EX-4.12.5


    

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

 
 
  
  
 
 
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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]
  
 

   

 
  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.