Participating Creditors).	
 
E-2

“Bilateral Bank Facilities” means the facilities described in Part IB of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Borrower” means an Original Borrower unless it has ceased to be a Borrower in accordance with Clause 28.2 ( Resignation of a Borrower ) of the 2009 Financing Agreement.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Madrid, New York, Amsterdam and Mexico City (in the case of Mexico City, if applicable, as specified by a governmental authority), and:
 
 	(a)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, a currency other than euro) the principal financial centre of the country of that currency; or	
 
 	(b)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, euro) any TARGET Day.	
“Business Plan” means the five year business plan of the Group delivered in conjunction with the 2009 Financing Agreement.
“Capital Expenditure” means any expenditure or obligation in respect of expenditure which, in accordance with Applicable GAAP of the Issuer, is treated as capital expenditure (and including the capital element of any expenditure or obligation incurred in connection with a Capital Lease) (and, solely for the purposes of paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement, the maximum amount of Capital Expenditure of the Group permitted in the Financial Year ending on or about 31 December 2009 will be increased by an amount not exceeding $50,000,000 in aggregate to the extent necessary to take into account currency fluctuations or additional costs and expenses contemplated by (or that have occurred since the date of) the Business Plan).
“Capital Lease” means, as to any person, the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of the Issuer under Applicable GAAP and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable GAAP of the Issuer.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designed) of capital stock of a corporation, any and all equivalent ownership interests in a person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
 
E-3

“Cash Equivalent Investments” means at any time:
 
 	(a)	certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;	
 
 	(b)	any investment in marketable debt obligations issued or expressly guaranteed by the government of Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group conducts commercial operations if that member of the Group makes investments in such debt obligations in the ordinary course of its trading) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;	
 
 	(c)	commercial paper not convertible into or exchangeable for any other security:	
 
 	(i)	for which a recognised trading market exists;	
 
 	(ii)	issued by an issuer incorporated in Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group makes investments in such debt obligations in the ordinary course of trading);	
 
 	(iii)	which matures within one year after the relevant date of calculation; and	
 
 	(iv)	which has a credit rating of either A-1 or higher by S&P or F 1 or higher by Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;	
 
 	(d)	sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);	
 
 	(e)	any investment in money market funds which (i) have a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch or P-1 or higher by Moody’s, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (f) and (g) below and (iii) can be turned into cash on not more than 30 days’ notice; or	
 
E-4

 	(f)	any deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco National de Obras y Servicios Publicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(g)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which any member of the Group conducts commercial operations and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquiring such investment;	
 
 	(h)	investments in mutual funds, managed by banks or financial institutions, with a local currency credit rating of at least MxAA by S&P or equivalent by any other reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican government, or issued by any agency or instrumentality thereof; and	
 
 	(i)	any other debt security, certificate of deposit, commercial paper, bill of exchange, investment in money market funds or material funds approved by the Majority Participating Creditors, in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).	
“CB Cash Replenishment Amount” means, for a particular Relevant Prepayment Period, the amount of cash in hand of the Issuer on a consolidated basis to be applied by the Issuer to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement at any time during that Relevant Prepayment Period  provided that  such amount, together with the CB Disposal Proceeds Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Disposal Proceeds Replenishment Amount” means for a particular Relevant Prepayment Period, the amount of any Disposal Proceeds received by any member of the Group during that Relevant Prepayment Period to be applied by the Issuer to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement  provided that  such amount, together with the CB Cash Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Reserve” means the reserve created by the Issuer or any of its Subsidiaries for the purposes of holding the proceeds of any Permitted Fundraising that, as set out in the relevant CB Reserve Certificate, are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement.
 
E-5

“CB Reserve Certificate” means a certificate signed by a Responsible Officer of the Issuer setting out, with respect to a Permitted Fundraising the net cash proceeds of which are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement:
 
 	(i)	the amount of proceeds from the relevant Permitted Fundraising that the Issuer wishes to be applied to the CB Reserve (such amount to not exceed the aggregate amount of the Relevant Existing Financial Indebtedness that is due to mature within the Relevant Prepayment Period to which it applies); and	
 
 	(ii)	specific details of the Relevant Existing Financial Indebtedness to which any amounts are designated by the Issuer to be applied including the total aggregate amount of such Relevant Existing Financial Indebtedness and the date on which such Relevant Existing Financial Indebtedness matures.	
“CB Reserve Shortfall” means at any time, for a particular Relevant Prepayment Period, an amount equal to the lower of:
 
 	(i)	the aggregate amount of (A) any voluntary prepayments made to Participating Creditors pursuant to Clause 12.2 ( Voluntary prepayment of Exposures ) of the 2009 Financing Agreement from proceeds standing to the credit of the CB Reserve in that Relevant Prepayment Period and (B) the 2012 CB Amount; and	
 
 	(ii)	the principal amount of any Relevant Existing Financial Indebtedness then outstanding in that Relevant Prepayment Period.	
“Change of Control” means that the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended) of 20 per cent. or more in voting power of the outstanding voting stock of the Issuer is acquired by any person,  provided that  the acquisition of beneficial ownership of capital stock of the Issuer by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Charged Property” means all of the assets of the Security Providers which from time to time are, or are expressed to be, the subject of the Transaction Security.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate ) of the 2009 Financing Agreement.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) EBITDA for the one (1) year period ending on such date to (b) Consolidated Interest Expense for the one (1) year period ending on such date.
 
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“Consolidated Debt” means, at any date, the sum (without duplication) of (a) the aggregate amount of all Debt of the Issuer and its Subsidiaries at such date, which shall include the amount of any recourse in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness,  plus  (b) to the extent not included in Debt, the aggregate net mark-to-market amount of all derivative financing in the form of equity swaps outstanding at such date (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents).
“Consolidated Funded Debt” means, for any period, Consolidated Debt less the sum (without duplication) of (i) all obligations of such person to pay the deferred purchase price of property or services, (ii) all obligations of such person as lessee under Capital Leases, and (iii) all obligations of such person with respect to product invoices incurred in connection with export financing.
“Consolidated Interest Expense” means, for any period, the sum of the (1) total gross cash and non cash interest expense of the Issuer and its consolidated Subsidiaries relating to Consolidated Funded Debt of such persons, (2) any amortization or accretion of debt discount or any interest paid on Consolidated Funded Debt of such person and its Subsidiaries in the form of additional Financial Indebtedness (but excluding any amortization of deferred financing and debt issuance costs), (3) the net costs under Treasury Transactions in respect of interest rates (but excluding amortization of fees), (4) any amounts paid in cash on preferred stock, and (5) any interest paid or accrued in respect of Consolidated Funded Debt without a maturity date, regardless of whether considered interest expense under Applicable GAAP of the Issuer. For purposes of calculating Consolidated Interest Expense for the Reference Period ending 30 June 2010, $131,406,696.17 shall be deducted, constituting the amount of interest paid in respect of perpetual debentures on 1 July 2009 for the period ending 30 June 2009.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Funded Debt on such date to (b) EBITDA for the one (1) year period ending on such date.
“Core Bank Facilities” means the Syndicated Bank Facilities, the Bilateral Bank Facilities and the Promissory Notes.
“Creditor’s Representative” means:
 
 	(a)	with respect to each of the Syndicated Bank Facilities, the person appointed as the agent of the creditors in relation to such Facility under the Existing Finance Documents relating to such Facility;	
 
 	(b)	with respect to each other Core Bank Facility, the Participating Creditor with an Exposure under that Facility; and	
 
 	(c)	with respect to each USPP Note, the Participating Creditor with an Exposure under that USPP Note.	
“Debt” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments, including the perpetual bonds, (iii) the aggregate net mark-to-market
 
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of Treasury Transactions (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents) of such person but excluding Treasury Transactions relating to the rate or price of energy or any commodity, (iv) all obligations of such person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of trading, (v) all obligations of such person as lessee under Capital Leases, (vi) all Debt of others secured by Security on any asset of such person, up to the value of such asset, (vii) all obligations of such person with respect to product invoices incurred in connection with export financing, (viii) all obligations of such person under repurchase agreements for the stock issued by such person or another person, (ix) all obligations of such person in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness and (x) all guarantees of such person in respect of any of the foregoing  provided, however , that for the purposes of calculating the Consolidated Funded Debt element of the Consolidated Leverage Ratio, Relevant Convertible/Exchangeable Obligations shall be excluded from each of the foregoing paragraphs (i) to (x) inclusive ( provided that , in the case of outstanding Financial Indebtedness under any Relevant Convertible/Exchangeable Obligations (1) only the principal amount thereof shall be excluded and (2) such exclusion shall apply only for so long as such amounts remain subordinated in accordance with the terms of that definition) and (b) amounts falling within paragraph (v) of the definition of Excluded Fundraising Proceeds, for the period in which they are held by the Issuer or any member of the Group pending application in accordance with the terms of the 2009 Financing Agreement, shall be deducted from the aggregate Debt calculation resulting from this definition. For the avoidance of doubt, all letters of credit, banker’s acceptances or similar credit transactions, including reimbursement obligations in respect thereof are not Debt until they are required to be funded.
“Debt Documents” means the Finance Documents, the “Refinancing Documents” (as defined in the Intercreditor Agreement) and the “Noteholder Documents” (as defined in the Intercreditor Agreement).
“Debt Reduction Satisfaction Date” means the first date following 30 September 2010 on which:
 
 	(a)	the Base Currency Amount of the Exposures of Participating Creditors under the Facilities (calculated as at the date that any reduction of Exposures occurs and in accordance with the 2009 Financing Agreement) has been reduced by an aggregate amount equal to at least U.S.$1,000,000,000 compared to the Exposures of Participating Creditors under the Facilities as at 30 September 2010; and	
 
 	(b)	the amount of Consolidated Funded Debt is at least U.S.$1,000,000,000 (or its equivalent in any other currency) lower than the level of Consolidated Funded Debt as at 30 September 2010 (for the avoidance of doubt, when used in this sub-paragraph, Consolidated Funded Debt shall not include any Relevant Convertible/Exchangeable Obligations),	
with notification of the occurrence of such date being provided by the Parent delivering a certificate to the Administrative Agent signed by an Authorised Signatory confirming that (a) and (b) above have been met.
 
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“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of (a) operating income ( utilidad de operación ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Issuer consistently applied for such period.
“Discontinued Operations” means operations that are accounted for as discontinued operations pursuant to Applicable GAAP of the Issuer for which the Disposal of such assets has not yet occurred.
“Disposal” means a sale, lease, license, transfer, loan or other disposal by a person of any asset (including shares in any Subsidiary or other company), undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).
“Disposal Proceeds” means:
 
 	(i)	the cash consideration received by any member of Group (including any amount received from a person who is not a member of the Group in repayment of intercompany debt save to the extent that the creditor in respect of the intercompany debt is obliged to repay that amount to the purchaser at or about completion of the Disposal) for any Disposal;	
 
 	(ii)	any proceeds of any Disposal received in the form of Marketable Securities that are required to be disposed of for cash (after deducting reasonable expenses incurred by the party disposing of those Marketable Securities to persons other than members of the Group) pursuant to the criteria set out at paragraph (h) of the definition of Permitted Disposal; and	
 
 	(iii)	any proceeds of any Disposal received in any other form to the extent disposed of or otherwise converted into cash within 90 days of receipt; and	
 
 	(iv)	any consideration falling within paragraphs (i) to (iii) above that is received by any member of the Group from the Disposal of assets of the Group in Venezuela prior to the date of the 2009 Financing Agreement,	
but excluding any Excluded Disposal Proceeds and, in every case, after deducting:
 
 	(1)	any reasonable expenses which are incurred by the disposing party of such assets with respect to that Disposal to persons who are not members of the Group;	
 
 	(2)	any Tax incurred and required to be paid by the disposing party in connection with that Disposal (as reasonably determined by the disposing party on the basis of rates existing at the time of the disposal and taking account of any available credit, deduction or allowance);	
 
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“EBITDA” means, for any period, the sum for the Issuer and its Subsidiaries, determined on a consolidated basis of (a) operating income ( utilidad de operacion ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Issuer, subject to the adjustments herein, consistently applied for such period and adjusted for Discontinued EBITDA as follows: if the amount of Discontinued EBITDA is a positive amount, then EBITDA shall increase by such amount, and if the amount of Discontinued EBITDA is a negative amount, then EBITDA shall decrease by the absolute value of such amount. For the purposes of calculating EBITDA for any applicable period pursuant to any determination of the Consolidated Leverage Ratio (but not the Consolidated Coverage Ratio): (A) (i) if at any time during such applicable period the Borrower or any of its Subsidiaries shall have made any Material Disposal, the EBITDA for such applicable period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposal for such applicable period (but when the Material Disposal is by way of lease, income received by the Issuer or any of its Subsidiaries under such lease shall be included in EBITDA) and (ii) if at any time during such applicable period the Issuer or any of its Subsidiaries shall have made any Material Acquisition, EBITDA for such applicable period shall be calculated after giving  pro forma  effect thereto as if such Material Acquisition had occurred on the first day of such applicable period. Additionally, if since the beginning of such applicable period any person that subsequently shall have become a Subsidiary or was merged or consolidated with the Issuer or any of its Subsidiaries as a result of a Material Acquisition occurring during such applicable period shall have made any Material Disposal or Material Acquisition of property that would have required an adjustment pursuant to clause (i) or (ii) above if made by the Issuer or any of its Subsidiaries during such applicable period, EBITDA for such period shall be calculated after giving  pro forma  effect thereto as if such Material Disposal or Material Acquisition had occurred on the first day of such applicable period; and (B) EBITDA will be recalculated by multiplying each month’s EBITDA by the Ending Exchange Rate and dividing the amount obtained thereto by the exchange rate used by the Issuer in preparation of its monthly financial statements in accordance with Applicable GAAP of the Issuer to convert $ into Mexican pesos (such recalculated EBITDA being the “ Recalculated EBITDA ”).
“Ending Exchange Rate” means the exchange rate at the end of a Reference Period for converting $ into Mexican pesos as used by the Issuer and its auditors in preparation of the Issuer’s financial statements in accordance with Applicable GAAP of the Issuer.
“Excluded Disposal Proceeds” means any CB Disposal Proceeds Replenishment Amount and the proceeds of any Disposal of:
 
 	(i)	inventory or trade receivables in the ordinary course of trading of the disposing entity;	
 
 	(ii)	assets pursuant to a Permitted Securitisation programme existing as at the date of the 2009 Financing Agreement (or any rollover or extension of such a Permitted Securitisation);	
 
 	(iii)	any asset from any member of the Group to another member of the Group on arm’s length terms and for fair market or book value;	
 
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 	(iv)	any assets the consideration for which (when aggregated with the consideration for any related Disposals) is less than $5,000,000 (or its equivalent in any other currency);	
 
 	(v)	assets leased or licensed to any director, officer or employee of any member of the Group in connection with and as part of the ordinary course of the service or employment arrangements of the Group;	
 
 	(vi)	Marketable Securities (other than Marketable Securities received as consideration for a Disposal as envisaged in paragraphs (ii) and (iii) of the definition of Disposal Proceeds); and	
 
 	(vii)	any cash or other assets arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to any settlement, disposal, transfer, assignment, closeout or other termination of such Permitted Put/Call Transaction.	
“Excluded Fundraising Proceeds” means the proceeds of:
 
 	(i)	a Permitted Fundraising falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraph (a) of the definition thereof (or paragraph (b) of the definition thereof, to the extent that it relates to Short Term Certificados Bursatiles) (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (i), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group);	
 
 	(ii)	a Permitted Fundraising falling within paragraph (f)(ii) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraphs (a) to (e) of the definition thereof (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (ii), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group).	
 
 	(iii)	any transaction between members of the Group;	
 
 	(iv)	Permitted Securitisations;	
 
 	(v)	prior to the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraph (c) of that definition or, after the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraphs (a), (b) or (c) of that definition  provided that  any Relevant Existing Financial Indebtedness due to mature within the particular Relevant Prepayment	
 
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 	Period and the proceeds of such Permitted Fundraising are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement;	
 
 	(vi)	subject to Clause 13.4(ii) of the 2009 Financing Agreement, a Permitted Fundraising falling within paragraph (c) of that definition and applied or to be applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement; and	
 
 	(vii)	a Permitted Fundraising arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to, any settlement, disposal, transfer, assignment, close-out or other termination of such Permitted Put/Call Transaction.	
“Executive Compensation Plan” means any stock option plan, restricted stock plan or retirement plan which the Issuer or any other Obligor customarily provides to its employees, consultants and directors.
“Existing Facility Agreements” means the facility agreements and other documents described in Part II, Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement.
“Existing Finance Documents” means each Existing Facility Agreement, the USPP Note Guarantee, the “Finance Documents” as defined in any Existing Facility Agreement and the “Facility Transaction Documents” as defined in Exhibit H to the NY Law Amendment Agreement (but in each case excluding any document that is designated a “ Finance Document ” or “ Facility Transaction Document ” by an Obligor and the relevant Creditor’s Representative under an Existing Facility Agreement after the date of the 2009 Financing Agreement).
“Existing Financial Indebtedness” means:
 
 	(a)	the Financial Indebtedness described in Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement  provided that  the principal amount of such Financial Indebtedness does not increase above the principal amount outstanding as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) less the amount of any repayments and prepayments made in respect of such Financial Indebtedness;	
 
 	(b)	the Financial Indebtedness described in Part II of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles, working capital or other operating facilities that replace or refinance such Financial Indebtedness;	
 
 	(c)	the Financial Indebtedness described in Part III of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Capital Leases that replace (and relate to the same or similar assets as) such Financial Indebtedness;	
 
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 	(d)	the Financial Indebtedness described in Part IV of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Inventory Financing or factoring arrangements that replace (and relate to the same or similar assets as) such Financial Indebtedness; and	
 
 	(e)	the Banobras Facility and any other facility that replaces or refinances such facility provided that any such replacement or refinancing facility is (i) with a development bank controlled by the Mexican Government or (ii) with any other financial institution to finance public works or infrastructure assets,	
provided that (i) the aggregate principal amount of such Existing Financial Indebtedness falling under each of paragraphs (b) to (e) of this definition shall not be increased above the principal amount of Financial Indebtedness committed or capable of being drawn down under the Financial Indebtedness referred to in that paragraph of this definition as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) and (ii), for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) above need not satisfy the requirements of paragraph (f) of the definition of Permitted Financial Indebtedness.
“Exposure” means, at any time:
 
 	(a)	in relation to a Participating Creditor and a Syndicated Bank Facility or Bilateral Bank Facility, that Participating Creditor’s participation in Loans made under the relevant Facility at that time;	
 
 	(b)	in relation to Participating Creditor and a Promissory Note, the principal amount owed to that Participating Creditor under that Promissory Note at that time; and	
 
 	(c)	in relation to a Participating Creditor and a USPP Note, the principal amount owed to that Participating Creditor under that USPP Note at that time.	
“Facility” means a Core Bank Facility and each USPP Note.
“Fee Letter” means any letter or agreement between the Administrative Agent or Security Agent and the Issuer setting out (i) the upfront fee and (ii) the level of fees payable in respect of the services and obligations performed by those agents under the relevant New Finance Documents.
“Finance Document” means each New Finance Document and each Existing Finance Document.
 
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“Finance Party” means the Administrative Agent, the Security Agent, each Creditor’s Representative or a Participating Creditor.
“Financial Indebtedness” means any indebtedness for or in respect of:
 
 	(a)	moneys borrowed and debit balances at banks or other financial institutions;	
 
 	(b)	any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);	
 
 	(c)	any amount raised pursuant to a note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (including, without limitation, any perpetual bonds);	
 
 	(d)	the amount of any liability in respect of any lease or hire purchase contract which would (in accordance with Applicable GAAP of the Issuer) be treated as a finance or capital lease;	
 
 	(e)	receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under Applicable GAAP of the Issuer);	
 
 	(f)	any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the mark-to-market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);	
 
 	(g)	any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;	
 
 	(h)	any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under Applicable GAAP of the Issuer;	
 
 	(i)	any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply;	
 
 	(j)	any arrangement pursuant to which an asset sold or otherwise disposed of by that person may be re-acquired by a member of the Group (whether following the exercise of an option or otherwise) and any Inventory Financing;	
 
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 	(k)	any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under Applicable GAAP of the Issuer; and	
 
 	(l)	the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (k) above.	
“Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
“Financial Year” means the annual accounting period of the Issuer ending on or about 31 December in each year.
“Fitch” means Fitch Ratings Limited or any successor thereto from time to time.
“Group” means the Issuer and each of its Subsidiaries for the time being.
“Guarantors” means the Original Guarantors and any Additional Guarantor other than any Original Guarantor or Additional Guarantor which has ceased to be a Guarantor pursuant to Clause 28.4 ( Resignation of Guarantor)  of the 2009 Financing Agreement and has not subsequently become an Additional Guarantor pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement and “ Guarantor ” means any of them.
“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“Intellectual Property” means:
 
 	(a)	any patents, trademarks, service marks, designs, business names, copyrights, design rights, data-base rights, inventions, knowhow and other intellectual property rights and interests, whether registered or unregistered; and	
 
 	(b)	the benefit of all applications and rights to use such assets of each member of the Group.	
“Intercreditor Agreement” means the intercreditor agreement dated on or about the date of the 2009 Financing Agreement and made between, among others, the Issuer, Wilmington Trust (London) Limited as Security Agent, Citibank International PLC as Administrative Agent, the Participating Creditors and any other creditors of the Group that may accede to it from time to time in accordance with its terms, as such agreement may be amended from time to time.
“Inventory Financing” means a financing arrangement pursuant to which a member of the Group sells inventory to a bank or other institution (or a special purpose vehicle or partnership
 
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incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
“Joint Venture Investment” has the meaning given to such term in sub-paragraph (b) (ii) of the definition of Permitted Joint Venture.
“Loan” means:
 
 	(a)	in relation to a Syndicated Bank Facility or Bilateral Bank Facility, a loan made or to be made under such Facility or the principal amount outstanding for the time being of that loan; and	
 
 	(b)	in relation to a Promissory Note, the Exposure of the Participating Creditors for the time being under that Promissory Note.	
“Majority Participating Creditors” means, at any time, a Participating Creditor or Participating Creditors the Base Currency Amount of whose Exposures under the Facilities at that time aggregate 66.67 per cent. or more of the Base Currency Amount of all the Exposures of the Participating Creditors under all of the Facilities at that time.
“Marketable Securities” means securities (whether equity, debt or other securities) which are listed on a stock exchange or for which a trading market exists (whether on market or over the counter) but excluding: (A) shares in any member of the Group, and (B) any shares in Axtel, S.A.B. de C.V.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit, division or line of business or (b) acquisition of or other investment in the Capital Stock of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Material Disposal” means any Disposal of property or series of related Disposals of property that yields gross proceeds to the Issuer or any of its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Mexican FRS” means Mexican Financial Reporting Standards (Normas de Información Financiera) as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 (Financial Statements).
“Mexican pesos,” “Mex$,” “MXN” and “pesos” means the lawful currency of Mexico.
“Mexico” means the United Mexican States.
 
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“Moody’s” means Moody’s Investor Services Limited or any successor to its ratings business.
“NAFTA” means the North American Free Trade Agreement.
“New Finance Document” means the 2009 Financing Agreement, the NY Law Amendment Agreement, the Intercreditor Agreement, each Transaction Security Document, any Accession Letter, any Fee Letter, any Resignation Letter and any other document designated as a “ New Finance Document ” by the Administrative Agent and the Issuer.
“New Equity Securities” means
 
 	(i)	The U.S.$977.5 million aggregate principal amount of 3.25% convertible subordinated notes due 2016, including U.S.$177.5 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2016; and	
 
 	(ii)	U.S.$690 million aggregate principal amount of 3.75% convertible subordinated notes due 2018, including U.S.$90 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2018.	
in each case, issued on 15 March 2011 by the Issuer.
“NY Law Amendment Agreement” means the omnibus amendment agreement dated on or about the date of the 2009 Financing Agreement between, among others, the Issuer and the Participating Creditors with Exposures under those Existing Facility Agreements (other than the USPP Note Agreement) that are governed by the laws of the State of New York, as such agreement may be amended from time to time.
“Obligors” means the Borrowers, the Guarantors and the Security Providers and “Obligor” means any of them.
“Original Borrowers” means, together with the Issuer, the Subsidiaries of the Issuer listed in Part I of Schedule 1 ( The Original Parties ) of the 2009 Financing Agreement as borrowers or issuers.
“Original Financial Statements” means (a) in relation to the Issuer, its audited unconsolidated and consolidated financial statements for its Financial Year ended 31 December 2008 accompanied by an audit opinion of KPMG Cardenas Dosal, S.C.; (b) in relation to CEMEX España, its audited consolidated financial statements for its financial year ended 31 December 2008; and (c) in relation to any other borrower or guarantor under the 2009 Financing Agreement, its most recent annual financial statements (audited, if available).
“Original Guarantors” means the Subsidiaries of the Issuer listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as guarantors, together with the Issuer.
 
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“Original Participating Creditors” means the financial institutions and noteholders listed in Part II of Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement as creditors.
“Original Security Providers” means the Subsidiaries of the Issuer listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as security providers.
“Participating Creditor” means:
 
 	(a)	any Original Participating Creditor; and	
 
 	(b)	any person which has become a Party in accordance with Clause 27 (Changes to the Participating Creditors ), of the 2009 Financing Agreement,	
which in each case has not ceased to be a Party in accordance with the terms of the 2009 Financing Agreement.
“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Party” means a party to the 2009 Financing Agreement.
“Permitted Acquisition” means:
 
 	(a)	an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;	
 
 	(b)	an acquisition of shares or securities pursuant to a Permitted Share Issue;	
 
 	(c)	an acquisition of cash or securities which are Cash Equivalent Investments;	
 
 	(d)	an acquisition to which a member of the Group is contractually committed as at the date of the 2009 Financing Agreement, with the material terms of those acquisitions requiring consideration payable in excess of $10,000,000 described in the list delivered to the Administrative Agent under paragraph 4(f) of Part I (Initial Conditions Precedent) of Schedule 2 of the 2009 Financing Agreement ( provided that there has been or is no material change to the terms of such acquisition subsequent to the date of the 2009 Financing Agreement);	
 
 	(e)	the incorporation of a company which on incorporation becomes a member of the Group or which is a special purpose vehicle, whether a member of the Group or not;	
 
 	(f)	an acquisition that constitutes a Permitted Joint Venture;	
 
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 	(g)	an acquisition of assets and, if applicable, cash, in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash element of any such acquisition must not be more than 20 per cent. of the aggregate consideration for the acquisition; and (ii) the maximum aggregate market value of the assets acquired pursuant to all such transactions must not be more than $100,000,000 (or its equivalent in any other currency) in any Financial Year;	
 
 	(h)	any acquisition of shares of the Issuer pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(i)	any other acquisition consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors;	
 
 	(j)	an acquisition of shares in the Issuer to the extent that a member of the Group has an obligation to deliver such shares to any holder(s) of convertible securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible securities; and	
 
 	(k)	any other acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them)  provided that  the aggregate amount of the consideration for such acquisitions (when aggregated with the aggregate amount of Joint Venture Investment falling within paragraph (b)(iii)(1) of the definition of Permitted Joint Venture in that Financial Year) does not exceed $100,000,000 (or its equivalent in any other currencies) in any Financial Year.	
“Permitted Disposal” means any sale, lease, licence, transfer or other disposal which, except in the case of Disposals as between members of the Group, is on arm’s length terms:
 
 	(a)	of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;	
 
 	(b)	of any asset by a member of the Group (the “Disposing Company”) to another member of the Group (the “ Acquiring Company ”), but if:	
 
 	(i)	the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;	
 
 	(ii)	the Disposing Company had given Transaction Security over the asset, the Acquiring Company must give equivalent Transaction Security over that asset; and	
 
 	(iii)	the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company,	
 
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provided that the conditions set out in paragraphs (i), (ii) and (iii) above shall only apply if the applicable assets are shares or if all or substantially all of the assets of the Disposing Company are being disposed of;
 
 	(c)	of obsolete or redundant vehicles, machinery, parts and equipment in the ordinary course of trading;	
 
 	(d)	of cash or Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;	
 
 	(e)	constituted by a licence of Intellectual Property in the ordinary course of trading;	
 
 	(f)	to a Joint Venture, to the extent permitted by Clause 24.17 (Joint ventures) of the 2009 Financing Agreement;	
 
 	(g)	arising as a result of any Permitted Security;	
 
 	(h)	of any shares in a member of the Group (provided that all such shares in that entity owned by a member of the Group are the subject of the Disposal) or of any other asset, in each case on arm’s length terms and for full market value where:	
 
 	(i)	no less than 85 per cent. of the consideration for the Disposal is payable to the Group in cash or Marketable Securities paid or received by a member of the Group at completion of the Disposal ( provided that  where a portion of that 85 per cent. is comprised of Marketable Securities, those Marketable Securities must be disposed of for cash to a person that is not a member of the Group within 90 days of completion);	
 
 	(ii)	if the aggregate consideration for the Disposal (when aggregated with the consideration for any related Disposals) is equal to 5 per cent. or more of the value of consolidated assets of the Group, the Issuer has delivered to the Administrative Agent a certificate signed by an Authorised Signatory confirming that, on a  pro forma  basis, assuming that the Disposal had been completed and the proceeds had been applied in accordance with Clause 13 ( Mandatory Prepayment ) of the 2009 Financing Agreement immediately prior to the first day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement, the Issuer would have been in compliance with the financial covenants in paragraphs (a) and (b) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement as at the last day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement; and	
 
 	(iii)	the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
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 	(i)	of any asset compulsorily acquired by a governmental authority provided that the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(j)	of any receivables disposed of pursuant to a factoring or similar receivables financing arrangement that is otherwise permitted under the 2009 Financing Agreement (including, for the avoidance of doubt, the Banobras Facility);	
 
 	(k)	of any inventory disposed of pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(l)	of any plant or equipment disposed of pursuant to a sale and lease-back arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(m)	of any asset to which a member of the Group was contractually committed as at the date of the 2009 Financing Agreement, with all material terms of those disposals which relate to the disposal of assets with a value of at least $10,000,000 being described in Schedule 14  (Disposals)  of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such Disposal subsequent to the date of the 2009 Financing Agreement);	
 
 	(n)	of receivables disposed of pursuant to a Permitted Securitisation;	
 
 	(o)	of land or buildings arising as a result of lease or licence in the ordinary course of its trading;	
 
 	(p)	of any shares of the Issuer pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(q)	of shares, common equity securities in the Issuer or reference property in connection with the same to the extent that a member of the Group has an obligation to deliver such shares, common equity securities or reference property to any holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities or to any counterparty pursuant to the terms of any Permitted Put/Call Transaction;	
 
 	(r)	of assets and, if applicable, cash in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash	
 
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 	element of any such Disposal must not be more than 20 per cent. of the aggregate consideration for the Disposal; and (ii) the maximum aggregate market value of all assets disposed of in such transactions must not be more than $100,000,000 (or its equivalent in any other currencies) in any Financial Year; or	
 
 	(s)	otherwise approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors.	
“Permitted Financial Indebtedness” means Financial Indebtedness:
 
 	(a)	incurred or arising under the Finance Documents;	
 
 	(b)	that is Existing Financial Indebtedness;	
 
 	(c)	owed to a member of the Group;	
 
 	(d)	that constitutes a Permitted Securitisation;	
 
 	(e)	arising under Capital Leases, factoring arrangements, Inventory Financing arrangements or export credit facilities for the purchase of equipment ( provided that  any Security granted in relation to any such facility relates solely to equipment, the purchase of which was financed under such Facility) or pursuant to sale and lease-back transactions  provided that  the maximum aggregate Financial Indebtedness of members of the Group under such transactions (excluding any Existing Financial Indebtedness) does not exceed $350,000,000 at any time;	
 
 	(f)	arising:	
 
 	(i)	pursuant to an issuance of bonds, notes or other debt securities, or of convertible or exchangeable securities by:	
 
 	(A)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that issued the relevant Existing Financial Indebtedness that is being refinanced or replaced (whether acting as co-issuers or otherwise but, for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued so as to be applied in repayment or prepayment of the Exposures of the	
 
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 	Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as co-issuers or otherwise, (and, for the avoidance of doubt, such securities may be issued with an original issue discount) on the capital markets in each case subscribed or paid for in full in cash on issue (unless such securities are exchanged on issue for other securities that constitute Existing Financial Indebtedness falling within paragraph (a) of the definition thereof on issue)  provided that (other than any conversion into common equity securities of the Issuer) no principal repayments are scheduled (and no call options can be exercised) in respect thereof until after the Termination Date;	
 
 	(ii)	under a loan facility in respect of which the only borrowers are:	
 
 	(A)	in the case of loan facilities entered into to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that borrowed the relevant Existing Financial Indebtedness that is being refinanced or replaced, (whether acting as joint or multiple borrowers but for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of loan facilities entered into so as to refinance or replace the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as joint or multiple borrowers,	
 
 	    	provided that no principal repayments are scheduled (and no mandatory prepayment obligations arise save as a result of unlawfulness affecting a creditor in respect of such loan facility) in respect thereof until after the Termination Date,	
and further provided that (1) the terms applicable to such issuance under paragraph (f)(i) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) taken as a whole are no more restrictive or onerous than the terms applicable to the Facilities, and the terms applicable to such incurrence under paragraph (f)(ii) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) are no more restrictive or onerous than the terms applicable to the Facilities; (2) the proceeds of such issuance or incurrence are applied (to the
 
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extent required) in accordance with Clause 13 (Mandatory prepayment) of the 2009 Financing Agreement; (3) if proceeds of such issuance or incurrence are, to the extent required under the 2009 Financing Agreement, being used to replace or refinance (x) Financial Indebtedness which shares in the Transaction Security or (y) the CEMEX España Euro Notes, such Financial Indebtedness issued or incurred shall be entitled to share in the Transaction Security in accordance with (and on the terms of) the Intercreditor Agreement, provided that  in the case of Financial Indebtedness issued or incurred to replace or refinance the CEMEX España Euro Notes, such Financial Indebtedness shall only be entitled to share in the Transaction Security if, prior to the first replacement or refinancing of the CEMEX España Euro Notes, the Debt Reduction Satisfaction Date has occurred; and (4) for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) of the definition of Existing Financial Indebtedness need not satisfy the requirements of this paragraph (f);
 
 	(g)	that constitutes a Permitted Liquidity Facility;	
 
 	(h)	that becomes Financial Indebtedness solely as a result of any change in Applicable GAAP of the Issuer after the date of the 2009 Financing Agreement and that existed prior to the date of such change in Applicable GAAP of the Issuer (or that replaces, and is on substantially the same terms as, such Financial Indebtedness);	
 
 	(i)	of any person acquired by a member of the Group pursuant to an acquisition falling within paragraphs (d) or (f) of the definition of Permitted Acquisition  provided that : (i) such Financial Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the acquisition; and (ii) the aggregate amount of any such Financial Indebtedness of members of the Group does not exceed $100,000,000 at any time;	
 
 	(j)	under Treasury Transactions entered into in accordance with Clause 24.26 (Treasury Transactions) of the 2009 Financing Agreement;	
 
 	(k)	incurred pursuant to or in connection with any cash pooling or other cash management agreements in place with a bank or financial institution, but only to the extent of offsetting credit balances of the Issuer or its Subsidiaries pursuant to such cash pooling or other cash management arrangement;	
 
 	(l)	constituting Financial Indebtedness for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of trading;	
 
 	(m)	that constitutes a Permitted Joint Venture;	
 
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 	(n)	approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors; and	
 
 	(o)	that, when aggregated with the principal amount of any other Financial Indebtedness not falling within paragraphs (a) to (n) above, does not exceed $200,000,000 (or its equivalent in other currencies) in aggregate at any time.	
“Permitted Fundraising” means:
 
 	(a)	any issuance of equity securities by the Issuer paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and not redeemable on or prior to the Termination Date and where such issue does not lead to a Change of Control;	
 
 	(b)	any issuance of equity-linked securities issued by any member of the Group that are linked solely to, and result only in the issuance of, equity securities of the Issuer otherwise entitled to be issued under this definition (and that do not, for the avoidance of doubt, result in the issuance of any equity securities by such member of the Group) and that are paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and where such issue does not lead to a Change of Control ( provided that  such securities do not provide for the payment of interest in cash and are not redeemable on or prior to the Termination Date); and	
 
 	(c)	any incurrence of Financial Indebtedness falling within paragraph (f) of the definition of Permitted Financial Indebtedness.	
“Permitted Fundraising Proceeds” means the cash proceeds received by any member of the Group from a Permitted Fundraising other than Excluded Fundraising Proceeds after deducting:
 
 	(i)	any reasonable expenses which are incurred by the relevant member(s) of the Group with respect to that Permitted Fundraising owing to persons who are not members of the Group; and	
 
 	(ii)	any Tax incurred and required to be paid by the relevant member(s) of the Group with respect to that Permitted Fundraising (as reasonably determined by the relevant member(s) of the Group on the basis of rates existing at the time and taking account of any available credit, deduction or allowance).	
“Permitted Joint Venture” means any investment in any Joint Venture where:
 
 	(a)	such investment exists or a member of the Group is contractually committed to such investment at the date of the 2009 Financing Agreement and, if the value of the Group’s investment in such Joint Venture is $50,000,000 or greater (as shown in the Original Financial Statements of the Issuer) is detailed in Schedule 12 (Permitted Joint Ventures) of the 2009 Financing Agreement; or	
 
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 	(b)	such investment is made after the date of the 2009 Financing Agreement and:	
 
 	(i)	either the investment has been consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors or the Joint Venture is engaged in a business substantially the same as that carried on by the Group; and	
 
 	(ii)	in any Financial Year of the Issuer, the aggregate of:	
 
 	(1)	all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;	
 
 	(2)	the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and	
 
 	(3)	the market value of any assets transferred by any member of the Group to any such Joint Venture,	
 
 	    	minus	
 
 	(4)	from and including 1 January 2010, an amount up to, but not exceeding, $100,000,000 (or its equivalent in other currencies) in any Financial Year that represents all cash amounts received by any member of the Group (i) relating to dividends, repayment of loans or distributions of any other nature in respect of any such Joint Ventures in that Financial Year and (ii) as a result of or in relation to any disposals of shares, interests or participations, divestments, capital reductions or any similar decreases of interest in any such Joint Ventures in that Financial Year, does not exceed $100,000,000 (or its equivalent in other currencies) or such greater amount as the Administrative Agent (acting on the instructions of the Majority Participating Creditors) may agree (such amount being the “Joint Venture Investment”); and	
 
 	(iii)	the Issuer has (by written notice to the Administrative Agent prior to the end of the Financial Year in which the investment is made) designated the Joint Venture Investment as counting against:	
 
 	(1)	paragraph (k) of the definition of Permitted Acquisition; or	
 
 	(2)	the maximum amount of Capital Expenditure permitted in that Financial Year under paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement.	
 
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“Permitted Liquidity Facilities” means a loan facility or facilities made available to one or more members of the Group by one or more Participating Creditors (or their respective Affiliates)  provided that  the aggregate principal amount of utilised and unutilised commitments under such facilities must not exceed $1,000,000,000 (or its equivalent in any other currency) at any time.
“Permitted Put/Call Transaction” means any call option, call spread, capped call transaction, put option, put spread, capped put transaction or any combination of the foregoing and/or any other Treasury Transaction or transactions having a similar effect to any of the foregoing, in each case entered into, sold or purchased not for speculative purposes but for the purposes of managing specific risks or exposures associated with any issuance of Relevant Convertible Securities/Exchangeable Obligations.
“Permitted Securitisations” means a transaction or series of related transactions providing for the securitisation of receivables and related assets by the Issuer or its Subsidiaries, including a sale at a discount,  provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not a member of the Group in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organised in Mexico, a true sale), and not merely a pledge, under the laws and regulations of the jurisdiction in which such originator is organised; and (ii) except for customary representations, warranties, covenants and indemnities, such sale, transfer or other securitisation is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables.
“Permitted Security” means:
 
 	(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 Applicable GAAP of the Issuer shall have been made;	
 
 	(B)	Security granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements in place with a bank or financial institution falling within paragraph (k) of the definition of Permitted Financial Indebtedness);	
 
 	(C)	statutory liens of landlords and liens of carriers, warehousemen, mechanics and materialment incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or other appropriate provision, if any, as shall be required by Applicable GAAP of the Issuer shall have been made;	
 
 	(D)	liens incurred or deposits made in the ordinary course of business in connection with (1) workers’ compensation, unemployment insurance and other types of social security, or (2) other insurance maintained by the Group in accordance with Clause 24.9 ( Insurance ) of the 2009 Financing Agreement;	
 
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 	(E)	any attachment or judgment lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(F)	Security and Quasi-Security existing on the date of the 2009 Financing Agreement as described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement (or any replacement of Security or Quasi-Security in accordance with paragraph 3 of Schedule 15 ( Hedging Parameters ) of the 2009 Financing Agreement or any equivalent Security or Quasi-Security for Existing Financial Indebtedness that is a refinancing or replacement of Existing Financial Indebtedness)  provided that  the principal amount secured thereby is not increased (save that principal amounts secured by Security or Quasi-Security in respect of:	
 
 	(1)	Treasury Transactions where there are fluctuations in the mark-to-market exposures of those Treasury Transactions;	
 
 	(2)	Existing Financial Indebtedness under paragraph (a) of the definition where principal may increase by virtue of capitalisation of interest; and,	
 
 	(3)	the Banobras Facility, where further drawings may be made provided that the maximum amount outstanding under such facility does not exceed Mex$5,000,000,000 at any time,	
may be increased by the amount of such fluctuations or capitalisations, as the case may be);
 
 	(G)	any Security or Quasi-Security permitted by the Administrative Agent, acting on the instructions of the Majority Participating Creditors;	
 
 	(H)	any Security created or deemed created pursuant to a Permitted Securitisation;	
 
 	(I)	any Security granted by any member of the Group to secure Financial Indebtedness under a Permitted Liquidity Facility  provided that : (1) such Security is not granted in respect of assets that are the subject of the Transaction Security; and (2) the maximum aggregate amount of the Financial Indebtedness secured by such Security does not exceed $500,000,000 at any time;	
 
 	(J)	any Security granted by the Issuer or any member of the Group incorporated in Mexico in favour of a Mexican development bank (sociedad  nacional de	
 
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 	crédito) controlled by the government of Mexico (including Banco Nacional de Comercio Exterior, S.N.C., and Banco Nacional de Obras y Servicios Publicos, S.N.C.) securing indebtedness of the members of the Group in an aggregate additional amount of such indebtedness not exceeding $250,000,000 (or its equivalent in any other currency);	
 
 	(K)	any Security or Quasi-Security granted in connection with any Treasury Transaction, excluding any Treasury Transaction described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement, that constitutes Permitted Financial Indebtedness  provided that  the aggregate value of the assets that are the subject of such Security or Quasi-Security does not exceed $200,000,000 (or its equivalent in other currencies) at any time;	
 
 	(L)	Security or Quasi-Security granted or arising over receivables, inventory, plant or equipment that are the subject of an arrangement falling within paragraph (e) of the definition of Permitted Financial Indebtedness;	
 
 	(M)	the Transaction Security including, for the avoidance of doubt, any sharing in the Transaction Security referred to in paragraph (f) of the definition of Permitted Financial Indebtedness;	
 
 	(N)	any Quasi-Security that is created or deemed created on shares of the Issuer under paragraph (q) of the definition of Permitted Disposals by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Quasi-Security is customary for such transaction;	
 
 	(O)	in addition to the Security and Quasi-Security permitted by the foregoing paragraphs (A) to (N), Security or Quasi-Security securing indebtedness of the Issuer and its Subsidiaries (taken as a whole) not in excess of $500,000,000.	
“Permitted Share Issue” means:
 
 	(a)	a Permitted Fundraising falling within paragraphs (a) or (b) of the definition thereof;	
 
 	(b)	an issue of shares by a member of the Group which is a Subsidiary of the Issuer to another member of the Group or the Issuer (and, where the member of the Group has a minority shareholder, to that minority shareholder on a pro rata basis) where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms;	
 
 	(c)	an issue of shares by the Issuer to comply with an obligation in respect of any Executive Compensation Plan; or	
 
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 	(d)	an issue of common equity securities of the Issuer either (i) by the Issuer or (ii) to any member of the Group where the Issuer or that member of the Group has an obligation to deliver such shares to a counterparty pursuant to the terms of a Permitted Put/Call Transaction or an obligation to deliver such shares to the holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities.	
“Promissory Notes” means the promissory notes described in Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.
“Quasi Security” means an arrangement or transaction in which the Issuer or any Subsidiary:
 
 	(i)	sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;	
 
 	(ii)	sells, transfers or otherwise disposes of any of its receivables on recourse terms;	
 
 	(iii)	enters into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or	
 
 	(iv)	enters into any other preferential arrangement having a similar effect,	
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Properties.
“Reference Period” means a period of four consecutive Financial Quarters.
“Relevant Convertible/Exchangeable Obligations” means: (a) any Financial Indebtedness incurred by any person the terms of which provide that satisfaction of the principal amount owing under such Financial Indebtedness (whether on or prior to its maturity and whether as a result of bankruptcy, liquidation or other default by such person or otherwise) shall occur solely by delivery of shares or common equity securities in the Issuer; and (b) any Financial Indebtedness under any Subordinated Optional Convertible Securities.
 
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“Relevant Existing Financial Indebtedness” means any Existing Financial Indebtedness set out in:
 
 	(i)	paragraph (a) of the definition of Existing Financial Indebtedness to the extent that it relates to Part I.C ( Mexican Public Debt Instruments ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement; and/or	
 
 	(ii)	paragraph (b) of the definition of Existing Financial Indebtedness to the extent it relates to Part II.A ( Short Term Certificados Bursátiles ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles that replace or refinance such Existing Financial Indebtedness.	
“Relevant Prepayment Period” means the period commencing on the date of receipt of the proceeds of a Permitted Fundraising by a member of the Group and ending on the later of:
 
 	(a)	the date falling 364 days thereafter; and	
 
 	(b)	the 2012 CB Maturity Date.	
“Resignation Letter” means a document substantially in the form set out in Part I of Schedule 11 (Form of Resignation Letter ) of the 2009 Financing Agreement.
“Responsible Officer” means the Chief Financial Officer and/or Chief Controlling Officer of the Issuer or a person holding equivalent status (or higher).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto from time to time.
“SEC” means the U.S. Securities Exchange Commission and any successor thereto.
“Secured Parties” means each Finance Party from time to time to the 2009 Financing Agreement and any Receiver or Delegate.
“Security “ means a mortgage, charge, pledge, lien, security trust or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Security Agent” means Wilmington Trust (London) Limited as security agent of the Secured Parties.
“Security Providers” means the Original Security Providers and any Additional Security Provider other than any Original Security Provider or Additional Security Provider which has ceased to be a Security Provider pursuant to Clause 28.6 ( Resignation of a Security Provider ) of the 2009 Financing Agreement and has not subsequently become an Additional Security Provider pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement, and “ Security Provider ” means any of them.
“Short-Term Certificados Bursatiles” means any securities with a term of not more than 12 months issued by the Issuer in the Mexican capital markets with the approval of the Mexican National Banking and Securities Banking and Securities Commission and listed on the Mexican Stock Exchange.
 
E-31

“Spanish GAAP” means the Spanish General Accounting Plan (Plan general Contable) approved by Royal Decree 1514/2007 as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 ( Financial Statements ) of the 2009 Financing Agreement.
“Subordinated Optional Convertible Securities” means any Financial Indebtedness incurred by any member of the Group meeting the requirements of paragraph (f)(i) of the definition of Permitted Financial Indebtedness (including that no principal repayments are scheduled (and no call options can be exercised) until after the Termination Date) (which may, for the avoidance of doubt, include a fundraising the proceeds of which are applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement)) the terms of which provide that such indebtedness is capable of optional conversion into equity securities of the Issuer and that repayment of principal and accrued but unpaid interest thereon is subordinated (under terms customary for an issuance of such Financial Indebtedness) to all senior Financial Indebtedness of the Issuer (including, but not limited to, all Exposures of Participating Creditors) except for: (i) indebtedness that states, or is issued under a deed, indenture, agreement or other instrument that states, that it is subordinated to or ranks equally with any Subordinated Optional Convertible Securities and (ii) indebtedness between or among members of the Group.
“Subsidiary” means in relation to any company or corporation, a company or corporation:
 
 	(a)	which is controlled, directly or indirectly, by the first mentioned company or corporation;	
 
 	(b)	more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or	
 
 	(c)	which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,	
and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
“Syndicated Bank Facilities” means the facilities described in Part IA of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on 19 November 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.
 
E-32

“Tax” means any tax, levy, impost, duty or other charge, deduction or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Termination Date” means 14 February 2014.
“Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.
“Transaction Security Documents” means each of the documents listed as being a Transaction Security Document in paragraph 2(e) of Part I of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement and any document required to be delivered to the Administrative Agent under paragraph 3(d) of Part II of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents (and any other Debt Documents).
“Treasury Transactions” means any derivatives transaction (i) that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), (ii) that is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets and that is a forward, swap, future, option or other derivative (including one or more spot transactions that are equivalent to any of the foregoing) on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made or (iii) that is a combination of these transactions, it being understood that any Executive Compensation Plan permitted by the 2009 Financing Agreement is not a Treasury Transaction.
“USPP Note” means a note issued under the USPP Note Agreement.
“USPP Note Agreement” means the consolidated, amended and restated note purchase agreement described in Part II of Schedule 1 ( Original Participating Creditors)  of the 2009 Financing Agreement.
“USPP Note Guarantee” means the consolidated, amended and restated note guarantee granted in favour of the USPP Noteholders.
“USPP Noteholders” means the holders from time to time of the notes issued pursuant to the USPP Note Agreement.
 
E-33

Exhibit 4.44.1
SUPPLEMENTAL INDENTURE NO. 1
 
SUPPLEMENTAL INDENTURE No. 1, dated as of April 1, 2014, among CEMEX, S.A.B. de C.V., a  sociedad anónima bursátil de capital variable  organized under the laws of the United Mexican States (the “ Issuer ”), the existing guarantors under the Indenture (as defined  below) listed on Schedule I  hereto (collectively, the “ Existing Guarantors ”), CEMEX Finance LLC, a Delaware limited liability company (the “ New Guarantor ” and, together with the Existing Guarantors, the “ Note Guarantors ”) and The Bank of New York Mellon, as trustee (the “ Trustee ”).
 
W I T N E S S E T H:
 
WHEREAS, the Issuer, the Existing Guarantors and the Trustee previously have entered into an indenture, dated as of October 2, 2013 (the “ Indenture ”), providing for the issuance of the Issuer’s Floating Rate Senior Secured Notes due 2018 (the “ Notes ”);
 
WHEREAS, Section 9.1(a)(iv) of the Indenture provides that the Issuer, the Existing Guarantors and the Trustee may enter into a supplemental indenture without notice to or consent of any Holder to add guarantees with respect to the Notes;
 
WHEREAS, the Issuer desires to amend and supplement the Indenture as provided in Article II hereof to provide for the guarantee by the New Guarantor of the Issuer’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein;
 
WHEREAS, the Issuer and the Note Guarantors are authorized to execute and deliver this Supplemental Indenture No. 1;
 
WHEREAS, the Issuer has requested that the Trustee join in the execution of this Supplemental Indenture No. 1 pursuant to  Section 9.6  of the Indenture; and
 
WHEREAS, all things necessary to make this Supplemental Indenture No. 1 a valid agreement of the parties and a valid supplement to the Indenture have been done.
 
NOW, THEREFORE, for and in consideration of the premises and the mutual covenants contained herein and in the Indenture and for other good and valuable consideration, the receipt and sufficiency of which are herein acknowledged, the Issuer, the Note Guarantors and the Trustee hereby agree, for the benefit of all Holders, as follows:

 

 

ARTICLE I

DEFINITIONS

Section 1.01.   Defined Terms.  All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, as supplemented and amended hereby.  All definitions in the Indenture shall be read in a manner consistent with the terms of this Supplemental Indenture No. 1.
 
ARTICLE II

NOTE GUARANTEES

Section 2.01   Agreement to Guarantee.  The New Guarantor hereby agrees, jointly and severally with the other Note Guarantors, irrevocably, fully and unconditionally, to guarantee the Obligations under the Indenture and the Notes on the terms and subject to the conditions set forth in  Article X  of the Indenture and to be bound by (and shall be entitled to the benefits of) all other applicable provisions of the Indenture as a Note Guarantor.
 
ARTICLE III

MISCELLANEOUS

Section 3.01.   Effect of This Supplemental Indenture No. 1. This Supplemental Indenture No. 1 supplements the Indenture and shall be a part, and subject to all the terms, thereof.  The Indenture, as supplemented and amended by this Supplemental Indenture No. 1, is in all respects ratified and confirmed, and the Indenture and this Supplemental Indenture No. 1 shall be read, taken and construed as one and the same instrument.  All provisions included in this Supplemental Indenture No. 1 supersede any conflicting provisions included in the Indenture, unless not permitted by law.
 
Section 3.02   Governing Law.  This Supplemental Indenture No. 1 shall be governed by, and construed in accordance with, the laws of the State of New York.
 
Section 3.03   Effect of Headings.  The section headings herein are for convenience only and shall not affect the construction of this Supplemental Indenture No. 1.
 
Section 3.04   Counterparts.  The parties may sign any number of copies of this Supplemental Indenture No. 1.  Each signed copy shall be an original, but all of them shall represent the same agreement.
 
Section 3.05   The Trustee.  The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture No. 1 or for or in respect of the recitals contained herein, all of which are made solely by the Issuer and the Note Guarantors.  In entering into this Supplemental Indenture No. 1, the Trustee shall be entitled to the benefit of every provision of the Indenture relating to the conduct or affecting the

 
2

 

liability or affording protection to the Trustee whether or not elsewhere herein so provided. The Issuer and the Note Guarantors expressly reaffirm and confirm their obligations to indemnify the Trustee in connection with the Indenture and all the actions contemplated hereby, all in accordance with the terms of the Indenture.
 
[SIGNATURE PAGE TO FOLLOW IMMEDIATELY]

 
3

 

IN WITNESS WHEREOF, the parties have caused this Supplemental Indenture No. 1 to be duly executed as of the date first written above.

 	CEMEX, S.A.B. de C.V., as Issuer	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX España, S.A., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:  	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Research Group AG, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	New Sunward Holding B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (Floating Rate Senior Secured Notes due 2018)]

 

 

 	CEMEX Shipping B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Asia B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:  	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX UK, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX France Gestion (S.A.S.), as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:  	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (Floating Rate Senior Secured Notes due 2018)]

 

 

 	CEMEX Corp., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Concretos, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	Empresas Tolteca de México, S.A. de C.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Egyptian Investments II B.V., as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 	CEMEX Finance LLC, as Note Guarantor	

 	By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	 	Name:  	Jaime Armando Chapa Gonzalez	
 	 	 	Title:	Attorney-in-Fact	

 

 
[Signature page to Supplemental Indenture No. 1 (Floating Rate Senior Secured Notes due 2018)]

 

 

 	THE BANK OF NEW YORK MELLON, as Trustee	

 	By:	 	/s/ Jaime Nielsen	
 	 	 	Name:  	Jaime Nielsen	
 	 	 	Title:	Vice President	

 

 
[Signature page to Supplemental Indenture No. 1 (Floating Rate Senior Secured Notes due 2018)]

 

 

SCHEDULE I
 
EXISTING GUARANTORS
 
 	1.	 	CEMEX España, S.A.	
 	2.	 	CEMEX México, S.A. de C.V.	
 	3.	 	New Sunward Holding B.V.	
 	4.	 	CEMEX Asia B.V.	
 	5.	 	CEMEX Concretos, S.A. de C.V.	
 	6.	 	CEMEX Corp.	
 	7.	 	CEMEX Egyptian Investments B.V.	
 	8.	 	CEMEX France Gestion (S.A.S.)	
 	9.	 	CEMEX Research Group AG	
 	10.	 	CEMEX Shipping B.V.	
 	11.	 	CEMEX UK	
 	12.	 	Empresas Tolteca de México, S.A. de C.V.	
 	13.	 	Egyptian Investments II B.V.	

Exhibit 4.45

 	  	 	 	RAFAEL MONJO CARRIÓ	  	 	 	
 	  	 	 	Notary Public	  	 	 	 	
 	  	 	 	C/ Monte Esquinza, 6	  	 	 	 	 	
 	  	 	 	28010 MADRID	  	 	 	 	 	 	
 	  	 	 	Tel.: 91 418 32 80 Fax: 91 319 90 46	  	 	 	 	 	 	 	

ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A. GRANTED BY THE ENTITIES “THE BANK OF NEW YORK MELLON” and “CEMEX ESPAÑA, S.A.”
NUMBER ONE THOUSAND NINE HUNDRED AND THIRTY SEVEN
In Madrid, at my office on the second of October of two thousand and thirteen.
Before me, MR. RAFAEL MONJO CARRIO, Notary Public of Madrid and its Bar Association,
APPEAR
MRS. ANA MARÍA ARÍAS SOMALO, of legal age, Spanish nationality, domiciled for these purposes in Madrid, calle José Abascal, number 45; with National Identification Card number 00410487-Y.
MR. JUAN PELEGRÍ Y GIRÓN, of legal age, domiciled for these purposes in Madrid, calle Hernández de Tejada, number 1; with National Identification Card number 01489996-X.

ACTING:
The first, in the name and representation of THE BANK OF NEW YORK MELLON (hereinafter, the “Bank” ), entity constituted in accordance with the laws of the State of New York (United States of America), with its corporate domicile at One Wall Street, New York, N.Y. 10286, United States of America, which in turn acts in representation and to the benefit of the holders of Senior Secured Notes for an added principal maximum amount of  500,000,000 U.S. dollars, at a variable interest rate equal to  3 months U.S. Dollar LIBOR plus 475 basic points, with maturity in 2018 , notwithstanding the cases of early repayment that have been foreseen, issued under the bond issuance agreement (Indenture) governed by the laws of the State of New York (United States of America), signed on October 2, 2013 by, among others, CEMEX S.A.B. de C.V., a variable stock corporation constituted under the laws of Mexico, as issuer, and The Bank of New York Mellon, as Trustee (hereinafter, together  with its subsequent modifications or novations, the  “ Bonds Issuance ”).

She makes use of the power of attorney in effect, as affirmed, in her favor, conferred through the document granted before the Notary Public of New York, Mr. Danny Lee, on the second of October of two thousand and thirteen, a photocopy of which has been shown to me and the original, duly stamped according to the La Hague Convention of October 5, 1961, I will attach hereto, by means of written substantiation, when it is submitted to me.
The second party, in name and representation of the entity CEMEX ESPAÑA, S.A., entity governed under the laws of Spain (formerly Compañía Valenciana de Cementos Portland, S.A.), and with its corporate domicile in Madrid, calle Hernández de Tejada, number 1, the purpose of which, among others, is  “the manufacture, production, marketing and distribution of all kinds of sacks and containers or similar articles, of paper or any other material, for the packaging of cement, etc.”

It was constituted for an indefinite duration in the document authorized by the Notary Public at the time in Valencia, Mr. Juan Bautista Roch Contelles, on April 30, 1917, adapted to current legislation through the document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert on July 13, 1990; with said constitution REGISTERED in the Commercial Registry of Valencia, under volume 122, book 28 of companies, section 3 of corporations, page 354, registry 1. The adaptation is registered in the aforementioned Registry, under volume 2854, book 10, general section, page V2533, registry 165. The bylaws of the company were also amended through another public document authorized by the Notary Public of Madrid, Mr. Antonio Francés y de Mateo on August 12, 1993, with number 6796 of his notarial records, under record 200.
The above indicated current domicile was moved, through document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert, on June 29, 1995, with number 1489 of his notarial records, and registered in the Commercial Registry of Madrid,

under volume 9743 and 9744, section 8, of the Book of Companies, folio 1 and 166, page number M-156542 records 1 and 2.
Its name was changed to its current name through the agreement taken by the General Shareholders Meeting of the Company, in its meeting held on the twenty-fourth of June of two thousand and two, recorded as a document of public record, before me on the same day, under number 662 of my records, registry number 122.
Its Tax Identification number is: A-46.004.214.
He makes use of the powers in effect, as affirmed, in his power, conferred by agreement taken by the Administrative Board of the Company, at its meetings held on the twenty-fifth of July of two thousand and thirteen and the thirtieth of September of two thousand and thirteen, recorded as a document of public record, before me, on the twenty-sixth of July of two thousand and thirteen, under number 1496 of my records, and on the first

of October of two thousand and thirteen, under number 1924 of my records, respectively, as accredited to me with authorized copies of said documents which I have before me.
For the purposes established in article 98 of Law 24/2001 and in accordance with the Resolution of the General Directorate for Registries and Notary Affairs of April 12, 2002, I certify that, in my opinion, I consider that the representative powers accredited are sufficient for the execution of this document under the terms indicated below.
BENEFICIAL OWNERSHIP. – I, the Notary Public, expressly confirm that I have complied with the obligation of identifying the beneficial owner as imposed by Law 10/2010 of April 28, the result of which is recorded in a document authorized before me, on the eleventh of November of two thousand and ten, under number 2387 of my records, which has been modified since then as attested by the representative of the Company.
The parties appearing before me have, in my opinion, as they appear, the legal capacity and legitimate interest necessary to grant this

ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A. and, for such purpose, in their capacity, and for all applicable legal purposes,
THEY HEREBY DECLARE
I. That, by virtue of the policy agreement granted before me on November 8, 2012, registered with number 3530 in Section A of the Registry Book (hereinafter the “ Pledge Policy ”), CEMEX, S.A.B. de C.V. and New Sunward Holding B.V. constituted certain real pledge rights (hereinafter the “ Pledges ”) over the shares of the company CEMEX España, S.A. in its name.
II. That, in accordance with the Creditors Relation Agreement (as this is defined in the Pledge Policy), the creditors of the CEMEX group, in virtue of the issuance of bonds such as the Bonds Issuance will have the consideration of  Additional Notes Creditors  and, therefore, of

Secured Parties according to the terms established in the Creditors Relation Agreement and in the Pledge Policy, and may obtain the benefit of the Pledges through their adhesion to the Pledge Policy according to the provisions of Clause 16 of the same.
IV. That, in accordance with the provisions of Clause 16 of the Pledge Policy, the Secured Parties in whose benefit the Relationship Manager acted, among which include the Bank, as  trustee  of the holders of bonds of the Bonds Issuance, may adhere to the Pledge Policy and ratify the content of the same, accepting the Pledges constituted in their favor as guarantee of the corresponding Secured Obligations, through appearance before me.
Said adhesions will be carried out through the granting of the corresponding adhesion deed or policy, all without the need for a new consent from the pledgors, for having provided said consent previously in the Creditor Relation Agreement and in the Pledge Policy itself.

V. That the Bank expressly declares that the adhesion referred to in the Stipulations of this Document is formalized as a mere instrument of execution of the rights attributed to the Bank in the Pledge Policy, from which it is derived, so that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
VI. That by virtue of the foregoing, the Bank wishes to grant this Adhesion Deed (hereinafter the “Deed”) in accordance with the following
STIPULATIONS
ONE. – ADHESION TO THE PLEDGE POLICY.
The Bank, through this Deed, adheres to, ratifies and approves the Pledge Policy to the fullest extent, the entire content of which it declares to know, therefore giving such

granting full value and legal efficacy and accepting that the payment obligations resulting from the Bonds Issuance dated the twelfth of August of two thousand thirteen are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
The Bank REQUIRES from me, the Notary Public, to NOTIFY this adhesion to WILMINGTON TRUST (LONDON) LIMITED , domiciled for these purposes on the Third Floor, 1 King’s Arms Yard, London, United Kingdom, EC2R 7AF (attention Sajada Afzal), in her capacity as Relationship Manager and I, the Notary Public, accept said requirement.
CEMEX España, S.A., appears herein for the purposes of acknowledging itself as notified of this adhesion.
TWO. – APPLICABLE LAW AND JURISDICTION.
2.1 This Deed is subject to Spanish common law.
2.2 The Parties submit themselves expressly to the jurisdiction and competence of the Courts and Tribunals of Madrid for all matters that may result from the validity, interpretation, fulfillment and execution of this Deed.
HANDLING OF DATA. – The appearing parties accept the incorporation of their data and the copy of identification documents in the files of the Notary

Public in order to carry out the functions inherent to the notarial activity and for the communication of data established in the Public Administration Law and, as applicable, for the Notary Public who follows the current one. They may exercise their rights to access, rectify, cancel and oppose at the authorizing Notary’s office.
It is thus stated and executed.
And I, the Notary Public, ATTEST:
a. – To have identified the appearing parties through their identification documents, indicated in the appearance clause, which have been shown to me.
b. – That the appearing parties, in my opinion, have the capacity and legal standing for the granting hereof.

c. – That the granting hereof by the appearing parties is legal, duly informed and made willingly.
d. – That I have read this public instrument to the grantors thereof, having previously advised them of their right to read it for themselves, which they have done, and they have stated that they have been duly made aware of the entire content of the same, and they provide their consent, all in accordance with article 193 of the Notarial Regulations.
e. – That this public instrument is executed in six notarized pages, series BN numbers: 00332805 and the five following numbers in correlated order and I, the Notary Public, attest. The signatures of the appearing parties follow. Signed RAFAEL MONJO CARRIÓ. Signed. Notary Seal.
CERTIFICATE. – To record that on the third of October of two thousand and thirteen, I left filed at the Post Office Branch, located at office 2825494, E.O MINISTRY OF PUBLIC ADMINISTRATIONS, as a Certificate and notification of receipt, the notification document of the act above, and that the official in charge of the service has given to me the receipt which bears the sending number RR268040652ES.

All of which I attest and that this certificate is issued after the deed on which it is based, on this last sheet of notarized paper, of the BN series, number 0332810. In Madrid on the third of October of two thousand and thirteen.
Signed. RAFAEL MONJO CARRIÓ. Signed. Notary Seal.
CERTIFICATE. – I, the Notary Public, issue this certificate to record that on today’s date, the fourth of October of two thousand and thirteen, I have received a copy of the power of attorney granted by the entity THE BANK OF NEW YORK MELLON, before the Notary Public of New York, Mr. Danny Lee, on the second of October of two thousand and thirteen, duly legalized with the La Hague apostille, and I, the Notary Public, consider that the representative of the entity has sufficient powers to formalize the deed which is the object hereof. I leave a copy of said power incorporated hereto, forming an integral part of the same.

And with nothing further to record, I issue this document over this sole sheet of notarized paper and I, the Notary Public, attest. Signed. RAFAEL MONJO CARRIÓ. Signed. Notary Seal.

Exhibit 4.46
CEMEX FINANCE LLC,
THE NOTE GUARANTORS PARTY HERETO
AND
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
6.000% SENIOR SECURED NOTES DUE 2024
INDENTURE
Dated as of April 1, 2014

TABLE OF CONTENTS

 	 	 	 	 	  	Page	 	
ARTICLE I       DEFINITIONS AND INCORPORATION BY REFERENCE	  	 	 	 	
 	 	 	 	
 	 	Section 1.1	 	Definitions	  	 	1	  	
 	 	Section 1.2	 	[Reserved]	  	 	38	  	
 	 	Section 1.3	 	Rules of Construction	  	 	38	  	
 	 	
ARTICLE II      THE NOTES	  	 	39	  	
 	 	 	 	
 	 	Section 2.1	 	Form and Dating	  	 	39	  	
 	 	Section 2.2	 	Execution and Authentication	  	 	40	  	
 	 	Section 2.3	 	Registrar, Paying Agent and Transfer Agent	  	 	40	  	
 	 	Section 2.4	 	Paying Agent to Hold Money in Trust	  	 	41	  	
 	 	Section 2.5	 	Holder Lists	  	 	41	  	
 	 	Section 2.6	 	CUSIP Numbers	  	 	41	  	
 	 	Section 2.7	 	Global Note Provisions	  	 	42	  	
 	 	Section 2.8	 	Legends	  	 	43	  	
 	 	Section 2.9	 	Transfer and Exchange	  	 	43	  	
 	 	Section 2.10	 	Mutilated, Destroyed, Lost or Stolen Notes	  	 	49	  	
 	 	Section 2.11	 	Temporary Notes	  	 	50	  	
 	 	Section 2.12	 	Cancellation	  	 	50	  	
 	 	Section 2.13	 	Defaulted Interest	  	 	50	  	
 	 	Section 2.14	 	Additional Notes	  	 	51	  	
 	 	
ARTICLE III     COVENANTS	  	 	52	  	
 	 	 	 	
 	 	Section 3.1	 	Payment of Notes	  	 	52	  	
 	 	Section 3.2	 	Maintenance of Office or Agency	  	 	53	  	
 	 	Section 3.3	 	Corporate Existence	  	 	53	  	
 	 	Section 3.4	 	Payment of Taxes and Other Claims	  	 	53	  	
 	 	Section 3.5	 	Compliance Certificate	  	 	54	  	
 	 	Section 3.6	 	Further Instruments and Acts	  	 	54	  	
 	 	Section 3.7	 	Waiver of Stay, Extension or Usury Laws	  	 	54	  	
 	 	Section 3.8	 	Change of Control	  	 	55	  	
 	 	Section 3.9	 	Limitation on Incurrence of Additional Indebtedness	  	 	56	  	
 	 	Section 3.10	 	[Reserved]	  	 	61	  	
 	 	Section 3.11	 	Limitation on Restricted Payments	  	 	61	  	
 	 	Section 3.12	 	Limitation on Asset Sales	  	 	65	  	
 	 	Section 3.13	 	Limitation on the Ownership of Capital Stock of Restricted Subsidiaries	  	 	69	  	
 	 	Section 3.14	 	Limitation on Designation of Unrestricted Subsidiaries	  	 	70	  	
 	 	Section 3.15	 	Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries	  	 	71	  	
 	 	Section 3.16	 	Limitation on Layered Indebtedness	  	 	73	  	
 
i

TABLE OF CONTENTS
(continued)

 	 	 	 	 	  	Page	 	
 	 	Section 3.17	 	Limitation on Liens	  	 	73	  	
 	 	Section 3.18	 	Limitation on Transactions with Affiliates	  	 	74	  	
 	 	Section 3.19	 	Conduct of Business	  	 	75	  	
 	 	Section 3.20	 	Reports to Holders	  	 	75	  	
 	 	Section 3.21	 	Payment of Additional Amounts	  	 	76	  	
 	 	Section 3.22	 	Suspension of Covenants	  	 	78	  	
 	 	
ARTICLE IV      SUCCESSOR COMPANY	  	 	80	  	
 	 	 	 	
 	 	Section 4.1	 	Merger, Consolidation and Sale of Assets	  	 	80	  	
 	 	
ARTICLE V        OPTIONAL REDEMPTION OF NOTES	  	 	84	  	
 	 	 	 	
 	 	Section 5.1	 	Optional Redemption	  	 	84	  	
 	 	Section 5.2	 	[Reserved]	  	 	85	  	
 	 	Section 5.3	 	Notices to Trustee	  	 	85	  	
 	 	Section 5.4	 	Notice of Redemption	  	 	85	  	
 	 	Section 5.5	 	Selection of Notes to Be Redeemed in Part	  	 	86	  	
 	 	Section 5.6	 	Deposit of Redemption Price	  	 	86	  	
 	 	Section 5.7	 	Notes Payable on Redemption Date	  	 	86	  	
 	 	Section 5.8	 	Unredeemed Portions of Partially Redeemed Note	  	 	87	  	
 	 	
ARTICLE VI      DEFAULTS AND REMEDIES	  	 	87	  	
 	 	 	 	
 	 	Section 6.1	 	Events of Default	  	 	87	  	
 	 	Section 6.2	 	Acceleration	  	 	88	  	
 	 	Section 6.3	 	Other Remedies	  	 	89	  	
 	 	Section 6.4	 	Waiver of Past Defaults	  	 	89	  	
 	 	Section 6.5	 	Control by Majority	  	 	89	  	
 	 	Section 6.6	 	Limitation on Suits	  	 	89	  	
 	 	Section 6.7	 	Rights of Holders to Receive Payment	  	 	90	  	
 	 	Section 6.8	 	Collection Suit by Trustee	  	 	90	  	
 	 	Section 6.9	 	Trustee May File Proofs of Claim, etc	  	 	90	  	
 	 	Section 6.10	 	Priorities	  	 	91	  	
 	 	Section 6.11	 	Undertaking for Costs	  	 	91	  	
 	 	
ARTICLE VII     TRUSTEE	  	 	91	  	
 	 	 	 	
 	 	Section 7.1	 	Duties of Trustee	  	 	91	  	
 	 	Section 7.2	 	Rights of Trustee	  	 	93	  	
 	 	Section 7.3	 	Individual Rights of Trustee	  	 	94	  	
 	 	Section 7.4	 	Trustee’s Disclaimer	  	 	94	  	
 	 	Section 7.5	 	Notice of Defaults	  	 	94	  	
 	 	Section 7.6	 	[Reserved]	  	 	95	  	
 
ii

TABLE OF CONTENTS
(continued)

 	 	 	 	 	  	Page	 	
 	 	Section 7.7	 	Compensation and Indemnity	  	 	95	  	
 	 	Section 7.8	 	Replacement of Trustee	  	 	96	  	
 	 	Section 7.9	 	Successor Trustee by Merger	  	 	96	  	
 	 	Section 7.10	 	Eligibility; Disqualification	  	 	97	  	
 	 	Section 7.11	 	[Reserved]	  	 	97	  	
 	 	Section 7.12	 	[Reserved]	  	 	97	  	
 	 	Section 7.13	 	Authorization and Instruction of the Trustee With Respect to the Collateral	  	 	97	  	
 	 	
ARTICLE VIII    DEFEASANCE; DISCHARGE OF INDENTURE	  	 	98	  	
 	 	 	 	
 	 	Section 8.1	 	Legal Defeasance and Covenant Defeasance	  	 	98	  	
 	 	Section 8.2	 	Conditions to Defeasance	  	 	99	  	
 	 	Section 8.3	 	Application of Trust Money	  	 	100	  	
 	 	Section 8.4	 	Repayment to Issuer	  	 	100	  	
 	 	Section 8.5	 	Indemnity for U.S. Government Obligations	  	 	100	  	
 	 	Section 8.6	 	Reinstatement	  	 	101	  	
 	 	Section 8.7	 	Satisfaction and Discharge	  	 	101	  	
 	 	
ARTICLE IX       AMENDMENTS	  	 	102	  	
 	 	 	 	
 	 	Section 9.1	 	Without Consent of Holders	  	 	102	  	
 	 	Section 9.2	 	With Consent of Holders	  	 	103	  	
 	 	Section 9.3	 	[Reserved]	  	 	104	  	
 	 	Section 9.4	 	Revocation and Effect of Consents and Waivers	  	 	104	  	
 	 	Section 9.5	 	Notation on or Exchange of Notes	  	 	104	  	
 	 	Section 9.6	 	Trustee to Sign Amendments and Supplements	  	 	105	  	
 	 	
ARTICLE X        NOTE GUARANTEES	  	 	105	  	
 	 	 	 	
 	 	Section 10.1	 	Note Guarantees	  	 	105	  	
 	 	Section 10.2	 	Limitation on Liability; Termination, Release and Discharge	  	 	108	  	
 	 	Section 10.3	 	Right of Contribution	  	 	109	  	
 	 	Section 10.4	 	No Subrogation	  	 	109	  	
 	 	Section 10.5	 	French Guarantee Limitation	  	 	110	  	
 	 	Section 10.6	 	Swiss Guarantee Limitation	  	 	110	  	
 	 	
ARTICLE XI       COLLATERAL	  	 	112	  	
 	 	 	 	
 	 	Section 11.1	 	The Collateral	  	 	112	  	
 	 	Section 11.2	 	Release of the Collateral	  	 	112	  	
 
iii

TABLE OF CONTENTS
(continued)

 	 	 	  	 	  	Page	 	
ARTICLE XII       MISCELLANEOUS	  	 	113	  	
 	 	 	 	
 	 	Section 12.1	  	  Notices	  	 	113	  	
 	 	Section 12.2	  	  Communication by Holders with Other Holders	  	 	114	  	
 	 	Section 12.3	  	  Certificate and Opinion as to Conditions Precedent	  	 	114	  	
 	 	Section 12.4	  	  Statements Required in Certificate or Opinion	  	 	115	  	
 	 	Section 12.5	  	  Rules by Trustee, Paying Agent, Transfer Agent and Registrar	  	 	115	  	
 	 	Section 12.6	  	  Legal Holidays	  	 	115	  	
 	 	Section 12.7	  	  Governing Law, etc	  	 	115	  	
 	 	Section 12.8	  	  [Reserved]	  	 	117	  	
 	 	Section 12.9	  	  No Recourse Against Others	  	 	117	  	
 	 	Section 12.10	  	  Successors	  	 	117	  	
 	 	Section 12.11	  	  Duplicate and Counterpart Originals	  	 	117	  	
 	 	Section 12.12	  	  Severability	  	 	117	  	
 	 	Section 12.13	  	  [Reserved]	  	 	117	  	
 	 	Section 12.14	  	  Currency Indemnity	  	 	117	  	
 	 	Section 12.15	  	  Table of Contents; Headings	  	 	118	  	
 	 	Section 12.16	  	  USA PATRIOT Act	  	 	118	  	
 
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EXHIBIT A	  	FORM OF NOTE	  	A-1	
 	 	 	
EXHIBIT B	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	  	B-1	
 	 	 	
EXHIBIT C	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	  	C-1	
 	 	 	
EXHIBIT D	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	  	D-1	
 	 	 	
EXHIBIT E	  	“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS	  	E-1	
 
v

INDENTURE, dated as of April 1, 2014, among CEMEX Finance LLC, a limited liability company organized and existing pursuant to the laws of the State of Delaware (the “ Issuer ”), CEMEX, S.A.B. de C.V. (the “ Company ”) and the other note guarantors listed on  Schedule I  hereto, as guarantors of the Issuer’s obligations under this Indenture and the Notes, and The Bank of New York Mellon, as trustee (the “ Trustee ”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuer’s 6.000% Senior Secured Notes due 2024 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2009 Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness will be deemed to have been Incurred at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or a Restricted Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
“Acquired Subsidiary” means any Subsidiary acquired by the Company or any other Subsidiary after the Issue Date in an Acquisition, and any Subsidiaries of such Acquired Subsidiary on the date of such Acquisition.
“Acquiring Subsidiary” means any Subsidiary formed by the Company or one of its Subsidiaries solely for the purpose of participating as the acquiring party in any Acquisition, and any Subsidiaries of such Acquiring Subsidiary acquired in such Acquisition.
“Acquisition” means any merger, consolidation, acquisition or lease of assets, acquisition of securities or business combination or acquisition, or any two or more of such transactions, if, upon the completion of such transaction or transactions, the Company or any Restricted Subsidiary thereof has acquired an interest in any Person who would be deemed to be a Restricted Subsidiary under this Indenture and was not a Restricted Subsidiary prior thereto.
“Additional Amounts” has the meaning assigned to it in Section 3.21(b).
“Additional Note Certificate” has the meaning assigned to it in Section 2.14(b).

“Additional Note Guarantors” means New Sunward Holding B.V., CEMEX Concretos, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
“Additional Note Supplemental Indenture” means a supplement to this Indenture duly executed and delivered by the Issuer, each Note Guarantor and the Trustee pursuant to  Article IX  providing for the issuance of Additional Notes.
“Additional Notes” has the meaning assigned to it in Section 2.14(a).
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Affiliate Transaction” has the meaning assigned to it in Section 3.18(a).
“Agent Members” has the meaning assigned to it in Section 2.7(b).
“Agents” means, collectively, the Registrar, any co-Registrar, the Paying Agents, the Transfer Agent and any other agent appointed by the Issuer hereunder.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in a Global Note, the rules and procedures of DTC, Euroclear and Clearstream, as the case may be, that apply to such transfer or exchange, including the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream.
“Asset Sale” means any direct or indirect sale, disposition, issuance, conveyance, transfer, lease (other than an operating lease entered into in the ordinary course of business), assignment or other transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by the Company or any Restricted Subsidiary of:
 
 	(a)	any Capital Stock other than Capital Stock of the Company; or	
 
 	(b)	any property or assets (other than cash, Cash Equivalents or Capital Stock) of the Company or any Restricted Subsidiary;	
Notwithstanding the preceding, the following will not be deemed to be Asset Sales:
 
 	(1)	the disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries as permitted under  Section 3.12 ;	
 
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 	(2)	any disposition of equipment that is not usable or is obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;	
 
 	(3)	dispositions of assets in any fiscal year with a Fair Market Value not to exceed U.S.$25 million in the aggregate;	
 
 	(4)	for purposes of Section 3.12 only, the making or disposition of a Permitted Investment or Restricted Payment permitted under  Section 3.11 ;	
 
 	(5)	a disposition to the Company or a Restricted Subsidiary, including a Person that is or will become a Restricted Subsidiary immediately after the disposition;	
 
 	(6)	the creation of a Lien permitted under this Indenture (other than a deemed Lien in connection with a Sale and Leaseback Transaction);	
 
 	(7)	(i) the disposition of Receivables Assets pursuant to a Qualified Receivables Transaction and (ii) the disposition of other accounts receivable in the ordinary course of business;	
 
 	(8)	the disposition of any asset constituted by a license of intellectual property in the ordinary course of business;	
 
 	(9)	the disposition of inventory pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under this Indenture;	
 
 	(10)	the disposition of any asset compulsorily acquired by a governmental authority; and	
 
 	(11)	sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements.	
“Asset Sale Offer” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Amount” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Notice” means notice of an Asset Sale Offer made pursuant to Section 3.12, which shall be mailed first class, postage prepaid, to each record Holder as shown on the Note Register within 20 days following the 365th day after the receipt of Net Cash Proceeds of any Asset Sale, with a copy to the Trustee, which notice shall govern the terms of the Asset Sale Offer, and shall state:
 
 	(1)	the circumstances of the Asset Sale or Sales, the Net Cash Proceeds of which are included in the Asset Sale Offer, that an Asset Sale Offer is being made pursuant to  Section 3.12(c) , and that all Notes that are timely tendered will be accepted for payment;	
 
3

 	(2)	the Asset Sale Offer Amount and the Asset Sale Offer Payment Date, which date shall be a Business Day no earlier than 30 days nor later than 60 days from the date the Asset Sale Offer Notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Offer Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Offer Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Offer Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on the schedule of increases or decreases thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
4

 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.12 .	
“Asset Sale Offer Payment Date” has the meaning assigned to it in Section 3.12(f).
“Authenticating Agent” has the meaning assigned to it in Section 2.2(b).
“Authorized Agent” has the meaning assigned to it in Section 12.7(c).
“Axtel Share Forward Transaction” means the Axtel share forward transaction that is governed by a long form confirmation originally dated January 22, 2009, as replaced by long form confirmations dated September 28, 2010 and March 19, 2012, and as further replaced by a long form confirmation dated August 27, 2013, between Credit Suisse International and Cemex Operaciones México, S.A. de C.V. (formerly Centro Distribuidor de Cemento, S.A. de C.V.) (References: External ID: 16059563R5-Risk ID: 10008383) and any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Bancomext Facility” means the U.S.$250,000,000 credit agreement (Crédito Simple), dated October 14, 2008, as amended from time to time ( provided , that the principal amount thereof does not increase above the principal amount outstanding as of August 14, 2009 (except by the amount of any capitalized interest if so provided by such facility and on those terms as of August 14, 2009) less the amount of any repayments and prepayments made in respect of such facility), among the Company, as borrower, Banco Nacional de Comercio Exterior, S.N.C., as lender, and CEMEX México, as guarantor, and secured by the mortgage of a cement plant in Ensenada, Baja California, Mexico.
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree or order for relief in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or (ii) a decree or order (A) adjudging any Bankruptcy Party a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (B) approving as properly filed a petition seeking reorganization,  concurso mercantil , arrangement, adjustment or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up or liquidation of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (ii) the consent by any Bankruptcy Party to the entry of a decree	
 
5

 	or order for relief in respect of such Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization,  concurso mercantil , or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, or (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors, including the Mexican  Ley de Concursos Mercantiles and  Spanish Law 22/2003 of 9 July ( Ley 22/2003 de 9 de julio, Concursal ), as amended.
“Bankruptcy Party” means the Company, the Issuer and any Significant Subsidiary of the Company or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Company.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ), dated April 22, 2009, among CEMEX Concretos, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, S.N.C., as lender, as in effect on the Issue Date and as amended from time to time, and secured by a mortgage of Planta Yaqui in Hermosillo, Sonora, Mexico.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, Mexico City, Madrid, Amsterdam, London, Paris or Zurich are authorized or required by law, regulation or other governmental action to remain closed.
“Capital Stock” means:
 
 	(1)	with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;	
 
 	(2)	with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person; and	
 
6

 	(3)	any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above, but excluding any Indebtedness exchangeable into such equity interest in existence on the Issue Date or Incurred pursuant to  Section 3.9 .	
“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Cash Equivalents” means:
 
 	(1)	marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the United Kingdom or any member nation of the European Union or issued by any agency thereof and backed by the full faith and credit of the United States, the United Kingdom, such member nation of the European Union or any European Union central bank, in each case maturing within one year from the date of acquisition thereof;	
 
 	(2)	marketable direct obligations issued by the Mexican government, or issued by any agency thereof, including but not limited to,  Certificados de la Tesorería de la Federación  (Cetes) or  Bonos de Desarrollo del Gobierno Federal  (Bondes), in each case, issued by the government of Mexico and maturing not later than one year after the acquisition thereof;	
 
 	(3)	marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Fitch or any successor thereto;	
 
 	(4)	commercial paper or corporate debt obligations maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 or AAA from S&P, at least F-1 or AAA from Fitch or P-1 or Aaa from Moody’s;	
 
 	(5)	demand deposits, certificates of deposit, time deposits or bankers’ acceptances or other short-term unsecured debt obligations (and any cash or deposits in transit in any of the foregoing) maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the United Kingdom or any country of the European Union, (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than U.S.$500	
 
7

 	million, or (c) in the case of Mexican peso deposits, any financial institution in good standing with Banco de México organized under the laws of Mexico;	
 
 	(6)	repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) and (2) above entered into with any bank meeting the qualifications specified in clause (5) above;	
 
 	(7)	investments in money market funds which invest substantially all of their assets in securities of the types described in clauses (1) through (6), (8) and (9);	
 
 	(8)	certificates of deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco Nacional de Obras y Servicios Públicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(9)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which the Company or a Restricted Subsidiary operates and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquisition; and	
 
 	(10)	Investments in mutual funds, managed by banks, with a local currency credit rating of at least MxAA by S&P or other equally reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican Government, or issued by any agency or instrumentality thereof.	
In the case of Investments by any Restricted Subsidiary, Cash Equivalents will also include (a) investments of the type and maturity described in clauses (1) through (10) of any Restricted Subsidiary outside of Mexico in the country in which such Restricted Subsidiary operates, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalents ratings from comparable foreign rating agencies, (b) local currencies and other short-term investments utilized by Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (10) and in this paragraph and (c) investments of the type described in clauses (1) through (9) maturing within one year of the Issue Date.
“Certificados Bursátiles” means debt securities issued by the Company guaranteed (por aval) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned subsidiaries of the Company, in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores, S.A.B. de C.V. ).
 
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“Certificated Note” means any Note issued in fully registered form, other than a Global Note, which shall be substantially in the form of  Exhibit A  hereto, with appropriate legends as specified in  Section 2.8  and  Exhibit A .
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission under the Exchange Act) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Company is acquired by any Person;  provided , that the acquisition of beneficial ownership of Capital Stock of the Company by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Change of Control Notice” means notice of a Change of Control Offer made pursuant to Section 3.8, which shall be mailed first-class, postage prepaid, to each record Holder as shown on the Note Register within 30 days following the date upon which a Change of Control occurred, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer and shall state:
 
 	(1)	that a Change of Control has occurred, the circumstances or events causing such Change of Control and that a Change of Control Offer is being made pursuant to  Section 3.8 , and that all Notes that are timely tendered will be accepted for payment;	
 
 	(2)	the Change of Control Payment, and the Change of Control Payment Date, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Change of Control Payment with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest from and after the Change of Control Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer will be required to tender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Change of Control Offer;	
 
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 	(7)	that any Holder electing to have Notes purchased pursuant to the Change of Control Offer must specify the principal amount that is being tendered for purchase, which principal amount must be U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.8(b) .	
“Change of Control Offer” has the meaning assigned to it in Section 3.8(b).
“Change of Control Payment” has the meaning assigned to it in Section 3.8(a).
“Change of Control Payment Date” has the meaning assigned to it in Section 3.8(b).
“Clearstream” means Clearstream Banking, société anonyme, or the successor to its securities clearance and settlement operations.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means “Transaction Security” as defined in the Intercreditor Agreement from time to time.
“Commission” means the U.S. Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests.
 
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“Company” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns, including any Successor Company which becomes such in accordance with Article IV.
“Compensation Related Hedging Obligations” means (i) the obligations of any Person pursuant to any equity option contract, equity forward contract, equity swap, warrant, rights or other similar agreement designed to hedge risks or obligations relating to employee, director or consultant compensation, pension, benefits or similar activities of the Company and/or any of its Subsidiaries and (ii) the obligations of any Person pursuant to any agreement that requires another Person to make payments or deliveries that are otherwise required to be made by the first Person relating to employee, director or consultant compensation, pension, benefits or similar activities of the Company and/or any of its Subsidiaries, in each case in the ordinary course of business.
“Consolidated EBITDA” means, for any Person for any period, Consolidated Net Income for such Person for such period, plus the following, without duplication, to the extent deducted or added in calculating such Consolidated Net Income:
 
 	(1)	Consolidated Income Tax Expense for such Person for such period;	
 
 	(2)	Consolidated Interest Expense for such Person for such period net of consolidated interest income for such period;	
 
 	(3)	Consolidated Non-cash Charges for such Person for such period;	
 
 	(4)	the amount of any nonrecurring restructuring charge or reserve deducted in such period in computing Consolidated Net Income;	
 
 	(5)	the net effect on income or loss in respect of Hedging Obligations or other derivative instruments, which shall include, for the avoidance of doubt, all amounts not excluded from Consolidated Net Income pursuant to the proviso in clause (9) thereof; and	
 
 	(6)	net income of such Person attributable to minority interests in Subsidiaries of such Person.	
less (x) all non-cash credits and gains increasing Consolidated Net Income for such Person for such period and (y) all cash payments made by such Person and its Restricted Subsidiaries during such period relating to Consolidated Non-cash Charges that were added back in determining Consolidated EBITDA in any prior period.
“Consolidated Fixed Charge Coverage Ratio” means, for any Person as of any date of determination (the “ Fixed Charge Calculation Date ”), the ratio of the aggregate amount of Consolidated EBITDA of such Person for the four most recent full fiscal quarters for which financial statements are available ending prior to the date of such determination (the “ Four
 
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Quarter Period”) to Consolidated Fixed Charges for such Person for such Four Quarter Period. For purposes of making the computation referred to above, Material Acquisitions and Material Dispositions (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter Period and on or prior to or simultaneously with the Fixed Charge Calculation Date shall be calculated on a  pro forma basis assuming that all such Material Acquisitions and Material Dispositions (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Material Acquisition or Material Disposition that would have required adjustment pursuant to this definition, then the Consolidated Fixed Charge Coverage Ratio shall be calculated giving  pro forma  effect thereto.
For purposes of this definition, whenever pro forma effect is to be given to a Material Acquisition or Material Disposition and the amount of income or earnings relating thereto or with respect to other  pro forma  calculations under this definition, such  pro forma  calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given  pro forma  effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a  pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio,”
 
 	(a)	interest on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined thereafter will be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on such date of determination;	
 
 	(b)	if interest on any Indebtedness actually Incurred on such date of determination may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on such date of determination will be deemed to have been in effect during the Four Quarter Period; and	
 
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 	(c)	notwithstanding clause (a) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by Hedging Obligations, will be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.	
“Consolidated Fixed Charges” means, for any Person for any period, the sum, without duplication, of:
 
 	(1)	Consolidated Interest Expense for such Person for such period, plus	
 
 	(2)	to the extent not included in (1) above, payments during such period in respect of the financing costs of financial derivatives in the form of equity swaps, plus	
 
 	(3)	the product of:	
 
 	(a)	the amount of all cash and non-cash dividend payments on any series of Preferred Stock or Disqualified Capital Stock of such Person (other than dividends paid in Qualified Capital Stock) or any Subsidiary of such Person (Restricted Subsidiary in the case of the Company) paid, accrued or scheduled to be paid or accrued during such period, excluding dividend payments on Preferred Stock or Disqualified Capital Stock paid, accrued or scheduled to be paid to such Person or another Subsidiary (Restricted Subsidiary in the case of the Company), times	
 
 	(b)	a fraction, the numerator of which is one and the denominator of which is one minus the then current effective tax rate of such Person in its principal taxpaying jurisdiction (Mexico, in the case of the Company), expressed as a decimal.	
“Consolidated Income Tax Expense” means, with respect to any Person for any period, the provision for federal, state and local income and asset taxes payable, including current and deferred taxes, by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period as determined on a consolidated basis in accordance with GAAP.
 
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“Consolidated Interest Expense” means, for any Person for any period, the sum of, without duplication determined on a consolidated basis in accordance with GAAP:
 
 	(1)	the aggregate of cash and non-cash interest expense of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period determined on a consolidated basis in accordance with GAAP, including, without limitation the following for such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) whether or not interest expense in accordance with GAAP:	
 
 	(a)	any amortization or accretion of debt discount or any interest paid on Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) in the form of additional Indebtedness,	
 
 	(b)	any amortization of deferred financing costs; provided, that any such amortization resulting from costs incurred prior to the Issue Date shall be excluded for the calculation of Consolidated Interest Expense,	
 
 	(c)	the net costs under Hedging Obligations relating to Indebtedness (including amortization of fees but excluding foreign exchange adjustments on the notional amounts of the Hedging Obligations),	
 
 	(d)	all capitalized interest,	
 
 	(e)	the interest portion of any deferred payment obligation,	
 
 	(f)	commissions, discounts and other fees and charges Incurred in respect of letters of credit or bankers’ acceptances or in connection with sales or other dispositions of accounts receivable and related assets,	
 
 	(g)	any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries (Restricted Subsidiary in the case of the Company) or secured by a Lien on the assets of such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Company), whether or not such Guarantee or Lien is called upon, and	
 
 	(h)	any interest accrued in respect of Indebtedness without a maturity date; and	
 
 	(2)	the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) during such period.	
 
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“Consolidated Net Income” means, with respect to any Person for any period, the aggregate net income (or loss) of such Person and its Subsidiaries for such period on a consolidated basis (after deducting (i) the portion of such net income attributable to minority interests in Subsidiaries of such Person and (ii) any interest paid or accrued in respect of Indebtedness without a maturity date), determined in accordance with GAAP;  provided , that there shall be excluded therefrom:
 
 	(1)	net after-tax gains and losses from Asset Sale transactions or abandonments or reserves relating thereto;	
 
 	(2)	net after-tax items classified as extraordinary gains or losses;	
 
 	(3)	the net income (but not loss) of any Subsidiary of such Person (non-Note Guarantor in the case of the Company) to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary (non-Note Guarantor in the case of the Company) or any law, regulation, agreement or judgment applicable to any such distribution;	
 
 	(4)	any net income (loss) of any Person (other than the Company) if such Person is not a Restricted Subsidiary, except that the Company’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in this clause);	
 
 	(5)	[Reserved];	
 
 	(6)	any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;	
 
 	(7)	any gain (or loss) from foreign exchange translation or change in net monetary position;	
 
 	(8)	any gain (or loss) from the cumulative effect of changes in accounting principles; and	
 
 	(9)	any net gain or loss (after any offset) resulting in such period from Hedging Obligations or other derivative instruments;  provided , that the net effect on income or loss (including in any prior periods) shall be included upon any termination or early extinguishment of such Hedging Obligations or other derivative instrument, other than any Hedging Obligations with respect to Indebtedness (that is not itself a Hedging Obligation) and that are extinguished concurrently with the termination or other prepayment of such Indebtedness.	
“Consolidated Non-cash Charges” means, for any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill and other Intangible Assets) and other non-cash expenses or losses of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which constitutes an accrual of or a reserve for cash charges for any future period or the amortization of a prepaid cash expense paid in a prior period).
 
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“Consolidated Tangible Assets” means, for any Person at any time, the total consolidated assets of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) as set forth on the balance sheet as of the most recent fiscal quarter of such Person, prepared in accordance with GAAP, less Intangible Assets.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, 7E, New York, New York 10286, Attention: International Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders, the Issuer and the Company.
“Covenant Defeasance” has the meaning assigned to it in Section 8.1(c).
“Covenant Suspension Event” has the meaning assigned to it in Section 3.22(b).
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, conciliador, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning assigned to it in Section 2.13 and Section 1, paragraph 2 of the Form of Reverse Side of Note contained in  Exhibit A  hereto.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate setting forth the basis of such valuation.
“Designation” has the meaning assigned to it in Section 3.14(a).
“Designation Amount” has the meaning assigned to it in clause (iii) of Section 3.14(a).
“Disposition” means, with respect to any property, any sale, lease, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the Holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is
 
16

redeemable at the sole option of the Holder thereof, in any case, on or prior to the 91st day after the final maturity date of the Notes, but excluding with respect to Mexican companies, any shares of such Mexican company that are part of the variable portion of its Capital Stock and that are redeemable under the Mexican General Law of Business Corporations ( Ley General de Sociedades Mercantiles ).
“Distribution Compliance Period” means, in respect of any Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“DTC” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depositary institution hereinafter appointed by the Company that is a clearing agency registered under the Exchange Act.
“Equity Offering” has the meaning assigned to it in Section 5 of the Form of Reverse Side of Note contained in Exhibit A hereto.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V., or its successor in such capacity.
“Event of Default” has the meaning assigned to it in Section 6.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Existing Senior Notes” means the Euro-denominated 9.625% Senior Secured Notes due 2017 guaranteed by the Company, the U.S. Dollar-denominated 9.250% Senior Secured Notes due 2020 guaranteed by the Company, the Euro-denominated 8.875% Senior Secured Notes due 2017 guaranteed by the Company, the U.S. Dollar-denominated 9.000% Senior Secured Notes due 2018 issued by the Company, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2015 issued by the Company, the U.S. Dollar-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Company, the Euro-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Company, the U.S. Dollar-denominated 9.500% Senior Secured Notes due 2018 issued by the Company, the U.S. Dollar-denominated 9.375% Senior Secured Notes due 2022 guaranteed by the Company, the U.S. Dollar-denominated 5.875% Senior Secured Notes due 2019 issued by the Company, the U.S. Dollar-denominated 6.500% Senior Secured Notes due 2019 issued by the Company, the U.S. Dollar-denominated 7.250% Senior Secured Notes due 2021 issued by the Company, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2018 issued by the Company and the Other Notes guaranteed by the Company.
“Facilities Agreement” means the facilities agreement, dated as of September 17, 2012, entered into among the Company and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as new administrative agent, and the Security Agent, as such agreement may be amended, modified or waived from time to time.
 
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“Facilities Agreement Indebtedness” means the Indebtedness that is subject to and outstanding under the Facilities Agreement.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction. Fair Market Value shall be determined, except as otherwise provided, by the Company in good faith.
“Fitch” means Fitch Ratings and any successor to its rating agency business.
“Four Quarter Period” has the meaning assigned to it in the definition of “Consolidated Fixed Charge Coverage Ratio” above.
“Free Reserves Available for Distribution” has the meaning assigned to it in Section 10.6(c).
“French Note Guarantor” has the meaning assigned to it in Section 10.5(a).
“GAAP” means IFRS as in effect on the Issue Date. At any time, and from time to time, after the Issue Date, the Company may elect to apply IFRS as in effect at such time in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election;  provided , that any such election, once made, shall be irrevocable. The Company shall give notice of any such election to the Trustee.
“Global Note” means any Note issued in fully registered form to DTC (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of  Exhibit A , with appropriate legends as specified in Section 2.8  and  Exhibit A  hereto.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
 
 	(1)	to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise, or	
 
 	(2)	entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part,	
provided, that “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Obligations” has the meaning assigned to it in Section 10.1(a).
 
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“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Note Register.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and “ Incurrence ,” “ Incurred ” and “ Incurring ” will have meanings correlative to the preceding).
“Indebtedness” means with respect to any Person, without duplication:
 
 	(1)	the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money;	
 
 	(2)	the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, including any perpetual bonds, debenture notes or similar instruments without regard to maturity date;	
 
 	(3)	all Capitalized Lease Obligations of such Person;	
 
 	(4)	all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all payment obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities accounted for as current liabilities (in accordance with GAAP) arising in the ordinary course of business) to the extent of any reimbursement obligations in respect thereof;	
 
 	(5)	reimbursement obligations with respect to letters of credit, banker’s acceptances or similar credit transactions;	
 
 	(6)	Guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) through (10) below;	
 
 	(7)	all Indebtedness of any other Person of the type referred to in clauses (1) through (6) which is secured by any Lien on any property or asset of the first Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Indebtedness so secured;	
 
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 	(8)	all obligations under Hedging Obligations or other derivatives of such Person;	
 
 	(9)	all liabilities (contingent or otherwise) of such Person in connection with a sale or other disposition of accounts receivable and related assets (not including Qualified Receivables Transactions), irrespective of their treatment under GAAP or IFRS; and	
 
 	(10)	all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any;  provided , that:	
 
 	(a)	if the Disqualified Capital Stock does not have a fixed repurchase price, such maximum fixed repurchase price will be calculated in accordance with the terms of the Disqualified Capital Stock as if the Disqualified Capital Stock were purchased on any date on which Indebtedness will be required to be determined pursuant to this Indenture, and	
 
 	(b)	if the maximum fixed repurchase price is based upon, or measured by, the fair market value of the Disqualified Capital Stock, the fair market value will be the Fair Market Value thereof.	
“Indenture” means this Indenture as amended or supplemented from time to time, including the Schedule and Exhibits hereto.
“Intangible Assets” means with respect to any Person all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights and all other items which would be treated as intangibles on the consolidated balance sheet of such Person prepared in accordance with GAAP.
“Intercreditor Agreement” means the intercreditor agreement, dated as of September 17, 2012, entered into among the Company and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as facility agent, and the Security Agent, as such agreement may be amended from time to time.
“Interest Payment Date” means the stated due date of an installment of interest on the Notes as specified in the Form of Face of Note contained in  Exhibit A  hereto.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
“Inventory Financing” means a financing arrangement pursuant to which the Company or any of its Restricted Subsidiaries sells inventory to a bank or other institution (or a
 
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special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Investment” means, with respect to any Person, any (1) direct or indirect loan, advance or other extension of credit (including, without limitation, a Guarantee) to any other Person, (2) capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to any other Person, or (3) purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by any other Person. “Investment” will exclude accounts receivable, extensions of credit in connection with supplier or customer financings consistent with industry or past practice, advance payment of capital expenditures arising in the ordinary course of business, deposits arising in the ordinary course of business and transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of a Lien or the Incurring or permitting to subsist of Indebtedness) conducted in the ordinary course of business on arm’s-length terms.
For purposes of Section 3.11, the Company will be deemed to have made an “Investment” in an Unrestricted Subsidiary at the time of its Designation, which will be valued at the Fair Market Value of the sum of the net assets of such Unrestricted Subsidiary multiplied by the percentage equity ownership of the Company and its Restricted Subsidiaries in such designated Unrestricted Subsidiary at the time of its Designation and the amount of any Indebtedness of such Unrestricted Subsidiary or owed to the Company or any Restricted Subsidiary immediately following such Designation. Any property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer. If the Company or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of a Restricted Subsidiary (including any issuance and sale of Capital Stock by a Restricted Subsidiary) such that, after giving effect to any such sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to sum of the Fair Market Value of the Capital Stock of such former Restricted Subsidiary held by the Company or any Restricted Subsidiary immediately following such sale or other disposition and the amount of any Indebtedness of such former Restricted Subsidiary Guaranteed by the Company or any Restricted Subsidiary or owed to the Company or any other Restricted Subsidiary immediately following such sale or other disposition. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made without giving effect to subsequent changes in value.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
 
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“Investment Return” means, in respect of any Investment (other than a Permitted Investment) made after the Issue Date by the Company or any Restricted Subsidiary:
 
 	(1)	the cash proceeds received by the Company upon the sale, liquidation or repayment of such Investment or, in the case of a Guarantee, the amount of the Guarantee upon the unconditional release of the Company and its Restricted Subsidiaries in full, less any payments previously made by the Company or any Restricted Subsidiary in respect of such Guarantee;	
 
 	(2)	in the case of the Revocation of the Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:	
 
 	(a)	the Company’s Investment in such Unrestricted Subsidiary at the time of such Revocation;	
 
 	(b)	that portion of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time of Revocation that is proportionate to the Company’s equity interest in such Unrestricted Subsidiary at the time of Revocation; and	
 
 	(c)	the Designation Amount with respect to such Unrestricted Subsidiary upon its Designation which was treated as a Restricted Payment;	
 
 	(3)	in the event the Company or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, the existing Investment of the Company and its Restricted Subsidiaries in such Person,	
in the case of each of (1), (2) and (3), up to the amount of such Investment that was treated as a Restricted Payment under Section 3.11  less the amount of any previous Investment Return in respect of such Investment.
“Issue Date” means the first date of issuance of the Notes under this Indenture and following a Partial Covenant Suspension Event or a Covenant Suspension Event, except under “ Optional Redemption for Changes in Withholding Taxes ” under clause (5) in  Exhibit A  hereto,  Section 3.22  and the definition of “Permitted Liens,” the most recent Partial Covenant Reversion Date or Reversion Date, as applicable.
“Issue Date Notes” means the U.S.$1,000,000,000 aggregate principal amount of Notes originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
“Issuer” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns.
“Issuer Order” has the meaning assigned to it in Section 2.2(c).
 
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“Legal Defeasance” has the meaning assigned to it in Section 8.1(b).
“Legal Holiday” has the meaning assigned to it in Section 12.6.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. The Company or any Restricted Subsidiary shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor).
“Material Acquisition” means:
 
 	(1)	an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person will become a Restricted Subsidiary, or will be merged with or into the Company or any Restricted Subsidiary;	
 
 	(2)	the acquisition by the Company or any Restricted Subsidiary of the assets of any Person (other than a Subsidiary of the Company) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business; or	
 
 	(3)	any Revocation with respect to an Unrestricted Subsidiary;	
in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Material Disposition” means any Asset Sale and, whether or not constituting an Asset Sale, (1) any sale or other disposition of Capital Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale or other disposition of property or assets excluded from the definition of Asset Sale by clause (4) of that definition, in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Maturity Date” means April 1, 2024.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
 
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“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries from such Asset Sale, net of:
 
 	(1)	reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions);	
 
 	(2)	taxes paid or payable in respect of such Asset Sale after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;	
 
 	(3)	repayment of Indebtedness secured by a Lien permitted under this Indenture that is required to be repaid in connection with such Asset Sale; and	
 
 	(4)	appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, but excluding any reserves with respect to Indebtedness.	
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Custodian” means the custodian with respect to any Global Note appointed by DTC, or any successor Person thereto, and shall initially be the Trustee.
“Note Guarantee” means any guarantee of the Issuer’s Obligations under this Indenture and the Notes by any Note Guarantor pursuant to  Article X .
“Note Guarantors” means (i) each of the Company and its Restricted Subsidiaries that executes this Indenture as a Note Guarantor or an Additional Note Guarantor and (ii) each of the Company’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Note Guarantor, and their respective successors and assigns; provided, that any Person constituting a Note Guarantor as described above shall cease to constitute a Note Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture.
“Note Register” has the meaning assigned to it in Section 2.3(a).
“Notes” means any of the Issuer’s 6.000% Senior Secured Notes due 2024 issued and authenticated pursuant to this Indenture.
“Obligations” means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under the documentation governing such Indebtedness, including, in the case of the Notes and the Note Guarantees, this Indenture.
 
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“Officer” means, when used in connection with any action to be taken by the Issuer or a Note Guarantor, as the case may be, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Secretary or an attorney-in-fact of the Issuer or such Note Guarantor, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person, who must be the principal executive officer, the principal financial officer, the treasurer, the Vice President – Corporate Finance, the principal accounting officer or an attorney-in-fact of such Person, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion of counsel, who, unless otherwise indicated in this Indenture, may be an employee of or counsel for the Issuer or any Note Guarantor, and who shall be reasonably acceptable to the Trustee.
“Other Notes” means the €400,000,000 million aggregate principal amount of 5.250% Senior Secured Notes due 2021 of the Issuer issued on the Issue Date.
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,  except :
 
 	(1)	Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;	
 
 	(2)	Notes, or portions thereof, for the payment, redemption or, in the case of an Asset Sale Offer or Change of Control Offer, purchase of which, money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or an Affiliate of the Issuer) in trust or set aside and segregated in trust by the Issuer or an Affiliate of the Issuer (if the Issuer or such Affiliate is acting as the Paying Agent) for the Holders of such Notes;  provided , that if Notes (or portions thereof) are to be redeemed or purchased, notice of such redemption or purchase has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;	
 
 	(3)	Notes which have been surrendered pursuant to Section 2.9 or Notes in exchange for which or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser in whose hands such Notes are valid obligations of the Issuer; and	
 
 	(4)	solely to the extent provided in Article VIII, Notes which are subject to Legal Defeasance or Covenant Defeasance as provided in  Article VIII ;	
provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, a Note Guarantor or any other
 
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obligor upon the Notes or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
“Partial Covenant Reversion Date” has the meaning set forth under Section 3.22(e).
“Partial Covenant Suspension Date” has the meaning set forth under Section 3.22(c).
“Partial Covenant Suspension Event” has the meaning set forth under Section 3.22(a).
“Partial Suspended Covenants” has the meaning set forth under Section 3.22(a).
“Partial Suspension Period” has the meaning set forth under Section 3.22(e).
“Paying Agent” has the meaning assigned to it in Section 2.3(a).
“Permitted Asset Swap Transaction” means a transaction consisting substantially of the concurrent (i) disposition by the Company or any of its Restricted Subsidiaries of any asset, property or cash consideration (other than a Restricted Subsidiary) in exchange for assets, property or cash consideration transferred to the Company or a Restricted Subsidiary, to be used in a Permitted Business or (ii) disposition by the Company or any of its Restricted Subsidiaries of Capital Stock of a Restricted Subsidiary in exchange for Capital Stock of another Restricted Subsidiary or of Capital Stock of any Person that becomes a Restricted Subsidiary after giving effect to such transaction;  provided , that any cash or Cash Equivalents received in such a transaction shall constitute Net Cash Proceeds to be applied in accordance with  Section 3.12 .
“Permitted Business” means the business or businesses conducted by the Company and its Restricted Subsidiaries as of the Issue Date and any business ancillary, complementary or related thereto or any other business that would not constitute a substantial change to the general nature of its business from that carried on as of the Issue Date.
“Permitted Indebtedness” has the meaning set forth in Section 3.9(b).
“Permitted Investments” means:
 
 	(1)	Investments by the Company or any Restricted Subsidiary in any Person that is, or that result in any Person becoming, immediately after such Investment, a Restricted Subsidiary or constituting a merger or consolidation of such Person into the Company or with or into a Restricted Subsidiary;	
 
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 	(2)	any Investment in the Company;	
 
 	(3)	Investments in cash and Cash Equivalents;	
 
 	(4)	any extension, modification or renewal of any Investments existing as of the Issue Date (but not Investments involving additional advances, contributions or other investments of cash or property or other increases thereof, other than as a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms of such Investment as of the Issue Date);	
 
 	(5)	Investments permitted pursuant to clause (ii), (vi) or (vii) of Section 3.18(b);	
 
 	(6)	Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, modifications and renewals thereof;	
 
 	(7)	Investments made by the Company or its Restricted Subsidiaries as a result of non-cash consideration permitted to be received in connection with an Asset Sale made in compliance with  Section 3.12 ;	
 
 	(8)	Investments in the form of Hedging Obligations or Compensation Related Hedging Obligations permitted under clause (iv) of  Section 3.9(b) ;	
 
 	(9)	Investments in existence on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or any Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date;  provided , that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted by this Indenture;	
 
 	(10)	Investments by the Company or any Restricted Subsidiary in a Receivables Entity in connection with a Qualified Receivables Transaction which does not constitute an Asset Sale by virtue of clause (7) of the definition thereof; provided, however , that any such Investments are made only in the form of Receivables Assets;	
 
 	(11)	Investments in marketable securities or instruments, to fund the Company’s or a Restricted Subsidiary’s pension and other employee-related obligations in the ordinary course of business pursuant to compensation arrangements approved by the Board of Directors or senior management of the Company;	
 
 	(12)	any Investment that:	
 
 	(a)	when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding (net of cash benefits to the	
 
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 	Company or a Restricted Subsidiary from Investments pursuant to this clause (12)), does not exceed the greater of U.S.$250 million and 3% of Consolidated Tangible Assets; or	
 
 	(b)	when taken together with all other Investments made pursuant to this clause (12) in any fiscal year that are at the time outstanding, does not exceed U.S.$100 million in any fiscal year;	
 
 	(13)	Investments in the Capital Stock of any Person other than a Restricted Subsidiary that are required to be held pursuant to an involuntary governmental order of condemnation, nationalization, seizure or expropriation or other similar order with respect to Capital Stock of such Person (prior to which order such Person was a Restricted Subsidiary);  provided , that such Person contests such order in good faith in appropriate proceedings;	
 
 	(14)	repurchases of Existing Senior Notes or the Notes;	
 
 	(15)	Investments in the SPV Perpetuals or the notes related thereto; provided, that any payment or other contribution to one of the special purpose vehicles issuing the SPV Perpetuals in connection with such Investment is promptly paid or contributed to the Company or a Restricted Subsidiary following receipt thereof;	
 
 	(16)	any Investment that constitutes Indebtedness permitted under clause (vii)(E) of Section 3.9(b); and	
 
 	(17)	(a) Investments to which the Company or any of its Restricted Subsidiaries is contractually committed as of the Issue Date in any Person other than a Subsidiary in which the Company or any of its Restricted Subsidiaries maintains an Investment in equity securities and (b) Investments in any Person other than a Subsidiary in which the Company or any of its Restricted Subsidiaries maintains an Investment in equity securities up to U.S.$100 million in any calendar year minus the amount of any guarantees under clause (xviii) of  Section 3.9(b) .	
“Permitted Liens” means any of the following:
 
 	(1)	statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and materialmen 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 and any other Liens created by operation of law;	
 
 	(2)	Liens Incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and	
 
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 	other types of social security or (ii) other insurance maintained by the Company and its Subsidiaries in compliance with the Facilities Agreement (or any refinancing thereof);	
 
 	(3)	Liens 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;	
 
 	(4)	any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(5)	(i) Liens existing on the Issue Date other than in respect of the Collateral and (ii) Liens in respect of the Collateral to the extent equally and ratably securing the Notes and the Permitted Secured Obligations;	
 
 	(6)	any Lien on property acquired by the Company or its Restricted Subsidiaries after the Issue Date that was existing on the date of acquisition of such property;  provided , that such Lien was not incurred in anticipation of such acquisition, and any Lien created to secure all or any part 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 Company or any of its Restricted Subsidiaries after the Issue Date;  provided further , that (A) any such Lien permitted pursuant to this clause (6) 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) and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to, or is acquired for specific use with, such acquired property; and (B) if applicable, any such Lien shall be created within nine months after, in the case of property, its acquisition, or, in the case of improvements, their completion;	
 
 	(7)	any Liens renewing, extending or refunding any Lien permitted by clause (5)(i) above; provided, that such Lien is not extended to other property (or, instead, is only extended to equivalent property) and the principal amount of Indebtedness secured by such Lien immediately prior thereto is not increased or the maturity thereof reduced, except that the principal amount secured by any such Lien in respect of:	
 
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 	(a)	hedging obligations or other derivatives where there are fluctuations in mark-to-market exposures of those hedging obligations or other derivatives,	
 
 	(b)	Indebtedness consisting of any “Certificados Bursátiles de Largo Plazo” or the Bancomext Facility, or any Refinancing thereof, where principal may increase by virtue of capitalization of interest, and	
 
 	(c)	the Banobras Facility to the extent additional amounts are drawn thereunder,	
may be increased by the amount of such fluctuations, capitalizations or drawings, as the case may be;
 
 	(8)	Liens on Receivables Assets or Capital Stock of a Receivables Subsidiary, in each case granted in connection with a Qualified Receivables Transaction;	
 
 	(9)	Liens granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of business;	
 
 	(10)	any Lien permitted by the Trustee, acting pursuant to the instructions of at least 50% of the Holders;	
 
 	(11)	any Lien granted by the Company or any of its Restricted Subsidiaries to secure Indebtedness under a Permitted Liquidity Facility;  provided , that: (i) such Lien is not granted in respect of the Collateral, and (ii) the maximum amount of such Indebtedness secured by such Lien does not exceed U.S.$500 million at any time; or	
 
 	(12)	in addition to the Liens permitted by the foregoing clauses (1) through (11), Liens securing obligations of the Company and its Restricted Subsidiaries that in the aggregate secure obligations in an amount not in excess of the greater of (i) 5% of Consolidated Tangible Assets and (ii) U.S.$700 million.	
“Permitted Liquidity Facility” means a loan facility or facilities made available to the Company or any Restricted Subsidiary;  provided , that the aggregate principal amount of utilized and unutilized commitments under such facilities must not exceed U.S.$1 billion (or its equivalent in another currency) at any time.
“Permitted Merger Jurisdiction” has the meaning set forth in Section 4.1(a).
“Permitted Secured Obligations” means (i) the Facilities Agreement Indebtedness and any refinancing thereof made in accordance with the Facilities Agreement that is secured by the Collateral, (ii) notes (or similar instruments, including  Certificados Bursátiles ) outstanding on the date of the Facilities Agreement required to be secured by the Collateral pursuant to their
 
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terms, or any refinancing thereof permitted by the Facilities Agreement, (iii) future Indebtedness secured by the Collateral to the extent permitted by the Facilities Agreement and (iv) the Existing Senior Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with and at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.
“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Private Placement Legend” has the meaning assigned to it in Section 2.8(b).
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of financing all or any part of the purchase price or cost of construction of any property other than Capital Stock;  provided , that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of Refinancing.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Company or any Restricted Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell, convey, assign or otherwise transfer to a Receivables Entity any Receivables Assets to obtain funding for the operations of the Company and its Restricted Subsidiaries:
 
 	(1)	for which no term of any portion of the Indebtedness or any other obligations (contingent or otherwise) or securities Incurred or issued by any Person in connection therewith:	
 
 	(a)	directly or indirectly provides for recourse to, or any obligation of, the Company or any Restricted Subsidiary in any way, whether pursuant to a Guarantee or otherwise, except for Standard Undertakings,	
 
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 	(b)	directly or indirectly subjects any property or asset of the Company or any Restricted Subsidiary (other than Capital Stock of a Receivables Subsidiary) to the satisfaction thereof, except for Standard Undertakings, or	
 
 	(c)	results in such Indebtedness, other obligations or securities constituting Indebtedness of the Company or a Restricted Subsidiary, including following a default thereunder, and	
 
 	(2)	for which the terms of any Affiliate Transaction between the Company or any Restricted Subsidiary, on the one hand, and any Receivables Entity, on the other, other than Standard Undertakings and Permitted Investments, are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Company, and	
 
 	(3)	in connection with which, neither the Company nor any Restricted Subsidiary has any obligation to maintain or preserve a Receivable Entity’s financial condition, cause a Receivables Entity to achieve certain levels of operating results, fund losses of a Receivables Entity, or except in connection with Standard Undertakings, purchase assets of a Receivables Entity.	
“Rating Agencies” mean Fitch, Moody’s and S&P. In the event that Fitch, Moody’s or S&P is no longer in existence or issuing ratings, such organization may be replaced by a nationally recognized statistical rating organization (as defined in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act or any successor provision) designated by the Company with notice to the Trustee.
“Receivables Assets” means:
 
 	(1)	accounts receivable, leases, conditional sale agreements, instruments, chattel paper, installment sale contracts, obligations, general intangibles, and other similar assets, in each case relating to goods, inventory or services of the Company and its Subsidiaries,	
 
 	(2)	equipment and equipment residuals relating to any of the foregoing,	
 
 	(3)	contractual rights, Guarantees, letters of credit, Liens, insurance proceeds, collections and other similar assets, in each case related to the foregoing, and	
 
 	(4)	proceeds of all of the foregoing.	
 
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“Receivables Entity” means a Receivables Subsidiary or any other Person not an Affiliate of the Company, in each case whose sole business activity is to engage in Qualified Receivables Transactions, including to issue securities or other interests in connection with a Qualified Receivables Transaction.
“Receivables Subsidiary” means an Unrestricted Subsidiary of the Company that engages in no activities other than Qualified Receivables Transactions and activities related thereto and that is designated by the Issuer as a Receivables Subsidiary. Any such designation by the Issuer will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate of the Issuer.
“Record Date” has the meaning assigned to it in the Form of Face of Note contained in Exhibit A hereto.
“Redemption Date” means, with respect to any redemption of the Notes, the date fixed for such redemption pursuant to this Indenture and the Notes.
“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness in exchange for or to refinance, repay, redeem, replace, defease or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” will have correlative meanings.
“Refinancing Indebtedness” means Indebtedness of the Company or any Restricted Subsidiary issued to Refinance any other Indebtedness of the Company or a Restricted Subsidiary so long as:
 
 	(1)	the aggregate principal amount (or initial accreted value, if applicable) of such new Indebtedness as of the date of such proposed Refinancing does not exceed the aggregate principal amount (or accreted value as of such date, if applicable) of the Indebtedness being Refinanced (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred by the Company in connection with such Refinancing);	
 
 	(2)	such new Indebtedness has:	
 
 	(a)	a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced, and	
 
 	(b)	a final maturity that is equal to or later than the final maturity of the Indebtedness being Refinanced or, in the case of Indebtedness without a stated maturity, December 14, 2017; and	
 
 	(3)	if the Indebtedness being Refinanced is:	
 
 	(a)	Indebtedness of the Issuer, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
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 	(b)	Indebtedness of a Note Guarantor, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(c)	Indebtedness of any of the Restricted Subsidiaries, then such Refinancing Indebtedness will be Indebtedness of such Restricted Subsidiary, the Issuer and/or any Note Guarantor, and	
 
 	(d)	Subordinated Indebtedness, then such Refinancing Indebtedness shall be subordinate to the Notes or the relevant Note Guarantee, if applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.	
Notwithstanding the foregoing, with respect to any hedging obligations or derivatives outstanding on the Issue Date in respect of the Axtel Share Forward Transaction, “Refinancing Indebtedness” shall mean any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Registrar” has the meaning assigned to it in Section 2.3(a).
“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Note” has the meaning assigned to it in Section 2.1(e).
“Resale Restriction Termination Date” means for any Restricted Note (or beneficial interest therein), that is (a) not a Regulation S Global Note, the date on which the Issuer instructs the Trustee in writing to remove the Private Placement Legend from the Restricted Notes in accordance with the procedures described in  Section 2.9(h)  (which instruction is expected to be given on or about the one year anniversary of the issuance of the Restricted Notes) or (b) a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the date on which the Distribution Compliance Period therefor terminates.
“Restricted Note” means any Issue Date Note (or beneficial interest therein) or any Additional Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act until such time as:
 
 	(i)	the Resale Restriction Termination Date therefor has passed; or	
 
 	(ii)	the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.9 or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.	
“Restricted Obligations” has the meaning assigned to it in Section 10.6(b).
 
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“Restricted Payment” has the meaning set forth in Section 3.11(a).
“Restricted Subsidiary” means any Subsidiary of the Company, which at the time of determination is not an Unrestricted Subsidiary.
“Reversion Date” has the meaning assigned to in Section 3.22(e).
“Revocation” has the meaning set forth in Section 3.14(c).
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Note” has the meaning assigned to it in Section 2.1(d).
“S&P” means Standard & Poor’s Ratings Group and any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Company or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agent” means Wilmington Trust (London) Limited, as security agent under the Intercreditor Agreement.
“Security Documents” has the meaning assigned to it in Section 7.13.
“Senior Indebtedness” means (i) the Notes and any other Indebtedness of the Issuer or any Note Guarantor that ranks equal in right of payment with the Notes or the relevant Note Guarantee, as the case may be or (ii) Indebtedness for borrowed money or constituting Capitalized Lease Obligations of any Restricted Subsidiary other than the Issuer or a Note Guarantor.
“Significant Subsidiary” means a Subsidiary of the Company constituting a “Significant Subsidiary” of the Company in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act in effect on the date hereof.
“Similar Business” means (1) any business engaged in by the Company or any Restricted Subsidiary on the Issue Date, and (2) any business or other activities, including non-profit or charitable activities, that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses and activities in which the Company or any Restricted Subsidiary is engaged on the Issue Date, including, but not limited to, infrastructure projects, public works programs and consumer or supplier financing.
 
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“Special Record Date” has the meaning assigned to it in Section 2.13(a).
“SPV Perpetuals” means the perpetual debentures issued by special purpose vehicles in December 2006, February 2007 and March 2007, as amended or supplemented from time to time.
“Standard Undertakings” means representations, warranties, covenants, indemnities and similar obligations, including servicing obligations, entered into by the Company or any Subsidiary of the Company in connection with a Qualified Receivables Transaction, which are customary in similar non-recourse receivables securitization, purchase or financing transactions.
“Subordinated Indebtedness” means, with respect to the Issuer or any Note Guarantor, any Indebtedness of the Issuer or such Note Guarantor, as the case may be, which is expressly subordinated in right of payment to the Notes or the relevant Note Guarantee, as the case may be.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (X) such Person, (Y) such Person and one or more of its other Subsidiaries or (Z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “Subsidiary” shall refer to a Subsidiary of the Company.
“Successor Company” has the meaning assigned to it in Section 4.1(b).
“Successor Issuer” has the meaning assigned to it in Section 4.1(a).
“Successor Note Guarantor” has the meaning assigned to it in Section 4.1(c).
“Suspended Covenants” has the meaning assigned to it in Section 3.22(b).
“Suspension Date” has the meaning assigned to it in Section 3.22(c).
“Suspension Period” has the meaning assigned to it in Section 3.22(e).
“Swiss Note Guarantor” has the meaning assigned to it in Section 10.6(a).
“Taxes” has the meaning assigned to it in Section 3.21(a).
 
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“Taxing Jurisdiction” has the meaning assigned to it in Section 3.21(a).
“Transfer Agent” has the meaning assigned to it in Section 2.3(a).
“Transportation Agreements” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, having direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Trustee” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Undervalued Asset” has the meaning assigned to it in Section 10.6(g).
“USA PATRIOT Act” has the meaning assigned to it in Section 12.16.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of, or guaranteed by, the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.
“U.S. Legal Tender” means such coin or currency of the United States of America, as at the time of payment shall be legal tender for the payment of public and private debts.
“U.S. Person” means a “U.S. person” as defined in Regulation S.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Unrestricted Subsidiary” means any Subsidiary of the Company designated as such pursuant to Section 3.14 . Any such Designation may be revoked by the Issuer, subject to the provisions of such covenant.
“Voting Stock” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
 
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“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (calculated to the nearest one-twelfth) obtained by dividing:
 
 	(1)	the sum of the products obtained by multiplying:	
 
 	(a)	the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by	
 
 	(b)	the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment; by	
 
 	(2)	the then outstanding aggregate principal amount or liquidation preference, as the case may be, of such Indebtedness.	
“Wholly Owned Subsidiary” means, for any Person, any Subsidiary (Restricted Subsidiary in the case of the Company) of which at least 99.5% of the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
Section 1.2 [Reserved].
Section 1.3 Rules of Construction. Unless the context otherwise requires:
 
 	(1)	a term has the meaning assigned to it;	
 
 	(2)	an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;	
 
 	(3)	“or” is not exclusive;	
 
 	(4)	“including” means including without limitation;	
 
 	(5)	words in the singular include the plural and words in the plural include the singular; and	
 
 	(6)	references to the payment of principal of the Notes shall include applicable premium, if any.	
 
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ARTICLE II
THE NOTES
Section 2.1 Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by the Issuer pursuant to a Purchase Agreement, dated as of March 25, 2014, among the Issuer, the Note Guarantors party thereto, Citigroup Global Markets Inc., Credit Agricole Securities (USA) Inc., HSBC Securities (USA) Inc., J.P. Morgan Securities LLC and Santander Investment Securities Inc., as Initial Purchasers with respect to the Notes. The Notes will be issued as one or more Global Notes in fully registered form without interest coupons, and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Each such Global Note shall constitute a single Note for all purposes under this Indenture. Certificated Notes, if issued pursuant to the terms hereof, will be issued in fully registered certificated form without coupons. The Notes may only be issued in definitive fully registered form without coupons and only in denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of Exhibit A  hereto.
(b) The terms and provisions of the Notes, the form of which is in Exhibit A hereto, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer, the Note Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes (including Additional Notes) shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class and are otherwise treated as a single issue of securities.
(c) The Notes may have notations, legends or endorsements as specified in Section 2.8 or as otherwise required by law, stock exchange rule or DTC, Euroclear or Clearstream rule or usage. The Issuer and the Trustee shall approve any changes to the form of the Notes attached to this Indenture and any additional notation, legend or endorsement required to be inserted on them. Each Note shall be dated the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a “ Rule 144A Global Note ”). Each Rule 144A Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC. In no event shall any Person hold an interest in a Rule 144A Global Note other than in or through accounts maintained at DTC.
(e) Notes originally offered and sold outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Notes (each, a “ Regulation S Global Note ”). Each Regulation S Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian and registered in the name of DTC or its nominee, for credit to the accounts maintained at DTC by or on behalf of Euroclear
 
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or Clearstream. In no event shall any Person hold an interest in a Regulation S Global Note other than in or through accounts maintained at DTC by or on behalf of Euroclear or Clearstream.
Section 2.2 Execution and Authentication.
(a) Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until manually authenticated by an authorized signatory of the Trustee or an agent appointed by the Trustee (and reasonably acceptable to the Issuer) for such purpose (an “ Authenticating Agent ”). The signature of an authorized signatory of the Trustee or an Authenticating Agent on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. Unless limited by the terms of its appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by an Authenticating Agent.
(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Issuer signed by an Officer of the Issuer (the “ Issuer Order ”). An Issuer Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
(d) In case a Successor Issuer has executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Successor Issuer be exchanged for other Notes executed in the name of the Successor Issuer with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of the Successor Issuer, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a Successor Issuer pursuant to this  Section 2.2  in exchange or substitution for or upon registration of transfer of any Notes, such Successor Issuer, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
Section 2.3 Registrar, Paying Agent and Transfer Agent.
(a) The Issuer shall maintain an office or agency in the Borough of Manhattan, City of New York, that shall keep a register of the Notes (the “ Note Register ”) and of their transfer and exchange (the “ Registrar ”), where Notes may be presented or surrendered for registration of transfer or for exchange (the “Transfer Agent”), where Notes may be presented for payment (the “Paying Agent”) and for the service of notices and demands to or upon the Issuer in respect of the Notes and this Indenture. The Issuer may have one or more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any additional
 
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paying agent. In addition, the Issuer undertakes to the extent possible, to use reasonable efforts to maintain a Paying Agent in a member state of the European Union that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC regarding taxation of savings income.
(b) The Issuer shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to  Section 7.7 . The Issuer or any Affiliate of the Issuer may act as Paying Agent, Registrar or co-Registrar, or transfer agent.
(c) The Issuer initially designates the Corporate Trust Office of the Trustee as such office or agency of the Issuer as required by  Section 2.3(a)  and appoints the Trustee as Registrar, Paying Agent, Transfer Agent and agent for service of demands and notices in connection with the Notes and this Indenture, until such time as another Person is appointed as such.
Section 2.4 Paying Agent to Hold Money in Trust.
The Issuer shall require each paying agent (other than the Trustee) to agree in writing that such paying agent shall hold in trust for the benefit of Holders or the Trustee all money held by such paying agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any Default by the Issuer or any Note Guarantor in making any such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this  Section 2.4 , the Paying Agent (if other than the Issuer or any Affiliate of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Issuer or any Affiliate of the Issuer, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
Section 2.5 Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. At any time that the Trustee is not the Registrar the Issuer shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.6 CUSIP Numbers.
The Issuer in issuing Notes may use “CUSIP” numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Securities “CUSIP” number in notices to the Holders as a convenience to such Holders;  provided,  that any such notice may state that no
 
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representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any changes in the “CUSIP” numbers.
Section 2.7 Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the name of DTC or the nominee of DTC, (ii) be delivered to the Note Custodian and (iii) bear the appropriate legends as set forth in  Section 2.8  and  Exhibit A  hereto. Any Global Note may be represented by one or more certificates. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture.
(b) Except as provided in clause (iii) of Section 2.7(c), members of, or participants in, DTC (“Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by DTC or by the Note Custodian, and DTC may be treated by the Issuer, any Note Guarantor, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by DTC or (ii) impair, as between DTC and its Agent Members, the operation of customary practices of DTC governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including DTC, or its nominee, Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Except as provided in this Section 2.7(c), owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes in exchange for such beneficial interests.
 
 	(i)	Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such beneficial interests if (A) DTC notifies the Issuer that it is unwilling or unable to continue as depositary for such Global Note or (B) DTC ceases to be a clearing agency registered under the Exchange Act, at a time when DTC is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Issuer within 90 days of such notice. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this clause (i) of this  Section 2.7(c) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and deliver to each beneficial owner identified by DTC in exchange for its beneficial	
 
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 	interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations, and the Registrar shall register such exchanges in the Note Register.	
 
 	(ii)	The owner of a beneficial interest in a Global Note will be entitled to receive Certificated Notes in exchange for such interest if an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members through DTC on behalf of the owner of a beneficial interest in a Global Note directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Note for Certificated Notes, subject to and in accordance with the Applicable Procedures, the Issuer shall promptly execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to such beneficial owner, Certificated Notes in a principal amount equal to such beneficial interest in such Global Note.	
 
 	(iii)	If (A) an event described in clause (i) of Section 2.7(c) occurs and Certificated Notes are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner the instructions described in clause (ii) of  Section 2.7(c)  and Certificated Notes are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to  Section 6.6 hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Certificated Notes had been issued.	
Section 2.8 Legends.
(a) Each Global Note shall bear the legend specified therefor in Exhibit A hereto on the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in Exhibit A hereto on the face thereof (the “ Private Placement Legend ”).
Section 2.9 Transfer and Exchange.
(a) Transfers of Beneficial Interests in a Rule 144A Global Note. If the owner of a beneficial interest in a Rule 144A Global Note that is a Restricted Note wishes to transfer such interest (or portion thereof) pursuant to Rule 144 (if available) or to a Non-U.S. Person pursuant to Regulation S:
 
 	(i)	upon receipt by the Registrar of:	
 
 	(A)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Regulation S Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
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 	(B)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(C)	a certificate in the form of Exhibit B or Exhibit C hereto, as applicable, duly executed by the transferor;	
 
 	(ii)	the Note Custodian shall increase the Regulation S Global Note and decrease the Rule 144A Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(b) Transfers of Beneficial Interests in a Regulation S Global Note. Subject to the Applicable Procedures, the following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note that is a Restricted Note:
If the owner of a beneficial interest in a Regulation S Global Note that is a Restricted Note wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A:
 
 	(A)	upon receipt by the Registrar of:	
 
 	(1)	instructions from an Agent Member given to DTC in accordance with the Applicable Procedures directing DTC to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(2)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(3)	a certificate in the form of Exhibit D hereto, duly executed by the transferor;	
 
 	(B)	the Note Custodian shall increase the Rule 144A Global Note and decrease the Regulation S Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(c) Other Transfers. Any registration of transfer of Restricted Notes (including Certificated Notes) not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel,
 
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certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with  Section 2.9(d) .
(d) Use and Removal of Private Placement Legends. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing (or not required to bear upon such transfer, exchange or replacement) a Private Placement Legend, the Note Custodian and Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note or Certificated Notes if they have been issued pursuant to  Section 2.7(c)  that does not bear a Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
 
 	(i)	such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of  Exhibit C  hereto, and an Opinion of Counsel reasonably satisfactory to the Registrar;	
 
 	(ii)	such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor and, in the case of any such Restricted Notes, the Issuer has complied with the applicable procedures for delegending in accordance with  Section 2.9(h) ; or	
 
 	(iii)	in connection with such registration of transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably satisfactory to the Issuer and the Registrar to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.	
The Holder of a Global Note bearing a Private Placement Legend may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to this  Section 2.9(d) .
(e) Consolidation of Global Notes and Exchange of Certificated Notes for Beneficial Interests in Global Notes. If a Global Note not bearing a Private Placement Legend is Outstanding at the time of a removal of legends pursuant to Section 2.9(h) , any interests in a Global Note delegended pursuant to  Section 2.9(h)  shall be exchanged for interests in such Outstanding Global Note, subject to the proviso at the end of  Section 2.14(a) .
(f) Retention of Documents. The Registrar and the Trustee shall retain copies of all letters, notices and other written communications received pursuant to this  Article II  and in accordance with the Trustee’s, or if different, the Registrar’s, record retention procedures. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar or the Trustee, as the case may be.
 
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(g) General Provisions Relating to Transfers and Exchanges.
 
 	(i)	Subject to the other provisions of this Section 2.9, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met;  provided , that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.	
 
 	(ii)	To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II , the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, Certificated Notes and Global Notes, as applicable, at the Registrar’s or co-Registrar’s request.	
 
 	(iii)	No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer and the Trustee may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to  Section 3.8 ,  Section 3.9 ,  Section 5.1  or  Section 9.5 ).	
 
 	(iv)	The Registrar or co-Registrar shall not be required to register the transfer of or exchange of (x) any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.	
 
 	(v)	Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar or the Note Custodian shall be affected by notice to the contrary.	
 
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 	(vi)	All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.	
 
 	(vii)	Subject to Section 2.7 and this Section 2.9, in connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged.	
(h) Applicable Procedures for Delegending.
 
 	(i)	Promptly after one year has elapsed following (A) the Issue Date or (B) if the Issuer has issued Additional Notes with the same terms and the same CUSIP number as the Issue Date Notes pursuant to this Indenture within one year following the Issue Date, the date of original issuances of such Additional Notes, if the relevant Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Issuer where no conditions of Rule 144 are then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Issuer shall:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Notes, and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;	
 
 	(2)	notify Holders of such Notes that the Private Placement Legend has been removed or deemed removed; and	
 
 	(3)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
In no event will the failure of the Issuer to provide any notice set forth in this paragraph or of the Trustee to remove the Private Placement Legend constitute a failure by the Issuer to comply with any of its covenants or agreements set forth in  Section 6.1  or otherwise. Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Restricted
 
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Note for exchange to the Registrar in accordance with the provisions of Article II of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend. The Issuer shall notify the Trustee in writing upon occurrence of the Resale Restriction Termination Date for any Note.
 
 	(ii)	In the case of a Regulation S Global Note, after the Resale Restriction Termination Date of any such Regulation S Global Note, the Issuer may, at its sole option:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Regulation S Global Note (including setting forth the basis for such removal), and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from such Regulation S Global Note without further action on the part of Holders; and	
 
 	(2)	instruct DTC to change the CUSIP number for such Notes to the unrestricted CUSIP number for the Notes.	
 
 	(iii)	Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (A) each reference in this  Section 2.9(h)  to “one year” and in the Private Placement Legend described in  Section 2.8(b)  and  Exhibit A  hereto to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, and (B) all corresponding references in this Indenture (including the definition of Resale Restriction Termination Date), the Notes and the Private Placement Legends thereon shall be deemed for all purposes hereof to be references to such changed period;  provided , that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws;  provided further  that if such change does not apply to existing Notes, all references to “one year” in this Indenture shall not be deemed for all purposes hereof to be references to such changed period. This Section 2.9(h)  shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.	
(i) No Obligation of the Trustee.
 
 	(i)	The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, Agent Members or any other Persons with respect to the accuracy of the records of DTC or its nominee or of Agent Members, with respect to any ownership interest	
 
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 	in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC, subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its Agent Members and any beneficial owners.	
 
 	(ii)	The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.	
Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery, a replacement Note for such mutilated, lost or stolen Note, of like tenor and principal amount, bearing a number not contemporaneously Outstanding if:
 
 	(i)	the requirements of Section 8-405 of the Uniform Commercial Code are met,	
 
 	(ii)	the Holder satisfies any other reasonable requirements of the Trustee, and	
 
 	(iii)	neither the Issuer nor the Trustee has received notice that such Note has been acquired by a protected purchaser (as defined in  Section 8-303  of the Uniform Commercial Code).	
If required by the Trustee or the Issuer, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar and the Note Custodian from any loss that any of them may suffer if a Note is replaced.
 
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(b) Upon the issuance of any new Note under this Section 2.10, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.10 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Note Guarantor and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
Section 2.11 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer will prepare and execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuer pursuant to  Section 2.3  for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery in exchange therefor, one or more definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.12 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or upon written request of the Issuer, return to the Issuer all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange upon Issuer Order.
Section 2.13 Defaulted Interest.
When any installment of interest becomes overdue (a “Defaulted Interest”), such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) shall be paid by the Issuer, at its election, as provided in clause (a) or clause (b) below.
 
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(a) The Issuer may elect to make payment of any Defaulted Interest (including any interest payable on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “ Special Record Date ”), which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this  Section 2.13(a) . Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest, which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to clause (b) below; or
(b) The Issuer may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this  Section 2.13(b) , such manner of payment shall be deemed practicable by the Trustee. The Trustee shall in the name and at the expense of the Issuer cause prompt notice of the proposed payment and the date thereof to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register.
Section 2.14 Additional Notes.
(a) The Issuer may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“ Additional Notes ”) that shall have terms and conditions identical to those of the other Outstanding Notes, except with respect to:
 
 	(i)	the Issue Date;	
 
 	(ii)	the amount of interest payable on the first Interest Payment Date therefor;	
 
 	(iii)	the issue price; and	
 
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 	(iv)	any adjustments necessary in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any agreement applicable to such Additional Notes, which are not adverse in any material respect to the Holder of any Outstanding Notes (other than such Additional Notes).	
The Notes issued on the Issue Date and any Additional Notes shall be treated as a single series for all purposes under this Indenture;  provided , that the Issuer may use different CUSIP or other similar numbers among Issue Date Notes and among Additional Notes to the extent required to comply with securities or tax law requirements, including to permit delegending pursuant to  Section 2.9(h) .
(b) With respect to any Additional Notes, the Issuer will set forth in an Officer’s Certificate of the Issuer (the “ Additional Note Certificate ”), copies of which will be delivered to the Trustee, the following information:
 
 	(i)	the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;	
 
 	(ii)	the Issue Date and the issue price of such Additional Notes; provided, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code, unless such Additional Notes have a separate CUSIP or other similar number from other Notes; and	
 
 	(iii)	whether such Additional Notes will be subject to transfer restrictions under the Securities Act (or other applicable securities laws).	
ARTICLE III
COVENANTS
Section 3.1 Payment of Notes.
(a) The Issuer shall pay the principal of and interest (including Defaulted Interest) on the Notes in U.S. Legal Tender on the dates and in the manner provided in the Notes and in this Indenture. Prior to 10:00 a.m. New York City time, on the Business Day prior to each Interest Payment Date and the Maturity Date, the Issuer shall deposit with the Paying Agent in immediately available funds U.S. Legal Tender sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. If the Issuer or an Affiliate of the Issuer is acting as Paying Agent, the Issuer or such Affiliate shall, prior to 10:00 a.m. New York City time on the Business Day prior to each Interest Payment Date and the Maturity Date, segregate and hold in trust U.S. Legal Tender, sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or an Affiliate of the Issuer) holds in accordance with this Indenture U.S. Legal Tender designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
 
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(b) Notwithstanding anything to the contrary contained in this Indenture, the Issuer may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest.
(c) In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (“Applicable Tax Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee and the Paying Agent sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so the Trustee and Paying Agent can determine whether it has tax related obligations under Applicable Tax Law, (ii) that the Trustee and the Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Tax Law for which the Trustee and the Paying Agent shall not have any liability and (iii) to hold harmless the Trustee and the Paying Agent for any losses it may suffer due to the actions it takes to comply with Applicable Tax Law. The terms of this section shall survive the termination of this Indenture.
(d) The Issuer hereby instructs the Trustee to establish an “Issue Date Note Account” for reception of the interest and principal payments for the Issue Date Notes.
Section 3.2 Maintenance of Office or Agency.
(a) The Issuer shall maintain each office or agency required under Section 2.3. The Issuer will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Issuer may also from time to time designate one or more other offices or agencies (in or outside of the City of New York) where the Notes may be presented or surrendered for registration of transfer or for exchange and may from time to time rescind any such designation;  provided, however , that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the City of New York for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
Section 3.3 Corporate Existence. Subject to Article IV, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 3.4 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or for which it or any of them are otherwise liable, or upon the income, profits or
 
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property of the Company or any Restricted Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Lien upon the property of the Company or any Restricted Subsidiary;  provided, however,  that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of the Issuer), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.5 Compliance Certificate. The Issuer and each Note Guarantor shall deliver to the Trustee within 105 days after the end of each fiscal year of the Company (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue Date) an Officer’s Certificate stating that in the course of the performance by the signers of their duties as Officers of the Issuer or such Note Guarantor, as the case may be, they would normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during the previous fiscal year. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Issuer or such Note Guarantor is taking or proposes to take with respect thereto.
Section 3.6 Further Instruments and Acts.
(a) The Issuer and each Note Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture.
(b) The Issuer and the Note Guarantors shall take, and shall cause their Subsidiaries party thereto to take, any and all actions required under the Intercreditor Agreement and the Security Documents to cause the Intercreditor Agreement and the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Note Guarantors hereunder, a valid and enforceable perfected security interest on all the Collateral, in favor of the Security Agent for the equal and ratable benefit of the Holders of the Notes, and the other Permitted Secured Obligations, first in priority to any and all security interests at any time granted upon the Collateral, subject in all respects to Liens imposed by law and Liens for judgments, taxes, assessments or governmental charges.
Section 3.7 Waiver of Stay, Extension or Usury Laws. The Issuer and each Note Guarantor covenant (to the fullest extent permitted by applicable law) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or such Note Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Issuer and each Note Guarantor hereby expressly waives (to the fullest extent permitted by applicable law) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
 
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Section 3.8 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon through the date of purchase (the “ Change of Control Payment ”).
(b) Within 30 days following the date upon which the Change of Control occurred, the Issuer must send, by first-class mail, a notice to each Holder, with a copy to the Trustee, offering to purchase the Notes as described above (a “ Change of Control Offer ”). The Change of Control Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Change of Control Payment Date ”).
(c) On the Change of Control Payment Date, the Issuer will, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(d) If only a portion of a Note is purchased pursuant to a Change of Control Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);  provided,  that each new Note shall be in a minimum principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
(e) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if:
 
 	(i)	a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or	
 
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 	(ii)	notice of redemption has been given pursuant to this Indenture as described under Section 5.4 unless and until there is a default in payment of the applicable redemption price.	
(f) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations in connection with the purchase of Notes in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by doing so.
Section 3.9 Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness, including Acquired Indebtedness, except that the Issuer and/or any of the Note Guarantors may Incur Indebtedness, including Acquired Indebtedness, if, at the time of and immediately after giving  pro forma  effect to the Incurrence thereof and the application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Company is greater than or equal to 2.0 to 1.0.
(b) Notwithstanding clause (a) above, the Company and/or any of its Restricted Subsidiaries, as applicable, may Incur the following Indebtedness (“ Permitted Indebtedness ”):
 
 	(i)	Indebtedness consisting of the Notes, excluding Additional Notes, and Indebtedness consisting of the Other Notes;	
 
 	(ii)	Guarantees by (A) any Note Guarantor of Indebtedness of the Issuer or another Note Guarantor permitted under this Indenture and (B) the Issuer of Indebtedness of any Note Guarantor;  provided , that if any such Guarantee is of Subordinated Indebtedness, then the obligations of the Issuer under the Notes and this Indenture or the Note Guarantee of such Note Guarantor, as applicable, will be senior to the Guarantee of such Subordinated Indebtedness;	
 
 	(iii)	Indebtedness of the Company and/or any of its Restricted Subsidiaries outstanding on the Issue Date (excluding Indebtedness permitted under clauses (v), (vi), (vii) or (x) of this definition of Permitted Indebtedness);	
 
 	(iv)	Hedging Obligations, Compensation Related Hedging Obligations and any Guarantees thereof and any reimbursement obligations with respect to letters of credit related thereto, in each case entered into by the Company and/or any of its Restricted Subsidiaries;  provided , that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;	
 
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 	(v)	intercompany Indebtedness between the Company and any Restricted Subsidiary or between any Restricted Subsidiaries;  provided , that in the event that at any time any such Indebtedness ceases to be held by the Issuer or a Restricted Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause (v) at the time such event occurs;	
 
 	(vi)	Indebtedness of the Company and/or any of its Restricted Subsidiaries arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;  provided , that such Indebtedness is extinguished within five Business Days of Incurrence; or (B) any cash pooling or other cash management agreements in place with a bank or financial institution but only to the extent of offsetting credit balances of the Company and/or its Restricted Subsidiaries pursuant to such cash pooling or other cash management agreement;	
 
 	(vii)	Indebtedness of the Company and/or any of its Restricted Subsidiaries represented by (A) endorsements of negotiable instruments in the ordinary course of business (excluding an  aval ), (B) documentary credits (including all forms of letter of credit), performance bonds or guarantees, advance payments, bank guarantees, bankers’ acceptances, surety or appeal bonds or similar instruments for the account of, or guaranteeing performance by, the Company and/or any Restricted Subsidiary in the ordinary course of business, (C) reimbursement obligations with respect to letters of credit in the ordinary course of business, (D) reimbursement obligations with respect to letters of credit and performance Guarantees in the ordinary course of business to the extent required pursuant to the terms of any Investment made pursuant to clause (12) of the definition of “Permitted Investment” and (E) other Guarantees by the Company and/or any Restricted Subsidiary in favor of a bank or financial institution in respect of obligations of that bank or financial institution to a third party in an amount not to exceed U.S.$500 million at any one time outstanding; provided , that in the case of clauses (B), (C) and (D), upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;	
 
 	(viii)	Refinancing Indebtedness in respect of:	
 
 	(A)	Indebtedness (other than Indebtedness owed to the Company or any Subsidiary of the Company) Incurred pursuant to clause (a) above (it being understood that no Indebtedness outstanding on the Issue Date is Incurred pursuant to such clause (a) above), or	
 
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 	(B)	Indebtedness Incurred pursuant to clause (i), (ii) or (iii) above or this clause (viii);	
 
 	(ix)	Capitalized Lease Obligations, Sale and Leaseback Transactions, export credit facilities with a maturity of at least one year and Purchase Money Indebtedness of, including Guarantees of any of the foregoing by, the Company and/or any Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed U.S.$1 billion;	
 
 	(x)	Indebtedness arising from agreements entered into by the Company and/or a Restricted Subsidiary providing for bona fide indemnification, adjustment of purchase price or similar obligations not for financing purposes, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary (including minority interests);  provided , that in the case of a disposition, the maximum aggregate liability in respect of such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;	
 
 	(xi)	Indebtedness of the Company and/or any of its Restricted Subsidiaries in an aggregate amount not to exceed U.S.$1 billion at any one time outstanding;  provided , that no more than U.S.$250 million of such Indebtedness at any one time outstanding (excluding any Indebtedness under a Permitted Liquidity Facility) may be Incurred by Restricted Subsidiaries that are not the Issuer or Note Guarantors, which amount shall be increased by the corresponding amount of other Indebtedness of Restricted Subsidiaries other than the Issuer and the Note Guarantors outstanding on the Issue Date and subsequently repaid from time to time but in any event not to exceed U.S.$500 million at any one time outstanding;  provided, further, however , that (A) the Company and/or any of its Restricted Subsidiaries may Incur Indebtedness under a Permitted Liquidity Facility and (B) in the event that the Company and/or any of its Restricted Subsidiaries shall have Incurred Indebtedness under a Permitted Liquidity Facility that increases the amount outstanding at such time pursuant to this clause (xi) in excess of U.S.$ 1 billion, then up to U.S.$1.2 billion may be Incurred pursuant to this clause (xi) at any one time outstanding;	
 
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 	(xii)	(A) Indebtedness of the Company and/or any of its Restricted Subsidiaries in respect of factoring arrangements or Inventory Financing arrangements or (B) other Indebtedness of the Company and/or any of its Restricted Subsidiaries with a maturity of 12 months or less for working capital purposes, not to exceed in the aggregate at any one time (calculated as of the end of the most recent fiscal quarter for which consolidated financial information of the Company is available) the greater of:	
 
 	(1)	The sum of:	
 
 	(x)	20% of the net book value of the inventory of the Company and its Restricted Subsidiaries and	
 
 	(y)	20% of the net book value of the accounts receivable of the Company and its Restricted Subsidiaries (excluding accounts receivable pledged to secure Indebtedness or subject to a Qualified Receivables Transaction),	
less, in each case, the amount of any permanent repayments or reductions of commitments in respect of such Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to comply with Section 3.12 ; or
 
 	(2)	U.S.$350 million;	
 
 	(xiii)	[Reserved];	
 
 	(xiv)	Indebtedness of the Company and/or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business; provided, that such Indebtedness shall be permitted to be Incurred only at such time that the Facilities Agreement (or any refinancing thereof) shall contain an exception to allow the Incurrence of Indebtedness to pay taxes;	
 
 	(xv)	Indebtedness Incurred pursuant to the Banobras Facility;	
 
 	(xvi)	Indebtedness of the Company and/or any of its Restricted Subsidiaries Incurred and/or issued to refinance Qualified Receivables Transactions in existence on the Issue Date;	
 
 	(xvii)	Acquired Indebtedness in an aggregate amount at any one time outstanding under this clause (xvii) not to exceed U.S.$100 million; and	
 
 	(xviii)	(A) any Indebtedness that constitutes an Investment that the Company and/or any of its Restricted Subsidiaries is contractually committed to Incur as of the Issue Date in any Person (other than a Subsidiary) in which the Company or any of its Restricted Subsidiaries maintains an Investment in equity securities; and (B) Guarantees up to U.S.$100 million in any calendar year by the Company and/or any Restricted Subsidiary of Indebtedness of any Person in which the Company or any of its Restricted Subsidiaries maintains an equity Investment	
 
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 	minus any Investment other than such guarantees in such Person during such calendar year pursuant to clause (17)(b) of the definition of “Permitted Investments.”	
(c) Notwithstanding anything to the contrary contained in this Section 3.9,
 
 	(i)	The Company shall not, and shall not permit any Note Guarantor to, Incur any Permitted Indebtedness pursuant to  Section 3.9(b)  if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Indebtedness unless such Indebtedness shall be subordinated to the Notes or the applicable Note Guarantee, as the case may be, to at least the same extent as such Subordinated Indebtedness.	
 
 	(ii)	For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with this  Section 3.9 , the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness for purposes of this  Section 3.9 . For purposes of determining compliance with this  Section 3.9 , mark-to-market fluctuations of hedging obligations or derivatives outstanding on the Issue Date shall not constitute Incurrence of Indebtedness.	
 
 	(iii)	For purposes of determining compliance with this Section 3.9, the principal amount of Indebtedness denominated in foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;  provided , that if such Indebtedness is Incurred to refinance other Indebtedness denominated in foreign currency, and such refinancing would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this  Section 3.9 , the maximum amount of Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.	
 
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 	(iv)	For purposes of determining compliance with this Section 3.9:	
 
 	(A)	in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including, without limitation, in  Section 3.9(a) , the Company, in its sole discretion, will classify such item of Indebtedness at the time of Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and may later reclassify all or a portion of such item of Indebtedness as having been Incurred pursuant to any other clause to the extent such Indebtedness could be Incurred pursuant to such clause at the time of such reclassification; and	
 
 	(B)	the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above, including, without limitation,  Section 3.9(a) .	
Section 3.10 [Reserved].
Section 3.11 Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, take any of the following actions (each, a “ Restricted Payment ”):
 
 	(i)	declare or pay any dividend or return of capital or make any distribution on or in respect of shares of Capital Stock of the Company or any Restricted Subsidiary to holders of such Capital Stock, other than:	
 
 	(A)	dividends, distributions or returns on capital payable in Qualified Capital Stock of the Company,	
 
 	(B)	dividends, distributions or returns on capital payable to the Company and/or a Restricted Subsidiary,	
 
 	(C)	dividends, distributions or returns of capital made on a pro rata basis to the Company and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand (or on less than a pro rata basis to any minority holder);	
 
 	(ii)	purchase, redeem or otherwise acquire or retire for value:	
 
 	(A)	any Capital Stock of the Company, or	
 
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 	(B)	any Capital Stock of any Restricted Subsidiary held by an Affiliate of the Company or any Preferred Stock of a Restricted Subsidiary, except for:	
 
 	(1)	Capital Stock held by the Company or a Restricted Subsidiary, or	
 
 	(2)	purchases, redemptions, acquisitions or retirements for value of Capital Stock on a pro rata basis from the Company and/or any Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand, according to their respective percentage ownership of the Capital Stock of such Restricted Subsidiary;	
 
 	(iii)	make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Subordinated Indebtedness; or	
 
 	(iv)	make any Investment (other than Permitted Investments);	
if at the time of the Restricted Payment immediately after giving effect thereto:
 
 	(A)	a Default or an Event of Default shall have occurred and be continuing;	
 
 	(B)	the Company is not able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); or	
 
 	(C)	the aggregate amount (the amount expended for these purposes, if other than in cash, being the Fair Market Value of the relevant property at the time of the making thereof) of the proposed Restricted Payment and all other Restricted Payments made subsequent to the Issue Date up to the date thereof, less any Investment Return calculated as of the date thereof, shall exceed the sum of:	
 
 	(1)	50% of cumulative Consolidated Net Income of the Company or, if cumulative Consolidated Net Income of the Company is a loss, minus (i) 100% of the loss, accrued during the period, treated as one accounting period, beginning on the first full fiscal quarter after the Issue Date to the end of the most recent fiscal quarter for which consolidated financial information of the Company is available and (ii) the amount of cash benefits to the Company or a Restricted Subsidiary that is netted against Investments in Similar Businesses pursuant to clause (12) of the definition of “Permitted Investments”; plus	
 
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 	(2)	100% of the aggregate net cash proceeds received by the Company from any Person from any:	
 
 	•	 	contribution to the equity capital of the Company (not representing an interest in Disqualified Capital Stock) or issuance and sale of Qualified Capital Stock of the Company, in each case, subsequent to the Issue Date, or	
 
 	•	 	issuance and sale subsequent to the Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at such time as it was a Restricted Subsidiary) of any Indebtedness for borrowed money of the Company or any Restricted Subsidiary that has been converted into or exchanged for Qualified Capital Stock of the Company,	
excluding, in each case, any net cash proceeds:
 
 	•	 	received from a Subsidiary of the Company;	
 
 	•	 	used to redeem Notes under Article V;	
 
 	•	 	used to acquire Capital Stock or other assets from an Affiliate of the Company; or	
 
 	•	 	applied in accordance with clause (ii)(B) or (iii)(A) of Section 3.11(b) below.	
(b) Notwithstanding Section 3.11(a), this Section 3.11 does not prohibit:
 
 	(i)	the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration pursuant to  Section 3.11(a) ;	
 
 	(ii)	if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Company,	
 
 	(A)	in exchange for Qualified Capital Stock of the Company, or	
 
 	(B)	through the application of the net cash proceeds received by the Company from a substantially concurrent sale of Qualified Capital Stock of the Company or a contribution to the equity capital of the Company not representing an interest in Disqualified Capital Stock, in each case not received from a Subsidiary of the Company;	
 
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 	    	provided, that the value of any such Qualified Capital Stock issued in exchange for such acquired Capital Stock and any such net cash proceeds shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);	
 
 	(iii)	if no Default or Event of Default shall have occurred and be continuing, the voluntary prepayment, purchase, defeasance, redemption or other acquisition or retirement for value of any Subordinated Indebtedness:	
 
 	(A)	solely in exchange for, or through the application of net cash proceeds of a substantially concurrent sale, other than to a Subsidiary of the Company, of Qualified Capital Stock of the Company, or	
 
 	(B)	solely in exchange for Refinancing Indebtedness for such Subordinated Indebtedness,	
 
 	    	provided, that the value of any Qualified Capital Stock issued in exchange for Subordinated Indebtedness and any net cash proceeds referred to above shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);	
 
 	(iv)	repurchases by the Company of Common Stock of the Company or options, warrants or other securities exercisable or convertible into Common Stock of the Company from employees or directors of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment or directorship of the employees or directors, in an amount not to exceed U.S.$5 million in any calendar year and any repurchases other than in connection with compensation of Common Stock of the Company pursuant to binding written agreements in effect on the Issue Date;	
 
 	(v)	payments of dividends on Disqualified Capital Stock issued pursuant to the covenant described under Section 3.9 ;  provided, however , that such dividends shall be excluded in the calculation of the amount of Restricted Payments;	
 
 	(vi)	non-cash repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights;	
 
 	(vii)	cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company;	
 
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 	(viii)	purchases of any Subordinated Indebtedness of the Company (A) at a purchase price not greater than 101% of the principal amount thereof (together with accrued and unpaid interest) in the event of the occurrence of a Change of Control or (B) at a purchase price not greater than 100% of the principal amount thereof (together with accrued and unpaid interest) in the event of an Asset Sale in accordance with provisions similar to those set forth under  Section 3.12 ;  provided, however , that prior to such purchase of any such Subordinated Indebtedness, the Company has made the Change of Control Offer or Asset Sale Offer as provided under  Section 3.8  or Section 3.12 , respectively, and has purchased all Notes validly tendered and not properly withdrawn pursuant thereto;	
 
 	(ix)	recapitalization of earnings on or in respect of the Qualified Capital Stock of the Company pursuant to which additional Qualified Capital Stock of the Company or the right to subscribe for additional Capital Stock of the Company is issued to the existing shareholders of the Company on a  pro rata  basis (which, for the avoidance of doubt, shall not allow any payment in cash to be made in respect of Qualified Capital Stock of the Company pursuant to this clause (ix)); and	
 
 	(x)	so long as (A) no Default or Event of Default shall have occurred and be continuing (or result therefrom) and (B) the Company could Incur at least U.S.$1.00 of additional Debt pursuant to Section 3.9(a) , payment of any dividends on Capital Stock (other than Disqualified Capital Stock) of the Company in an aggregate amount which, when taken together with all dividends paid pursuant to this clause (x), does not exceed U.S.$50 million in any calendar year;  provided , that such dividends shall be included in the calculation of the amount of Restricted Payments.	
 
 	(xi)	[Reserved]	
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (i) (without duplication for the declaration of the relevant dividend), (iv), (viii) and (x) above shall be included in such calculation and amounts expended pursuant to clauses (ii), (iii), (v), (vi), (vii) and (ix) above shall not be included in such calculation.
Section 3.12 Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
 
 	(i)	the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to	
 
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 	the Fair Market Value (to be determined as of the date on which such sale is contracted) of the assets sold or otherwise disposed of, and	
 
 	(ii)	other than in respect of Permitted Asset Swap Transactions, at least 80% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale;  provided, however , for the purposes of this clause (ii), the following are also deemed to be cash or Cash Equivalents:	
 
 	(A)	the assumption of Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Sale;	
 
 	(B)	any securities, notes or obligation received by the Company or any Restricted Subsidiary from the transferee that are, within 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion;	
 
 	(C)	Capital Stock of a Person who is or who, after giving effect to such Asset Sale, becomes, a Restricted Subsidiary; and	
 
 	(D)	any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in connection with such Asset Sale having an aggregate Fair Market Value which, when taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (D) since the Issue Date, does not exceed the sum of (1) 3.0% of Consolidated Tangible Assets of the Company calculated as of the end of the most recent fiscal quarter for which consolidated financial information is available (with the Fair Market Value of each item of Designated Non-cash Consideration being measured as of the date it was received and without giving effect to subsequent changes in value of any such item of Designated Non-cash Consideration) and (2) the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.	
(b) The Company or any Restricted Subsidiary may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
 
 	(i)	repay any Senior Indebtedness for borrowed money or constituting a Capitalized Lease Obligation and permanently reduce the commitments with respect thereto, or	
 
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 	(ii)	purchase:	
 
 	(A)	assets (except for current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or any Restricted Subsidiary in a Permitted Business, or	
 
 	(B)	substantially all of the assets of a Permitted Business or Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary from a Person other than the Company and its Restricted Subsidiaries.	
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the Asset Sale as described in clause (i) or (ii) of  Section 3.12(b) , the Company will make an offer to purchase Notes (the “ Asset Sale Offer ”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “ Asset Sale Offer Amount ”). The Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a  pro rata  basis, and, at the Company’s option, on a  pro rata  basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its obligations under this  Section 3.12  with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
(d) Pending the final application of any Net Cash Proceeds pursuant to this Section 3.12, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(e) The purchase of Notes pursuant to an Asset Sale Offer shall occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale. The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$100 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$100 million, shall be applied as required pursuant to this  Section 3.12 .
(f) Each Asset Sale Offer Notice shall be mailed first class, postage prepaid, to the record Holders as shown on the Note Register within 20 days following such 365th day (or such earlier date as the Company shall have elected to make such Asset Sale Offer), with a copy to the Trustee offering to purchase the Notes as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Asset Sale Offer Payment Date ”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part, in minimum denominations of U.S.$200,000 and in any integral multiples of U.S.$1,000 in excess thereof in exchange for cash.
 
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(g) On the Asset Sale Offer Payment Date, the Company shall, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.	
(h) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company shall purchase the Notes and the other Senior Indebtedness on a  pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased shall be issued in the name of the holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a global note shall be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled and cannot be reissued.
(i) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this  Section 3.12 , the Company shall comply with these laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of this Indenture by doing so.
(j) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds shall be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries.
(k) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under  Article IV , the Successor Company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this  Section 3.12 , and shall comply with the provisions of this  Section 3.12  with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Company or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this  Section 3.12 .
 
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(l) If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale, is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this  Section 3.12  within 365 days of conversion or disposition.
Section 3.13 Limitation on the Ownership of Capital Stock of Restricted Subsidiaries. The Company shall not permit any Person other than the Company or another Restricted Subsidiary to, directly or indirectly, own or control any Capital Stock of any Restricted Subsidiary, except for:
 
 	(i)	Capital Stock owned by such Person on the Issue Date;	
 
 	(ii)	directors’ qualifying shares;	
 
 	(iii)	the sale or Disposition of 100% of the shares of the Capital Stock of any Restricted Subsidiary (other than the Issuer) held by the Company and its Restricted Subsidiaries to any Person other than the Company or another Restricted Subsidiary effected in accordance with, as applicable,  Section 3.12  and  Article IV ;	
 
 	(iv)	in the case of a Restricted Subsidiary other than a Restricted Subsidiary that is a Wholly Owned Subsidiary,	
 
 	(A)	the issuance by that Restricted Subsidiary of Capital Stock on a pro rata basis to the Company and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of such Restricted Subsidiary, on the other hand (or on less than a pro rata basis to any minority holder); or	
 
 	(B)	sales, transfers and other dispositions of Capital Stock in a Restricted Subsidiary to the extent required by, or made pursuant to, buy/sell, put/call or similar shareholder arrangements set forth in binding agreements in effect on the Issue Date; and	
 
 	(v)	the sale of Capital Stock of a Restricted Subsidiary (other than the Issuer) by the Company or another Restricted Subsidiary or the sale or issuance by a Restricted Subsidiary of its newly-issued Capital Stock if such sale or issuance is made in compliance with  Section 3.12  and either:	
 
 	(A)	such Restricted Subsidiary is no longer a Subsidiary, and the continuing Investment of the Company and its Restricted Subsidiaries in such former Restricted Subsidiary is in compliance with  Section 3.11 , or	
 
 	(B)	such Restricted Subsidiary continues to be a Restricted Subsidiary.	
 
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Section 3.14 Limitation on Designation of Unrestricted Subsidiaries.
(a) The Company may designate after the Issue Date any Subsidiary of the Company other than the Issuer or a Note Guarantor as an Unrestricted Subsidiary under this Indenture (a “ Designation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and any transactions between the Company or any of its Restricted Subsidiaries and such Unrestricted Subsidiary are in compliance with  Section 3.18;	
 
 	(ii)	at the time of and after giving effect to such Designation, the Company could Incur U.S.$1.00 of additional Indebtedness pursuant to  Section 3.9(a) ;	
 
 	(iii)	the Company would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation and treating such Designation as an Investment at the time of Designation) as a Restricted Payment pursuant to  Section 3.11(a)  in an amount (the “ Designation Amount ”) equal to the amount of the Company’s Investment in such Subsidiary on such date; and	
 
 	(iv)	the terms of any Affiliate Transaction existing on the date of such Designation between the Subsidiary being designated (and its Subsidiaries) and the Company or any Restricted Subsidiary would be permitted under Section 3.18  if entered into immediately following such Designation.	
(b) Neither the Company nor any Restricted Subsidiary shall at any time:
 
 	(i)	provide credit support for, subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);	
 
 	(ii)	be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary; or	
 
 	(iii)	be directly or indirectly liable for any Indebtedness which provides that the Holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary.	
 
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(c) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “ Revocation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and	
 
 	(ii)	all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation, if Incurred at such time, would have been permitted to be Incurred for all purposes of this Indenture.	
(d) The Designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to include the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries. All Designations and Revocations must be evidenced by an Officer’s Certificate of the Issuer, delivered to the Trustee certifying compliance with the preceding provisions.
Section 3.15 Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) Except as provided in clause (b) below, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
 
 	(i)	pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;	
 
 	(ii)	make loans or advances to, or make any Investment in, the Company or any other Restricted Subsidiary; or	
 
 	(iii)	transfer any of its property or assets to the Company or any other Restricted Subsidiary.	
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
 
 	(i)	applicable law, rule, regulation or order;	
 
 	(ii)	this Indenture;	
 
 	(iii)	any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof;  provided , that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Company’s senior management;	
 
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 	(iv)	customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;	
 
 	(v)	any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;	
 
 	(vi)	restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary; provided , that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);	
 
 	(vii)	customary restrictions imposed on the transfer of copyrighted or patented materials;	
 
 	(viii)	an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this  Section 3.15(b) ;  provided , that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Company’s senior management;	
 
 	(ix)	Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;	
 
 	(x)	Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of  Section 3.15(a)  above on the property so acquired;	
 
 	(xi)	restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Company’s senior management;	
 
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 	(xii)	customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;	
 
 	(xiii)	restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under Section 3.9 ;  provided , that such restrictions (A) are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Company’s senior management or (B) constitute financial covenants or similar restrictions that limit the ability to pay dividends or make distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the declaration or payment of dividends or other distributions; and	
 
 	(xiv)	net worth provisions in leases entered into by the Company or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Company’s senior management.	
Section 3.16 Limitation on Layered Indebtedness. The Company shall not, and shall not permit the Issuer or any other Note Guarantor to, directly or indirectly, Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness, unless such Indebtedness is expressly subordinate in right of payment to the Notes or, in the case of a Note Guarantor, its Note Guarantee, to the same extent, on the same terms and for so long (except as a result of the provisions of the Intercreditor Agreement applicable to Facilities Agreement Indebtedness and any refinancing thereof) as such Indebtedness is subordinate to such other Indebtedness.
Section 3.17 Limitation on Liens. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, incur, grant, assume or suffer to exist any Liens of any kind (except for Permitted Liens) (a) against or upon any of their respective properties or assets, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade payables or (b) deemed to exist in respect of Capitalized Lease Obligations (including any Capitalized Lease Obligations in respect of Sale and Leaseback Transactions), in each case, unless contemporaneously therewith effective provision is made:
 
 	(i)	in the case of the Issuer or any Restricted Subsidiary that is not a Note Guarantor, to secure the Notes and all other amounts due under this Indenture; and	
 
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 	(ii)	in the case of a Note Guarantor, to secure such Note Guarantor’s Note Guarantee of the Notes and all other amounts due under this Indenture,	
in each case, equally and ratably with such Indebtedness or other obligation (or, in the event that such Indebtedness is subordinated in right of payment to the Notes or such Note Guarantee, as the case may be, prior to such Indebtedness or other obligation) with a Lien on the same properties and assets securing such Indebtedness or other obligation for so long as such Indebtedness or other obligation is secured by such Lien.
Section 3.18 Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (each an “ Affiliate Transaction ”), unless the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
(b) The provisions of Section 3.18(a) above shall not apply to:
 
 	(i)	Affiliate Transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;	
 
 	(ii)	reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Company or any Restricted Subsidiary as determined in good faith by the Company’s Board of Directors or, to the extent consistent with past practice, senior management;	
 
 	(iii)	Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date with modifications, extensions and replacements thereof not materially adverse to the Company and its Restricted Subsidiaries) as determined in good faith by the Company’s senior management;	
 
 	(iv)	any Restricted Payments in compliance with Section 3.11;	
 
 	(v)	payments and issuances of Qualified Capital Stock to any officers, directors and employees of the Company or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other stock subscription or shareholder agreement, and any employment agreements, stock option plans or other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such officers, directors or employees that are, in each case, approved in good faith by the Board of Directors or, to the extent consistent with past practice, senior management of the Company;	
 
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 	(vi)	loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business in amounts consistent with the past practice of the Company or such Restricted Subsidiary; and	
 
 	(vii)	loans made by the Company or any Restricted Subsidiary to employees or directors in an aggregate amount not to exceed U.S.$15 million (or its equivalent in another currency) at any time outstanding.	
Section 3.19 Conduct of Business. The Company and its Restricted Subsidiaries shall not engage in any business other than a Permitted Business.
Section 3.20 Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Company shall:
 
 	(i)	provide the Trustee and the Holders with:	
 
 	(A)	annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));	
 
 	(B)	reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Company in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year;	
 
 	(C)	such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and	
 
 	(ii)	file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) within the periods specified for such filings under the Exchange Act (whether or not applicable to the Company).	
 
 	(b)	In addition, at any time when the Company is not subject to or is not current in its reporting obligations under clause (ii) of  Section 3.20(a) , the Company shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.	
 
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(c) Notwithstanding anything in this Indenture to the contrary, the Company shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iv) of  Section 6.1(a)  or for any other purpose hereunder until 75 days after the date any report hereunder is due.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 3.21 Payment of Additional Amounts.
(a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”) imposed or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “ Taxing Jurisdiction ”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided, however , that the foregoing obligation to pay Additional Amounts does not apply to:
 
 	(i)	any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),	
 
 	(ii)	any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,	
 
 	(iii)	any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of	
 
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 	the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,	
 
 	(iv)	any Taxes payable otherwise than by deduction or withholding from payments on the Notes,	
 
 	(v)	any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directives,	
 
 	(vi)	any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,	
 
 	(vii)	any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or	
 
 	(viii)	any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.	
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
 
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(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b)  will not apply if the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice.
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Section 3.22 Suspension of Covenants.
(a) During any period of time that the Notes do not have Investment Grade Ratings from two of the Rating Agencies and (i) the Consolidated Leverage Ratio of the Company is less than 3.5:1 and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Partial Covenant Suspension Event”), the Company and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under Sections  3.12 ,  3.13 ,  3.14(b) ,  3.15 ,  3.18 ,  3.19 ,  4.1(a)(ii)  and  4.1(b)(ii)  (collectively, the “ Partial Suspended Covenants ”).
(b) During any period of time that (i) the Notes have Investment Grade Ratings from two of the Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Covenant Suspension Event ”), the Company and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under  Sections 3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14(b) , 3.15 ,  3.16 ,  3.18 ,  3.19 ,  4.1(a)(ii)  and  4.1(b)(ii)  (collectively, the “ Suspended Covenants ”).
(c) In addition, (x) no Subsidiary that is a Restricted Subsidiary on the date of the occurrence of a Partial Covenant Suspension Event (the “ Partial Covenant Suspension Date ”) or a Covenant Suspension Event (the “ Suspension Date ”) may be redesignated as an Unrestricted
 
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Subsidiary during the Partial Suspension Period or the Suspension Period, as applicable and (y) each Additional Note Guarantor shall be released from its obligation to guarantee the Notes on the date of a Partial Covenant Suspension Event or a Covenant Suspension Event, as the case may be.
(d) The Additional Note Guarantors shall be released from their obligation to guarantee the Notes upon the occurrence of a Partial Covenant Suspension Event or a Covenant Suspension Event;  provided , that upon the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, the guarantee of the Notes by the Additional Note Guarantors shall be reinstated in accordance with and subject to the conditions in  Section 3.22(e) .
(e) In the event that the Company and its Restricted Subsidiaries are not subject to the Partial Suspended Covenants or the Suspended Covenants, as the case may be, for any period of time as a result of the foregoing, and on any subsequent date (in the case of Partial Suspended Covenants, such subsequent date being the “ Partial Covenant Reversion Date ” and, in the case of Suspended Covenants, such subsequent date being the “ Reversion Date ”) (i) the Consolidated Leverage Ratio of the Company is not less than 3.5:1 during the applicable Partial Suspension Period or (ii) the Notes do not have Investment Grade Ratings from at least two of the Rating Agencies during the applicable Suspension Period, then in each case in clauses (i) and (ii), the Company and its Restricted Subsidiaries will thereafter again be subject to the Partial Suspended Covenants or the Suspended Covenants, as applicable, and the Notes will again be guaranteed by the Additional Note Guarantors (unless, solely with respect to any Additional Note Guarantor, the conditions for release as described under  Section 10.2  are otherwise satisfied during the Partial Suspension Period or the Suspension Period, as applicable). The Issuer shall cause such Additional Note Guarantor to promptly execute and deliver to the Trustee a supplemental indenture hereto in form and substance reasonably satisfactory to the Trustee in accordance with the provisions of  Article IX , evidencing that such Additional Note Guarantor’s guarantee on substantially the terms set forth in  Article X . The period of time between the Partial Covenant Suspension Date and the Partial Covenant Reversion Date is referred to as the “ Partial Suspension Period ” and the period of time between the Suspension Date and the Reversion Date is referred to as the “ Suspension Period .” Notwithstanding that the Partial Suspended Covenants, the Suspended Covenants and the guarantees by the Additional Note Guarantors may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Partial Suspended Covenants during the Partial Suspension Period or the Suspended Covenants during the Suspension Period, as the case may be (or upon termination of the applicable Partial Suspension Period or the Suspension Period or after that time based solely on events that occurred during the applicable Partial Suspension Period or the Suspension Period, as the case may be).
(f) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be classified to have been Incurred pursuant to  Section 3.9(a)  or  Section 3.9(b)  (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 3.9(a)  or  3.9(b) , such Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of  Section 3.9(b) . Calculations made after the Reversion Date of the amount available to be made
 
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as Restricted Payments under Section 3.11 shall be made as though Section 3.11 had been in effect since the Issue Date and throughout the Suspension Period. The Issuer will give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date. After any such notice of the occurrence of a Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and effect. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under  Section 3.11(a) .
(g) The Issuer will give the Trustee written notice of any Partial Covenant Suspension Event or any Covenant Suspension Event and in any case no later than five (5) Business Days after such Partial Covenant Suspension Event or Covenant Suspension Event has occurred. In the absence of such notice, the Trustee shall assume that the Partial Suspended Covenants or the Suspended Covenants, as applicable, apply and are in full force and effect.
(h) For purposes of this Section 3.22 only, “Consolidated Leverage Ratio” and all associated definitions shall have the meaning set forth in  Exhibit E  hereto.
ARTICLE IV
SUCCESSOR COMPANY
Section 4.1 Merger, Consolidation and Sale of Assets.
(a) The Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Issuer shall be the surviving or continuing corporation, or	
 
 	(B)	the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) substantially as an entirety (the “ Successor Issuer ”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and	
 
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 	(2)	shall expressly assume, by a supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this Section 4.1(a)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction):	
 
 	(A)	the Company shall have a Consolidated Fixed Charge Coverage Ratio that shall be not less than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; or	
 
 	(B)	the Company shall be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a);	
 
 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;	
 
 	(iv)	in the case of a transaction resulting in a Successor Issuer, each Note Guarantor has confirmed by supplemental indenture that its Note Guarantee shall apply for Obligations of the Successor Issuer in respect of this Indenture and the Notes; and	
 
 	(v)	if the Issuer merges with a Person, or the Successor Issuer is, organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, as applicable:	
 
 	(A)	the Holders of the Notes shall not recognize income, gain or loss for the purposes of the income tax laws of the United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and shall be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for	
 
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 	this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;	
 
 	(B)	any payment of interest or principal under or relating to the Notes or any Guarantees shall be paid in compliance with any requirements under  Section 3.21 ; and	
 
 	(C)	no other taxes on income, including capital gains, shall be payable by Holders of the Notes under the laws of the United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon;  provided , that the Holder does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.	
The provisions of clauses (ii) and (iii) of this Section 4.1(a) will not apply to:
 
 	(x)	any transfer of the properties or assets of the Company or a Restricted Subsidiary to the Issuer;	
 
 	(y)	any merger of the Company or a Restricted Subsidiary into the Issuer; or	
 
 	(z)	any merger of the Issuer into a Note Guarantor or a Wholly Owned Subsidiary of the Company.	
For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
The Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture and the Notes, as applicable. For the avoidance of doubt, compliance with this  Section 4.1  will not affect the obligations of the Issuer (including a Successor Issuer, if applicable) under  Section 3.8  if applicable.
 
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(b) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company’s properties and assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Company shall be the surviving or continuing corporation, or	
 
 	(B)	the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries) substantially as an entirety (the “Successor Company”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of a Permitted Merger Jurisdictions; and	
 
 	(2)	shall expressly assume all of the Obligations of the Company under this Indenture, the Notes and the Company’s Note Guarantee by executing a supplemental indenture and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance this Indenture;	
 
 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this Section 4.1(b)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction), the Company or such Successor Company, as the case may be:	
 
 	(A)	will have a Consolidated Fixed Charge Coverage Ratio that will be not less than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; or	
 
 	(B)	will be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); and	
 
 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(b)  (including, without limitation, giving effect on a  pro forma  basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing.	
The provisions of clauses (ii) and (iii) of this Section 4.1(b) shall not apply to:
 
 	(x)	any transfer of the properties or assets of a Restricted Subsidiary to the Company or a Note Guarantor;	
 
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 	(y)	any merger of a Restricted Subsidiary into the Company or a Note Guarantor; or	
 
 	(z)	any merger of the Company into another Note Guarantor or a Wholly Owned Subsidiary of the Company.	
The Successor Company shall succeed to, and be substituted for, the Company under this Indenture, the Notes and/or the Note Guarantee, as applicable.
 
 	(c)	Each Note Guarantor other than the Company shall not, and the Company shall not cause or permit any such Note Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Issuer) that is not a Note Guarantor unless:	
 
 	(i)	such Person (if such Person is the surviving entity) (the “Successor Note Guarantor”) assumes all of the obligations of such Note Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	such Note Guarantee is to be released as provided under Section 10.2(b); or	
 
 	(iii)	such sale or other disposition of substantially all of such Note Guarantor’s assets is made in accordance with  Section 3.12 .	
Subject to certain limitations described in this Indenture, the Successor Note Guarantor will succeed to, and be substituted for, such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee. The provisions of clauses (i), (ii) and (iii) of this  Section 4.1(c)  will not apply to:
 
 	(x)	any transfer of the properties or assets of a Note Guarantor to the Issuer or another Note Guarantor;	
 
 	(y)	any merger of a Note Guarantor into the Issuer or another Note Guarantor; or	
 
 	(z)	any merger of a Note Guarantor into a Wholly Owned Subsidiary of the Company.	
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 Optional Redemption. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, subject to the conditions and at the redemption prices specified in the Form of Note in  Exhibit A  hereto.
 
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Section 5.2 [Reserved].
Section 5.3 Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to the optional redemption provisions of Section 5.1  hereof, it shall furnish to the Trustee, at least 45 days but not more than 60 days before the Redemption Date, an Officer’s Certificate setting forth: (a) the Redemption Date, (b) the principal amount of Notes to be redeemed, (c) the CUSIP numbers of the Notes, (d) the redemption price and (e) the amount of interest to be paid with respect to each multiple of U.S.$1,000 principal amount of Notes to be redeemed.
Section 5.4 Notice of Redemption.
(a) The Issuer shall prepare and mail or cause to be mailed a notice of redemption, in the manner provided for in Section 12.1 , not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.
(b) All notices of redemption shall state:
 
 	(i)	the Redemption Date,	
 
 	(ii)	the redemption price and the amount of any accrued interest payable as provided in Section 5.7,	
 
 	(iii)	whether or not the Issuer is redeeming all Outstanding Notes,	
 
 	(iv)	if the Issuer is not redeeming all Outstanding Notes, the aggregate principal amount of Notes that the Issuer is redeeming and the aggregate principal amount of Notes that will be Outstanding after the partial redemption, as well as the identification of the particular Notes, or portions of the particular Notes, that the Issuer is redeeming,	
 
 	(v)	if the Issuer is redeeming only part of a Note, the notice that relates to that Note shall state that on and after the Redemption Date, upon surrender of that Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount of the Note remaining unredeemed,	
 
 	(vi)	that on the Redemption Date the redemption price and any accrued interest payable to the Redemption Date as provided in  Section 5.7  will become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Issuer defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, will cease to accrue on and after the Redemption Date,	
 
 	(vii)	the place or places where a Holder must surrender Notes for payment of the redemption price and any accrued interest payable on the Redemption Date, and	
 
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 	(viii)	the CUSIP number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP number.	
(c) At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s names and at its expense; provided, however, that the Issuer shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding  Section 5.4(b) .
Section 5.5 Selection of Notes to Be Redeemed in Part.
(a) If the Issuer is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a national securities exchange, on a pro rata basis, by lot or by any other method as the Trustee shall deem fair and appropriate; provided, however, that if a partial redemption is made with the proceeds of an Equity Offering, selection of the Notes, or portions of the Notes, for redemption shall be made by the Trustee only on a pro rata basis, or on as nearly a pro rata basis as is practicable (subject to the procedures of DTC), unless the method is otherwise prohibited. The Trustee shall make the selection from the then Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than 30 nor more than 60 days prior to the relevant Redemption Date from the then Outstanding Notes not previously called-for redemption. No Notes of U.S.$200,000 principal amount or less shall be redeemed in part. The Trustee may select for redemption portions with minimum denominations of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof.
(b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed.
Section 5.6 Deposit of Redemption Price. On or prior to 10 :00 a.m. New York City time, on the Business Day prior to the Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or a Note Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in  Section 2.4 ) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Issuer is redeeming on that date.
Section 5.7 Notes Payable on Redemption Date. If the Issuer, or the Trustee on behalf of the Issuer, gives notice of redemption in accordance with this  Article V , the Notes, or the portions of Notes, called-for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Issuer shall default in
 
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the payment of the redemption price and accrued interest) the Notes or the portions of Notes shall cease to bear interest. Upon surrender of any Note for redemption in accordance with the notice, the Issuer shall pay the Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Issuer shall fail to pay any Note called-for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
Section 5.8 Unredeemed Portions of Partially Redeemed Note. Upon surrender of a Note that is to be redeemed in part, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of the Note, at the expense of the Issuer, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered,  provided , that each new Note will be in a principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
 
 	(i)	default in the payment when due of the principal of or premium, if any, on any Notes, including the failure to make a required payment to purchase Notes tendered pursuant to an optional redemption, a Change of Control Offer or an Asset Sale Offer;	
 
 	(ii)	default for 30 days or more in the payment when due of interest or Additional Amounts on any Notes;	
 
 	(iii)	the failure to perform or comply with any of the provisions described under Article IV;	
 
 	(iv)	the failure by the Company or any Restricted Subsidiary to comply with, or in the case of non-guarantor Restricted Subsidiaries, to perform according to, any other covenant or agreement contained in this Indenture or in the Notes for 45 days or more after written notice to the Company from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes;	
 
 	(v)	default by the Company or any Restricted Subsidiary under any Indebtedness which:	
 
 	(A)	is caused by a failure to pay principal of, or premium, if any, when due or interest on such Indebtedness prior to the later of the expiration of any applicable grace period provided in such Indebtedness on the date of such default or five (5) days past when due; or	
 
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 	(B)	results in the acceleration of such Indebtedness prior to its stated maturity;	
and the principal or accreted amount of Indebtedness covered by clauses (v)(A) or (v)(B) of this Section 6.1(a) at the relevant time, aggregates U.S.$50 million or more;
 
 	(vi)	failure by the Company or any of its Restricted Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$100 million or more, which judgment(s) are not paid, discharged or stayed for a period of 60 days or more;	
 
 	(vii)	a Bankruptcy Event of Default; or	
 
 	(viii)	except as permitted herein, any Note Guarantee is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any Note Guarantor, or any Person acting on behalf of any Note Guarantor, denies or disaffirms such Note Guarantor’s obligations under its Note Guarantee.	
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
(b) The Issuer shall deliver within 30 days to the Trustee written notice of any event which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in clause (vii) of Section 6.1(a) above with respect to the Issuer or the Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of then Outstanding Notes may declare the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Company and the Trustee specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in clause (vii) of  Section 6.1(a)  above occurs with respect to the Company, then the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences:
 
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 	(i)	if the rescission would not conflict with any judgment or decree;	
 
 	(ii)	if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration;	
 
 	(iii)	to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and	
 
 	(iv)	if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances.	
Section 6.3 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, the Holders of a majority in principal amount of the then Outstanding Notes may waive any existing Default or Event of Default, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any Notes.
Section 6.5 Control by Majority. The Holders of a majority in principal amount of the then Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. Subject to  Section 7.1  and  Section 7.2 , however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture;  provided, however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Section 6.6 Limitation on Suits.
(a) No Holder of any Notes shall have any right to institute any proceeding with respect hereto or for any remedy hereunder, unless:
 
 	(i)	such Holder gives to the Trustee written notice of a continuing Event of Default;	
 
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 	(ii)	Holders of at least 25% in principal amount of the then Outstanding Notes make a written request to pursue the remedy;	
 
 	(iii)	such Holders of the Notes provide to the Trustee indemnity satisfactory to it;	
 
 	(iv)	the Trustee does not comply within 60 days; and	
 
 	(v)	during such 60 day period the Holders of a majority in principal amount of the then Outstanding Notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request;	
provided, that a Holder of a Note may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such Note on or after the respective due dates expressed in such Note.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation,  Section 6.6 ), the right of any Holder to receive payment of principal or interest on the Notes held by such Holder, on or after the respective due dates, Redemption Dates or repurchase date expressed in this Indenture or the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default specified in clause (i) and (ii) of Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer and each Note Guarantor for the whole amount then due and owing (together with applicable interest on any overdue principal and, to the extent lawful, interest on overdue interest) and the amounts provided for in  Section 7.7 .
Section 6.9 Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of the Notes is then due):
 
 	(i)	file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Issuer, any Note Guarantor or any Subsidiary of the Issuer or their respective creditors or properties; and	
 
 	(ii)	collect and receive any monies or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture.	
Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and,
 
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in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to  Section 7.7 .
(b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer or, to the extent the Trustee collects any amount pursuant to Article X hereof from any Note Guarantor, to such Note Guarantor, or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Company and the Issuer, fix a record date and payment date for any payment to Holders pursuant to this  Section 6.10 .
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to  Section 6.7  or a suit by Holders of more than 10% in principal amount of Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
 
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(b) Except during the continuance of a Default or an Event of Default:
 
 	(i)	the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and	
 
 	(ii)	in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions that by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture.	
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
 
 	(i)	this clause (c) does not limit the effect of clause (b) of this Section 7.1;	
 
 	(ii)	the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and	
 
 	(iii)	the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.2 ,  6.4  or  6.5 .	
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this  Article VII .
 
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(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting at the direction of the Issuer or any Note Guarantor, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has received written notice at the Corporate Trust Office of any event which is in fact such a default, and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
 
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(i) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(k) In no event shall the Trustee be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Trustee has been advised of the possibility of such damages.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.
(m) The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer or the Company and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Note Guarantors or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Transfer Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with  Section 7.10 .
Section 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in payment of principal or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
 
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Section 7.6 [Reserved].
Section 7.7 Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the review, negotiation, execution and delivery of this Indenture or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
(b) The Issuer and each Note Guarantor shall jointly and severally indemnify the Trustee against any and all loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this  Section 7.7 ) and of defending itself against any claims (whether asserted by any Holder, the Issuer, any Note Guarantor or otherwise). The Trustee shall notify the Issuer and each Note Guarantor promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer or any Note Guarantor shall not relieve the Issuer or any Note Guarantor of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided , that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuer and the Trustee in connection with such defense. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
(c) To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee’s right to receive payment of any amounts due under this  Section 7.7  shall not be subordinate to any other liability or Indebtedness of the Issuer.
(d) The Issuer’s obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Bankruptcy Event of Default, the expenses are intended to constitute expenses of administration under any Bankruptcy Law;  provided, however , that this shall not affect the Trustee’s rights as set forth in this  Section 7.7  or  Section 6.10 .
 
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Section 7.8 Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Company and the Issuer. The Holders of a majority in principal amount of the then Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Issuer. The Issuer shall remove the Trustee if:
 
 	(i)	the Trustee fails to comply with Section 7.10;	
 
 	(ii)	the Trustee is adjudged bankrupt or insolvent;	
 
 	(iii)	a receiver or other public officer takes charge of the Trustee or its property; or	
 
 	(iv)	the Trustee otherwise becomes incapable of acting.	
(b) If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in principal amount of the then Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in  Section 7.7(c) .
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the then Outstanding Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7  shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee.
 
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(b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates of authentication and such delivery shall be valid for purposes of this Indenture.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 [Reserved].
Section 7.12 [Reserved].
Section 7.13 Authorization and Instruction of the Trustee With Respect to the Collateral. Each Holder and the Issuer authorize and instruct the Trustee (a) to enter into (or cause an agent or grant such powers of attorney to enter into), on its own behalf and on behalf of the Holders of Notes, such documents (the “ Security Documents ”) as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) in order to create and maintain the security interest of the Trustee and the Holders of Notes in the Collateral as may from time to time be provided to equally and ratably secure the Notes, (b) to grant such powers of attorney and to do or cause to be done all such acts and things, on its own behalf and in the name and on behalf of the Holders of Notes, as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) to create and maintain the security interest of the Trustee and the Holders of Notes in such Collateral, (c) to appoint the Security Agent to serve as direct representative of the Trustee and the Holders of Notes in connection with the creation and maintenance of the security interest of the Trustee and the Holders of Notes in such Collateral, (d) to accept the security interest in the Collateral on behalf of each Holder, and (e) to grant powers in favor of an attorney to execute an accession public deed before a Spanish notary public accepting the security interest in the Collateral on behalf of the Holders of Notes. It is understood and acknowledged that, in certain circumstances, the Security Documents may be amended, modified or waived without the consent of the Trustee or the Holders of Notes. It is understood and acknowledged that the Security Agent, in addition to being appointed by and acting on behalf of the Trustee and the Holders of Notes, has also been appointed by and is acting on behalf of (and may in the future be appointed by and act on behalf of) other creditors of the Company and its Subsidiaries. The Trustee will not have the right to cause the Security Agent to foreclose on the Collateral upon the occurrence of an Event of Default in respect of the Notes. The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer or the Company and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of
 
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any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1 Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option, at any time, elect to have either Section 8.1(b) or (c) be applied to all Outstanding Notes upon compliance with the conditions set forth in  Section 8.2 .
(b) Upon the Issuer’s exercise under Section 8.1(a) of the option applicable to this clause (b), the Issuer shall, subject to the satisfaction of the conditions set forth in  Section 8.2 , be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in  Section 8.2  are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the then Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of  Section 8.3  hereof and the other sections of this Indenture referred to in subclause (i) or (ii) of this clause (b), and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
 
 	(i)	the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in  Section 2.4  payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due,	
 
 	(ii)	the Issuer’s obligations with respect to such Notes under Article II and Section 3.2 hereof,	
 
 	(iii)	the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s obligations in connection therewith, and	
 
 	(iv)	this Article VIII.	
Subject to compliance with this Article VIII, the Issuer may exercise its option under this clause (b) notwithstanding the prior exercise of its option under  Section 8.1(c)  hereof.
(c) Upon the Issuer’s exercise under Section 8.1(a) hereof of the option applicable to this clause (c), the Issuer shall, subject to the satisfaction of the applicable conditions set forth in  Section 8.2 , be released from its obligations under Sections 3.4 ,  3.5 ,  3.8 ,  3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14 ,  3.15 ,  3.16 ,  3.17 ,  3.18 ,  3.19 ,  3.20 ,  3.21 ,  3.22 ,  4.1(a)  and  4.1(b)  hereof with respect to the then Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not
 
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Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the then Outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under clause (iii) of  Section 6.1(a)  (solely with respect to any failure to perform under or comply with clause (ii) or (iii) of  Section 4.1(a) ), clause (iv) of  Section 6.1(a)  or clause (v) of  Section 6.1(a)  hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.2 Conditions to Defeasance. The Company or, as applicable, the Issuer, may exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(a) the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders cash in U.S. Legal Tender or U.S. Government Obligations, in such amounts as will be sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest (including Additional Amounts) on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer to the effect that:
 
 	(i)	the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling; or	
 
 	(ii)	since the Issue Date, there has been a change in the applicable U.S. federal income tax law,	
in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
 
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(d) no Default or Event of Default shall have occurred and be continuing on the date of the deposit pursuant to Section 8.2(a)  (except any Default or Event of Default resulting from the failure to comply with  Section 3.9  as a result of the borrowing of the funds required to effect such deposit);
(e) the Trustee has received an Officer’s Certificate stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(f) the Issuer has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over any other creditors of the Issuer or any Subsidiary of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(h) the Issuer has delivered to the Trustee an Opinion of Counsel from counsel reasonably acceptable to the Trustee and independent of the Issuer to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Section 8.3 Application of Trust Money. The Trustee shall hold in trust U.S. Legal Tender or U.S. Government Obligations deposited with it pursuant to this  Article VIII . It shall apply the deposited U.S. Legal Tender or U.S. Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 8.4 Repayment to Issuer.
(a) The Trustee and the Paying Agent shall promptly turn over to the Issuer upon request any excess money or securities held by them upon payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal of, premium or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors.
Section 8.5 Indemnity for U.S. Government Obligations. The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the principal and interest received on such U.S. Government Obligations.
 
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Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender or U.S. Government Obligations in accordance with this  Article VIII  by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Issuer under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this  Article VIII until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender or U.S. Government Obligations in accordance with this  Article VIII ;  provided, however , that, if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from U.S. Legal Tender or U.S. Government Obligations held by the Trustee or Paying Agent.
Section 8.7 Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Outstanding Notes when:
(a) either:
 
 	(i)	all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust) have been delivered to the Trustee for cancellation; or	
 
 	(ii)	all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee U.S. Legal Tender or U.S. Government Obligations sufficient without reinvestment to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment;	
(b) the Issuer has paid all other sums payable under this Indenture and the Notes by it; and
(c) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
 
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ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without notice to or consent of any Holder:
 
 	(i)	to cure any ambiguity, omission, defect or inconsistency;	
 
 	(ii)	to comply with Article IV in respect of the assumption by a Successor Issuer of the obligations of the Issuer under the Notes and this Indenture;	
 
 	(iii)	to provide for uncertificated Notes in addition to or in place of Certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;	
 
 	(iv)	to add guarantees with respect to the Notes or to secure the Notes;	
 
 	(v)	to add to the covenants of the Issuer or the Note Guarantors for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer or the Note Guarantors;	
 
 	(vi)	to make any change that does not, in the opinion of the Issuer, as conclusively evidenced by an Officer’s Certificate to such effect, adversely affect the rights of any Holder in any material respect;	
 
 	(vii)	to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the section “Description of Notes” in the Offering Memorandum to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture or the Notes or Note Guarantees;	
 
 	(viii)	to comply with the requirements of any applicable securities depositary;	
 
 	(ix)	to provide for the issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.14, which will have terms substantially identical to the other Outstanding Notes except as specified in  Section 2.13 , or  Section 2.14 , and which will be treated, together with any other Outstanding Notes, as a single issue of securities; or	
 
 	(x)	in order to effect and maintain the listing of the Notes on the Global Exchange Market of the Irish Stock Exchange.	
 
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(b) After an amendment or supplement under this Section 9.1 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this  Section 9.1 .
Section 9.2 With Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, Notes). Subject to  Section 6.4 , the Holder or Holders of a majority in aggregate principal amount of the then Outstanding Notes may waive compliance by the Issuer and the Note Guarantors with any provision of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver may not:
 
 	(i)	reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver;	
 
 	(ii)	reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on any Notes;	
 
 	(iii)	reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;	
 
 	(iv)	make any Notes payable in money other than that stated in the Notes;	
 
 	(v)	make any change in the provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any, and interest on such Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of the then Outstanding Notes to waive Defaults or Events of Default;	
 
 	(vi)	amend, change or modify in any material respect any obligations of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred or make and consummate an Asset Sale Offer with respect to any Asset Sale that has been consummated;	
 
 	(vii)	make any change in the provisions of this Indenture described under Section 3.21 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; or	
 
 	(viii)	make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes.	
 
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(b) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment, supplement or waiver under this  Section 9.2 .
(d) The Notes issued on the Issue Date, and any Additional Notes part of the same series, will be treated as a single series for all purposes under this Indenture, including with respect to waivers and amendments. For the purposes of calculating the aggregate principal amount of Notes that have consented to or voted in favor of any amendment, waiver, consent, modifications or other similar action, the Issuer (acting reasonably and in good faith) shall be entitled to select a record date as of which the principal amount of any Notes shall be calculated in such consent or voting process.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment, supplement or waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment, supplement or waiver becomes effective, it shall bind every Holder, except as otherwise provided in this  Article IX . An amendment, supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of written consents under  Section 9.2 .
(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
Section 9.5 Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer, in exchange for the Note, will execute and upon Issuer Order, the Trustee will authenticate and make available for delivery a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement.
 
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Section 9.6 Trustee to Sign Amendments and Supplements. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this  Article IX  if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver, the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to  Section 7.1  and Section 7.2 ) shall be fully protected in relying upon, in addition to the documents required by  Section 12.4 , an Opinion of Counsel and an Officer’s Certificate each stating that such amendment, supplement or waiver is authorized or permitted by this Indenture and that all conditions precedent to the execution of such amendment, supplement or waiver have been complied with.
ARTICLE X
NOTE GUARANTEES
Section 10.1 Note Guarantees.
(a) Each Note Guarantor hereby fully and unconditionally guarantees, as primary obligor and not merely as surety, jointly and severally with each other Note Guarantor, to each Holder and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations (such guaranteed Obligations, the “Guaranteed Obligations”). Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and agrees to pay, in addition to the amounts stated in Section 10.1(f) , any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing or exercising any rights under any Note Guarantee.
(b) In no event shall the Trustee or the Holders be obligated to take any action, obtain any judgment or file any claim prior to enforcing or exercising any rights under any Note Guarantee.
(c) Each Note Guarantor further agrees that its Note Guarantee constitutes an absolute and unconditional and continuing guarantee. Each Note Guarantor hereby waives, to the extent permitted by law:
 
 	(i)	any claim as to the legality, validity, regularity or enforceability of this Indenture, the Notes or any other agreement;	
 
 	(ii)	any claim as to the lack of authority of the Issuer to execute or deliver this Indenture, the Notes or any other agreement;	
 
 	(iii)	diligence, presentation to, demand of payment from and protest to the Issuer of any of the Obligations and notice of protest for nonpayment;	
 
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 	(iv)	the occurrence of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(v)	notice of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(vi)	the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement;	
 
 	(vii)	any extension or renewal of the Obligations, this Indenture, the Notes or any other agreement;	
 
 	(viii)	any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;	
 
 	(ix)	the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Issuer;	
 
 	(x)	any setoff, counterclaim, recoupment, termination or defense of any kind or nature which may be available to or asserted by any Note Guarantor or the Issuer against the Holders or the Trustee;	
 
 	(xi)	any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, any collateral securing this Indenture and the Notes and any right to require that any resort be had by the Trustee or any Holder to any such collateral;	
 
 	(xii)	the failure of the Trustee or any Holder to exercise any right or remedy against any other Note Guarantor;	
 
 	(xiii)	any change in the ownership of the Issuer;	
 
 	(xiv)	any change in the laws, rules or regulations of any jurisdiction;	
 
 	(xv)	any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of the Issuer under this Indenture or the Notes or of any Note Guarantor under its Note Guarantee; and	
 
 	(xvi)	any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.	
 
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(d) Each of the Note Guarantors further expressly waives irrevocably and unconditionally:
 
 	(i)	Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) before claiming from it under this Indenture;	
 
 	(ii)	Any right to which it may be entitled to have the assets of the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) first be used, applied or depleted as payment of the Issuer’s or the Note Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by any of the Note Guarantors hereunder;	
 
 	(iii)	Any right to which it may be entitled to have claims hereunder divided between the Note Guarantors;	
 
 	(iv)	To the extent applicable, the benefits of orden, excusión, división, quita and espera and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other related or applicable articles that are not explicitly set forth herein because of Note Guarantor’s knowledge thereof of the  Código Civil Federal  of Mexico, and the  Código Civil  of each State of the Mexican Republic and the Federal District of Mexico.	
(e) The obligations assumed by each Note Guarantor hereunder shall not be affected by the absence of judicial request of payment by a Holder to the Issuer or by whether any such person takes timely action pursuant to articles 2848 and 2849 of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and the Federal District of Mexico and each Note Guarantor hereby expressly waives the provisions of such articles.
(f) The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
 
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(g) Except as provided in Section 10.2, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than payment of the Obligations in full.
(h) Each Note Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
(i) In furtherance of the foregoing and not in limitation of any other right which the Trustee or any Holder has at law or in equity against each Note Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of:
 
 	(i)	the unpaid amount of such Obligations then due and owing; and	
 
 	(ii)	accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law);	
provided, that any delay by the Trustee in giving such written demand shall in no event affect any Note Guarantor’s obligations under its Note Guarantee.
(j) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand:
 
 	(i)	the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby; and	
 
 	(ii)	in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantor for the purposes of this Note Guarantee.	
Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Subject to the limitations set out in Section 10.5 and Section 10.6, the obligations of each Note Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or
 
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pursuant to its contribution obligations under this Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its obligations under its Note Guarantee in the event that:
 
 	(i)	there is a Legal Defeasance of the Notes pursuant to Article VIII;	
 
 	(ii)	with respect to any Note Guarantor other than the Company, there is a sale or other disposition of Capital Stock of such Note Guarantor following which such Note Guarantor is no longer a direct or indirect Subsidiary of the Company;	
 
 	(iii)	with respect to any Note Guarantor other than the Company, such Note Guarantor is designated as an Unrestricted Subsidiary in accordance with  Section 3.14 ;	
 
 	(iv)	solely with respect to an Additional Note Guarantor, either (A) the Facilities Agreement Indebtedness has been repaid in full and such Additional Note Guarantor is not a guarantor of the Indebtedness Incurred to refinance such Facilities Agreement Indebtedness or (B) at least 85% of the outstanding Indebtedness of the Company and its Restricted Subsidiaries is not guaranteed by such Additional Note Guarantor; or	
 
 	(v)	solely with respect to an Additional Note Guarantor, upon the occurrence of a Partial Covenant Suspension Event or Covenant Suspension Event until the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, at which time the guarantee of the Notes by such Additional Note Guarantor shall be reinstated unless such Additional Note Guarantor would have been released at any time during the Partial Suspension Period or the Suspension Period, as applicable, pursuant to clause (i), (ii), (iii) or (iv) of this Section 10.2(b) .	
Section 10.3 Right of Contribution. Each Note Guarantor that makes a payment or distribution under a Note Guarantee will be entitled to a contribution from each other Note Guarantor in a  pro rata  amount, based on the net assets of each Note Guarantor determined in accordance with GAAP. The provisions of this  Section 10.3  shall in no respect limit the obligations and liabilities of each Note Guarantor to the Trustee and the Holders and each Note Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Note Guarantor hereunder.
Section 10.4 No Subrogation. Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full in cash or Cash Equivalents of all Obligations. If any amount shall be paid to any Note Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been
 
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paid in full in cash or Cash Equivalents, such amount shall be held by such Note Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Note Guarantor, and shall, forthwith upon receipt by such Note Guarantor, be turned over to the Trustee in the exact form received by such Note Guarantor (duly endorsed by such Note Guarantor to the Trustee, if required), to be applied against the Obligations.
Section 10.5 French Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in France (a “French Note Guarantor”) are subject to the limitations set out in this  Section 10.5 .
(b) The obligations and liabilities of any French Note Guarantor under the Indenture and the Notes, and in particular under this  Article X , shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of article(s) L. 241-3 or L. 242-6 of the French Commercial Code or any other law or regulations having the same effect, as interpreted by French courts.
(c) The obligations and liabilities of any French Note Guarantor under this Article X for the Issuer’s obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Issuer to the extent directly or indirectly on-lent to such French Note Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash-pooling arrangements or other cash management agreements,  provided , that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Note Guarantor under this  Article X , it being specified that any payment made by a French Note Guarantor under this  Article X  in respect of the obligations of the Issuer shall reduce  pro tanto the outstanding amount of the intercompany loans due by such French Note Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by the French Note Guarantor or its relevant direct or indirect Subsidiary shall reduce  pro tanto  the amount payable by the French Note Guarantor under this  Article X .
(d) It is acknowledged that no French Note Guarantor is acting jointly and severally with the other Note Guarantors and no French Note Guarantor shall therefore be considered as “ co-débiteur solidaire ” as to its obligations pursuant to the guarantee given pursuant to this  Article X .
Section 10.6 Swiss Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this  Section 10.6 .
(b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, the Notes or any other agreement, and in particular under this  Article X , in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss
 
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Note Guarantor or any of its fully owned and controlled subsidiaries (the “Restricted Obligations”) shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested,  provided , that such limitation is a requirement under applicable law (including any case law) at that point in time and that such limitation shall not free the Swiss Note Guarantor from its obligations in excess thereof, but merely postpone the performance date until such time as performance is permitted notwithstanding such limitation.
(c) For the purpose of this clause, “Free Reserves Available for Distribution” means an amount equal to the maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the balance sheet profit and any freely disposable reserves available for this purpose, in each case in accordance with applicable Swiss law).
(d) As soon as possible after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, immediately thereafter, pay the amount corresponding to the Free Reserves Available for Distribution to the Trustee (save to the extent provided below).
(e) In respect of the Restricted Obligations, the Swiss Note Guarantor shall:
 
 	(i)	if and to the extent required by applicable law in force at the relevant time:	
 
 	(A)	subject to any applicable double taxation treaties, deduct Swiss withholding tax at the rate of 35 percent (or such other rate as is in force at that time) from any payment made by it;	
 
 	(B)	pay any such deduction to the Swiss Federal Tax Administration; and	
 
 	(C)	notify and provide evidence to the Trustee that the Swiss withholding tax has been paid to the Swiss Federal Tax Administration;	
 
 	(ii)	to the extent such deduction is made, not be required to make a gross-up, indemnify or otherwise hold harmless the Trustee or the Holders for the deduction of the Swiss withholding tax notwithstanding anything to the contrary contained in the Indenture, the Notes or any other agreement, unless grossing up is permitted under the laws of Switzerland then in force and  provided , that this should not in any way limit any obligations of any non-Swiss Note Guarantors under the Indenture, the Notes or any other agreement to indemnify the Trustee	
 
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 	or the Holders in respect of the deduction of the Swiss withholding tax. The Swiss Note Guarantor shall use all reasonable efforts to procure that any person which is entitled to a full or partial refund of any Swiss withholding tax paid pursuant to paragraph (a) above will, as soon as possible after the deduction of the Swiss withholding tax: (y) request a refund of the Swiss withholding tax under any applicable law (including double taxation treaties) and (z) pay to the Trustee upon receipt any amount so refunded.	
(f) The Swiss Note Guarantor will take, and cause to be taken, all and any other action, including, without limitation, the passing of any shareholders’ resolutions to approve any payment or other performance under the Indenture and the Notes and the receipt of any confirmations from the Swiss Note Guarantor’s auditors, whether following a request to discharge a Restricted Obligation or which may be required as a matter of mandatory Swiss law in force at the time it is required to make a payment or perform other obligations under the Indenture, the Notes or any other agreement in order to allow a prompt payment or performance of other obligations under the Indenture or the Notes.
(g) If the enforcement of the Restricted Obligations would be limited due to the effects referred to in this Section 10.6 and if any asset of the Swiss Note Guarantor has a book value that is less than its market value (an “ Undervalued Asset ”), the Swiss Note Guarantor shall, to the extent permitted by applicable law and its accounting standards (i) write up the book value of such Undervalued Asset such that its balance sheet reflects a book value that is equal to the market value of such Undervalued Asset, and (ii) make reasonable efforts to realize the Undervalued Asset for a sum which is at least equal to the market value of such asset. Without prejudice to the rights of the Trustee and the Holders under the Indenture, the Notes or any other agreement, the Swiss Note Guarantor will only be required to realize an Undervalued Asset if such asset is not necessary for the Swiss Note Guarantor’s business ( nicht betriebsnotwendig ).
ARTICLE XI
COLLATERAL
Section 11.1 The Collateral. Subject to Section 11.2, the Issuer and the Note Guarantors agree that the Notes will be at all times secured by a first-priority security interest in the Collateral on at least an equal and ratable basis with the Permitted Secured Obligations.
Section 11.2 Release of the Collateral.
(a) The Notes will cease to be secured by a security interest in the Collateral in accordance with the provisions of the Intercreditor Agreement.
(b) In addition to the Collateral release provisions set forth in the Intercreditor Agreement, the Notes will cease to be secured by a security interest on the Collateral upon:
 
 	(i)	(A) payment in full of the principal of, any accrued and unpaid interest on, the Notes and all other amounts or Obligations that are due and payable at or prior to the time such principal, accrued and unpaid	
 
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 	interest, if any, are paid, (B) a satisfaction and discharge of this Indenture or (C) a Legal Defeasance or Covenant Defeasance pursuant to  Article VIII ; or	
 
 	(ii)	a refinancing of the Facilities Agreement Indebtedness in full as a result of which the Collateral does not secure Indebtedness Incurred to refinance such Facilities Agreement Indebtedness.	
ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer and the Note Guarantors:
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4417
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
Fax: 724-540-6330
The Issuer or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) All notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to DTC, delivery of which shall be deemed to satisfy the requirements of this paragraph.
(c) Each such notice shall be deemed to have been given on the date of delivery or mailing. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to them if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any
 
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defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(d) Subject to Section 7.1(c) and Section 7.2(a), the Trustee shall accept electronic transmissions; provided, that (i) the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information and (ii) each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(e) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the Note Register and shall be sufficiently given if so mailed within the time prescribed.
(f) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(g) Any notice or communication delivered to the Issuer or the Company under the provisions herein shall constitute notice to the Note Guarantors.
Section 12.2 Communication by Holders with Other Holders. Holders may communicate with other Holders with respect to their rights under this Indenture (including the Note Guarantees) or the Notes.
Section 12.3 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
 
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Section 12.4 Statements Required in Certificate or Opinion. Each certificate or opinion, including an Opinion of Counsel or Officer’s Certificate, with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 12.5 Rules by Trustee, Paying Agent, Transfer Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Paying Agent, Transfer Agent and the Registrar may make reasonable rules for their functions.
Section 12.6 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City, Mexico, Madrid, Amsterdam, London, Paris or Zurich. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 12.7 Governing Law, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR EACH NOTE GUARANTEE OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
 
 	(i)	agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Note Guarantees) or the Notes, as the case may be, may be instituted in any Federal or state court sitting in the City of New York and County of New York and in the courts of its own corporate domicile, in respect of actions brought against it as a defendant,	
 
115

 	(ii)	waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,	
 
 	(iii)	irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding,	
 
 	(iv)	agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and	
 
 	(v)	agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.	
(c) The Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as its authorized agent (the “Authorized Agent”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. The Note Guarantors (other than CEMEX Corp.) hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Note Guarantors (other than CEMEX Corp.) agree to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Note Guarantors (other than CEMEX Corp.) agree that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Note Guarantors (other than CEMEX Corp.) of a successor agent in the City of New York, New York as each of their authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Note Guarantors (other than CEMEX Corp.).
(d) To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors hereby irrevocably waive and agree not to plead or claim such immunity in respect of their obligations under this Indenture or the Notes.
(e) Nothing in this Section 12.7 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
 
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Section 12.8 [Reserved].
Section 12.9 No Recourse Against Others. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or this Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
Section 12.10 Successors. All agreements of the Issuer and any Note Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11 Duplicate and Counterpart Originals. The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or pdf shall be deemed to be their original signatures for all purposes.
Section 12.12 Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13 [Reserved].
Section 12.14 Currency Indemnity.
(a) U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and any Note Guarantor under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than U.S. Legal Tender in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, a Note Guarantor or any Subsidiary of the Issuer or otherwise) by any Holder of the Notes in respect of any sum expressed to be due to it from the Issuer or any Note Guarantor shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the U.S. Legal Tender amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that U.S. Legal Tender amount is less than the U.S. Legal Tender amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer and the Note Guarantors shall jointly and severally indemnify and hold harmless the recipient, to the greatest extent permitted by law, against any loss or cost sustained by it in making any such purchase. For the purposes of this  Section 12.14 , it will be sufficient for the Holder of a Note to certify that it would have suffered a loss had an actual purchase of U.S. Legal Tender been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of U.S. Legal Tender on such date had not been practicable, on the first date on which it would have been practicable).
(b) The indemnities of the Issuer and the Note Guarantors contained in this Section 12.14, to the extent permitted by law: (i) constitute a separate and independent
 
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obligation from the other obligations of the Issuer and the Note Guarantors under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer and the Note Guarantors; (iii) shall apply irrespective of any waiver granted by any Holder of the Notes or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
Section 12.15 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 12.16 USA PATRIOT Act. The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplemented from time to time, the “USA PATRIOT Act”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Signature page follows]
 
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

CEMEX Finance LLC,
as Issuer	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
EACH OF THE NOTE GUARANTORS
LISTED BELOW	 	 	
 	 	
CEMEX, S.A.B. de C.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
CEMEX México, S.A. de C.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
CEMEX Concretos, S.A. de C.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
Empresas Tolteca de México, S.A. de C.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	

 	 	 	 	 	
 	 	
New Sunward Holding B.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
CEMEX España, S.A.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
Cemex Asia B.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
CEMEX Corp.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
Cemex Egyptian Investments B.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
Cemex Egyptian Investments II B.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	

 	 	 	 	 	
 	 	
CEMEX France Gestion (S.A.S.)	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
Cemex Research Group AG	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
Cemex Shipping B.V.	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	
 	 	
CEMEX UK	 	 	
 	 	 	
By:	 	  /s/ Jaime Armando Chapa Gonzalez	 	 	
 	 	  Name: Jaime Armando Chapa Gonzalez	 	 	
 	 	  Title: Attorney-In-Fact	 	 	

 	 	 	 	 	
 	 	
THE BANK OF NEW YORK MELLON,
as Trustee	 	 	
 	 	 	
By:	 	  /s/ Catherine F. Donohue	 	 	
 	 	Name: Catherine F. Donohue	 	 	
 	 	Title: Vice President	 	 	

SCHEDULE I
NOTE GUARANTORS
 
1.	CEMEX, S.A.B. de C.V. (Mexico)	
 
2.	CEMEX México, S.A. de C.V. (Mexico)	
 
3.	CEMEX Concretos, S.A. de C.V. (Mexico)	
 
4.	Empresas Tolteca de México, S.A. de C.V. (Mexico)	
 
5.	New Sunward Holding B.V. (the Netherlands)	
 
6.	CEMEX España, S.A. (Spain)	
 
7.	Cemex Asia B.V. (the Netherlands)	
 
8.	CEMEX Corp. (Delaware)	
 
9.	Cemex Egyptian Investments B.V. (the Netherlands)	
 
10.	Cemex Egyptian Investments II B.V. (the Netherlands)	
 
11.	CEMEX France Gestion (S.A.S.) (France)	
 
12.	Cemex Research Group AG (Switzerland)	
 
13.	Cemex Shipping B.V. (the Netherlands)	
 
14.	CEMEX UK (United Kingdom)	

EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”]
[Include the following legend on all Notes that are Restricted Notes:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND [ Include the following on all Regulation S Notes that are Restricted Notes:  , PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO CEMEX FINANCE LLC, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR
 
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(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS LEGEND CAN ONLY BE REMOVED AT THE OPTION OF THE ISSUER.”]
[Include the following on all Regulation S Notes that are Restricted Notes: PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] EACH PERSON ACQUIRING AN OWNERSHIP INTEREST IN THE NOTES (1) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT EITHER (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S) AND IS OUTSIDE THE UNITED STATES OR (C) IS ACQUIRING SUCH OWNERSHIP INTEREST PURSUANT TO A VALID REGISTRATION STATEMENT OR IN ANOTHER TRANSACTION EXEMPT FROM SUCH REGISTRATION; (2) AGREES THAT [ Include the following on all Regulation S Notes that are Restricted Notes:  PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] (X) IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS, AND IN ANY CASE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; (Y) PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE BANK OF NEW YORK MELLON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (Z) IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “UNITED STATES”, “U.S. PERSON” AND “OFFSHORE TRANSACTION” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
 
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FORM OF FACE OF NOTE
6.000% Senior Secured Notes due 2024

No.	 	 	 	 	  	Principal Amount U.S.$	 	 	
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
CUSIP NO.                     1
ISIN NO.                     2
CEMEX Finance LLC, a Delaware limited liability company (together with its successors and assigns, the “ Issuer ”), promises to pay to Cede & Co., or registered assigns, the principal sum of                       U.S. Dollars [ If the Note is a Global Note, add the following , as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on April 1, 2024.
Interest Payment Dates: April 1 and October 1, commencing on October 1, 2014
Record Dates: March 15 and September 15
 
1 	CUSIP No. for Rule 144A Note: 12516U AD7 CUSIP No. for Regulation S Note: U12763 AD7	
2 	ISIN No. for Rule 144A Note: US12516UAD72 ISIN No. for Regulation S Note: USU12763AD75	
 
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Additional provisions of this Note are set forth on the other side of this Note.

CEMEX FINANCE LLC	
 	 	
  By:	 	 	
 	 	Name:	
 	 	Title:	
TRUSTEE’S CERTIFICATE OF
  AUTHENTICATION
THE BANK OF NEW YORK MELLON
as Trustee, certifies
that this is one of
the Notes referred
to in the Indenture.

By:	 	 	 	 	 	Date:	 	 	
 	 	    Authorized Signatory    	 	 	 	 	 	 	
 
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FORM OF REVERSE SIDE OF NOTE
6.000% Senior Secured Notes due 2024
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.	Interest	
CEMEX Finance LLC, a Delaware limited liability company (together with its successors and assigns, the “ Issuer ”), promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Issuer will pay interest semiannually in arrears on each Interest Payment Date of each year commencing October 1, 2014;  provided , that if any such Interest Payment Date is not a Business Day, then such payment shall be made on the next succeeding Business Day. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from April 1, 2014;  provided , that if there is no existing Default or Event of Default on the payment of interest, and if this Note is authenticated between a Record Date referred to on the face hereof and the next succeeding Interest Payment Date (but after April 1, 2014), interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from April 1, 2014. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Each interest period shall end on (but not include) the relevant interest payment date.
All payments made by the Issuer in respect of the Notes will be made free and clear of and without deduction or withholding for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless such withholding or deduction is required by law or by the interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
 
2.	Method of Payment	
By at least 10:00 a.m. (New York City time) on the Business Day prior to the date on which any principal of or interest on any Note is due and payable, the Issuer shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Issuer will pay interest (except Defaulted Interest) on the applicable Interest Payment Date to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date, except as provided in  Section 2.13  of the Indenture with respect to Defaulted Interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer will pay principal and interest in U.S. Legal Tender.
 
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Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by the DTC. The Issuer will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each registered Holder thereof as set forth in the Note Register;  provided, however , that payments on the Notes may also be made, in the case of a Holder of at least U.S.$10,000,000 aggregate principal amount of Notes, by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 10 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
 
3.	Paying Agent and Registrar	
Initially, The Bank of New York Mellon, the Trustee under the Indenture, will act as Trustee, Paying Agent and Registrar. The Issuer may appoint and change any Paying Agent, Registrar or co-Registrar without notice to any Holder. The Issuer, any Note Guarantor or any of their respective Affiliates may act as Paying Agent, Registrar or co-Registrar.
 
4.	Indenture	
The Issuer issued the Notes under an Indenture, dated as of April 1, 2014 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Issuer, the Note Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general senior obligations, which are secured by a first priority security interest in the Collateral on an equal and ratable basis with the other Permitted Secured Obligations, subject to the Collateral release provisions set forth in the Intercreditor Agreement. U.S.$1,000,000,000 in aggregate principal amount of Notes will be issued on the Issue Date. Subject to the conditions set forth in the Indenture and without the consent of the Holders, the Issuer may issue Additional Notes. All Notes will be treated as a single series of securities under the Indenture. The Indenture imposes certain limitations on, among other things, the ability of the Issuer and its Restricted Subsidiaries to: Incur Indebtedness, make Restricted Payments, incur Liens, designate Unrestricted Subsidiaries, make Asset Sales, enter into transactions with Affiliates, or consolidate or merge or transfer or convey all or substantially all of the Issuer’s assets.
To guarantee the due and punctual payment of the principal of (and premium, if any) and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by
 
2

acceleration or otherwise, according to the terms of the Notes and the Indenture, the Note Guarantors have unconditionally guaranteed, jointly and severally, such obligations pursuant to the terms of the Indenture. Each Note Guarantee will be subject to release as provided in the Indenture.
The obligations of each Note Guarantor in respect of its Note Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance, fraudulent transfer, or similar illegal transfer under federal or state law or the law of the jurisdiction or formation and incorporation of such Note Guarantors.
 
5.	Optional Redemption	
Except as stated below, the Issuer may not redeem the Notes. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, on and after April 1, 2019, at the following redemption prices, expressed as percentages of the principal amount thereof, if redeemed during the twelve-month period commencing on April 1 of any year set forth below, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption:

Year	  	Percentage	 	
2019	  	 	103.000	% 	
2020	  	 	102.000	% 	
2021	  	 	101.000	% 	
2022 and thereafter	  	 	100.000	% 	
provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to April 1, 2019, the Issuer will have the right, at its option, to redeem any of the Notes, in whole or in part, at any time or from time to time prior to their maturity at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes and (2) the sum of the present value of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined below) plus 50 basis points, plus, in each case any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption,  provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
 
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“Treasury Rate” means, with respect to any Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity or interpolated maturity (on a day count basis) of the Comparable Treasury Issue (as defined below), assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price (as defined below) for such Redemption Date.
“Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker (as defined below) as having an actual or interpolated maturity comparable to the remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such Notes.
“Independent Investment Banker” means one of the Reference Treasury Dealers (as defined below) appointed by the Issuer.
“Comparable Treasury Price” means, with respect to any Redemption Date (1) the average of the Reference Treasury Dealer Quotations (as defined below) for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotation or (2) if the Independent Investment Banker or Issuer obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
“Reference Treasury Dealer” means any one of Citigroup Global Markets Inc. or J.P. Morgan Securities LLC or their respective affiliates which are primary United States government securities dealers and not less than two other leading primary United States government securities dealers in New York City reasonably designated by the Issuer;  provided, however , that if any of the foregoing shall cease to be a primary United States government securities dealer in New York City (a “ Primary Treasury Dealer ”), the Issuer will substitute therefore another Primary Treasury Dealer.
“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any Redemption Date, the average, as determined by the Independent Investment Banker or Issuer, of the bid and asked price for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker or Issuer by such Reference Treasury Dealer at 3:30 p.m. New York time on the third business day preceding such Redemption Date.
Optional Redemption upon Equity Offerings. At any time, or from time to time, on or prior to April 1, 2019, the Issuer may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem in the aggregate up to 35% of the aggregate principal amount of the Notes issued pursuant to the Indenture at a redemption price equal to 106.000% of the principal amount thereof plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided , that:
 
 	•	 	after giving effect to any such redemption at least 65% of the aggregate principal amount of the Notes issued under the Indenture remains outstanding; and	
 
4

 	•	 	the Issuer shall make such redemption not more than 90 days after the consummation of such Equity Offering;	
provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from exercising such an option under the Facilities Agreement.
“Equity Offering” means any public or private sale of Qualified Capital Stock after the Issue Date for cash other than issuances to any Subsidiary of the Company.
Optional Redemption for Changes in Withholding Taxes. If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article IV  shall be treated for this purpose as the date of such transaction) we would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding tax rate of 10% with respect to the Notes (see “Additional Amounts”), then, at our option, all, but not less than all, of the Notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the outstanding principal amount, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided ,  however , that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which we would be obligated to pay these Additional Amounts if a payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect;  provided ,  further ,  however , that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to the publication of any notice of redemption pursuant to this provision, the Issuer will deliver to the Trustee:
 
 	•	 	an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	
 
 	•	 	an opinion of outside legal counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	
This notice, once delivered by the Issuer to the Trustee, will be irrevocable.
In the case of any partial redemption, selection of the Notes for redemption will be made in accordance with Article V of the Indenture. On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called-for redemption as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
 
5

6.	Mandatory Repurchase Provisions	
Change Of Control Offer. Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Issuer purchase all or a portion (in integral multiples of U.S.$1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest through the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Issuer must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by applicable law.
Asset Sale Offer. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to make Asset Sales. In the event the proceeds from a permitted Asset Sale exceed certain amounts and are not applied as specified in the Indenture, the Company will be required to make an Asset Sale Offer to purchase to the extent of such remaining proceeds each Holder’s Notes together with holders of certain other Indebtedness at 100% of the principal amount thereof, plus accrued interest (if any) to the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
 
7.	Denominations; Transfer; Exchange	
The Notes are in fully registered form without coupons, and only in denominations of principal amount of U.S.$200,000 and in integral multiples of U.S.$1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar shall not be required to register the transfer or exchange of (x) any Note for a period beginning: (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.
 
8.	Persons Deemed Owners	
The registered holder of this Note may be treated as the owner of it for all purposes.
 
9.	Unclaimed Money	
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment.
 
6

10.	Discharge Prior to Redemption or Maturity	
Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee U.S. Legal Tender or U.S. Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
 
11.	Amendment, Waiver	
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended or supplemented without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Issuer and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with  Article IV  of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Issuer or the Note Guarantors, or to make any change that does not adversely affect the rights of any Holder, or to provide for the issuance of Additional Notes.
 
12.	Defaults and Remedies	
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be due and payable immediately. A Bankruptcy Event of Default will result in the Notes being due and payable immediately upon the occurrence of such Bankruptcy Event of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
 
13.	Trustee Dealings with the Issuer and the Note Guarantors	
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, any Note Guarantor or its Affiliates and may otherwise deal with the Issuer, any Note Guarantor or its Affiliates with the same rights it would have if it were not Trustee.
 
7

14.	No Recourse Against Others	
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or the Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each holder waives and releases all such liability.
 
15.	Authentication	
Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.
 
16.	Abbreviations	
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (= Uniform Gift to Minors Act).
 
17.	CUSIP Numbers	
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused CUSIP or other similar numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
18.	Governing Law	
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
 
19.	Currency of Account; Conversion of Currency.	
U.S. Legal Tender is the sole currency of account and payment for all sums payable by the Issuer and the Note Guarantors under or in connection with the Notes or the Indenture, including damages. The Issuer and the Note Guarantors will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
 
20.	Agent for Service; Submission to Jurisdiction; Waiver of Immunities.	
The Issuer and the Note Guarantors have agreed that any suit, action or proceeding against the Issuer or any Note Guarantor brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal
 
8

court in the City of New York and County of New York and in the courts of their respective corporate domiciles, in respect of actions brought against them as defendants. The Note Guarantors (other than CEMEX Corp.) have irrevocably submitted to the jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as each of their authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors have irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
CEMEX Finance LLC
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya # 325
Colonia Valle del Campestre
Garza García, Nuevo León, México 66265
Tel: +5281-8888-8888
 
9

ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint                                 as agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

Date:	 	 	 	 	 	Your Signature:	 	 	 	 	

Signature Guarantee:	 	 	 	 	 	 	 	 	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	 	 	 	 	 	 	 	 	 	 	

 
Sign exactly as your name appears on the other side of this Note.	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
10

To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:

Date of
Exchange	  	 	  	Amount of decrease in
Principal Amount of this
Global Note	  	 	  	Amount of increase in
Principal Amount of this
Global Note	  	 	  	Principal Amount of this
Global Note following
such decrease or
increase	  	 	  	Signature of authorized
signatory of Trustee or
Note Custodian	

 
11

OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 3.8 or Section 3.12 of the Indenture, check either box:

¨	  	¨	
Section 3.8	  	Section 3.12	
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.12 of the Indenture, state the principal amount (which must be in minimum denominations of U.S.$200,000 and in an integral multiple of U.S.$1,000):

U.S.$            

Date:	 	 	  	Your Signature	 	 	
 	 	 	  	(Sign exactly as your name appears on the
other side of the Note)	

Signature Guarantee:	  	 	  	 	
 	  	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
12

EXHIBIT B
FORM OF CERTIFCATION FOR TRANSFER PURSUANT TO REGULATION S
[Date]
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
Re:     6.000% Senior Secured Notes due 2024 (the “Notes”) of
CEMEX Finance LLC (the “Issuer”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 1, 2014 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), as the case may be.
In connection with our proposed transfer of U.S.$        aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
 
B-1

You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

 	 	Very truly yours,	
 	 	
 	 	[Name of Transferor]	
 	 	 	
 	 	By:	 	 	

 	 	Authorized Signature]	

Signature Guarantee:	 	 	
 	 	(Signature must be guaranteed)	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
B-2

EXHIBIT C
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144
[Date]
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
Re:     6.000% Senior Secured Notes due 2024 (the “Notes”) of
CEMEX Finance LLC (the “Issuer”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 1, 2014 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$            aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	 	 	
 	 	
[Name of Transferor]	 	 	
 	 	 	
By:	 	 	 	 	

Authorized Signature	 	 	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
C-1

EXHIBIT D
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A
[Date]
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
Re:     6.000% Senior Secured Notes due 2024 (the “Notes”) of
CEMEX Finance LLC (the “Issuer”)
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 1, 2014 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of U.S.$             aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Note beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended, and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	 	 	
 	 	
[Name of Transferor]	 	 	
 	 	 	
By:	 	 	 	 	

Authorized Signature]	 	 	
 
D-1

 
 	 	 	 	 	
Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS
The definition of “Consolidated Leverage Ratio” comes from the 2009 Financing Agreement, as in effect immediately prior to giving effect to the amendment and restatement thereof on September 17, 2012, and is to be used solely for purposes of calculating the Consolidated Leverage Ratio in the context of determining whether a Partial Covenant Suspension Event has occurred.
“2012 CB Amount” means an aggregate amount equal to the Relevant Existing Financial Indebtedness maturing on or prior to the 2012 CB Maturity Date.
“2012 CB Maturity Date” means the final maturity date of the Relevant Existing Financial Indebtedness maturing in September, 2012 (being 21 September, 2012).
“Acceptable Bank” means:
 
 	(a)	a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A- or higher by Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency;	
 
 	(b)	any other bank or financial institution in a jurisdiction in which a member of the Group conducts commercial operations where such member of the Group, in the ordinary course of trading, subscribes for certificates of deposit issued by such bank or financial institution; or	
 
 	(c)	any other bank or financial institution approved by the Administrative Agent.	
“Accession Letter” means a document substantially in the form set out in Schedule 4 (Form of Accession Letter ) of the 2009 Financing Agreement.
“Additional Guarantor” means a company that becomes an Additional Guarantor in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Additional Security Provider” means a company that becomes an Additional Security Provider in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Administrative Agent” means Citibank International PLC, as administrative agent of the Finance Parties (other than itself) under the 2009 Financing Agreement.
“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.
“Applicable GAAP” means:
 
 	(a)	in the case of the Company, Mexican FRS or, if adopted by the Company in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS;	
 
 	(b)	in the case of CEMEX España, Spanish GAAP or, if adopted by CEMEX España in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS; and	
 
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 	(c)	in the case of any other Obligor, the generally accepted accounting principles applying to it in the country of its incorporation or in a jurisdiction agreed to by the Administrative Agent or, if adopted by the relevant Obligor, IFRS.	
“Authorised Signatory” means, in relation to any Obligor, any person who is duly authorised and in respect of whom the Administrative Agent has received a certificate signed by a director or another Authorised Signatory of such Obligor setting out the name and signature of such person and confirming such person’s authority to act.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ) between CEMEX CONCRETOS, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, Sociedad Nacional de Crédito, Institución de Banca de Desarrollo, as lender (“ Banobras ”), in an aggregate principal amount equal to Mex$5,000,000,000.00 (five billion pesos), dated April 22, 2009, which was formalized by means of public deeds number 116,380 and 116,381 dated April 22, 2009, granted before Mr. José Angel Villalobos Magaña, notary public number 9 for Mexico, Federal District, as such facility may be amended from time to time.
“Base Currency” means US dollars.
“Base Currency Amount” means on any date:
 
 	(a)	in relation to an amount or Exposure denominated in the Base Currency, that amount or the amount of that Exposure; and	
 
 	(b)	in relation to an amount or Exposure denominated in a currency other than the Base Currency, that amount or the amount of that Exposure converted into the Base Currency at:	
 
 	(i)	for the purposes of determining the Majority Participating Creditors, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date on which such determination is made (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Participating Creditors); and	
 
 	(ii)	for all other purposes, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. on the date which is five Business Days before that date (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Participating Creditors).	
“Bilateral Bank Facilities” means the facilities described in Part IB of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Borrower” means an Original Borrower unless it has ceased to be a Borrower in accordance with Clause 28.2 ( Resignation of a Borrower ) of the 2009 Financing Agreement.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Madrid, New York, Amsterdam and Mexico City (in the case of Mexico City, if applicable, as specified by a governmental authority), and:
 
 	(a)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, a currency other than euro) the principal financial centre of the country of that currency; or	
 
E-2

 	(b)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, euro) any TARGET Day.	
“Business Plan” means the five year business plan of the Group delivered in conjunction with the 2009 Financing Agreement.
“Capital Expenditure” means any expenditure or obligation in respect of expenditure which, in accordance with Applicable GAAP of the Company, is treated as capital expenditure (and including the capital element of any expenditure or obligation incurred in connection with a Capital Lease) (and, solely for the purposes of paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement, the maximum amount of Capital Expenditure of the Group permitted in the Financial Year ending on or about 31 December 2009 will be increased by an amount not exceeding $50,000,000 in aggregate to the extent necessary to take into account currency fluctuations or additional costs and expenses contemplated by (or that have occurred since the date of) the Business Plan).
“Capital Lease” means, as to any person, the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of the Company under Applicable GAAP and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable GAAP of the Company.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designed) of capital stock of a corporation, any and all equivalent ownership interests in a person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Cash Equivalent Investments” means at any time:
 
 	(a)	certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;	
 
 	(b)	any investment in marketable debt obligations issued or expressly guaranteed by the government of Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group conducts commercial operations if that member of the Group makes investments in such debt obligations in the ordinary course of its trading) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;	
 
 	(c)	commercial paper not convertible into or exchangeable for any other security:	
 
 	(i)	for which a recognised trading market exists;	
 
 	(ii)	issued by an issuer incorporated in Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group makes investments in such debt obligations in the ordinary course of trading);	
 
 	(iii)	which matures within one year after the relevant date of calculation; and	
 
E-3

 	(iv)	which has a credit rating of either A-1 or higher by S&P or F 1 or higher by Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;	
 
 	(d)	sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);	
 
 	(e)	any investment in money market funds which (i) have a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch or P-1 or higher by Moody’s, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (f) and (g) below and (iii) can be turned into cash on not more than 30 days’ notice; or	
 
 	(f)	any deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco National de Obras y Servicios Publicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(g)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which any member of the Group conducts commercial operations and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquiring such investment;	
 
 	(h)	investments in mutual funds, managed by banks or financial institutions, with a local currency credit rating of at least MxAA by S&P or equivalent by any other reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican government, or issued by any agency or instrumentality thereof; and	
 
 	(i)	any other debt security, certificate of deposit, commercial paper, bill of exchange, investment in money market funds or material funds approved by the Majority Participating Creditors, in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).	
“CB Cash Replenishment Amount” means, for a particular Relevant Prepayment Period, the amount of cash in hand of the Company on a consolidated basis to be applied by the Company to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement at any time during that Relevant Prepayment Period  provided that  such amount, together with the CB Disposal Proceeds Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Disposal Proceeds Replenishment Amount” means for a particular Relevant Prepayment Period, the amount of any Disposal Proceeds received by any member of the Group during that Relevant Prepayment Period to be applied by the Company to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement  provided that  such amount, together with the CB Cash Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Reserve” means the reserve created by the Company or any of its Subsidiaries for the purposes of holding the proceeds of any Permitted Fundraising that, as set out in the relevant CB Reserve Certificate, are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement.
 
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“CB Reserve Certificate” means a certificate signed by a Responsible Officer of the Company setting out, with respect to a Permitted Fundraising the net cash proceeds of which are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement:
 
 	(i)	the amount of proceeds from the relevant Permitted Fundraising that the Company wishes to be applied to the CB Reserve (such amount to not exceed the aggregate amount of the Relevant Existing Financial Indebtedness that is due to mature within the Relevant Prepayment Period to which it applies); and	
 
 	(ii)	specific details of the Relevant Existing Financial Indebtedness to which any amounts are designated by the Company to be applied including the total aggregate amount of such Relevant Existing Financial Indebtedness and the date on which such Relevant Existing Financial Indebtedness matures.	
“CB Reserve Shortfall” means at any time, for a particular Relevant Prepayment Period, an amount equal to the lower of:
 
 	(i)	the aggregate amount of (A) any voluntary prepayments made to Participating Creditors pursuant to Clause 12.2 ( Voluntary prepayment of Exposures ) of the 2009 Financing Agreement from proceeds standing to the credit of the CB Reserve in that Relevant Prepayment Period and (B) the 2012 CB Amount; and	
 
 	(ii)	the principal amount of any Relevant Existing Financial Indebtedness then outstanding in that Relevant Prepayment Period.	
“Change of Control” means that the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended) of 20 per cent. or more in voting power of the outstanding voting stock of the Company is acquired by any person,  provided that  the acquisition of beneficial ownership of capital stock of the Company by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Charged Property” means all of the assets of the Security Providers which from time to time are, or are expressed to be, the subject of the Transaction Security.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate ) of the 2009 Financing Agreement.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) EBITDA for the one (1) year period ending on such date to (b) Consolidated Interest Expense for the one (1) year period ending on such date.
“Consolidated Debt” means, at any date, the sum (without duplication) of (a) the aggregate amount of all Debt of the Company and its Subsidiaries at such date, which shall include the amount of any recourse in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness,  plus  (b) to the extent not included in Debt, the aggregate net mark-to-market amount of all derivative financing in the form of equity swaps outstanding at such date (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents).
“Consolidated Funded Debt” means, for any period, Consolidated Debt less the sum (without duplication) of (i) all obligations of such person to pay the deferred purchase price of property or services, (ii) all obligations of such person as lessee under Capital Leases, and (iii) all obligations of such person with respect to product invoices incurred in connection with export financing.
 
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“Consolidated Interest Expense” means, for any period, the sum of the (1) total gross cash and non cash interest expense of the Company and its consolidated Subsidiaries relating to Consolidated Funded Debt of such persons, (2) any amortization or accretion of debt discount or any interest paid on Consolidated Funded Debt of such person and its Subsidiaries in the form of additional Financial Indebtedness (but excluding any amortization of deferred financing and debt issuance costs), (3) the net costs under Treasury Transactions in respect of interest rates (but excluding amortization of fees), (4) any amounts paid in cash on preferred stock, and (5) any interest paid or accrued in respect of Consolidated Funded Debt without a maturity date, regardless of whether considered interest expense under Applicable GAAP of the Company. For purposes of calculating Consolidated Interest Expense for the Reference Period ending 30 June 2010, $131,406,696.17 shall be deducted, constituting the amount of interest paid in respect of perpetual debentures on 1 July 2009 for the period ending 30 June 2009.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Funded Debt on such date to (b) EBITDA for the one (1) year period ending on such date.
“Core Bank Facilities” means the Syndicated Bank Facilities, the Bilateral Bank Facilities and the Promissory Notes.
“Creditor’s Representative” means:
 
 	(a)	with respect to each of the Syndicated Bank Facilities, the person appointed as the agent of the creditors in relation to such Facility under the Existing Finance Documents relating to such Facility;	
 
 	(b)	with respect to each other Core Bank Facility, the Participating Creditor with an Exposure under that Facility; and	
 
 	(c)	with respect to each USPP Note, the Participating Creditor with an Exposure under that USPP Note.	
“Debt” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments, including the perpetual bonds, (iii) the aggregate net mark-to-market of Treasury Transactions (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents) of such person but excluding Treasury Transactions relating to the rate or price of energy or any commodity, (iv) all obligations of such person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of trading, (v) all obligations of such person as lessee under Capital Leases, (vi) all Debt of others secured by Security on any asset of such person, up to the value of such asset, (vii) all obligations of such person with respect to product invoices incurred in connection with export financing, (viii) all obligations of such person under repurchase agreements for the stock issued by such person or another person, (ix) all obligations of such person in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness and (x) all guarantees of such person in respect of any of the foregoing  provided, however , that for the purposes of calculating the Consolidated Funded Debt element of the Consolidated Leverage Ratio, Relevant Convertible/Exchangeable Obligations shall be excluded from each of the foregoing paragraphs (i) to (x) inclusive ( provided that , in the case of outstanding Financial Indebtedness under any Relevant Convertible/Exchangeable Obligations (1) only the principal amount thereof shall be excluded and (2) such exclusion shall apply only for so long as such amounts remain subordinated in accordance with the terms of that definition) and (b) amounts falling within paragraph (v) of the definition of Excluded Fundraising Proceeds, for the period in which they are held by the Company or any member of the Group pending application in accordance with the terms of the 2009 Financing
 
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Agreement, shall be deducted from the aggregate Debt calculation resulting from this definition. For the avoidance of doubt, all letters of credit, banker’s acceptances or similar credit transactions, including reimbursement obligations in respect thereof are not Debt until they are required to be funded.
“Debt Documents” means the Finance Documents, the “Refinancing Documents” (as defined in the Intercreditor Agreement) and the “Noteholder Documents” (as defined in the Intercreditor Agreement).
“Debt Reduction Satisfaction Date” means the first date following 30 September 2010 on which:
 
 	(a)	the Base Currency Amount of the Exposures of Participating Creditors under the Facilities (calculated as at the date that any reduction of Exposures occurs and in accordance with the 2009 Financing Agreement) has been reduced by an aggregate amount equal to at least U.S.$1,000,000,000 compared to the Exposures of Participating Creditors under the Facilities as at 30 September 2010; and	
 
 	(b)	the amount of Consolidated Funded Debt is at least U.S.$1,000,000,000 (or its equivalent in any other currency) lower than the level of Consolidated Funded Debt as at 30 September 2010 (for the avoidance of doubt, when used in this sub-paragraph, Consolidated Funded Debt shall not include any Relevant Convertible/Exchangeable Obligations),	
with notification of the occurrence of such date being provided by the Parent delivering a certificate to the Administrative Agent signed by an Authorised Signatory confirming that (a) and (b) above have been met.
“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of (a) operating income ( utilidad de operación ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Company consistently applied for such period.
“Discontinued Operations” means operations that are accounted for as discontinued operations pursuant to Applicable GAAP of the Company for which the Disposal of such assets has not yet occurred.
“Disposal” means a sale, lease, license, transfer, loan or other disposal by a person of any asset (including shares in any Subsidiary or other company), undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).
“Disposal Proceeds” means:
 
 	(i)	the cash consideration received by any member of Group (including any amount received from a person who is not a member of the Group in repayment of intercompany debt save to the extent that the creditor in respect of the intercompany debt is obliged to repay that amount to the purchaser at or about completion of the Disposal) for any Disposal;	
 
 	(ii)	any proceeds of any Disposal received in the form of Marketable Securities that are required to be disposed of for cash (after deducting reasonable expenses incurred by the party disposing of those Marketable Securities to persons other than members of the Group) pursuant to the criteria set out at paragraph (h) of the definition of Permitted Disposal; and	
 
 	(iii)	any proceeds of any Disposal received in any other form to the extent disposed of or otherwise converted into cash within 90 days of receipt; and	
 
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 	(iv)	any consideration falling within paragraphs (i) to (iii) above that is received by any member of the Group from the Disposal of assets of the Group in Venezuela prior to the date of the 2009 Financing Agreement,	
but excluding any Excluded Disposal Proceeds and, in every case, after deducting:
 
 	(1)	any reasonable expenses which are incurred by the disposing party of such assets with respect to that Disposal to persons who are not members of the Group;	
 
 	(2)	any Tax incurred and required to be paid by the disposing party in connection with that Disposal (as reasonably determined by the disposing party on the basis of rates existing at the time of the disposal and taking account of any available credit, deduction or allowance);	
“EBITDA” means, for any period, the sum for the Company and its Subsidiaries, determined on a consolidated basis of (a) operating income ( utilidad de operacion ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Company, subject to the adjustments herein, consistently applied for such period and adjusted for Discontinued EBITDA as follows: if the amount of Discontinued EBITDA is a positive amount, then EBITDA shall increase by such amount, and if the amount of Discontinued EBITDA is a negative amount, then EBITDA shall decrease by the absolute value of such amount. For the purposes of calculating EBITDA for any applicable period pursuant to any determination of the Consolidated Leverage Ratio (but not the Consolidated Coverage Ratio): (A) (i) if at any time during such applicable period the Borrower or any of its Subsidiaries shall have made any Material Disposal, the EBITDA for such applicable period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposal for such applicable period (but when the Material Disposal is by way of lease, income received by the Company or any of its Subsidiaries under such lease shall be included in EBITDA) and (ii) if at any time during such applicable period the Company or any of its Subsidiaries shall have made any Material Acquisition, EBITDA for such applicable period shall be calculated after giving  pro forma  effect thereto as if such Material Acquisition had occurred on the first day of such applicable period. Additionally, if since the beginning of such applicable period any person that subsequently shall have become a Subsidiary or was merged or consolidated with the Company or any of its Subsidiaries as a result of a Material Acquisition occurring during such applicable period shall have made any Material Disposal or Material Acquisition of property that would have required an adjustment pursuant to clause (i) or (ii) above if made by the Company or any of its Subsidiaries during such applicable period, EBITDA for such period shall be calculated after giving  pro forma  effect thereto as if such Material Disposal or Material Acquisition had occurred on the first day of such applicable period; and (B) EBITDA will be recalculated by multiplying each month’s EBITDA by the Ending Exchange Rate and dividing the amount obtained thereto by the exchange rate used by the Company in preparation of its monthly financial statements in accordance with Applicable GAAP of the Company to convert $ into Mexican pesos (such recalculated EBITDA being the “ Recalculated EBITDA ”).
“Ending Exchange Rate” means the exchange rate at the end of a Reference Period for converting $ into Mexican pesos as used by the Company and its auditors in preparation of the Company’s financial statements in accordance with Applicable GAAP of the Company.
“Excluded Disposal Proceeds” means any CB Disposal Proceeds Replenishment Amount and the proceeds of any Disposal of:
 
 	(i)	inventory or trade receivables in the ordinary course of trading of the disposing entity;	
 
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 	(ii)	assets pursuant to a Permitted Securitisation programme existing as at the date of the 2009 Financing Agreement (or any rollover or extension of such a Permitted Securitisation);	
 
 	(iii)	any asset from any member of the Group to another member of the Group on arm’s length terms and for fair market or book value;	
 
 	(iv)	any assets the consideration for which (when aggregated with the consideration for any related Disposals) is less than $5,000,000 (or its equivalent in any other currency);	
 
 	(v)	assets leased or licensed to any director, officer or employee of any member of the Group in connection with and as part of the ordinary course of the service or employment arrangements of the Group;	
 
 	(vi)	Marketable Securities (other than Marketable Securities received as consideration for a Disposal as envisaged in paragraphs (ii) and (iii) of the definition of Disposal Proceeds); and	
 
 	(vii)	any cash or other assets arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to any settlement, disposal, transfer, assignment, closeout or other termination of such Permitted Put/Call Transaction.	
“Excluded Fundraising Proceeds” means the proceeds of:
 
 	(i)	a Permitted Fundraising falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraph (a) of the definition thereof (or paragraph (b) of the definition thereof, to the extent that it relates to Short Term Certificados Bursatiles) (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (i), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group);	
 
 	(ii)	a Permitted Fundraising falling within paragraph (f)(ii) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraphs (a) to (e) of the definition thereof (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (ii), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group).	
 
 	(iii)	any transaction between members of the Group;	
 
 	(iv)	Permitted Securitisations;	
 
 	(v)	prior to the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraph (c) of that definition or, after the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraphs (a), (b) or (c) of that definition  provided that  any Relevant Existing Financial Indebtedness due to	
 
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 	mature within the particular Relevant Prepayment Period and the proceeds of such Permitted Fundraising are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement;	
 
 	(vi)	subject to Clause 13.4(ii) of the 2009 Financing Agreement, a Permitted Fundraising falling within paragraph (c) of that definition and applied or to be applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement; and	
 
 	(vii)	a Permitted Fundraising arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to, any settlement, disposal, transfer, assignment, close-out or other termination of such Permitted Put/Call Transaction.	
“Executive Compensation Plan” means any stock option plan, restricted stock plan or retirement plan which the Company or any other Obligor customarily provides to its employees, consultants and directors.
“Existing Facility Agreements” means the facility agreements and other documents described in Part II, Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement.
“Existing Finance Documents” means each Existing Facility Agreement, the USPP Note Guarantee, the “Finance Documents” as defined in any Existing Facility Agreement and the “Facility Transaction Documents” as defined in Exhibit H to the NY Law Amendment Agreement (but in each case excluding any document that is designated a “ Finance Document ” or “ Facility Transaction Document ” by an Obligor and the relevant Creditor’s Representative under an Existing Facility Agreement after the date of the 2009 Financing Agreement).
“Existing Financial Indebtedness” means:
 
 	(a)	the Financial Indebtedness described in Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement  provided that  the principal amount of such Financial Indebtedness does not increase above the principal amount outstanding as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) less the amount of any repayments and prepayments made in respect of such Financial Indebtedness;	
 
 	(b)	the Financial Indebtedness described in Part II of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles, working capital or other operating facilities that replace or refinance such Financial Indebtedness;	
 
 	(c)	the Financial Indebtedness described in Part III of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Capital Leases that replace (and relate to the same or similar assets as) such Financial Indebtedness;	
 
 	(d)	the Financial Indebtedness described in Part IV of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Inventory Financing or factoring arrangements that replace (and relate to the same or similar assets as) such Financial Indebtedness; and	
 
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 	(e)	the Banobras Facility and any other facility that replaces or refinances such facility provided that any such replacement or refinancing facility is (i) with a development bank controlled by the Mexican Government or (ii) with any other financial institution to finance public works or infrastructure assets,	
provided that (i) the aggregate principal amount of such Existing Financial Indebtedness falling under each of paragraphs (b) to (e) of this definition shall not be increased above the principal amount of Financial Indebtedness committed or capable of being drawn down under the Financial Indebtedness referred to in that paragraph of this definition as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) and (ii), for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) above need not satisfy the requirements of paragraph (f) of the definition of Permitted Financial Indebtedness.
“Exposure” means, at any time:
 
 	(a)	in relation to a Participating Creditor and a Syndicated Bank Facility or Bilateral Bank Facility, that Participating Creditor’s participation in Loans made under the relevant Facility at that time;	
 
 	(b)	in relation to Participating Creditor and a Promissory Note, the principal amount owed to that Participating Creditor under that Promissory Note at that time; and	
 
 	(c)	in relation to a Participating Creditor and a USPP Note, the principal amount owed to that Participating Creditor under that USPP Note at that time.	
“Facility” means a Core Bank Facility and each USPP Note.
“Fee Letter” means any letter or agreement between the Administrative Agent or Security Agent and the Company setting out (i) the upfront fee and (ii) the level of fees payable in respect of the services and obligations performed by those agents under the relevant New Finance Documents.
“Finance Document” means each New Finance Document and each Existing Finance Document.
“Finance Party” means the Administrative Agent, the Security Agent, each Creditor’s Representative or a Participating Creditor.
“Financial Indebtedness” means any indebtedness for or in respect of:
 
 	(a)	moneys borrowed and debit balances at banks or other financial institutions;	
 
 	(b)	any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);	
 
 	(c)	any amount raised pursuant to a note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (including, without limitation, any perpetual bonds);	
 
 	(d)	the amount of any liability in respect of any lease or hire purchase contract which would (in accordance with Applicable GAAP of the Company) be treated as a finance or capital lease;	
 
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 	(e)	receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under Applicable GAAP of the Company);	
 
 	(f)	any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the mark-to-market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);	
 
 	(g)	any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;	
 
 	(h)	any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under Applicable GAAP of the Company;	
 
 	(i)	any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply;	
 
 	(j)	any arrangement pursuant to which an asset sold or otherwise disposed of by that person may be re-acquired by a member of the Group (whether following the exercise of an option or otherwise) and any Inventory Financing;	
 
 	(k)	any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under Applicable GAAP of the Company; and	
 
 	(l)	the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (k) above.	
“Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
“Financial Year” means the annual accounting period of the Company ending on or about 31 December in each year.
“Fitch” means Fitch Ratings Limited or any successor thereto from time to time.
“Group” means the Company and each of its Subsidiaries for the time being.
“Guarantors” means the Original Guarantors and any Additional Guarantor other than any Original Guarantor or Additional Guarantor which has ceased to be a Guarantor pursuant to Clause 28.4 ( Resignation of Guarantor)  of the 2009 Financing Agreement and has not subsequently become an Additional Guarantor pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement and “ Guarantor ” means any of them.
“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
 
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“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
“Intellectual Property” means:
 
 	(a)	any patents, trademarks, service marks, designs, business names, copyrights, design rights, data-base rights, inventions, knowhow and other intellectual property rights and interests, whether registered or unregistered; and	
 
 	(b)	the benefit of all applications and rights to use such assets of each member of the Group.	
“Intercreditor Agreement” means the intercreditor agreement dated on or about the date of the 2009 Financing Agreement and made between, among others, the Company, Wilmington Trust (London) Limited as Security Agent, Citibank International PLC as Administrative Agent, the Participating Creditors and any other creditors of the Group that may accede to it from time to time in accordance with its terms, as such agreement may be amended from time to time.
“Inventory Financing” means a financing arrangement pursuant to which a member of the Group sells inventory to a bank or other institution (or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
“Joint Venture Investment” has the meaning given to such term in sub-paragraph (b) (ii) of the definition of Permitted Joint Venture.
“Loan” means:
 
 	(a)	in relation to a Syndicated Bank Facility or Bilateral Bank Facility, a loan made or to be made under such Facility or the principal amount outstanding for the time being of that loan; and	
 
 	(b)	in relation to a Promissory Note, the Exposure of the Participating Creditors for the time being under that Promissory Note.	
“Majority Participating Creditors” means, at any time, a Participating Creditor or Participating Creditors the Base Currency Amount of whose Exposures under the Facilities at that time aggregate 66.67 per cent. or more of the Base Currency Amount of all the Exposures of the Participating Creditors under all of the Facilities at that time.
“Marketable Securities” means securities (whether equity, debt or other securities) which are listed on a stock exchange or for which a trading market exists (whether on market or over the counter) but excluding: (A) shares in any member of the Group, and (B) any shares in Axtel, S.A.B. de C.V.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit, division or line of business or (b) acquisition of or other investment in the Capital Stock of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
 
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“Material Disposal” means any Disposal of property or series of related Disposals of property that yields gross proceeds to the Company or any of its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Mexican FRS” means Mexican Financial Reporting Standards (Normas de Información Financiera) as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 (Financial Statements).
“Mexican pesos,” “Mex$,” “MXN” and “pesos” means the lawful currency of Mexico.
“Mexico” means the United Mexican States.
“Moody’s” means Moody’s Investor Services Limited or any successor to its ratings business.
“NAFTA” means the North American Free Trade Agreement.
“New Finance Document” means the 2009 Financing Agreement, the NY Law Amendment Agreement, the Intercreditor Agreement, each Transaction Security Document, any Accession Letter, any Fee Letter, any Resignation Letter and any other document designated as a “ New Finance Document ” by the Administrative Agent and the Company.
“New Equity Securities” means
 
 	(i)	The U.S.$977.5 million aggregate principal amount of 3.25% convertible subordinated notes due 2016, including U.S.$177.5 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2016; and	
 
 	(ii)	U.S. $690 million aggregate principal amount of 3.75% convertible subordinated notes due 2018, including U.S.$90 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2018.	
in each case, issued on 15 March 2011 by the Company.
“NY Law Amendment Agreement” means the omnibus amendment agreement dated on or about the date of the 2009 Financing Agreement between, among others, the Company and the Participating Creditors with Exposures under those Existing Facility Agreements (other than the USPP Note Agreement) that are governed by the laws of the State of New York, as such agreement may be amended from time to time.
“Obligors” means the Borrowers, the Guarantors and the Security Providers and “Obligor” means any of them.
“Original Borrowers” means, together with the Company, the Subsidiaries of the Company listed in Part I of Schedule 1 ( The Original Parties ) of the 2009 Financing Agreement as borrowers or issuers.
“Original Financial Statements” means (a) in relation to the Company, its audited unconsolidated and consolidated financial statements for its Financial Year ended 31 December 2008 accompanied by an audit opinion of KPMG Cardenas Dosal, S.C.; (b) in relation to CEMEX España, its audited consolidated financial statements for its financial year ended 31 December 2008; and (c) in relation to any other borrower or guarantor under the 2009 Financing Agreement, its most recent annual financial statements (audited, if available).
“Original Guarantors” means the Subsidiaries of the Company listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as guarantors, together with the Company.
“Original Participating Creditors” means the financial institutions and noteholders listed in Part II of Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement as creditors.
 
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“Original Security Providers” means the Subsidiaries of the Company listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as security providers.
“Participating Creditor” means:
 
 	(a)	any Original Participating Creditor; and	
 
 	(b)	any person which has become a Party in accordance with Clause 27 (Changes to the Participating Creditors), of the 2009 Financing Agreement,	
which in each case has not ceased to be a Party in accordance with the terms of the 2009 Financing Agreement.
“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Party” means a party to the 2009 Financing Agreement.
“Permitted Acquisition” means:
 
 	(a)	an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;	
 
 	(b)	an acquisition of shares or securities pursuant to a Permitted Share Issue;	
 
 	(c)	an acquisition of cash or securities which are Cash Equivalent Investments;	
 
 	(d)	an acquisition to which a member of the Group is contractually committed as at the date of the 2009 Financing Agreement, with the material terms of those acquisitions requiring consideration payable in excess of $10,000,000 described in the list delivered to the Administrative Agent under paragraph 4(f) of Part I (Initial Conditions Precedent) of Schedule 2 of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such acquisition subsequent to the date of the 2009 Financing Agreement);	
 
 	(e)	the incorporation of a company which on incorporation becomes a member of the Group or which is a special purpose vehicle, whether a member of the Group or not;	
 
 	(f)	an acquisition that constitutes a Permitted Joint Venture;	
 
 	(g)	an acquisition of assets and, if applicable, cash, in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash element of any such acquisition must not be more than 20 per cent. of the aggregate consideration for the acquisition; and (ii) the maximum aggregate market value of the assets acquired pursuant to all such transactions must not be more than $100,000,000 (or its equivalent in any other currency) in any Financial Year;	
 
 	(h)	any acquisition of shares of the Company pursuant to an obligation in respect of any Executive Compensation Plan;	
 
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 	(i)	any other acquisition consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors;	
 
 	(j)	an acquisition of shares in the Company to the extent that a member of the Group has an obligation to deliver such shares to any holder(s) of convertible securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible securities; and	
 
 	(k)	any other acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them)  provided that  the aggregate amount of the consideration for such acquisitions (when aggregated with the aggregate amount of Joint Venture Investment falling within paragraph (b)(iii)(1) of the definition of Permitted Joint Venture in that Financial Year) does not exceed $100,000,000 (or its equivalent in any other currencies) in any Financial Year.	
“Permitted Disposal” means any sale, lease, licence, transfer or other disposal which, except in the case of Disposals as between members of the Group, is on arm’s length terms:
 
 	(a)	of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;	
 
 	(b)	of any asset by a member of the Group (the “Disposing Company”) to another member of the Group (the “ Acquiring Company ”), but if:	
 
 	(i)	the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;	
 
 	(ii)	the Disposing Company had given Transaction Security over the asset, the Acquiring Company must give equivalent Transaction Security over that asset; and	
 
 	(iii)	the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company,	
provided that the conditions set out in paragraphs (i), (ii) and (iii) above shall only apply if the applicable assets are shares or if all or substantially all of the assets of the Disposing Company are being disposed of;
 
 	(c)	of obsolete or redundant vehicles, machinery, parts and equipment in the ordinary course of trading;	
 
 	(d)	of cash or Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;	
 
 	(e)	constituted by a licence of Intellectual Property in the ordinary course of trading;	
 
 	(f)	to a Joint Venture, to the extent permitted by Clause 24.17 (Joint ventures) of the 2009 Financing Agreement;	
 
 	(g)	arising as a result of any Permitted Security;	
 
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 	(h)	of any shares in a member of the Group (provided that all such shares in that entity owned by a member of the Group are the subject of the Disposal) or of any other asset, in each case on arm’s length terms and for full market value where:	
 
 	(i)	no less than 85 per cent. of the consideration for the Disposal is payable to the Group in cash or Marketable Securities paid or received by a member of the Group at completion of the Disposal ( provided that  where a portion of that 85 per cent. is comprised of Marketable Securities, those Marketable Securities must be disposed of for cash to a person that is not a member of the Group within 90 days of completion);	
 
 	(ii)	if the aggregate consideration for the Disposal (when aggregated with the consideration for any related Disposals) is equal to 5 per cent. or more of the value of consolidated assets of the Group, the Company has delivered to the Administrative Agent a certificate signed by an Authorised Signatory confirming that, on a  pro forma  basis, assuming that the Disposal had been completed and the proceeds had been applied in accordance with Clause 13 ( Mandatory Prepayment ) of the 2009 Financing Agreement immediately prior to the first day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement, the Company would have been in compliance with the financial covenants in paragraphs (a) and (b) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement as at the last day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement; and	
 
 	(iii)	the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(i)	of any asset compulsorily acquired by a governmental authority provided that the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(j)	of any receivables disposed of pursuant to a factoring or similar receivables financing arrangement that is otherwise permitted under the 2009 Financing Agreement (including, for the avoidance of doubt, the Banobras Facility);	
 
 	(k)	of any inventory disposed of pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(l)	of any plant or equipment disposed of pursuant to a sale and lease-back arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(m)	of any asset to which a member of the Group was contractually committed as at the date of the 2009 Financing Agreement, with all material terms of those disposals which relate to the disposal of assets with a value of at least $10,000,000 being described in Schedule 14  (Disposals)  of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such Disposal subsequent to the date of the 2009 Financing Agreement);	
 
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 	(n)	of receivables disposed of pursuant to a Permitted Securitisation;	
 
 	(o)	of land or buildings arising as a result of lease or licence in the ordinary course of its trading;	
 
 	(p)	of any shares of the Company pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(q)	of shares, common equity securities in the Company or reference property in connection with the same to the extent that a member of the Group has an obligation to deliver such shares, common equity securities or reference property to any holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities or to any counterparty pursuant to the terms of any Permitted Put/Call Transaction;	
 
 	(r)	of assets and, if applicable, cash in exchange for other assets and, if applicable, cash, of equal or higher value provided that : (i) the cash element of any such Disposal must not be more than 20 per cent. of the aggregate consideration for the Disposal; and (ii) the maximum aggregate market value of all assets disposed of in such transactions must not be more than $100,000,000 (or its equivalent in any other currencies) in any Financial Year; or	
 
 	(s)	otherwise approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors.	
“Permitted Financial Indebtedness” means Financial Indebtedness:
 
 	(a)	incurred or arising under the Finance Documents;	
 
 	(b)	that is Existing Financial Indebtedness;	
 
 	(c)	owed to a member of the Group;	
 
 	(d)	that constitutes a Permitted Securitisation;	
 
 	(e)	arising under Capital Leases, factoring arrangements, Inventory Financing arrangements or export credit facilities for the purchase of equipment ( provided that  any Security granted in relation to any such facility relates solely to equipment, the purchase of which was financed under such Facility) or pursuant to sale and lease-back transactions provided that  the maximum aggregate Financial Indebtedness of members of the Group under such transactions (excluding any Existing Financial Indebtedness) does not exceed $350,000,000 at any time;	
 
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 	(f)	arising:	
 
 	(i)	pursuant to an issuance of bonds, notes or other debt securities, or of convertible or exchangeable securities by:	
 
 	(A)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that issued the relevant Existing Financial Indebtedness that is being refinanced or replaced (whether acting as co-issuers or otherwise but, for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued so as to be applied in repayment or prepayment of the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as co-issuers or otherwise, (and, for the avoidance of doubt, such securities may be issued with an original issue discount) on the capital markets in each case subscribed or paid for in full in cash on issue (unless such securities are exchanged on issue for other securities that constitute Existing Financial Indebtedness falling within paragraph (a) of the definition thereof on issue)  provided that  (other than any conversion into common equity securities of the Company) no principal repayments are scheduled (and no call options can be exercised) in respect thereof until after the Termination Date;	
 
 	(ii)	under a loan facility in respect of which the only borrowers are:	
 
 	(A)	in the case of loan facilities entered into to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that borrowed the relevant Existing Financial Indebtedness that is being refinanced or replaced, (whether acting as joint or multiple borrowers but for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of loan facilities entered into so as to refinance or replace the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as joint or multiple borrowers,	
provided that no principal repayments are scheduled (and no mandatory prepayment obligations arise save as a result of unlawfulness affecting a creditor in respect of such loan facility) in respect thereof until after the Termination Date,
and further provided that (1) the terms applicable to such issuance under paragraph (f)(i) (excluding pricing, but including, without limitation, as to prepayments, representations,
 
E-19

covenants, events of default, guarantees and security) taken as a whole are no more restrictive or onerous than the terms applicable to the Facilities, and the terms applicable to such incurrence under paragraph (f)(ii) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) are no more restrictive or onerous than the terms applicable to the Facilities; (2) the proceeds of such issuance or incurrence are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement; (3) if proceeds of such issuance or incurrence are, to the extent required under the 2009 Financing Agreement, being used to replace or refinance (x) Financial Indebtedness which shares in the Transaction Security or (y) the CEMEX España Euro Notes, such Financial Indebtedness issued or incurred shall be entitled to share in the Transaction Security in accordance with (and on the terms of) the Intercreditor Agreement,  provided that  in the case of Financial Indebtedness issued or incurred to replace or refinance the CEMEX España Euro Notes, such Financial Indebtedness shall only be entitled to share in the Transaction Security if, prior to the first replacement or refinancing of the CEMEX España Euro Notes, the Debt Reduction Satisfaction Date has occurred; and (4) for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) of the definition of Existing Financial Indebtedness need not satisfy the requirements of this paragraph (f);
 
 	(g)	that constitutes a Permitted Liquidity Facility;	
 
 	(h)	that becomes Financial Indebtedness solely as a result of any change in Applicable GAAP of the Company after the date of the 2009 Financing Agreement and that existed prior to the date of such change in Applicable GAAP of the Company (or that replaces, and is on substantially the same terms as, such Financial Indebtedness);	
 
 	(i)	of any person acquired by a member of the Group pursuant to an acquisition falling within paragraphs (d) or (f) of the definition of Permitted Acquisition  provided that : (i) such Financial Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the acquisition; and (ii) the aggregate amount of any such Financial Indebtedness of members of the Group does not exceed $100,000,000 at any time;	
 
 	(j)	under Treasury Transactions entered into in accordance with Clause 24.26 (Treasury Transactions) of the 2009 Financing Agreement;	
 
 	(k)	incurred pursuant to or in connection with any cash pooling or other cash management agreements in place with a bank or financial institution, but only to the extent of offsetting credit balances of the Company or its Subsidiaries pursuant to such cash pooling or other cash management arrangement;	
 
 	(l)	constituting Financial Indebtedness for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of trading;	
 
 	(m)	that constitutes a Permitted Joint Venture;	
 
 	(n)	approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors; and	
 
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 	(o)	that, when aggregated with the principal amount of any other Financial Indebtedness not falling within paragraphs (a) to (n) above, does not exceed $200,000,000 (or its equivalent in other currencies) in aggregate at any time.	
“Permitted Fundraising” means:
 
 	(a)	any issuance of equity securities by the Company paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and not redeemable on or prior to the Termination Date and where such issue does not lead to a Change of Control;	
 
 	(b)	any issuance of equity-linked securities issued by any member of the Group that are linked solely to, and result only in the issuance of, equity securities of the Company otherwise entitled to be issued under this definition (and that do not, for the avoidance of doubt, result in the issuance of any equity securities by such member of the Group) and that are paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and where such issue does not lead to a Change of Control ( provided that  such securities do not provide for the payment of interest in cash and are not redeemable on or prior to the Termination Date); and	
 
 	(c)	any incurrence of Financial Indebtedness falling within paragraph (f) of the definition of Permitted Financial Indebtedness.	
“Permitted Fundraising Proceeds” means the cash proceeds received by any member of the Group from a Permitted Fundraising other than Excluded Fundraising Proceeds after deducting:
 
 	(i)	any reasonable expenses which are incurred by the relevant member(s) of the Group with respect to that Permitted Fundraising owing to persons who are not members of the Group; and	
 
 	(ii)	any Tax incurred and required to be paid by the relevant member(s) of the Group with respect to that Permitted Fundraising (as reasonably determined by the relevant member(s) of the Group on the basis of rates existing at the time and taking account of any available credit, deduction or allowance).	
“Permitted Joint Venture” means any investment in any Joint Venture where:
 
 	(a)	such investment exists or a member of the Group is contractually committed to such investment at the date of the 2009 Financing Agreement and, if the value of the Group’s investment in such Joint Venture is $50,000,000 or greater (as shown in the Original Financial Statements of the Company) is detailed in Schedule 12 (Permitted Joint Ventures) of the 2009 Financing Agreement; or	
 
 	(b)	such investment is made after the date of the 2009 Financing Agreement and:	
 
 	(i)	either the investment has been consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors or the Joint Venture is engaged in a business substantially the same as that carried on by the Group; and	
 
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 	(ii)	in any Financial Year of the Company, the aggregate of:	
 
 	(1)	all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;	
 
 	(2)	the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and	
 
 	(3)	the market value of any assets transferred by any member of the Group to any such Joint Venture,	
minus
 
 	(4)	from and including 1 January 2010, an amount up to, but not exceeding, $100,000,000 (or its equivalent in other currencies) in any Financial Year that represents all cash amounts received by any member of the Group (i) relating to dividends, repayment of loans or distributions of any other nature in respect of any such Joint Ventures in that Financial Year and (ii) as a result of or in relation to any disposals of shares, interests or participations, divestments, capital reductions or any similar decreases of interest in any such Joint Ventures in that Financial Year, does not exceed $100,000,000 (or its equivalent in other currencies) or such greater amount as the Administrative Agent (acting on the instructions of the Majority Participating Creditors) may agree (such amount being the “Joint Venture Investment”); and	
 
 	(iii)	the Company has (by written notice to the Administrative Agent prior to the end of the Financial Year in which the investment is made) designated the Joint Venture Investment as counting against:	
 
 	(1)	paragraph (k) of the definition of Permitted Acquisition; or	
 
 	(2)	the maximum amount of Capital Expenditure permitted in that Financial Year under paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement.	
“Permitted Liquidity Facilities” means a loan facility or facilities made available to one or more members of the Group by one or more Participating Creditors (or their respective Affiliates)  provided that  the aggregate principal amount of utilised and unutilised commitments under such facilities must not exceed $1,000,000,000 (or its equivalent in any other currency) at any time.
“Permitted Put/Call Transaction” means any call option, call spread, capped call transaction, put option, put spread, capped put transaction or any combination of the foregoing and/or any other Treasury Transaction or transactions having a similar effect to any of the foregoing, in each case entered into, sold or purchased not for speculative purposes but for the purposes of managing specific risks or exposures associated with any issuance of Relevant Convertible Securities/Exchangeable Obligations.
“Permitted Securitisations” means a transaction or series of related transactions providing for the securitisation of receivables and related assets by the Company or its Subsidiaries, including a sale at a discount,  provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not a member of the Group in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organised in Mexico, a true sale), and not merely a
 
E-22

pledge, under the laws and regulations of the jurisdiction in which such originator is organised; and (ii) except for customary representations, warranties, covenants and indemnities, such sale, transfer or other securitisation is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables.
“Permitted Security” means:
 
 	(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 Applicable GAAP of the Company shall have been made;	
 
 	(B)	Security granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements in place with a bank or financial institution falling within paragraph (k) of the definition of Permitted Financial Indebtedness);	
 
 	(C)	statutory liens of landlords and liens of carriers, warehousemen, mechanics and materialment incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or other appropriate provision, if any, as shall be required by Applicable GAAP of the Company shall have been made;	
 
 	(D)	liens incurred or deposits made in the ordinary course of business in connection with (1) workers’ compensation, unemployment insurance and other types of social security, or (2) other insurance maintained by the Group in accordance with Clause 24.9 ( Insurance ) of the 2009 Financing Agreement;	
 
 	(E)	any attachment or judgment lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(F)	Security and Quasi-Security existing on the date of the 2009 Financing Agreement as described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement (or any replacement of Security or Quasi-Security in accordance with paragraph 3 of Schedule 15 ( Hedging Parameters ) of the 2009 Financing Agreement or any equivalent Security or Quasi-Security for Existing Financial Indebtedness that is a refinancing or replacement of Existing Financial Indebtedness)  provided that  the principal amount secured thereby is not increased (save that principal amounts secured by Security or Quasi-Security in respect of:	
 
 	(1)	Treasury Transactions where there are fluctuations in the mark-to-market exposures of those Treasury Transactions;	
 
 	(2)	Existing Financial Indebtedness under paragraph (a) of the definition where principal may increase by virtue of capitalisation of interest; and,	
 
E-23

 	(3)	the Banobras Facility, where further drawings may be made provided that the maximum amount outstanding under such facility does not exceed Mex$5,000,000,000 at any time,	
may be increased by the amount of such fluctuations or capitalisations, as the case may be);
 
 	(G)	any Security or Quasi-Security permitted by the Administrative Agent, acting on the instructions of the Majority Participating Creditors;	
 
 	(H)	any Security created or deemed created pursuant to a Permitted Securitisation;	
 
 	(I)	any Security granted by any member of the Group to secure Financial Indebtedness under a Permitted Liquidity Facility  provided that : (1) such Security is not granted in respect of assets that are the subject of the Transaction Security; and (2) the maximum aggregate amount of the Financial Indebtedness secured by such Security does not exceed $500,000,000 at any time;	
 
 	(J)	any Security granted by the Company or any member of the Group incorporated in Mexico in favour of a Mexican development bank (sociedad  nacional de crédito ) controlled by the government of Mexico (including Banco Nacional de Comercio Exterior, S.N.C., and Banco Nacional de Obras y Servicios Publicos, S.N.C.) securing indebtedness of the members of the Group in an aggregate additional amount of such indebtedness not exceeding $250,000,000 (or its equivalent in any other currency);	
 
 	(K)	any Security or Quasi-Security granted in connection with any Treasury Transaction, excluding any Treasury Transaction described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement, that constitutes Permitted Financial Indebtedness  provided that  the aggregate value of the assets that are the subject of such Security or Quasi-Security does not exceed $200,000,000 (or its equivalent in other currencies) at any time;	
 
 	(L)	Security or Quasi-Security granted or arising over receivables, inventory, plant or equipment that are the subject of an arrangement falling within paragraph (e) of the definition of Permitted Financial Indebtedness;	
 
 	(M)	the Transaction Security including, for the avoidance of doubt, any sharing in the Transaction Security referred to in paragraph (f) of the definition of Permitted Financial Indebtedness;	
 
 	(N)	any Quasi-Security that is created or deemed created on shares of the Company under paragraph (q) of the definition of Permitted Disposals by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Quasi-Security is customary for such transaction;	
 
 	(O)	in addition to the Security and Quasi-Security permitted by the foregoing paragraphs (A) to (N), Security or Quasi-Security securing indebtedness of the Company and its Subsidiaries (taken as a whole) not in excess of $500,000,000.	
 
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“Permitted Share Issue” means:
 
 	(a)	a Permitted Fundraising falling within paragraphs (a) or (b) of the definition thereof;	
 
 	(b)	an issue of shares by a member of the Group which is a Subsidiary of the Company to another member of the Group or the Company (and, where the member of the Group has a minority shareholder, to that minority shareholder on a pro rata basis) where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms;	
 
 	(c)	an issue of shares by the Company to comply with an obligation in respect of any Executive Compensation Plan; or	
 
 	(d)	an issue of common equity securities of the Company either (i) by the Company or (ii) to any member of the Group where the Company or that member of the Group has an obligation to deliver such shares to a counterparty pursuant to the terms of a Permitted Put/Call Transaction or an obligation to deliver such shares to the holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities.	
“Promissory Notes” means the promissory notes described in Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.
“Quasi Security” means an arrangement or transaction in which the Company or any Subsidiary:
 
 	(i)	sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;	
 
 	(ii)	sells, transfers or otherwise disposes of any of its receivables on recourse terms;	
 
 	(iii)	enters into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or	
 
 	(iv)	enters into any other preferential arrangement having a similar effect,	
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Properties.
“Reference Period” means a period of four consecutive Financial Quarters.
“Relevant Convertible/Exchangeable Obligations” means: (a) any Financial Indebtedness incurred by any person the terms of which provide that satisfaction of the principal amount owing under such Financial Indebtedness (whether on or prior to its maturity and whether as a result of bankruptcy, liquidation or other default by such person or otherwise) shall occur solely by delivery of shares or
 
E-25

common equity securities in the Company; and (b) any Financial Indebtedness under any Subordinated Optional Convertible Securities.
“Relevant Existing Financial Indebtedness” means any Existing Financial Indebtedness set out in:
 
 	(i)	paragraph (a) of the definition of Existing Financial Indebtedness to the extent that it relates to Part I.C (Mexican Public Debt Instruments ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement; and/or	
 
 	(ii)	paragraph (b) of the definition of Existing Financial Indebtedness to the extent it relates to Part II.A (Short Term Certificados Bursátiles ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles that replace or refinance such Existing Financial Indebtedness.	
“Relevant Prepayment Period” means the period commencing on the date of receipt of the proceeds of a Permitted Fundraising by a member of the Group and ending on the later of:
 
 	(a)	the date falling 364 days thereafter; and	
 
 	(b)	the 2012 CB Maturity Date.	
“Resignation Letter” means a document substantially in the form set out in Part I of Schedule 11 (Form of Resignation Letter ) of the 2009 Financing Agreement.
“Responsible Officer” means the Chief Financial Officer and/or Chief Controlling Officer of the Company or a person holding equivalent status (or higher).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto from time to time.
“SEC” means the U.S. Securities Exchange Commission and any successor thereto.
“Secured Parties” means each Finance Party from time to time to the 2009 Financing Agreement and any Receiver or Delegate.
“Security” means a mortgage, charge, pledge, lien, security trust or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Security Agent” means Wilmington Trust (London) Limited as security agent of the Secured Parties.
“Security Providers” means the Original Security Providers and any Additional Security Provider other than any Original Security Provider or Additional Security Provider which has ceased to be a Security Provider pursuant to Clause 28.6 ( Resignation of a Security Provider ) of the 2009 Financing Agreement and has not subsequently become an Additional Security Provider pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement, and “ Security Provider ” means any of them.
“Short-Term Certificados Bursatiles” means any securities with a term of not more than 12 months issued by the Company in the Mexican capital markets with the approval of the Mexican National Banking and Securities Banking and Securities Commission and listed on the Mexican Stock Exchange.
“Spanish GAAP” means the Spanish General Accounting Plan (Plan general Contable) approved by Royal Decree 1514/2007 as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 ( Financial Statements ) of the 2009 Financing Agreement.
 
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“Subordinated Optional Convertible Securities” means any Financial Indebtedness incurred by any member of the Group meeting the requirements of paragraph (f)(i) of the definition of Permitted Financial Indebtedness (including that no principal repayments are scheduled (and no call options can be exercised) until after the Termination Date) (which may, for the avoidance of doubt, include a fundraising the proceeds of which are applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement)) the terms of which provide that such indebtedness is capable of optional conversion into equity securities of the Company and that repayment of principal and accrued but unpaid interest thereon is subordinated (under terms customary for an issuance of such Financial Indebtedness) to all senior Financial Indebtedness of the Company (including, but not limited to, all Exposures of Participating Creditors) except for: (i) indebtedness that states, or is issued under a deed, indenture, agreement or other instrument that states, that it is subordinated to or ranks equally with any Subordinated Optional Convertible Securities and (ii) indebtedness between or among members of the Group.
“Subsidiary” means in relation to any company or corporation, a company or corporation:
 
 	(a)	which is controlled, directly or indirectly, by the first mentioned company or corporation;	
 
 	(b)	more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or	
 
 	(c)	which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,	
and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
“Syndicated Bank Facilities” means the facilities described in Part IA of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on 19 November 2007.
“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.
“Tax” means any tax, levy, impost, duty or other charge, deduction or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Termination Date” means 14 February 2014.
“Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.
“Transaction Security Documents” means each of the documents listed as being a Transaction Security Document in paragraph 2(e) of Part I of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement and any document required to be delivered to the Administrative Agent under paragraph 3(d) of Part II of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents (and any other Debt Documents).
“Treasury Transactions” means any derivatives transaction (i) that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index
 
E-27

swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), (ii) that is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets and that is a forward, swap, future, option or other derivative (including one or more spot transactions that are equivalent to any of the foregoing) on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made or (iii) that is a combination of these transactions, it being understood that any Executive Compensation Plan permitted by the 2009 Financing Agreement is not a Treasury Transaction.
“USPP Note” means a note issued under the USPP Note Agreement.
“USPP Note Agreement” means the consolidated, amended and restated note purchase agreement described in Part II of Schedule 1 ( Original Participating Creditors)  of the 2009 Financing Agreement.
“USPP Note Guarantee” means the consolidated, amended and restated note guarantee granted in favour of the USPP Noteholders.
“USPP Noteholders” means the holders from time to time of the notes issued pursuant to the USPP Note Agreement.
 
E-28

Exhibit 4.47

 	  	 	 	RAFAEL MONJO CARRIÓ	  	 	 	
 	  	 	 	Notary Public	  	 	 	 	
 	  	 	 	C/ Monte Esquinza, 6	  	 	 	 	 	
 	  	 	 	28010 MADRID	  	 	 	 	 	 	
 	  	 	 	Tel.: 91 418 32 80 Fax: 91 319 90 46	  	 	 	 	 	 	 	

ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A. GRANTED BY THE ENTITIES “THE BANK OF NEW YORK MELLON” and “CEMEX ESPAÑA, S.A.”
NUMBER FIVE HUNDRED AND SEVENTEEN
In Madrid, at my office on the first of April of two thousand and fourteen.
Before me, JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO, Notary Public of Madrid and its Bar Association, substituting my colleague  MR. RAFAEL MONJO CARRIO,  due to his unavoidable absence,
APPEAR
MRS. ANA MARÍA ARIAS SOMALO, of legal age, of Spanish nationality, domiciled for these purposes at calle José Abascal, number 45, 28010 Madrid; with National Identification Card number 000410487-Y.
MR. ÁNGEL MÉNDEZ MOLINA, of legal age, domiciled for these purposes at calle Hernández de Tejada, number 1, 28027 Madrid; with National Identification Card number 25713441-Q.

ACTING:
The first, in the name and representation of THE BANK OF NEW YORK MELLON (hereinafter, the “ Bank ”), entity constituted in accordance with the laws of the State of New York (United States of America), with its corporate domicile at One Wall Street, New York, N.Y. 10286, United States of America, which in turn acts in representation and to the benefit of the holders of  Senior Secured Notes  for an added principal maximum amount of  one billion U.S. dollars , at an interest rate of  6.000%, with maturity in 2024 , notwithstanding the cases of early repayment that have been foreseen, issued under the bond issuance agreement ( Indenture ) governed by the laws of the State of New York (United States of America), signed on  April 1, 2014  by, among others, CEMEX FINANCE LLC, a corporation constituted under the laws of Delaware, United States of America, as issuer, and The Bank of New York Mellon, as Trustee (hereinafter, together with its subsequent modifications or novations, the “ Bonds Issuance ”).

She makes use of the power of attorney in effect, as affirmed, in her favor, conferred through the document granted before the Notary Public of New York, Mr. Danny Lee, on the first of April of two thousand and fourteen, a photocopy of which has been shown to me and the original, duly stamped according to the La Hague Convention of October 5, 1961, I will attach hereto, by means of written substantiation, when it is submitted to me.
The second party, in name and representation of the entity CEMEX ESPAÑA, S.A., entity governed under the laws of Spain (formerly Compañía Valenciana de Cementos Portland, S.A.), and with its corporate domicile in Madrid, calle Hernández de Tejada, number 1, the purpose of which, among others, is the manufacture, production, marketing and distribution of all kinds of sacks and containers or similar articles, of paper or any other material, for the packaging of cement, etc.
It was constituted for an indefinite duration in the document authorized by the Notary Public at the time in

Valencia, Mr. Juan Bautista Roch Contelles, on April 30, 1917, adapted to current legislation through the document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert on July 13, 1990; with said constitution REGISTERED in the Commercial Registry of Valencia, under volume 122, book 28 of companies, section 3 of corporations, page 354, registry 1. The adaptation is registered in the aforementioned Registry, under volume 2854, book 10, general section, page V2533, registry 165. The bylaws of the company were also amended through another public document authorized by the Notary Public of Madrid, Mr. Antonio Francés y de Mateo on August 12, 1993, with number 6796 of his notarial records, under record 200.
The above indicated current domicile was moved, through document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert, on June 29, 1995, with number 1489 of his notarial records, and registered in the Commercial Registry of Madrid, under volume 9743 and 9744, section 8, of the Book of Companies, folio 1 and 166, page number M-156542 records 1 and 2.

Its name was changed to its current name through the agreement taken by the General Shareholders Meeting of the Company, in its meeting held on the twenty-fourth of June of two thousand and two, recorded as a document of public record, before me on the same day, under number 662 of my records, registry number 122.
Its Tax Identification number is: A-46.004.214.
He makes use of the powers in effect, as affirmed, in his power, conferred by agreement taken by the Administrative Board of the Company, at its meeting held on the twenty-sixth of February of two thousand and fourteen, recorded as a document of public record, before Mr. Monjo Carrio, on the twenty-seventh of March of two thousand and fourteen, under number 487 of my records, as accredited to me with an authorized copy of said document which I have before me.
For the purposes established in article 98 of Law 24/2001 and in accordance with the Resolution of the

General Directorate for Registries and Notary Affairs of April 12, 2002, I certify that, in my opinion, I consider that the representative powers accredited are sufficient for the execution of this document under the terms indicated below.
BENEFICIAL OWNERSHIP. – I, the Notary Public, expressly confirm that I have complied with the obligation of identifying the beneficial owner as imposed by Law 10/2010 of April 28, the result of which is recorded in a document authorized before me, on the eleventh of November of two thousand and ten, under number 2387 of my records, which has been modified since then as attested by the representative of the Company.
The parties appearing before me have, in my opinion, as they appear, the legal capacity and legitimate interest necessary to grant this  ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A.  and, for such purpose, in their capacity, and for all applicable legal purposes,

THEY HEREBY DECLARE
I. That, by virtue of the policy agreement granted before Mr. Rafael Monjo Carrio on November 8, 2012, registered with number 3530 in Section A of the Registry Book (hereinafter the “ Pledge Policy ”), CEMEX, S.A.B. de C.V. and New Sunward Holding B.V. constituted certain real pledge rights (hereinafter the “ Pledges ”) over the shares of the company CEMEX España, S.A. in its name.
II. That, in accordance with the Creditors Relation Agreement (as this is defined in the Pledge Policy), the creditors of the CEMEX group, in virtue of the issuance of bonds such as the Bonds Issuance will have the consideration of  Additional Notes Creditors  and, therefore, of  Secured Parties  according to the terms established in the Creditors Relation Agreement and in the Pledge Policy, and may obtain the benefit of the Pledges through their adhesion to the Pledge Policy according to the provisions of Clause 16 of the same.

IV. That, in accordance with the provisions of Clause 16 of the Pledge Policy, the Secured Parties in whose benefit the Relationship Manager acted, among which include the Bank, as  trustee  of the holders of bonds of the Bonds Issuance, may adhere to the Pledge Policy and ratify the content of the same, accepting the Pledges constituted in their favor as guarantee of the corresponding Secured Obligations, through appearance before Mr. Monjo or his substitute.
Said adhesions will be carried out through the granting of the corresponding adhesion deed or policy, all without the need for a new consent from the pledgors, for having provided said consent previously in the Creditor Relation Agreement and in the Pledge Policy itself.
V. That the Bank expressly declares that the adhesion referred to in the Stipulations of this Document is formalized as a mere instrument of execution of the rights attributed to the Bank in

the Pledge Policy, from which it is derived, so that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
VI. That by virtue of the foregoing, the Bank wishes to grant this Adhesion Deed (hereinafter the “Deed”) in accordance with the following
STIPULATIONS
ONE. – ADHESION TO THE PLEDGE POLICY.
The Bank, through this Deed, adheres to, ratifies and approves the Pledge Policy to the fullest extent, the entire content of which it declares to know, therefore giving such granting full value and legal efficacy and accepting that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.

The Bank REQUIRES from me, the Notary Public, to NOTIFY this adhesion to WILMINGTON TRUST (LONDON) LIMITED , domiciled for these purposes on the Third Floor, 1 King’s Arms Yard, London, United Kingdom, EC2R 7AF (attention Sajada Afzal), in her capacity as Relationship Manager and I, the Notary Public, accept said requirement.
CEMEX España, S.A., appears herein for the purposes of acknowledging itself as notified of this adhesion.
TWO. – APPLICABLE LAW AND JURISDICTION.
2.1 This Deed is subject to Spanish common law.
2.2 The Parties submit themselves expressly to the jurisdiction and competence of the Courts and Tribunals of Madrid for all matters that may result from the validity, interpretation, fulfillment and execution of this Deed.
HANDLING OF DATA. – The appearing parties accept the incorporation of their data and the copy of

identification documents in the files of the Notary Public in order to carry out the functions inherent to the notarial activity and for the communication of data established in the Public Administration Law and, as applicable, for the Notary Public who follows the current one. They may exercise their rights to access, rectify, cancel and oppose at the authorizing Notary’s office.
It is thus stated and executed.
And I, the Notary Public, ATTEST:
a. – To have identified the appearing parties through their identification documents, indicated in the appearance clause, which have been shown to me.
b. – That the appearing parties, in my opinion, have the capacity and legal standing for the granting hereof.
c. – That the granting hereof by the appearing parties is legal, duly informed and made willingly.

d. – That I have read this public instrument to the grantors thereof, having previously advised them of their right to read it for themselves, which they have done, and they have stated that they have been duly made aware of the entire content of the same, and they provide their consent, all in accordance with article 193 of the Notarial Regulations.
e. – That this public instrument is executed in six notarized pages, series BS numbers: 8278942 and the following five pages in correlated order and I, the Notary Public, attest. The signatures of the appearing parties follow. – Signed JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO. Signed. Notary Seal.
CERTIFICATE. – I, JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO, Notary Public of Madrid and its Bar Association, issue this certificate to record that on today’s date, the second of April of two thousand and fourteen, I have received a copy of the power of attorney granted by the entity THE BANK OF NEW YORK MELLON, before the Notary Public of New York, Mr. Danny Lee, on the first of April of two thousand and

fourteen, duly legalized with the La Hague apostille, and I, the Notary Public, consider that the representative of the entity has sufficient powers to formalize the deed which is the object hereof. I leave a copy of said power incorporated hereto, forming an integral part of the same.
And with nothing further to record, I issue this document over this sole sheet of notarized paper and I, the Notary Public, attest. Signed. JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO. Signed. Notary Seal.
CERTIFICATE. – To record that I, RAFAEL MONJO CARRIÓ, on the second of April of two thousand and fourteen, left filed at the Post Office Branch, located at office 2825494, E.O MINISTRY OF PUBLIC ADMINISTRATIONS, as a Certificate and notification of receipt, the notification document of the act above, and that the official in charge of the service has given to me the receipt which bears the sending number RR268042004ES.
All of which I attest and that this certificate is issued after the deed on which it is based, on this last

sheet of notarized paper, of the BS series, number 8278961. In Madrid on the second of April of two thousand and fourteen. Signed. RAFAEL MONJO CARRIÓ. Signed. Notary Seal.

Exhibit 4.48
CEMEX FINANCE LLC,
THE NOTE GUARANTORS PARTY HERETO,
THE BANK OF NEW YORK MELLON,
AS TRUSTEE
AND
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
AS PAYING AGENT AND TRANSFER AGENT
5.250% SENIOR SECURED NOTES DUE 2021
INDENTURE
(€ Denominated Notes)
Dated as of April 1, 2014

TABLE OF CONTENTS

 	 	 	  	Page	 	
 	 	 	
ARTICLE I	 	DEFINITIONS AND INCORPORATION BY REFERENCE	  	 	1	  	
 	 	 	
Section 1.1	 	Definitions	  	 	1	  	
Section 1.2	 	[Reserved]	  	 	38	  	
Section 1.3	 	Rules of Construction	  	 	38	  	
 	 	 	
ARTICLE II	 	THE NOTES	  	 	38	  	
 	 	 	
Section 2.1	 	Form and Dating	  	 	38	  	
Section 2.2	 	Execution and Authentication	  	 	39	  	
Section 2.3	 	Registrar, Paying Agent and Transfer Agent	  	 	40	  	
Section 2.4	 	Paying Agent to Hold Money in Trust	  	 	41	  	
Section 2.5	 	Holder Lists	  	 	41	  	
Section 2.6	 	ISIN Numbers	  	 	41	  	
Section 2.7	 	Global Note Provisions	  	 	41	  	
Section 2.8	 	Legends	  	 	43	  	
Section 2.9	 	Transfer and Exchange	  	 	43	  	
Section 2.10	 	Mutilated, Destroyed, Lost or Stolen Notes	  	 	49	  	
Section 2.11	 	Temporary Notes	  	 	50	  	
Section 2.12	 	Cancellation	  	 	50	  	
Section 2.13	 	Defaulted Interest	  	 	50	  	
Section 2.14	 	Additional Notes	  	 	51	  	
 	 	 	
ARTICLE III	 	COVENANTS	  	 	52	  	
 	 	 	
Section 3.1	 	Payment of Notes	  	 	52	  	
Section 3.2	 	Maintenance of Office or Agency	  	 	53	  	
Section 3.3	 	Corporate Existence	  	 	53	  	
Section 3.4	 	Payment of Taxes and Other Claims	  	 	53	  	
Section 3.5	 	Compliance Certificate	  	 	53	  	
Section 3.6	 	Further Instruments and Acts	  	 	54	  	
Section 3.7	 	Waiver of Stay, Extension or Usury Laws	  	 	54	  	
Section 3.8	 	Change of Control	  	 	54	  	
Section 3.9	 	Limitation on Incurrence of Additional Indebtedness	  	 	56	  	
Section 3.10	 	[Reserved]	  	 	61	  	
Section 3.11	 	Limitation on Restricted Payments	  	 	61	  	
Section 3.12	 	Limitation on Asset Sales	  	 	65	  	
Section 3.13	 	Limitation on the Ownership of Capital Stock of Restricted Subsidiaries	  	 	68	  	
Section 3.14	 	Limitation on Designation of Unrestricted Subsidiaries	  	 	69	  	
Section 3.15	 	Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries	  	 	71	  	
Section 3.16	 	Limitation on Layered Indebtedness	  	 	73	  	
 
i

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
 	 	 	
Section 3.17	 	Limitation on Liens	  	 	73	  	
Section 3.18	 	Limitation on Transactions with Affiliates	  	 	73	  	
Section 3.19	 	Conduct of Business	  	 	74	  	
Section 3.20	 	Reports to Holders	  	 	75	  	
Section 3.21	 	Payment of Additional Amounts	  	 	75	  	
Section 3.22	 	Suspension of Covenants	  	 	78	  	
 	 	 	
ARTICLE IV	 	SUCCESSOR COMPANY	  	 	80	  	
 	 	 	
Section 4.1	 	Merger, Consolidation and Sale of Assets	  	 	80	  	
 	 	 	
ARTICLE V	 	OPTIONAL REDEMPTION OF NOTES	  	 	84	  	
 	 	 	
Section 5.1	 	Optional Redemption	  	 	84	  	
Section 5.2	 	[Reserved]	  	 	84	  	
Section 5.3	 	Notices to Trustee	  	 	84	  	
Section 5.4	 	Notice of Redemption	  	 	84	  	
Section 5.5	 	Selection of Notes to Be Redeemed in Part	  	 	85	  	
Section 5.6	 	Deposit of Redemption Price	  	 	86	  	
Section 5.7	 	Notes Payable on Redemption Date	  	 	86	  	
Section 5.8	 	Unredeemed Portions of Partially Redeemed Note	  	 	86	  	
 	 	 	
ARTICLE VI	 	DEFAULTS AND REMEDIES	  	 	87	  	
 	 	 	
Section 6.1	 	Events of Default	  	 	87	  	
Section 6.2	 	Acceleration	  	 	88	  	
Section 6.3	 	Other Remedies	  	 	89	  	
Section 6.4	 	Waiver of Past Defaults	  	 	89	  	
Section 6.5	 	Control by Majority	  	 	89	  	
Section 6.6	 	Limitation on Suits	  	 	89	  	
Section 6.7	 	Rights of Holders to Receive Payment	  	 	90	  	
Section 6.8	 	Collection Suit by Trustee	  	 	90	  	
Section 6.9	 	Trustee May File Proofs of Claim, etc.	  	 	90	  	
Section 6.10	 	Priorities	  	 	90	  	
Section 6.11	 	Undertaking for Costs	  	 	91	  	
 	 	 	
ARTICLE VII	 	TRUSTEE	  	 	91	  	
 	 	 	
Section 7.1	 	Duties of Trustee	  	 	91	  	
Section 7.2	 	Rights of Trustee	  	 	93	  	
Section 7.3	 	Individual Rights of Trustee	  	 	94	  	
Section 7.4	 	Trustee’s Disclaimer	  	 	94	  	
Section 7.5	 	Notice of Defaults	  	 	94	  	
Section 7.6	 	[Reserved]	  	 	94	  	
 
ii

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
 	 	 	
Section 7.7	 	Compensation and Indemnity	  	 	94	  	
Section 7.8	 	Replacement of Trustee	  	 	95	  	
Section 7.9	 	Successor Trustee by Merger	  	 	96	  	
Section 7.10	 	Eligibility; Disqualification	  	 	97	  	
Section 7.11	 	[Reserved]	  	 	97	  	
Section 7.12	 	[Reserved]	  	 	97	  	
Section 7.13	 	Authorization and Instruction of the Trustee With Respect to the Collateral	  	 	97	  	
 	 	 	
ARTICLE VIII	 	DEFEASANCE; DISCHARGE OF INDENTURE	  	 	98	  	
 	 	 	
Section 8.1	 	Legal Defeasance and Covenant Defeasance	  	 	98	  	
Section 8.2	 	Conditions to Defeasance	  	 	99	  	
Section 8.3	 	Application of Trust Money	  	 	100	  	
Section 8.4	 	Repayment to Issuer	  	 	100	  	
Section 8.5	 	Indemnity for U.S. Government Obligations	  	 	100	  	
Section 8.6	 	Reinstatement	  	 	100	  	
Section 8.7	 	Satisfaction and Discharge	  	 	101	  	
 	 	 	
ARTICLE IX	 	AMENDMENTS	  	 	101	  	
 	 	 	
Section 9.1	 	Without Consent of Holders	  	 	101	  	
Section 9.2	 	With Consent of Holders	  	 	102	  	
Section 9.3	 	[Reserved]	  	 	104	  	
Section 9.4	 	Revocation and Effect of Consents and Waivers	  	 	104	  	
Section 9.5	 	Notation on or Exchange of Notes	  	 	104	  	
Section 9.6	 	Trustee to Sign Amendments and Supplements	  	 	104	  	
 	 	 	
ARTICLE X	 	NOTE GUARANTEES	  	 	105	  	
 	 	 	
Section 10.1	 	Note Guarantees	  	 	105	  	
Section 10.2	 	Limitation on Liability; Termination, Release and Discharge	  	 	108	  	
Section 10.3	 	Right of Contribution	  	 	109	  	
Section 10.4	 	No Subrogation	  	 	109	  	
Section 10.5	 	French Guarantee Limitation	  	 	109	  	
Section 10.6	 	Swiss Guarantee Limitation	  	 	110	  	
 	 	 	
ARTICLE XI	 	COLLATERAL	  	 	112	  	
 	 	 	
Section 11.1	 	The Collateral	  	 	112	  	
Section 11.2	 	Release of the Collateral	  	 	112	  	
 
iii

TABLE OF CONTENTS
(continued)

 	 	 	  	Page	 	
 	 	 	
ARTICLE XII	 	MISCELLANEOUS	  	 	113	  	
 	 	 	
Section 12.1	 	Notices	  	 	113	  	
Section 12.2	 	Communication by Holders with Other Holders	  	 	114	  	
Section 12.3	 	Certificate and Opinion as to Conditions Precedent	  	 	114	  	
Section 12.4	 	Statements Required in Certificate or Opinion	  	 	114	  	
Section 12.5	 	Rules by Trustee, Paying Agent, Transfer Agent and Registrar	  	 	115	  	
Section 12.6	 	Legal Holidays	  	 	115	  	
Section 12.7	 	Governing Law, etc.	  	 	115	  	
Section 12.8	 	[Reserved]	  	 	116	  	
Section 12.9	 	No Recourse Against Others	  	 	116	  	
Section 12.10	 	Successors	  	 	117	  	
Section 12.11	 	Duplicate and Counterpart Originals	  	 	117	  	
Section 12.12	 	Severability	  	 	117	  	
Section 12.13	 	[Reserved]	  	 	117	  	
Section 12.14	 	Currency Indemnity	  	 	117	  	
Section 12.15	 	Table of Contents; Headings	  	 	118	  	
Section 12.16	 	USA PATRIOT Act	  	 	118	  	
 
iv

 	 	 	
 	 	
EXHIBIT A	  	FORM OF NOTE	
 	 	
EXHIBIT B	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO REGULATION S	
 	 	
EXHIBIT C	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144	
 	 	
EXHIBIT D	  	FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A	
 	 	
EXHIBIT E	  	“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS	
 
v

INDENTURE, dated as of April 1, 2014, among CEMEX Finance LLC, a limited liability company organized and existing pursuant to the laws of the State of Delaware (the “ Issuer ”), CEMEX, S.A.B. de C.V. (the “ Company ”) and the other note guarantors listed on  Schedule I  hereto, as guarantors of the Issuer’s obligations under this Indenture and the Notes, The Bank of New York Mellon, as trustee (the “ Trustee ”) and The Bank of New York Mellon, London Branch, as paying agent (the “ Paying Agent ”) and transfer agent (the “ Transfer Agent ”).
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Issuer’s 5.250% Senior Secured Notes due 2021 issued hereunder.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“2009 Financing Agreement” means the financing agreement, dated as of August 14, 2009, entered into among the Issuer and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as administrative agent, and Wilmington Trust (London) Limited, as security agent, as such agreement may be amended, modified or waived from time to time.
“Acquired Indebtedness” means Indebtedness of a Person or any of its Subsidiaries existing at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or any of its Restricted Subsidiaries or is assumed in connection with the acquisition of assets from such Person. Such Indebtedness will be deemed to have been Incurred at the time such Person becomes a Restricted Subsidiary or at the time it merges or consolidates with the Company or a Restricted Subsidiary or at the time such Indebtedness is assumed in connection with the acquisition of assets from such Person.
“Acquired Subsidiary” means any Subsidiary acquired by the Company or any other Subsidiary after the Issue Date in an Acquisition, and any Subsidiaries of such Acquired Subsidiary on the date of such Acquisition.
“Acquiring Subsidiary” means any Subsidiary formed by the Company or one of its Subsidiaries solely for the purpose of participating as the acquiring party in any Acquisition, and any Subsidiaries of such Acquiring Subsidiary acquired in such Acquisition.
“Acquisition” means any merger, consolidation, acquisition or lease of assets, acquisition of securities or business combination or acquisition, or any two or more of such transactions, if, upon the completion of such transaction or transactions, the Company or any Restricted Subsidiary thereof has acquired an interest in any Person who would be deemed to be a Restricted Subsidiary under this Indenture and was not a Restricted Subsidiary prior thereto.
“Additional Amounts” has the meaning assigned to it in Section 3.21(b).
“Additional Note Certificate” has the meaning assigned to it in Section 2.14(b).

“Additional Note Guarantors” means New Sunward Holding B.V., CEMEX Concretos, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V.
“Additional Note Supplemental Indenture” means a supplement to this Indenture duly executed and delivered by the Issuer, each Note Guarantor and the Trustee pursuant to  Article IX  providing for the issuance of Additional Notes.
“Additional Notes” has the meaning assigned to it in Section 2.14(a).
“Affiliate” means, with respect to any specified Person, any other Person who directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such specified Person. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. For purposes of this definition, the terms “controlling,” “controlled by” and “under common control with” have correlative meanings.
“Affiliate Transaction” has the meaning assigned to it in Section 3.18(a).
“Agent Members” has the meaning assigned to it in Section 2.7(b).
“Agents” means, collectively, the Registrar, any co-Registrar, the Paying Agents, the Transfer Agent and any other agent appointed by the Issuer hereunder.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial interests in a Global Note, the rules and procedures of Euroclear and Clearstream, as the case may be, that apply to such transfer or exchange, including the “Operating Procedures of the Euroclear System” and “Terms and Conditions Governing Use of Euroclear” of Euroclear and the “General Terms and Conditions of Clearstream Banking” and “Customer Handbook” of Clearstream.
“Asset Sale” means any direct or indirect sale, disposition, issuance, conveyance, transfer, lease (other than an operating lease entered into in the ordinary course of business), assignment or other transfer, including a Sale and Leaseback Transaction (each, a “disposition”) by the Company or any Restricted Subsidiary of:
 
 	(a)	any Capital Stock other than Capital Stock of the Company; or	
 
 	(b)	any property or assets (other than cash, Cash Equivalents or Capital Stock) of the Company or any Restricted Subsidiary;	
Notwithstanding the preceding, the following will not be deemed to be Asset Sales:
 
 	(1)	the disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries as permitted under  Section 3.12 ;	
 
2

 	(2)	any disposition of equipment that is not usable or is obsolete or worn out equipment in the ordinary course of business or any disposition of inventory or goods (or other assets) held for sale or no longer used in the ordinary course of business;	
 
 	(3)	dispositions of assets in any fiscal year with a Fair Market Value not to exceed U.S.$25 million in the aggregate;	
 
 	(4)	for purposes of Section 3.12 only, the making or disposition of a Permitted Investment or Restricted Payment permitted under  Section 3.11 ;	
 
 	(5)	a disposition to the Company or a Restricted Subsidiary, including a Person that is or will become a Restricted Subsidiary immediately after the disposition;	
 
 	(6)	the creation of a Lien permitted under this Indenture (other than a deemed Lien in connection with a Sale and Leaseback Transaction);	
 
 	(7)	(i) the disposition of Receivables Assets pursuant to a Qualified Receivables Transaction and (ii) the disposition of other accounts receivable in the ordinary course of business;	
 
 	(8)	the disposition of any asset constituted by a license of intellectual property in the ordinary course of business;	
 
 	(9)	the disposition of inventory pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under this Indenture;	
 
 	(10)	the disposition of any asset compulsorily acquired by a governmental authority; and	
 
 	(11)	sales, transfers and other dispositions of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding arrangements.	
“Asset Sale Offer” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Amount” has the meaning assigned to it in Section 3.12(c).
“Asset Sale Offer Notice” means notice of an Asset Sale Offer made pursuant to Section 3.12, which shall be mailed first class, postage prepaid, to each record Holder as shown on the Note Register within 20 days following the 365th day after the receipt of Net Cash Proceeds of any Asset Sale, with a copy to the Trustee, which notice shall govern the terms of the Asset Sale Offer, and shall state:
 
 	(1)	the circumstances of the Asset Sale or Sales, the Net Cash Proceeds of which are included in the Asset Sale Offer, that an Asset Sale Offer is being made pursuant to  Section 3.12(c) , and that all Notes that are timely tendered will be accepted for payment;	
 
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 	(2)	the Asset Sale Offer Amount and the Asset Sale Offer Payment Date, which date shall be a Business Day no earlier than 30 days nor later than 60 days from the date the Asset Sale Offer Notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Company defaults in the payment of the Asset Sale Offer Amount with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Asset Sale Offer shall cease to accrue interest from and after the Asset Sale Offer Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to the Asset Sale Offer will be required to surrender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Asset Sale Offer Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Asset Sale Offer Payment Date, a facsimile transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Asset Sale Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Asset Sale Offer must specify the principal amount that is being tendered for purchase, which principal amount must be €100,000 and in integral multiples of €1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to €100,000 and in integral multiples of €1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on the schedule of increases or decreases thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.12 .	
 
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“Asset Sale Offer Payment Date” has the meaning assigned to it in Section 3.12(f).
“Authenticating Agent” has the meaning assigned to it in Section 2.2(b).
“Authorized Agent” has the meaning assigned to it in Section 12.7(c).
“Axtel Share Forward Transaction” means the Axtel share forward transaction that is governed by a long form confirmation originally dated January 22, 2009, as replaced by long form confirmations dated September 28, 2010 and March 19, 2012, and as further replaced by a long form confirmation dated August 27, 2013, between Credit Suisse International and Cemex Operaciones México, S.A. de C.V. (formerly Centro Distribuidor de Cemento, S.A. de C.V.) (References: External ID: 16059563R5-Risk ID: 10008383) and any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Bancomext Facility” means the U.S.$250,000,000 credit agreement (Crédito Simple), dated October 14, 2008, as amended from time to time ( provided , that the principal amount thereof does not increase above the principal amount outstanding as of August 14, 2009 (except by the amount of any capitalized interest if so provided by such facility and on those terms as of August 14, 2009) less the amount of any repayments and prepayments made in respect of such facility), among the Company, as borrower, Banco Nacional de Comercio Exterior, S.N.C., as lender, and CEMEX México, as guarantor, and secured by the mortgage of a cement plant in Ensenada, Baja California, Mexico.
“Bankruptcy Event of Default” means:
 
 	(1)	the entry by a court of competent jurisdiction of: (i) a decree or order for relief in respect of any Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or (ii) a decree or order (A) adjudging any Bankruptcy Party a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (B) approving as properly filed a petition seeking reorganization,  concurso mercantil , arrangement, adjustment or composition of, or in respect of, any Bankruptcy Party under any Bankruptcy Law, (C) appointing a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, or (D) ordering the winding-up or liquidation of the affairs of any Bankruptcy Party, and in each case, the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive calendar days; or	
 
 	(2)	(i) the commencement by any Bankruptcy Party of a voluntary case or proceeding under any Bankruptcy Law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, in  concurso mercantil  or  quiebra , (ii) the consent by any Bankruptcy Party to the entry of a decree	
 
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 	or order for relief in respect of such Bankruptcy Party in an involuntary case or proceeding under any Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against any Bankruptcy Party, (iii) the filing by any Bankruptcy Party of a petition or answer or consent seeking reorganization,  concurso mercantil , or relief under any Bankruptcy Law, (iv) the consent by any Bankruptcy Party to the filing of such petition or to the appointment of or taking possession by a Custodian of any Bankruptcy Party or of any substantial part of the property of any Bankruptcy Party, (v) the making by any Bankruptcy Party of an assignment for the benefit of creditors, (vi) the admission by any Bankruptcy Party in writing of its inability to pay its debts generally as they become due, or (vii) the approval by stockholders of any Bankruptcy Party of any plan or proposal for the liquidation or dissolution of such Bankruptcy Party, or (viii) the taking of corporate action by any Bankruptcy Party in furtherance of any action referred to in clauses (i) – (vii) above.	
“Bankruptcy Law” means Title 11, U.S. Code or any similar Federal, state or non-U.S. law for the relief of debtors, including the Mexican  Ley de Concursos Mercantiles and  Spanish Law 22/2003 of 9 July  (Ley 22/2003 de 9 de julio, Concursal) , as amended.
“Bankruptcy Party” means the Company, the Issuer and any Significant Subsidiary of the Company or group of Subsidiaries that, taken together would constitute a Significant Subsidiary of the Company.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente) , dated April 22, 2009, among CEMEX Concretos, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, S.N.C., as lender, as in effect on the Issue Date and as amended from time to time, and secured by a mortgage of Planta Yaqui in Hermosillo, Sonora, Mexico.
“Board of Directors” means, as to any Person, the board of directors, management committee or similar governing body of such Person or any duly authorized committee thereof.
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, Mexico City, Madrid, Amsterdam, London, Paris or Zurich are authorized or required by law, regulation or other governmental action to remain closed;  provided that , for purposes of payments to be made hereunder, a “Business Day” must also be a day on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (TARGET2) is open for the settlement of payments.
“Capital Stock” means:
 
 	(1)	with respect to any Person that is a corporation, any and all shares, interests, participations or other equivalents (however designated and whether or not voting) of corporate stock, including each class of Common Stock and Preferred Stock of such Person;	
 
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 	(2)	with respect to any Person that is not a corporation, any and all partnership or other equity or ownership interests of such Person; and	
 
 	(3)	any warrants, rights or options to purchase any of the instruments or interests referred to in clause (1) or (2) above, but excluding any Indebtedness exchangeable into such equity interest in existence on the Issue Date or Incurred pursuant to  Section 3.9 .	
“Capitalized Lease Obligations” means, as to any Person, the obligations of such Person under a lease that are required to be classified and accounted for as capital lease obligations under GAAP. For purposes of the definition, the amount of such obligations at any date will be the capitalized amount of such obligations at such date, determined in accordance with GAAP.
“Cash Equivalents” means:
 
 	(1)	marketable direct obligations issued by, or unconditionally guaranteed by, the United States government, the United Kingdom or any member nation of the European Union or issued by any agency thereof and backed by the full faith and credit of the United States, the United Kingdom, such member nation of the European Union or any European Union central bank, in each case maturing within one year from the date of acquisition thereof;	
 
 	(2)	marketable direct obligations issued by the Mexican government, or issued by any agency thereof, including but not limited to,  Certificados de la Tesorería de la Federación  (Cetes) or  Bonos de Desarrollo del Gobierno Federal  (Bondes), in each case, issued by the government of Mexico and maturing not later than one year after the acquisition thereof;	
 
 	(3)	marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition, having one of the two highest ratings obtainable from either S&P or Fitch or any successor thereto;	
 
 	(4)	commercial paper or corporate debt obligations maturing no more than one year from the date of creation thereof and, at the time of acquisition, having a rating of at least A-1 or AAA from S&P, at least F-1 or AAA from Fitch or P-1 or Aaa from Moody’s;	
 
 	(5)	demand deposits, certificates of deposit, time deposits or bankers’ acceptances or other short-term unsecured debt obligations (and any cash or deposits in transit in any of the foregoing) maturing within one year from the date of acquisition thereof issued by (a) any bank organized under the laws of the United States of America or any state thereof or the District of Columbia, the United Kingdom or any country of the European	
 
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 	Union, (b) any U.S. branch of a non-U.S. bank having at the date of acquisition thereof combined capital and surplus of not less than U.S.$500 million, or (c) in the case of Mexican peso deposits, any financial institution in good standing with Banco de México organized under the laws of Mexico;	
 
 	(6)	repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (1) and (2) above entered into with any bank meeting the qualifications specified in clause (5) above;	
 
 	(7)	investments in money market funds which invest substantially all of their assets in securities of the types described in clauses (1) through (6), (8) and (9);	
 
 	(8)	certificates of deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco Nacional de Obras y Servicios Públicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(9)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which the Company or a Restricted Subsidiary operates and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquisition; and	
 
 	(10)	Investments in mutual funds, managed by banks, with a local currency credit rating of at least MxAA by S&P or other equally reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican Government, or issued by any agency or instrumentality thereof.	
In the case of Investments by any Restricted Subsidiary, Cash Equivalents will also include (a) investments of the type and maturity described in clauses (1) through (10) of any Restricted Subsidiary outside of Mexico in the country in which such Restricted Subsidiary operates, which Investments or obligors (or the parents of such obligors) have ratings described in such clauses or equivalents ratings from comparable foreign rating agencies, (b) local currencies and other short-term investments utilized by Restricted Subsidiaries in accordance with normal investment practices for cash management in investments analogous to the foregoing investments in clauses (1) through (10) and in this paragraph and (c) investments of the type described in clauses (1) through (9) maturing within one year of the Issue Date.
“Certificados Bursátiles” means debt securities issued by the Company guaranteed (por aval) by CEMEX México, S.A. de C.V. and Empresas Tolteca de México, S.A. de C.V., wholly owned subsidiaries of the Company, in the Mexican capital markets with the approval of the Mexican National Banking and Securities Commission ( Comisión Nacional Bancaria y de Valores ) and listed on the Mexican Stock Exchange ( Bolsa Mexicana de Valores, S.A.B. de C.V. ).
 
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“Certificated Note” means any Note issued in fully registered form, other than a Global Note, which shall be substantially in the form of  Exhibit A  hereto, with appropriate legends as specified in  Section 2.8  and  Exhibit A .
“Change of Control” means the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Commission under the Exchange Act) of twenty percent (20%) or more in voting power of the outstanding Voting Stock of the Company is acquired by any Person;  provided , that the acquisition of beneficial ownership of Capital Stock of the Company by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Change of Control Notice” means notice of a Change of Control Offer made pursuant to Section 3.8, which shall be mailed first-class, postage prepaid, to each record Holder as shown on the Note Register within 30 days following the date upon which a Change of Control occurred, with a copy to the Trustee, which notice shall govern the terms of the Change of Control Offer and shall state:
 
 	(1)	that a Change of Control has occurred, the circumstances or events causing such Change of Control and that a Change of Control Offer is being made pursuant to  Section 3.8 , and that all Notes that are timely tendered will be accepted for payment;	
 
 	(2)	the Change of Control Payment, and the Change of Control Payment Date, which date shall be a Business Day no earlier than 30 calendar days nor later than 60 calendar days subsequent to the date such notice is mailed (other than as may be required by law);	
 
 	(3)	that any Notes or portions thereof not tendered or accepted for payment will continue to accrue interest;	
 
 	(4)	that, unless the Issuer defaults in the payment of the Change of Control Payment with respect thereto, all Notes or portions thereof accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest from and after the Change of Control Payment Date;	
 
 	(5)	that any Holder electing to have any Notes or portions thereof purchased pursuant to a Change of Control Offer will be required to tender such Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of such Notes completed, to the Paying Agent at the address specified in the notice prior to the close of business on the third Business Day preceding the Change of Control Payment Date;	
 
 	(6)	that any Holder shall be entitled to withdraw such election if the Paying Agent receives, not later than the close of business on the second Business Day preceding the Change of Control Payment Date, a facsimile	
 
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 	transmission or letter, setting forth the name of the Holder, the principal amount of Notes delivered for purchase, and a statement that such Holder is withdrawing such Holder’s election to have such Notes or portions thereof purchased pursuant to the Change of Control Offer;	
 
 	(7)	that any Holder electing to have Notes purchased pursuant to the Change of Control Offer must specify the principal amount that is being tendered for purchase, which principal amount must be €100,000 and in integral multiples of €1,000 in excess thereof;	
 
 	(8)	that any Holder of Certificated Notes whose Certificated Notes are being purchased only in part will be issued new Certificated Notes equal in principal amount to the unpurchased portion of the Certificated Note or Notes surrendered, which unpurchased portion will be equal in principal amount to €100,000 and in integral multiples of €1,000 in excess thereof;	
 
 	(9)	that the Trustee will return to the Holder of a Global Note that is being purchased in part, such Global Note with a notation on Schedule A thereof adjusting the principal amount thereof to be equal to the unpurchased portion of such Global Note; and	
 
 	(10)	any other information necessary to enable any Holder to tender Notes and to have such Notes purchased pursuant to  Section 3.8(b) .	
“Change of Control Offer” has the meaning assigned to it in Section 3.8(b).
“Change of Control Payment” has the meaning assigned to it in Section 3.8(a).
“Change of Control Payment Date” has the meaning assigned to it in Section 3.8(b).
“Clearstream” means Clearstream Banking, société anonyme, or the successor to its securities clearance and settlement operations.
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means “Transaction Security” as defined in the Intercreditor Agreement from time to time.
“Commission” means the U.S. Securities and Exchange Commission.
“Commodity Price Purchase Agreement” means, in respect of any Person, any forward contract, commodity swap agreement, commodity option agreement or other similar agreement or arrangement designed to protect such Person from fluctuations in commodity prices.
“Common Depositary” means The Bank of New York Mellon, London Branch, as common depositary for Euroclear and Clearstream.
 
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“Common Stock” of any Person means any and all shares, interests or other participations in, and other equivalents (however designated and whether voting or non-voting) of such Person’s common equity interests, whether outstanding on the Issue Date or issued after the Issue Date, and includes, without limitation, all series and classes of such common equity interests.
“Company” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns, including any Successor Company which becomes such in accordance with Article IV.
“Compensation Related Hedging Obligations” means (i) the obligations of any Person pursuant to any equity option contract, equity forward contract, equity swap, warrant, rights or other similar agreement designed to hedge risks or obligations relating to employee, director or consultant compensation, pension, benefits or similar activities of the Company and/or any of its Subsidiaries and (ii) the obligations of any Person pursuant to any agreement that requires another Person to make payments or deliveries that are otherwise required to be made by the first Person relating to employee, director or consultant compensation, pension, benefits or similar activities of the Company and/or any of its Subsidiaries, in each case in the ordinary course of business.
“Consolidated EBITDA” means, for any Person for any period, Consolidated Net Income for such Person for such period, plus the following, without duplication, to the extent deducted or added in calculating such Consolidated Net Income:
 
 	(1)	Consolidated Income Tax Expense for such Person for such period;	
 
 	(2)	Consolidated Interest Expense for such Person for such period net of consolidated interest income for such period;	
 
 	(3)	Consolidated Non-cash Charges for such Person for such period;	
 
 	(4)	the amount of any nonrecurring restructuring charge or reserve deducted in such period in computing Consolidated Net Income;	
 
 	(5)	the net effect on income or loss in respect of Hedging Obligations or other derivative instruments, which shall include, for the avoidance of doubt, all amounts not excluded from Consolidated Net Income pursuant to the proviso in clause (9) thereof; and	
 
 	(6)	net income of such Person attributable to minority interests in Subsidiaries of such Person.	
less (x) all non-cash credits and gains increasing Consolidated Net Income for such Person for such period and (y) all cash payments made by such Person and its Restricted Subsidiaries during such period relating to Consolidated Non-cash Charges that were added back in determining Consolidated EBITDA in any prior period.
 
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“Consolidated Fixed Charge Coverage Ratio” means, for any Person as of any date of determination (the “ Fixed Charge Calculation Date ”), the ratio of the aggregate amount of Consolidated EBITDA of such Person for the four most recent full fiscal quarters for which financial statements are available ending prior to the date of such determination (the “ Four Quarter Period ”) to Consolidated Fixed Charges for such Person for such Four Quarter Period. For purposes of making the computation referred to above, Material Acquisitions and Material Dispositions (as determined in accordance with GAAP) that have been made by the Company or any of its Restricted Subsidiaries during the Four Quarter Period or subsequent to such Four Quarter Period and on or prior to or simultaneously with the Fixed Charge Calculation Date shall be calculated on a  pro forma  basis assuming that all such Material Acquisitions and Material Dispositions (and the change in any associated fixed charge obligations and the change in Consolidated EBITDA resulting therefrom) had occurred on the first day of the Four Quarter Period. If since the beginning of such period any Person that subsequently became a Restricted Subsidiary or was merged with or into the Company or any of its Restricted Subsidiaries since the beginning of such period shall have made any Material Acquisition or Material Disposition that would have required adjustment pursuant to this definition, then the Consolidated Fixed Charge Coverage Ratio shall be calculated giving  pro forma  effect thereto.
For purposes of this definition, whenever pro forma effect is to be given to a Material Acquisition or Material Disposition and the amount of income or earnings relating thereto or with respect to other  pro forma  calculations under this definition, such  pro forma  calculations shall be made in good faith by a responsible financial or accounting officer of the Company. If any Indebtedness bears a floating rate of interest and is being given  pro forma  effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the Fixed Charge Calculation Date had been the applicable rate for the entire period (taking into account any Hedging Obligations applicable to such Indebtedness). Interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Company to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP. For purposes of making the computation referred to above, interest on any Indebtedness under a revolving credit facility computed on a  pro forma basis shall be computed based upon the average daily balance of such Indebtedness during the applicable period except as set forth in the first paragraph of this definition. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional rate chosen as the Company may designate.
Furthermore, in calculating “Consolidated Fixed Charges” for purposes of determining the denominator (but not the numerator) of this “Consolidated Fixed Charge Coverage Ratio,”
 
 	(a)	interest on outstanding Indebtedness determined on a fluctuating basis as of the date of determination and which will continue to be so determined thereafter will be deemed to have accrued at a fixed rate per annum equal to the rate of interest on such Indebtedness in effect on such date of determination;	
 
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 	(b)	if interest on any Indebtedness actually Incurred on such date of determination may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency interbank offered rate, or other rates, then the interest rate in effect on such date of determination will be deemed to have been in effect during the Four Quarter Period; and	
 
 	(c)	notwithstanding clause (a) above, interest on Indebtedness determined on a fluctuating basis, to the extent such interest is covered by Hedging Obligations, will be deemed to accrue at the rate per annum resulting after giving effect to the operation of such agreements.	
“Consolidated Fixed Charges” means, for any Person for any period, the sum, without duplication, of:
 
 	(1)	Consolidated Interest Expense for such Person for such period, plus	
 
 	(2)	to the extent not included in (1) above, payments during such period in respect of the financing costs of financial derivatives in the form of equity swaps, plus	
 
 	(3)	the product of:	
 
 	(a)	the amount of all cash and non-cash dividend payments on any series of Preferred Stock or Disqualified Capital Stock of such Person (other than dividends paid in Qualified Capital Stock) or any Subsidiary of such Person (Restricted Subsidiary in the case of the Company) paid, accrued or scheduled to be paid or accrued during such period, excluding dividend payments on Preferred Stock or Disqualified Capital Stock paid, accrued or scheduled to be paid to such Person or another Subsidiary (Restricted Subsidiary in the case of the Company), times	
 
 	(b)	a fraction, the numerator of which is one and the denominator of which is one minus the then current effective tax rate of such Person in its principal taxpaying jurisdiction (Mexico, in the case of the Company), expressed as a decimal.	
“Consolidated Income Tax Expense” means, with respect to any Person for any period, the provision for federal, state and local income and asset taxes payable, including current and deferred taxes, by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period as determined on a consolidated basis in accordance with GAAP.
“Consolidated Interest Expense” means, for any Person for any period, the sum of, without duplication determined on a consolidated basis in accordance with GAAP:
 
 	(1)	the aggregate of cash and non-cash interest expense of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such	
 
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 	period determined on a consolidated basis in accordance with GAAP, including, without limitation the following for such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) whether or not interest expense in accordance with GAAP:	
 
 	(a)	any amortization or accretion of debt discount or any interest paid on Indebtedness of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) in the form of additional Indebtedness,	
 
 	(b)	any amortization of deferred financing costs; provided, that any such amortization resulting from costs incurred prior to the Issue Date shall be excluded for the calculation of Consolidated Interest Expense,	
 
 	(c)	the net costs under Hedging Obligations relating to Indebtedness (including amortization of fees but excluding foreign exchange adjustments on the notional amounts of the Hedging Obligations),	
 
 	(d)	all capitalized interest,	
 
 	(e)	the interest portion of any deferred payment obligation,	
 
 	(f)	commissions, discounts and other fees and charges Incurred in respect of letters of credit or bankers’ acceptances or in connection with sales or other dispositions of accounts receivable and related assets,	
 
 	(g)	any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Subsidiaries (Restricted Subsidiary in the case of the Company) or secured by a Lien on the assets of such Person or one of its Subsidiaries (Restricted Subsidiaries in the case of the Company), whether or not such Guarantee or Lien is called upon, and	
 
 	(h)	any interest accrued in respect of Indebtedness without a maturity date; and	
 
 	(2)	the interest component of Capitalized Lease Obligations paid, accrued and/or scheduled to be paid or accrued by such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) during such period.	
“Consolidated Net Income” means, with respect to any Person for any period, the aggregate net income (or loss) of such Person and its Subsidiaries for such period on a consolidated basis (after deducting (i) the portion of such net income attributable to minority interests in Subsidiaries of such Person and (ii) any interest paid or accrued in respect of Indebtedness without a maturity date), determined in accordance with GAAP;  provided , that there shall be excluded therefrom:
 
 	(1)	net after-tax gains and losses from Asset Sale transactions or abandonments or reserves relating thereto;	
 
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 	(2)	net after-tax items classified as extraordinary gains or losses;	
 
 	(3)	the net income (but not loss) of any Subsidiary of such Person (non-Note Guarantor in the case of the Company) to the extent that a corresponding amount could not be distributed to such Person at the date of determination as a result of any restriction pursuant to the constituent documents of such Subsidiary (non-Note Guarantor in the case of the Company) or any law, regulation, agreement or judgment applicable to any such distribution;	
 
 	(4)	any net income (loss) of any Person (other than the Company) if such Person is not a Restricted Subsidiary, except that the Company’s equity in the net income of any such Person for such period shall be included in such Consolidated Net Income up to the aggregate amount of cash distributed by such Person during such period to the Company or a Restricted Subsidiary as a dividend or other distribution (subject, in the case of a dividend or other distribution to a Restricted Subsidiary, to the limitations contained in this clause);	
 
 	(5)	[Reserved];	
 
 	(6)	any restoration to income of any contingency reserve, except to the extent that provision for such reserve was made out of Consolidated Net Income accrued at any time following the Issue Date;	
 
 	(7)	any gain (or loss) from foreign exchange translation or change in net monetary position;	
 
 	(8)	any gain (or loss) from the cumulative effect of changes in accounting principles; and	
 
 	(9)	any net gain or loss (after any offset) resulting in such period from Hedging Obligations or other derivative instruments;  provided , that the net effect on income or loss (including in any prior periods) shall be included upon any termination or early extinguishment of such Hedging Obligations or other derivative instrument, other than any Hedging Obligations with respect to Indebtedness (that is not itself a Hedging Obligation) and that are extinguished concurrently with the termination or other prepayment of such Indebtedness.	
“Consolidated Non-cash Charges” means, for any Person for any period, the aggregate depreciation, amortization (including amortization of goodwill and other Intangible Assets) and other non-cash expenses or losses of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) for such period, determined on a consolidated basis in accordance with GAAP (excluding any such charge which constitutes an accrual of or a reserve for cash charges for any future period or the amortization of a prepaid cash expense paid in a prior period).
 
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“Consolidated Tangible Assets” means, for any Person at any time, the total consolidated assets of such Person and its Subsidiaries (Restricted Subsidiaries in the case of the Company) as set forth on the balance sheet as of the most recent fiscal quarter of such Person, prepared in accordance with GAAP, less Intangible Assets.
“Corporate Trust Office” means the principal office of the Trustee at which at any time its corporate trust business shall be administered, which office at the date hereof is located at 101 Barclay Street, 7E, New York, New York 10286, Attention: International Corporate Trust, or such other address as the Trustee may designate from time to time by notice to the Holders, the Issuer and the Company.
“Covenant Defeasance” has the meaning assigned to it in Section 8.1(c).
“Covenant Suspension Event” has the meaning assigned to it in Section 3.22(b).
“Currency Agreement” means, in respect of any Person, any foreign exchange contract, currency swap agreement or other similar agreement as to which such Person is a party designed to hedge foreign currency risk of such Person.
“Custodian” means any receiver, trustee, conciliador, assignee, liquidator, sequestrator or similar official under any Bankruptcy Law.
“Default” means an event or condition the occurrence of which is, or with the lapse of time or the giving of notice or both would be, an Event of Default.
“Defaulted Interest” has the meaning assigned to it in Section 2.13 and Section 1, paragraph 2 of the Form of Reverse Side of Note contained in  Exhibit A  hereto.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Company or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration pursuant to an Officer’s Certificate setting forth the basis of such valuation.
“Designation” has the meaning assigned to it in Section 3.14(a).
“Designation Amount” has the meaning assigned to it in clause (iii) of Section 3.14(a).
“Disposition” means, with respect to any property, any sale, lease, Sale and Leaseback Transaction, assignment, conveyance, transfer or other disposition thereof.
“Disqualified Capital Stock” means that portion of any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable at the option of the Holder thereof), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or is
 
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redeemable at the sole option of the Holder thereof, in any case, on or prior to the 91st day after the final maturity date of the Notes, but excluding with respect to Mexican companies, any shares of such Mexican company that are part of the variable portion of its Capital Stock and that are redeemable under the Mexican General Law of Business Corporations  (Ley General de Sociedades Mercantiles) .
“Distribution Compliance Period” means, in respect of any Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the 40 consecutive days beginning on and including the later of (a) the day on which any Notes represented thereby are offered to persons other than distributors (as defined in Regulation S) pursuant to Regulation S or (b) the issue date for such Notes.
“Equity Offering” has the meaning assigned to it in Section 5 of the Form of Reverse Side of Note contained in Exhibit A hereto.
“euro” means the single currency of participating member states of the EMU.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V., or its successor in such capacity.
“European Government Obligations” means direct non-callable and non-redeemable obligations denominated in euros (in each case, with respect to the issuer thereof) of any member state of the European Union that is a member of the European Union as of the date of this Indenture.
“Event of Default” has the meaning assigned to it in Section 6.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Existing Senior Notes” means the Euro-denominated 9.625% Senior Secured Notes due 2017 guaranteed by the Company, the U.S. Dollar-denominated 9.250% Senior Secured Notes due 2020 guaranteed by the Company, the Euro-denominated 8.875% Senior Secured Notes due 2017 guaranteed by the Company, the U.S. Dollar-denominated 9.000% Senior Secured Notes due 2018 issued by the Company, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2015 issued by the Company, the U.S. Dollar-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Company, the Euro-denominated 9.875% Senior Secured Notes due 2019 guaranteed by the Company, the U.S. Dollar-denominated 9.500% Senior Secured Notes due 2018 issued by the Company, the U.S. Dollar-denominated 9.375% Senior Secured Notes due 2022 guaranteed by the Company, the U.S. Dollar-denominated 5.875% Senior Secured Notes due 2019 issued by the Company, the U.S. Dollar-denominated 6.500% Senior Secured Notes due 2019 issued by the Company, the U.S. Dollar-denominated 7.250% Senior Secured Notes due 2021 issued by the Company, the U.S. Dollar-denominated Floating Rate Senior Secured Notes due 2018 issued by the Company and the Other Notes guaranteed by the Company.
“Facilities Agreement” means the facilities agreement, dated as of September 17, 2012, entered into among the Company and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as new administrative agent, and the Security Agent, as such agreement may be amended, modified or waived from time to time.
 
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“Facilities Agreement Indebtedness” means the Indebtedness that is subject to and outstanding under the Facilities Agreement.
“Fair Market Value” means, with respect to any asset, the price (after taking into account any liabilities relating to such assets) which could be negotiated in an arm’s-length free market transaction, for cash, between a willing seller and a willing and able buyer, neither of which is under any compulsion to complete the transaction. Fair Market Value shall be determined, except as otherwise provided, by the Company in good faith.
“Fitch” means Fitch Ratings and any successor to its rating agency business.
“Four Quarter Period” has the meaning assigned to it in the definition of “Consolidated Fixed Charge Coverage Ratio” above.
“Free Reserves Available for Distribution” has the meaning assigned to it in Section 10.6(c).
“French Note Guarantor” has the meaning assigned to it in Section 10.5(a). “GAAP” means IFRS as in effect on the Issue Date. At any time, and from time to time, after the Issue Date, the Company may elect to apply IFRS as in effect at such time in lieu of GAAP and, upon any such election, references herein to GAAP shall thereafter be construed to mean IFRS as in effect on the date of such election;  provided , that any such election, once made, shall be irrevocable. The Company shall give notice of any such election to the Trustee.
“Global Note” means any Note issued in fully registered form to Euroclear or Clearstream (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of  Exhibit A , with appropriate legends as specified in  Section 2.8  and  Exhibit A  hereto.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person:
 
 	(1)	to purchase or pay, or advance or supply funds for the purchase or payment of, such Indebtedness of such other Person, whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise, or	
 
 	(2)	entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof, in whole or in part,	
provided, that “Guarantee” will not include endorsements for collection or deposit in the ordinary course of business. “Guarantee” used as a verb has a corresponding meaning.
 
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“Guaranteed Obligations” has the meaning assigned to it in Section 10.1(a).
“Hedging Obligations” means the obligations of any Person pursuant to any Interest Rate Agreement, Currency Agreement, Commodity Price Purchase Agreement or any Transportation Agreement, in each case, not entered into for speculative purposes.
“Holder” means the Person in whose name a Note is registered in the Note Register.
“IFRS” means the International Financial Reporting Standards as issued by the International Accounting Standards Board.
“Incur” means, with respect to any Indebtedness or other obligation of any Person, to create, issue, incur (including by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Indebtedness or other obligation on the balance sheet of such Person (and “ Incurrence ,” “ Incurred ” and “ Incurring ” will have meanings correlative to the preceding).
“Indebtedness” means with respect to any Person, without duplication:
 
 	(1)	the principal amount (or, if less, the accreted value) of all obligations of such Person for borrowed money;	
 
 	(2)	the principal amount (or, if less, the accreted value) of all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, including any perpetual bonds, debenture notes or similar instruments without regard to maturity date;	
 
 	(3)	all Capitalized Lease Obligations of such Person;	
 
 	(4)	all obligations of such Person issued or assumed as the deferred purchase price of property, all conditional sale obligations and all payment obligations under any title retention agreement (but excluding trade accounts payable and other accrued liabilities accounted for as current liabilities (in accordance with GAAP) arising in the ordinary course of business) to the extent of any reimbursement obligations in respect thereof;	
 
 	(5)	reimbursement obligations with respect to letters of credit, banker’s acceptances or similar credit transactions;	
 
 	(6)	Guarantees and other contingent obligations of such Person in respect of Indebtedness referred to in clauses (1) through (5) above and clauses (8) through (10) below;	
 
 	(7)	all Indebtedness of any other Person of the type referred to in clauses (1) through (6) which is secured by any Lien on any property or asset of the first Person, the amount of such Indebtedness being deemed to be the lesser of the Fair Market Value of such property or asset or the amount of the Indebtedness so secured;	
 
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 	(8)	all obligations under Hedging Obligations or other derivatives of such Person;	
 
 	(9)	all liabilities (contingent or otherwise) of such Person in connection with a sale or other disposition of accounts receivable and related assets (not including Qualified Receivables Transactions), irrespective of their treatment under GAAP or IFRS; and	
 
 	(10)	all Disqualified Capital Stock issued by such Person with the amount of Indebtedness represented by such Disqualified Capital Stock being equal to the greater of its voluntary or involuntary liquidation preference and its maximum fixed repurchase price, but excluding accrued dividends, if any;  provided , that:	
 
 	(a)	if the Disqualified Capital Stock does not have a fixed repurchase price, such maximum fixed repurchase price will be calculated in accordance with the terms of the Disqualified Capital Stock as if the Disqualified Capital Stock were purchased on any date on which Indebtedness will be required to be determined pursuant to this Indenture, and	
 
 	(b)	if the maximum fixed repurchase price is based upon, or measured by, the fair market value of the Disqualified Capital Stock, the fair market value will be the Fair Market Value thereof.	
“Indenture” means this Indenture as amended or supplemented from time to time, including the Schedule and Exhibits hereto.
“Intangible Assets” means with respect to any Person all unamortized debt discount and expense, unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights and all other items which would be treated as intangibles on the consolidated balance sheet of such Person prepared in accordance with GAAP.
“Intercreditor Agreement” means the intercreditor agreement, dated as of September 17, 2012, entered into among the Company and certain of its Subsidiaries, the financial institutions and noteholders party thereto, Citibank International PLC, as facility agent, and the Security Agent, as such agreement may be amended from time to time.
“Interest Payment Date” means the stated due date of an installment of interest on the Notes as specified in the Form of Face of Note contained in  Exhibit A  hereto.
“Interest Rate Agreement” of any Person means any interest rate protection agreement (including, without limitation, interest rate swaps, caps, floors, collars, derivative instruments and similar agreements) and/or other types of hedging agreements designed to hedge interest rate risk of such Person.
 
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“Inventory Financing” means a financing arrangement pursuant to which the Company or any of its Restricted Subsidiaries sells inventory to a bank or other institution (or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Investment” means, with respect to any Person, any (1) direct or indirect loan, advance or other extension of credit (including, without limitation, a Guarantee) to any other Person, (2) capital contribution (by means of any transfer of cash or other property to others or any payment for property or services for the account or use of others) to any other Person, or (3) purchase or acquisition by such Person of any Capital Stock, bonds, notes, debentures or other securities or evidences of Indebtedness issued by any other Person. “Investment” will exclude accounts receivable, extensions of credit in connection with supplier or customer financings consistent with industry or past practice, advance payment of capital expenditures arising in the ordinary course of business, deposits arising in the ordinary course of business and transactions (other than (i) any sale, lease, license, transfer or other disposal and (ii) the granting or creation of a Lien or the Incurring or permitting to subsist of Indebtedness) conducted in the ordinary course of business on arm’s-length terms.
For purposes of Section 3.11, the Company will be deemed to have made an “Investment” in an Unrestricted Subsidiary at the time of its Designation, which will be valued at the Fair Market Value of the sum of the net assets of such Unrestricted Subsidiary multiplied by the percentage equity ownership of the Company and its Restricted Subsidiaries in such designated Unrestricted Subsidiary at the time of its Designation and the amount of any Indebtedness of such Unrestricted Subsidiary or owed to the Company or any Restricted Subsidiary immediately following such Designation. Any property transferred to or from an Unrestricted Subsidiary will be valued at its Fair Market Value at the time of such transfer. If the Company or any Restricted Subsidiary sells or otherwise disposes of any Capital Stock of a Restricted Subsidiary (including any issuance and sale of Capital Stock by a Restricted Subsidiary) such that, after giving effect to any such sale or disposition, such Restricted Subsidiary would cease to be a Subsidiary of the Company, the Company will be deemed to have made an Investment on the date of any such sale or disposition equal to sum of the Fair Market Value of the Capital Stock of such former Restricted Subsidiary held by the Company or any Restricted Subsidiary immediately following such sale or other disposition and the amount of any Indebtedness of such former Restricted Subsidiary Guaranteed by the Company or any Restricted Subsidiary or owed to the Company or any other Restricted Subsidiary immediately following such sale or other disposition. The acquisition by the Company or any Restricted Subsidiary of the Company of a Person that holds an Investment in a third Person will be deemed to be an Investment by the Company or such Restricted Subsidiary in such third Person in an amount equal to the Fair Market Value of the Investments held by the acquired Person in such third Person. Except as otherwise provided in this Indenture, the amount of an Investment will be determined at the time the Investment is made without giving effect to subsequent changes in value.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
 
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“Investment Return” means, in respect of any Investment (other than a Permitted Investment) made after the Issue Date by the Company or any Restricted Subsidiary:
 
 	(1)	the cash proceeds received by the Company upon the sale, liquidation or repayment of such Investment or, in the case of a Guarantee, the amount of the Guarantee upon the unconditional release of the Company and its Restricted Subsidiaries in full, less any payments previously made by the Company or any Restricted Subsidiary in respect of such Guarantee;	
 
 	(2)	in the case of the Revocation of the Designation of an Unrestricted Subsidiary, an amount equal to the lesser of:	
 
 	(a)	the Company’s Investment in such Unrestricted Subsidiary at the time of such Revocation;	
 
 	(b)	that portion of the Fair Market Value of the net assets of such Unrestricted Subsidiary at the time of Revocation that is proportionate to the Company’s equity interest in such Unrestricted Subsidiary at the time of Revocation; and	
 
 	(c)	the Designation Amount with respect to such Unrestricted Subsidiary upon its Designation which was treated as a Restricted Payment;	
 
 	(3)	in the event the Company or any Restricted Subsidiary makes any Investment in a Person that, as a result of or in connection with such Investment, becomes a Restricted Subsidiary, the existing Investment of the Company and its Restricted Subsidiaries in such Person,	
in the case of each of (1), (2) and (3), up to the amount of such Investment that was treated as a Restricted Payment under Section 3.11  less the amount of any previous Investment Return in respect of such Investment.
“Issue Date” means the first date of issuance of the Notes under this Indenture and following a Partial Covenant Suspension Event or a Covenant Suspension Event, except under “ Optional Redemption for Changes in Withholding Taxes ” under clause (5) in  Exhibit A  hereto,  Section 3.22  and the definition of “Permitted Liens,” the most recent Partial Covenant Reversion Date or Reversion Date, as applicable.
“Issue Date Notes” means the €400,000,000 aggregate principal amount of Notes originally issued on the Issue Date, and any replacement Notes issued therefor in accordance with this Indenture.
“Issuer” means the party named as such in the introductory paragraph to this Indenture and its successors and assigns.
“Issuer Order” has the meaning assigned to it in Section 2.2(c).
 
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“Legal Defeasance” has the meaning assigned to it in Section 8.1(b).
“Legal Holiday” has the meaning assigned to it in Section 12.6.
“Lien” means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset. The Company or any Restricted Subsidiary shall be deemed to own, subject to a Lien, any asset that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capitalized Lease Obligations or other title retention lease relating to such asset, or any account receivable transferred by it with recourse (including any such transfer subject to a holdback or similar arrangement that effectively imposes the risk of collectability on the transferor). “ Material Acquisition ” means:
 
 	(1)	an Investment by the Company or any Restricted Subsidiary in any other Person pursuant to which such Person will become a Restricted Subsidiary, or will be merged with or into the Company or any Restricted Subsidiary;	
 
 	(2)	the acquisition by the Company or any Restricted Subsidiary of the assets of any Person (other than a Subsidiary of the Company) which constitute all or substantially all of the assets of such Person or comprises any division or line of business of such Person or any other properties or assets of such Person other than in the ordinary course of business; or	
 
 	(3)	any Revocation with respect to an Unrestricted Subsidiary;	
in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Material Disposition” means any Asset Sale and, whether or not constituting an Asset Sale, (1) any sale or other disposition of Capital Stock, (2) any Designation with respect to an Unrestricted Subsidiary and (3) any sale or other disposition of property or assets excluded from the definition of Asset Sale by clause (4) of that definition, in each case which involves an Investment, Designation or payment of consideration in excess of U.S.$25,000,000 (or the equivalent in other currencies).
“Maturity Date” means April 1, 2021.
“Moody’s” means Moody’s Investors Service, Inc. and any successor to its rating agency business.
“Net Cash Proceeds” means, with respect to any Asset Sale, the proceeds in the form of cash or Cash Equivalents, including payments in respect of deferred payment obligations when received in the form of cash or Cash Equivalents received by the Company or any of its Restricted Subsidiaries from such Asset Sale, net of:
 
 	(1)	reasonable out-of-pocket expenses and fees relating to such Asset Sale (including, without limitation, legal, accounting and investment banking fees and sales commissions);	
 
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 	(2)	taxes paid or payable in respect of such Asset Sale after taking into account any reduction in consolidated tax liability due to available tax credits or deductions and any tax sharing arrangements;	
 
 	(3)	repayment of Indebtedness secured by a Lien permitted under this Indenture that is required to be repaid in connection with such Asset Sale; and	
 
 	(4)	appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with such Asset Sale and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Sale, including, without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, but excluding any reserves with respect to Indebtedness.	
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Custodian” means the custodian with respect to any Global Note appointed by Euroclear or Clearstream, or any successor Person thereto, and shall initially be the Common Depositary.
“Note Guarantee” means any guarantee of the Issuer’s Obligations under this Indenture and the Notes by any Note Guarantor pursuant to  Article X .
“Note Guarantors” means (i) each of the Company and its Restricted Subsidiaries that executes this Indenture as a Note Guarantor or an Additional Note Guarantor and (ii) each of the Company’s Restricted Subsidiaries that in the future executes a supplemental indenture in which such Restricted Subsidiary agrees to be bound by the terms of this Indenture as a Note Guarantor, and their respective successors and assigns; provided, that any Person constituting a Note Guarantor as described above shall cease to constitute a Note Guarantor when its respective Note Guarantee is released in accordance with the terms of this Indenture.
“Note Register” has the meaning assigned to it in Section 2.3(a).
“Notes” means any of the Issuer’s 5.250% Senior Secured Notes due 2021 issued and authenticated pursuant to this Indenture.
“Obligations” means, with respect to any Indebtedness, any principal, interest (including, without limitation, Post-Petition Interest), penalties, fees, indemnifications, reimbursements, damages, and other liabilities payable under the documentation governing such Indebtedness, including, in the case of the Notes and the Note Guarantees, this Indenture.
 
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“Office of the Paying Agent” means the principal office of the Paying Agent at which at any time its corporate trust business shall be administered, which office at the date hereof is located at One Canada Square, London E14 5AL, United Kingdom, or such other address as the Paying Agent may designate from time to time by notice to the Trustee, the Issuer and the Company.
“Officer” means, when used in connection with any action to be taken by the Issuer or a Note Guarantor, as the case may be, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer, the Controller, the Secretary or an attorney-in-fact of the Issuer or such Note Guarantor, as the case may be.
“Officer’s Certificate” means a certificate signed on behalf of a Person by an Officer of such Person, who must be the principal executive officer, the principal financial officer, the treasurer, the Vice President – Corporate Finance, the principal accounting officer or an attorney-in-fact of such Person, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion of counsel, who, unless otherwise indicated in this Indenture, may be an employee of or counsel for the Issuer or any Note Guarantor, and who shall be reasonably acceptable to the Trustee.
“Other Notes” means the U.S.$1,000,000,000 million aggregate principal amount of 6.000% Senior Secured Notes due 2024 of the Issuer issued on the Issue Date.
“Outstanding” means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture,  except :
 
 	(1)	Notes theretofore canceled by the Trustee or delivered to the Trustee for cancellation;	
 
 	(2)	Notes, or portions thereof, for the payment, redemption or, in the case of an Asset Sale Offer or Change of Control Offer, purchase of which, money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or an Affiliate of the Issuer) in trust or set aside and segregated in trust by the Issuer or an Affiliate of the Issuer (if the Issuer or such Affiliate is acting as the Paying Agent) for the Holders of such Notes;  provided , that if Notes (or portions thereof) are to be redeemed or purchased, notice of such redemption or purchase has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;	
 
 	(3)	Notes which have been surrendered pursuant to Section 2.9 or Notes in exchange for which or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a protected purchaser in whose hands such Notes are valid obligations of the Issuer; and	
 
 	(4)	solely to the extent provided in Article VIII, Notes which are subject to Legal Defeasance or Covenant Defeasance as provided in  Article VIII ;	
 
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provided, however, that in determining whether the Holders of the requisite aggregate principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Issuer, a Note Guarantor or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Trust Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not the Issuer or any other obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.
“Partial Covenant Reversion Date” has the meaning set forth under Section 3.22(e).
“Partial Covenant Suspension Date” has the meaning set forth under Section 3.22(c).
“Partial Covenant Suspension Event” has the meaning set forth under Section 3.22(a).
“Partial Suspended Covenants” has the meaning set forth under Section 3.22(a).
“Partial Suspension Period” has the meaning set forth under Section 3.22(e).
“Paying Agent” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Permitted Asset Swap Transaction” means a transaction consisting substantially of the concurrent (i) disposition by the Company or any of its Restricted Subsidiaries of any asset, property or cash consideration (other than a Restricted Subsidiary) in exchange for assets, property or cash consideration transferred to the Company or a Restricted Subsidiary, to be used in a Permitted Business or (ii) disposition by the Company or any of its Restricted Subsidiaries of Capital Stock of a Restricted Subsidiary in exchange for Capital Stock of another Restricted Subsidiary or of Capital Stock of any Person that becomes a Restricted Subsidiary after giving effect to such transaction;  provided , that any cash or Cash Equivalents received in such a transaction shall constitute Net Cash Proceeds to be applied in accordance with  Section 3.12 .
“Permitted Business” means the business or businesses conducted by the Company and its Restricted Subsidiaries as of the Issue Date and any business ancillary, complementary or related thereto or any other business that would not constitute a substantial change to the general nature of its business from that carried on as of the Issue Date.
“Permitted Indebtedness” has the meaning set forth in Section 3.9(b).
 
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“Permitted Investments” means:
 
 	(1)	Investments by the Company or any Restricted Subsidiary in any Person that is, or that result in any Person becoming, immediately after such Investment, a Restricted Subsidiary or constituting a merger or consolidation of such Person into the Company or with or into a Restricted Subsidiary;	
 
 	(2)	any Investment in the Company;	
 
 	(3)	Investments in cash and Cash Equivalents;	
 
 	(4)	any extension, modification or renewal of any Investments existing as of the Issue Date (but not Investments involving additional advances, contributions or other investments of cash or property or other increases thereof, other than as a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms of such Investment as of the Issue Date);	
 
 	(5)	Investments permitted pursuant to clause (ii), (vi) or (vii) of Section 3.18(b);	
 
 	(6)	Investments received as a result of the bankruptcy or reorganization of any Person or taken in settlement of or other resolution of claims or disputes, and, in each case, extensions, modifications and renewals thereof;	
 
 	(7)	Investments made by the Company or its Restricted Subsidiaries as a result of non-cash consideration permitted to be received in connection with an Asset Sale made in compliance with  Section 3.12 ;	
 
 	(8)	Investments in the form of Hedging Obligations or Compensation Related Hedging Obligations permitted under clause (iv) of  Section 3.9(b) ;	
 
 	(9)	Investments in existence on the Issue Date or made pursuant to binding commitments in effect on the Issue Date or any Investment consisting of any extension, modification or renewal of any Investment existing on the Issue Date;  provided , that the amount of any such Investment may be increased (a) as required by the terms of such Investment as in existence on the Issue Date or (b) as otherwise permitted by this Indenture;	
 
 	(10)	Investments by the Company or any Restricted Subsidiary in a Receivables Entity in connection with a Qualified Receivables Transaction which does not constitute an Asset Sale by virtue of clause (7) of the definition thereof; provided ,  however , that any such Investments are made only in the form of Receivables Assets;	
 
 	(11)	Investments in marketable securities or instruments, to fund the Company’s or a Restricted Subsidiary’s pension and other employee-related obligations in the ordinary course of business pursuant to compensation arrangements approved by the Board of Directors or senior management of the Company;	
 
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 	(12)	any Investment that:	
 
 	(a)	when taken together with all other Investments made pursuant to this clause (12) that are at the time outstanding (net of cash benefits to the Company or a Restricted Subsidiary from Investments pursuant to this clause (12)), does not exceed the greater of U.S.$250 million and 3% of Consolidated Tangible Assets; or	
 
 	(b)	when taken together with all other Investments made pursuant to this clause (12) in any fiscal year that are at the time outstanding, does not exceed U.S.$100 million in any fiscal year;	
 
 	(13)	Investments in the Capital Stock of any Person other than a Restricted Subsidiary that are required to be held pursuant to an involuntary governmental order of condemnation, nationalization, seizure or expropriation or other similar order with respect to Capital Stock of such Person (prior to which order such Person was a Restricted Subsidiary);  provided , that such Person contests such order in good faith in appropriate proceedings;	
 
 	(14)	repurchases of Existing Senior Notes or the Notes;	
 
 	(15)	Investments in the SPV Perpetuals or the notes related thereto; provided, that any payment or other contribution to one of the special purpose vehicles issuing the SPV Perpetuals in connection with such Investment is promptly paid or contributed to the Company or a Restricted Subsidiary following receipt thereof;	
 
 	(16)	any Investment that constitutes Indebtedness permitted under clause (vii)(E) of Section 3.9(b); and	
 
 	(17)	(a) Investments to which the Company or any of its Restricted Subsidiaries is contractually committed as of the Issue Date in any Person other than a Subsidiary in which the Company or any of its Restricted Subsidiaries maintains an Investment in equity securities and (b) Investments in any Person other than a Subsidiary in which the Company or any of its Restricted Subsidiaries maintains an Investment in equity securities up to U.S.$100 million in any calendar year minus the amount of any guarantees under clause (xviii) of  Section 3.9(b) .	
“Permitted Liens” means any of the following:
 
 	(1)	statutory Liens of landlords and Liens of carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for	
 
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 	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 and any other Liens created by operation of law;	
 
 	(2)	Liens Incurred or deposits made in the ordinary course of business in connection with (i) workers’ compensation, unemployment insurance and other types of social security or (ii) other insurance maintained by the Company and its Subsidiaries in compliance with the Facilities Agreement (or any refinancing thereof);	
 
 	(3)	Liens 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;	
 
 	(4)	any attachment or judgment Lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(5)	(i) Liens existing on the Issue Date other than in respect of the Collateral and (ii) Liens in respect of the Collateral to the extent equally and ratably securing the Notes and the Permitted Secured Obligations;	
 
 	(6)	any Lien on property acquired by the Company or its Restricted Subsidiaries after the Issue Date that was existing on the date of acquisition of such property;  provided , that such Lien was not incurred in anticipation of such acquisition, and any Lien created to secure all or any part 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 Company or any of its Restricted Subsidiaries after the Issue Date;  provided further , that (A) any such Lien permitted pursuant to this clause (6) 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) and, if required by the terms of the instrument originally creating such Lien, other property which is an improvement to, or is acquired for specific use with, such acquired property; and (B) if applicable, any such Lien shall be created within nine months after, in the case of property, its acquisition, or, in the case of improvements, their completion;	
 
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 	(7)	any Liens renewing, extending or refunding any Lien permitted by clause (5)(i) above; provided, that such Lien is not extended to other property (or, instead, is only extended to equivalent property) and the principal amount of Indebtedness secured by such Lien immediately prior thereto is not increased or the maturity thereof reduced, except that the principal amount secured by any such Lien in respect of:	
 
 	(a)	hedging obligations or other derivatives where there are fluctuations in mark-to-market exposures of those hedging obligations or other derivatives,	
 
 	(b)	Indebtedness consisting of any “Certificados Bursátiles de Largo Plazo” or the Bancomext Facility, or any Refinancing thereof, where principal may increase by virtue of capitalization of interest, and	
 
 	(c)	the Banobras Facility to the extent additional amounts are drawn thereunder,	
may be increased by the amount of such fluctuations, capitalizations or drawings, as the case may be;
 
 	(8)	Liens on Receivables Assets or Capital Stock of a Receivables Subsidiary, in each case granted in connection with a Qualified Receivables Transaction;	
 
 	(9)	Liens granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of business;	
 
 	(10)	any Lien permitted by the Trustee, acting pursuant to the instructions of at least 50% of the Holders;	
 
 	(11)	any Lien granted by the Company or any of its Restricted Subsidiaries to secure Indebtedness under a Permitted Liquidity Facility;  provided , that: (i) such Lien is not granted in respect of the Collateral, and (ii) the maximum amount of such Indebtedness secured by such Lien does not exceed U.S.$500 million at any time; or	
 
 	(12)	in addition to the Liens permitted by the foregoing clauses (1) through (11), Liens securing obligations of the Company and its Restricted Subsidiaries that in the aggregate secure obligations in an amount not in excess of the greater of (i) 5% of Consolidated Tangible Assets and (ii) U.S.$700 million.	
“Permitted Liquidity Facility” means a loan facility or facilities made available to the Company or any Restricted Subsidiary;  provided , that the aggregate principal amount of utilized and unutilized commitments under such facilities must not exceed U.S.$1 billion (or its equivalent in another currency) at any time.
 
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“Permitted Merger Jurisdiction” has the meaning set forth in Section 4.1(a).
“Permitted Secured Obligations” means (i) the Facilities Agreement Indebtedness and any refinancing thereof made in accordance with the Facilities Agreement that is secured by the Collateral, (ii) notes (or similar instruments, including  Certificados Bursátiles ) outstanding on the date of the Facilities Agreement required to be secured by the Collateral pursuant to their terms, or any refinancing thereof permitted by the Facilities Agreement, (iii) future Indebtedness secured by the Collateral to the extent permitted by the Facilities Agreement and (iv) the Existing Senior Notes.
“Person” means an individual, partnership, limited partnership, corporation, company, limited liability company, unincorporated organization, trust or joint venture, or a governmental agency or political subdivision thereof.
“Post-Petition Interest” means all interest accrued or accruing after the commencement of any insolvency or liquidation proceeding (and interest that would accrue but for the commencement of any insolvency or liquidation proceeding) in accordance with and at the contract rate (including, without limitation, any rate applicable upon default) specified in the agreement or instrument creating, evidencing or governing any Indebtedness, whether or not, pursuant to applicable law or otherwise, the claim for such interest is allowed as a claim in such insolvency or liquidation proceeding.
“Preferred Stock” of any Person means any Capital Stock of such Person that has preferential rights over any other Capital Stock of such Person with respect to dividends, distributions or redemptions or upon liquidation.
“Private Placement Legend” has the meaning assigned to it in Section 2.8(b).
“Purchase Money Indebtedness” means Indebtedness Incurred for the purpose of financing all or any part of the purchase price or cost of construction of any property other than Capital Stock;  provided , that the aggregate principal amount of such Indebtedness does not exceed the lesser of the Fair Market Value of such property or such purchase price or cost, including any Refinancing of such Indebtedness that does not increase the aggregate principal amount (or accreted amount, if less) thereof as of the date of Refinancing.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Qualified Capital Stock” means any Capital Stock that is not Disqualified Capital Stock and any warrants, rights or options to purchase or acquire Capital Stock that is not Disqualified Capital Stock that are not convertible into or exchangeable into Disqualified Capital Stock.
 
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“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Company or any Restricted Subsidiary pursuant to which the Company or any Restricted Subsidiary may sell, convey, assign or otherwise transfer to a Receivables Entity any Receivables Assets to obtain funding for the operations of the Company and its Restricted Subsidiaries:
 
 	(1)	for which no term of any portion of the Indebtedness or any other obligations (contingent or otherwise) or securities Incurred or issued by any Person in connection therewith:	
 
 	(a)	directly or indirectly provides for recourse to, or any obligation of, the Company or any Restricted Subsidiary in any way, whether pursuant to a Guarantee or otherwise, except for Standard Undertakings,	
 
 	(b)	directly or indirectly subjects any property or asset of the Company or any Restricted Subsidiary (other than Capital Stock of a Receivables Subsidiary) to the satisfaction thereof, except for Standard Undertakings, or	
 
 	(c)	results in such Indebtedness, other obligations or securities constituting Indebtedness of the Company or a Restricted Subsidiary, including following a default thereunder, and	
 
 	(2)	for which the terms of any Affiliate Transaction between the Company or any Restricted Subsidiary, on the one hand, and any Receivables Entity, on the other, other than Standard Undertakings and Permitted Investments, are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s length basis from a Person that is not an Affiliate of the Company, and	
 
 	(3)	in connection with which, neither the Company nor any Restricted Subsidiary has any obligation to maintain or preserve a Receivable Entity’s financial condition, cause a Receivables Entity to achieve certain levels of operating results, fund losses of a Receivables Entity, or except in connection with Standard Undertakings, purchase assets of a Receivables Entity.	
“Rating Agencies” mean Fitch, Moody’s and S&P. In the event that Fitch, Moody’s or S&P is no longer in existence or issuing ratings, such organization may be replaced by a nationally recognized statistical rating organization (as defined in Rule 15c3-1(c)(2)(vi)(F) of the Exchange Act or any successor provision) designated by the Company with notice to the Trustee.
“Receivables Assets” means:
 
 	(1)	accounts receivable, leases, conditional sale agreements, instruments, chattel paper, installment sale contracts, obligations, general intangibles, and other similar assets, in each case relating to goods, inventory or services of the Company and its Subsidiaries,	
 
 	(2)	equipment and equipment residuals relating to any of the foregoing,	
 
 	(3)	contractual rights, Guarantees, letters of credit, Liens, insurance proceeds, collections and other similar assets, in each case related to the foregoing, and	
 
 	(4)	proceeds of all of the foregoing.	
 
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“Receivables Entity” means a Receivables Subsidiary or any other Person not an Affiliate of the Company, in each case whose sole business activity is to engage in Qualified Receivables Transactions, including to issue securities or other interests in connection with a Qualified Receivables Transaction.
“Receivables Subsidiary” means an Unrestricted Subsidiary of the Company that engages in no activities other than Qualified Receivables Transactions and activities related thereto and that is designated by the Issuer as a Receivables Subsidiary. Any such designation by the Issuer will be evidenced to the Trustee by filing with the Trustee an Officer’s Certificate of the Issuer.
“Record Date” has the meaning assigned to it in the Form of Face of Note contained in Exhibit A hereto.
“Redemption Date” means, with respect to any redemption of the Notes, the date fixed for such redemption pursuant to this Indenture and the Notes.
“Refinance” means, in respect of any Indebtedness, to issue any Indebtedness in exchange for or to refinance, repay, redeem, replace, defease or refund such Indebtedness in whole or in part. “Refinanced” and “Refinancing” will have correlative meanings.
“Refinancing Indebtedness” means Indebtedness of the Company or any Restricted Subsidiary issued to Refinance any other Indebtedness of the Company or a Restricted Subsidiary so long as:
 
 	(1)	the aggregate principal amount (or initial accreted value, if applicable) of such new Indebtedness as of the date of such proposed Refinancing does not exceed the aggregate principal amount (or accreted value as of such date, if applicable) of the Indebtedness being Refinanced (plus the amount of any premium required to be paid under the terms of the instrument governing such Indebtedness and the amount of reasonable expenses incurred by the Company in connection with such Refinancing);	
 
 	(2)	such new Indebtedness has:	
 
 	(a)	a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being Refinanced, and	
 
 	(b)	a final maturity that is equal to or later than the final maturity of the Indebtedness being Refinanced or, in the case of Indebtedness without a stated maturity, December 14, 2017; and	
 
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 	(3)	if the Indebtedness being Refinanced is:	
 
 	(a)	Indebtedness of the Issuer, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(b)	Indebtedness of a Note Guarantor, then such Refinancing Indebtedness will be Indebtedness of the Issuer and/or any Note Guarantor,	
 
 	(c)	Indebtedness of any of the Restricted Subsidiaries, then such Refinancing Indebtedness will be Indebtedness of such Restricted Subsidiary, the Issuer and/or any Note Guarantor, and	
 
 	(d)	Subordinated Indebtedness, then such Refinancing Indebtedness shall be subordinate to the Notes or the relevant Note Guarantee, if applicable, at least to the same extent and in the same manner as the Indebtedness being Refinanced.	
Notwithstanding the foregoing, with respect to any hedging obligations or derivatives outstanding on the Issue Date in respect of the Axtel Share Forward Transaction, “Refinancing Indebtedness” shall mean any replacements, amendments or renewals thereof that are entered into on then prevailing market terms with the underlying amounts not greater than the original underlying amounts.
“Registrar” has the meaning assigned to it in Section 2.3(a).
“Regulation S” means Regulation S under the Securities Act or any successor regulation.
“Regulation S Global Note” has the meaning assigned to it in Section 2.1(e).
“Resale Restriction Termination Date” means for any Restricted Note (or beneficial interest therein), that is (a) not a Regulation S Global Note, the date on which the Issuer instructs the Trustee in writing to remove the Private Placement Legend from the Restricted Notes in accordance with the procedures described in  Section 2.9(h)  (which instruction is expected to be given on or about the one year anniversary of the issuance of the Restricted Notes) or (b) a Regulation S Global Note (or Certificated Note issued in respect thereof pursuant to  Section 2.7(c) ), the date on which the Distribution Compliance Period therefor terminates.
“Restricted Note” means any Issue Date Note (or beneficial interest therein) or any Additional Note (or beneficial interest therein) not originally issued and sold pursuant to an effective registration statement under the Securities Act until such time as:
 
 	(i)	the Resale Restriction Termination Date therefor has passed; or	
 
 	(ii)	the Private Placement Legend therefor has otherwise been removed pursuant to Section 2.9 or, in the case of a beneficial interest in a Global Note, such beneficial interest has been exchanged for an interest in a Global Note not bearing a Private Placement Legend.	
 
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“Restricted Obligations” has the meaning assigned to it in Section 10.6(b).
“Restricted Payment” has the meaning set forth in Section 3.11(a).
“Restricted Subsidiary” means any Subsidiary of the Company, which at the time of determination is not an Unrestricted Subsidiary.
“Reversion Date” has the meaning assigned to in Section 3.22(e).
“Revocation” has the meaning set forth in Section 3.14(c).
“Rule 144” means Rule 144 under the Securities Act (or any successor rule).
“Rule 144A” means Rule 144A under the Securities Act (or any successor rule).
“Rule 144A Global Note” has the meaning assigned to it in Section 2.1(d).
“S&P” means Standard & Poor’s Ratings Group and any successor to its rating agency business.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party providing for the leasing to the Company or a Restricted Subsidiary of any property, whether owned by the Company or any Restricted Subsidiary at the Issue Date or later acquired, which has been or is to be sold or transferred by the Company or such Restricted Subsidiary to such Person or to any other Person by whom funds have been or are to be advanced on the security of such Property.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agent” means Wilmington Trust (London) Limited, as security agent under the Intercreditor Agreement.
“Security Documents” has the meaning assigned to it in Section 7.13.
“Senior Indebtedness” means (i) the Notes and any other Indebtedness of the Issuer or any Note Guarantor that ranks equal in right of payment with the Notes or the relevant Note Guarantee, as the case may be or (ii) Indebtedness for borrowed money or constituting Capitalized Lease Obligations of any Restricted Subsidiary other than the Issuer or a Note Guarantor.
“Significant Subsidiary” means a Subsidiary of the Company constituting a “Significant Subsidiary” of the Company in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act in effect on the date hereof.
“Similar Business” means (1) any business engaged in by the Company or any Restricted Subsidiary on the Issue Date, and (2) any business or other activities, including non-profit
 
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or charitable activities, that are reasonably similar, ancillary, complementary or related to, or a reasonable extension, development or expansion of, the businesses and activities in which the Company or any Restricted Subsidiary is engaged on the Issue Date, including, but not limited to, infrastructure projects, public works programs and consumer or supplier financing.
“Special Record Date” has the meaning assigned to it in Section 2.13(a).
“SPV Perpetuals” means the perpetual debentures issued by special purpose vehicles in December 2006, February 2007 and March 2007, as amended or supplemented from time to time.
“Standard Undertakings” means representations, warranties, covenants, indemnities and similar obligations, including servicing obligations, entered into by the Company or any Subsidiary of the Company in connection with a Qualified Receivables Transaction, which are customary in similar non-recourse receivables securitization, purchase or financing transactions.
“Subordinated Indebtedness” means, with respect to the Issuer or any Note Guarantor, any Indebtedness of the Issuer or such Note Guarantor, as the case may be, which is expressly subordinated in right of payment to the Notes or the relevant Note Guarantee, as the case may be.
“Subsidiary” means with respect to any Person, any corporation, partnership, joint venture, limited liability company, trust, estate or other entity of which (or in which) more than fifty percent (50%) of (a) in the case of a corporation, the issued and outstanding Capital Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether at the time Capital Stock of any other class or classes of such corporation shall or might have voting power upon the occurrence of any contingency that has not occurred and is not in the control of such Person), (b) in the case of a limited liability company, partnership or joint venture, the voting or other power to control the actions of such limited liability company, partnership or joint venture or (c) in the case of a trust or estate, the voting or other power to control the actions of such trust or estate, is at the time directly or indirectly owned or controlled by (X) such Person, (Y) such Person and one or more of its other Subsidiaries or (Z) one or more of such Person’s other Subsidiaries. Unless the context otherwise requires, all references herein to a “Subsidiary” shall refer to a Subsidiary of the Company.
“Successor Company” has the meaning assigned to it in Section 4.1(b).
“Successor Issuer” has the meaning assigned to it in Section 4.1(a).
“Successor Note Guarantor” has the meaning assigned to it in Section 4.1(c).
“Suspended Covenants” has the meaning assigned to it in Section 3.22(b).
“Suspension Date” has the meaning assigned to it in Section 3.22(c).
“Suspension Period” has the meaning assigned to it in Section 3.22(e).
 
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“Swiss Note Guarantor” has the meaning assigned to it in Section 10.6(a).
“Taxes” has the meaning assigned to it in Section 3.21(a).
“Taxing Jurisdiction” has the meaning assigned to it in Section 3.21(a).
“Transfer Agent” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Transportation Agreements” means, in respect of any Person, any agreement or arrangement designed to protect such Person from fluctuations in prices related to transportation.
“Trust Officer” means, when used with respect to the Trustee, any officer within the corporate trust department of the Trustee, having direct responsibility for the administration of this Indenture, or any other officer of the Trustee to whom any corporate trust matter is referred because of such person’s knowledge of and familiarity with the particular subject.
“Trustee” means the party named as such in the introductory paragraph to this Indenture until a successor replaces it in accordance with the terms of this Indenture and, thereafter, means the successor.
“Undervalued Asset” has the meaning assigned to it in Section 10.6(g).
“USA PATRIOT Act” has the meaning assigned to it in Section 12.16.
“U.S. Person” means a “U.S. person” as defined in Regulation S.
“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the State of New York.
“Unrestricted Subsidiary” means any Subsidiary of the Company designated as such pursuant to Section 3.14 . Any such Designation may be revoked by the Issuer, subject to the provisions of such covenant.
“Voting Stock” with respect to any Person, means securities of any class of Capital Stock of such Person entitling the holders thereof (whether at all times or only so long as no senior class of stock has voting power by reason of any contingency) to vote in the election of members of the Board of Directors (or equivalent governing body) of such Person.
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years (calculated to the nearest one-twelfth) obtained by dividing:
 
 	(1)	the sum of the products obtained by multiplying:	
 
 	(a)	the amount of each then remaining installment, sinking fund, serial maturity or other required payment of principal or liquidation preference, as the case may be, including payment at final maturity, in respect thereof, by	
 
 	(b)	the number of years (calculated to the nearest one-twelfth) which will elapse between such date and the making of such payment; by	
 
 	(2)	the then outstanding aggregate principal amount or liquidation preference, as the case may be, of such Indebtedness.	
 
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“Wholly Owned Subsidiary” means, for any Person, any Subsidiary (Restricted Subsidiary in the case of the Company) of which at least 99.5% of the outstanding Capital Stock (other than, in the case of a Subsidiary not organized in the United States, directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law) is owned by such Person or any other Person that satisfies this definition in respect of such Person.
Section 1.2 [Reserved].
Section 1.3 Rules of Construction. Unless the context otherwise requires:
 
 	(1)	a term has the meaning assigned to it;	
 
 	(2)	an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;	
 
 	(3)	“or” is not exclusive;	
 
 	(4)	“including” means including without limitation;	
 
 	(5)	words in the singular include the plural and words in the plural include the singular; and	
 
 	(6)	references to the payment of principal of the Notes shall include applicable premium, if any.	
ARTICLE II
THE NOTES
Section 2.1 Form and Dating.
(a) The Issue Date Notes are being originally offered and sold by the Issuer pursuant to a Purchase Agreement, dated as of March 25, 2014, among the Issuer, the Note Guarantors party thereto, Citigroup Global Markets Limited, Crédit Agricole Corporate and Investment Bank, HSBC Bank plc, J.P. Morgan Securities plc and Banco Santander, S.A., as Initial Purchasers with respect to the Notes. The Notes will be issued as one or more Global Notes in fully registered form without interest coupons, and only in denominations of €100,000 and in integral multiples of €1,000 in excess thereof. Each such Global Note shall constitute a
 
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single Note for all purposes under this Indenture. Certificated Notes, if issued pursuant to the terms hereof, will be issued in fully registered certificated form without coupons. The Notes may only be issued in definitive fully registered form without coupons and only in denominations of €100,000 and in integral multiples of €1,000 in excess thereof. The Notes and the Trustee’s certificate of authentication shall be substantially in the form of  Exhibit A  hereto.
(b) The terms and provisions of the Notes, the form of which is in Exhibit A hereto, shall constitute, and are hereby expressly made, a part of this Indenture, and, to the extent applicable, the Issuer, the Note Guarantors and the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and provisions and to be bound thereby. Except as otherwise expressly permitted in this Indenture, all Notes (including Additional Notes) shall be identical in all respects. Notwithstanding any differences among them, all Notes issued under this Indenture shall vote and consent together on all matters as one class and are otherwise treated as a single issue of securities.
(c) The Notes may have notations, legends or endorsements as specified in Section 2.8 or as otherwise required by law, stock exchange rule or Euroclear or Clearstream rule or usage. The Issuer and the Trustee shall approve any changes to the form of the Notes attached to this Indenture and any additional notation, legend or endorsement required to be inserted on them. Each Note shall be dated the date of its authentication.
(d) Notes originally offered and sold to QIBs in reliance on Rule 144A will be issued in the form of one or more permanent Global Notes (each, a “ Rule 144A Global Note ”).
(e) Notes originally offered and sold outside the United States in reliance on Regulation S will be issued in the form of one or more permanent Global Notes (each, a “ Regulation S Global Note ”).
(f) Each Global Note shall be deposited on behalf of the purchasers of the Notes represented thereby with the Note Custodian or its nominee, for credit to Euroclear or Clearstream. In no event shall any Person hold an interest in a Regulation S Global Note other than in or through accounts maintained by Euroclear or Clearstream.
Section 2.2 Execution and Authentication.
(a) Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. If an Officer whose signature is on a Note no longer holds that office at the time the Trustee authenticates the Note, the Note shall be valid nevertheless.
(b) A Note shall not be valid until manually authenticated by an authorized signatory of the Trustee or an agent appointed by the Trustee (and reasonably acceptable to the Issuer) for such purpose (an “ Authenticating Agent ”). The signature of an authorized signatory of the Trustee or an Authenticating Agent on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. Unless limited by the terms of its appointment, an Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by an Authenticating Agent.
 
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(c) At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery Notes upon a written order of the Issuer signed by an Officer of the Issuer (the “ Issuer Order ”). An Issuer Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.
(d) In case a Successor Issuer has executed an indenture supplemental hereto with the Trustee pursuant to Article IV, any of the Notes authenticated or delivered prior to such transaction may, from time to time, at the request of the Successor Issuer be exchanged for other Notes executed in the name of the Successor Issuer with such changes in phraseology and form as may be appropriate, but otherwise identical to the Notes surrendered for such exchange and of like principal amount; and the Trustee, upon Issuer Order of the Successor Issuer, shall authenticate and deliver Notes as specified in such order for the purpose of such exchange. If Notes shall at any time be authenticated and delivered in any new name of a Successor Issuer pursuant to this  Section 2.2  in exchange or substitution for or upon registration of transfer of any Notes, such Successor Issuer, at the option of the Holders but without expense to them, shall provide for the exchange of all Notes at the time Outstanding for Notes authenticated and delivered in such new name.
Section 2.3 Registrar, Paying Agent and Transfer Agent.
(a) The Issuer shall maintain an office or agency in the Borough of Manhattan, City of New York, that shall keep a register of the Notes (the “ Note Register ”) and of their transfer and exchange (the “ Registrar ”), and for the service of notices and demands to or upon the Issuer in respect of the Notes and this Indenture. The Issuer shall maintain an office or agency in London, England where Notes may be presented for payment and where Notes may be presented or surrendered for registration of transfer or for exchange. The Issuer may have one or more co-Registrars and one or more additional paying agents. The term “Paying Agent” includes any additional paying agent. In addition, the Issuer undertakes to the extent possible, to use reasonable efforts to maintain a Paying Agent in a member state of the European Union that is not obliged to withhold or deduct tax pursuant to European Council Directive 2003/48/EC regarding taxation of savings income.
(b) The Issuer shall enter into an appropriate agency agreement with any Registrar, Paying Agent or co-Registrar not a party to this Indenture. The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of each such agent. If the Issuer fails to maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to  Section 7.7 . The Issuer or any Affiliate of the Issuer may act as Paying Agent, Registrar or co-Registrar, or transfer agent.
(c) The Issuer initially designates (i) the Corporate Trust Office of the Trustee as such office or agency of the Issuer as required by  Section 2.3(a)  and appoints the Trustee as Registrar and agent for service of demands and notices, and (ii) the Office of the Paying Agent as such office or agency of the Issuer as required by  Section 2.3(a)  and appoints the The Bank of New York Mellon, London Branch, as Paying Agent and Transfer Agent, in connection with the Notes and this Indenture, in each case until such time as another Person is appointed as such.
 
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Section 2.4 Paying Agent to Hold Money in Trust.
The Issuer shall require each paying agent (other than the Trustee or the Paying Agent) to agree in writing that such paying agent shall hold in trust for the benefit of Holders or the Trustee all money held by such paying agent for the payment of principal of or interest on the Notes and shall notify the Trustee in writing of any Default by the Issuer or any Note Guarantor in making any such payment. If the Issuer or an Affiliate of the Issuer acts as Paying Agent, it shall segregate the money held by it as Paying Agent and hold it as a separate trust fund. The Issuer at any time may require a Paying Agent (other than the Trustee) to pay all money held by it to the Trustee and to account for any funds disbursed by such Paying Agent. Upon complying with this  Section 2.4 , the Paying Agent (if other than the Issuer or any Affiliate of the Issuer) shall have no further liability for the money delivered to the Trustee. Upon any proceeding under any Bankruptcy Law with respect to the Issuer or any Affiliate of the Issuer, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the Issuer or such Affiliate as Paying Agent.
Section 2.5 Holder Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Holders. At any time that the Trustee is not the Registrar the Issuer shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of Holders.
Section 2.6 ISIN Numbers.
The Issuer in issuing Notes may use “ISIN” numbers, as applicable (if then generally in use), and, if so, the Trustee shall use for the Securities “ISIN” number in notices to the Holders as a convenience to such Holders; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice and that reliance may be placed only on the other identification numbers printed on the Notes, and any such notice shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any changes in the “ISIN” numbers.
Section 2.7 Global Note Provisions.
(a) Each Global Note initially shall: (i) be registered in the name of the Common Depositary as nominee for Euroclear or Clearstream, (ii) be delivered to the Note Custodian and (iii) bear the appropriate legends as set forth in  Section 2.8  and Exhibit A  hereto. Any Global Note may be represented by one or more certificates. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Custodian, as provided in this Indenture.
(b) Except as provided in clause (iii) of Section 2.7(c), members of, or participants in, Euroclear or Clearstream (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Note held on their behalf by Euroclear or Clearstream or by the Note Custodian, and Euroclear or Clearstream may be treated by the Issuer, any Note
 
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Guarantor, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar and any of their respective agents as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall (i) prevent the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Note Custodian, the Registrar or any of their respective agents from giving effect to any written certification, proxy or other authorization furnished by Euroclear or Clearstream or (ii) impair, as between Euroclear or Clearstream and its Agent Members, the operation of customary practices of Euroclear or Clearstream governing the exercise of the rights of an owner of a beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any person, including Euroclear or Clearstream, or its nominee, Agent Members and persons that may hold interests through Agent Members, to take any action that a Holder is entitled to take under this Indenture or the Notes.
(c) Except as provided in this Section 2.7(c), owners of beneficial interests in Global Notes will not be entitled to receive Certificated Notes in exchange for such beneficial interests.
 
 	(i)	Certificated Notes shall be issued to all owners of beneficial interests in a Global Note in exchange for such beneficial interests if (A) Euroclear or Clearstream notifies the Issuer that it is unwilling or unable to continue as depositary for such Global Note or (B) Euroclear or Clearstream ceases to be a clearing agency registered under the Exchange Act, at a time when Euroclear or Clearstream is required to be so registered in order to act as depositary, and in each case a successor depositary is not appointed by the Issuer within 90 days of such notice. In connection with the exchange of an entire Global Note for Certificated Notes pursuant to this clause (i) of this  Section 2.7(c) , such Global Note shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and deliver to each beneficial owner identified by Euroclear or Clearstream in exchange for its beneficial interest in such Global Note, an equal aggregate principal amount of Certificated Notes of authorized denominations, and the Registrar shall register such exchanges in the Note Register.	
 
 	(ii)	The owner of a beneficial interest in a Global Note will be entitled to receive Certificated Notes in exchange for such interest if an Event of Default has occurred and is continuing. If an Event of Default has occurred and is continuing, upon receipt by the Registrar of instructions from Agent Members on behalf of the owner of a beneficial interest in a Global Note directing the Registrar to exchange such beneficial owner’s beneficial interest in such Global Note for Certificated Notes, subject to and in accordance with the Applicable Procedures, the Issuer shall promptly execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to such beneficial owner, Certificated Notes in a principal amount equal to such beneficial interest in such Global Note.	
 
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 	(iii)	If (A) an event described in clause (i) of Section 2.7(c) occurs and Certificated Notes are not issued promptly to all beneficial owners or (B) the Registrar receives from a beneficial owner the instructions described in clause (ii) of  Section 2.7(c)  and Certificated Notes are not issued promptly to any such beneficial owner, the Issuer expressly acknowledges, with respect to the right of any Holder to pursue a remedy pursuant to  Section 6.6  hereof, the right of any beneficial owner of Notes to pursue such remedy with respect to the portion of the Global Note that represents such beneficial owner’s Notes as if such Certificated Notes had been issued.	
Section 2.8 Legends.
(a) Each Global Note shall bear the legend specified therefor in Exhibit A hereto on the face thereof.
(b) Each Restricted Note shall bear the private placement legend specified therefor in Exhibit A hereto on the face thereof (the “ Private Placement Legend ”).
Section 2.9 Transfer and Exchange.
(a) Transfers of Beneficial Interests in a Rule 144A Global Note. If the owner of a beneficial interest in a Rule 144A Global Note that is a Restricted Note wishes to transfer such interest (or portion thereof) pursuant to Rule 144 (if available) or to a Non-U.S. Person pursuant to Regulation S:
 
 	(i)	upon receipt by the Registrar of:	
 
 	(A)	instructions from an Agent Member given to Euroclear or Clearstream in accordance with the Applicable Procedures directing Euroclear or Clearstream to credit or cause to be credited a beneficial interest in the Regulation S Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(B)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(C)	a certificate in the form of Exhibit B or Exhibit C hereto, as applicable, duly executed by the transferor;	
 
 	(ii)	the Note Custodian shall increase the Regulation S Global Note and decrease the Rule 144A Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
 
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(b) Transfers of Beneficial Interests in a Regulation S Global Note. Subject to the Applicable Procedures, the following provisions shall apply with respect to any proposed transfer of an interest in a Regulation S Global Note that is a Restricted Note:
If the owner of a beneficial interest in a Regulation S Global Note that is a Restricted Note wishes to transfer such interest (or a portion thereof) to a QIB pursuant to Rule 144A:
 
 	(A)	upon receipt by the Registrar of:	
 
 	(1)	instructions from an Agent Member given to Euroclear or Clearstream in accordance with the Applicable Procedures directing Euroclear or Clearstream to credit or cause to be credited a beneficial interest in the Rule 144A Global Note in a principal amount equal to the principal amount of the beneficial interest to be transferred,	
 
 	(2)	instructions given in accordance with the Applicable Procedures containing information regarding the account to be credited with such increase, and	
 
 	(3)	a certificate in the form of Exhibit D hereto, duly executed by the transferor;	
 
 	(B)	the Note Custodian shall increase the Rule 144A Global Note and decrease the Regulation S Global Note in accordance with the foregoing, and the Registrar shall register the transfer in the Note Register.	
(c) Other Transfers. Any registration of transfer of Restricted Notes (including Certificated Notes) not described above (other than a transfer of a beneficial interest in a Global Note that does not involve an exchange of such interest for a Certificated Note or a beneficial interest in another Global Note, which must be effected in accordance with applicable law and the Applicable Procedures, but is not subject to any procedure required by this Indenture) shall be made only upon receipt by the Registrar of such Opinions of Counsel, certificates and such other evidence reasonably required by and satisfactory to it in order to ensure compliance with the Securities Act or in accordance with  Section 2.9(d) .
(d) Use and Removal of Private Placement Legends. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) not bearing (or not required to bear upon such transfer, exchange or replacement) a Private Placement Legend, the Note Custodian and Registrar shall exchange such Notes (or beneficial interests) for beneficial interests in a Global Note or Certificated Notes if they have been issued pursuant to  Section 2.7(c)  that does not bear a Private Placement Legend. Upon the registration of transfer, exchange or replacement of Notes (or beneficial interests in a Global Note) bearing a Private Placement Legend, the Note Custodian and Registrar shall deliver only Notes (or beneficial interests in a Global Note) that bear a Private Placement Legend unless:
 
 	(i)	such Notes (or beneficial interests) are transferred pursuant to Rule 144 upon delivery to the Registrar of a certificate of the transferor in the form of  Exhibit C  hereto, and an Opinion of Counsel reasonably satisfactory to the Registrar;	
 
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 	(ii)	such Notes (or beneficial interests) are transferred, replaced or exchanged after the Resale Restriction Termination Date therefor and, in the case of any such Restricted Notes, the Issuer has complied with the applicable procedures for delegending in accordance with  Section 2.9(h) ; or	
 
 	(iii)	in connection with such registration of transfer, exchange or replacement the Registrar shall have received an Opinion of Counsel, certificates and such other evidence reasonably satisfactory to the Issuer and the Registrar to the effect that neither such Private Placement Legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.	
The Holder of a Global Note bearing a Private Placement Legend may exchange an interest therein for an equivalent interest in a Global Note not bearing a Private Placement Legend upon transfer of such interest pursuant to this  Section 2.9(d) .
(e) Consolidation of Global Notes and Exchange of Certificated Notes for Beneficial Interests in Global Notes. If a Global Note not bearing a Private Placement Legend is Outstanding at the time of a removal of legends pursuant to Section 2.9(h) , any interests in a Global Note delegended pursuant to  Section 2.9(h)  shall be exchanged for interests in such Outstanding Global Note, subject to the proviso at the end of  Section 2.14(a) .
(f) Retention of Documents. The Registrar and the Trustee shall retain copies of all letters, notices and other written communications received pursuant to this  Article II  and in accordance with the Trustee’s, or if different, the Registrar’s, record retention procedures. The Issuer shall have the right to inspect and make copies of all such letters, notices or other written communications at any reasonable time upon the giving of reasonable written notice to the Registrar or the Trustee, as the case may be.
(g) General Provisions Relating to Transfers and Exchanges.
 
 	(i)	Subject to the other provisions of this Section 2.9, when Notes are presented to the Registrar or a co-Registrar with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Registrar or co-Registrar shall register the transfer or make the exchange as requested if its requirements for such transaction are met;  provided , that any Notes presented or surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by a written instrument of transfer in form satisfactory to the Registrar or co-Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.	
 
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 	(ii)	To permit registrations of transfers and exchanges and subject to the other terms and conditions of this Article II , the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, Certificated Notes and Global Notes, as applicable, at the Registrar’s or co-Registrar’s request.	
 
 	(iii)	No service charge shall be made to a Holder for any registration of transfer or exchange, but the Issuer and the Trustee may require payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to  Section 3.8 ,  Section 3.9 , Section 5.1  or  Section 9.5 ).	
 
 	(iv)	The Registrar or co-Registrar shall not be required to register the transfer of or exchange of (x) any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.	
 
 	(v)	Prior to the due presentation for registration of transfer of any Note, the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar may deem and treat the Person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar or the Note Custodian shall be affected by notice to the contrary.	
 
 	(vi)	All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.	
 
 	(vii)	Subject to Section 2.7 and this Section 2.9, in connection with the exchange of a portion of a Certificated Note for a beneficial interest in a Global Note, the Trustee shall cancel such Certificated Note, and the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery to the exchanging Holder, a new Certificated Note representing the principal amount not so exchanged.	
 
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(h) Applicable Procedures for Delegending.
 
 	(i)	Promptly after one year has elapsed following (A) the Issue Date or (B) if the Issuer has issued Additional Notes with the same terms and the same ISIN numbers as the Issue Date Notes pursuant to this Indenture within one year following the Issue Date, the date of original issuances of such Additional Notes, if the relevant Notes are freely tradable pursuant to Rule 144 under the Securities Act by Holders who are not Affiliates of the Issuer where no conditions of Rule 144 are then applicable (other than the holding period requirement in paragraph (d)(1)(ii) of Rule 144 so long as such holding period requirement is satisfied), the Issuer shall:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Notes, and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from any Global Notes representing such Notes without further action on the part of Holders;	
 
 	(2)	notify Holders of such Notes that the Private Placement Legend has been removed or deemed removed; and	
 
 	(3)	instruct Euroclear or Clearstream to change the ISIN number for such Notes to the unrestricted ISIN number for the Notes.	
In no event will the failure of the Issuer to provide any notice set forth in this paragraph or of the Trustee to remove the Private Placement Legend constitute a failure by the Issuer to comply with any of its covenants or agreements set forth in  Section 6.1  or otherwise. Any Restricted Note (or security issued in exchange or substitution therefor) as to which such restrictions on transfer shall have expired in accordance with their terms may, upon surrender of such Restricted Note for exchange to the Registrar in accordance with the provisions of  Article II  of this Indenture, be exchanged for a new Note or Notes, of like tenor and aggregate principal amount, which shall not bear the Private Placement Legend. The Issuer shall notify the Trustee in writing upon occurrence of the Resale Restriction Termination Date for any Note.
 
 	(ii)	In the case of a Regulation S Global Note, after the Resale Restriction Termination Date of any such Regulation S Global Note, the Issuer may, at its sole option:	
 
 	(1)	instruct the Trustee in writing to remove the Private Placement Legend from such Regulation S Global Note (including setting	
 
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 	forth the basis for such removal), and upon receipt of such instruction, the Private Placement Legend shall be deemed removed from such Regulation S Global Note without further action on the part of Holders; and	
 
 	(2)	instruct Euroclear or Clearstream to change the ISIN number for such Notes to the unrestricted ISIN number for the Notes.	
 
 	(iii)	Notwithstanding any provision herein to the contrary, in the event that Rule 144 as promulgated under the Securities Act (or any successor rule) is amended to change the one-year holding period thereunder (or the corresponding period under any successor rule), (A) each reference in this  Section 2.9(h)  to “one year” and in the Private Placement Legend described in  Section 2.8(b)  and  Exhibit A  hereto to “ONE YEAR” shall be deemed for all purposes hereof to be references to such changed period, and (B) all corresponding references in this Indenture (including the definition of Resale Restriction Termination Date), the Notes and the Private Placement Legends thereon shall be deemed for all purposes hereof to be references to such changed period;  provided , that such changes shall not become effective if they are otherwise prohibited by, or would otherwise cause a violation of, the then-applicable federal securities laws;  provided further  that if such change does not apply to existing Notes, all references to “one year” in this Indenture shall not be deemed for all purposes hereof to be references to such changed period. This  Section 2.9(h)  shall apply to successive amendments to Rule 144 (or any successor rule) changing the holding period thereunder.	
(i) No Obligation of the Trustee.
 
 	(i)	The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, Agent Members or any other Persons with respect to the accuracy of the records of Euroclear or Clearstream or its nominee or of Agent Members, with respect to any ownership interest in the Notes or with respect to the delivery to any Agent Member, beneficial owner or other Person (other than Euroclear or Clearstream) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be Euroclear or Clearstream or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through Euroclear or Clearstream, subject to the applicable rules and procedures of Euroclear or Clearstream. The Trustee may rely and shall be fully protected in relying upon information furnished by Euroclear or Clearstream with respect to its Agent Members and any beneficial owners.	
 
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 	(ii)	The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Agent Members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.	
Section 2.10 Mutilated, Destroyed, Lost or Stolen Notes.
(a) If a mutilated Note is surrendered to the Registrar or if the Holder of a Note claims that the Note has been lost, destroyed or wrongfully taken, the Issuer shall execute, and upon Issuer Order, the Trustee shall authenticate and make available for delivery, a replacement Note for such mutilated, lost or stolen Note, of like tenor and principal amount, bearing a number not contemporaneously Outstanding if:
 
 	(i)	the requirements of Section 8-405 of the Uniform Commercial Code are met,	
 
 	(ii)	the Holder satisfies any other reasonable requirements of the Trustee, and	
 
 	(iii)	neither the Issuer nor the Trustee has received notice that such Note has been acquired by a protected purchaser (as defined in  Section 8-303  of the Uniform Commercial Code).	
If required by the Trustee or the Issuer, such Holder shall furnish an affidavit of loss and indemnity bond sufficient in the judgment of the Issuer and the Trustee to protect the Issuer, the Trustee, the Paying Agent, the Transfer Agent, the Registrar or any co-Registrar and the Note Custodian from any loss that any of them may suffer if a Note is replaced.
(b) Upon the issuance of any new Note under this Section 2.10, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
(c) Every new Note issued pursuant to this Section 2.10 in exchange for any mutilated Note, or in lieu of any destroyed, lost or stolen Note, shall constitute an original additional contractual obligation of the Issuer, any Note Guarantor and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
 
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Section 2.11 Temporary Notes.
Until definitive Notes are ready for delivery, the Issuer may execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, temporary Notes. Temporary Notes will be substantially in the form of definitive Notes but may have variations that the Issuer considers appropriate for temporary Notes. Without unreasonable delay, the Issuer will prepare and execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery, definitive Notes. After the preparation of definitive Notes, the temporary Notes will be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuer pursuant to  Section 2.3  for that purpose and such exchange shall be without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer will execute, and upon Issuer Order, the Trustee will authenticate and make available for delivery in exchange therefor, one or more definitive Notes representing an equal principal amount of Notes. Until so exchanged, the Holder of temporary Notes shall in all respects be entitled to the same benefits under this Indenture as a Holder of definitive Notes.
Section 2.12 Cancellation.
The Issuer at any time may deliver Notes to the Trustee for cancellation. The Registrar, the Paying Agent and the Transfer Agent shall forward to the Trustee any Notes surrendered to them for registration of transfer, exchange or payment. The Trustee and no one else shall cancel and dispose of cancelled Notes in accordance with its policy of disposal or upon written request of the Issuer, return to the Issuer all Notes surrendered for registration of transfer, exchange, payment or cancellation. The Issuer may not issue new Notes to replace Notes it has paid or delivered to the Trustee for cancellation for any reason other than in connection with a registration of transfer or exchange upon Issuer Order.
Section 2.13 Defaulted Interest.
When any installment of interest becomes overdue (a “Defaulted Interest”), such installment shall forthwith cease to be payable to the Holders in whose names the Notes were registered on the Record Date applicable to such installment of interest. Defaulted Interest (including any interest on such Defaulted Interest) shall be paid by the Issuer, at its election, as provided in clause (a) or clause (b) below.
(a) The Issuer may elect to make payment of any Defaulted Interest (including any interest payable on such Defaulted Interest) to the Holders in whose names the Notes are registered at the close of business on a special record date for the payment of such Defaulted Interest (a “ Special Record Date ”), which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid and the date of the proposed payment, and at the same time the Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Holders entitled to such Defaulted Interest as provided in this  Section 2.13(a) . Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
 
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Interest, which shall be not more than fifteen (15) calendar days and not less than ten (10) calendar days prior to the date of the proposed payment and not less than ten (10) calendar days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register, not less than ten (10) calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Holders in whose names the Notes are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to clause (b) below; or
(b) The Issuer may make payment of any Defaulted Interest (including any interest on such Defaulted Interest) in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this  Section 2.13(b) , such manner of payment shall be deemed practicable by the Trustee. The Trustee shall in the name and at the expense of the Issuer cause prompt notice of the proposed payment and the date thereof to be sent, first-class mail, postage prepaid, to each Holder at such Holder’s address as it appears in the Note Register.
Section 2.14 Additional Notes.
(a) The Issuer may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders, create and issue pursuant to this Indenture additional notes (“ Additional Notes ”) that shall have terms and conditions identical to those of the other Outstanding Notes, except with respect to:
 
 	(i)	the Issue Date;	
 
 	(ii)	the amount of interest payable on the first Interest Payment Date therefor;	
 
 	(iii)	the issue price; and	
 
 	(iv)	any adjustments necessary in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws) and any agreement applicable to such Additional Notes, which are not adverse in any material respect to the Holder of any Outstanding Notes (other than such Additional Notes).	
The Notes issued on the Issue Date and any Additional Notes shall be treated as a single series for all purposes under this Indenture;  provided , that the Issuer may use different ISIN or other similar numbers among Issue Date Notes and among Additional Notes to the extent required to comply with securities or tax law requirements, including to permit delegending pursuant to  Section 2.9(h) .
 
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(b) With respect to any Additional Notes, the Issuer will set forth in an Officer’s Certificate of the Issuer (the “ Additional Note Certificate ”), copies of which will be delivered to the Trustee, the following information:
 
 	(i)	the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to this Indenture;	
 
 	(ii)	the Issue Date and the issue price of such Additional Notes; provided, that no Additional Notes may be issued at a price that would cause such Additional Notes to have “original issue discount” within the meaning of Section 1273 of the Code, unless such Additional Notes have a separate ISIN or other similar number from other Notes; and	
 
 	(iii)	whether such Additional Notes will be subject to transfer restrictions under the Securities Act (or other applicable securities laws).	
ARTICLE III
COVENANTS
Section 3.1 Payment of Notes.
(a) The Issuer shall pay the principal of and interest (including Defaulted Interest) on the Notes in euros on the dates and in the manner provided in the Notes and in this Indenture. Prior to 1:00 p.m. London time, on the Business Day prior to each Interest Payment Date and the Maturity Date, the Issuer shall deposit with the Paying Agent in immediately available funds euros sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. If the Issuer or an Affiliate of the Issuer is acting as Paying Agent, the Issuer or such Affiliate shall, prior to 3:00 p.m. London time on the Business Day prior to each Interest Payment Date and the Maturity Date, segregate and hold in trust euros, sufficient to make cash payments due on such Interest Payment Date or Maturity Date, as the case may be. Principal and interest shall be considered paid on the date due if on such date the Trustee or the Paying Agent (other than the Issuer or an Affiliate of the Issuer) holds in accordance with this Indenture euros designated for and sufficient to pay all principal and interest then due and the Trustee or the Paying Agent, as the case may be, is not prohibited from paying such money to the Holders on that date pursuant to the terms of this Indenture.
(b) Notwithstanding anything to the contrary contained in this Indenture, the Issuer may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal or interest.
(c) In order to comply with applicable tax laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to the Indenture in effect from time to time (“ Applicable Tax Law ”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, the Issuer agrees (i) to provide to the Trustee and the Paying Agent sufficient information about the parties and/or transactions (including any modification to the terms of such transactions) so the Trustee and the Paying Agent can determine whether it has tax related obligations under Applicable Tax Law, (ii) that
 
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the Trustee and the Paying Agent shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Tax Law for which the Trustee and the Paying Agent shall not have any liability and (v) to hold harmless the Trustee and the Paying Agent for any losses it may suffer due to the actions it takes to comply with Applicable Tax Law. The terms of this section shall survive the termination of this Indenture.
(d) The Issuer hereby instructs the Trustee to establish an “Issue Date Note Account” for reception of the interest and principal payments for the Issue Date Notes.
Section 3.2 Maintenance of Office or Agency.
(a) The Issuer shall maintain each office or agency required under Section 2.3. The Issuer will give prompt written notice to the Trustee of any change in the location of any such office or agency. If at any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
(b) The Issuer may also from time to time designate one or more other offices or agencies (in or outside of the City of New York) where the Notes may be presented or surrendered for registration of transfer or for exchange and may from time to time rescind any such designation;  provided, however , that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in the City of New York and in any city selected by the Issuer within the European Union for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and any change in the location of any such other office or agency.
Section 3.3 Corporate Existence. Subject to Article IV, the Issuer will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence.
Section 3.4 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (i) all taxes, assessments and governmental charges levied or imposed upon the Company or any Restricted Subsidiary or for which it or any of them are otherwise liable, or upon the income, profits or property of the Company or any Restricted Subsidiary and (ii) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a liability or Lien upon the property of the Company or any Restricted Subsidiary;  provided, however,  that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which appropriate reserves, if necessary (in the good faith judgment of the Issuer), are being maintained in accordance with GAAP or where the failure to effect such payment will not be disadvantageous to the Holders.
Section 3.5 Compliance Certificate. The Issuer and each Note Guarantor shall deliver to the Trustee within 105 days after the end of each fiscal year of the Company (which fiscal year ends on December 31 of each year, subject to any change in fiscal year following the Issue
 
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Date) an Officer’s Certificate stating that in the course of the performance by the signers of their duties as Officers of the Issuer or such Note Guarantor, as the case may be, they would normally have knowledge of any Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during the previous fiscal year. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Issuer or such Note Guarantor is taking or proposes to take with respect thereto.
Section 3.6 Further Instruments and Acts.
(a) The Issuer and each Note Guarantor will execute and deliver such further instruments and do such further acts as may be reasonably necessary or proper or as the Trustee may reasonably request to carry out more effectively the purpose of this Indenture.
(b) The Issuer and the Note Guarantors shall take, and shall cause their Subsidiaries party thereto to take, any and all actions required under the Intercreditor Agreement and the Security Documents to cause the Intercreditor Agreement and the Security Documents to create and maintain, as security for the Obligations of the Issuer and the Note Guarantors hereunder, a valid and enforceable perfected security interest on all the Collateral, in favor of the Security Agent for the equal and ratable benefit of the Holders of the Notes, and the other Permitted Secured Obligations, first in priority to any and all security interests at any time granted upon the Collateral, subject in all respects to Liens imposed by law and Liens for judgments, taxes, assessments or governmental charges.
Section 3.7 Waiver of Stay, Extension or Usury Laws. The Issuer and each Note Guarantor covenant (to the fullest extent permitted by applicable law) that they will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or such Note Guarantor from paying all or any portion of the principal of or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture. The Issuer and each Note Guarantor hereby expressly waives (to the fullest extent permitted by applicable law) all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 3.8 Change of Control.
(a) Upon the occurrence of a Change of Control, each Holder will have the right to require that the Issuer purchase all or a portion (in integral multiples of €1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest thereon through the date of purchase (the “ Change of Control Payment ”).
(b) Within 30 days following the date upon which the Change of Control occurred, the Issuer must send, by first-class mail, a notice to each Holder, with a copy to the Trustee, offering to purchase the Notes as described above (a “ Change of Control Offer ”). The Change of Control Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Change of Control Payment Date ”).
 
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(c) On the Change of Control Payment Date, the Issuer will, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Issuer.	
(d) If only a portion of a Note is purchased pursuant to a Change of Control Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate);  provided , that each new Note shall be in a minimum principal amount of €100,000 and in integral multiples of €1,000 in excess thereof. Notes (or portions thereof) purchased pursuant to a Change of Control Offer will be cancelled and cannot be reissued.
(e) The Issuer will not be required to make a Change of Control Offer upon a Change of Control if:
 
 	(i)	a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in this Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes properly tendered and not withdrawn under the Change of Control Offer, or	
 
 	(ii)	notice of redemption has been given pursuant to this Indenture as described under Section 5.4 unless and until there is a default in payment of the applicable redemption price.	
(f) The Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations in connection with the purchase of Notes in connection with a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the “Change of Control” provisions of this Indenture, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Indenture by doing so.
 
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Section 3.9 Limitation on Incurrence of Additional Indebtedness.
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, Incur any Indebtedness, including Acquired Indebtedness, except that the Issuer and/or any of the Note Guarantors may Incur Indebtedness, including Acquired Indebtedness, if, at the time of and immediately after giving  pro forma  effect to the Incurrence thereof and the application of the proceeds therefrom, the Consolidated Fixed Charge Coverage Ratio of the Company is greater than or equal to 2.0 to 1.0.
(b) Notwithstanding clause (a) above, the Company and/or any of its Restricted Subsidiaries, as applicable, may Incur the following Indebtedness (“ Permitted Indebtedness ”):
 
 	(i)	Indebtedness consisting of the Notes, excluding Additional Notes, and Indebtedness consisting of the Other Notes;	
 
 	(ii)	Guarantees by (A) any Note Guarantor of Indebtedness of the Issuer or another Note Guarantor permitted under this Indenture and (B) the Issuer of Indebtedness of any Note Guarantor;  provided , that if any such Guarantee is of Subordinated Indebtedness, then the obligations of the Issuer under the Notes and this Indenture or the Note Guarantee of such Note Guarantor, as applicable, will be senior to the Guarantee of such Subordinated Indebtedness;	
 
 	(iii)	Indebtedness of the Company and/or any of its Restricted Subsidiaries outstanding on the Issue Date (excluding Indebtedness permitted under clauses (v), (vi), (vii) or (x) of this definition of Permitted Indebtedness);	
 
 	(iv)	Hedging Obligations, Compensation Related Hedging Obligations and any Guarantees thereof and any reimbursement obligations with respect to letters of credit related thereto, in each case entered into by the Company and/or any of its Restricted Subsidiaries;  provided , that upon the drawing of such letters of credit, such obligations are reimbursed within 30 days following such drawing;	
 
 	(v)	intercompany Indebtedness between the Company and any Restricted Subsidiary or between any Restricted Subsidiaries;  provided , that in the event that at any time any such Indebtedness ceases to be held by the Issuer or a Restricted Subsidiary, such Indebtedness shall be deemed to be Incurred and not permitted by this clause (v) at the time such event occurs;	
 
 	(vi)	Indebtedness of the Company and/or any of its Restricted Subsidiaries arising from (A) the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds in the ordinary course of business;  provided , that such Indebtedness is extinguished within five Business Days of	
 
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 	Incurrence; or (B) any cash pooling or other cash management agreements in place with a bank or financial institution but only to the extent of offsetting credit balances of the Company and/or its Restricted Subsidiaries pursuant to such cash pooling or other cash management agreement;	
 
 	(vii)	Indebtedness of the Company and/or any of its Restricted Subsidiaries represented by (A) endorsements of negotiable instruments in the ordinary course of business (excluding an  aval ), (B) documentary credits (including all forms of letter of credit), performance bonds or guarantees, advance payments, bank guarantees, bankers’ acceptances, surety or appeal bonds or similar instruments for the account of, or guaranteeing performance by, the Company and/or any Restricted Subsidiary in the ordinary course of business, (C) reimbursement obligations with respect to letters of credit in the ordinary course of business, (D) reimbursement obligations with respect to letters of credit and performance Guarantees in the ordinary course of business to the extent required pursuant to the terms of any Investment made pursuant to clause (12) of the definition of “Permitted Investment” and (E) other Guarantees by the Company and/or any Restricted Subsidiary in favor of a bank or financial institution in respect of obligations of that bank or financial institution to a third party in an amount not to exceed U.S.$500 million at any one time outstanding;  provided , that in the case of clauses (B), (C) and (D), upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence;	
 
 	(viii)	Refinancing Indebtedness in respect of:	
 
 	(A)	Indebtedness (other than Indebtedness owed to the Company or any Subsidiary of the Company) Incurred pursuant to clause (a) above (it being understood that no Indebtedness outstanding on the Issue Date is Incurred pursuant to such clause (a) above), or	
 
 	(B)	Indebtedness Incurred pursuant to clause (i), (ii) or (iii) above or this clause (viii);	
 
 	(ix)	Capitalized Lease Obligations, Sale and Leaseback Transactions, export credit facilities with a maturity of at least one year and Purchase Money Indebtedness of, including Guarantees of any of the foregoing by, the Company and/or any Restricted Subsidiary, in an aggregate principal amount at any one time outstanding not to exceed U.S.$1 billion;	
 
 	(x)	Indebtedness arising from agreements entered into by the Company and/or a Restricted Subsidiary providing for bona fide indemnification,	
 
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 	adjustment of purchase price or similar obligations not for financing purposes, in each case, Incurred or assumed in connection with the acquisition or disposition of any business, assets or Capital Stock of a Restricted Subsidiary (including minority interests);  provided , that in the case of a disposition, the maximum aggregate liability in respect of such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;	
 
 	(xi)	Indebtedness of the Company and/or any of its Restricted Subsidiaries in an aggregate amount not to exceed U.S.$1 billion at any one time outstanding;  provided , that no more than U.S.$250 million of such Indebtedness at any one time outstanding (excluding any Indebtedness under a Permitted Liquidity Facility) may be Incurred by Restricted Subsidiaries that are not the Issuer or Note Guarantors, which amount shall be increased by the corresponding amount of other Indebtedness of Restricted Subsidiaries other than the Issuer and the Note Guarantors outstanding on the Issue Date and subsequently repaid from time to time but in any event not to exceed U.S.$500 million at any one time outstanding;  provided, further, however , that (A) the Company and/or any of its Restricted Subsidiaries may Incur Indebtedness under a Permitted Liquidity Facility and (B) in the event that the Company and/or any of its Restricted Subsidiaries shall have Incurred Indebtedness under a Permitted Liquidity Facility that increases the amount outstanding at such time pursuant to this clause (xi) in excess of U.S.$ 1 billion, then up to U.S.$1.2 billion may be Incurred pursuant to this clause (xi) at any one time outstanding;	
 
 	(xii)	(A) Indebtedness of the Company and/or any of its Restricted Subsidiaries in respect of factoring arrangements or Inventory Financing arrangements or (B) other Indebtedness of the Company and/or any of its Restricted Subsidiaries with a maturity of 12 months or less for working capital purposes, not to exceed in the aggregate at any one time (calculated as of the end of the most recent fiscal quarter for which consolidated financial information of the Company is available) the greater of:	
 
 	(1)	The sum of:	
 
 	(x)	20% of the net book value of the inventory of the Company and its Restricted Subsidiaries and	
 
 	(y)	20% of the net book value of the accounts receivable of the Company and its Restricted Subsidiaries (excluding accounts receivable pledged to secure Indebtedness or subject to a Qualified Receivables Transaction),	
less, in each case, the amount of any permanent repayments or reductions of commitments in respect of such Indebtedness made with the Net Cash Proceeds of an Asset Sale in order to comply with  Section 3.12 ; or
 
 	(2)	U.S.$350 million;	
 
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 	(xiii)	[Reserved];	
 
 	(xiv)	Indebtedness of the Company and/or any of its Restricted Subsidiaries for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of business;  provided , that such Indebtedness shall be permitted to be Incurred only at such time that the Facilities Agreement (or any refinancing thereof) shall contain an exception to allow the Incurrence of Indebtedness to pay taxes;	
 
 	(xv)	Indebtedness Incurred pursuant to the Banobras Facility;	
 
 	(xvi)	Indebtedness of the Company and/or any of its Restricted Subsidiaries Incurred and/or issued to refinance Qualified Receivables Transactions in existence on the Issue Date;	
 
 	(xvii)	Acquired Indebtedness in an aggregate amount at any one time outstanding under this clause (xvii) not to exceed U.S.$100 million; and	
 
 	(xviii)	(A) any Indebtedness that constitutes an Investment that the Company and/or any of its Restricted Subsidiaries is contractually committed to Incur as of the Issue Date in any Person (other than a Subsidiary) in which the Company or any of its Restricted Subsidiaries maintains an Investment in equity securities; and (B) Guarantees up to U.S.$100 million in any calendar year by the Company and/or any Restricted Subsidiary of Indebtedness of any Person in which the Company or any of its Restricted Subsidiaries maintains an equity Investment minus any Investment other than such guarantees in such Person during such calendar year pursuant to clause (17)(b) of the definition of “Permitted Investments.”	
(c) Notwithstanding anything to the contrary contained in this Section 3.9,
 
 	(i)	The Company shall not, and shall not permit any Note Guarantor to, Incur any Permitted Indebtedness pursuant to  Section 3.9(b)  if the proceeds thereof are used, directly or indirectly, to Refinance any Subordinated Indebtedness unless such Indebtedness shall be subordinated to the Notes or the applicable Note Guarantee, as the case may be, to at least the same extent as such Subordinated Indebtedness.	
 
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 	(ii)	For purposes of determining compliance with, and the outstanding principal amount of, any particular Indebtedness Incurred pursuant to and in compliance with this  Section 3.9 , the amount of Indebtedness issued at a price that is less than the principal amount thereof will be equal to the amount of the liability in respect thereof determined in accordance with GAAP. Accrual of interest, the accretion or amortization of original issue discount, the payment of regularly scheduled interest in the form of additional Indebtedness of the same instrument or the payment of regularly scheduled dividends on Disqualified Capital Stock in the form of additional Disqualified Capital Stock with the same terms will not be deemed to be an Incurrence of Indebtedness for purposes of this  Section 3.9 . For purposes of determining compliance with this  Section 3.9 , mark-to-market fluctuations of hedging obligations or derivatives outstanding on the Issue Date shall not constitute Incurrence of Indebtedness.	
 
 	(iii)	For purposes of determining compliance with this Section 3.9, the principal amount of Indebtedness denominated in foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was Incurred, in the case of term Indebtedness, or first committed, in the case of revolving credit Indebtedness;  provided , that if such Indebtedness is Incurred to refinance other Indebtedness denominated in foreign currency, and such refinancing would cause the applicable restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such restriction shall be deemed not to have been exceeded so long as the principal amount of such Refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced. Notwithstanding any other provision of this  Section 3.9 , the maximum amount of Indebtedness Incurred to refinance other Indebtedness, if Incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such Refinancing Indebtedness is denominated that is in effect on the date of such refinancing.	
 
 	(iv)	For purposes of determining compliance with this Section 3.9:	
 
 	(A)	in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described above, including, without limitation, in  Section 3.9(a) , the Company, in its sole discretion, will classify such item of Indebtedness at the time of Incurrence and only be required to include the amount and type of such Indebtedness in one of the above clauses and may later reclassify all or a portion of such item of Indebtedness as having been Incurred pursuant to any other clause to the extent such Indebtedness could be Incurred pursuant to such clause at the time of such reclassification; and	
 
 	(B)	the Company will be entitled to divide and classify an item of Indebtedness in more than one of the types of Indebtedness described above, including, without limitation,  Section 3.9(a) .	
 
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Section 3.10 [Reserved].
Section 3.11 Limitation on Restricted Payments.
(a) The Company will not, and will not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, take any of the following actions (each, a “ Restricted Payment ”):
 
 	(i)	declare or pay any dividend or return of capital or make any distribution on or in respect of shares of Capital Stock of the Company or any Restricted Subsidiary to holders of such Capital Stock, other than:	
 
 	(A)	dividends, distributions or returns on capital payable in Qualified Capital Stock of the Company,	
 
 	(B)	dividends, distributions or returns on capital payable to the Company and/or a Restricted Subsidiary,	
 
 	(C)	dividends, distributions or returns of capital made on a pro rata basis to the Company and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder);	
 
 	(ii)	purchase, redeem or otherwise acquire or retire for value:	
 
 	(A)	any Capital Stock of the Company, or	
 
 	(B)	any Capital Stock of any Restricted Subsidiary held by an Affiliate of the Company or any Preferred Stock of a Restricted Subsidiary, except for:	
 
 	(1)	Capital Stock held by the Company or a Restricted Subsidiary, or	
 
 	(2)	purchases, redemptions, acquisitions or retirements for value of Capital Stock on a pro rata basis from the Company and/or any Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of a Restricted Subsidiary, on the other hand, according to their respective percentage ownership of the Capital Stock of such Restricted Subsidiary;	
 
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 	(iii)	make any principal payment on, purchase, defease, redeem, prepay, decrease or otherwise acquire or retire for value, prior to any scheduled final maturity, scheduled repayment or scheduled sinking fund payment, as the case may be, any Subordinated Indebtedness; or	
 
 	(iv)	make any Investment (other than Permitted Investments);	
if at the time of the Restricted Payment immediately after giving effect thereto:
 
 	(A)	a Default or an Event of Default shall have occurred and be continuing;	
 
 	(B)	the Company is not able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); or	
 
 	(C)	the aggregate amount (the amount expended for these purposes, if other than in cash, being the Fair Market Value of the relevant property at the time of the making thereof) of the proposed Restricted Payment and all other Restricted Payments made subsequent to the Issue Date up to the date thereof, less any Investment Return calculated as of the date thereof, shall exceed the sum of:	
 
 	(1)	50% of cumulative Consolidated Net Income of the Company or, if cumulative Consolidated Net Income of the Company is a loss, minus (i) 100% of the loss, accrued during the period, treated as one accounting period, beginning on the first full fiscal quarter after the Issue Date to the end of the most recent fiscal quarter for which consolidated financial information of the Company is available and (ii) the amount of cash benefits to the Company or a Restricted Subsidiary that is netted against Investments in Similar Businesses pursuant to clause (12) of the definition of “Permitted Investments”; plus	
 
 	(2)	100% of the aggregate net cash proceeds received by the Company from any Person from any:	
 
 	•	 	contribution to the equity capital of the Company (not representing an interest in Disqualified Capital Stock) or issuance and sale of Qualified Capital Stock of the Company, in each case, subsequent to the Issue Date, or	
 
 	•	 	issuance and sale subsequent to the Issue Date (and, in the case of Indebtedness of a Restricted Subsidiary, at such time as it was a Restricted Subsidiary) of any	
 
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 	Indebtedness for borrowed money of the Company or any Restricted Subsidiary that has been converted into or exchanged for Qualified Capital Stock of the Company,	
excluding, in each case, any net cash proceeds:
 
 	•	 	received from a Subsidiary of the Company;	
 
 	•	 	used to redeem Notes under Article V;	
 
 	•	 	used to acquire Capital Stock or other assets from an Affiliate of the Company; or	
 
 	•	 	applied in accordance with clause (ii)(B) or (iii)(A) of Section 3.11(b) below.	
(b) Notwithstanding Section 3.11(a), this Section 3.11 does not prohibit:
 
 	(i)	the payment of any dividend within 60 days after the date of declaration of such dividend if the dividend would have been permitted on the date of declaration pursuant to  Section 3.11(a) ;	
 
 	(ii)	if no Default or Event of Default shall have occurred and be continuing, the acquisition of any shares of Capital Stock of the Company,	
 
 	(A)	in exchange for Qualified Capital Stock of the Company, or	
 
 	(B)	through the application of the net cash proceeds received by the Company from a substantially concurrent sale of Qualified Capital Stock of the Company or a contribution to the equity capital of the Company not representing an interest in Disqualified Capital Stock, in each case not received from a Subsidiary of the Company;	
provided, that the value of any such Qualified Capital Stock issued in exchange for such acquired Capital Stock and any such net cash proceeds shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iii)	if no Default or Event of Default shall have occurred and be continuing, the voluntary prepayment, purchase, defeasance, redemption or other acquisition or retirement for value of any Subordinated Indebtedness:	
 
 	(A)	solely in exchange for, or through the application of net cash proceeds of a substantially concurrent sale, other than to a Subsidiary of the Company, of Qualified Capital Stock of the Company, or	
 
 	(B)	solely in exchange for Refinancing Indebtedness for such Subordinated Indebtedness,	
 
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provided, that the value of any Qualified Capital Stock issued in exchange for Subordinated Indebtedness and any net cash proceeds referred to above shall be excluded from  Section 3.11(a)(iv)(C)(2)  (and were not included therein at any time);
 
 	(iv)	repurchases by the Company of Common Stock of the Company or options, warrants or other securities exercisable or convertible into Common Stock of the Company from employees or directors of the Company or any of its Subsidiaries or their authorized representatives upon the death, disability or termination of employment or directorship of the employees or directors, in an amount not to exceed U.S.$5 million in any calendar year and any repurchases other than in connection with compensation of Common Stock of the Company pursuant to binding written agreements in effect on the Issue Date;	
 
 	(v)	payments of dividends on Disqualified Capital Stock issued pursuant to the covenant described under Section 3.9 ;  provided, however , that such dividends shall be excluded in the calculation of the amount of Restricted Payments;	
 
 	(vi)	non-cash repurchases of Capital Stock deemed to occur upon exercise of stock options, warrants or other similar rights if such Capital Stock represents a portion of the exercise price of such options, warrants or other similar rights;	
 
 	(vii)	cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of the Company;	
 
 	(viii)	purchases of any Subordinated Indebtedness of the Company (A) at a purchase price not greater than 101% of the principal amount thereof (together with accrued and unpaid interest) in the event of the occurrence of a Change of Control or (B) at a purchase price not greater than 100% of the principal amount thereof (together with accrued and unpaid interest) in the event of an Asset Sale in accordance with provisions similar to those set forth under  Section 3.12 ;  provided, however , that prior to such purchase of any such Subordinated Indebtedness, the Company has made the Change of Control Offer or Asset Sale Offer as provided under  Section 3.8  or  Section 3.12 , respectively, and has purchased all Notes validly tendered and not properly withdrawn pursuant thereto;	
 
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 	(ix)	recapitalization of earnings on or in respect of the Qualified Capital Stock of the Company pursuant to which additional Qualified Capital Stock of the Company or the right to subscribe for additional Capital Stock of the Company is issued to the existing shareholders of the Company on a  pro rata  basis (which, for the avoidance of doubt, shall not allow any payment in cash to be made in respect of Qualified Capital Stock of the Company pursuant to this clause (ix)); and	
 
 	(x)	so long as (A) no Default or Event of Default shall have occurred and be continuing (or result therefrom) and (B) the Company could Incur at least U.S.$1.00 of additional Debt pursuant to  Section 3.9(a) , payment of any dividends on Capital Stock (other than Disqualified Capital Stock) of the Company in an aggregate amount which, when taken together with all dividends paid pursuant to this clause (x), does not exceed U.S.$50 million in any calendar year;  provided , that such dividends shall be included in the calculation of the amount of Restricted Payments.	
 
 	(xi)	[Reserved]	
In determining the aggregate amount of Restricted Payments made subsequent to the Issue Date, amounts expended pursuant to clauses (i) (without duplication for the declaration of the relevant dividend), (iv), (viii) and (x) above shall be included in such calculation and amounts expended pursuant to clauses (ii), (iii), (v), (vi), (vii) and (ix) above shall not be included in such calculation.
Section 3.12 Limitation on Asset Sales.
(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:
 
 	(i)	the Company or the applicable Restricted Subsidiary, as the case may be, receives consideration at the time of the Asset Sale at least equal to the Fair Market Value (to be determined as of the date on which such sale is contracted) of the assets sold or otherwise disposed of, and	
 
 	(ii)	other than in respect of Permitted Asset Swap Transactions, at least 80% of the consideration received for the assets sold by the Company or the Restricted Subsidiary, as the case may be, in the Asset Sale shall be in the form of cash or Cash Equivalents received at the time of such Asset Sale;  provided, however , for the purposes of this clause (ii), the following are also deemed to be cash or Cash Equivalents:	
 
 	(A)	the assumption of Indebtedness (other than Subordinated Indebtedness) of the Company or any Restricted Subsidiary and the release of the Company or such Restricted Subsidiary from all liability on such Indebtedness in connection with such Asset Sale;	
 
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 	(B)	any securities, notes or obligation received by the Company or any Restricted Subsidiary from the transferee that are, within 180 days after the Asset Sale, converted by the Company or such Restricted Subsidiary into cash, to the extent of cash received in that conversion;	
 
 	(C)	Capital Stock of a Person who is or who, after giving effect to such Asset Sale, becomes, a Restricted Subsidiary; and	
 
 	(D)	any Designated Non-cash Consideration received by the Company or such Restricted Subsidiary in connection with such Asset Sale having an aggregate Fair Market Value which, when taken together with the Fair Market Value of all other Designated Non-cash Consideration received pursuant to this clause (D) since the Issue Date, does not exceed the sum of (1) 3.0% of Consolidated Tangible Assets of the Company calculated as of the end of the most recent fiscal quarter for which consolidated financial information is available (with the Fair Market Value of each item of Designated Non-cash Consideration being measured as of the date it was received and without giving effect to subsequent changes in value of any such item of Designated Non-cash Consideration) and (2) the amount of cash or Cash Equivalents received in connection with a subsequent sale of such Designated Non-cash Consideration.	
(b) The Company or any Restricted Subsidiary may apply the Net Cash Proceeds of any such Asset Sale within 365 days thereof to:
 
 	(i)	repay any Senior Indebtedness for borrowed money or constituting a Capitalized Lease Obligation and permanently reduce the commitments with respect thereto, or	
 
 	(ii)	purchase:	
 
 	(A)	assets (except for current assets as determined in accordance with GAAP or Capital Stock) to be used by the Company or any Restricted Subsidiary in a Permitted Business, or	
 
 	(B)	substantially all of the assets of a Permitted Business or Capital Stock of a Person engaged in a Permitted Business that will become, upon purchase, a Restricted Subsidiary from a Person other than the Company and its Restricted Subsidiaries.	
(c) To the extent all or a portion of the Net Cash Proceeds of any Asset Sale are not applied within the 365 days of the Asset Sale as described in clause (i) or (ii) of  Section 3.12(b) , the Company will make an offer to purchase Notes (the “ Asset Sale Offer ”), at a purchase price equal to 100% of the principal amount of the Notes to be purchased, plus accrued and unpaid interest thereon, to the date of purchase (the “ Asset Sale Offer Amount ”). The
 
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Company will purchase pursuant to an Asset Sale Offer from all tendering Holders on a pro rata basis, and, at the Company’s option, on a  pro rata  basis with the holders of any other Senior Indebtedness with similar provisions requiring the Company to offer to purchase the other Senior Indebtedness with the proceeds of Asset Sales, that principal amount (or accreted value in the case of Indebtedness issued with original issue discount) of Notes and the other Senior Indebtedness to be purchased equal to such unapplied Net Cash Proceeds. The Company may satisfy its obligations under this  Section 3.12  with respect to the Net Cash Proceeds of an Asset Sale by making an Asset Sale Offer prior to the expiration of the relevant 365-day period.
(d) Pending the final application of any Net Cash Proceeds pursuant to this Section 3.12, the holder of such Net Cash Proceeds may apply such Net Cash Proceeds temporarily to reduce Indebtedness outstanding under a revolving credit facility or otherwise invest such Net Cash Proceeds in any manner not prohibited by this Indenture.
(e) The purchase of Notes pursuant to an Asset Sale Offer shall occur not less than 20 Business Days following the date thereof, or any longer period as may be required by law, nor more than 45 days following the 365th day following the Asset Sale. The Company may, however, defer an Asset Sale Offer until there is an aggregate amount of unapplied Net Cash Proceeds from one or more Asset Sales equal to or in excess of U.S.$100 million. At that time, the entire amount of unapplied Net Cash Proceeds, and not just the amount in excess of U.S.$100 million, shall be applied as required pursuant to this  Section 3.12 .
(f) Each Asset Sale Offer Notice shall be mailed first class, postage prepaid, to the record Holders as shown on the Note Register within 20 days following such 365th day (or such earlier date as the Company shall have elected to make such Asset Sale Offer), with a copy to the Trustee offering to purchase the Notes as described above. Each notice of an Asset Sale Offer shall state, among other things, the purchase date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by law (the “ Asset Sale Offer Payment Date ”). Upon receiving notice of an Asset Sale Offer, Holders may elect to tender their Notes in whole or in part, in minimum denominations of €100,000 and any integral multiples of €1,000 in excess thereof in exchange for cash.
(g) On the Asset Sale Offer Payment Date, the Company shall, to the extent lawful:
 
 	(i)	accept for payment all Notes or portions thereof properly tendered pursuant to the Asset Sale Offer;	
 
 	(ii)	deposit with the Paying Agent funds in an amount equal to the Asset Sale Offer Amount in respect of all Notes or portions thereof so tendered; and	
 
 	(iii)	deliver or cause to be delivered to the Trustee the Notes so accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof being purchased by the Company.	
(h) To the extent Holders of Notes and holders of other Senior Indebtedness, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or
 
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the other Senior Indebtedness in an aggregate amount exceeding the amount of unapplied Net Cash Proceeds, the Company shall purchase the Notes and the other Senior Indebtedness on a  pro rata  basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased shall be issued in the name of the holder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a global note shall be made, as appropriate). Notes (or portions thereof) purchased pursuant to an Asset Sale Offer shall be cancelled and cannot be reissued.
(i) The Company shall comply with the requirements of Rule 14e-1 under the Exchange Act and any other applicable securities laws in connection with the purchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any applicable securities laws or regulations conflict with this  Section 3.12 , the Company shall comply with these laws and regulations and shall not be deemed to have breached its obligations under the “Asset Sale” provisions of this Indenture by doing so.
(j) Upon completion of an Asset Sale Offer, the amount of Net Cash Proceeds shall be reset at zero. Accordingly, to the extent that the aggregate amount of Notes and other Indebtedness tendered pursuant to an Asset Sale Offer is less than the aggregate amount of unapplied Net Cash Proceeds, the Company may use any remaining Net Cash Proceeds for general corporate purposes of the Company and its Restricted Subsidiaries.
(k) In the event of the transfer of substantially all (but not all) of the property and assets of the Company and its Restricted Subsidiaries as an entirety to a Person in a transaction permitted under  Article IV , the Successor Company shall be deemed to have sold the properties and assets of the Company and its Restricted Subsidiaries not so transferred for purposes of this  Section 3.12 , and shall comply with the provisions of this  Section 3.12  with respect to the deemed sale as if it were an Asset Sale. In addition, the Fair Market Value of properties and assets of the Company or its Restricted Subsidiaries so deemed to be sold shall be deemed to be Net Cash Proceeds for purposes of this  Section 3.12 .
(l) If at any time any non-cash consideration received by the Company or any Restricted Subsidiary, as the case may be, in connection with any Asset Sale, is converted into or sold or otherwise disposed of for cash (other than interest received with respect to any non-cash consideration), the conversion or disposition shall be deemed to constitute an Asset Sale hereunder and the Net Cash Proceeds thereof shall be applied in accordance with this  Section 3.12  within 365 days of conversion or disposition.
Section 3.13 Limitation on the Ownership of Capital Stock of Restricted Subsidiaries. The Company shall not permit any Person other than the Company or another Restricted Subsidiary to, directly or indirectly, own or control any Capital Stock of any Restricted Subsidiary, except for:
 
 	(i)	Capital Stock owned by such Person on the Issue Date;	
 
 	(ii)	directors’ qualifying shares;	
 
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 	(iii)	the sale or Disposition of 100% of the shares of the Capital Stock of any Restricted Subsidiary (other than the Issuer) held by the Company and its Restricted Subsidiaries to any Person other than the Company or another Restricted Subsidiary effected in accordance with, as applicable, Section 3.12  and  Article IV ;	
 
 	(iv)	in the case of a Restricted Subsidiary other than a Restricted Subsidiary that is a Wholly Owned Subsidiary,	
 
 	(A)	the issuance by that Restricted Subsidiary of Capital Stock on a pro rata basis to the Company and its Restricted Subsidiaries, on the one hand, and minority holders of Capital Stock of such Restricted Subsidiary, on the other hand (or on less than a  pro rata  basis to any minority holder); or	
 
 	(B)	sales, transfers and other dispositions of Capital Stock in a Restricted Subsidiary to the extent required by, or made pursuant to, buy/sell, put/call or similar shareholder arrangements set forth in binding agreements in effect on the Issue Date; and	
 
 	(v)	the sale of Capital Stock of a Restricted Subsidiary (other than the Issuer) by the Company or another Restricted Subsidiary or the sale or issuance by a Restricted Subsidiary of its newly-issued Capital Stock if such sale or issuance is made in compliance with  Section 3.12  and either:	
 
 	(A)	such Restricted Subsidiary is no longer a Subsidiary, and the continuing Investment of the Company and its Restricted Subsidiaries in such former Restricted Subsidiary is in compliance with  Section 3.11 , or	
 
 	(B)	such Restricted Subsidiary continues to be a Restricted Subsidiary.	
Section 3.14 Limitation on Designation of Unrestricted Subsidiaries.
(a) The Company may designate after the Issue Date any Subsidiary of the Company other than the Issuer or a Note Guarantor as an Unrestricted Subsidiary under this Indenture (a “ Designation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such Designation and any transactions between the Company or any of its Restricted Subsidiaries and such Unrestricted Subsidiary are in compliance with  Section 3.18;	
 
 	(ii)	at the time of and after giving effect to such Designation, the Company could Incur U.S.$1.00 of additional Indebtedness pursuant to  Section 3.9(a) ;	
 
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 	(iii)	the Company would be permitted to make an Investment at the time of Designation (assuming the effectiveness of such Designation and treating such Designation as an Investment at the time of Designation) as a Restricted Payment pursuant to  Section 3.11(a)  in an amount (the “ Designation Amount ”) equal to the amount of the Company’s Investment in such Subsidiary on such date; and	
 
 	(iv)	the terms of any Affiliate Transaction existing on the date of such Designation between the Subsidiary being designated (and its Subsidiaries) and the Company or any Restricted Subsidiary would be permitted under Section 3.18  if entered into immediately following such Designation.	
(b) Neither the Company nor any Restricted Subsidiary shall at any time:
 
 	(i)	provide credit support for, subject any of its property or assets (other than the Capital Stock of any Unrestricted Subsidiary) to the satisfaction of, or Guarantee, any Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Indebtedness);	
 
 	(ii)	be directly or indirectly liable for any Indebtedness of any Unrestricted Subsidiary; or	
 
 	(iii)	be directly or indirectly liable for any Indebtedness which provides that the Holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Indebtedness of any Unrestricted Subsidiary.	
(c) The Company may revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (a “ Revocation ”) only if:
 
 	(i)	no Default or Event of Default shall have occurred and be continuing at the time of and after giving effect to such Revocation; and	
 
 	(ii)	all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Revocation, if Incurred at such time, would have been permitted to be Incurred for all purposes of this Indenture.	
(d) The Designation of a Subsidiary of the Company as an Unrestricted Subsidiary shall be deemed to include the Designation of all of the Subsidiaries of such Subsidiary as Unrestricted Subsidiaries. All Designations and Revocations must be evidenced by an Officer’s Certificate of the Issuer, delivered to the Trustee certifying compliance with the preceding provisions.
 
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Section 3.15 Limitation on Dividends and Other Payment Restrictions Affecting Restricted Subsidiaries.
(a) Except as provided in clause (b) below, the Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:
 
 	(i)	pay dividends or make any other distributions on or in respect of its Capital Stock to the Company or any other Restricted Subsidiary or pay any Indebtedness owed to the Company or any other Restricted Subsidiary;	
 
 	(ii)	make loans or advances to, or make any Investment in, the Company or any other Restricted Subsidiary; or	
 
 	(iii)	transfer any of its property or assets to the Company or any other Restricted Subsidiary.	
(b) Section 3.15(a) shall not apply to encumbrances or restrictions existing under or by reason of:
 
 	(i)	applicable law, rule, regulation or order;	
 
 	(ii)	this Indenture;	
 
 	(iii)	any encumbrance or restriction pursuant to an agreement in effect at or entered into on the Issue Date, and any amendments, restatements, renewals, replacements or refinancings thereof;  provided , that any amendment, restatement, renewal, replacement or refinancing is not materially more restrictive with respect to such encumbrances or restrictions than those in existence on the Issue Date as determined in good faith by the Company’s senior management;	
 
 	(iv)	customary non-assignment provisions of any contract and customary provisions restricting assignment or subletting in any lease governing a leasehold interest of any Restricted Subsidiary, or any customary restriction on the ability of a Restricted Subsidiary to dividend, distribute or otherwise transfer any asset which secures Indebtedness secured by a Lien, in each case permitted to be Incurred under this Indenture;	
 
 	(v)	any instrument governing Acquired Indebtedness not Incurred in connection with, or in anticipation or contemplation of, the relevant acquisition, merger or consolidation, which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person or the properties or assets of the Person so acquired;	
 
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 	(vi)	restrictions with respect to a Restricted Subsidiary of the Company imposed pursuant to a binding agreement which has been entered into for the sale or disposition of Capital Stock or assets of such Restricted Subsidiary;  provided , that such restrictions apply solely to the Capital Stock or assets of such Restricted Subsidiary being sold (and in the case of Capital Stock, its Subsidiaries);	
 
 	(vii)	customary restrictions imposed on the transfer of copyrighted or patented materials;	
 
 	(viii)	an agreement governing Indebtedness Incurred to Refinance the Indebtedness issued, assumed or Incurred pursuant to an agreement referred to in clause (iii) or (v) of this  Section 3.15(b) ;  provided , that such Refinancing agreement is not materially more restrictive with respect to such encumbrances or restrictions than those contained in the agreement referred to in such clause (iii) or (v) as determined in good faith by the Company’s senior management;	
 
 	(ix)	Liens permitted to be Incurred pursuant to the provisions of the covenant described under Section 3.17 that limit the right of any person to transfer the assets subject to such Liens;	
 
 	(x)	Purchase Money Indebtedness for property acquired in the ordinary course of business and Capitalized Lease Obligations that impose restrictions of the nature discussed in clause (iii) of  Section 3.15(a)  above on the property so acquired;	
 
 	(xi)	restrictions on cash or other deposits imposed by customers under contracts or other arrangements entered into or agreed to in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Company’s senior management;	
 
 	(xii)	customary provisions in joint venture agreements relating to dividends or other distributions in respect of such joint venture or the securities, assets or revenues of such joint venture;	
 
 	(xiii)	restrictions in Indebtedness Incurred by a Restricted Subsidiary in compliance with the covenant described under  Section 3.9 ;  provided , that such restrictions (A) are not materially more restrictive with respect to such encumbrances and restrictions than those such Restricted Subsidiary was subject to in agreements related to obligations referenced in clause (iii) above as determined in good faith by the Company’s senior management or (B) constitute financial covenants or similar restrictions that limit the ability to pay dividends or make distributions upon the occurrence or continuance of a default or event of default or that would result in a default or event of default under such Indebtedness upon the declaration or payment of dividends or other distributions; and	
 
 	(xiv)	net worth provisions in leases entered into by the Company or any Restricted Subsidiary in the ordinary course of business not materially more restrictive than those existing on the Issue Date as determined in good faith by the Company’s senior management.	
 
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Section 3.16 Limitation on Layered Indebtedness. The Company shall not, and shall not permit the Issuer or any other Note Guarantor to, directly or indirectly, Incur any Indebtedness that is subordinate in right of payment to any other Indebtedness, unless such Indebtedness is expressly subordinate in right of payment to the Notes or, in the case of a Note Guarantor, its Note Guarantee, to the same extent, on the same terms and for so long (except as a result of the provisions of the Intercreditor Agreement applicable to Facilities Agreement Indebtedness and any refinancing thereof) as such Indebtedness is subordinate to such other Indebtedness.
Section 3.17 Limitation on Liens. The Company shall not, and shall not cause or permit any of its Restricted Subsidiaries to, directly or indirectly, incur, grant, assume or suffer to exist any Liens of any kind (except for Permitted Liens) (a) against or upon any of their respective properties or assets, whether owned on the Issue Date or acquired after the Issue Date, or any proceeds therefrom, to secure any Indebtedness or trade payables or (b) deemed to exist in respect of Capitalized Lease Obligations (including any Capitalized Lease Obligations in respect of Sale and Leaseback Transactions), in each case, unless contemporaneously therewith effective provision is made:
 
 	(i)	in the case of the Issuer or any Restricted Subsidiary that is not a Note Guarantor, to secure the Notes and all other amounts due under this Indenture; and	
 
 	(ii)	in the case of a Note Guarantor, to secure such Note Guarantor’s Note Guarantee of the Notes and all other amounts due under this Indenture,	
in each case, equally and ratably with such Indebtedness or other obligation (or, in the event that such Indebtedness is subordinated in right of payment to the Notes or such Note Guarantee, as the case may be, prior to such Indebtedness or other obligation) with a Lien on the same properties and assets securing such Indebtedness or other obligation for so long as such Indebtedness or other obligation is secured by such Lien.
Section 3.18 Limitation on Transactions with Affiliates.
(a) The Company shall not, and shall not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease or exchange of any property or the rendering of any service) with, or for the benefit of, any Affiliate of the Company (each an “ Affiliate Transaction ”), unless the terms of such Affiliate Transaction are no less favorable than those that could reasonably be expected to be obtained in a comparable transaction at such time on an arm’s-length basis from a Person that is not an Affiliate of the Company;
 
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(b) The provisions of Section 3.18(a) above shall not apply to:
 
 	(i)	Affiliate Transactions with or among the Company and any Restricted Subsidiary or between or among Restricted Subsidiaries;	
 
 	(ii)	reasonable fees and compensation paid to, and any indemnity provided on behalf of, officers, directors, employees, consultants or agents of the Company or any Restricted Subsidiary as determined in good faith by the Company’s Board of Directors or, to the extent consistent with past practice, senior management;	
 
 	(iii)	Affiliate Transactions undertaken pursuant to any contractual obligations or rights in existence on the Issue Date (as in effect on the Issue Date with modifications, extensions and replacements thereof not materially adverse to the Company and its Restricted Subsidiaries) as determined in good faith by the Company’s senior management;	
 
 	(iv)	any Restricted Payments in compliance with Section 3.11;	
 
 	(v)	payments and issuances of Qualified Capital Stock to any officers, directors and employees of the Company or any Restricted Subsidiary pursuant to any management equity plan or stock option plan or any other stock subscription or shareholder agreement, and any employment agreements, stock option plans or other compensatory arrangements (and any successor plans thereto) and any supplemental executive retirement benefit plans or arrangements with any such officers, directors or employees that are, in each case, approved in good faith by the Board of Directors or, to the extent consistent with past practice, senior management of the Company;	
 
 	(vi)	loans and advances to officers, directors and employees of the Company or any Restricted Subsidiary for travel, entertainment, moving and other relocation expenses, in each case made in the ordinary course of business in amounts consistent with the past practice of the Company or such Restricted Subsidiary; and	
 
 	(vii)	loans made by the Company or any Restricted Subsidiary to employees or directors in an aggregate amount not to exceed U.S.$15 million (or its equivalent in another currency) at any time outstanding.	
Section 3.19 Conduct of Business. The Company and its Restricted Subsidiaries shall not engage in any business other than a Permitted Business.
 
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Section 3.20 Reports to Holders.
(a) Notwithstanding that the Company may not be subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, so long as any Notes remain outstanding, the Company shall:
 
 	(i)	provide the Trustee and the Holders with:	
 
 	(A)	annual reports on Form 20-F (or any successor form) containing the information required to be contained therein (or such successor form) within the time period required under the rules of the Commission for the filing of Form 20-F (or any successor form) by “foreign private issuers” (as defined in Rule 3b-4 of the Exchange Act (or any successor rule));	
 
 	(B)	reports on Form 6-K (or any successor form) including, whether or not required, unaudited quarterly financial statements (which shall include at least a balance sheet, income statement and cash flow statement) including a discussion of financial condition and results of operations of the Company in accordance with past practice, within 45 days after the end of each of the first three fiscal quarters of each fiscal year;	
 
 	(C)	such other reports on Form 6-K (or any successor form) promptly from time to time after the occurrence of an event that would be required to be reported on a Form 6-K (or any successor form); and	
 
 	(ii)	file with the Commission, to the extent permitted, the information, documents and reports referred to in clause (i) within the periods specified for such filings under the Exchange Act (whether or not applicable to the Company).	
(b) In addition, at any time when the Company is not subject to or is not current in its reporting obligations under clause (ii) of  Section 3.20(a) , the Company shall make available, upon request, to any Holder and any prospective purchaser of Notes the information required pursuant to Rule 144A(d)(4) under the Securities Act.
(c) Notwithstanding anything in this Indenture to the contrary, the Company shall not be deemed to have failed to comply with any of its obligations hereunder for purposes of clause (iv) of  Section 6.1(a)  or for any other purpose hereunder until 75 days after the date any report hereunder is due.
(d) Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
Section 3.21 Payment of Additional Amounts.
(a) All payments made by the Issuer or the Note Guarantors under, or with respect to, the Notes shall be made free and clear of, and without withholding or deduction for or on account of any present or future tax, duty, levy, impost, assessment or other governmental charge (including penalties, interest and other liabilities related thereto) (collectively, “ Taxes ”)
 
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imposed or levied by or on behalf of the United States, Mexico, Spain, the Netherlands, France, the United Kingdom, Switzerland or, in the event that the Issuer appoints additional paying agents, by the jurisdictions of such additional paying agents (a “ Taxing Jurisdiction ”), unless the Issuer or such Note Guarantor, as the case may be, is required to withhold or deduct Taxes by law or by the official interpretation or administration thereof.
(b) If the Issuer or any Note Guarantor is so required to withhold or deduct any amount for, or on account of, such Taxes from any payment made under or with respect to the Notes, the Issuer or such Note Guarantor, as the case may be, shall pay such additional amounts (“ Additional Amounts ”) as may be necessary so that the net amount received by each Holder (including Additional Amounts) after such withholding or deduction shall not be less than the amount such Holder would have received if such Taxes had not been required to be withheld or deducted;  provided, however , that the foregoing obligation to pay Additional Amounts does not apply to:
 
 	(i)	any Taxes imposed solely because at any time there is or was a connection between the Holder and a Taxing Jurisdiction (other than the mere purchase of the Notes, or receipt of a payment or the ownership or holding of a Note),	
 
 	(ii)	any estate, inheritance, gift, sales, transfer, personal property or similar Tax imposed with respect to the Notes,	
 
 	(iii)	any Taxes imposed solely because the Holder or any other person fails to comply with any certification, identification or other reporting requirement concerning the nationality, residence, identity or connection with a Taxing Jurisdiction of the Holder or any beneficial owner of the Note if compliance is required by the applicable law of the Taxing Jurisdiction as a precondition to exemption from, or reduction in the rate of, the tax, assessment or other governmental charge, and the Issuer has given the Holders at least 30 days’ notice that Holders shall be required to provide such information and identification,	
 
 	(iv)	any Taxes payable otherwise than by deduction or withholding from payments on the Notes,	
 
 	(v)	any Taxes imposed on a payment to or for the benefit of an individual pursuant to European Council Directive 2003/48/EC or any other directive implementing the conclusions of the ECOFIN Council meeting of November 26-27, 2000 or any law implementing or complying with, or introduced in order to conform to, such directives,	
 
 	(vi)	any Taxes that would have been avoided by presenting for payment (where presentation is required) the relevant Note to another Paying Agent,	
 
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 	(vii)	any Taxes with respect to such Note presented for payment more than 30 days after the date on which the payment became due and payable or the date on which payment thereof is duly provided for and notice thereof given to Holders, whichever occurs later, except to the extent that the Holders of such Note would have been entitled to such Additional Amounts on presenting such Note for payment on any date during such 30 day period, or	
 
 	(viii)	any payment on the Note to a Holder that is a fiduciary or partnership or a person other than the sole beneficial owner of any such payment, to the extent that a beneficiary or settlor with respect to such fiduciary, a member of such a partnership or the beneficial owner of the payment would not have been entitled to the Additional Amounts had the beneficiary, settlor, member or beneficial owner been the Holder of the Note.	
(c) The obligations in Section 3.21(a) and Section 3.21(b) shall survive any termination or discharge of this Indenture and shall apply mutatis mutandis to any Taxing Jurisdiction with respect to any successor to the Issuer or any Note Guarantor, as the case may be. The Issuer or such Note Guarantor, as applicable, shall (i) make such withholding or deduction and (ii) remit the full amount deducted or withheld to the relevant Taxing Jurisdiction in accordance with applicable law. The Issuer or such Note Guarantor, as applicable, shall use all reasonable efforts to obtain certified copies of tax receipts evidencing the payment of any Taxes so deducted or withheld from each Taxing Jurisdiction imposing such Taxes and shall furnish such certified copies to the Trustee within 30 days after the date the payment of any Taxes so deducted or so withheld is due pursuant to applicable law or, if such tax receipts are not reasonably available to the Issuer or such Note Guarantor, as applicable, furnish such other documentation that provides reasonable evidence of such payment by the Issuer or such Note Guarantor, as applicable.
(d) The exception to the Issuer’s obligations to pay Additional Amounts pursuant to clause (iii) of Section 3.21(b)  will not apply if the provision of information, documentation or other evidence described in such clause would be materially more onerous, in form, in procedure or in the substance of information disclosed, to a Holder or beneficial owner of a Note than comparable information or other reporting requirements imposed under U.S. tax law, regulation (including proposed regulations) and administrative practice
(e) Any reference in this Indenture, any supplemental indenture or the Notes to principal, premium, interest or any other amount payable in respect of the Notes by the Issuer shall be deemed also to refer to any Additional Amount that may be payable with respect to that amount under the obligations referred to in this subsection.
(f) In the event that Additional Amounts actually paid with respect to the Notes pursuant to this Section 3.21 are based on rates of deduction or withholding of withholding taxes in excess of the appropriate rate applicable to the Holder of such Notes, and as a result thereof such Holder is entitled to make a claim for a refund or credit of such excess from the authority imposing such withholding tax, then such Holder shall, by accepting such Notes, and
 
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without any further action, be deemed to have assigned and transferred all right, title and interest to any such claim for a refund or credit of such excess to the Issuer. However, by making such assignment, the Holder makes no representation or warranty that the Issuer shall be entitled to receive such claim for a refund or credit and incurs no other obligation with respect thereto.
Section 3.22 Suspension of Covenants.
(a) During any period of time that the Notes do not have Investment Grade Ratings from two of the Rating Agencies and (i) the Consolidated Leverage Ratio of the Company is less than 3.5:1 and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Partial Covenant Suspension Event”), the Company and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under Sections  3.12 ,  3.13 ,  3.14(b) ,  3.15 ,  3.18 ,  3.19 ,  4.1(a)(ii)  and  4.1(b)(ii)  (collectively, the “ Partial Suspended Covenants ”).
(b) During any period of time that (i) the Notes have Investment Grade Ratings from two of the Rating Agencies and (ii) no Default or Event of Default has occurred and is continuing (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “ Covenant Suspension Event ”), the Company and its Restricted Subsidiaries shall not be subject to the provisions of this Indenture described under  Sections 3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14(b) , 3.15 ,  3.16 ,  3.18 ,  3.19 ,  4.1(a)(ii)  and  4.1(b)(ii)  (collectively, the “ Suspended Covenants ”).
(c) In addition, (x) no Subsidiary that is a Restricted Subsidiary on the date of the occurrence of a Partial Covenant Suspension Event (the “ Partial Covenant Suspension Date ”) or a Covenant Suspension Event (the “ Suspension Date ”) may be redesignated as an Unrestricted Subsidiary during the Partial Suspension Period or the Suspension Period, as applicable and (y) each Additional Note Guarantor shall be released from its obligation to guarantee the Notes on the date of a Partial Covenant Suspension Event or a Covenant Suspension Event, as the case may be.
(d) The Additional Note Guarantors shall be released from their obligation to guarantee the Notes upon the occurrence of a Partial Covenant Suspension Event or a Covenant Suspension Event;  provided , that upon the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, the guarantee of the Notes by the Additional Note Guarantors shall be reinstated in accordance with and subject to the conditions in  Section 3.22(e) .
(e) In the event that the Company and its Restricted Subsidiaries are not subject to the Partial Suspended Covenants or the Suspended Covenants, as the case may be, for any period of time as a result of the foregoing, and on any subsequent date (in the case of Partial Suspended Covenants, such subsequent date being the “ Partial Covenant Reversion Date ” and, in the case of Suspended Covenants, such subsequent date being the “ Reversion Date ”) (i) the Consolidated Leverage Ratio of the Company is not less than 3.5:1 during the applicable Partial Suspension Period or (ii) the Notes do not have Investment Grade Ratings from at least two of the Rating Agencies during the applicable Suspension Period, then in each case in clauses (i) and (ii), the Company and its Restricted Subsidiaries will thereafter again be subject to the Partial
 
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Suspended Covenants or the Suspended Covenants, as applicable, and the Notes will again be guaranteed by the Additional Note Guarantors (unless, solely with respect to any Additional Note Guarantor, the conditions for release as described under Section 10.2  are otherwise satisfied during the Partial Suspension Period or the Suspension Period, as applicable). The Issuer shall cause such Additional Note Guarantor to promptly execute and deliver to the Trustee a supplemental indenture hereto in form and substance reasonably satisfactory to the Trustee in accordance with the provisions of  Article IX , evidencing that such Additional Note Guarantor’s guarantee on substantially the terms set forth in  Article X . The period of time between the Partial Covenant Suspension Date and the Partial Covenant Reversion Date is referred to as the “ Partial Suspension Period ” and the period of time between the Suspension Date and the Reversion Date is referred to as the “ Suspension Period .” Notwithstanding that the Partial Suspended Covenants, the Suspended Covenants and the guarantees by the Additional Note Guarantors may be reinstated, no Default or Event of Default will be deemed to have occurred as a result of a failure to comply with the Partial Suspended Covenants during the Partial Suspension Period or the Suspended Covenants during the Suspension Period, as the case may be (or upon termination of the applicable Partial Suspension Period or the Suspension Period or after that time based solely on events that occurred during the applicable Partial Suspension Period or the Suspension Period, as the case may be).
(f) On the Reversion Date, all Indebtedness Incurred during the Suspension Period shall be classified to have been Incurred pursuant to  Section 3.9(a)  or  Section 3.9(b)  (to the extent such Indebtedness would be permitted to be Incurred thereunder as of the Reversion Date and after giving effect to Indebtedness Incurred prior to the Suspension Period and outstanding on the Reversion Date). To the extent such Indebtedness would not be so permitted to be Incurred pursuant to Section 3.9(a)  or  3.9(b) , such Indebtedness shall be deemed to have been outstanding on the Issue Date, so that it is classified as permitted under clause (iii) of  Section 3.9(b) . Calculations made after the Reversion Date of the amount available to be made as Restricted Payments under  Section 3.11  shall be made as though  Section 3.11  had been in effect since the Issue Date and throughout the Suspension Period. The Issuer will give the Trustee written notice of any occurrence of a Reversion Date not later than five (5) Business Days after such Reversion Date. After any such notice of the occurrence of a Reversion Date, the Trustee shall assume the Suspended Covenants apply and are in full force and effect. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under  Section 3.11(a) .
(g) The Issuer will give the Trustee written notice of any Partial Covenant Suspension Event or any Covenant Suspension Event and in any case no later than five (5) Business Days after such Partial Covenant Suspension Event or Covenant Suspension Event has occurred. In the absence of such notice, the Trustee shall assume that the Partial Suspended Covenants or the Suspended Covenants, as applicable, apply and are in full force and effect.
(h) For purposes of this Section 3.22 only, “Consolidated Leverage Ratio” and all associated definitions shall have the meaning set forth in  Exhibit E  hereto.
 
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ARTICLE IV
SUCCESSOR COMPANY
Section 4.1 Merger, Consolidation and Sale of Assets.
(a) The Issuer shall not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Issuer is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Issuer’s properties and assets (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Issuer shall be the surviving or continuing corporation, or	
 
 	(B)	the Person (if other than the Issuer) formed by such consolidation or into which the Issuer is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries) substantially as an entirety (the “ Successor Issuer ”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of Mexico, the United States of America, any State thereof or the District of Columbia, Canada, France, Belgium, Germany, Italy, Luxembourg, the Netherlands, Portugal, Spain, Switzerland or the United Kingdom, or any political subdivision thereof (the “ Permitted Merger Jurisdictions ”); and	
 
 	(2)	shall expressly assume, by a supplemental indenture (in form and substance satisfactory to the Trustee), executed and delivered to the Trustee, the due and punctual payment of the principal of, and premium, if any, and interest on all of the Notes and the performance and observance of every covenant of the Notes and this Indenture on the part of the Issuer to be performed or observed and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction):	
 
 	(A)	the Company shall have a Consolidated Fixed Charge Coverage Ratio that shall be not less than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; or	
 
 	(B)	the Company shall be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a);	
 
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 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(a)  (including, without limitation, giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing;	
 
 	(iv)	in the case of a transaction resulting in a Successor Issuer, each Note Guarantor has confirmed by supplemental indenture that its Note Guarantee shall apply for Obligations of the Successor Issuer in respect of this Indenture and the Notes; and	
 
 	(v)	if the Issuer merges with a Person, or the Successor Issuer is, organized under the laws of any of the Permitted Merger Jurisdictions, the Issuer or the Successor Issuer shall have delivered to the Trustee an Opinion of Counsel stating that, as applicable:	
 
 	(A)	the Holders of the Notes shall not recognize income, gain or loss for the purposes of the income tax laws of the United States or the applicable Permitted Merger Jurisdiction as a result of the transaction and shall be taxed in the Holder’s home jurisdiction in the same manner and on the same amounts (assuming solely for this purpose that no Additional Amounts are required to be paid on the Notes) and at the same times as would have been the case if the transaction had not occurred;	
 
 	(B)	any payment of interest or principal under or relating to the Notes or any Guarantees shall be paid in compliance with any requirements under  Section 3.21 ; and	
 
 	(C)	no other taxes on income, including capital gains, shall be payable by Holders of the Notes under the laws of the United States or the applicable Permitted Merger Jurisdiction relating to the acquisition, ownership or disposition of the Notes, including the receipt of interest or principal thereon;  provided , that the Holder does not use or hold, and is not deemed to use or hold the Notes in carrying on a business in the United States or the applicable Permitted Merger Jurisdiction.	
 
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The provisions of clauses (ii) and (iii) of this Section 4.1(a) will not apply to:
 
 	(x)	any transfer of the properties or assets of the Company or a Restricted Subsidiary to the Issuer;	
 
 	(y)	any merger of the Company or a Restricted Subsidiary into the Issuer; or	
 
 	(z)	any merger of the Issuer into a Note Guarantor or a Wholly Owned Subsidiary of the Company.	
For purposes of this Section 4.1, the transfer (by lease, assignment, sale or otherwise, in a single transaction or series of transactions) of all or substantially all of the properties or assets of one or more Restricted Subsidiaries of the Issuer, the Capital Stock of which constitutes all or substantially all of the properties and assets of the Issuer (determined on a consolidated basis for the Issuer and its Restricted Subsidiaries), shall be deemed to be the transfer of all or substantially all of the properties and assets of the Issuer.
The Successor Issuer will succeed to, and be substituted for, the Issuer under this Indenture and the Notes, as applicable. For the avoidance of doubt, compliance with this  Section 4.1  will not affect the obligations of the Issuer (including a Successor Issuer, if applicable) under  Section 3.8  if applicable.
(b) The Company will not, in a single transaction or series of related transactions, consolidate or merge with or into any Person (whether or not the Company is the surviving or continuing Person), or sell, assign, transfer, lease, convey or otherwise dispose of all or substantially all of the Company’s properties and assets (determined on a consolidated basis for the Company and its Restricted Subsidiaries), to any Person unless:
 
 	(i)	either:	
 
 	(A)	the Company shall be the surviving or continuing corporation, or	
 
 	(B)	the Person (if other than the Company) formed by such consolidation or into which the Company is merged or the Person which acquires by sale, assignment, transfer, lease, conveyance or other disposition the properties and assets of the Company (determined on a consolidated basis for the Company and its Restricted Subsidiaries) substantially as an entirety (the “Successor Company”):	
 
 	(1)	shall be a Person organized and validly existing under the laws of a Permitted Merger Jurisdictions; and	
 
 	(2)	shall expressly assume all of the Obligations of the Company under this Indenture, the Notes and the Company’s Note Guarantee by executing a supplemental indenture and provide the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance this Indenture;	
 
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 	(ii)	immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(b)  (including giving effect on a pro forma basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged in connection with or in respect of such transaction), the Company or such Successor Company, as the case may be:	
 
 	(A)	will have a Consolidated Fixed Charge Coverage Ratio that will be not less than the Consolidated Fixed Charge Coverage Ratio of the Company immediately prior to such transaction; or	
 
 	(B)	will be able to Incur at least U.S.$1.00 of additional Indebtedness pursuant to Section 3.9(a); and	
 
 	(iii)	immediately before and immediately after giving effect to such transaction and the assumption contemplated by clause (i)(B)(2) of this  Section 4.1(b)  (including, without limitation, giving effect on a  pro forma  basis to any Indebtedness, including any Acquired Indebtedness, Incurred or anticipated to be Incurred or discharged and any Lien granted in connection with or in respect of the transaction), no Default or Event of Default shall have occurred or be continuing.	
The provisions of clauses (ii) and (iii) of this Section 4.1(b) shall not apply to:
 
 	(x)	any transfer of the properties or assets of a Restricted Subsidiary to the Company or a Note Guarantor;	
 
 	(y)	any merger of a Restricted Subsidiary into the Company or a Note Guarantor; or	
 
 	(z)	any merger of the Company into another Note Guarantor or a Wholly Owned Subsidiary of the Company.	
The Successor Company shall succeed to, and be substituted for, the Company under this Indenture, the Notes and/or the Note Guarantee, as applicable.
(c) Each Note Guarantor other than the Company shall not, and the Company shall not cause or permit any such Note Guarantor to, consolidate with or merge into, or sell or dispose of all or substantially all of its assets to, any Person (other than the Issuer) that is not a Note Guarantor unless:
 
 	(i)	such Person (if such Person is the surviving entity) (the “Successor Note Guarantor”) assumes all of the obligations of such Note Guarantor in respect of its Note Guarantee by executing a supplemental indenture and providing the Trustee with an Officer’s Certificate and Opinion of Counsel, and such transaction is otherwise in compliance with this Indenture;	
 
 	(ii)	such Note Guarantee is to be released as provided under Section 10.2(b); or	
 
 	(iii)	such sale or other disposition of substantially all of such Note Guarantor’s assets is made in accordance with  Section 3.12 .	
 
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Subject to certain limitations described in this Indenture, the Successor Note Guarantor will succeed to, and be substituted for, such Note Guarantor under this Indenture and such Note Guarantor’s Note Guarantee. The provisions of clauses (i), (ii) and (iii) of this  Section 4.1(c)  will not apply to:
 
 	(x)	any transfer of the properties or assets of a Note Guarantor to the Issuer or another Note Guarantor;	
 
 	(y)	any merger of a Note Guarantor into the Issuer or another Note Guarantor; or	
 
 	(z)	any merger of a Note Guarantor into a Wholly Owned Subsidiary of the Company.	
ARTICLE V
OPTIONAL REDEMPTION OF NOTES
Section 5.1 Optional Redemption. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, subject to the conditions and at the redemption prices specified in the Form of Note in  Exhibit A  hereto.
Section 5.2 [Reserved].
Section 5.3 Notices to Trustee. If the Issuer elects to redeem the Notes pursuant to the optional redemption provisions of Section 5.1  hereof, it shall furnish to the Trustee, at least 45 days but not more than 60 days before the Redemption Date, an Officer’s Certificate setting forth: (a) the Redemption Date, (b) the principal amount of Notes to be redeemed, (c) the ISIN numbers of the Notes, (d) the redemption price and (e) the amount of interest to be paid with respect to each multiple of €1,000 principal amount of Notes to be redeemed.
Section 5.4 Notice of Redemption.
(a) The Issuer shall prepare and mail or cause to be mailed a notice of redemption, in the manner provided for in Section 12.1 , not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Notes to be redeemed.
 
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(b) All notices of redemption shall state:
 
 	(i)	the Redemption Date,	
 
 	(ii)	the redemption price and the amount of any accrued interest payable as provided in Section 5.7,	
 
 	(iii)	whether or not the Issuer is redeeming all Outstanding Notes,	
 
 	(iv)	if the Issuer is not redeeming all Outstanding Notes, the aggregate principal amount of Notes that the Issuer is redeeming and the aggregate principal amount of Notes that will be Outstanding after the partial redemption, as well as the identification of the particular Notes, or portions of the particular Notes, that the Issuer is redeeming,	
 
 	(v)	if the Issuer is redeeming only part of a Note, the notice that relates to that Note shall state that on and after the Redemption Date, upon surrender of that Note, the Holder will receive, without charge, a new Note or Notes of authorized denominations for the principal amount of the Note remaining unredeemed,	
 
 	(vi)	that on the Redemption Date the redemption price and any accrued interest payable to the Redemption Date as provided in  Section 5.7  will become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Issuer defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, will cease to accrue on and after the Redemption Date,	
 
 	(vii)	the place or places where a Holder must surrender Notes for payment of the redemption price and any accrued interest payable on the Redemption Date, and	
 
 	(viii)	the ISIN number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such ISIN number.	
(c) At the Issuer’s request, the Trustee shall give the notice of redemption in the Issuer’s names and at its expense; provided, however, that the Issuer shall have delivered to the Trustee, at least 45 days prior to the Redemption Date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding  Section 5.4(b) .
Section 5.5 Selection of Notes to Be Redeemed in Part.
(a) If the Issuer is not redeeming all Outstanding Notes, the Trustee shall select the Notes to be redeemed in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not then listed on a
 
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national securities exchange, on a pro rata basis, by lot or by any other method as the Trustee shall deem fair and appropriate; provided, however, that if a partial redemption is made with the proceeds of an Equity Offering, selection of the Notes, or portions of the Notes, for redemption shall be made by the Trustee only on a pro rata basis, or on as nearly a pro rata basis as is practicable (subject to the procedures of Euroclear or Clearstream), unless the method is otherwise prohibited. The Trustee shall make the selection from the then Outstanding Notes not previously called for redemption. The Trustee shall promptly notify the Issuer in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount of the Notes to be redeemed. In the event of a partial redemption by lot, the Trustee shall select the particular Notes to be redeemed not less than 30 nor more than 60 days prior to the relevant Redemption Date from the then Outstanding Notes not previously called-for redemption. No Notes of €100,000 principal amount or less shall be redeemed in part. The Trustee may select for redemption portions with minimum denominations of €100,000 and in integral multiples of €1,000 in excess thereof.
(b) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of that Note which has been or is to be redeemed.
Section 5.6 Deposit of Redemption Price. On or prior to 10:00 a.m. London time, on the Business Day prior to the Redemption Date, the Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer or a Note Guarantor is acting as the Paying Agent, segregate and hold in trust as provided in  Section 2.4 ) an amount of money in immediately available funds sufficient to pay the redemption price of, and accrued interest on, all the Notes that the Issuer is redeeming on that date.
Section 5.7 Notes Payable on Redemption Date. If the Issuer, or the Trustee on behalf of the Issuer, gives notice of redemption in accordance with this  Article V , the Notes, or the portions of Notes, called-for redemption, shall, on the Redemption Date, become due and payable at the redemption price specified in the notice (together with accrued interest, if any, to the Redemption Date), and from and after the Redemption Date (unless the Issuer shall default in the payment of the redemption price and accrued interest) the Notes or the portions of Notes shall cease to bear interest. Upon surrender of any Note for redemption in accordance with the notice, the Issuer shall pay the Notes at the redemption price, together with accrued interest, if any, to the Redemption Date (subject to the rights of Holders of record on the relevant record date to receive interest due on the relevant Interest Payment Date). If the Issuer shall fail to pay any Note called-for redemption upon its surrender for redemption, the principal shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
Section 5.8 Unredeemed Portions of Partially Redeemed Note. Upon surrender of a Note that is to be redeemed in part, the Issuer shall execute, and the Trustee shall authenticate and make available for delivery to the Holder of the Note, at the expense of the Issuer, a new Note or Notes, of any authorized denomination as requested by the Holder, in an aggregate principal amount equal to, and in exchange for, the unredeemed portion of the principal of the Note surrendered,  provided , that each new Note will be in a principal amount of €100,000 and in integral multiples of €1,000 in excess thereof.
 
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ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default.
(a) Each of the following is an “Event of Default”:
 
 	(i)	default in the payment when due of the principal of or premium, if any, on any Notes, including the failure to make a required payment to purchase Notes tendered pursuant to an optional redemption, a Change of Control Offer or an Asset Sale Offer;	
 
 	(ii)	default for 30 days or more in the payment when due of interest or Additional Amounts on any Notes;	
 
 	(iii)	the failure to perform or comply with any of the provisions described under Article IV;	
 
 	(iv)	the failure by the Company or any Restricted Subsidiary to comply with, or in the case of non-guarantor Restricted Subsidiaries, to perform according to, any other covenant or agreement contained in this Indenture or in the Notes for 45 days or more after written notice to the Company from the Trustee or the Holders of at least 25% in aggregate principal amount of the then Outstanding Notes;	
 
 	(v)	default by the Company or any Restricted Subsidiary under any Indebtedness which:	
 
 	(A)	is caused by a failure to pay principal of, or premium, if any, when due or interest on such Indebtedness prior to the later of the expiration of any applicable grace period provided in such Indebtedness on the date of such default or five (5) days past when due; or	
 
 	(B)	results in the acceleration of such Indebtedness prior to its stated maturity;	
and the principal or accreted amount of Indebtedness covered by clauses (v)(A) or (v)(B) of this Section 6.1(a)  at the relevant time, aggregates U.S.$50 million or more;
 
 	(vi)	failure by the Company or any of its Restricted Subsidiaries to pay one or more final judgments against any of them, aggregating U.S.$100 million or more, which judgment(s) are not paid, discharged or stayed for a period of 60 days or more;	
 
 	(vii)	a Bankruptcy Event of Default; or	
 
 	(viii)	except as permitted herein, any Note Guarantee is held to be unenforceable or invalid in a judicial proceeding or ceases for any reason to be in full force and effect or any Note Guarantor, or any Person acting on behalf of any Note Guarantor, denies or disaffirms such Note Guarantor’s obligations under its Note Guarantee.	
 
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The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
(b) The Issuer shall deliver within 30 days to the Trustee written notice of any event which would constitute a Default or Event of Default, their status and what action the Issuer is taking or proposes to take in respect thereof.
Section 6.2 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in clause (vii) of Section 6.1(a) above with respect to the Issuer or the Company) shall occur and be continuing, the Trustee or the Holders of at least 25% in principal amount of then Outstanding Notes may declare the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Company and the Trustee specifying the Event of Default and that it is a “notice of acceleration.” If an Event of Default specified in clause (vii) of  Section 6.1(a)  above occurs with respect to the Company, then the unpaid principal of (and premium, if any) and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b) At any time after a declaration of acceleration with respect to the Notes as described in the preceding paragraph, the Holders of a majority in principal amount of the Notes may rescind and cancel such declaration and its consequences:
 
 	(i)	if the rescission would not conflict with any judgment or decree;	
 
 	(ii)	if all existing Events of Default have been cured or waived, except nonpayment of principal or interest that has become due solely because of the acceleration;	
 
 	(iii)	to the extent the payment of such interest is lawful, interest on overdue installments of interest and overdue principal, which has become due otherwise than by such declaration of acceleration, has been paid; and	
 
 	(iv)	if the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances.	
 
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Section 6.3 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture.
(b) The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. Subject to Section 6.2, the Holders of a majority in principal amount of the then Outstanding Notes may waive any existing Default or Event of Default, and its consequences, except a default in the payment of the principal of, premium, if any, or interest on any Notes.
Section 6.5 Control by Majority. The Holders of a majority in principal amount of the then Outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or of exercising any trust or power conferred on the Trustee. Subject to  Section 7.1  and  Section 7.2 , however, the Trustee may refuse to follow any direction that conflicts with law or this Indenture;  provided, however , that the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction.
Section 6.6 Limitation on Suits.
(a) No Holder of any Notes shall have any right to institute any proceeding with respect hereto or for any remedy hereunder, unless:
 
 	(i)	such Holder gives to the Trustee written notice of a continuing Event of Default;	
 
 	(ii)	Holders of at least 25% in principal amount of the then Outstanding Notes make a written request to pursue the remedy;	
 
 	(iii)	such Holders of the Notes provide to the Trustee indemnity satisfactory to it;	
 
 	(iv)	the Trustee does not comply within 60 days; and	
 
 	(v)	during such 60 day period the Holders of a majority in principal amount of the then Outstanding Notes do not give the Trustee a written direction which, in the opinion of the Trustee, is inconsistent with the request;	
 
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provided, that a Holder of a Note may institute suit for enforcement of payment of the principal of and premium, if any, or interest on such Note on or after the respective due dates expressed in such Note.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other provision of this Indenture (including, without limitation,  Section 6.6 ), the right of any Holder to receive payment of principal or interest on the Notes held by such Holder, on or after the respective due dates, Redemption Dates or repurchase date expressed in this Indenture or the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default specified in clause (i) and (ii) of Section 6.1(a) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer and each Note Guarantor for the whole amount then due and owing (together with applicable interest on any overdue principal and, to the extent lawful, interest on overdue interest) and the amounts provided for in  Section 7.7 .
Section 6.9 Trustee May File Proofs of Claim, etc.
(a) The Trustee may (irrespective of whether the principal of the Notes is then due):
 
 	(i)	file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee and the Holders under this Indenture and the Notes allowed in any bankruptcy, insolvency, liquidation or other judicial proceedings relative to the Issuer, any Note Guarantor or any Subsidiary of the Issuer or their respective creditors or properties; and	
 
 	(ii)	collect and receive any monies or other property payable or deliverable in respect of any such claims and distribute them in accordance with this Indenture.	
Any receiver, trustee, liquidator, sequestrator (or other similar official) in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, taxes, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due to the Trustee pursuant to Section 7.7 .
(b) Nothing in this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money or property pursuant to this Article VI, it shall pay out the money or property in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
 
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SECOND: if the Holders proceed against the Issuer directly without the Trustee in accordance with this Indenture, to Holders for their collection costs;
THIRD: to Holders for amounts due and unpaid on the Notes for principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer or, to the extent the Trustee collects any amount pursuant to Article X hereof from any Note Guarantor, to such Note Guarantor, or to such party as a court of competent jurisdiction shall direct.
The Trustee may, upon notice to the Company and the Issuer, fix a record date and payment date for any payment to Holders pursuant to this  Section 6.10 .
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This  Section 6.11  does not apply to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to  Section 6.7  or a suit by Holders of more than 10% in principal amount of Outstanding Notes.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of Default:
 
 	(i)	the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Trustee; and	
 
 	(ii)	in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions that by any	
 
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 	provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such certificates and opinions to determine whether or not they conform to the requirements of this Indenture.	
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that:
 
 	(i)	this clause (c) does not limit the effect of clause (b) of this Section 7.1;	
 
 	(ii)	the Trustee shall not be liable for any error of judgment made in good faith by a Trust Officer unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and	
 
 	(iii)	the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to  Section 6.2 ,  6.4  or  6.5 .	
(d) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Issuer.
(e) Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(f) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(g) Every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this  Article VII .
(h) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Issuer shall be sufficient if signed by an Officer of the Issuer.
(i) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders unless such Holders shall have offered to the Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction.
 
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Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may rely on any document reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting at the direction of the Issuer or any Note Guarantor, it may require an Officer’s Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on an Officer’s Certificate or Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights or powers; provided, however, that the Trustee’s conduct does not constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the advice or opinion of counsel with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect to any action taken, omitted or suffered by it hereunder in good faith and in accordance with the advice or opinion of such counsel.
(f) If the Trustee shall determine, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney.
(g) The Trustee shall not be deemed to have notice of any Default or Event of Default unless a Trust Officer of the Trustee has received written notice at the Corporate Trust Office of any event which is in fact such a default, and such notice references the Notes and this Indenture.
(h) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder.
(i) The Trustee may request that the Issuer deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(j) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
 
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(k) In no event shall the Trustee be liable, directly or indirectly, for any special, indirect, punitive or consequential damages, even if the Trustee has been advised of the possibility of such damages.
(l) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots, interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use its best efforts to resume performance as soon as practicable under the circumstances.
(m) The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer or the Company and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of Notes and may otherwise deal with the Issuer, the Note Guarantors or any Affiliate of the Issuer with the same rights it would have if it were not Trustee. Any Paying Agent, Transfer Agent, Registrar or co-Registrar may do the same with like rights. However, the Trustee must comply with  Section 7.10 .
Section 7.4 Trustee’s Disclaimer. The Trustee shall not be responsible for and makes no representation as to the validity or adequacy of this Indenture or the Notes, it shall not be accountable for the Issuer’s use of the proceeds from the Notes, and it shall not be responsible for any statement of the Issuer in this Indenture or in any document issued in connection with the sale of the Notes or in the Notes other than the Trustee’s certificate of authentication.
Section 7.5 Notice of Defaults. If a Default or Event of Default occurs and is continuing and if a Trust Officer has actual knowledge thereof, the Trustee shall mail to each Holder notice of the Default or Event of Default within 90 days after the occurrence thereof. Except in the case of a Default or Event of Default in payment of principal or interest on any Note (including payments pursuant to the optional redemption or required repurchase provisions of such Note, if any), the Trustee may withhold the notice if and so long as a committee of its Trust Officers in good faith determines that withholding the notice is in the interests of the Holders.
Section 7.6 [Reserved].
Section 7.7 Compensation and Indemnity.
(a) The Issuer shall pay to the Trustee from time to time reasonable compensation for its acceptance of this Indenture and services hereunder as the Issuer and the Trustee shall from time to time agree in writing. The Trustee’s compensation shall not be
 
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limited by any law on compensation of a trustee of an express trust. The Issuer shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, costs of preparing and reviewing reports, certificates and other documents, costs of preparation and mailing of notices to Holders and reasonable costs of counsel retained by the Trustee in connection with the review, negotiation, execution and delivery of this Indenture or otherwise, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Trustee’s agents, counsel, accountants and experts.
(b) The Issuer and each Note Guarantor shall jointly and severally indemnify the Trustee against any and all loss, liability or expense (including reasonable attorneys’ fees and expenses) incurred by it without negligence, willful misconduct or bad faith on its part in connection with the acceptance and administration of this trust and the performance of its duties hereunder, including the costs and expenses of enforcing this Indenture (including this  Section 7.7 ) and of defending itself against any claims (whether asserted by any Holder, the Issuer, any Note Guarantor or otherwise). The Trustee shall notify the Issuer and each Note Guarantor promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Issuer or any Note Guarantor shall not relieve the Issuer or any Note Guarantor of its obligations hereunder. The Issuer shall defend the claim and the Trustee may have separate counsel and the Issuer shall pay the fees and expenses of such counsel; provided , that the Issuer shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of outside counsel to the Trustee, there is no conflict of interest between the Issuer and the Trustee in connection with such defense. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
(c) To secure the Issuer’s payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and interest on particular Notes. The Trustee’s right to receive payment of any amounts due under this  Section 7.7  shall not be subordinate to any other liability or Indebtedness of the Issuer.
(d) The Issuer’s obligations pursuant to this Section 7.7 shall survive the discharge of this Indenture and the resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Bankruptcy Event of Default, the expenses are intended to constitute expenses of administration under any Bankruptcy Law;  provided, however , that this shall not affect the Trustee’s rights as set forth in this  Section 7.7  or  Section 6.10 .
Section 7.8 Replacement of Trustee.
(a) The Trustee may resign at any time by so notifying the Company and the Issuer. The Holders of a majority in principal amount of the then Outstanding Notes may remove the Trustee by so notifying the Trustee and may appoint a successor Trustee reasonably acceptable to the Issuer. The Issuer shall remove the Trustee if:
 
 	(i)	the Trustee fails to comply with Section 7.10;	
 
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 	(ii)	the Trustee is adjudged bankrupt or insolvent;	
 
 	(iii)	a receiver or other public officer takes charge of the Trustee or its property; or	
 
 	(iv)	the Trustee otherwise becomes incapable of acting.	
(b) If the Trustee resigns or is removed by the Issuer or by the Holders of a majority in principal amount of the then Outstanding Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Issuer shall promptly appoint a successor Trustee.
(c) A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Holders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in  Section 7.7(c) .
(d) If a successor Trustee does not take office within 30 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the then Outstanding Notes may petition, at the Issuer’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, any Holder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this Section 7.8, the Issuer’s obligations under Section 7.7  shall continue for the benefit of the retiring Trustee.
Section 7.9 Successor Trustee by Merger.
(a) If the Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another Person, the resulting, surviving or transferee Person without any further act shall be the successor Trustee.
(b) In case at the time such successor or successors to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; and in all such cases such certificates of authentication and such delivery shall be valid for purposes of this Indenture.
 
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Section 7.10 Eligibility; Disqualification. The Trustee shall at all times be a Trustee hereunder that is a Person organized and doing business under the laws of the United States or of any state thereof that is authorized under such laws to exercise corporate trustee power, that is subject to supervision or examination by federal or state authorities and that has, together with its parent, a combined capital and surplus of at least U.S.$50,000,000 as set forth in its most recent published annual report of condition.
Section 7.11 [Reserved].
Section 7.12 [Reserved].
Section 7.13 Authorization and Instruction of the Trustee With Respect to the Collateral. Each Holder and the Issuer authorize and instruct the Trustee (a) to enter into (or cause an agent or grant such powers of attorney to enter into), on its own behalf and on behalf of the Holders of Notes, such documents (the “ Security Documents ”) as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) in order to create and maintain the security interest of the Trustee and the Holders of Notes in the Collateral as may from time to time be provided to equally and ratably secure the Notes, (b) to grant such powers of attorney and to do or cause to be done all such acts and things, on its own behalf and in the name and on behalf of the Holders of Notes, as are necessary or desirable (which shall be evidenced by a written instruction from the Issuer to the Trustee) to create and maintain the security interest of the Trustee and the Holders of Notes in such Collateral, (c) to appoint the Security Agent to serve as direct representative of the Trustee and the Holders of Notes in connection with the creation and maintenance of the security interest of the Trustee and the Holders of Notes in such Collateral, (d) to accept the security interest in the Collateral on behalf of each Holder, and (e) to grant powers in favor of an attorney to execute an accession public deed before a Spanish notary public accepting the security interest in the Collateral on behalf of the Holders of Notes. It is understood and acknowledged that, in certain circumstances, the Security Documents may be amended, modified or waived without the consent of the Trustee or the Holders of Notes. It is understood and acknowledged that the Security Agent, in addition to being appointed by and acting on behalf of the Trustee and the Holders of Notes, has also been appointed by and is acting on behalf of (and may in the future be appointed by and act on behalf of) other creditors of the Company and its Subsidiaries. The Trustee will not have the right to cause the Security Agent to foreclose on the Collateral upon the occurrence of an Event of Default in respect of the Notes. The Trustee shall at no time have any responsibility or liability for or in respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer or the Company and any other Person with respect thereto, or the perfection or priority of any security interest created in any of the Collateral or maintenance of any perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
 
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ARTICLE VIII
DEFEASANCE; DISCHARGE OF INDENTURE
Section 8.1 Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option, at any time, elect to have either Section 8.1(b) or (c) be applied to all Outstanding Notes upon compliance with the conditions set forth in  Section 8.2 .
(b) Upon the Issuer’s exercise under Section 8.1(a) of the option applicable to this clause (b), the Issuer shall, subject to the satisfaction of the conditions set forth in  Section 8.2 , be deemed to have been discharged from its obligations with respect to all Outstanding Notes on the date all of the conditions set forth in  Section 8.2  are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire Indebtedness represented by the then Outstanding Notes, which shall thereafter be deemed to be Outstanding only for the purposes of  Section 8.3  hereof and the other sections of this Indenture referred to in subclause (i) or (ii) of this clause (b), and to have satisfied all its other obligations under such Notes and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions, which shall survive until otherwise terminated or discharged hereunder:
 
 	(i)	the rights of Holders of Outstanding Notes to receive solely from the trust fund described in Section 8.3, and as more fully set forth in  Section 2.4  payments in respect of the principal of, premium, if any, and interest on such Notes when such payments are due,	
 
 	(ii)	the Issuer’s obligations with respect to such Notes under Article II and Section 3.2 hereof,	
 
 	(iii)	the rights, powers, trusts, duties and immunities of the Trustee hereunder and the Issuer’s obligations in connection therewith, and	
 
 	(iv)	this Article VIII.	
Subject to compliance with this Article VIII, the Issuer may exercise its option under this clause (b) notwithstanding the prior exercise of its option under  Section 8.1(c)  hereof.
(c) Upon the Issuer’s exercise under Section 8.1(a) hereof of the option applicable to this clause (c), the Issuer shall, subject to the satisfaction of the applicable conditions set forth in  Section 8.2 , be released from its obligations under Sections 3.4 ,  3.5 ,  3.8 ,  3.9 ,  3.11 ,  3.12 ,  3.13 ,  3.14 ,  3.15 ,  3.16 ,  3.17 ,  3.18 ,  3.19 ,  3.20 ,  3.21 ,  3.22 ,  4.1(a)  and  4.1(b)  hereof with respect to the then Outstanding Notes on and after the date the conditions set forth below are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not Outstanding for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be Outstanding for all other purposes hereunder (it being understood that such Notes shall not be
 
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deemed Outstanding for accounting purposes). For this purpose, such Covenant Defeasance means that, with respect to the then Outstanding Notes, the Issuer may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute a Default or an Event or Default under clause (iii) of  Section 6.1(a)  (solely with respect to any failure to perform under or comply with clause (ii) or (iii) of  Section 4.1(a) ), clause (iv) of  Section 6.1(a)  or clause (v) of  Section 6.1(a) hereof, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby.
Section 8.2 Conditions to Defeasance. The Company or, as applicable, the Issuer, may exercise its Legal Defeasance option or its Covenant Defeasance option only if:
(a) the Issuer has irrevocably deposited with the Trustee, in trust, for the benefit of the Holders cash in euros or European Government Obligations, in such amounts as will be sufficient without reinvestment, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, premium, if any, and interest (including Additional Amounts) on the Notes on the stated date for payment thereof or on the applicable Redemption Date, as the case may be;
(b) in the case of Legal Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer to the effect that:
 
 	(i)	the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling; or	
 
 	(ii)	since the Issue Date, there has been a change in the applicable U.S. federal income tax law,	
in either case to the effect that, and based thereon such Opinion of Counsel shall state that, the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of Covenant Defeasance, the Issuer has delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) to the effect that the Holders will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing on the date of the deposit pursuant to Section 8.2(a)  (except any Default or Event of Default resulting from the failure to comply with  Section 3.9  as a result of the borrowing of the funds required to effect such deposit);
 
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(e) the Trustee has received an Officer’s Certificate stating that such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under this Indenture or any other material agreement or instrument to which the Issuer or any of its Subsidiaries is a party or by which the Issuer or any of its Subsidiaries is bound;
(f) the Issuer has delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Issuer with the intent of preferring the Holders over any other creditors of the Issuer or any Subsidiary of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other creditors of the Issuer or others;
(g) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel from counsel reasonably acceptable to the Trustee (subject to customary exceptions and exclusions) and independent of the Issuer, each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance have been complied with; and
(h) the Issuer has delivered to the Trustee an Opinion of Counsel from counsel reasonably acceptable to the Trustee and independent of the Issuer to the effect that the trust resulting from the deposit does not constitute, or is qualified as, a regulated investment company under the Investment Company Act of 1940.
Section 8.3 Application of Trust Money. The Trustee shall hold in trust euros or European Government Obligations deposited with it pursuant to this  Article VIII . It shall apply the deposited euros or European Government Obligations through the Paying Agent and in accordance with this Indenture to the payment of principal of and interest on the Notes.
Section 8.4 Repayment to Issuer.
(a) The Trustee and the Paying Agent shall promptly turn over to the Issuer upon request any excess money or securities held by them upon payment of all the obligations under this Indenture.
(b) Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal of, premium or interest on the Notes that remains unclaimed for two years, and, thereafter, Holders entitled to the money must look to the Issuer for payment as general creditors.
Section 8.5 Indemnity for European Government Obligations. The Issuer shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against deposited European Government Obligations or the principal and interest received on such European Government Obligations.
Section 8.6 Reinstatement. If the Trustee or Paying Agent is unable to apply any euros or European Government Obligations in accordance with this  Article VIII  by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the Issuer under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this  Article VIII until such time as the Trustee or Paying Agent is permitted
 
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to apply all such euros or European Government Obligations in accordance with this Article VIII; provided, however, that, if the Issuer has made any payment of principal of, premium or interest on any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from euros or European Government Obligations held by the Trustee or Paying Agent.
Section 8.7 Satisfaction and Discharge. This Indenture will be discharged and will cease to be of further effect (except as to surviving rights of registration of transfer or exchange of the Notes, as expressly provided for in this Indenture) as to all Outstanding Notes when:
(a) either:
 
 	(i)	all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust) have been delivered to the Trustee for cancellation; or	
 
 	(ii)	all Notes not theretofore delivered to the Trustee for cancellation have become due and payable, and the Issuer has irrevocably deposited or caused to be deposited with the Trustee euros or European Government Obligations sufficient without reinvestment to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of deposit, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment;	
(b) the Issuer has paid all other sums payable under this Indenture and the Notes by it; and
(c) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture, the Notes or the Note Guarantees without notice to or consent of any Holder:
 
 	(i)	to cure any ambiguity, omission, defect or inconsistency;	
 
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 	(ii)	to comply with Article IV in respect of the assumption by a Successor Issuer of the obligations of the Issuer under the Notes and this Indenture;	
 
 	(iii)	to provide for uncertificated Notes in addition to or in place of Certificated Notes; provided, however, that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code;	
 
 	(iv)	to add guarantees with respect to the Notes or to secure the Notes;	
 
 	(v)	to add to the covenants of the Issuer or the Note Guarantors for the benefit of the Holders or to surrender any right or power herein conferred upon the Issuer or the Note Guarantors;	
 
 	(vi)	to make any change that does not, in the opinion of the Issuer, as conclusively evidenced by an Officer’s Certificate to such effect, adversely affect the rights of any Holder in any material respect;	
 
 	(vii)	to conform the text of this Indenture, the Note Guarantees or the Notes to any provision of the section “Description of Notes” in the Offering Memorandum to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture or the Notes or Note Guarantees;	
 
 	(viii)	to comply with the requirements of any applicable securities depositary;	
 
 	(ix)	to provide for the issuance of Additional Notes as permitted by Section 2.2(c) and Section 2.14, which will have terms substantially identical to the other Outstanding Notes except as specified in  Section 2.13 , or Section 2.14 , and which will be treated, together with any other Outstanding Notes, as a single issue of securities; or	
 
 	(x)	in order to effect and maintain the listing of the Notes on the Global Exchange Market of the Irish Stock Exchange.	
(b) After an amendment or supplement under this Section 9.1 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment under this  Section 9.1 .
Section 9.2 With Consent of Holders.
(a) The Issuer, the Note Guarantors and the Trustee may amend or supplement this Indenture or the Notes without notice to any Holder but with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer
 
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or exchange offer for, Notes). Subject to Section 6.4, the Holder or Holders of a majority in aggregate principal amount of the then Outstanding Notes may waive compliance by the Issuer and the Note Guarantors with any provision of this Indenture or the Notes. However, without the consent of each Holder affected, an amendment, supplement or waiver may not:
 
 	(i)	reduce the amount of Notes whose Holders must consent to an amendment, supplement or waiver;	
 
 	(ii)	reduce the rate of or change or have the effect of changing the time for payment of interest, including Defaulted Interest, on any Notes;	
 
 	(iii)	reduce the principal of or change or have the effect of changing the fixed maturity of any Notes, or change the date on which any Notes may be subject to redemption, or reduce the redemption price therefor;	
 
 	(iv)	make any Notes payable in money other than that stated in the Notes;	
 
 	(v)	make any change in the provisions of this Indenture entitling each Holder to receive payment of principal of, premium, if any, and interest on such Notes on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders of a majority in principal amount of the then Outstanding Notes to waive Defaults or Events of Default;	
 
 	(vi)	amend, change or modify in any material respect any obligations of the Issuer to make and consummate a Change of Control Offer in respect of a Change of Control that has occurred or make and consummate an Asset Sale Offer with respect to any Asset Sale that has been consummated;	
 
 	(vii)	make any change in the provisions of this Indenture described under Section 3.21 that adversely affects the rights of any Holder or amend the terms of the Notes in a way that would result in a loss of exemption from Taxes; or	
 
 	(viii)	make any change to the provisions of this Indenture or the Notes that adversely affect the ranking of the Notes.	
(b) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(c) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Issuer shall mail to Holders a notice briefly describing such amendment, supplement or waiver. The failure to give such notice to all Holders, or any defect therein, shall not impair or affect the validity of an amendment, supplement or waiver under this  Section 9.2 .
 
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(d) The Notes issued on the Issue Date, and any Additional Notes part of the same series, will be treated as a single series for all purposes under this Indenture, including with respect to waivers and amendments. For the purposes of calculating the aggregate principal amount of Notes that have consented to or voted in favor of any amendment, waiver, consent, modifications or other similar action, the Issuer (acting reasonably and in good faith) shall be entitled to select a record date as of which the principal amount of any Notes shall be calculated in such consent or voting process.
Section 9.3 [Reserved].
Section 9.4 Revocation and Effect of Consents and Waivers.
(a) A consent to an amendment, supplement or waiver by a Holder of a Note shall bind the Holder and every subsequent Holder of that Note or portion of the Note that evidences the same debt as the consenting Holder’s Note, even if notation of the consent or waiver is not made on the Note. However, any such Holder or subsequent Holder may revoke the consent or waiver as to such Holder’s Note or portion of the Note if the Trustee receives the notice of revocation before the date the amendment, supplement or waiver becomes effective. After an amendment, supplement or waiver becomes effective, it shall bind every Holder, except as otherwise provided in this  Article IX . An amendment, supplement or waiver shall become effective upon receipt by the Trustee of the requisite number of written consents under  Section 9.2 .
(b) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 90 days after such record date.
Section 9.5 Notation on or Exchange of Notes. If an amendment or supplement changes the terms of a Note, the Trustee may require the Holder of the Note to deliver it to the Trustee. The Trustee may place an appropriate notation on the Note regarding the changed terms and return it to the Holder. Alternatively, if the Issuer or the Trustee so determines, the Issuer, in exchange for the Note, will execute and upon Issuer Order, the Trustee will authenticate and make available for delivery a new Note that reflects the changed terms. Failure to make the appropriate notation or to issue a new Note shall not affect the validity of such amendment or supplement.
Section 9.6 Trustee to Sign Amendments and Supplements. The Trustee shall sign any amendment, supplement or waiver authorized pursuant to this  Article IX  if the amendment or supplement does not adversely affect the rights, duties, liabilities or immunities of the Trustee. If it does, the Trustee may but need not sign it. In signing such amendment, supplement or waiver, the Trustee shall be entitled to receive indemnity reasonably satisfactory to it and to receive, and (subject to  Section 7.1  and Section 7.2 ) shall be fully protected in relying upon, in
 
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addition to the documents required by Section 12.4, an Opinion of Counsel and an Officer’s Certificate each stating that such amendment, supplement or waiver is authorized or permitted by this Indenture and that all conditions precedent to the execution of such amendment, supplement or waiver have been complied with.
ARTICLE X
NOTE GUARANTEES
Section 10.1 Note Guarantees.
(a) Each Note Guarantor hereby fully and unconditionally guarantees, as primary obligor and not merely as surety, jointly and severally with each other Note Guarantor, to each Holder and the Trustee, the full and punctual payment when due, whether at maturity, by acceleration, by redemption or otherwise, of the Obligations (such guaranteed Obligations, the “Guaranteed Obligations”). Each Note Guarantor further agrees that its Note Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and agrees to pay, in addition to the amounts stated in Section 10.1(f) , any and all expenses (including reasonable counsel fees and expenses) incurred by the Trustee or the Holders in enforcing or exercising any rights under any Note Guarantee.
(b) In no event shall the Trustee or the Holders be obligated to take any action, obtain any judgment or file any claim prior to enforcing or exercising any rights under any Note Guarantee.
(c) Each Note Guarantor further agrees that its Note Guarantee constitutes an absolute and unconditional and continuing guarantee. Each Note Guarantor hereby waives, to the extent permitted by law:
 
 	(i)	any claim as to the legality, validity, regularity or enforceability of this Indenture, the Notes or any other agreement;	
 
 	(ii)	any claim as to the lack of authority of the Issuer to execute or deliver this Indenture, the Notes or any other agreement;	
 
 	(iii)	diligence, presentation to, demand of payment from and protest to the Issuer of any of the Obligations and notice of protest for nonpayment;	
 
 	(iv)	the occurrence of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(v)	notice of any Default or Event of Default under this Indenture, the Notes or any other agreement;	
 
 	(vi)	the failure of the Trustee or any Holder to assert any claim or demand or to enforce any right or remedy against the Issuer or any other Person under this Indenture, the Notes or any other agreement;	
 
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 	(vii)	any extension or renewal of the Obligations, this Indenture, the Notes or any other agreement;	
 
 	(viii)	any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement;	
 
 	(ix)	the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Issuer;	
 
 	(x)	any setoff, counterclaim, recoupment, termination or defense of any kind or nature which may be available to or asserted by any Note Guarantor or the Issuer against the Holders or the Trustee;	
 
 	(xi)	any impairment, taking, furnishing, exchange or release of, or failure to perfect or obtain protection of any security interest in, any collateral securing this Indenture and the Notes and any right to require that any resort be had by the Trustee or any Holder to any such collateral;	
 
 	(xii)	the failure of the Trustee or any Holder to exercise any right or remedy against any other Note Guarantor;	
 
 	(xiii)	any change in the ownership of the Issuer;	
 
 	(xiv)	any change in the laws, rules or regulations of any jurisdiction;	
 
 	(xv)	any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or otherwise affect, any of the obligations of the Issuer under this Indenture or the Notes or of any Note Guarantor under its Note Guarantee; and	
 
 	(xvi)	any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of each Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.	
(d) Each of the Note Guarantors further expressly waives irrevocably and unconditionally:
 
 	(i)	Any right it may have to first require any Holder to proceed against, initiate any actions before a court of law or any other judge or authority, or enforce any other rights or security or claim payment from the Issuer or any other Person (including any Note Guarantor or any other guarantor of the Notes) before claiming from it under this Indenture;	
 
 	(ii)	Any right to which it may be entitled to have the assets of the Issuer or any other Person (including any Note Guarantor or any other guarantor	
 
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 	of the Notes) first be used, applied or depleted as payment of the Issuer’s or the Note Guarantors’ obligations hereunder, prior to any amount being claimed from or paid by any of the Note Guarantors hereunder;	
 
 	(iii)	Any right to which it may be entitled to have claims hereunder divided between the Note Guarantors;	
 
 	(iv)	To the extent applicable, the benefits of orden, excusión, división, quita and espera and any right specified in articles 2814, 2815, 2817, 2818, 2819, 2820, 2821, 2822, 2823, 2826, 2837, 2838, 2839, 2840, 2845, 2846, 2847 and any other related or applicable articles that are not explicitly set forth herein because of Note Guarantor’s knowledge thereof of the  Código Civil Federal  of Mexico, and the Código Civil  of each State of the Mexican Republic and the Federal District of Mexico.	
(e) The obligations assumed by each Note Guarantor hereunder shall not be affected by the absence of judicial request of payment by a Holder to the Issuer or by whether any such person takes timely action pursuant to articles 2848 and 2849 of the Código Civil Federal of Mexico and the Código Civil of each State of the Mexican Republic and the Federal District of Mexico and each Note Guarantor hereby expressly waives the provisions of such articles.
(f) The obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Note Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of such Note Guarantor or would otherwise operate as a discharge of such Note Guarantor as a matter of law or equity.
(g) Except as provided in Section 10.2, the obligations of each Note Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason other than payment of the Obligations in full.
(h) Each Note Guarantor further agrees that its Note Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Issuer or otherwise.
 
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(i) In furtherance of the foregoing and not in limitation of any other right which the Trustee or any Holder has at law or in equity against each Note Guarantor by virtue hereof, upon the failure of the Issuer to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, each Note Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of:
 
 	(i)	the unpaid amount of such Obligations then due and owing; and	
 
 	(ii)	accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law);	
provided, that any delay by the Trustee in giving such written demand shall in no event affect any Note Guarantor’s obligations under its Note Guarantee.
(j) Each Note Guarantor further agrees that, as between such Note Guarantor, on the one hand, and the Holders, on the other hand:
 
 	(i)	the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of its Note Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby; and	
 
 	(ii)	in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Note Guarantor for the purposes of this Note Guarantee.	
Section 10.2 Limitation on Liability; Termination, Release and Discharge.
(a) Subject to the limitations set out in Section 10.5 and Section 10.6, the obligations of each Note Guarantor hereunder will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under this Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance or fraudulent transfer under federal or state law.
(b) A Note Guarantor will be released and relieved of its obligations under its Note Guarantee in the event that:
 
 	(i)	there is a Legal Defeasance of the Notes pursuant to Article VIII;	
 
 	(ii)	with respect to any Note Guarantor other than the Company, there is a sale or other disposition of Capital Stock of such Note Guarantor following which such Note Guarantor is no longer a direct or indirect Subsidiary of the Company;	
 
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 	(iii)	with respect to any Note Guarantor other than the Company, such Note Guarantor is designated as an Unrestricted Subsidiary in accordance with  Section 3.14 ;	
 
 	(iv)	solely with respect to an Additional Note Guarantor, either (A) the Facilities Agreement Indebtedness has been repaid in full and such Additional Note Guarantor is not a guarantor of the Indebtedness Incurred to refinance such Facilities Agreement Indebtedness or (B) at least 85% of the outstanding Indebtedness of the Company and its Restricted Subsidiaries is not guaranteed by such Additional Note Guarantor; or	
 
 	(v)	solely with respect to an Additional Note Guarantor, upon the occurrence of a Partial Covenant Suspension Event or Covenant Suspension Event until the occurrence of a Partial Covenant Reversion Date or a Reversion Date, as applicable, at which time the guarantee of the Notes by such Additional Note Guarantor shall be reinstated unless such Additional Note Guarantor would have been released at any time during the Partial Suspension Period or the Suspension Period, as applicable, pursuant to clause (i), (ii), (iii) or (iv) of this  Section 10.2(b) .	
Section 10.3 Right of Contribution. Each Note Guarantor that makes a payment or distribution under a Note Guarantee will be entitled to a contribution from each other Note Guarantor in a  pro rata  amount, based on the net assets of each Note Guarantor determined in accordance with GAAP. The provisions of this  Section 10.3  shall in no respect limit the obligations and liabilities of each Note Guarantor to the Trustee and the Holders and each Note Guarantor shall remain liable to the Trustee and the Holders for the full amount guaranteed by such Note Guarantor hereunder.
Section 10.4 No Subrogation. Each Note Guarantor agrees that it shall not be entitled to any right of subrogation in respect of any Guaranteed Obligations until payment in full in cash or Cash Equivalents of all Obligations. If any amount shall be paid to any Note Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full in cash or Cash Equivalents, such amount shall be held by such Note Guarantor in trust for the Trustee and the Holders, segregated from other funds of such Note Guarantor, and shall, forthwith upon receipt by such Note Guarantor, be turned over to the Trustee in the exact form received by such Note Guarantor (duly endorsed by such Note Guarantor to the Trustee, if required), to be applied against the Obligations.
Section 10.5 French Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in France (a “French Note Guarantor”) are subject to the limitations set out in this  Section 10.5 .
 
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(b) The obligations and liabilities of any French Note Guarantor under the Indenture and the Notes, and in particular under this  Article X , shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance within the meaning of article L.225-216 of the French Commercial Code and/or would constitute a misuse of corporate assets within the meaning of article(s) L. 241-3 or L. 242-6 of the French Commercial Code or any other law or regulations having the same effect, as interpreted by French courts.
(c) The obligations and liabilities of any French Note Guarantor under this Article X for the Issuer’s obligations under the Indenture and the Notes shall be limited, at any time, to an amount equal to the aggregate of all amounts made available under the Notes and the Indenture to the Issuer to the extent directly or indirectly on-lent to such French Note Guarantor and/or its direct and indirect Subsidiaries under intercompany loan agreements (excluding, for the avoidance of doubt, any cash-pooling arrangements or other cash management agreements,  provided , that the proceeds of the Notes shall not be used, in whole or in part, to finance, directly or indirectly, such cash pooling arrangements or other cash management agreements) and outstanding at the date a payment is to be made by such French Note Guarantor under this  Article X , it being specified that any payment made by a French Note Guarantor under this  Article X  in respect of the obligations of the Issuer shall reduce  pro tanto the outstanding amount of the intercompany loans due by such French Note Guarantor or its relevant direct or indirect Subsidiary under the intercompany loan agreements referred to above and that any repayment of the intercompany loans by the French Note Guarantor or its relevant direct or indirect Subsidiary shall reduce  pro tanto  the amount payable by the French Note Guarantor under this  Article X .
(d) It is acknowledged that no French Note Guarantor is acting jointly and severally with the other Note Guarantors and no French Note Guarantor shall therefore be considered as “ co-débiteur solidaire ” as to its obligations pursuant to the guarantee given pursuant to this  Article X .
Section 10.6 Swiss Guarantee Limitation.
(a) The obligations of any Note Guarantor incorporated in Switzerland (a “Swiss Note Guarantor”) are subject to the limitations set out in this  Section 10.6 .
(b) The obligations and liabilities of a Swiss Note Guarantor under the Indenture, the Notes or any other agreement, and in particular under this  Article X , in relation to the obligations, undertakings, indemnities or liabilities of a Note Guarantor other than that Swiss Note Guarantor or any of its fully owned and controlled subsidiaries (the “ Restricted Obligations ”) shall not include any obligation or liability which, if incurred, would constitute the provision of financial assistance not permitted under the laws of Switzerland then in force and/or would constitute a misuse of corporate assets under Swiss law as interpreted by Swiss courts and shall be limited to the amount of that Swiss Note Guarantor’s Free Reserves Available for Distribution (as defined below) at the time payment is requested,  provided , that such limitation is a requirement under applicable law (including any case law) at that point in time and that such limitation shall not free the Swiss Note Guarantor from its obligations in excess thereof, but merely postpone the performance date until such time as performance is permitted notwithstanding such limitation.
 
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(c) For the purpose of this clause, “Free Reserves Available for Distribution” means an amount equal to the maximal amount in which the relevant Swiss Note Guarantor can make a dividend payment to its shareholder(s) (being the balance sheet profit and any freely disposable reserves available for this purpose, in each case in accordance with applicable Swiss law).
(d) As soon as possible after having been requested to discharge a Restricted Obligation, the Swiss Note Guarantor shall, if it cannot discharge the full amount of the Restricted Obligations, provide the Trustee with an interim statutory balance sheet audited by the statutory auditors of the Swiss Note Guarantor setting out the Free Reserves Available for Distribution and, immediately thereafter, pay the amount corresponding to the Free Reserves Available for Distribution to the Trustee (save to the extent provided below).
(e) In respect of the Restricted Obligations, the Swiss Note Guarantor shall:
 
 	(i)	if and to the extent required by applicable law in force at the relevant time:	
 
 	(A)	subject to any applicable double taxation treaties, deduct Swiss withholding tax at the rate of 35 percent (or such other rate as is in force at that time) from any payment made by it;	
 
 	(B)	pay any such deduction to the Swiss Federal Tax Administration; and	
 
 	(C)	notify and provide evidence to the Trustee that the Swiss withholding tax has been paid to the Swiss Federal Tax Administration;	
 
 	(ii)	to the extent such deduction is made, not be required to make a gross-up, indemnify or otherwise hold harmless the Trustee or the Holders for the deduction of the Swiss withholding tax notwithstanding anything to the contrary contained in the Indenture, the Notes or any other agreement, unless grossing up is permitted under the laws of Switzerland then in force and  provided , that this should not in any way limit any obligations of any non-Swiss Note Guarantors under the Indenture, the Notes or any other agreement to indemnify the Trustee or the Holders in respect of the deduction of the Swiss withholding tax. The Swiss Note Guarantor shall use all reasonable efforts to procure that any person which is entitled to a full or partial refund of any Swiss withholding tax paid pursuant to paragraph (a) above will, as soon as possible after the deduction of the Swiss withholding tax: (y) request a refund of the Swiss withholding tax under any applicable law (including double taxation treaties) and (z) pay to the Trustee upon receipt any amount so refunded.	
(f) The Swiss Note Guarantor will take, and cause to be taken, all and any other action, including, without limitation, the passing of any shareholders’ resolutions to
 
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approve any payment or other performance under the Indenture and the Notes and the receipt of any confirmations from the Swiss Note Guarantor’s auditors, whether following a request to discharge a Restricted Obligation or which may be required as a matter of mandatory Swiss law in force at the time it is required to make a payment or perform other obligations under the Indenture, the Notes or any other agreement in order to allow a prompt payment or performance of other obligations under the Indenture or the Notes.
(g) If the enforcement of the Restricted Obligations would be limited due to the effects referred to in this Section 10.6 and if any asset of the Swiss Note Guarantor has a book value that is less than its market value (an “ Undervalued Asset ”), the Swiss Note Guarantor shall, to the extent permitted by applicable law and its accounting standards (i) write up the book value of such Undervalued Asset such that its balance sheet reflects a book value that is equal to the market value of such Undervalued Asset, and (ii) make reasonable efforts to realize the Undervalued Asset for a sum which is at least equal to the market value of such asset. Without prejudice to the rights of the Trustee and the Holders under the Indenture, the Notes or any other agreement, the Swiss Note Guarantor will only be required to realize an Undervalued Asset if such asset is not necessary for the Swiss Note Guarantor’s business ( nicht betriebsnotwendig ).
ARTICLE XI
COLLATERAL
Section 11.1 The Collateral. Subject to Section 11.2, the Issuer and the Note Guarantors agree that the Notes will be at all times secured by a first-priority security interest in the Collateral on at least an equal and ratable basis with the Permitted Secured Obligations.
Section 11.2 Release of the Collateral.
(a) The Notes will cease to be secured by a security interest in the Collateral in accordance with the provisions of the Intercreditor Agreement.
(b) In addition to the Collateral release provisions set forth in the Intercreditor Agreement, the Notes will cease to be secured by a security interest on the Collateral upon:
 
 	(i)	(A) payment in full of the principal of, any accrued and unpaid interest on, the Notes and all other amounts or Obligations that are due and payable at or prior to the time such principal, accrued and unpaid interest, if any, are paid, (B) a satisfaction and discharge of this Indenture or (C) a Legal Defeasance or Covenant Defeasance pursuant to  Article VIII ; or	
 
 	(ii)	a refinancing of the Facilities Agreement Indebtedness in full as a result of which the Collateral does not secure Indebtedness Incurred to refinance such Facilities Agreement Indebtedness.	
 
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ARTICLE XII
MISCELLANEOUS
Section 12.1 Notices.
(a) Any notice or communication shall be in writing and delivered in person or mailed by first-class mail, postage prepaid, addressed as follows:
if to the Issuer and the Note Guarantors:
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya #325
Colonia Valle del Campestre
Garza García, Nuevo León
México 66265
Attention: Chief Financial Officer
Fax: +1 52 81 8888 4417
if to the Trustee:
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
Fax: 724-540-6330
The Issuer or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
(b) All notices to Holders of Notes will be validly given if mailed to them at their respective addresses in the register of the Holders of such Notes, if any, maintained by the Registrar. For so long as any Notes are represented by Global Notes, all notices to Holders of the Notes will be delivered to Euroclear or Clearstream, delivery of which shall be deemed to satisfy the requirements of this paragraph.
(c) Each such notice shall be deemed to have been given on the date of delivery or mailing. Any notice or communication mailed to a Holder shall be mailed to such Person by first-class mail or other equivalent means and shall be sufficiently given to them if so mailed within the time prescribed. Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(d) Subject to Section 7.1(c) and Section 7.2(a), the Trustee shall accept electronic transmissions; provided, that (i) the Trustee shall not have any duty or obligation to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give
 
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such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information and (ii) each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties.
(e) Any notice or communication mailed to a registered Holder shall be mailed to the Holder at the Holder’s address as it appears on the Note Register and shall be sufficiently given if so mailed within the time prescribed.
(f) Failure to mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
(g) Any notice or communication delivered to the Issuer or the Company under the provisions herein shall constitute notice to the Note Guarantors.
Section 12.2 Communication by Holders with Other Holders. Holders may communicate with other Holders with respect to their rights under this Indenture (including the Note Guarantees) or the Notes.
Section 12.3 Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take or refrain from taking any action under this Indenture, the Issuer shall furnish to the Trustee:
(a) an Officer’s Certificate in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably satisfactory to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 12.4 Statements Required in Certificate or Opinion. Each certificate or opinion, including an Opinion of Counsel or Officer’s Certificate, with respect to compliance with a covenant or condition provided for in this Indenture shall include:
(a) a statement that the individual making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
 
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(c) a statement that, in the opinion of such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such individual, such covenant or condition has been complied with.
In giving an Opinion of Counsel, counsel may rely as to factual matters on an Officer’s Certificate or on certificates of public officials.
Section 12.5 Rules by Trustee, Paying Agent, Transfer Agent and Registrar. The Trustee may make reasonable rules for action by, or a meeting of, Holders. The Paying Agent, Transfer Agent and the Registrar may make reasonable rules for their functions.
Section 12.6 Legal Holidays. A “Legal Holiday” is a Saturday, a Sunday or other day on which commercial banking institutions are authorized or required to be closed in New York City, Mexico, Madrid, Amsterdam, London, Paris or Zurich. If a payment date is a Legal Holiday, payment shall be made on the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period. If a regular record date is a Legal Holiday, the record date shall not be affected.
Section 12.7 Governing Law, etc.
(a) THIS INDENTURE (INCLUDING EACH NOTE GUARANTEE) AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. THE PARTIES HERETO EACH HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR EACH NOTE GUARANTEE OR ANY TRANSACTION RELATED HERETO OR THERETO TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
(b) Each of the parties hereto hereby:
 
 	(i)	agrees that any suit, action or proceeding against it arising out of or relating to this Indenture (including the Note Guarantees) or the Notes, as the case may be, may be instituted in any Federal or state court sitting in the City of New York and County of New York and in the courts of its own corporate domicile, in respect of actions brought against it as a defendant,	
 
 	(ii)	waives to the fullest extent permitted by applicable law, any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, any claim that any suit, action or proceeding in such a court has been brought in an inconvenient forum, and any right to which it may be entitled, on account of place of residence or domicile,	
 
115

 	(iii)	irrevocably submits to the jurisdiction of such courts in any suit, action or proceeding,	
 
 	(iv)	agrees that final judgment in any such suit, action or proceeding brought in such a court shall be conclusive and binding may be enforced in the courts of the jurisdiction of which it is subject by a suit upon judgment, and	
 
 	(v)	agrees that service of process by mail to the addresses specified herein shall constitute personal service of such process on it in any such suit, action or proceeding.	
(c) The Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as its authorized agent (the “Authorized Agent”) upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon this Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. The Note Guarantors (other than CEMEX Corp.) hereby represent and warrant that the Authorized Agent has accepted such appointment and has agreed to act as said agent for service of process, and the Note Guarantors (other than CEMEX Corp.) agree to take any and all action, including the filing of any and all documents, that may be necessary to continue each such appointment in full force and effect as aforesaid so long as the Notes remain outstanding. The Note Guarantors (other than CEMEX Corp.) agree that the appointment of the Authorized Agent shall be irrevocable so long as any of the Notes remain outstanding or until the irrevocable appointment by the Note Guarantors (other than CEMEX Corp.) of a successor agent in the City of New York, New York as each of their authorized agent for such purpose and the acceptance of such appointment by such successor. Service of process upon the Authorized Agent shall be deemed, in every respect, effective service of process upon the Note Guarantors (other than CEMEX Corp.).
(d) To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors hereby irrevocably waive and agree not to plead or claim such immunity in respect of their obligations under this Indenture or the Notes.
(e) Nothing in this Section 12.7 shall affect the right of the Trustee or any Holder of the Notes to serve process in any other manner permitted by law.
Section 12.8 [Reserved].
Section 12.9 No Recourse Against Others. An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or this Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Holder shall waive and release all such liability.
 
116

Section 12.10 Successors. All agreements of the Issuer and any Note Guarantor in this Indenture and the Notes shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successors.
Section 12.11 Duplicate and Counterpart Originals. The parties may sign any number of copies of this Indenture. One signed copy is enough to prove this Indenture. This Indenture may be executed in any number of counterparts, each of which so executed shall be an original, but all of them together represent the same agreement. Signatures of the parties hereto transmitted by facsimile or pdf shall be deemed to be their original signatures for all purposes.
Section 12.12 Severability. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 12.13 [Reserved].
Section 12.14 Currency Indemnity.
(a) The euro is the sole currency of account and payment for all sums payable by the Issuer and any Note Guarantor under or in connection with the Notes or this Indenture, including damages. Any amount received or recovered in currency other than euros in respect of the Notes (whether as a result of, or of the enforcement of, a judgment or order of a court of any jurisdiction, in the winding-up or dissolution of the Issuer, a Note Guarantor or any Subsidiary of the Issuer or otherwise) by any Holder of the Notes in respect of any sum expressed to be due to it from the Issuer or any Note Guarantor shall only constitute a discharge of them under the Notes and this Indenture only to the extent of the euro amount which the recipient is able to purchase with the amount so received or recovered in that other currency on the date of that receipt or recovery (or, if it is not practicable to make that purchase on that date, on the first date on which it is practicable to do so). If that euro amount is less than the euro amount expressed to be due to the recipient under the Notes or this Indenture, the Issuer and the Note Guarantors shall jointly and severally indemnify and hold harmless the recipient, to the greatest extent permitted by law, against any loss or cost sustained by it in making any such purchase. For the purposes of this  Section 12.14 , it will be sufficient for the Holder of a Note to certify that it would have suffered a loss had an actual purchase of euro been made with the amount so received in that other currency on the date of receipt or recovery (or, if a purchase of euro on such date had not been practicable, on the first date on which it would have been practicable).
(b) The indemnities of the Issuer and the Note Guarantors contained in this Section 12.14, to the extent permitted by law: (i) constitute a separate and independent obligation from the other obligations of the Issuer and the Note Guarantors under this Indenture and the Notes; (ii) shall give rise to a separate and independent cause of action against the Issuer and the Note Guarantors; (iii) shall apply irrespective of any waiver granted by any Holder of the Notes or the Trustee from time to time; and (iv) shall continue in full force and effect notwithstanding any other judgment, order, claim or proof of claim for a liquidated amount in respect of any sum due under the Notes or this Indenture or any other judgment or order.
 
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Section 12.15 Table of Contents; Headings. The table of contents and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 12.16 USA PATRIOT Act. The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law on October 26, 2001)) (as amended, modified or supplemented from time to time, the “USA PATRIOT Act”), the Trustee, like all financial institutions, is required to obtain, verify, and record information that identifies each person or legal entity that opens an account. The parties to this Agreement agree that they will provide the Trustee with such information as the Trustee may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Signature page follows]
 
118

IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.

CEMEX Finance LLC,	
as Issuer	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

EACH OF THE NOTE GUARANTORS LISTED BELOW	
 	
CEMEX, S.A.B. de C.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

CEMEX México, S.A. de C.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

CEMEX Concretos, S.A. de C.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

Empresas Tolteca de México, S.A. de C.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

 	 	 	 	 	
New Sunward Holding B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

CEMEX España, S.A.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

Cemex Asia B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

CEMEX Corp.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

Cemex Egyptian Investments B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

Cemex Egyptian Investments II B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

 	 	 	 	 	
CEMEX France Gestion (S.A.S.)	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

Cemex Research Group AG	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	
 	
Cemex Shipping B.V.	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

CEMEX UK	
 	 	
By:	 	/s/ Jaime Armando Chapa Gonzalez	
 	 	Name:	 	Jaime Armando Chapa Gonzalez	
 	 	Title:	 	Attorney-In-Fact	

 	 	 	 	 	
THE BANK OF NEW YORK MELLON,
as Trustee	
 	 	
By:	 	/s/ Catherine F. Donohue	
 	 	Name:	 	Catherine F. Donohue	
 	 	Title:	 	Vice President	

 	 	 	
Solely for the purposes of accepting the appointment of Paying Agent and Transfer Agent, together with the rights, protections and immunities granted to the Trustee under Article VII, which shall apply  mutatis mutandis  to the Paying Agent,	
 	
THE BANK OF NEW YORK MELLON, LONDON BRANCH, as Paying Agent and Transfer Agent	
 	 	
By:	 	 	
 	 	Name:	
 	 	Title:	

SCHEDULE I
NOTE GUARANTORS
 
1.	CEMEX, S.A.B. de C.V. (Mexico)	
 
2.	CEMEX México, S.A. de C.V. (Mexico)	
 
3.	CEMEX Concretos, S.A. de C.V. (Mexico)	
 
4.	Empresas Tolteca de México, S.A. de C.V. (Mexico)	
 
5.	New Sunward Holding B.V. (the Netherlands)	
 
6.	CEMEX España, S.A. (Spain)	
 
7.	Cemex Asia B.V. (the Netherlands)	
 
8.	CEMEX Corp. (Delaware)	
 
9.	Cemex Egyptian Investments B.V. (the Netherlands)	
 
10.	Cemex Egyptian Investments II B.V. (the Netherlands)	
 
11.	CEMEX France Gestion (S.A.S.) (France)	
 
12.	Cemex Research Group AG (Switzerland)	
 
13.	Cemex Shipping B.V. (the Netherlands)	
 
14.	CEMEX UK (United Kingdom)	

EXHIBIT A
FORM OF NOTE
[Include the following legend for Global Notes only:
“THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AS DEFINED IN THE INDENTURE), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NOMINEE NAME OF THE COMMON DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY (AND ANY PAYMENT IS MADE TO THE COMMON DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE COMMON DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE COMMON DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE COMMON DEPOSITARY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”]
[Include the following legend on all Notes that are Restricted Notes:
“THE NOTES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND [ Include the following on all Regulation S Notes that are Restricted Notes:  , PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO CEMEX FINANCE LLC, (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF REGULATION S
 
A-1

UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES. THIS LEGEND CAN ONLY BE REMOVED AT THE OPTION OF THE ISSUER.”]
[Include the following on all Regulation S Notes that are Restricted Notes: PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] EACH PERSON ACQUIRING AN OWNERSHIP INTEREST IN THE NOTES (1) SHALL BE DEEMED TO REPRESENT AND WARRANT THAT IT EITHER (A) IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (B) IS NOT A U.S. PERSON (AS DEFINED IN REGULATION S) AND IS OUTSIDE THE UNITED STATES OR (C) IS ACQUIRING SUCH OWNERSHIP INTEREST PURSUANT TO A VALID REGISTRATION STATEMENT OR IN ANOTHER TRANSACTION EXEMPT FROM SUCH REGISTRATION; (2) AGREES THAT  [Include the following on all Regulation S Notes that are Restricted Notes:  PRIOR TO THE EXPIRATION OF THE 40-DAY DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT),] (X) IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT IN ACCORDANCE WITH THE FOREGOING RESTRICTIONS, AND IN ANY CASE IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION; (Y) PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE BANK OF NEW YORK MELLON, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (Z) IT WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS “UNITED STATES”, “U.S. PERSON” AND “OFFSHORE TRANSACTION” HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.”]
 
A-2

FORM OF FACE OF NOTE
5.250% Senior Secured Notes due 2021

No.     	  	Principal Amount €                                        	
[If the Note is a Global Note include the following two lines:
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto]
ISIN NO.             1
COMMON CODE            2
CEMEX Finance LLC, a Delaware limited liability company (together with its successors and assigns, the “ Issuer ”), promises to pay to The Bank of New York Depositary (Nominees) Limited, or registered assigns, as the nominee of The Bank of New York Mellon, London Branch, as common depositary for Clearstream Banking, société anonyme  and Euroclear Bank S.A./N.V., the principal sum of                     Euros [ If the Note is a Global Note, add the following , as revised by the Schedule of Increases and Decreases in Global Note attached hereto], on April 1, 2021.
Interest Payment Dates: April 1 and October 1, commencing on October 1, 2014
Record Dates: March 15 and September 15

1 	ISIN No. for Rule 144A Note: XS1028959911; ISIN No. for Regulation S Note: XS1028960174	
2 	Common Code for Rule 144A Note: 102895991; Common Code for Regulation S Note: 102896017	
 
A-3

Additional provisions of this Note are set forth on the other side of this Note.

 	 	 	 	 	 	CEMEX FINANCE LLC	
 	 	 	 	 	
 	 	 	 	 	 	By:	 	 	
 	 	 	 	 	 	 	 	Name:	 	 	
 	 	 	 	 	 	 	 	Title:	 	 	
 	 	 	 	 	
TRUSTEE’S CERTIFICATE OF AUTHENTICATION	 	 	 	 	 	 	 	 	
 	 	 	 	 	
THE BANK OF NEW YORK MELLON	 	 	 	 	 	 	 	 	
as Trustee, certifies that this is one of the Notes referred to in the Indenture.	 	 	 	 	 	 	 	 	
 	 	 	 	 	 	
By:	 	 	 	 	 	 	 	Date:	 	 	
 	 	Authorized Signatory	 	 	 	 	 	 	 	 	
 
A-4

FORM OF REVERSE SIDE OF NOTE
5.250% Senior Secured Notes due 2021
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
 
1.	Interest	
CEMEX Finance LLC, a Delaware limited liability company (together with its successors and assigns, the “ Issuer ”), promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Issuer will pay interest semiannually in arrears on each Interest Payment Date of each year commencing October 1, 2014;  provided , that if any such Interest Payment Date is not a Business Day, then such payment shall be made on the next succeeding Business Day. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from April 1, 2014;  provided , that if there is no existing Default or Event of Default on the payment of interest, and if this Note is authenticated between a Record Date referred to on the face hereof and the next succeeding Interest Payment Date (but after April 1, 2014), interest shall accrue from such next succeeding Interest Payment Date, except in the case of the original issuance of Notes, in which case interest shall accrue from April 1, 2014. The Issuer shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal at the then applicable interest rate on the Notes to the extent lawful; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (“ Defaulted Interest ”), without regard to any applicable grace period, at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months. Each interest period shall end on (but not include) the relevant interest payment date.
All payments made by the Issuer in respect of the Notes will be made free and clear of and without deduction or withholding for or on account of any Taxes imposed or levied by or on behalf of any Taxing Jurisdiction, unless such withholding or deduction is required by law or by the interpretation or administration thereof. In that event, the Issuer will pay to each Holder of the Notes Additional Amounts as provided in the Indenture subject to the limitations set forth in the Indenture.
 
2.	Method of Payment	
By at least 1:00 p.m. London time on the Business Day prior to the date on which any principal of or interest on any Note is due and payable, the Issuer shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal and/or interest. The Issuer will pay interest (except Defaulted Interest) on the applicable Interest Payment Date to the Persons who are registered Holders of Notes at the close of business on the Record Date preceding the Interest Payment Date even if Notes are canceled, repurchased or redeemed after the Record Date and on or before the relevant Interest Payment Date, except as provided in  Section 2.13  of the Indenture with respect to Defaulted Interest. Holders must surrender Notes to a Paying Agent to collect principal payments. The Issuer will pay principal and interest in euros.
 
1

Payments in respect of Notes represented by a Global Note (including principal and interest) will be made by the transfer of immediately available funds to the accounts specified by Euroclear or Clearstream. The Issuer will make all payments in respect of a Certificated Note (including principal and interest) by mailing a check to the registered address of each registered Holder thereof as set forth in the Note Register;  provided ,  however , that payments on the Notes may also be made, in the case of a Holder of at least €10,000,000 aggregate principal amount of Notes, by wire transfer to an account maintained by the payee if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 10 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
 
3.	Paying Agent and Registrar	
Initially, The Bank of New York Mellon, the Trustee under the Indenture, will act as Trustee and Registrar and The Bank of New York Mellon, London Branch, will act as Paying Agent. The Issuer may appoint and change any Paying Agent, Registrar or co-Registrar without notice to any Holder. The Issuer, any Note Guarantor or any of their respective Affiliates may act as Paying Agent, Registrar or co-Registrar.
 
4.	Indenture	
The Issuer issued the Notes under an Indenture, dated as of April 1, 2014 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “ Indenture ”), among the Issuer, the Note Guarantors and the Trustee. The terms of the Notes include those stated in the Indenture. The Notes are subject to all such terms, and Holders are referred to the Indenture for a statement of those terms. Each Holder, by accepting a Note, agrees to be bound by all of the terms and provisions of the Indenture, as amended or supplemented from time to time.
The Notes are general senior obligations, which are secured by a first priority security interest in the Collateral on an equal and ratable basis with the other Permitted Secured Obligations, subject to the Collateral release provisions set forth in the Intercreditor Agreement. €400,000,000 in aggregate principal amount of Notes will be issued on the Issue Date. Subject to the conditions set forth in the Indenture and without the consent of the Holders, the Issuer may issue Additional Notes. All Notes will be treated as a single series of securities under the Indenture. The Indenture imposes certain limitations on, among other things, the ability of the Issuer and its Restricted Subsidiaries to: Incur Indebtedness, make Restricted Payments, incur Liens, designate Unrestricted Subsidiaries, make Asset Sales, enter into transactions with Affiliates, or consolidate or merge or transfer or convey all or substantially all of the Issuer’s assets.
To guarantee the due and punctual payment of the principal of (and premium, if any) and interest on the Notes and all other amounts payable by the Issuer under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Note Guarantors have unconditionally guaranteed, jointly and severally, such obligations pursuant to the terms of the Indenture. Each Note Guarantee will be subject to release as provided in the Indenture.
 
2

The obligations of each Note Guarantor in respect of its Note Guarantee will be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Note Guarantor and after giving effect to any collections from or payments made by or on behalf of any other Note Guarantor in respect of the obligations of such other Note Guarantor under its Note Guarantee or pursuant to its contribution obligations under the Indenture, result in the obligations of such Note Guarantor under its Note Guarantee not constituting a fraudulent conveyance, fraudulent transfer, or similar illegal transfer under federal or state law or the law of the jurisdiction or formation and incorporation of such Note Guarantors.
 
5.	Optional Redemption	
Except as stated below, the Issuer may not redeem the Notes. The Issuer may redeem the Notes, at its option, in whole at any time or in part from time to time, on and after April 1, 2017, at the following redemption prices, expressed as percentages of the principal amount thereof, if redeemed during the twelve-month period commencing on April 1 of any year set forth below, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption:

Year	  	Percentage	 	
 	 	
2017	  	 	102.625	% 	
2018	  	 	101.313	% 	
2019 and thereafter	  	 	100.000	% 	
provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to April 1, 2017, the Issuer will have the right, at its option, to redeem any of the Notes, in whole or in part, at any time or from time to time prior to their maturity at a redemption price equal to the greater of (1) 100% of the principal amount of such Notes and (2) the sum of the present value of each remaining scheduled payment of principal and interest thereon (exclusive of interest accrued to the date of redemption) discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Bund Rate (as defined below) plus 50 basis points, plus, in each case any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption,  provided, however,  that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
“Bund Rate” means, with respect to any Redemption Date, the yield to maturity as of such Redemption Date of the Comparable German Bund Issue (as defined below) with a constant maturity most nearly equal to the period from the Redemption Date to the Stated Maturity, assuming a price for the Comparable German Bund Issue (expressed as a percentage of its principal amount) equal to the Comparable German Bund Price (as defined below) for such Redemption Date.
 
3

“Comparable German Bund Issue” means the German Bundesanleihe security selected by any Reference German Bund Dealer (as defined below) as having a fixed maturity most nearly equal to the period from such Redemption Date to and that would be utilized at the time of selection and in accordance with customary financial practice, in pricing new issues of Euro-denominated corporate debt securities in a principal amount approximately equal to the then outstanding principal amount of the Notes and of a maturity most nearly equal to April 1, 2021;  provided , however, that, if the period from such Redemption Date to April 1, 2021 is not equal to the fixed maturity of the German Bundesanleihe security selected by such Reference German Bund Dealer (as defined below), the Bund Rate shall be determined by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of German Bundesanleihe securities for which such yields are given, except that if the period from such Redemption Date to April 1, 2021 is less than one year, a fixed maturity of one year shall be used.
“Comparable German Bund Price” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations (as defined below) for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of such quotations.
“Comparable German Bund Price” means, with respect to any Redemption Date, the average of all Reference German Bund Dealer Quotations (as defined below) for such date (which, in any event, must include at least two such quotations), after excluding the highest and lowest such Reference German Bund Dealer Quotations, or if the Issuer obtains fewer than four such Reference German Bund Dealer Quotations, the average of such quotations.
“Reference German Bund Dealer Quotations” means, with respect to each Reference German Bund Dealer and any Redemption Date, the average as determined by the Issuer in good faith of the bid and offered prices for the Comparable German Bund Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Issuer by such Reference German Bund Dealer at 3:30 p.m. Frankfurt, Germany, time on the third Business Day preceding the Redemption Date.
Optional Redemption upon Equity Offerings. At any time, or from time to time, on or prior to April 1, 2017, the Issuer may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem in the aggregate up to 35% of the aggregate principal amount of the Notes issued pursuant to the Indenture at a redemption price equal to 105.250% of the principal amount thereof plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption;  provided , that:
 
 	•	 	after giving effect to any such redemption at least 65% of the aggregate principal amount of the Notes issued under the Indenture remains outstanding; and	
 
 	•	 	the Issuer shall make such redemption not more than 90 days after the consummation of such Equity Offering;	
 
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provided, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from exercising such an option under the Facilities Agreement.
“Equity Offering” means any public or private sale of Qualified Capital Stock after the Issue Date for cash other than issuances to any Subsidiary of the Company.
Optional Redemption for Changes in Withholding Taxes. If, as a result of any amendment to, or change in, the laws (or any rules or regulations thereunder) of a Taxing Jurisdiction affecting taxation, or any amendment to or change in an official interpretation or application of such laws, rules or regulations that has a general effect, which amendment to or change of such laws, rules or regulations becomes effective on or after the Issue Date (which, in the case of a merger, consolidation or other transaction permitted and described under  Article IV  shall be treated for this purpose as the date of such transaction) we would be obligated, after taking all reasonable measures to avoid this requirement, to pay Additional Amounts in excess of those attributable to a withholding tax rate of 10% with respect to the Notes (see “Additional Amounts”), then, at our option, all, but not less than all, of the Notes may be redeemed at any time on giving not less than 30 nor more than 60 days’ notice, at a redemption price equal to 100% of the outstanding principal amount, plus any accrued and unpaid interest on the principal amount of the Notes, if any, to the date of redemption; provided, however, that (1) no notice of redemption for tax reasons may be given earlier than 90 days prior to the earliest date on which we would be obligated to pay these Additional Amounts if a payment on the Notes were then due, and (2) at the time such notice of redemption is given such obligation to pay such Additional Amounts remains in effect; provided, further, however, that the Issuer shall not have the right to exercise any such optional redemption at any time when the Issuer is prohibited from having such an option under the Facilities Agreement.
Prior to the publication of any notice of redemption pursuant to this provision, the Issuer will deliver to the Trustee:
 
 	•	 	an Officer’s Certificate stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the Issuer’s right to redeem have occurred, and	
 
 	•	 	an opinion of outside legal counsel of recognized standing in the affected Taxing Jurisdiction to the effect that the Issuer has or will become obligated to pay such Additional Amounts as a result of such change or amendment.	
This notice, once delivered by the Issuer to the Trustee, will be irrevocable.
In the case of any partial redemption, selection of the Notes for redemption will be made in accordance with Article V of the Indenture. On and after the Redemption Date, interest will cease to accrue on Notes or portions thereof called-for redemption as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price pursuant to the Indenture.
 
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6.	Mandatory Repurchase Provisions	
Change Of Control Offer. Upon the occurrence of a Change of Control, each Holder of Notes will have the right to require that the Issuer purchase all or a portion (in integral multiples of €1,000) of the Holder’s Notes at a purchase price equal to 101% of the principal amount thereof, plus accrued and unpaid interest through the date of purchase. Within 30 days following the date upon which the Change of Control occurred, the Issuer must make a Change of Control Offer pursuant to a Change of Control Notice. As more fully described in the Indenture, the Change of Control Notice shall state, among other things, the Change of Control Payment Date, which must be no earlier than 30 days nor later than 60 days from the date the notice is mailed, other than as may be required by applicable law.
Asset Sale Offer. The Indenture imposes certain limitations on the ability of the Company and its Restricted Subsidiaries to make Asset Sales. In the event the proceeds from a permitted Asset Sale exceed certain amounts and are not applied as specified in the Indenture, the Company will be required to make an Asset Sale Offer to purchase to the extent of such remaining proceeds each Holder’s Notes together with holders of certain other Indebtedness at 100% of the principal amount thereof, plus accrued interest (if any) to the Asset Sale Offer Payment Date, as more fully set forth in the Indenture.
 
7.	Denominations; Transfer; Exchange	
The Notes are in fully registered form without coupons, and only in denominations of principal amount of €100,000 and in integral multiples of €1,000 in excess thereof. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar shall not be required to register the transfer or exchange of (x) any Note for a period beginning: (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an Interest Payment Date and ending on such Interest Payment Date and (y) any Note selected for repurchase or redemption, except the unrepurchased or unredeemed portion thereof, if any.
 
8.	Persons Deemed Owners	
The registered holder of this Note may be treated as the owner of it for all purposes.
 
9.	Unclaimed Money	
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Issuer at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Issuer and not to the Trustee for payment.
 
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10.	Discharge Prior to Redemption or Maturity	
Subject to certain conditions set forth in the Indenture, the Issuer at any time may terminate some or all of its obligations under the Notes and the Indenture if the Issuer deposits with the Trustee euros or European Government Obligations for the payment of principal of and interest on the Notes to redemption or maturity, as the case may be.
 
11.	Amendment, Waiver	
Subject to certain exceptions set forth in the Indenture, (i) the Indenture or the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in principal amount of the then Outstanding Notes and (ii) any default (other than with respect to nonpayment or in respect of a provision that cannot be amended or supplemented without the written consent of each Holder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in aggregate principal amount of the then Outstanding Notes. Subject to certain exceptions set forth in the Indenture, without the consent of any Holder, the Issuer and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, omission, defect or inconsistency, or to comply with  Article IV  of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes or to secure the Notes, or to add additional covenants or surrender rights and powers conferred on the Issuer or the Note Guarantors, or to make any change that does not adversely affect the rights of any Holder, or to provide for the issuance of Additional Notes.
 
12.	Defaults and Remedies	
If an Event of Default occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Outstanding Notes may declare all the Notes to be due and payable immediately. A Bankruptcy Event of Default will result in the Notes being due and payable immediately upon the occurrence of such Bankruptcy Event of Default.
Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
 
13.	Trustee Dealings with the Issuer and the Note Guarantors	
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer, any Note Guarantor or its Affiliates and may otherwise deal with the Issuer, any Note Guarantor or its Affiliates with the same rights it would have if it were not Trustee.
 
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14.	No Recourse Against Others	
An incorporator, director, officer, employee, stockholder or controlling person, as such, of the Issuer or any Note Guarantor shall not have any liability for any obligations of the Issuer or any Note Guarantor under the Notes or the Indenture or for any claims based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each holder waives and releases all such liability.
 
15.	Authentication	
Any Officer of the Issuer may sign the Notes for the Issuer by manual or facsimile signature. This Note shall not be valid until an authorized signatory of the Trustee (or an Authenticating Agent) manually signs the certificate of authentication on the other side of this Note.
 
16.	Abbreviations	
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (= Uniform Gift to Minors Act).
 
17.	ISIN Numbers	
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused ISIN or other similar numbers to be printed on the Notes and has directed the Trustee to use ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
 
18.	Governing Law	
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
 
19.	Currency of Account; Conversion of Currency.	
Euro is the sole currency of account and payment for all sums payable by the Issuer and the Note Guarantors under or in connection with the Notes or the Indenture, including damages. The Issuer and the Note Guarantors will indemnify the Holders as provided in respect of the conversion of currency relating to the Notes and the Indenture.
 
20.	Agent for Service; Submission to Jurisdiction; Waiver of Immunities.	
The Issuer and the Note Guarantors have agreed that any suit, action or proceeding against the Issuer or any Note Guarantor brought by any Holder or the Trustee arising out of or based upon the Indenture or the Notes may be instituted in any state or federal
 
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court in the City of New York and County of New York and in the courts of their respective corporate domiciles, in respect of actions brought against them as defendants. The Note Guarantors (other than CEMEX Corp.) have irrevocably submitted to the jurisdiction of such courts for such purpose and waived, to the fullest extent permitted by law, trial by jury and any objection it may now or hereafter have to the laying of venue of any such proceeding, and any claim it may now or hereafter have that any proceeding in any such court is brought in an inconvenient forum. The Note Guarantors (other than CEMEX Corp.) have appointed CEMEX NY Corporation, 590 Madison Avenue, 41st Floor, New York, NY 10022, as each of their authorized agent upon whom all writs, process and summonses may be served in any suit, action or proceeding arising out of or based upon the Indenture or the Notes which may be instituted in any state or federal court in the City of New York and County of New York. To the extent that any of the Issuer and the Note Guarantors have or hereafter may acquire any immunity (sovereign or otherwise) from any legal action, suit or proceeding, from jurisdiction of any court or from set-off or any legal process (whether service or notice, attachment in aid or otherwise) with respect to itself or any of its property, the Issuer and the Note Guarantors have irrevocably waived and agreed not to plead or claim such immunity in respect of its obligations under the Indenture or the Notes.
The Issuer will furnish to any Holder upon written request and without charge to the Holder a copy of the Indenture which has in it the text of this Note in larger type. Requests may be made to:
CEMEX Finance LLC
c/o CEMEX, S.A.B. de C.V.
Av. Ricardo Margáin Zozaya # 325
Colonia Valle del Campestre
Garza García, Nuevo León, México 66265
Tel: +5281-8888-8888
 
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to

 	 	 	 	 	
 	 	(Print or type assignee’s name, address and zip code)	 	 	

 	 	(Insert assignee’s soc. sec. or tax I.D. No.)	 	 	
and irrevocably appoint                                         as agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

Date:	 	 	 	 	 	Your Signature:	 	 	

Signature Guarantee:	 	 	 	 	
 	 	(Signature must be guaranteed)	 	 	 	 	

Sign exactly as your name appears on the other side of this Note.	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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To be attached to Global Notes only:
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:

Date of Exchange	  	Amount of decrease in
Principal Amount of this
Global Note	  	Amount of increase in
Principal Amount of this
Global Note	  	Principal Amount of this
Global Note following
such decrease or increase	  	Signature of authorized
signatory of Trustee or
Note Custodian	

 	  	 	  	 	  	 	  	 	
 
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Issuer pursuant to Section 3.8 or Section 3.12 of the Indenture, check either box:

¨                	  	¨	
Section 3.8	  	Section 3.12	
If you want to elect to have only part of this Note purchased by the Issuer pursuant to Section 3.12 of the Indenture, state the principal amount (which must be in minimum denominations of €100,000 and in an integral multiple of €1,000): €            

Date:	 	 	 	 	 	Your Signature	 	 	
 	 	 	 	 	 	(Sign exactly as your name appears on the other side of the Note)	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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EXHIBIT B
FORM OF CERTIFCATION FOR TRANSFER PURSUANT TO REGULATION S
[Date]                    
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	5.250% Senior Secured Notes due 2021 (the “Notes”) of CEMEX Finance LLC (the “ Issuer ”) – ISIN: XS1028959911	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 1, 2014 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture or Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), as the case may be.
In connection with our proposed transfer of €        aggregate principal amount of the Notes, which represent an interest in a Rule 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Regulation S and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable;
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
(e) we are the beneficial owner of the principal amount of Notes being transferred.
In addition, if the transfer is made during a Distribution Compliance Period and the provisions of Rule 904(b)(1) or Rule 904(b)(2) of Regulation S are applicable thereto, we confirm that such transfer has been made in accordance with the applicable provisions of Rule 904(b)(1) or Rule 904(b)(2), as the case may be.
 
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You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature]	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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EXHIBIT C
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144
[Date]
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	5.250% Senior Secured Notes due 2021 (the “Notes”) of CEMEX Finance LLC (the “ Issuer ”) – ISIN: XS1028959911	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 1, 2014 (as amended and supplemented from time to time, the “Indenture”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of €            aggregate principal amount of the Notes, which represent an interest in a 144A Global Note beneficially owned by the undersigned (“Transferor”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144 under the Securities Act.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature	

Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
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EXHIBIT D
FORM OF CERTIFICATION FOR TRANSFER PURSUANT TO RULE 144A
[Date]
The Bank of New York Mellon
101 Barclay Street – 7E
New York, NY 10286
Attention: International Corporate Trust
 
 	Re:	5.250% Senior Secured Notes due 2021 (the “Notes”) of CEMEX Finance LLC (the “ Issuer ”) – ISIN: XS1028960174	
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of April 1, 2014 (as amended and supplemented from time to time, the “ Indenture ”), among the Issuer, the Note Guarantors named therein and The Bank of New York Mellon, as Trustee. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with our proposed transfer of €            aggregate principal amount of the Notes, which represent an interest in a Regulation S Global Note beneficially owned by the undersigned (“ Transferor ”), we confirm that such transfer has been effected pursuant to and in accordance with Rule 144A under the Securities Act of 1933, as amended, and, accordingly, we represent that the beneficial interest will be transferred to a Person that we reasonably believe is purchasing the beneficial interest for its own account, or for one or more accounts with respect to which such Person exercises sole investment discretion, and such Person and each such account is a “qualified institutional buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and such transfer is in compliance with any applicable blue sky securities laws of any state of the United States.
You, the Issuer and the Note Guarantors are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.

Very truly yours,	
 	
[Name of Transferor]	
 	 	
By:	 	 	

Authorized Signature]	
 
D-1

 	 	 	 	 	
Signature Guarantee:	 	 	  	 	
 	 	(Signature must be guaranteed)	  	 	
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to Exchange Act Rule 17Ad-15.
 
D-2

EXHIBIT E
“CONSOLIDATED LEVERAGE RATIO” AND RELATED DEFINITIONS
The definition of “Consolidated Leverage Ratio” comes from the 2009 Financing Agreement, as in effect immediately prior to giving effect to the amendment and restatement thereof on September 17, 2012, and is to be used solely for purposes of calculating the Consolidated Leverage Ratio in the context of determining whether a Partial Covenant Suspension Event has occurred.
“2012 CB Amount” means an aggregate amount equal to the Relevant Existing Financial Indebtedness maturing on or prior to the 2012 CB Maturity Date.
“2012 CB Maturity Date” means the final maturity date of the Relevant Existing Financial Indebtedness maturing in September, 2012 (being 21 September, 2012).
“Acceptable Bank” means:
 
 	(a)	a bank or financial institution which has a rating for its long-term unsecured and non credit-enhanced debt obligations of A- or higher by S&P or A- or higher by Fitch or A3 or higher by Moody’s or a comparable rating from an internationally recognised credit rating agency;	
 
 	(b)	any other bank or financial institution in a jurisdiction in which a member of the Group conducts commercial operations where such member of the Group, in the ordinary course of trading, subscribes for certificates of deposit issued by such bank or financial institution; or	
 
 	(c)	any other bank or financial institution approved by the Administrative Agent.	
“Accession Letter” means a document substantially in the form set out in Schedule 4 (Form of Accession Letter ) of the 2009 Financing Agreement.
“Additional Guarantor” means a company that becomes an Additional Guarantor in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Additional Security Provider” means a company that becomes an Additional Security Provider in accordance with Clause 28 ( Changes to the Obligors ) of the 2009 Financing Agreement.
“Administrative Agent” means Citibank International PLC, as administrative agent of the Finance Parties (other than itself) under the 2009 Financing Agreement.
“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.
“Applicable GAAP” means:
 
 	(a)	in the case of the Company, Mexican FRS or, if adopted by the Company in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS;	
 
E-1

 	(b)	in the case of CEMEX España, Spanish GAAP or, if adopted by CEMEX España in accordance with Clause 22.3 ( Requirements as to financial statements ) of the 2009 Financing Agreement, IFRS; and	
 
 	(c)	in the case of any other Obligor, the generally accepted accounting principles applying to it in the country of its incorporation or in a jurisdiction agreed to by the Administrative Agent or, if adopted by the relevant Obligor, IFRS.	
“Authorised Signatory” means, in relation to any Obligor, any person who is duly authorised and in respect of whom the Administrative Agent has received a certificate signed by a director or another Authorised Signatory of such Obligor setting out the name and signature of such person and confirming such person’s authority to act.
“Banobras Facility” means a revolving loan agreement (Contrato de Apertura de Crédito en Cuenta Corriente ) between CEMEX CONCRETOS, S.A. de C.V., as borrower and Banco Nacional de Obras y Servicios Públicos, Sociedad Nacional de Crédito, Institución de Banca de Desarrollo, as lender (“Banobras”), in an aggregate principal amount equal to Mex$5,000,000,000.00 (five billion pesos), dated April 22, 2009, which was formalized by means of public deeds number 116,380 and 116,381 dated April 22, 2009, granted before Mr. José Angel Villalobos Magaña, notary public number 9 for Mexico, Federal District, as such facility may be amended from time to time.
“Base Currency” means US dollars.
“Base Currency Amount” means on any date:
 
 	(a)	in relation to an amount or Exposure denominated in the Base Currency, that amount or the amount of that Exposure; and	
 
 	(b)	in relation to an amount or Exposure denominated in a currency other than the Base Currency, that amount or the amount of that Exposure converted into the Base Currency at:	
 
 	(i)	for the purposes of determining the Majority Participating Creditors, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. London time on the date on which such determination is made (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Participating Creditors); and	
 
 	(ii)	for all other purposes, the exchange rate displayed on the appropriate Reuters screen at or about 11:00 a.m. London time on the date which is five Business Days before that date (or if the agreed page is replaced or services cease to be available, the Administrative Agent may specify another page or service displaying the appropriate rate after consultation with the Company and the Participating Creditors).	
 
E-2

“Bilateral Bank Facilities” means the facilities described in Part IB of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Borrower” means an Original Borrower unless it has ceased to be a Borrower in accordance with Clause 28.2 ( Resignation of a Borrower ) of the 2009 Financing Agreement.
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London, Madrid, New York, Amsterdam and Mexico City (in the case of Mexico City, if applicable, as specified by a governmental authority), and:
 
 	(a)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, a currency other than euro) the principal financial centre of the country of that currency; or	
 
 	(b)	(in relation to any date for payment or lending or purchase of, or the determination of an interest rate or rate of exchange in relation to, euro) any TARGET Day.	
“Business Plan” means the five year business plan of the Group delivered in conjunction with the 2009 Financing Agreement.
“Capital Expenditure” means any expenditure or obligation in respect of expenditure which, in accordance with Applicable GAAP of the Company, is treated as capital expenditure (and including the capital element of any expenditure or obligation incurred in connection with a Capital Lease) (and, solely for the purposes of paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement, the maximum amount of Capital Expenditure of the Group permitted in the Financial Year ending on or about 31 December 2009 will be increased by an amount not exceeding $50,000,000 in aggregate to the extent necessary to take into account currency fluctuations or additional costs and expenses contemplated by (or that have occurred since the date of) the Business Plan).
“Capital Lease” means, as to any person, the obligations of such person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of the Company under Applicable GAAP and the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with Applicable GAAP of the Company.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designed) of capital stock of a corporation, any and all equivalent ownership interests in a person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.
“Cash Equivalent Investments” means at any time:
 
 	(a)	certificates of deposit maturing within one year after the relevant date of calculation and issued by an Acceptable Bank;	
 
 	(b)	any investment in marketable debt obligations issued or expressly guaranteed by the government of Mexico, the United States of America (or	
 
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 	any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group conducts commercial operations if that member of the Group makes investments in such debt obligations in the ordinary course of its trading) or by an instrumentality or agency of any of them having an equivalent credit rating, maturing within one year after the relevant date of calculation and not convertible or exchangeable to any other security;	
 
 	(c)	commercial paper not convertible into or exchangeable for any other security:	
 
 	(i)	for which a recognised trading market exists;	
 
 	(ii)	issued by an issuer incorporated in Mexico, the United States of America (or any state thereof (including any political subdivision of such state)), the United Kingdom, any member state of the European Economic Area or any Participating Member State or any member state of NAFTA (or any other jurisdiction in which a member of the Group makes investments in such debt obligations in the ordinary course of trading);	
 
 	(iii)	which matures within one year after the relevant date of calculation; and	
 
 	(iv)	which has a credit rating of either A-1 or higher by S&P or F 1 or higher by Fitch or P-1 or higher by Moody’s, or, if no rating is available in respect of the commercial paper, the issuer of which has, in respect of its long-term unsecured and non-credit enhanced debt obligations, an equivalent rating;	
 
 	(d)	sterling bills of exchange eligible for rediscount at the Bank of England and accepted by an Acceptable Bank (or their dematerialised equivalent);	
 
 	(e)	any investment in money market funds which (i) have a credit rating of either A-1 or higher by S&P or F1 or higher by Fitch or P-1 or higher by Moody’s, (ii) which invest substantially all their assets in securities of the types described in paragraphs (a) to (d) above and (f) and (g) below and (iii) can be turned into cash on not more than 30 days’ notice; or	
 
 	(f)	any deposit issued by any of Nacional Financiera, S.N.C., Banco Nacional de Comercio Exterior, S.N.C., Banco National de Obras y Servicios Publicos, S.N.C. or any other development bank controlled by the Mexican government;	
 
 	(g)	any other debt instrument rated “investment grade” (or the local equivalent thereof according to local criteria in a country in which any member of the	
 
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 	Group conducts commercial operations and in which local pensions are permitted by law to invest) with maturities of 12 months or less from the date of acquiring such investment;	
 
 	(h)	investments in mutual funds, managed by banks or financial institutions, with a local currency credit rating of at least MxAA by S&P or equivalent by any other reputable local rating agency, that invest principally in marketable direct obligations issued by the Mexican government, or issued by any agency or instrumentality thereof; and	
 
 	(i)	any other debt security, certificate of deposit, commercial paper, bill of exchange, investment in money market funds or material funds approved by the Majority Participating Creditors, in each case, to which any member of the Group is alone (or together with other members of the Group) beneficially entitled at that time and which is not issued or guaranteed by any member of the Group or subject to any Security (other than Security arising under the Transaction Security Documents).	
“CB Cash Replenishment Amount” means, for a particular Relevant Prepayment Period, the amount of cash in hand of the Company on a consolidated basis to be applied by the Company to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement at any time during that Relevant Prepayment Period  provided that  such amount, together with the CB Disposal Proceeds Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Disposal Proceeds Replenishment Amount” means for a particular Relevant Prepayment Period, the amount of any Disposal Proceeds received by any member of the Group during that Relevant Prepayment Period to be applied by the Company to the CB Reserve pursuant to paragraph (b) of Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement  provided that  such amount, together with the CB Cash Replenishment Amount applicable to that Relevant Prepayment Period, may not exceed the CB Reserve Shortfall at that time.
“CB Reserve” means the reserve created by the Company or any of its Subsidiaries for the purposes of holding the proceeds of any Permitted Fundraising that, as set out in the relevant CB Reserve Certificate, are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement.
“CB Reserve Certificate” means a certificate signed by a Responsible Officer of the Company setting out, with respect to a Permitted Fundraising the net cash proceeds of which are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement:
 
 	(i)	the amount of proceeds from the relevant Permitted Fundraising that the Company wishes to be applied to the CB Reserve (such amount to not exceed the aggregate amount of the Relevant Existing Financial Indebtedness that is due to mature within the Relevant Prepayment Period to which it applies); and	
 
 	(ii)	specific details of the Relevant Existing Financial Indebtedness to which any amounts are designated by the Company to be applied including the total aggregate amount of such Relevant Existing Financial Indebtedness and the date on which such Relevant Existing Financial Indebtedness matures.	
 
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“CB Reserve Shortfall” means at any time, for a particular Relevant Prepayment Period, an amount equal to the lower of:
 
 	(i)	the aggregate amount of (A) any voluntary prepayments made to Participating Creditors pursuant to Clause 12.2 ( Voluntary prepayment of Exposures ) of the 2009 Financing Agreement from proceeds standing to the credit of the CB Reserve in that Relevant Prepayment Period and (B) the 2012 CB Amount; and	
 
 	(ii)	the principal amount of any Relevant Existing Financial Indebtedness then outstanding in that Relevant Prepayment Period.	
“Change of Control” means that the beneficial ownership (within the meaning of Rule 13d-3 promulgated by the SEC under the Securities Exchange Act of 1934, as amended) of 20 per cent. or more in voting power of the outstanding voting stock of the Company is acquired by any person,  provided that  the acquisition of beneficial ownership of capital stock of the Company by Lorenzo H. Zambrano or any member of his immediate family shall not constitute a Change of Control.
“Charged Property” means all of the assets of the Security Providers which from time to time are, or are expressed to be, the subject of the Transaction Security.
“Compliance Certificate” means a certificate substantially in the form set out in Schedule 5 (Form of Compliance Certificate ) of the 2009 Financing Agreement.
“Consolidated Coverage Ratio” means, on any date of determination, the ratio of (a) EBITDA for the one (1) year period ending on such date to (b) Consolidated Interest Expense for the one (1) year period ending on such date.
“Consolidated Debt” means, at any date, the sum (without duplication) of (a) the aggregate amount of all Debt of the Company and its Subsidiaries at such date, which shall include the amount of any recourse in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness,  plus  (b) to the extent not included in Debt, the aggregate net mark-to-market amount of all derivative financing in the form of equity swaps outstanding at such date (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents).
“Consolidated Funded Debt” means, for any period, Consolidated Debt less the sum (without duplication) of (i) all obligations of such person to pay the deferred purchase price of property or services, (ii) all obligations of such person as lessee under Capital Leases, and (iii) all obligations of such person with respect to product invoices incurred in connection with export financing.
“Consolidated Interest Expense” means, for any period, the sum of the (1) total gross cash and non cash interest expense of the Company and its consolidated Subsidiaries relating to Consolidated Funded Debt of such persons, (2) any amortization or accretion of debt discount or
 
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any interest paid on Consolidated Funded Debt of such person and its Subsidiaries in the form of additional Financial Indebtedness (but excluding any amortization of deferred financing and debt issuance costs), (3) the net costs under Treasury Transactions in respect of interest rates (but excluding amortization of fees), (4) any amounts paid in cash on preferred stock, and (5) any interest paid or accrued in respect of Consolidated Funded Debt without a maturity date, regardless of whether considered interest expense under Applicable GAAP of the Company. For purposes of calculating Consolidated Interest Expense for the Reference Period ending 30 June 2010, $131,406,696.17 shall be deducted, constituting the amount of interest paid in respect of perpetual debentures on 1 July 2009 for the period ending 30 June 2009.
“Consolidated Leverage Ratio” means, on any date of determination, the ratio of (a) Consolidated Funded Debt on such date to (b) EBITDA for the one (1) year period ending on such date.
“Core Bank Facilities” means the Syndicated Bank Facilities, the Bilateral Bank Facilities and the Promissory Notes.
“Creditor’s Representative” means:
 
 	(a)	with respect to each of the Syndicated Bank Facilities, the person appointed as the agent of the creditors in relation to such Facility under the Existing Finance Documents relating to such Facility;	
 
 	(b)	with respect to each other Core Bank Facility, the Participating Creditor with an Exposure under that Facility; and	
 
 	(c)	with respect to each USPP Note, the Participating Creditor with an Exposure under that USPP Note.	
“Debt” of any person means, without duplication, (i) all obligations of such person for borrowed money, (ii) all obligations of such person evidenced by bonds, debentures, notes or other similar instruments, including the perpetual bonds, (iii) the aggregate net mark-to-market of Treasury Transactions (except to the extent such exposure is cash collateralized to the extent permitted under the Finance Documents) of such person but excluding Treasury Transactions relating to the rate or price of energy or any commodity, (iv) all obligations of such person to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of trading, (v) all obligations of such person as lessee under Capital Leases, (vi) all Debt of others secured by Security on any asset of such person, up to the value of such asset, (vii) all obligations of such person with respect to product invoices incurred in connection with export financing, (viii) all obligations of such person under repurchase agreements for the stock issued by such person or another person, (ix) all obligations of such person in respect of Inventory Financing permitted under paragraph (e) of the definition of Permitted Financial Indebtedness and (x) all guarantees of such person in respect of any of the foregoing  provided, however , that for the purposes of calculating the Consolidated Funded Debt element of the Consolidated Leverage Ratio, Relevant Convertible/Exchangeable Obligations shall be excluded from each of the foregoing paragraphs (i) to (x) inclusive ( provided that , in the case of outstanding Financial Indebtedness under any Relevant Convertible/Exchangeable Obligations (1) only the principal amount thereof shall be excluded and (2) such exclusion shall apply only for so long as such amounts remain subordinated in accordance with the terms of that definition)
 
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and (b) amounts falling within paragraph (v) of the definition of Excluded Fundraising Proceeds, for the period in which they are held by the Company or any member of the Group pending application in accordance with the terms of the 2009 Financing Agreement, shall be deducted from the aggregate Debt calculation resulting from this definition. For the avoidance of doubt, all letters of credit, banker’s acceptances or similar credit transactions, including reimbursement obligations in respect thereof are not Debt until they are required to be funded.
“Debt Documents” means the Finance Documents, the “Refinancing Documents” (as defined in the Intercreditor Agreement) and the “Noteholder Documents” (as defined in the Intercreditor Agreement).
“Debt Reduction Satisfaction Date” means the first date following 30 September 2010 on which:
 
 	(a)	the Base Currency Amount of the Exposures of Participating Creditors under the Facilities (calculated as at the date that any reduction of Exposures occurs and in accordance with the 2009 Financing Agreement) has been reduced by an aggregate amount equal to at least U.S.$1,000,000,000 compared to the Exposures of Participating Creditors under the Facilities as at 30 September 2010; and	
 
 	(b)	the amount of Consolidated Funded Debt is at least U.S.$1,000,000,000 (or its equivalent in any other currency) lower than the level of Consolidated Funded Debt as at 30 September 2010 (for the avoidance of doubt, when used in this sub-paragraph, Consolidated Funded Debt shall not include any Relevant Convertible/Exchangeable Obligations),	
with notification of the occurrence of such date being provided by the Parent delivering a certificate to the Administrative Agent signed by an Authorised Signatory confirming that (a) and (b) above have been met.
“Delegate” means any delegate, agent, attorney or co-trustee appointed by the Security Agent.
“Discontinued EBITDA” means, for any period, the sum for Discontinued Operations of (a) operating income ( utilidad de operación ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Company consistently applied for such period.
“Discontinued Operations” means operations that are accounted for as discontinued operations pursuant to Applicable GAAP of the Company for which the Disposal of such assets has not yet occurred.
“Disposal” means a sale, lease, license, transfer, loan or other disposal by a person of any asset (including shares in any Subsidiary or other company), undertaking or business (whether by a voluntary or involuntary single transaction or series of transactions).
“Disposal Proceeds” means:
 
 	(i)	the cash consideration received by any member of Group (including any amount received from a person who is not a member of the Group in repayment of intercompany debt save to the extent that the creditor in respect of the intercompany debt is obliged to repay that amount to the purchaser at or about completion of the Disposal) for any Disposal;	
 
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 	(ii)	any proceeds of any Disposal received in the form of Marketable Securities that are required to be disposed of for cash (after deducting reasonable expenses incurred by the party disposing of those Marketable Securities to persons other than members of the Group) pursuant to the criteria set out at paragraph (h) of the definition of Permitted Disposal; and	
 
 	(iii)	any proceeds of any Disposal received in any other form to the extent disposed of or otherwise converted into cash within 90 days of receipt; and	
 
 	(iv)	any consideration falling within paragraphs (i) to (iii) above that is received by any member of the Group from the Disposal of assets of the Group in Venezuela prior to the date of the 2009 Financing Agreement,	
but excluding any Excluded Disposal Proceeds and, in every case, after deducting:
 
 	(1)	any reasonable expenses which are incurred by the disposing party of such assets with respect to that Disposal to persons who are not members of the Group;	
 
 	(2)	any Tax incurred and required to be paid by the disposing party in connection with that Disposal (as reasonably determined by the disposing party on the basis of rates existing at the time of the disposal and taking account of any available credit, deduction or allowance);	
“EBITDA” means, for any period, the sum for the Company and its Subsidiaries, determined on a consolidated basis of (a) operating income ( utilidad de operacion ), and (b) depreciation and amortization expense, in each case determined in accordance with Applicable GAAP of the Company, subject to the adjustments herein, consistently applied for such period and adjusted for Discontinued EBITDA as follows: if the amount of Discontinued EBITDA is a positive amount, then EBITDA shall increase by such amount, and if the amount of Discontinued EBITDA is a negative amount, then EBITDA shall decrease by the absolute value of such amount. For the purposes of calculating EBITDA for any applicable period pursuant to any determination of the Consolidated Leverage Ratio (but not the Consolidated Coverage Ratio): (A) (i) if at any time during such applicable period the Borrower or any of its Subsidiaries shall have made any Material Disposal, the EBITDA for such applicable period shall be reduced by an amount equal to the EBITDA (if positive) attributable to the property that is the subject of such Material Disposal for such applicable period (but when the Material Disposal is by way of lease, income received by the Company or any of its Subsidiaries under such lease shall be included in EBITDA) and (ii) if at any time during such applicable period the Company or any of its Subsidiaries shall have made any Material Acquisition, EBITDA for such applicable period shall be calculated after giving  pro forma  effect thereto as if such Material Acquisition had occurred on the first day of such applicable period. Additionally, if since the beginning of such applicable period any person that subsequently shall have become a Subsidiary or was merged or consolidated with the Company or any of its Subsidiaries as a result of a Material Acquisition occurring during such applicable period shall have made any Material Disposal or Material
 
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Acquisition of property that would have required an adjustment pursuant to clause (i) or (ii) above if made by the Company or any of its Subsidiaries during such applicable period, EBITDA for such period shall be calculated after giving  pro forma  effect thereto as if such Material Disposal or Material Acquisition had occurred on the first day of such applicable period; and (B) EBITDA will be recalculated by multiplying each month’s EBITDA by the Ending Exchange Rate and dividing the amount obtained thereto by the exchange rate used by the Company in preparation of its monthly financial statements in accordance with Applicable GAAP of the Company to convert $ into Mexican pesos (such recalculated EBITDA being the “ Recalculated EBITDA ”).
“Ending Exchange Rate” means the exchange rate at the end of a Reference Period for converting $ into Mexican pesos as used by the Company and its auditors in preparation of the Company’s financial statements in accordance with Applicable GAAP of the Company.
“Excluded Disposal Proceeds” means any CB Disposal Proceeds Replenishment Amount and the proceeds of any Disposal of:
 
 	(i)	inventory or trade receivables in the ordinary course of trading of the disposing entity;	
 
 	(ii)	assets pursuant to a Permitted Securitisation programme existing as at the date of the 2009 Financing Agreement (or any rollover or extension of such a Permitted Securitisation);	
 
 	(iii)	any asset from any member of the Group to another member of the Group on arm’s length terms and for fair market or book value;	
 
 	(iv)	any assets the consideration for which (when aggregated with the consideration for any related Disposals) is less than $5,000,000 (or its equivalent in any other currency);	
 
 	(v)	assets leased or licensed to any director, officer or employee of any member of the Group in connection with and as part of the ordinary course of the service or employment arrangements of the Group;	
 
 	(vi)	Marketable Securities (other than Marketable Securities received as consideration for a Disposal as envisaged in paragraphs (ii) and (iii) of the definition of Disposal Proceeds); and	
 
 	(vii)	any cash or other assets arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to any settlement, disposal, transfer, assignment, closeout or other termination of such Permitted Put/Call Transaction.	
“Excluded Fundraising Proceeds” means the proceeds of:
 
 	(i)	a Permitted Fundraising falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraph (a) of the definition thereof (or paragraph (b) of the definition	
 
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 	thereof, to the extent that it relates to Short Term Certificados Bursatiles) (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (i), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group);	
 
 	(ii)	a Permitted Fundraising falling within paragraph (f)(ii) of the definition of Permitted Financial Indebtedness entered into for the purpose of refinancing or extending the maturity of Existing Financial Indebtedness falling within paragraphs (a) to (e) of the definition thereof (and, in the case of a refinancing, where the proceeds that would, but for this paragraph (ii), constitute “Permitted Fundraising Proceeds,” are actually applied for such purpose as soon as reasonably practicable (and in any event within 90 days) following receipt of those proceeds by any member of the Group).	
 
 	(iii)	any transaction between members of the Group;	
 
 	(iv)	Permitted Securitisations;	
 
 	(v)	prior to the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraph (c) of that definition or, after the Debt Reduction Satisfaction Date, a Permitted Fundraising falling within paragraphs (a), (b) or (c) of that definition  provided that  any Relevant Existing Financial Indebtedness due to mature within the particular Relevant Prepayment Period and the proceeds of such Permitted Fundraising are to be applied in accordance with Clause 13.3 ( Mandatory prepayments: Certificados Bursátiles Reserve ) of the 2009 Financing Agreement;	
 
 	(vi)	subject to Clause 13.4(ii) of the 2009 Financing Agreement, a Permitted Fundraising falling within paragraph (c) of that definition and applied or to be applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement; and	
 
 	(vii)	a Permitted Fundraising arising out of or in connection with any Permitted Put/Call Transaction, including, but not limited to, any settlement, disposal, transfer, assignment, close-out or other termination of such Permitted Put/Call Transaction.	
“Executive Compensation Plan” means any stock option plan, restricted stock plan or retirement plan which the Company or any other Obligor customarily provides to its employees, consultants and directors.
“Existing Facility Agreements” means the facility agreements and other documents described in Part II, Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement.
“Existing Finance Documents” means each Existing Facility Agreement, the USPP Note Guarantee, the “Finance Documents” as defined in any Existing Facility Agreement and the
 
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“Facility Transaction Documents” as defined in Exhibit H to the NY Law Amendment Agreement (but in each case excluding any document that is designated a “ Finance Document ” or “ Facility Transaction Document ” by an Obligor and the relevant Creditor’s Representative under an Existing Facility Agreement after the date of the 2009 Financing Agreement).
“Existing Financial Indebtedness” means:
 
 	(a)	the Financial Indebtedness described in Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement  provided that  the principal amount of such Financial Indebtedness does not increase above the principal amount outstanding as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) less the amount of any repayments and prepayments made in respect of such Financial Indebtedness;	
 
 	(b)	the Financial Indebtedness described in Part II of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles, working capital or other operating facilities that replace or refinance such Financial Indebtedness;	
 
 	(c)	the Financial Indebtedness described in Part III of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Capital Leases that replace (and relate to the same or similar assets as) such Financial Indebtedness;	
 
 	(d)	the Financial Indebtedness described in Part IV of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement and any Inventory Financing or factoring arrangements that replace (and relate to the same or similar assets as) such Financial Indebtedness; and	
 
 	(e)	the Banobras Facility and any other facility that replaces or refinances such facility provided that any such replacement or refinancing facility is (i) with a development bank controlled by the Mexican Government or (ii) with any other financial institution to finance public works or infrastructure assets,	
provided that (i) the aggregate principal amount of such Existing Financial Indebtedness falling under each of paragraphs (b) to (e) of this definition shall not be increased above the principal amount of Financial Indebtedness committed or capable of being drawn down under the Financial Indebtedness referred to in that paragraph of this definition as at the date of the 2009 Financing Agreement (except by the amount of any capitalised interest under any facility or instrument that provided for capitalisation of interest on those terms as at the date of the 2009 Financing Agreement) and (ii), for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) above need not satisfy the requirements of paragraph (f) of the definition of Permitted Financial Indebtedness.
 
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“Exposure” means, at any time:
 
 	(a)	in relation to a Participating Creditor and a Syndicated Bank Facility or Bilateral Bank Facility, that Participating Creditor’s participation in Loans made under the relevant Facility at that time;	
 
 	(b)	in relation to Participating Creditor and a Promissory Note, the principal amount owed to that Participating Creditor under that Promissory Note at that time; and	
 
 	(c)	in relation to a Participating Creditor and a USPP Note, the principal amount owed to that Participating Creditor under that USPP Note at that time.	
“Facility” means a Core Bank Facility and each USPP Note.
“Fee Letter” means any letter or agreement between the Administrative Agent or Security Agent and the Company setting out (i) the upfront fee and (ii) the level of fees payable in respect of the services and obligations performed by those agents under the relevant New Finance Documents.
“Finance Document” means each New Finance Document and each Existing Finance Document.
“Finance Party” means the Administrative Agent, the Security Agent, each Creditor’s Representative or a Participating Creditor.
“Financial Indebtedness” means any indebtedness for or in respect of:
 
 	(a)	moneys borrowed and debit balances at banks or other financial institutions;	
 
 	(b)	any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);	
 
 	(c)	any amount raised pursuant to a note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument (including, without limitation, any perpetual bonds);	
 
 	(d)	the amount of any liability in respect of any lease or hire purchase contract which would (in accordance with Applicable GAAP of the Company) be treated as a finance or capital lease;	
 
 	(e)	receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis and meet any requirement for de-recognition under Applicable GAAP of the Company);	
 
 	(f)	any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the mark-to-market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);	
 
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 	(g)	any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution;	
 
 	(h)	any amount raised by the issue of redeemable shares which are redeemable (other than at the option of the issuer) before the Termination Date or are otherwise classified as borrowings under Applicable GAAP of the Company;	
 
 	(i)	any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 60 days after the date of supply;	
 
 	(j)	any arrangement pursuant to which an asset sold or otherwise disposed of by that person may be re-acquired by a member of the Group (whether following the exercise of an option or otherwise) and any Inventory Financing;	
 
 	(k)	any amount raised under any other transaction (including any forward sale or purchase, sale and sale back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under Applicable GAAP of the Company; and	
 
 	(l)	the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (k) above.	
“Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
“Financial Year” means the annual accounting period of the Company ending on or about 31 December in each year.
“Fitch” means Fitch Ratings Limited or any successor thereto from time to time.
“Group” means the Company and each of its Subsidiaries for the time being.
“Guarantors” means the Original Guarantors and any Additional Guarantor other than any Original Guarantor or Additional Guarantor which has ceased to be a Guarantor pursuant to Clause 28.4 ( Resignation of Guarantor)  of the 2009 Financing Agreement and has not subsequently become an Additional Guarantor pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement and “ Guarantor ” means any of them.
“Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.
“IFRS” means international accounting standards within the meaning of IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements.
 
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“Intellectual Property” means:
 
 	(a)	any patents, trademarks, service marks, designs, business names, copyrights, design rights, data-base rights, inventions, knowhow and other intellectual property rights and interests, whether registered or unregistered; and	
 
 	(b)	the benefit of all applications and rights to use such assets of each member of the Group.	
“Intercreditor Agreement” means the intercreditor agreement dated on or about the date of the 2009 Financing Agreement and made between, among others, the Company, Wilmington Trust (London) Limited as Security Agent, Citibank International PLC as Administrative Agent, the Participating Creditors and any other creditors of the Group that may accede to it from time to time in accordance with its terms, as such agreement may be amended from time to time.
“Inventory Financing” means a financing arrangement pursuant to which a member of the Group sells inventory to a bank or other institution (or a special purpose vehicle or partnership incorporated or established by or on behalf of such bank or other institution or an Affiliate of such bank or other institution) and has an obligation to repurchase such inventory to the extent that it is not sold to a third party within a specified period.
“Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity.
“Joint Venture Investment” has the meaning given to such term in sub-paragraph (b) (ii) of the definition of Permitted Joint Venture.
“Loan” means:
 
 	(a)	in relation to a Syndicated Bank Facility or Bilateral Bank Facility, a loan made or to be made under such Facility or the principal amount outstanding for the time being of that loan; and	
 
 	(b)	in relation to a Promissory Note, the Exposure of the Participating Creditors for the time being under that Promissory Note.	
“Majority Participating Creditors” means, at any time, a Participating Creditor or Participating Creditors the Base Currency Amount of whose Exposures under the Facilities at that time aggregate 66.67 per cent. or more of the Base Currency Amount of all the Exposures of the Participating Creditors under all of the Facilities at that time.
“Marketable Securities” means securities (whether equity, debt or other securities) which are listed on a stock exchange or for which a trading market exists (whether on market or over the counter) but excluding: (A) shares in any member of the Group, and (B) any shares in Axtel, S.A.B. de C.V.
“Material Acquisition” means any (a) acquisition of property or series of related acquisitions of property that constitutes assets comprising all or substantially all of an operating unit, division or line of business or (b) acquisition of or other investment in the Capital Stock of any Subsidiary or any person which becomes a Subsidiary or is merged or consolidated with the Borrower or any of its Subsidiaries, in each case, which involves the payment of consideration by the Borrower and its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
 
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“Material Disposal” means any Disposal of property or series of related Disposals of property that yields gross proceeds to the Company or any of its Subsidiaries in excess of $100,000,000 (or the equivalent in other currencies).
“Mexican FRS” means Mexican Financial Reporting Standards (Normas de Información Financiera) as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 (Financial Statements).
“Mexican pesos,” “Mex$,” “MXN” and “pesos” means the lawful currency of Mexico.
“Mexico” means the United Mexican States.
“Moody’s” means Moody’s Investor Services Limited or any successor to its ratings business.
“NAFTA” means the North American Free Trade Agreement.
“New Finance Document” means the 2009 Financing Agreement, the NY Law Amendment Agreement, the Intercreditor Agreement, each Transaction Security Document, any Accession Letter, any Fee Letter, any Resignation Letter and any other document designated as a “ New Finance Document ” by the Administrative Agent and the Company.
“New Equity Securities” means
 
 	(i)	The U.S.$977.5 million aggregate principal amount of 3.25% convertible subordinated notes due 2016, including U.S.$177.5 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2016; and	
 
 	(ii)	U.S. $690 million aggregate principal amount of 3.75% convertible subordinated notes due 2018, including U.S.$90 million notes issued pursuant to an over-allotment option in connection with those subordinated notes due 2018.	
in each case, issued on 15 March 2011 by the Company.
“NY Law Amendment Agreement” means the omnibus amendment agreement dated on or about the date of the 2009 Financing Agreement between, among others, the Company and the Participating Creditors with Exposures under those Existing Facility Agreements (other than the USPP Note Agreement) that are governed by the laws of the State of New York, as such agreement may be amended from time to time.
“Obligors” means the Borrowers, the Guarantors and the Security Providers and “Obligor” means any of them.
“Original Borrowers” means, together with the Company, the Subsidiaries of the Company listed in Part I of Schedule 1 ( The Original Parties ) of the 2009 Financing Agreement as borrowers or issuers.
“Original Financial Statements” means (a) in relation to the Company, its audited unconsolidated and consolidated financial statements for its Financial Year ended 31 December 2008 accompanied by an audit opinion of KPMG Cardenas Dosal, S.C.; (b) in relation to
 
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CEMEX España, its audited consolidated financial statements for its financial year ended 31 December 2008; and (c) in relation to any other borrower or guarantor under the 2009 Financing Agreement, its most recent annual financial statements (audited, if available).
“Original Guarantors” means the Subsidiaries of the Company listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as guarantors, together with the Company.
“Original Participating Creditors” means the financial institutions and noteholders listed in Part II of Schedule 1 ( The Original Participating Creditors ) of the 2009 Financing Agreement as creditors.
“Original Security Providers” means the Subsidiaries of the Company listed in Part I of Schedule 1 (The Original Parties ) of the 2009 Financing Agreement as security providers.
“Participating Creditor” means:
 
 	(a)	any Original Participating Creditor; and	
 
 	(b)	any person which has become a Party in accordance with Clause 27 (Changes to the Participating Creditors ), of the 2009 Financing Agreement,	
which in each case has not ceased to be a Party in accordance with the terms of the 2009 Financing Agreement.
“Participating Member State” means any member state of the European Union that adopts or has adopted the euro as its lawful currency in accordance with legislation of the European Union relating to Economic and Monetary Union.
“Party” means a party to the 2009 Financing Agreement.
“Permitted Acquisition” means:
 
 	(a)	an acquisition by a member of the Group of an asset sold, leased, transferred or otherwise disposed of by another member of the Group in circumstances constituting a Permitted Disposal;	
 
 	(b)	an acquisition of shares or securities pursuant to a Permitted Share Issue;	
 
 	(c)	an acquisition of cash or securities which are Cash Equivalent Investments;	
 
 	(d)	an acquisition to which a member of the Group is contractually committed as at the date of the 2009 Financing Agreement, with the material terms of those acquisitions requiring consideration payable in excess of $10,000,000 described in the list delivered to the Administrative Agent under paragraph 4(f) of Part I (Initial Conditions Precedent) of Schedule 2 of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such acquisition subsequent to the date of the 2009 Financing Agreement);	
 
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 	(e)	the incorporation of a company which on incorporation becomes a member of the Group or which is a special purpose vehicle, whether a member of the Group or not;	
 
 	(f)	an acquisition that constitutes a Permitted Joint Venture;	
 
 	(g)	an acquisition of assets and, if applicable, cash, in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash element of any such acquisition must not be more than 20 per cent. of the aggregate consideration for the acquisition; and (ii) the maximum aggregate market value of the assets acquired pursuant to all such transactions must not be more than $100,000,000 (or its equivalent in any other currency) in any Financial Year;	
 
 	(h)	any acquisition of shares of the Company pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(i)	any other acquisition consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors;	
 
 	(j)	an acquisition of shares in the Company to the extent that a member of the Group has an obligation to deliver such shares to any holder(s) of convertible securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible securities; and	
 
 	(k)	any other acquisition of a company, of shares, securities or a business or undertaking (or, in each case, any interest in any of them)  provided that  the aggregate amount of the consideration for such acquisitions (when aggregated with the aggregate amount of Joint Venture Investment falling within paragraph (b)(iii)(1) of the definition of Permitted Joint Venture in that Financial Year) does not exceed $100,000,000 (or its equivalent in any other currencies) in any Financial Year.	
“Permitted Disposal” means any sale, lease, licence, transfer or other disposal which, except in the case of Disposals as between members of the Group, is on arm’s length terms:
 
 	(a)	of trading stock or cash made by any member of the Group in the ordinary course of trading of the disposing entity;	
 
 	(b)	of any asset by a member of the Group (the “Disposing Company”) to another member of the Group (the “ Acquiring Company ”), but if:	
 
 	(i)	the Disposing Company is an Obligor, the Acquiring Company must also be an Obligor;	
 
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 	(ii)	the Disposing Company had given Transaction Security over the asset, the Acquiring Company must give equivalent Transaction Security over that asset; and	
 
 	(iii)	the Disposing Company is a Guarantor, the Acquiring Company must be a Guarantor guaranteeing at all times an amount no less than that guaranteed by the Disposing Company,	
provided that the conditions set out in paragraphs (i), (ii) and (iii) above shall only apply if the applicable assets are shares or if all or substantially all of the assets of the Disposing Company are being disposed of;
 
 	(c)	of obsolete or redundant vehicles, machinery, parts and equipment in the ordinary course of trading;	
 
 	(d)	of cash or Cash Equivalent Investments for cash or in exchange for other Cash Equivalent Investments;	
 
 	(e)	constituted by a licence of Intellectual Property in the ordinary course of trading;	
 
 	(f)	to a Joint Venture, to the extent permitted by Clause 24.17 (Joint ventures) of the 2009 Financing Agreement;	
 
 	(g)	arising as a result of any Permitted Security;	
 
 	(h)	of any shares in a member of the Group (provided that all such shares in that entity owned by a member of the Group are the subject of the Disposal) or of any other asset, in each case on arm’s length terms and for full market value where:	
 
 	(i)	no less than 85 per cent. of the consideration for the Disposal is payable to the Group in cash or Marketable Securities paid or received by a member of the Group at completion of the Disposal ( provided that  where a portion of that 85 per cent. is comprised of Marketable Securities, those Marketable Securities must be disposed of for cash to a person that is not a member of the Group within 90 days of completion);	
 
 	(ii)	if the aggregate consideration for the Disposal (when aggregated with the consideration for any related Disposals) is equal to 5 per cent. or more of the value of consolidated assets of the Group, the Company has delivered to the Administrative Agent a certificate signed by an Authorised Signatory confirming that, on a  pro forma  basis, assuming that the Disposal had been completed and the proceeds had been applied in accordance with Clause 13 ( Mandatory Prepayment ) of the 2009 Financing Agreement immediately prior to the first day of the most recent Reference Period for which a Compliance Certificate has	
 
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 	been or is required to have been delivered under the 2009 Financing Agreement, the Company would have been in compliance with the financial covenants in paragraphs (a) and (b) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement as at the last day of the most recent Reference Period for which a Compliance Certificate has been or is required to have been delivered under the 2009 Financing Agreement; and	
 
 	(iii)	the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(i)	of any asset compulsorily acquired by a governmental authority provided that the Disposal Proceeds received by members of the Group are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement;	
 
 	(j)	of any receivables disposed of pursuant to a factoring or similar receivables financing arrangement that is otherwise permitted under the 2009 Financing Agreement (including, for the avoidance of doubt, the Banobras Facility);	
 
 	(k)	of any inventory disposed of pursuant to an Inventory Financing or similar arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(l)	of any plant or equipment disposed of pursuant to a sale and lease-back arrangement that is otherwise permitted under the 2009 Financing Agreement;	
 
 	(m)	of any asset to which a member of the Group was contractually committed as at the date of the 2009 Financing Agreement, with all material terms of those disposals which relate to the disposal of assets with a value of at least $10,000,000 being described in Schedule 14  (Disposals)  of the 2009 Financing Agreement ( provided that  there has been or is no material change to the terms of such Disposal subsequent to the date of the 2009 Financing Agreement);	
 
 	(n)	of receivables disposed of pursuant to a Permitted Securitisation;	
 
 	(o)	of land or buildings arising as a result of lease or licence in the ordinary course of its trading;	
 
 	(p)	of any shares of the Company pursuant to an obligation in respect of any Executive Compensation Plan;	
 
 	(q)	of shares, common equity securities in the Company or reference property in connection with the same to the extent that a member of the Group has an obligation to deliver such shares, common equity securities or reference	
 
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 	property to any holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities or to any counterparty pursuant to the terms of any Permitted Put/Call Transaction;	
 
 	(r)	of assets and, if applicable, cash in exchange for other assets and, if applicable, cash, of equal or higher value  provided that : (i) the cash element of any such Disposal must not be more than 20 per cent. of the aggregate consideration for the Disposal; and (ii) the maximum aggregate market value of all assets disposed of in such transactions must not be more than $100,000,000 (or its equivalent in any other currencies) in any Financial Year; or	
 
 	(s)	otherwise approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors.	
“Permitted Financial Indebtedness” means Financial Indebtedness:
 
 	(a)	incurred or arising under the Finance Documents;	
 
 	(b)	that is Existing Financial Indebtedness;	
 
 	(c)	owed to a member of the Group;	
 
 	(d)	that constitutes a Permitted Securitisation;	
 
 	(e)	arising under Capital Leases, factoring arrangements, Inventory Financing arrangements or export credit facilities for the purchase of equipment ( provided that  any Security granted in relation to any such facility relates solely to equipment, the purchase of which was financed under such Facility) or pursuant to sale and lease-back transactions  provided that  the maximum aggregate Financial Indebtedness of members of the Group under such transactions (excluding any Existing Financial Indebtedness) does not exceed $350,000,000 at any time;	
 
 	(f)	arising:	
 
 	(i)	pursuant to an issuance of bonds, notes or other debt securities, or of convertible or exchangeable securities by:	
 
 	(A)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 (Existing Financial Indebtedness) of the 2009 Financing Agreement, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX	
 
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 	Materials LLC and CEMEX, Inc.) that issued the relevant Existing Financial Indebtedness that is being refinanced or replaced (whether acting as co-issuers or otherwise but, for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of bonds, notes or other debt securities or convertible or exchangeable securities issued so as to be applied in repayment or prepayment of the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as co-issuers or otherwise, (and, for the avoidance of doubt, such securities may be issued with an original issue discount) on the capital markets in each case subscribed or paid for in full in cash on issue (unless such securities are exchanged on issue for other securities that constitute Existing Financial Indebtedness falling within paragraph (a) of the definition thereof on issue)  provided that (other than any conversion into common equity securities of the Company) no principal repayments are scheduled (and no call options can be exercised) in respect thereof until after the Termination Date;	
 
 	(ii)	under a loan facility in respect of which the only borrowers are:	
 
 	(A)	in the case of loan facilities entered into to refinance or replace Existing Financial Indebtedness falling within Part I of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) or the same member of the Group (including, where applicable, CEMEX Materials LLC and CEMEX, Inc.) that borrowed the relevant Existing Financial Indebtedness that is being refinanced or replaced, (whether acting as joint or multiple borrowers but for the avoidance of doubt, with several liability only); or	
 
 	(B)	in the case of loan facilities entered into so as to refinance or replace the Exposures of the Participating Creditors under the Facilities, one or more Obligors (other than CEMEX Materials LLC and CEMEX, Inc.) whether acting as joint or multiple borrowers,	
provided that no principal repayments are scheduled (and no mandatory prepayment obligations arise save as a result of unlawfulness affecting a creditor in respect of such loan facility) in respect thereof until after the Termination Date,
 
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and further provided that (1) the terms applicable to such issuance under paragraph (f)(i) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) taken as a whole are no more restrictive or onerous than the terms applicable to the Facilities, and the terms applicable to such incurrence under paragraph (f)(ii) (excluding pricing, but including, without limitation, as to prepayments, representations, covenants, events of default, guarantees and security) are no more restrictive or onerous than the terms applicable to the Facilities; (2) the proceeds of such issuance or incurrence are applied (to the extent required) in accordance with Clause 13 ( Mandatory prepayment ) of the 2009 Financing Agreement; (3) if proceeds of such issuance or incurrence are, to the extent required under the 2009 Financing Agreement, being used to replace or refinance (x) Financial Indebtedness which shares in the Transaction Security or (y) the CEMEX España Euro Notes, such Financial Indebtedness issued or incurred shall be entitled to share in the Transaction Security in accordance with (and on the terms of) the Intercreditor Agreement,  provided that  in the case of Financial Indebtedness issued or incurred to replace or refinance the CEMEX España Euro Notes, such Financial Indebtedness shall only be entitled to share in the Transaction Security if, prior to the first replacement or refinancing of the CEMEX España Euro Notes, the Debt Reduction Satisfaction Date has occurred; and (4) for the avoidance of doubt, any refinancing or replacement of Existing Financial Indebtedness falling within paragraphs (b) to (d) of the definition of Existing Financial Indebtedness need not satisfy the requirements of this paragraph (f);
 
 	(g)	that constitutes a Permitted Liquidity Facility;	
 
 	(h)	that becomes Financial Indebtedness solely as a result of any change in Applicable GAAP of the Company after the date of the 2009 Financing Agreement and that existed prior to the date of such change in Applicable GAAP of the Company (or that replaces, and is on substantially the same terms as, such Financial Indebtedness);	
 
 	(i)	of any person acquired by a member of the Group pursuant to an acquisition falling within paragraphs (d) or (f) of the definition of Permitted Acquisition  provided that : (i) such Financial Indebtedness existed prior to the date of the acquisition and was not incurred, increased or extended in contemplation of, or since, the acquisition; and (ii) the aggregate amount of any such Financial Indebtedness of members of the Group does not exceed $100,000,000 at any time;	
 
 	(j)	under Treasury Transactions entered into in accordance with Clause 24.26 (Treasury Transactions) of the 2009 Financing Agreement;	
 
 	(k)	incurred pursuant to or in connection with any cash pooling or other cash management agreements in place with a bank or financial institution, but only to the extent of offsetting credit balances of the Company or its Subsidiaries pursuant to such cash pooling or other cash management arrangement;	
 
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 	(l)	constituting Financial Indebtedness for taxes levied, assessments due and other governmental charges required to be paid as a matter of law or regulation in the ordinary course of trading;	
 
 	(m)	that constitutes a Permitted Joint Venture;	
 
 	(n)	approved by the Administrative Agent acting on the instructions of the Majority Participating Creditors; and	
 
 	(o)	that, when aggregated with the principal amount of any other Financial Indebtedness not falling within paragraphs (a) to (n) above, does not exceed $200,000,000 (or its equivalent in other currencies) in aggregate at any time.	
“Permitted Fundraising” means:
 
 	(a)	any issuance of equity securities by the Company paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and not redeemable on or prior to the Termination Date and where such issue does not lead to a Change of Control;	
 
 	(b)	any issuance of equity-linked securities issued by any member of the Group that are linked solely to, and result only in the issuance of, equity securities of the Company otherwise entitled to be issued under this definition (and that do not, for the avoidance of doubt, result in the issuance of any equity securities by such member of the Group) and that are paid for in full in cash on issue (and, for the avoidance of doubt, such securities may be issued with an original issue discount) and where such issue does not lead to a Change of Control ( provided that  such securities do not provide for the payment of interest in cash and are not redeemable on or prior to the Termination Date); and	
 
 	(c)	any incurrence of Financial Indebtedness falling within paragraph (f) of the definition of Permitted Financial Indebtedness.	
“Permitted Fundraising Proceeds” means the cash proceeds received by any member of the Group from a Permitted Fundraising other than Excluded Fundraising Proceeds after deducting:
 
 	(i)	any reasonable expenses which are incurred by the relevant member(s) of the Group with respect to that Permitted Fundraising owing to persons who are not members of the Group; and	
 
 	(ii)	any Tax incurred and required to be paid by the relevant member(s) of the Group with respect to that Permitted Fundraising (as reasonably determined by the relevant member(s) of the Group on the basis of rates existing at the time and taking account of any available credit, deduction or allowance).	
 
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“Permitted Joint Venture” means any investment in any Joint Venture where:
 
 	(a)	such investment exists or a member of the Group is contractually committed to such investment at the date of the 2009 Financing Agreement and, if the value of the Group’s investment in such Joint Venture is $50,000,000 or greater (as shown in the Original Financial Statements of the Company) is detailed in Schedule 12 (Permitted Joint Ventures) of the 2009 Financing Agreement; or	
 
 	(b)	such investment is made after the date of the 2009 Financing Agreement and:	
 
 	(i)	either the investment has been consented to by the Administrative Agent acting on the instructions of the Majority Participating Creditors or the Joint Venture is engaged in a business substantially the same as that carried on by the Group; and	
 
 	(ii)	in any Financial Year of the Company, the aggregate of:	
 
 	(1)	all amounts subscribed for shares in, lent to, or invested in all such Joint Ventures by any member of the Group;	
 
 	(2)	the contingent liabilities of any member of the Group under any guarantee given in respect of the liabilities of any such Joint Venture; and	
 
 	(3)	the market value of any assets transferred by any member of the Group to any such Joint Venture, minus	
 
 	(4)	from and including 1 January 2010, an amount up to, but not exceeding, $100,000,000 (or its equivalent in other currencies) in any Financial Year that represents all cash amounts received by any member of the Group (i) relating to dividends, repayment of loans or distributions of any other nature in respect of any such Joint Ventures in that Financial Year and (ii) as a result of or in relation to any disposals of shares, interests or participations, divestments, capital reductions or any similar decreases of interest in any such Joint Ventures in that Financial Year, does not exceed $100,000,000 (or its equivalent in other currencies) or such greater amount as the Administrative Agent (acting on the instructions of the Majority Participating Creditors) may agree (such amount being the “Joint Venture Investment”); and	
 
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 	(iii)	the Company has (by written notice to the Administrative Agent prior to the end of the Financial Year in which the investment is made) designated the Joint Venture Investment as counting against:	
 
 	(1)	paragraph (k) of the definition of Permitted Acquisition; or	
 
 	(2)	the maximum amount of Capital Expenditure permitted in that Financial Year under paragraph (c) of Clause 23.2 ( Financial condition ) of the 2009 Financing Agreement.	
“Permitted Liquidity Facilities” means a loan facility or facilities made available to one or more members of the Group by one or more Participating Creditors (or their respective Affiliates)  provided that  the aggregate principal amount of utilised and unutilised commitments under such facilities must not exceed $1,000,000,000 (or its equivalent in any other currency) at any time.
“Permitted Put/Call Transaction” means any call option, call spread, capped call transaction, put option, put spread, capped put transaction or any combination of the foregoing and/or any other Treasury Transaction or transactions having a similar effect to any of the foregoing, in each case entered into, sold or purchased not for speculative purposes but for the purposes of managing specific risks or exposures associated with any issuance of Relevant Convertible Securities/Exchangeable Obligations.
“Permitted Securitisations” means a transaction or series of related transactions providing for the securitisation of receivables and related assets by the Company or its Subsidiaries, including a sale at a discount,  provided that (i) such receivables have been transferred, directly or indirectly, by the originator thereof to a person that is not a member of the Group in a manner that satisfies the requirements for an absolute conveyance (or, where the originator is organised in Mexico, a true sale), and not merely a pledge, under the laws and regulations of the jurisdiction in which such originator is organised; and (ii) except for customary representations, warranties, covenants and indemnities, such sale, transfer or other securitisation is carried out on a non-recourse basis or on a basis where recovery is limited solely to the collection of the relevant receivables.
“Permitted Security” means:
 
 	(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 Applicable GAAP of the Company shall have been made;	
 
 	(B)	Security granted pursuant to or in connection with any netting or set-off arrangements entered into in the ordinary course of trading (including, for the avoidance of doubt, any cash pooling or cash management arrangements in place with a bank or financial institution falling within paragraph (k) of the definition of Permitted Financial Indebtedness);	
 
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 	(C)	statutory liens of landlords and liens of carriers, warehousemen, mechanics and materialment incurred in the ordinary course of business for sums not yet due or the payment of which is being contested in good faith by appropriate proceedings promptly initiated and diligently conducted and for which such reserves or other appropriate provision, if any, as shall be required by Applicable GAAP of the Company shall have been made;	
 
 	(D)	liens incurred or deposits made in the ordinary course of business in connection with (1) workers’ compensation, unemployment insurance and other types of social security, or (2) other insurance maintained by the Group in accordance with Clause 24.9 ( Insurance ) of the 2009 Financing Agreement;	
 
 	(E)	any attachment or judgment lien, unless the judgment it secures shall not, within 60 days after the entry thereof, have been discharged or execution thereof stayed pending appeal, or shall not have been discharged within 60 days after the expiration of any such stay;	
 
 	(F)	Security and Quasi-Security existing on the date of the 2009 Financing Agreement as described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement (or any replacement of Security or Quasi-Security in accordance with paragraph 3 of Schedule 15 ( Hedging Parameters ) of the 2009 Financing Agreement or any equivalent Security or Quasi-Security for Existing Financial Indebtedness that is a refinancing or replacement of Existing Financial Indebtedness)  provided that  the principal amount secured thereby is not increased (save that principal amounts secured by Security or Quasi-Security in respect of:	
 
 	(1)	Treasury Transactions where there are fluctuations in the mark-to-market exposures of those Treasury Transactions;	
 
 	(2)	Existing Financial Indebtedness under paragraph (a) of the definition where principal may increase by virtue of capitalisation of interest; and,	
 
 	(3)	the Banobras Facility, where further drawings may be made provided that the maximum amount outstanding under such facility does not exceed Mex$5,000,000,000 at any time,	
may be increased by the amount of such fluctuations or capitalisations, as the case may be);
 
 	(G)	any Security or Quasi-Security permitted by the Administrative Agent, acting on the instructions of the Majority Participating Creditors;	
 
 	(H)	any Security created or deemed created pursuant to a Permitted Securitisation;	
 
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 	(I)	any Security granted by any member of the Group to secure Financial Indebtedness under a Permitted Liquidity Facility  provided that : (1) such Security is not granted in respect of assets that are the subject of the Transaction Security; and (2) the maximum aggregate amount of the Financial Indebtedness secured by such Security does not exceed $500,000,000 at any time;	
 
 	(J)	any Security granted by the Company or any member of the Group incorporated in Mexico in favour of a Mexican development bank (sociedad  nacional de crédito ) controlled by the government of Mexico (including Banco Nacional de Comercio Exterior, S.N.C., and Banco Nacional de Obras y Servicios Publicos, S.N.C.) securing indebtedness of the members of the Group in an aggregate additional amount of such indebtedness not exceeding $250,000,000 (or its equivalent in any other currency);	
 
 	(K)	any Security or Quasi-Security granted in connection with any Treasury Transaction, excluding any Treasury Transaction described in Schedule 6 ( Existing Security and Quasi-Security ) of the 2009 Financing Agreement, that constitutes Permitted Financial Indebtedness  provided that  the aggregate value of the assets that are the subject of such Security or Quasi-Security does not exceed $200,000,000 (or its equivalent in other currencies) at any time;	
 
 	(L)	Security or Quasi-Security granted or arising over receivables, inventory, plant or equipment that are the subject of an arrangement falling within paragraph (e) of the definition of Permitted Financial Indebtedness;	
 
 	(M)	the Transaction Security including, for the avoidance of doubt, any sharing in the Transaction Security referred to in paragraph (f) of the definition of Permitted Financial Indebtedness;	
 
 	(N)	any Quasi-Security that is created or deemed created on shares of the Company under paragraph (q) of the definition of Permitted Disposals by virtue of such shares being held on trust for the holders of the convertible securities pending exercise of any conversion option, where such Quasi-Security is customary for such transaction;	
 
 	(O)	in addition to the Security and Quasi-Security permitted by the foregoing paragraphs (A) to (N), Security or Quasi-Security securing indebtedness of the Company and its Subsidiaries (taken as a whole) not in excess of $500,000,000.	
“Permitted Share Issue” means:
 
 	(a)	a Permitted Fundraising falling within paragraphs (a) or (b) of the definition thereof;	
 
E-28

 	(b)	an issue of shares by a member of the Group which is a Subsidiary of the Company to another member of the Group or the Company (and, where the member of the Group has a minority shareholder, to that minority shareholder on a pro rata basis) where (if the existing shares of the Subsidiary are the subject of the Transaction Security) the newly-issued shares also become subject to the Transaction Security on the same terms;	
 
 	(c)	an issue of shares by the Company to comply with an obligation in respect of any Executive Compensation Plan; or	
 
 	(d)	an issue of common equity securities of the Company either (i) by the Company or (ii) to any member of the Group where the Company or that member of the Group has an obligation to deliver such shares to a counterparty pursuant to the terms of a Permitted Put/Call Transaction or an obligation to deliver such shares to the holder(s) of convertible or exchangeable securities falling within paragraph (f)(i) of the definition of Permitted Financial Indebtedness pursuant to the terms of such convertible or exchangeable securities.	
“Promissory Notes” means the promissory notes described in Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“Quarter Date” means each of 31 March, 30 June, 30 September and 31 December.
“Quasi Security” means an arrangement or transaction in which the Company or any Subsidiary:
 
 	(i)	sells, transfers or otherwise disposes of any of its assets on terms whereby they are or may be leased to or re-acquired by an Obligor or any other member of the Group;	
 
 	(ii)	sells, transfers or otherwise disposes of any of its receivables on recourse terms;	
 
 	(iii)	enters into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or	
 
 	(iv)	enters into any other preferential arrangement having a similar effect,	
in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset.
“Receiver” means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Properties.
“Reference Period” means a period of four consecutive Financial Quarters.
 
E-29

“Relevant Convertible/Exchangeable Obligations” means: (a) any Financial Indebtedness incurred by any person the terms of which provide that satisfaction of the principal amount owing under such Financial Indebtedness (whether on or prior to its maturity and whether as a result of bankruptcy, liquidation or other default by such person or otherwise) shall occur solely by delivery of shares or common equity securities in the Company; and (b) any Financial Indebtedness under any Subordinated Optional Convertible Securities.
“Relevant Existing Financial Indebtedness” means any Existing Financial Indebtedness set out in:
 
 	(i)	paragraph (a) of the definition of Existing Financial Indebtedness to the extent that it relates to Part I.C ( Mexican Public Debt Instruments ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement; and/or	
 
 	(ii)	paragraph (b) of the definition of Existing Financial Indebtedness to the extent it relates to Part II.A (Short Term Certificados Bursátiles ) of Schedule 10 ( Existing Financial Indebtedness ) of the 2009 Financing Agreement and any Short-Term Certificados Bursatiles that replace or refinance such Existing Financial Indebtedness.	
“Relevant Prepayment Period” means the period commencing on the date of receipt of the proceeds of a Permitted Fundraising by a member of the Group and ending on the later of:
 
 	(a)	the date falling 364 days thereafter; and	
 
 	(b)	the 2012 CB Maturity Date.	
“Resignation Letter” means a document substantially in the form set out in Part I of Schedule 11 (Form of Resignation Letter ) of the 2009 Financing Agreement.
“Responsible Officer” means the Chief Financial Officer and/or Chief Controlling Officer of the Company or a person holding equivalent status (or higher).
“S&P” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc., or any successor thereto from time to time.
“SEC” means the U.S. Securities Exchange Commission and any successor thereto.
“Secured Parties” means each Finance Party from time to time to the 2009 Financing Agreement and any Receiver or Delegate.
“Security “ means a mortgage, charge, pledge, lien, security trust or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect.
“Security Agent” means Wilmington Trust (London) Limited as security agent of the Secured Parties.
“Security Providers” means the Original Security Providers and any Additional Security Provider other than any Original Security Provider or Additional Security Provider which has ceased to be a Security Provider pursuant to Clause 28.6 ( Resignation of a Security Provider ) of the 2009 Financing Agreement and has not subsequently become an Additional Security Provider pursuant to Clause 28.3 ( Additional Guarantors and Additional Security Providers ) of the 2009 Financing Agreement, and “ Security Provider ” means any of them.
 
E-30

“Short-Term Certificados Bursatiles” means any securities with a term of not more than 12 months issued by the Company in the Mexican capital markets with the approval of the Mexican National Banking and Securities Banking and Securities Commission and listed on the Mexican Stock Exchange.
“Spanish GAAP” means the Spanish General Accounting Plan (Plan general Contable) approved by Royal Decree 1514/2007 as in effect from time to time and consistent with those used in the preparation of the most recent audited financial statements referred to in Clause 22.1 ( Financial Statements ) of the 2009 Financing Agreement.
“Subordinated Optional Convertible Securities” means any Financial Indebtedness incurred by any member of the Group meeting the requirements of paragraph (f)(i) of the definition of Permitted Financial Indebtedness (including that no principal repayments are scheduled (and no call options can be exercised) until after the Termination Date) (which may, for the avoidance of doubt, include a fundraising the proceeds of which are applied in accordance with Clause 13.4 ( Mandatory prepayments: Relevant Convertible/Exchangeable Obligations ) of the 2009 Financing Agreement)) the terms of which provide that such indebtedness is capable of optional conversion into equity securities of the Company and that repayment of principal and accrued but unpaid interest thereon is subordinated (under terms customary for an issuance of such Financial Indebtedness) to all senior Financial Indebtedness of the Company (including, but not limited to, all Exposures of Participating Creditors) except for: (i) indebtedness that states, or is issued under a deed, indenture, agreement or other instrument that states, that it is subordinated to or ranks equally with any Subordinated Optional Convertible Securities and (ii) indebtedness between or among members of the Group.
“Subsidiary” means in relation to any company or corporation, a company or corporation:
 
 	(a)	which is controlled, directly or indirectly, by the first mentioned company or corporation;	
 
 	(b)	more than half the issued share capital of which is beneficially owned, directly or indirectly by the first mentioned company or corporation; or	
 
 	(c)	which is a Subsidiary of another Subsidiary of the first mentioned company or corporation,	
and for this purpose, a company or corporation shall be treated as being controlled by another if that other company or corporation is able to direct its affairs and/or to control the composition of its board of directors or equivalent body.
“Syndicated Bank Facilities” means the facilities described in Part IA of Part II of Schedule 1 (The Original Participating Creditors ) of the 2009 Financing Agreement.
“TARGET2” means the Trans-European Automated Real-time Gross Settlement Express Transfer payment system, which utilizes a single shared platform and which was launched on 19 November 2007.
 
E-31

“TARGET Day” means any day on which TARGET2 is open for the settlement of payments in euro.
“Tax” means any tax, levy, impost, duty or other charge, deduction or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same).
“Termination Date” means 14 February 2014.
“Transaction Security” means the Security created or expressed to be created in favour of the Security Agent pursuant to the Transaction Security Documents.
“Transaction Security Documents” means each of the documents listed as being a Transaction Security Document in paragraph 2(e) of Part I of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement and any document required to be delivered to the Administrative Agent under paragraph 3(d) of Part II of Schedule 2 ( Conditions Precedent ) of the 2009 Financing Agreement together with any other document entered into by any Obligor creating or expressed to create any Security over all or any part of its assets in respect of the obligations of any of the Obligors under any of the Finance Documents (and any other Debt Documents).
“Treasury Transactions” means any derivatives transaction (i) that is a rate swap transaction, swap option, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option, credit protection transaction, credit swap, credit default swap, credit default option, total return swap, credit spread transaction, repurchase transaction, reverse repurchase transaction, buy/sell-back transaction, securities lending transaction, weather index transaction or forward purchase or sale of a security, commodity or other financial instrument or interest (including any option with respect to any of these transactions), (ii) that is a type of transaction that is similar to any transaction referred to in clause (i) above that is currently, or in the future becomes, recurrently entered into in the financial markets and that is a forward, swap, future, option or other derivative (including one or more spot transactions that are equivalent to any of the foregoing) on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, economic indices or measures of economic risk or value, or other benchmarks against which payments or deliveries are to be made or (iii) that is a combination of these transactions, it being understood that any Executive Compensation Plan permitted by the 2009 Financing Agreement is not a Treasury Transaction.
“USPP Note” means a note issued under the USPP Note Agreement.
“USPP Note Agreement” means the consolidated, amended and restated note purchase agreement described in Part II of Schedule 1 ( Original Participating Creditors)  of the 2009 Financing Agreement.
“USPP Note Guarantee” means the consolidated, amended and restated note guarantee granted in favour of the USPP Noteholders.
“USPP Noteholders” means the holders from time to time of the notes issued pursuant to the USPP Note Agreement.
 
E-32

Exhibit 4.49

 	  	 	 	RAFAEL MONJO CARRIÓ	  	 	 	
 	  	 	 	Notary Public	  	 	 	 	
 	  	 	 	C/ Monte Esquinza, 6	  	 	 	 	 	
 	  	 	 	28010 MADRID	  	 	 	 	 	 	
 	  	 	 	Tel.: 91 418 32 80 Fax: 91 319 90 46	  	 	 	 	 	 	 	

ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A. GRANTED BY THE ENTITIES “THE BANK OF NEW YORK MELLON” and “CEMEX ESPAÑA, S.A.”
NUMBER FIVE HUNDRED AND SIXTEEN
In Madrid, at my office on the first of April of two thousand and fourteen.
Before me, JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO, Notary Public of Madrid and its Bar Association, substituting my colleague  RAFAEL MONJO CARRIO,  due to his unavoidable absence,
APPEAR:
MRS. ANA MARÍA ARIAS SOMALO, of legal age, of Spanish nationality, domiciled for these purposes at calle José Abascal, number 45, 28010 Madrid; with National Identification Card number 000410487-Y.
MR. ÁNGEL MÉNDEZ MOLINA, of legal age, domiciled for these purposes at calle Hernández de Tejada, number 1, 28027 Madrid; with National Identification Card number 25713441-Q.

ACTING:
The first, in the name and representation of THE BANK OF NEW YORK MELLON (hereinafter, the “ Bank ”), entity constituted in accordance with the laws of the State of New York (United States of America), with its corporate domicile at One Wall Street, New York, N.Y. 10286, United States of America, which in turn acts in representation and to the benefit of the holders of Senior Secured Notes for an added principal maximum amount of  400 hundred million euros, at an interest rate of 5.250% ,  with maturity in 2021 , notwithstanding the cases of early repayment that have been foreseen, issued under the bond issuance agreement (Indenture) governed by the laws of the State of New York (United States of America), signed on  April 1, 2014  by, among others, CEMEX FINANCE LLC, a corporation constituted under the laws of Delaware, United States of America, as issuer, and The Bank of New York Mellon, as Trustee (hereinafter, together with its subsequent modifications or novations, the “ Bonds Issuance ”).

 	 	 	

She makes use of the power of attorney in effect, as affirmed, in her favor, conferred through the document granted before the Notary Public of New York, Mr. Danny Lee, on the first of April of two thousand and fourteen, a photocopy of which has been shown to me and the original, duly stamped according to the La Hague Convention of October 5, 1961, I will attach hereto, by means of written substantiation, when it is submitted to me.
The second party, in name and representation of the entity CEMEX ESPAÑA, S.A., entity governed under the laws of Spain (formerly Compañía Valenciana de Cementos Portland, S.A.), and with its corporate domicile in Madrid, calle Hernández de Tejada, number 1, the purpose of which, among others, is the manufacture, production, marketing and distribution of all kinds of sacks and containers or similar articles, of paper or any other material, for the packaging of cement, etc.
It was constituted for an indefinite duration in

the document authorized by the Notary Public at the time in Valencia, Mr. Juan Bautista Roch Contelles, on April 30, 1917, adapted to current legislation through the document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert on July 13, 1990; with said constitution REGISTERED in the Commercial Registry of Valencia, under volume 122, book 28 of companies, section 3 of corporations, page 354, registry 1. The adaptation is registered in the aforementioned Registry, under volume 2854, book 10, general section, page V2533, registry 165. The bylaws of the company were also amended through another public document authorized by the Notary Public of Madrid, Mr. Antonio Francés y de Mateo on August 12, 1993, with number 6796 of his notarial records, under record 200.
The above indicated current domicile was moved, through document authorized by the Notary Public of Valencia, Mr. Antonio Soto Bisquert, on June 29, 1995, with number 1489 of his notarial records, and registered in the Commercial Registry of Madrid, under volume 9743 and 9744, section 8, of the Book of Companies, folio 1 and 166, page number M-156542 records 1 and 2.

 	 	 	

Its name was changed to its current name through the agreement taken by the General Shareholders Meeting of the Company, in its meeting held on the twenty-fourth of June of two thousand and two, recorded as a document of public record, before me on the same day, under number 662 of my records, registry number 122.
Its Tax Identification number is: A-46.004.214.
He makes use of the powers in effect, as affirmed, in his power, conferred by agreement taken by the Administrative Board of the Company, at its meeting held on the twenty-sixth of February of two thousand and fourteen, recorded as a document of public record, before Mr. Monjo Carrio, on the twenty-seventh of March of two thousand and fourteen, under number 487 of my records, as accredited to me with an authorized copy of said document which I have before me.
For the purposes established in article 98 of

Law 24/2001 and in accordance with the Resolution of the General Directorate for Registries and Notary Affairs of April 12, 2002, I certify that, in my opinion, I consider that the representative powers accredited are sufficient for the execution of this document under the terms indicated below.
BENEFICIAL OWNERSHIP. – I, the Notary Public, expressly confirm that I have complied with the obligation of identifying the beneficial owner as imposed by Law 10/2010 of April 28, the result of which is recorded in a document authorized before me, on the eleventh of November of two thousand and ten, under number 2387 of my records, which has been modified since then as attested by the representative of the Company.
The parties appearing before me have, in my opinion, as they appear, the legal capacity and legitimate interest necessary to grant this  ADHERENCE DEED FOR THE SHARE PLEDGE POLICY OF CEMEX ESPAÑA, S.A.  and, for such purpose, in their capacity and for all applicable legal purposes,

 	 	 	

THEY HEREBY DECLARE
I. That, by virtue of the policy agreement granted before Mr. Rafael Monjo Carrio on November 8, 2012, registered with number 3530 in Section A of the Registry Book (hereinafter the “ Pledge Policy ”), CEMEX, S.A.B. de C.V. and New Sunward Holding B.V. constituted certain real pledge rights (hereinafter the “ Pledges ”) over the shares of the company CEMEX España, S.A. in its name.
II. That, in accordance with the Creditors Relation Agreement (as this is defined in the Pledge Policy), the creditors of the CEMEX group, in virtue of the issuance of bonds such as the Bonds Issuance will have the consideration of Additional Notes Creditors and, therefore, of Secured Parties according to the terms established in the Creditors Relation Agreement and in the Pledge Policy, and may obtain the benefit of the Pledges through their adhesion to the Pledge Policy according to the provisions of Clause 16 of the same.

IV. That, in accordance with the provisions of Clause 16 of the Pledge Policy, the Secured Parties in whose benefit the Relationship Manager acted, among which include the Bank, as trustee of the holders of bonds of the Bonds Issuance, may adhere to the Pledge Policy and ratify the content of the same, accepting the Pledges constituted in their favor as guarantee of the corresponding Secured Obligations, through appearance before Mr. Monjo, the substituting Notary Public.
Said adhesions will be carried out through the granting of the corresponding adhesion deed or policy, all without the need for a new consent from the pledgors, for having provided said consent previously in the Creditor Relation Agreement and in the Pledge Policy itself.
V. That the Bank expressly declares that the adhesion referred to in the Stipulations of this Document is formalized as a mere instrument of execution of the rights attributed to the Bank in

 	 	 	

the Pledge Policy, from which it is derived, so that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.
VI. That by virtue of the foregoing, the Bank wishes to grant this Adhesion Deed (hereinafter the “Deed”) in accordance with the following
STIPULATIONS
ONE. – ADHESION TO THE PLEDGE POLICY.
The Bank, through this Deed, adheres to, ratifies and approves the Pledge Policy to the fullest extent, the entire content of which it declares to know, therefore giving such granting full value and legal efficacy and accepting that the payment obligations resulting from the Bonds Issuance are guaranteed with a real first ranking pledge right over the Shares (as defined in the Pledge Policy), concurrent with the remaining Pledges.

The Bank REQUIRES from me, the Notary Public, to NOTIFY this adhesion to WILMINGTON TRUST (LONDON) LIMITED , domiciled for these purposes on the Third Floor, 1 King’s Arms Yard, London, United Kingdom, EC2R 7AF (attention Sajada Afzal), in her capacity as Relationship Manager and I, the Notary Public, accept said requirement.
CEMEX España, S.A., appears herein for the purposes of acknowledging itself as notified of this adhesion.
TWO. – APPLICABLE LAW AND JURISDICTION.
2.1 This Deed is subject to Spanish common law.
2.2 The Parties submit themselves expressly to the jurisdiction and competence of the Courts and Tribunals of Madrid for all matters that may result from the validity, interpretation, fulfillment and execution of this Deed.
HANDLING OF DATA. – The appearing parties accept the incorporation of their data and the copy of identification documents in the files of the Notary Public in order to carry out the functions inherent

 	 	 	

to the notarial activity and for the communication of data established in the Public Administration Law and, as applicable, for the Notary Public who follows the current one. They may exercise their rights to access, rectify, cancel and oppose at the authorizing Notary’s office.
It is thus stated and executed.
And I, the Notary Public, ATTEST:
a. – To have identified the appearing parties through their identification documents, indicated in the appearance clause, which have been shown to me.
b. – That the appearing parties, in my opinion, have the capacity and legal standing for the granting hereof.
c. – That the granting hereof by the appearing parties is legal, duly informed and made willingly.
d. – That I have read this public instrument to

the grantors thereof, having previously advised them of their right to read it for themselves, which they have done, and they have stated that they have been duly made aware of the entire content of the same, and they provide their consent, all in accordance with article 193 of the Notarial Regulations.
e. – That this public instrument is executed in six notarized pages, series BS numbers: 8278954 and the following five numbers in correlated order and I, the Notary Public, attest.- The signatures of the appearing parties follow.- Signed JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO. Signed. Notary Seal.
CERTIFICATE. – I, JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO, Notary Public of Madrid and its Bar Association, issue this certificate to record that on today’s date, the second of April of two thousand and fourteen, I have received a copy of the power of attorney granted by the entity THE BANK OF NEW YORK MELLON, before the Notary Public of New York, Mr. Danny Lee, on the first of April of two thousand and fourteen, duly legalized with the La Hague apostille, and I, the Notary Public, consider that the representative of the entity has

 	 	 	

sufficient powers to formalize the deed which is the object hereof. I leave a copy of said power incorporated hereto, forming an integral part of the same.
And with nothing further to record, I issue this document over this sole sheet of notarized paper and I, the Notary Public, attest. Signed. JOSÉ LUIS LÓPEZ DE GARAYO Y GALLARDO. Signed. Notary Seal.
CERTIFICATE. – To record that I, RAFAEL MONJO CARRIÓ, on the second of April of two thousand and fourteen, left filed at the Post Office Branch, located at office 2825494, E.O MINISTRY OF PUBLIC ADMINISTRATIONS, as a Certificate and notification of receipt, the non-certified copy of this deed, and that the official in charge of the service has given to me the receipt which bears the sending number RR268041984ES.
All of which I attest and that this certificate is issued after the deed on which it is based, on this sheet of notarized paper, of the BS

series, number 8278960. In Madrid on the second of April of two thousand and fourteen.- Signed. RAFAEL MONJO CARRIÓ. Signed. Notary Seal.

Exhibit 8.1
The following is a list of the significant subsidiaries of CEMEX, S.A.B. de C.V. as of December 31, 2013, including the name of each subsidiary and its country of incorporation.

1.	  	CEMEX Colombia S.A.	  	COLOMBIA	
 	 	 	
2.	  	CEMEX (Costa Rica), S.A.	  	COSTA RICA	
 	 	 	
3.	  	Assiut Cement Company	  	EGYPT	
 	 	 	
4.	  	CEMEX Beton Ile de France (SAS)	  	FRANCE	
 	 	 	
5.	  	CEMEX Central, S.A. de C.V.	  	MEXICO	
 	 	 	
6.	  	CEMEX Concretos, S.A. de C.V.	  	MEXICO	
 	 	 	
7.	  	CEMEX México, S.A. de C.V.	  	MEXICO	
 	 	 	
8.	  	Cemento Bayano, S.A.	  	PANAMA	
 	 	 	
9.	  	APO Cement Corporation	  	PHILIPPINES	
 	 	 	
10.	  	Solid Cement Corporation	  	PHILIPPINES	
 	 	 	
11.	  	CEMEX España, S.A.	  	SPAIN	
 	 	 	
12.	  	CEMEX España Operaciones, S.L.U.	  	SPAIN	
 	 	 	
13.	  	CEMEX Construction Materials Florida, LLC	  	USA	
 	 	 	
14.	  	CEMEX Construction Materials Pacific, LLC	  	USA	
 	 	 	
15.	  	CEMEX Corp.	  	USA	
 	 	 	
16.	  	CEMEX Finance LLC	  	USA	
 	 	 	
17.	  	CEMEX Materials, LLC	  	USA	
 	 	 	
18.	  	CEMEX Southeast LLC	  	USA	
 	 	 	
19.	  	CEMEX, Inc.	  	USA	
 	 	 	
20.	  	Gulf Coast Portland Cement Co.	  	USA	
 	 	 	
21.	  	Ready Mix USA LLC	  	USA	

Exhibit 12.1
Certification of the Principal Executive Officer of
CEMEX, S.A.B. de C.V.
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
CERTIFICATIONS
I, Lorenzo H. Zambrano, certify that:
 
 	1.	I have reviewed this annual report on Form 20-F of CEMEX, S.A.B. de C.V.;	
 
 	2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;	
 
 	3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;	
 
 	4.	The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:	
 
 	(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;	
 
 	(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;	
 
 	(c)	Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and	

 	(d)	Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and	
 
 	5.	The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):	
 
 	(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and	
 
 	(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.	
Date: April 28, 2014

    /s/ Lorenzo H. Zambrano	
Lorenzo H. Zambrano	
Chief Executive Officer	
CEMEX, S.A.B. de C.V.	

Exhibit 12.2
Certification of the Principal Financial Officer of
CEMEX, S.A.B. de C.V.
Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
CERTIFICATIONS
I, Fernando A. González, certify that:
 
 	1.	I have reviewed this annual report on Form 20-F of CEMEX, S.A.B. de C.V.;	
 
 	2.	Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;	
 
 	3.	Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;	
 
 	4.	The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:	
 
 	(a)	Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;	
 
 	(b)	Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;	
 
 	(c)	Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and	

 	(d)	Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and	
 
 	5.	The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):	
 
 	(a)	All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and	
 
 	(b)	Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.	
Date: April 28, 2014

 	
    /s/ Fernando A. González	
Fernando A. González,	
Executive Vice President of Finance and
Administration and Chief Financial Officer	
CEMEX, S.A.B. de C.V.	

Exhibit 13.1
Certification of the Principal Executive and Financial Officers of
CEMEX, S.A.B. de C.V.
Pursuant to 18 U.S.C. Section 1350,
as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the Annual Report on Form 20-F of CEMEX, S.A.B. de C.V. (the “Company”) for the year ended December 31, 2013, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), Lorenzo H. Zambrano, as Chief Executive Officer of the Company, and Fernando A. González, as Executive Vice President of Finance and Administration and Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:
 
 	(1)	The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and	
 
 	(2)	The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company as of the dates and periods set forth therein.	

 	 	    /s/ Lorenzo H. Zambrano	
Name:	 	Lorenzo H. Zambrano	
Title:	 	Chief Executive Officer	
Date:	 	April 28, 2014	

 	 	    /s/ Fernando A. González	
Name:	 	Fernando A. González	
Title:	 	Executive Vice President of Finance and
Administration and Chief Financial Officer	
Date:	 	April 28, 2014	
This certification is furnished as an exhibit to the Report and accompanies the Report pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and shall not be deemed filed by the Company for purposes of Section 18 of the Securities Exchange Act of 1934, as amended.

Exhibit 14.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
The Board of Directors and Stockholders
CEMEX, S.A.B. de C.V.:
We hereby consent to the incorporation by reference in (i) the Registration Statement on Form S-8 (File No. 333-13970) of CEMEX, S.A.B. de C.V., (ii) the Registration Statement on Form S-8 (File No. 333 83962) of CEMEX, S.A.B. de C.V., (iii) the Registration Statement on Form S-8 (File No. 333-86090) of CEMEX, S.A.B. de C.V., and (iv) the Registration Statement on Form S-8 (File No.333-128657) of CEMEX, S.A.B. de C.V. of our reports dated April 28, 2014, with respect to the consolidated balance sheets of CEMEX, S.A.B. de C.V. and subsidiaries (the Company) as of December 31, 2013 and 2012, and the related consolidated statements of operations, comprehensive loss, stockholders’ equity, and cash flows for the years ended December 31, 2013, 2012 and 2011, and the effectiveness of internal control over financial reporting as of December 31, 2013, which reports appear in the December 31, 2013 Annual Report on Form 20-F of CEMEX, S.A.B. de C.V.
KPMG Cardenas Dosal, S.C.
/s/ Luis Gabriel Ortiz Esqueda
Monterrey, N.L., Mexico
April 28, 2014

Exhibit 15.1
Disclosure of Mine Safety and Health Administration (“MSHA”) Safety Data
Section 1503(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”) requires certain disclosures by companies required to file periodic reports under the Securities Exchange Act of 1934 that operate mines regulated under the Mine Act. CEMEX’s U.S. quarry and mining operations are subject to MSHA regulation under the U.S. Federal Mine Safety and Health Act of 1977 (the “Mine Act”). MSHA inspects the Company’s quarries and mines on a regular basis and issues various citations and orders when it believes a violation has occurred under the Mine Act. Whenever MSHA issues a citation or order, it also generally proposes a civil penalty, or fine, related to the alleged violation. Citations or orders can be contested and appealed, and as part of that process, are often reduced in severity and amount, and are sometimes dismissed or vacated.
In January 2012, the SEC issued final rules and regulations implementing the mine safety disclosure requirements of Section 1503(a) of the Dodd-Frank Act. Pursuant to those rules and regulations, we have provided the information below for mining operations in the United States only. The Dodd-Frank Act and the implementing rules and regulations thereunder do not apply to mining and quarry operations outside the U.S.
The information in the table below reflects citations and orders MSHA issued to the Company during the year ended December 31, 2013. The data was compiled primarily from the data maintained on MSHA’s public website, the Mine Data Retrieval System (“MDRS”), as of January 27, 2014. In evaluating this information, consideration should also be given to factors such as: (i) the number of citations and orders may vary depending on the size and operation of the mine, (ii) the number of citations issued may vary from inspector to inspector and mine to mine, and (iii) citations and orders may be contested and appealed, and in that process, may be reduced in severity and amount, and may be dismissed or vacated.

Mine ID number(1)	  	Mine or Operating Name	 	Section
104
Significant
and
Substantial
Citations  (2)	 	Section
104(b)
Orders  (3)	 	Section
104(d)
Citations
and
Orders  (4)	 	Section
110(b)(2)
Violations (5)	 	Section
107(a)
Orders (6)	 	Total dollar
value of
MSHA
assessments
proposed (7)	 	 	Total
number
of
Mining
Related
Fatalities	 	Received
Notice of
Pattern of
Violations
Under
Section
104(e)
yes/no	 	Received
Notice of
Potential to
Have Pattern
under section
104(e)
yes/no	
0800078	  	Alico Road Quarry	 	4	 	0	 	0	 	0	 	0	 	 	6,690	  	 	0	 	no	 	no	
0401696	  	Azusa Quarry	 	0	 	0	 	0	 	0	 	0	 	 	138	  	 	0	 	no	 	no	
4102885	  	Balcones Plant	 	18	 	0	 	0	 	0	 	0	 	 	68,043	  	 	0	 	no	 	no	
4100994	  	Balcones Quarry	 	2	 	0	 	0	 	0	 	0	 	 	4,047	  	 	0	 	no	 	no	
0405701	  	Black Mountain Quarry	 	13	 	0	 	0	 	0	 	0	 	 	114,464	  	 	0	 	no	 	no	

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Mine ID number(1)	  	Mine or Operating Name	 	Section
104
Significant
and
Substantial
Citations  (2)	 	Section
104(b)
Orders  (3)	 	Section
104(d)
Citations
and
Orders  (4)	 	Section
110(b)(2)
Violations (5)	 	Section
107(a)
Orders (6)	 	Total dollar
value of
MSHA
assessments
proposed (7)	 	 	Total
number
of
Mining
Related
Fatalities	 	Received
Notice of
Pattern of
Violations
Under
Section
104(e)
yes/no	 	Received
Notice of
Potential to
Have Pattern
under section
104(e)
yes/no	
0800800	  	Brooksville Cement Plant	 	0	 	0	 	0	 	0	 	0	 	 	117	  	 	0	 	no	 	no	
0800024	  	Brooksville Quarry	 	0	 	0	 	0	 	0	 	0	 	 	200	  	 	0	 	no	 	no	
0801287	  	Brooksville South Cement Plant	 	1	 	0	 	0	 	0	 	0	 	 	2,847	  	 	0	 	no	 	no	
0402763	  	Cache Creek Quarry	 	1	 	0	 	0	 	0	 	0	 	 	^	  	 	0	 	no	 	no	
3503508	  	Canby Pit	 	0	 	0	 	0	 	0	 	0	 	 	127	  	 	0	 	no	 	no	
0200988	  	CEMEX - 19th Ave	 	0	 	0	 	0	 	0	 	0	 	 	1,374	  	 	0	 	no	 	no	
0202585	  	CEMEX - APEX	 	1	 	0	 	0	 	0	 	0	 	 	734	  	 	0	 	no	 	no	
0202606	  	CEMEX - Camp Verde	 	0	 	0	 	0	 	0	 	0	 	 	200	  	 	0	 	no	 	no	
0200717	  	CEMEX - Casa Grande	 	0	 	0	 	0	 	0	 	0	 	 	117	  	 	0	 	no	 	no	
0202896	  	CEMEX - Coolidge	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
0202601	  	CEMEX – County 19	 	0	 	0	 	0	 	0	 	0	 	 	200	  	 	0	 	no	 	no	
0201249	  	CEMEX - Globe / Bixby	 	1	 	0	 	0	 	0	 	0	 	 	463	  	 	0	 	no	 	no	
0202851	  	CEMEX - Gray Mountain	 	3	 	0	 	0	 	0	 	0	 	 	1,255	  	 	0	 	no	 	no	
0200722	  	CEMEX - Hwy 95	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
0202355	  	CEMEX - Maricopa	 	1	 	0	 	0	 	0	 	0	 	 	685	  	 	0	 	no	 	no	
0202571	  	CEMEX - McCormick	 	1	 	0	 	0	 	0	 	0	 	 	543	  	 	0	 	no	 	no	
 
2

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Mine ID number(1)	  	Mine or Operating Name	 	Section
104
Significant
and
Substantial
Citations  (2)	 	Section
104(b)
Orders  (3)	 	Section
104(d)
Citations
and
Orders  (4)	 	Section
110(b)(2)
Violations (5)	 	Section
107(a)
Orders (6)	 	Total dollar
value of
MSHA
assessments
proposed (7)	 	 	Total
number
of
Mining
Related
Fatalities	 	Received
Notice of
Pattern of
Violations
Under
Section
104(e)
yes/no	 	Received
Notice of
Potential to
Have Pattern
under section
104(e)
yes/no	
2600789	  	CEMEX - Paiute Pit	 	0	 	0	 	0	 	0	 	0	 	 	1,421	  	 	0	 	no	 	no	
0202670	  	CEMEX - Pima	 	2	 	0	 	0	 	0	 	0	 	 	1,194	  	 	0	 	no	 	no	
0202849	  	CEMEX - Prescott / Fain	 	1	 	0	 	0	 	0	 	0	 	 	408	  	 	0	 	no	 	no	
0202466	  	CEMEX - Sheephill Plant	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
2602082	  	CEMEX - Sierra Stone Quarry	 	0	 	0	 	0	 	0	 	0	 	 	200	  	 	0	 	no	 	no	
0202062	  	CEMEX - Sierra Vista	 	0	 	0	 	0	 	0	 	0	 	 	434	  	 	0	 	no	 	no	
0201037	  	CEMEX - West Plant #72	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
0202753	  	CEMEX - West Valley	 	0	 	0	 	0	 	0	 	0	 	 	^	  	 	0	 	no	 	no	
3300161	  	Cemex Fairborn Cement Plant	 	2	 	0	 	0	 	0	 	0	 	 	4,307	  	 	0	 	no	 	no	
0400173	  	Clayton Plant	 	2	 	0	 	0	 	0	 	0	 	 	3,702	  	 	0	 	no	 	no	
0900053	  	Clinchfield Plant	 	2	 	0	 	0	 	0	 	0	 	 	23,914	  	 	0	 	no	 	no	
3800127	  	Deerfield Sand	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
0100016	  	Demopolis Plant Cemex Inc	 	0	 	0	 	0	 	0	 	0	 	 	3,162	  	 	0	 	no	 	no	
4103816	  	East Loop 375 Sand Plt	 	5	 	0	 	2	 	0	 	0	 	 	5,480	  	 	0	 	no	 	no	
0401891	  	Eliot Plant	 	2	 	0	 	0	 	0	 	0	 	 	1,734	  	 	0	 	no	 	no	
0800519	  	FEC Quarry	 	3	 	0	 	0	 	0	 	0	 	 	2,611	  	 	0	 	no	 	no	
 
3

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Mine ID number(1)	  	Mine or Operating Name	 	Section
104
Significant
and
Substantial
Citations  (2)	 	Section
104(b)
Orders  (3)	 	Section
104(d)
Citations
and
Orders  (4)	 	Section
110(b)(2)
Violations (5)	 	Section
107(a)
Orders (6)	 	Total dollar
value of
MSHA
assessments
proposed (7)	 	 	Total
number
of
Mining
Related
Fatalities	 	Received
Notice of
Pattern of
Violations
Under
Section
104(e)
yes/no	 	Received
Notice of
Potential to
Have Pattern
under section
104(e)
yes/no	
4503424	  	Granite Falls Quarry	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
4000840	  	Knoxville Cement Plant	 	9	 	0	 	0	 	0	 	0	 	 	8,950	  	 	0	 	no	 	no	
1500040	  	Kosmos Cement Battletown Quarry*	 	0	 	0	 	0	 	0	 	0	 	 	127	  	 	0	 	no	 	no	
1504469	  	KOSMOS Cement Co.	 	7	 	0	 	2	 	0	 	0	 	 	56,283	  	 	0	 	no	 	no	
0801015	  	Krome Quarry	 	0	 	0	 	0	 	0	 	0	 	 	300	  	 	0	 	no	 	no	
2900445	  	La Luz Pit	 	2	 	0	 	0	 	0	 	0	 	 	775	  	 	0	 	no	 	no	
0801269	  	Lake Wales Sand Mine	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
0402843	  	Lapis Plant	 	3	 	1	 	0	 	0	 	0	 	 	3,208	  	 	0	 	no	 	no	
0401896	  	Lemon Cove Plant	 	3	 	1	 	0	 	0	 	0	 	 	864	  	 	0	 	no	 	no	
0500344	  	Lyons Cement Plant Cemex Inc	 	5	 	0	 	0	 	0	 	0	 	 	13,041	  	 	0	 	no	 	no	
0405216	  	Lytle Creek Pit	 	0	 	0	 	0	 	0	 	0	 	 	884	  	 	0	 	no	 	no	
4101066	  	McCombs Quarry	 	1	 	0	 	0	 	0	 	0	 	 	785	  	 	0	 	no	 	no	
4100046	  	McKelligon Canyon	 	1	 	0	 	0	 	0	 	0	 	 	5,906	  	 	0	 	no	 	no	
0800046	  	Miami Cement Plant	 	3	 	0	 	0	 	0	 	0	 	 	7,996	  	 	0	 	no	 	no	
0404140	  	Moorpark Quarry	 	1	 	0	 	0	 	0	 	0	 	 	897	  	 	0	 	no	 	no	
4100060	  	Odessa Cement Plant	 	7	 	0	 	0	 	0	 	0	 	 	15,067	  	 	0	 	no	 	no	
 
4

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Mine ID number(1)	  	Mine or Operating Name	 	Section
104
Significant
and
Substantial
Citations  (2)	 	Section
104(b)
Orders  (3)	 	Section
104(d)
Citations
and
Orders  (4)	 	Section
110(b)(2)
Violations (5)	 	Section
107(a)
Orders (6)	 	Total dollar
value of
MSHA
assessments
proposed (7)	 	 	Total
number
of
Mining
Related
Fatalities	 	Received
Notice of
Pattern of
Violations
Under
Section
104(e)
yes/no	 	Received
Notice of
Potential to
Have Pattern
under section
104(e)
yes/no	
0801216	  	Palmdale Sand Mine	 	1	 	0	 	0	 	0	 	0	 	 	^	  	 	0	 	no	 	no	
0401906	  	Patterson Plant	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
4503692	  	Portable #2	 	0	 	0	 	0	 	0	 	0	 	 	108	  	 	0	 	no	 	no	
0403623	  	Red Hill	 	4	 	0	 	0	 	0	 	0	 	 	2,627	  	 	0	 	no	 	no	
0200758	  	Rinker Materials Bullhead	 	0	 	0	 	0	 	0	 	0	 	 	100	  	 	0	 	no	 	no	
0401897	  	Rockfield Plant	 	1	 	0	 	0	 	0	 	0	 	 	707	  	 	0	 	no	 	no	
4103278	  	South Quarry	 	2	 	0	 	0	 	0	 	0	 	 	937	  	 	0	 	no	 	no	
0401895	  	Tracy Kerlinger Plant	 	4	 	0	 	0	 	0	 	0	 	 	5,676	  	 	0	 	no	 	no	
2902128	  	Vado Quarry	 	1	 	0	 	0	 	0	 	0	 	 	3,261	  	 	0	 	no	 	no	
0400281	  	Victorville Cement Plant	 	4	 	0	 	0	 	0	 	0	 	 	3,083	  	 	0	 	no	 	no	
4104308	  	West Quarry	 	2	 	0	 	0	 	0	 	0	 	 	1,180	  	 	0	 	no	 	no	
0801000	  	474 Sand Mine	 	1	 	0	 	0	 	0	 	0	 	 	390	  	 	0	 	no	 	no	
 
 *	A third party leased and operates this site, effective June 28, 2013. This data represents citations, orders, violations, assessments, etc. for the period of January 1, 2013 through June 28, 2013.	
 ^	As of December 31, 2013, the penalty had not yet been assessed or not yet contested.	
 	 	 	
(1)	  	MSHA assigns an identification number to each mine or operation and may or may not assign a separate identification number to related facilities. The information provided in this table is presented by mine identification number.	
 
5

 	 	 	
(2)	  	Represents the total number of citations issued by MSHA for violation of health or safety standards that could significantly and substantially contribute to a serious injury if left unabated.	
(3)	  	Represents the total number of orders issued, which represents a failure to abate a citation under section 104(a) within the period prescribed by MSHA. This results in an order of immediate withdrawal from the area of the mine affected by the condition until MSHA determines that the violation has been abated.	
(4)	  	Represents the total number of citation and orders issued by MSHA for unwarrantable failure to comply with mandatory health or safety standards.	
(5)	  	Represents the total number of flagrant violations identified.	
(6)	  	Represents the total number of imminent danger orders issued under section 107(a) of the Mine Act.	
(7)	  	Amounts represent the total dollar value of proposed assessments received from MSHA and do not necessarily relate to the citations or orders issued by MSHA during the period or to the pending legal actions reported below.	
 
6

The table below sets forth the total number of reportable legal actions for the twelve months ended December 31, 2013.

Mine ID Number	  	Mine or Operating Name	 	Legal Actions Pending as of Last Day of Period (December 31, 2013)
(#) (8)	 	Legal
Actions
Initiated
During
Period
(#)	 	Legal
Actions
Resolved
During
Period
(#)	 	
 	  	 	 	Contests
of
Citations
/Orders (9)	 	Contests
of
Proposed
Penalties (9)	 	Complaints
for
Compensation	 	Complaints of
Discharge /
Discrimination
/ Interference	 	Application
for
Temporary
Relief	 	Appeals
to
FMSHRC	 	 	 	 	 	 	
0800078	  	Alico Road Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	 	 	
4102885	  	Balcones Plant	 	7	 	7	 	0	 	0	 	0	 	0	 	3	 	7	 	 	
4100994	  	Balcones Quarry	 	6	 	6	 	0	 	0	 	0	 	0	 	1	 	0	 	 	
0100578	  	Bellwood**	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	 	 	
0405701	  	Black Mountain Quarry	 	48	 	48	 	0	 	0	 	0	 	0	 	15	 	12	 	 	
0800800	  	Brooksville Cement Plant	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	 	 	
0800024	  	Brooksville Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	2	 	 	
0801287	  	Brooksville South Cement Plant	 	2	 	2	 	0	 	0	 	0	 	0	 	0	 	0	 	 	
0402763	  	Cache Creek Quarry	 	11	 	11	 	0	 	0	 	0	 	0	 	2	 	0	 	 	
0800511	  	Card Sound Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	 	 	
0200722	  	CEMEX - Hwy 95	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	2	 	 	
2600789	  	CEMEX - Paiute Pit	 	2	 	2	 	0	 	0	 	0	 	0	 	2	 	0	 	 	
2602082	  	CEMEX - Sierra Stone Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	3	 	 	
0400173	  	Clayton Plant	 	7	 	7	 	0	 	0	 	0	 	0	 	4	 	18	 	 	
 
7

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
0900053	  	Clinchfield Plant	 	4	 	4	 	0	 	0	 	0	 	0	 	4	 	4	
3500965	  	Coyote Springs Sand & Gravel	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	
0100016	  	Demopolis Plant Cemex Inc	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	4	
4103816	  	East Loop 375 Sand Plt	 	3	 	3^	 	0	 	0	 	0	 	0	 	3	 	0	
0401891	  	Eliot Plant	 	4	 	4	 	0	 	0	 	0	 	0	 	4	 	13	
0800519	  	FEC Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	9	
4503039	  	Fisher Quarry	 	6	 	6	 	0	 	0	 	0	 	0	 	4	 	0	
4000840	  	Knoxville Cement Plant	 	11	 	11	 	0	 	0	 	0	 	0	 	1	 	12	
1500040	  	Kosmos Cement Battletown Quarry*	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	
1504469	  	KOSMOS Cement Co.	 	2	 	2	 	0	 	0	 	0	 	0	 	2	 	18	
2900445	  	La Luz Pit	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	2	
0801269	  	Lake Wales Sand Mine	 	1	 	1	 	0	 	0	 	0	 	0	 	1	 	0	
0402843	  	Lapis Plant	 	13	 	13	 	0	 	0	 	0	 	0	 	13	 	0	
0401896	  	Lemon Cove Plant	 	4	 	4	 	0	 	0	 	0	 	0	 	4	 	0	
0500344	  	Lyons Cement Plant Cemex Inc	 	1	 	1	 	0	 	0	 	0	 	0	 	0	 	26	
4100046	  	McKelligon Canyon	 	0	 	0	 	0	 	0	 	0	 	0	 	1	 	13	
0800046	  	Miami Cement Plant	 	11	 	11	 	0	 	0	 	0	 	0	 	14	 	26	
4100060	  	Odessa Cement Plant	 	11	 	11	 	0	 	0	 	0	 	0	 	2	 	1	
0801216	  	Palmdale Sand Mine	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	2	
4503692	  	Portable #2	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	
 
8

 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	
0403623	  	Red Hill	 	1	 	1	 	0	 	0	 	0	 	0	 	1	 	0	
0401897	  	Rockfield Plant	 	3	 	3	 	0	 	0	 	0	 	0	 	3	 	0	
4103278	  	South Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	
0401895	  	Tracy Kerlinger Plant	 	0	 	0	 	0	 	0	 	0	 	0	 	3	 	3	
2902128	  	Vado Quarry	 	2	 	2	 	0	 	0	 	0	 	0	 	0	 	0	
0400281	  	Victorville Cement Plant	 	4	 	4	 	0	 	0	 	0	 	0	 	4	 	5	
4104308	  	West Quarry	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	
3503596	  	West Salem Aggregate***	 	0	 	0	 	0	 	0	 	0	 	0	 	0	 	1	

(8)	  	Pending legal actions before the Federal Mine Safety and Health Review Commission (the “Commission”) as required to be reported by Section 1503(a)(3) of the Act.	
The following provides additional information regarding the types or categories of proceedings that may be brought before the Commission.

  A	    	Contest Proceedings - a contest proceeding may be filed with the Commission by an operator to challenge the issuance of a citation or order issued by MSHA;	
 	 	
  B	    	Civil Penalty Proceedings - a civil penalty proceeding may be filed with the Commission by an operator to challenge a civil penalty MSHA has proposed for a violation contained in a citation or order;	
 	 	
  C	    	Compensation Proceedings - a compensation proceeding may be filed with the Commission by miners entitled to compensation when a mine is closed by certain closure orders issued by MSHA. The purpose of the proceeding is to determine the amount of compensation if any, due to miners idled by the orders;	
 	 	 	
  D	    	(i)	  	Discrimination Proceedings – a discrimination proceeding involves a miner’s allegation that he or she has suffered adverse employment action because he or she engaged in activity protected under the Mine Act, such as making a safety complaint;	
 	 	 	
 	    	(ii)	  	Temporary Reinstatement Proceedings – a temporary reinstatement proceeding involves a case in which a miner has filed a complaint with MSHA stating that he or she has suffered discrimination and the miner has lost his or her position;	
 
9

 	 	 	 	 	
 	 	
E	    	Applications for Temporary Relief-applications for temporary relief of any order issued under Section 104; and	
 	 	
F	    	Appeals of judges’ decisions or orders to the FMSHRC.	
 
(9)	Contests pending as of year-end on the MDRS, but which are subsequently vacated, are not included in any reports on the MDRS. As a result, discrepancies may appear between the prior reporting year’s “Legal Actions Pending as of Last Day of Period (December 31, 2012)” and “Legal Actions Resolved During Year” for current reporting period.	
^	As of December 31, 2013, the penalty had not yet been assessed or not yet contested.	
*	A third party leased and operates this site, effective June 28, 2013. This data represents activity through June 27, 2013.	
**	Site sold by the Company, effective July 1, 2012. This data represents Legal Actions during the reporting period which relate to citations, orders, violations, assessments, etc. issued prior to July 1, 2012.	
***	Site sold by the Company, effective February 15, 2013. This data represents activity through February 14, 2013.	
 
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