**Exhibit 4(g)**

 

**AMENDED ANDRESTATEDCREDIT AGREEMENT**

** **

**Dated as ofApril 29, 2003**

** **

**among**

** **

**GRUPO MINEROMEXICO, S.A. DE C.V.,**

** **

**MINERA MEXICO,S.A. DE C.V.,**

** **

**INDUSTRIAL MINERAMEXICO, S.A. DE C.V.,MINERA MEXICO INTERNACIONAL, INC.,MEXICANA DE COBRE, S.A. DE C.V.,MINERALES METALICOS DEL NORTE, S.A.,MEXICANA DE CANANEA, S.A. DE C.V.,MEXICANA DEL ARCO, S.A. DE C.V.,MINERALES Y MINAS MEXICANAS, S.A. DE C.V.,COMPANIA DE TERRENOS E INVERSIONES DE SAN LUIS POTOSI,**

**S.C. POR A., S.A.,MEXICO COMPAÑIA INMOBILIARIA, S.A., and**

**PROYECCIONESURBANISTICAS, S. DE R.L. DE C.V.**

 

**CERTAIN FINANCIALINSTITUTIONS,as Bank Holders,**

** **

**and**

 

**BANK OF AMERICA,N.A.,as Administrative Agent,**

 

----

 
| ARTICLE  1 | DEFINITIONS,  ETC.                             |
|------------|------------------------------------------------|
|       |                                           |   |
|       | SECTION  1.1                                   | Certain Defined Terms |
|       |                                           |   |   |
| ARTICLE 2  | THE LOANS                                      |
|       |                                           |   |   |
|       | SECTION  2.1                                   | Agreement to Amend and Restate Existing  Claims |
|       |                                           |   |   |
|       | SECTION  2.2                                   | Promissory  Notes |
|       |                                           |   |   |
|       | SECTION  2.3                                   | Prepayments |
|       |                                           |   |   |
|       | SECTION  2.4                                   | Repayment |
|       |                                           |   |   |
|       | SECTION  2.5                                   | Interest |
|       |                                           |   |   |
|       | SECTION 2.6                                    | Fees |
|       |                                           |   |   |
|       | SECTION  2.7                                   | Computations |
|       |                                           |   |   |
|       | SECTION  2.8                                   | Payments by the Borrower |
|       |                                           |   |   |
|       | SECTION  2.9                                   | Mutilated, Lost, Stolen or Destroyed Notes |
|       |                                           |   |   |
|       | SECTION  2.10                                  | Cancellation of Notes |
|       |                                           |   |   |
| ARTICLE  3 | TAXES; YIELD PROTECTION; ILLEGALITY;  PAYMENTS |
|       |                                           |   |   |
| ARTICLE  4 | CONDITIONS PRECEDENT                           |
|       |                                           |   |   |
|       | SECTION  4.1                                   | Conditions Precedent |
|       |                                           |   |   |
| ARTICLE  5 | REPRESENTATIONS AND WARRANTIES                 |
|       |                                           |   |   |
|       | SECTION  5.1                                   | Representations and Warranties |
|       |                                           |   |   |
| ARTICLE  6 | COVENANTS                                      |
|       |                                           |   |   |
|       | SECTION  6.1                                   | Affirmative Covenants |
|       |                                           |   |   |
|       | SECTION  6.2                                   | Negative Covenants |
|       |                                           |   |   |
|       | SECTION  6.3                                   | Financial Covenants |
|       |                                           |   |   |
| ARTICLE  7 | DEFAULT/REMEDIES                               |
|       |                                           |   |   |
|       | SECTION  7.1                                   | Events of Default/Remedies |
|       |                                           |   |   |
|       | SECTION  7.2                                   | Rights Not Exclusive |
|       |                                           |   |   |
| ARTICLE  8 | ADMINISTRATIVE AGENT                           |
|       |                                           |   |   |
|       | SECTION  8.1                                   | Appointment and Authorization of  Administrative Agent |
|       |                                           |   |   |
|       | SECTION  8.2                                   | Delegation of Duties |
|       |                                           |   |   |
|       | SECTION  8.3                                   | Liability of Administrative Agent |
|       |                                           |   |   |
|       | SECTION  8.4                                   | Reliance by the Administrative Agent |
|       |                                           |   |   |
|       | SECTION  8.5                                   | Notice  of Default |
|       |                                           |   |   |
|       | SECTION  8.6                                   | Credit Decision; Disclosure of Information  by Administrative Agent |
|            |                                                |  |  |  |  |

 

i

----

 
|       | SECTION  8.7  | Indemnification of Agent-Related Persons                |
|------------|---------------|---------------------------------------------------------|
|       |          |                                                    |   |
|       | SECTION  8.8  | The Agent-Related Persons in their  Individual Capacity |
|       |          |                                                    |   |
|       | SECTION  8.9  | Successor  Agent                                        |
|       |          |                                                    |   |
| ARTICLE  9 | MISCELLANEOUS |
|       |          |                                                    |   |
|       | SECTION  9.1  | Amendments and Waivers                                  |
|       |          |                                                    |   |
|       | SECTION  9.2  | Notices                                                 |
|       |          |                                                    |   |
|       | SECTION  9.3  | No Waiver; Cumulative Remedies                          |
|       |          |                                                    |   |
|       | SECTION  9.4  | Costs and Expenses                                      |
|       |          |                                                    |   |
|       | SECTION  9.5  | Indemnification                                         |
|       |          |                                                    |   |
|       | SECTION  9.6  | Payments Set Aside                                      |
|       |          |                                                    |   |
|       | SECTION  9.7  | Successors and Assigns                                  |
|       |          |                                                    |   |
|       | SECTION  9.8  | Additional Guarantors                                   |
|       |          |                                                    |   |
|       | SECTION  9.9  | Counterparts                                            |
|       |          |                                                    |   |
|       | SECTION  9.10 | Severability                                            |
|       |          |                                                    |   |
|       | SECTION  9.11 | Third Party Beneficiaries                               |
|       |          |                                                    |   |
|       | SECTION  9.12 | Governing Law and Jurisdiction                          |
|       |          |                                                    |   |
|       | SECTION  9.13 | Consent to Jurisdiction; Process Agent                  |
|       |          |                                                    |   |
|       | SECTION  9.14 | Waiver of Jury Trial                                    |
|       |          |                                                    |   |
|       | SECTION  9.15 | Currency                                                |
|       |          |                                                    |   |
|       | SECTION  9.16 | Entire  Agreement                                       |
|       |          |                                                    |   |
|       | SECTION  9.17 | English  Language                                       |
|       |          |                                                    |   |
|       | SECTION  9.18 | No Partnership, Etc                                     |
|       |          |                                                    |   |
|       | SECTION  9.19 | Releases                                                |
|       |          |                                                    |   |
|       | SECTION  9.20 | Survival                                                |
|       |          |                                                    |   |
|       | SECTION  9.21 | No  Novation                                            |
|       |          |                                                    |   |
|       | SECTION  9.22 | Bank Holders Restructured Loan Agreement                |

 

ii

----

 

***APPENDICES***

 
| APPENDIX  A     | Rules of Interpretation; Definitions |
|-----------------|--------------------------------------|
|            |                                 |
| ***SCHEDULES*** |                                 |
|            |                                 |
| SCHEDULE  2.1   | Existing Agreements                  |
| SCHEDULE  2.1.1 | Loans                                |
|            |                                 |
| ***EXHIBITS***  |                                 |
|            |                                 |
| EXHIBIT  A      | Form of Tranche A Note               |
| EXHIBIT  B      | Form of Tranche B Note               |
| EXHIBIT  C      | Form of Assignment and Assumption    |
| EXHIBIT  D      | Form of Joinder Agreement            |

 

iii

----

 

**AMENDED AND RESTATEDCREDIT AGREEMENT**

 

This Amended and Restated Credit Agreement (this “**Agreement**”) is entered intoas of April 29, 2003, by and among GRUPO MINERO MEXICO, S.A. DE C.V., a *sociedadanónima de capital variable* organized under the laws of Mexico, as“Borrower” prior to the Intercompany Payable Restructuring (“**GMM**”),MINERA MEXICO, S.A. DE C.V., a *sociedad anónima de capital variable*organized under the laws of Mexico (“***MM***”),INDUSTRIAL MINERA MEXICO, S.A. DE C.V., a *sociedad anónima de capital variable*organized under the laws of Mexico (“**IMMSA**”), MINERA MEXICO INTERNACIONAL, INC.,a New York corporation (“**MMI**”), MEXICANA DE COBRE, S.A.DE C.V., a *sociedad anónima de capital variable* organized under thelaws of Mexico (“***Mexcobre***”),MINERALES METALICOS DEL NORTE, S.A., a *sociedad anónima* organized under the lawsof Mexico (“***Mimenosa***”),MEXICANA DE CANANEA, S.A. DE C.V., a *sociedad anónima de capital variable*organized under the laws of Mexico (“***Mexcananea***”),MEXICANA DEL ARCO, S.A. DE C.V., a *sociedad anónima de capital variable*organized under the laws of Mexico (“***Mexarco***”),MINERALES Y MINAS MEXICANAS, S.A. DE C.V., a *sociedad anónima de capital variable*organized under the laws of Mexico (“***MMM***”),COMPANIA DE TERRENOS E INVERSIONES DE SAN LUIS POTOSI, S.C. POR A., S.A., a *sociedadanónima* organized under the laws of Mexico (“**TISLP**”), MEXICO COMPANIAINMOBILIARIA, S.A., a *sociedad anónima* organized under the lawsof Mexico (“**MCI**”), and PROYECCIONES URBANISTICAS, S. DE R.L. DE C.V.,****a*sociedadde responsabilidad limitada de capital variable* organized under thelaws of Mexico (“***PU***”, and,together with MM, IMMSA, MMI, Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM,TISLP, MCI, and any other Person that becomes a party to this Agreement byexecuting a Joinder Agreement (hereinafter defined), collectively, the “***Guarantors***” and each individually, a “***Guarantor***”; provided that, from and afterthe Intercompany Payable Restructuring, MM shall cease to be a Guarantor andshall become the “Borrower”), the financial institutions as are or may becomeparties hereto (the “**Bank Holders**”), and BANK OF AMERICA, N.A.,as the Administrative Agent for the Bank Holders (in such capacity, togetherwith its successors in such capacity, the “**Administrative Agent**”).

 

**WHEREAS**,the parties hereto include the parties to the existing facilities listed onSchedule 2.1 hereto (the “**Existing Agreements**”);

 

**WHEREAS**,GMM and each of the Guarantors parties to the Existing Agreements acknowledgethey currently owe debt in favor of the Bank Holders under the ExistingAgreements;

 

**WHEREAS**,the parties hereto desire to amend and restate the Existing Agreements, in theform of, and upon the terms and conditions set forth in, this Agreement and inthe Common Agreement, dated as of the date hereof (the “***Common Agreement***”) among the parties hereto andthe SEN Holders, the SEN Collateral Agent and Grupo Mexico Export Master TrustNo. 1, acting by and through The Bank of New York, as SEN Trustee; and

 

**WHEREAS**,GMM (or, if applicable, in accordance with the Common Agreement, MM) will bethe Borrower under the Common Agreement (and under this Agreement).

 

1

----

 

**NOW,THEREFORE**, in consideration of the mutual agreements,provisions and covenants contained herein, the parties agree to amend andrestate the Existing Agreements as follows:

 

**ARTICLE 1DEFINITIONS, ETC.**

** **

SECTION 1.1                                                  *Certain Defined Terms*.  (a) Capitalized terms defined in the CommonAgreement and used but not otherwise defined herein shall have the meaningsascribed thereto in the Common Agreement. This Agreement shall also be subject to paragraphs A-F set forth inAppendix A to the Common Agreement.

 

(b) Other capitalized terms used herein butnot otherwise defined herein shall have the meanings ascribed thereto inAppendix A hereto.

 

**ARTICLE 2THE LOANS**

** **

SECTION 2.1                                                  *Agreement to Amend and Restate Existing**Claims*.  Each Bank Holder severally agrees, on theterms and conditions set forth herein, and the Borrower and the Guarantorsagree, that, on the Closing Date, the Existing Agreements to which such BankHolder is a party shall be deemed to be amended and restated in their entiretyby this Agreement and the Common Agreement, and the Existing Claims of suchBank Holder in an aggregate principal amount set forth opposite the name ofsuch Bank Holder on Schedule 2.1.1 hereto shall be deemed to have been soamended and restated as follows:

 

(a)                                  theBorrower shall be obligated to repay to such Bank Holder loans in a principalamount equal to the amounts set forth opposite the name of such Bank Holder onSchedule 2.1.1 hereto under the caption “Tranche A Loans” (such loan, the “**Tranche ALoan**” of such Bank Holder); and

 

(b)                                 theBorrower shall be obligated to repay to such Bank Holder loans in a principalamount equal to the amounts set forth opposite the name of such Bank Holder onSchedule 2.1.1 hereto under the caption “Tranche B Loans” (such loan, the “**Tranche BLoan**” of such Bank Holder).

 

Once prepaid or repaid, no Tranche A Loan or Tranche B Loan may bereborrowed.

 

SECTION 2.2                                                  *Promissory Notes*.

 

(a)                                  EachBank Holder’s Loans shall be evidenced by one or more promissory notes (*pagarés*)of the Borrower, endorsed *por aval* by each Guarantor (and, in thecase of any such note held by a GM Guaranty Beneficiary, by GM in addition toeach such Guarantor), as follows:

 

2

----

 

(i)                                     EachBank Holder’s Tranche A Loan shall be evidenced by one or more Notessubstantially in the form of Exhibit A hereto in an aggregate principalamount equal to the amount of such Bank Holder’s Tranche A Loan; and

 

(ii)                                  EachBank Holder’s Tranche B Loan shall be evidenced by one or more Notessubstantially in the form of Exhibit B hereto in an aggregate principalamount equal to the amount of such Bank Holder’s Tranche B Loan.

 

(b)                                 TheBorrower and each of the Guarantors hereby acknowledge that, as of the datehereof, the Borrower owes to the Bank Holders: (i) the aggregate amount of OneHundred Twenty-Five Million One Hundred One Thousand Six Hundred Seventy-OneDollars and Four cents ($125,101,671.04)  of the TrancheA Loans and (ii) the aggregate amount of Two Hundred Eighty-Two Million SixHundred Ten Thousand Three Hundred Twenty-Eight Dollars and Eighty-Fourcents  ($282,610,328.84)  of the Tranche B Loans.

 

(c)                                  Pursuantto Section 4.06 of the Common Agreement, in connection with the IntercompanyPayable Restructuring, MM will deliver to each Bank Holder new Bank HolderNotes (*pagarés*)(with MM as Borrower) in replacement of the notes previously delivered by GMMin accordance with this Agreement and the Common Agreement (with GMM asBorrower), endorsed *por aval* by each Guarantor (and, in thecase of any such note held by a GM Guaranty Beneficiary, by GM in addition toeach such Guarantor).

 

SECTION 2.3                                                  *Prepayments*.

 

(a)                                  OptionalPrepayments.  The Borrower may, fromtime to time on any Business Day, prepay principal of Loans pursuant to ArticleVIII of the Common Agreement.  Eachprepayment of Loans made pursuant to this Section shall be without premium orpenalty, except as may be required by Section 12.04 of the Common Agreement.

 

(b)                                 MandatoryPrepayments.  The Borrower shallratably prepay Loans in whole or in part as required by the mandatoryprepayment provisions set forth in Article VIII of the Common Agreement.

 

(c)                                  Applicationof Prepayments.  Each prepayment ofLoans (whether optional or mandatory) shall be applied in accordance with theprepayment provisions set forth in Article VIII of the Common Agreement.

 

SECTION 2.4                                                  *Repayment*.  The Borrower shall repay all Loans in full,including all accrued and unpaid interest thereon, and all other amounts owingunder the Loan Documents, no later than the Maturity Date.  Without limiting the foregoing, the Borrowershall make scheduled amortization payments on the Loans in accordance withSection 8.03(a) of the Common Agreement.

 

3

----

 

SECTION 2.5                                                  *Interest*.

 

(a)                                  EachTranche A Loan and each Tranche B Loan shall (except as provided in Sections12.02 or 12.05 of the Common Agreement) be LIBOR Loans that bear interest onthe outstanding principal amount thereof from the Closing Date at a rate perannum, for each Interest Period therefor, equal to the LIBOR Rate for suchInterest Period plus the Applicable Margin.

 

(b)                                 Interestaccrued on each Loan shall be paid in cash in arrears as provided in the CommonAgreement.

 

(c)                                  Anythingherein or in any other Operative Document to the contrary notwithstanding, theobligations of the Borrower to any Bank Holder hereunder shall be subject tothe limitation that payments of interest shall not be required for any periodfor which interest is computed hereunder, to the extent (but only to theextent) that contracting for or receiving such payment by such Bank Holderwould be contrary to the provisions of any law applicable to such Bank Holderlimiting the highest rate of interest that may be lawfully contracted for,charged or received by such Bank Holder, and in such event the Borrower shallpay such Bank Holder interest at the highest rate permitted by Applicable Law.

 

SECTION 2.6                                                  *Fees*.  TheBorrower agrees to pay to the Administrative Agent, for its own account, thefees set forth in a fee letter, dated December 5, 2002 (the “**Fee Letter**”),between GMM and the Administrative Agent.

 

SECTION 2.7                                                  *Computations*.

 

(a)                                  Allcomputations of interest under this Agreement shall be made in accordance withthe Common Agreement.

 

(b)                                 Allcomputations of fees under this Agreement or under the Fee Letter shall becalculated on the basis of twelve (12) thirty (30) day months and three hundredsixty (360) day years.

 

SECTION 2.8                                                  *Payments by the Borrower*.

 

(a)                                  Subjectto Section 8.02 of the Common Agreement and Sections2.3 and 2.8(b),payments received by the Administrative Agent or the Bank Holders from (or onbehalf of) the Borrower (including from any proceeds from the exercise of anyremedies against the General Security) shall be applied (except as specificallyprovided otherwise herein): first, to any fees due pursuant to Section 2.6; second, to interest(including, if applicable, at the Default Interest Rate); and third, toprincipal.

 

(b)                                 Exceptto the extent otherwise provided herein, (i) each payment or prepayment ofprincipal of Loans of a particular Tranche shall be made for account of theBank Holders holding Loans of such Tranche pro rata in accordance with therespective unpaid principal amount of the Loans of such Tranche, and (ii) eachpayment of interest on Loans of a particular Tranche shall be made for accountof the Bank Holders holding

 

4

----

 

Loans of such Tranche pro rata in accordance with therespective unpaid principal amount of the Loans of such Tranche then due andpayable.

 

(c)                                  TheAdministrative Agent shall maintain on its books records setting forth theprincipal amount of each Bank Holder’s Loans, each payment or prepayment ofprincipal thereof, and each payment in respect of interest thereon, and suchrecords shall be conclusive and binding on the Borrower and the Bank Holdersabsent manifest error.

 

SECTION 2.9                                                  *Mutilated, Lost, Stolen or Destroyed Not**es*.  (a) The Borrower shall, in accordance withthe terms and provisions set forth herein and in the Notes, and upon provisionof evidence satisfactory to the Administrative Agent and Borrower that any Notewas mutilated, lost, stolen or destroyed (including delivery of a lost noteaffidavit in a form substantially similar to the form provided as Exhibit2.01(aa) to the Common Agreement), authenticate, issue and deliver a new Noteof the same denomination and with identical terms (a “**Substitute Note**”) in exchangefor or in lieu of such Note that became mutilated, lost, stolen or destroyed(the “**OriginalNote**”).  If any suchmutilated, stolen, lost or destroyed Note has matured, instead of issuing aduplicate Note, Borrower and/or each Guarantor, as applicable, may pay suchNote upon satisfaction of the conditions set forth in this Section 2.9.

 

(b)                                 Uponthe issuance of a Substitute Note, the holder of such Substitute Note, if sorequested by Borrower or any Guarantor, as applicable, shall pay a sumsufficient to cover any stamp duty, tax or other governmental charge that maybe imposed in relation thereto and any other expense (including the fees andexpenses of the Administrative Agent) connected with the preparation andissuance of the Substitute Note.

 

(c)                                  AllSubstitute Notes shall be valid obligations of Borrower and the Guarantors, asapplicable, and be subject to the same terms and conditions and entitled to thesame benefits under this Agreement as the Original Notes.

 

SECTION 2.10                                            *Cancellation of Notes*.  Whenever a Note is delivered to the Borrowerfor cancellation (upon payment or otherwise), or for transfer, exchange orreplacement pursuant to the terms hereof, the Borrower will promptly cancel(and may destroy) such Note.

 

**ARTICLE 3TAXES; YIELD PROTECTION;ILLEGALITY; PAYMENTS**

** **

Article XII of the Common Agreement shall be deemed to be incorporatedherein as if the same were set out in full herein.

 

**ARTICLE 4CONDITIONS PRECEDENT**

** **

SECTION 4.1                                                  *Conditions Precedent*.  The effectiveness of this Agreement issubject to satisfaction of the following conditions precedent:

 

(a)                                  satisfactionof each of the conditions precedent set forth in Section 2.01 of the CommonAgreement;

 

5

----

 

(b)                                 thepayment of any fees required to be paid on or before the Closing Date(including applicable fees under the Fee Letter and a restructuring fee payableto each Bank Holder equal to 0.5% of the Existing Claims of such Bank Holder,as provided in Section 8.05(b) of the Common Agreement); and

 

(c)                                  paymentby the Borrower of all Attorney Costs of the Administrative Agent, the otherBank Holders and any guarantors of the Loans, to the extent invoiced prior toor on the Closing Date, plus such additional amounts of Attorney Costsas shall constitute the Administrative Agent’s reasonable estimate of AttorneyCosts incurred or to be incurred by it through the closing proceedings (providedthat such estimate shall not thereafter preclude a final settling of accountsbetween the Borrower and the Administrative Agent).

 

**ARTICLE 5REPRESENTATIONS AND WARRANTIES**

** **

SECTION 5.1                                                  *Representations and Warranties*.  The Borrower, MM and each PrincipalSubsidiary hereby jointly and severally make the same representations andwarranties as are set forth in Article III of the Common Agreement (whichrepresentations and warranties shall be deemed to be incorporated herein as ifthe same were set out in full herein).

 

**ARTICLE 6COVENANTS**

** **

SECTION 6.1                                                  *Affirmative Covenants*.  Each of MM (on behalf of itself, GMM andeach Principal Subsidiary, but only to the extent applicable), GMM (on behalfof itself and each Principal Subsidiary) and each Principal Subsidiary (onbehalf of itself and its respective Subsidiaries, where applicable) agreesthat, until all Obligations have been paid and performed in full, it shallperform and comply with each of the Affirmative Covenants as are set forth inArticle IV of the Common Agreement (which Affirmative Covenants shall be deemedto be incorporated herein as if the same were set forth in full herein).

 

SECTION 6.2                                                  *Negative Covenants*.  Each of MM (on behalf of itself, GMM andeach Principal Subsidiary, but only to the extent applicable), GMM (on behalfof itself and each Principal Subsidiary) and each Principal Subsidiary (onbehalf of itself and its respective Subsidiaries, where applicable) agreesthat, until all Obligations have been paid and performed in full, it shallperform and comply with each of the Negative Covenants as are set forth inArticle V of the Common Agreement (which Negative Covenants shall be deemed tobe incorporated herein as if the same were set forth in full herein).

 

SECTION 6.3                                                  *Financial Covenants*.  Each of MM (on behalf of itself, GMM andeach Principal Subsidiary, but only to the extent applicable), GMM (on behalfof itself and each Principal Subsidiary) and each Principal Subsidiary (onbehalf of itself and its respective Subsidiaries, where applicable) agreesthat, until all Obligations have been paid and performed in full, it shallperform and comply with each of the Financial Covenants as are set forth inArticle VI

 

6

----

 

of the Common Agreement (which Financial Covenantsshall be deemed to be incorporated herein as if the same were set forth in fullherein)

 

**ARTICLE 7DEFAULT/REMEDIES**

** **

SECTION 7.1                                                  *Events of Default/Remedies*.  Article X of the Common Agreement sets forthcertain remedies that are available following an Event of Default.

 

SECTION 7.2                                                  *Rights Not Exclusive*.  The rights, powers, privileges and remediesprovided for in the Loan Documents are cumulative and are not exclusive of anyother rights, powers, privileges or remedies provided by law or in equity, orunder any other documents now existing or hereafter arising.

 

**ARTICLE 8ADMINISTRATIVE AGENT**

** **

SECTION 8.1                                                  *Appointment and Authorization of Adminis**trativeAgent*.  Each Bank Holderhereby irrevocably appoints, designates and authorizes the Administrative Agentto take such action on its behalf under the provisions of this Agreement andeach other Operative Document and to exercise such powers and perform suchduties as are expressly delegated to it by the terms of this Agreement or anyother Operative Document, together with such powers as are reasonablyincidental thereto.  Notwithstanding anyprovision to the contrary contained elsewhere herein or in any other LoanDocument, the Administrative Agent shall not have any duties orresponsibilities except those expressly set forth herein, nor shall theAdministrative Agent have or be deemed to have any fiduciary relationship withany Bank Holder or participant, and no implied covenants, functions,responsibilities, duties, obligations or liabilities shall be read into thisAgreement or any other Loan Document or otherwise exist against theAdministrative Agent.  Without limitingthe generality of the foregoing sentence, the use of the term “agent” hereinand in the other Loan Documents with reference to the Administrative Agent isnot intended to connote any fiduciary or other implied (or express) obligationsarising under agency doctrine of any Applicable Law.  Instead, such term is used merely as a matter of market custom,and is intended to create or reflect only an administrative relationshipbetween independent contracting parties.

 

SECTION 8.2                                                  *Delegation of Duties*.  The Administrative Agent may execute any ofits duties under this Agreement or any other Operative Document by or throughagents, employees or attorneys-in-fact and shall be entitled to advice ofcounsel and other consultants or experts concerning all matters pertaining tosuch duties.  The Administrative Agentshall not be responsible for the negligence or misconduct of any agent orattorney-in-fact that it selects with reasonable care.

 

SECTION 8.3                                                  *Liability of Administrative Agent*.  No Agent-Related Person shall (a) be liablefor any action taken or omitted to be taken by any of them under or inconnection with this Agreement or any other Loan Document or the transactionscontemplated hereby or thereby

 

7

----

 

(except for its own gross negligence or willfulmisconduct), or (b) be responsible in any manner to any Bank Holder orparticipant for any recital, statement, representation or warranty made by anyLoan Party or any officer thereof, contained herein or in any other LoanDocument, or in any certificate, report, statement or other document referredto or provided for in, or received by the Administrative Agent under or inconnection with, this Agreement or any other Loan Document, or the validity,effectiveness, genuineness, enforceability or sufficiency of this Agreement orany other Loan Document, or for any failure of any Loan Party or any otherparty to any Loan Document to perform its obligations hereunder orthereunder.  No Agent-Related Personshall be under any obligation to any Bank Holder or participant to ascertain orto inquire as to the observance or performance of any of the agreementscontained in, or conditions of, this Agreement or any other Loan Document, orto inspect the properties, books or records of any Loan Party or any Affiliatethereof.

 

SECTION 8.4                                                  *Reliance by the Administrative Agent*.

 

(a)                                  TheAdministrative Agent shall be entitled to rely, and shall be fully protected inrelying, upon any writing, communication, signature, resolution, representation,notice, consent, certificate, affidavit, letter, telegram, facsimile, telex ortelephone message, electronic mail message, statement or other document orconversation believed by it to be genuine and correct and to have been signed,sent or made by the proper Person or Persons, and upon advice and statements oflegal counsel (including counsel to any Loan Party), independent accountantsand other experts selected by the Administrative Agent.  The Administrative Agent shall be fullyjustified in failing or refusing to take any action under any Loan Documentunless it shall first receive such advice or concurrence of the Required BankHolders as it deems appropriate and, if it so requests, it shall first beindemnified to its satisfaction by the Bank Holders against any and allliability and expense which may be incurred by it by reason of taking orcontinuing to take any such action.  TheAdministrative Agent shall in all cases be fully protected in acting, or inrefraining from acting, under this Agreement or any other Loan Document inaccordance with a request or consent of the Required Bank Holders (or suchgreater number of Bank Holders as may be expressly required hereby in anyinstance) and such request and any action taken or failure to act pursuantthereto shall be binding upon all the Bank Holders.

 

(b)                                 Forpurposes of determining compliance with the conditions specified in Section4.1, each Bank Holder that has signed this Agreement shall be deemed tohave consented to, approved or accepted or to be satisfied with each documentor other matter required thereunder to be consented to or approved by oracceptable or satisfactory to a Bank Holder unless the Administrative Agentshall have received notice from such Bank Holder prior to the proposed ClosingDate specifying its objection thereto.

 

SECTION 8.5                                                  *Notice of Default*.  The Administrative Agent shall not be deemedto have knowledge or notice of the occurrence of any Default, unless theAdministrative Agent shall have received written notice from a Bank Holder orthe Borrower or any Principal Subsidiary referring to this Agreement,describing such Default and stating that such notice is a “notice ofdefault.”  The Administrative Agent willpromptly notify the Bank Holders of its receipt of any such notice.  The Administrative Agent shall take suchaction with respect to such

 

8

----

 

Default as may be directed by the Required BankHolders in accordance with Article 7provided, however,that unless and until the Administrative Agent has received any such direction,the Administrative Agent may (but shall not be obligated to) take such action,or refrain from taking such action, with respect to such Default as it shalldeem advisable or in the best interest of the Bank Holders.

 

SECTION 8.6                                                  *Credit Decision; Disclosure of Informati**on byAdministrative Agent*. Each Bank Holder acknowledges that no Agent-Related Person has made anyrepresentation or warranty to it, and that no act by the Administrative Agenthereafter taken, including any consent to and acceptance of any assignment orreview of the affairs of any Loan Party or any Affiliate thereof, shall bedeemed to constitute any representation or warranty by any Agent-Related Personto any Bank Holder as to any matter, including whether Agent-Related Personshave disclosed material information in their possession.  Each Bank Holder represents to theAdministrative Agent that it has, independently and without reliance upon anyAgent-Related Person and based on such documents and information as it hasdeemed appropriate, made its own appraisal of and investigation into thebusiness, prospects, operations, property, financial and other condition andcreditworthiness of the Loan Parties and their respective Subsidiaries, and allbank or other regulatory Applicable Laws relating to the transactionscontemplated hereby, and made its own decision to enter into this Agreement andto extend credit to the Borrower hereunder. Each Bank Holder also represents that it will, independently and withoutreliance upon any Agent-Related Person and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit analysis, appraisals and decisions in taking or not taking action underthis Agreement and the other Operative Documents, and to make suchinvestigations as it deems necessary to inform itself as to the business,prospects, operations, property, financial and other condition andcreditworthiness of the Borrower and the other Loan Parties.  Except for notices, reports and otherdocuments expressly required to be furnished to the Bank Holders by theAdministrative Agent herein, the Administrative Agent shall not have any dutyor responsibility to provide any Bank Holder with any credit or otherinformation concerning the business, prospects, operations, property, financialand other condition or creditworthiness of any of the Loan Parties or any oftheir respective Affiliates which may come into the possession of any Agent-RelatedPerson.

 

SECTION 8.7                                                  *Indemnification of Agent-Related Persons*.  Whether or not the transactions contemplatedhereby are consummated, each Bank Holder (including any guarantor of the Loans)that is not subject to the limitations on incurrence of indemnificationobligations under the United States Antideficiency Act or any similar law ineffect in the jurisdiction of its formation (each an “**Indemnifying Bank Holder**”)agrees to indemnify upon demand each Agent-Related Person (to the extent notreimbursed by or on behalf of any Loan Party and without limiting theobligation of any Loan Party to do so), pro rata, and hold harmless eachAgent-Related Person from and against any and all Indemnified Liabilitiesincurred by it; provided, however, that no Indemnifying BankHolder shall be liable for the payment to any Agent-Related Person of anyportion of such Indemnified Liabilities to the extent determined in a final,nonappealable judgment by a court of competent jurisdiction to have resultedfrom such Agent-Related Person’s own gross negligence or willful misconduct; provided,however, that no action taken in accordance with the directions of theRequired Bank Holders shall be deemed to constitute gross negligence or willfulmisconduct for purposes of this Section. Without limitation of the foregoing, each Indemnifying Bank Holder shallreimburse the Administrative

 

9

----

 

Agent upon demand for its ratable share of any costsor out-of-pocket expenses (including Attorney Costs) incurred by theAdministrative Agent in connection with the preparation, execution, delivery,administration, modification, amendment or enforcement (whether throughnegotiations, legal proceedings or otherwise) of, or legal advice in respect ofrights or responsibilities under, this Agreement, any other Loan Document, orany document contemplated by or referred to herein, to the extent that theAdministrative Agent is not reimbursed for such expenses by or on behalf of theBorrower.  The undertaking in thisSection shall survive repayment of the Loans, the payment of all otherObligations and the resignation or removal of the Administrative Agent.

 

SECTION 8.8                                                  *The Agent-Related Persons in their Indiv**idualCapacity*.  EachAgent-Related Person may make loans to, issue letters of credit for the accountof, accept deposits from, acquire equity interests in and generally engage inany kind of banking, trust, financial advisory, underwriting or other businesswith each of the Loan Parties and their respective Affiliates as though theAdministrative Agent did not act in such capacity under the OperativeDocuments, without notice to or consent of the Bank Holders.  The Bank Holders acknowledge that, pursuantto such activities, the Agent-Related Persons may receive information regardingany Loan Party or its Affiliates (including information that may be subject toconfidentiality obligations in favor of such Loan Party or its Affiliates) andacknowledge that no Agent-Related Person shall be under any obligation toprovide such information to any Bank Holder. With respect to its Loans, Bank of America shall have the same rightsand powers under the Operative Documents as any other Bank Holder and mayexercise the same as though it were not the Administrative Agent, and the terms“Bank Holder” and “Bank Holders” include Bank of America in its individualcapacity.

 

SECTION 8.9                                                  *Successor Agent*.  The Administrative Agent may, and at therequest of the Required Bank Holders shall, resign as Administrative Agent uponthirty (30) days’ notice to the Bank Holders and the Borrower.  If the Administrative Agent resigns underthis Agreement, the Required Bank Holders shall appoint from among the BankHolders a successor administrative agent for the Bank Holders, which successoradministrative agent shall be approved by the Borrower (such approval not to beunreasonably withheld) so long as no Default shall have occurred and becontinuing.  If no successoradministrative agent is appointed prior to the effective date of theresignation of the Administrative Agent, the Administrative Agent may appoint,after consulting with the Bank Holders and the Borrower, a successoradministrative agent from among the Bank Holders.  Upon the acceptance of its appointment as successor administrativeagent hereunder: (a) such successor administrative agent shall succeed toall the rights, powers and duties of the retiring Administrative Agent,(b) the term “**Administrative Agent**” shall mean suchsuccessor administrative agent and (c) the retiring Administrative Agent’sappointment, powers and duties as the Administrative Agent shall beterminated.  After the retiringAdministrative Agent’s resignation hereunder, the terms and provisions of thisArticle and Section 9.4 and Section 9.5 shall inure to itsbenefit as to any actions taken or omitted to be taken by it while it was theAdministrative Agent under the Loan Documents. If no successor administrative agent has accepted appointment as theAdministrative Agent by the date that is 30 days after the retiringAdministrative Agent’s notice of resignation, the retiring AdministrativeAgent’s resignation shall nevertheless thereupon become effective and the BankHolders shall perform all of the duties of the Administrative Agent hereunderuntil such time, if

 

10

----

 

any, as the Required Bank Holders appoint a successoradministrative agent as provided for above.

 

**ARTICLE 9MISCELLANEOUS**

** **

SECTION 9.1                                                  *Amendments and Waivers*.

 

(a)                                  Amendments,modifications and waivers of this Agreement shall be governed by Section14.01(c) of the Common Agreement.

 

(b)                                 TheFee Letter may be amended, or rights or privileges thereunder waived, in awriting executed only by the parties thereto.

 

SECTION 9.2                                                  *Notices*. Section 14.14 of the Common Agreement shall be deemed to be incorporatedherein as if the same were set out in full herein.  In addition, each Bank Holder shall notify the AdministrativeAgent and the Shared Payment and Collateral Agent in accordance with Section14.14 of the Common Agreement of any change in: (a) the address to whichnotices to such Bank Holder should be directed, (b) addresses of any LendingOffice, (c) payment instructions in respect of all payments to be made to ithereunder and (d) such other administrative information as the AdministrativeAgent or the Shared Payment and Collateral Agent reasonably requests from timeto time.

 

SECTION 9.3                                                  *No Waiver; Cumulative Remedies*.  No failure by any Bank Holder or theAdministrative Agent to exercise, and no delay by any such Person inexercising, any right, remedy, power or privilege hereunder shall operate as awaiver thereof; nor shall any single or partial exercise of any right, remedy,power or privilege hereunder preclude any other or further exercise thereof orthe exercise of any other right, remedy, power or privilege.  The rights, remedies, powers and privilegesherein provided are cumulative and not exclusive of any rights, remedies,powers and privileges provided by law.

 

SECTION 9.4                                                  *Costs and Expenses*.  Section 11.02 of the Common Agreement shallbe deemed to be incorporated herein as if the same were set out in full herein.

 

SECTION 9.5                                                  *Indemnification*.  Section 11.01 of the Common Agreement shallbe deemed to be incorporated herein as if the same were set out in full herein.

 

SECTION 9.6                                                  *Payments Set Aside*.  Section 14.08 of the Common Agreement shallbe deemed to be incorporated herein as if the same were set out in full herein.

 

SECTION 9.7                                                  *Successors and Assigns*.

 

(a)                                  Theprovisions of this Agreement shall be binding upon and inure to the benefit ofthe parties hereto and their respective authorized successors and assignspermitted hereby, except that: (x) none of Borrower, MM or any other Guarantorshall assign or transfer any of its rights or obligations under this Agreementor any other Loan Document without the prior written consent of theAdministrative Agent and each Bank

 

11

----

 

Holder; and (y) no Bank Holder may assign or otherwisetransfer any of its rights or obligations hereunder or under any otherOperative Document except (i) to an Eligible Assignee in accordance with theprovisions of subsection (b) of this Section, (ii) by way of participation inaccordance with the provisions of subsection (d) of this Section, or (iii) byway of pledge or assignment of a security interest subject to the restrictionsof subsection (f) of this Section.  Anyother attempted assignment or transfer by any such party hereto shall be nulland void.  Nothing in this Agreement,expressed or implied, shall be construed to confer upon any Person (other thanthe parties hereto, their respective successors and assigns permitted hereby,Participants to the extent provided in subsection (d) of this Section and, tothe extent expressly contemplated by Section 11.01 of the Common Agreement, theIndemnified Persons comprising the Administrative Agent, the Bank Holders andtheir respective officers, directors, employees, counsel, agents andattorneys-in-fact), any legal or equitable right, remedy or claim under or byreason of this Agreement.

 

(b)                                 AnyBank Holder may at any time assign to one or more Eligible Assignees all or aportion of its rights and obligations under this Agreement or under any otherOperative Document, including all or a portion of its Loans; providedthat (i) except in the case of an assignment to Export-Import Bank of theUnited States or of the entire remaining amount of the Loans at the time owingto the assigning Bank Holder or in the case of an assignment to a Bank Holderor an Affiliate of a Bank Holder or an Approved Fund (as defined in subsection(g) of this Section) with respect to a Bank Holder, the aggregate amount of theLoans subject to each such assignment, determined as of the date the Assignmentand Assumption with respect to such assignment is delivered to theAdministrative Agent or, if “Trade Date” is specified in the Assignment andAssumption, as of the Trade Date, shall not be less than Five Million Dollars($5,000,000)****unless each of the Administrative Agent and, so long as noEvent of Default has occurred and is continuing, the Borrower otherwiseconsents (each such consent not to be unreasonably withheld or delayed); (ii)each partial assignment shall be made as an assignment of a proportionate partof all the assigning Bank Holder’s rights and obligations under this Agreementand the other Operative Documents with respect to the Loans assigned; (iii) theparties to each assignment shall execute and deliver to the AdministrativeAgent an Assignment and Assumption, together with a processing and recordationfee of $3,500 and (iv) the parties to each assignment shall notify the SharedPayment and Collateral Agent of such assignment.  Subject to acceptance and recording thereof by the AdministrativeAgent pursuant to subsection (c) of this Section, from and after the effectivedate specified in each Assignment and Assumption, the Eligible Assigneethereunder shall be a party to this Agreement and, to the extent of theinterest assigned by such Assignment and Assumption, have the rights andobligations of a Bank Holder or a Lender under this Agreement and the otherOperative Documents, and the assigning Bank Holder thereunder shall, to theextent of the interest assigned by such Assignment and Assumption, be releasedfrom its obligations under this Agreement and the other Operative Documents(and, in the case of an Assignment and Assumption covering all of the assigningBank Holder’s rights and obligations under this Agreement and the otherOperative Documents, such Bank Holder shall cease to be a party hereto butshall continue to be entitled to the benefits of Sections 12.01, 12.03, 12.04and 12.06 of the Common Agreement and Article 3 and Sections 9.4and 9.5 with respect to facts and

 

12

----

 

circumstances occurring prior to the effective date ofsuch assignment).  Upon request, theBorrower (at its expense) shall execute and deliver Notes to the assignee BankHolder and each Guarantor (and in the case where such assignee Bank Holder is aGM Guaranty Beneficiary, GM, in addition to each such Guarantor) (at itsexpense) shall endorse such Notes *por aval*. Any assignment or transfer by a Bank Holder of rights or obligationsunder this Agreement and the other Operative Documents that does not complywith this subsection shall be treated for purposes of this Agreement and theother Operative Documents as a sale by such Bank Holder of a participation insuch rights and obligations in accordance with subsection (d) of this Section.

 

(c)                                                          TheAdministrative Agent, acting solely for this purpose as an agent of theBorrower, shall maintain at the Administrative Agent’s address determined inaccordance with Section 14.14 of the Common Agreement a copy of each Assignmentand Assumption delivered to it and a register for the recordation of the namesand addresses of the Bank Holders and principal amounts of the Loans owing toeach Bank Holder pursuant to the terms hereof from time to time (the “**Register**”).  The entries in the Register shall beconclusive, and the Borrower, the Administrative Agent, the Shared Payment andCollateral Agent and the Bank Holders may treat each Person whose name isrecorded in the Register pursuant to the terms hereof as a Bank Holderhereunder for all purposes of this Agreement and the other Operative Documents,notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower, theShared Payment and Collateral Agent and any Bank Holder, at any reasonable timeand from time to time upon reasonable prior notice.

 

(d)                                                         AnyBank Holder may at any time, without the consent of, or notice to, the Borroweror the Administrative Agent, sell participations to any Person (other than anatural person or the Borrower or any of the Borrower’s Affiliates orSubsidiaries or a Person acting on behalf of any of the Borrower or any of theBorrower’s Affiliates or Subsidiaries) (each, a “**Participant**”) in all or aportion of such Bank Holder’s rights and/or obligations under this Agreementand any other Operative Document (including all or a portion of the Loans  owing to it); provided that(i) such Bank Holder’s obligations under this Agreement and any otherOperative Document shall remain unchanged, (ii) such Bank Holder shallremain solely responsible to the other parties hereto for the performance ofsuch obligations and (iii) the Borrower, the Administrative Agent, theShared Payment and Collateral Agent and the other Bank Holders shall continueto deal solely and directly with such Bank Holder in connection with such BankHolder’s rights and obligations under this Agreement and any other OperativeDocument.  Any agreement or instrumentpursuant to which a Bank Holder sells such a participation shall provide thatsuch Bank Holder shall retain the sole right to enforce this Agreement and anyother Operative Document and to approve any amendment, modification or waiverof any  provision of this Agreement orany other Operative Document; provided that such agreement or instrumentmay provide that such Bank Holder will not, without the consent of theParticipant, agree to any amendment, waiver or other modification described inthe first proviso of Section 14.01(a) of the Common Agreement to the extentsuch Participant would be negatively affected thereby.  Subject to Subsection (e) of this Section,the Borrower agrees that each Participant shall be entitled to the benefits of Article3 and Sections 12.01, 12.03, 12.04 and 12.06 of the Common Agreement**tothe 

 

13

----

 

same extent as if it were a Bank Holder and hadacquired its interest by assignment pursuant to subsection (b) of thisSection.  To the extent permitted bylaw, each Participant also shall be entitled to the benefits ofSection 14.09**of the Common Agreement as though it were a Bank Holder, providedsuch Participant agrees to be subject to Section 12.09 of the Common Agreementas though it were a Bank Holder.

 

(e)                                                          AParticipant shall not be entitled to receive any greater payment under Article3 or Sections 12.01, 12.03, 12.04 and 12.06 of the Common Agreement**thanthe applicable Bank Holder would have been entitled to receive with respect tothe participation sold to such Participant, unless the sale of the participationto such Participant is made with the Borrower’s prior written consent.

 

(f)                                                            AnyBank Holder may at any time pledge or assign a security interest in all or anyportion of its rights under this Agreement and any other Operative Document(including under its Notes) to secure obligations of such Bank Holder,including any pledge or assignment to secure obligations to a Federal ReserveBank; provided that no such pledge or assignment shall release such BankHolder from any of its obligations hereunder or thereunder or substitute anysuch pledgee or assignee for such Bank Holder as a party hereto or thereto.

 

(g)                                                         Asused herein, the following terms have the following meanings:

 

“**EligibleAssignee**” means (a) a Bank Holder; (b) an Affiliate of a Bank Holder;(c) an Approved Fund; (d) Export-Import Bank of the United States and (e) anyother Person (other than a natural person) approved by (i) the AdministrativeAgent and (ii) unless an Event of Default has occurred and is continuing, theBorrower (each such approval not to be unreasonably withheld or delayed); providedthat notwithstanding the foregoing, “Eligible Assignee” shall not include theBorrower or any of the Borrower’s Affiliates or Subsidiaries or a Person actingon behalf of any of the foregoing Persons.

 

“**Fund**”means any Person (other than a natural person) that is (or will be) engaged inmaking, purchasing, holding or otherwise investing in commercial loans andsimilar extensions of credit in the ordinary course of its business.

 

“**Approved Fund**” means any Fundthat is administered or managed by (a) a Bank Holder, (b) an Affiliate of aBank Holder or (c) an entity or an Affiliate of an entity that administers ormanages a Bank Holder.

 

SECTION 9.8                                                  *Additional Guarantors*.  Borrower shall designate any Subsidiary ornewly acquired or formed Subsidiary as a Guarantor hereunder (each suchSubsidiary, a “**New Guarantor**”) in accordance with, and to the extent requiredby, Section 4.19 of the Common Agreement. Such New Guarantor shall become a Guarantor under this Agreement and forall purposes be deemed a Guarantor under this Agreement, with all rights andobligations of a Guarantor under this Agreement, upon the execution by suchPerson of a Joinder Agreement, countersigned by the Administrative Agent.

 

14

----

 

SECTION 9.9                                                  *Counterparts*.  This Agreement may be executed in any numberof separate counterparts (including via facsimile), each of which, when soexecuted, shall be deemed an original, and all of which taken together shall bedeemed to constitute but one and the same instrument.

 

SECTION 9.10                                            *Severability*.  If any provision of this Agreement is heldto be illegal, invalid or unenforceable, (a) the legality, validity andenforceability of the remaining provisions of this Agreement shall not beaffected or impaired thereby and (b) the parties shall endeavor in good faithnegotiations to replace the illegal, invalid or unenforceable provisions withvalid provisions the economic effect of which comes as close as possible tothat of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in aparticular jurisdiction shall not invalidate or render unenforceable suchprovision in any other jurisdiction.

 

SECTION 9.11                                            *Third Party Beneficiaries*.  This Agreement is made and entered into forthe sole protection and legal benefit of the parties hereto, the otherAgent-Related Persons, the Indemnified Persons and their permitted successorsand assigns (all of which, if not parties hereto, are third-party beneficiarieshereof for purposes of enforcing their respective rights hereunder), and noother Person shall be a direct or indirect legal beneficiary of, or have anydirect or indirect cause of action or claim in connection with, this Agreement.

 

**SECTION9.12****                                           ***Governing Law and Jurisdiction*.  **THIS AGREEMENT AND THE LOANS SHALL BE GOVERNED BY, AND CONSTRUED INACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADEAND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THEADMINISTRATIVE AGENT AND EACH BANK HOLDER SHALL RETAIN ALL RIGHTS ARISING UNDERFEDERAL LAW OF THE UNITED STATES OF AMERICA.**

 

SECTION 9.13                                            *Consent to Jurisdiction; Process Agent*.  Section 14.22 of the Common Agreement shallbe deemed to be incorporated herein as if the same were set out in full herein.

 

SECTION 9.14                                            *Waiver of Jury Trial*.  **SECTION 14.20 OF THE COMMON AGREEMENT SHALL BE DEEMEDTO BE INCORPORATED HEREIN AS IF THE SAME WERE SET OUT IN FULL HEREIN**.

 

SECTION 9.15                                            *Currency*.  Section 14.06 of the Common Agreement shallbe deemed to be incorporated herein as if the same were set out in full herein.

 

SECTION 9.16                                            *Entire Agreement*.  The Loan Documents embody the entireagreement and understanding among the parties hereto, and supersede all prioror contemporaneous agreements and understandings of such Persons, verbal orwritten, relating to the subject matter hereof and thereof.

 

SECTION 9.17                                            *English Language*.  Section 14.18 of the Common Agreement shallbe deemed to be incorporated herein as if the same were set out in full herein.

 

SECTION 9.18                                            *No Partnership, Etc*.  The Bank Holders, the Guarantors and theBorrower intend that the relationship between them shall be solely that ofcreditor and debtor.

 

15

----

 

Nothing contained in this Agreement, the Loans or anyother Loan Document shall be deemed or construed to create a partnership,tenancy-in-common, joint tenancy, joint venture or co-ownership by or betweenany Bank Holder, on the one hand, and any other Bank Holder, the Borrower, theGuarantors or any other Person, on the other hand.  The Bank Holders shall not in any way be responsible or liablefor the debts, losses, obligations or duties of the Borrower, the Guarantors orany other Person.  All obligations topay real property or other taxes, assessments, insurance premiums and all otherfees and charges arising from the ownership, operation or occupancy of theBorrower’s business (and to perform all obligations under the agreements andcontracts relating thereto) shall be the sole responsibility of the Borrower.

 

SECTION 9.19                                            *Releases*.  Each of the Borrower, MM and each otherGuarantor, on behalf of itself and its Subsidiaries and Affiliates(collectively, the “**GMM Entities**”), hereby releases and foreverdischarges each Bank Holder and its Affiliates and each member of any steeringor similar committee of creditors of the Borrower and each of their respectiveindividual, joint or mutual, past, present, and future Affiliates,stockholders, controlling persons, directors, officers, employees, counsel,subsidiaries, successors and assigns, in each case from any and all claims,demands, proceedings, causes of action, orders, obligations, contracts,agreements, debts, Liens, and liabilities whatsoever, whether known or unknown,suspected or unsuspected, both at law and in equity, which each of such partiesnow has, has ever had or may hereafter have against any Person so released anddischarged on account of or arising out of any matter, cause or event occurringcontemporaneously with or prior to the Closing Date, relating to, arising outof, or in connection with, the Existing Claims, the Existing Agreements or theGMM Entities.  Each Bank Holder, onbehalf of itself and its Affiliates, hereby releases and forever dischargeseach member of any such steering or similar committee of creditors of theBorrower and each of their respective individual, joint or mutual, past,present, and future Affiliates, stockholders, controlling persons, directors,officers, employees, counsel, subsidiaries, successors and assigns, in eachcase from any and all claims, demands, proceedings, causes of action, orders,obligations, contracts, agreements, debts, Liens, and liabilities whatsoever,whether known or unknown, suspected or unsuspected, both at law and in equity,which each of such parties now has, has ever had or may hereafter have againstany Person so released and discharged on account of or arising out of anymatter, cause or event occurring contemporaneously with or prior to the ClosingDate, relating to, arising out of, or in connection with, the Existing Claims,the Existing Agreements or the GMM Entities. Notwithstanding the foregoing, nothing contained in this Agreement shalloperate to release any obligations of any party under the Loan Documents.

 

SECTION 9.20                                            *Survival*.  Article 3, Article 8 and this Article9 shall survive the repayment of the Loans and the termination of anyOperative Document.

 

SECTION 9.21                                            *No Novation*.  The parties hereby agree that this Agreementshall not be construed as a novation of any of the debt under the ExistingAgreements.

 

SECTION 9.22                                            *Bank Holders Restructured Loan Agreement**.*  This Agreement is the Bank HoldersRestructured Loan Agreement referred to in the Common Agreement.

 

[SIGNATURE PAGES FOLLOW]

 

16

----

 

IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed and delivered by their proper and dulyauthorized officers as of the day and year first above written.

 
|   | GRUPO MINERO  MEXICO, S.A. DE C.V.           |
|--------|----------------------------------------------|
|   |                                         |
|   |                                         |
|   | By:                                          | /s/ Daniel Tellechea Salido |
|   |                                         | Name: | Daniel  Tellechea Salido |
|   |                                         | Title: | Attorney-in-fact |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ J.  Eduardo Gonzalez Felix |
|   |                                         | Name: |  J. Eduardo Gonzalez Felix |
|   |                                         | Title: | Attorney-in-fact |
|   |                                         |   |   |
|   |                                         |   |   |
|   | MINERA  MEXICO, S.A. DE C.V.            |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ Daniel  Tellechea Salido |
|   |                                         | Name: | Daniel  Tellechea Salido |
|   |                                         | Title: | Attorney-in-fact |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ J.  Eduardo Gonzalez Felix |
|   |                                         | Name: | J. Eduardo  Gonzalez Felix |
|   |                                         | Title: | Attorney-in-fact |
|   |                                         |   |   |
|   |                                         |   |   |
|   | INDUSTRIAL  MINERA MEXICO, S.A. DE C.V. |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ Daniel  Tellechea Salido |
|   |                                         | Name: | Daniel  Tellechea Salido |
|   |                                         | Title: | Attorney-in-fact |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ J.  Eduardo Gonzalez Felix |
|   |                                         | Name: | J. Eduardo  Gonzalez Felix |
|   |                                         | Title: | Attorney-in-fact |
|        |                                              |  |  |  |  |

 

Amended and Restated Credit Agreement

 

S-1

----

 
|   | MINERA  MEXICO INTERNACIONAL, INC.        |
|--------|-------------------------------------------|
|   |                                      |   |   |
|   |                                      |   |   |
|   | By:                                       | Daniel  Tellechea Salido |
|   |                                      | Name: | Daniel  Tellechea Salido |
|   |                                      | Title: | Attorney-in-fact |
|   |                                      |   |   |
|   |                                      |   |   |
|   | By:                                       | /s/ J.  Eduardo Gonzalez Felix |
|   |                                      | Name: | J. Eduardo  Gonzalez Felix |
|   |                                      | Title: | Attorney-in-fact |
|   |                                      |   |   |
|   |                                      |   |   |
|   | MEXICANA DE  COBRE, S.A. DE C.V.     |
|   |                                      |   |   |
|   |                                      |   |   |
|   | By:                                       | /s/ Daniel  Tellechea Salido |
|   |                                      | Name: | Daniel  Tellechea Salido |
|   |                                      | Title: | Attorney-in-fact |
|   |                                      |   |   |
|   |                                      |   |   |
|   | By:                                       | /s/ J.  Eduardo Gonzalez Felix |
|   |                                      | Name: | J. Eduardo  Gonzalez Felix |
|   |                                      | Title: | Attorney-in-fact |
|   |                                      |   |   |
|   |                                      |   |   |
|   | MINERALES  METALICOS DEL NORTE, S.A. |
|   |                                      |   |   |
|   |                                      |   |   |
|   | By:                                       | /s/ Daniel  Tellechea Salido |
|   |                                      | Name: | Daniel  Tellechea Salido |
|   |                                      | Title: | Attorney-in-fact |
|   |                                      |   |   |
|   |                                      |   |   |
|   | By:                                       | /s/ J.  Eduardo Gonzalez Felix |
|   |                                      | Name: | J. Eduardo  Gonzalez Felix |
|   |                                      | Title: | Attorney-in-fact |
|        |                                           |  |  |  |  |

 

S-2

----

 
|   | MEXICANA DE  CANANEA, S.A. DE C.V.    |
|--------|--------------------------------------------|
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ Daniel  Tellechea Salido |
|   |                                       | Name: | Daniel  Tellechea Salido |
|   |                                       | Title: | Attorney-in-fact |
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ J.  Eduardo Gonzalez Felix |
|   |                                       | Name: | J. Eduardo  Gonzalez Felix |
|   |                                       | Title: | Attorney-in-fact |
|   |                                       |   |   |
|   |                                       |   |   |
|   | MEXICANA DEL  ARCO, S.A. DE C.V.           |
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ Daniel  Tellechea Salido |
|   |                                       | Name: | Daniel  Tellechea Salido |
|   |                                       | Title: | Attorney-in-fact |
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ J.  Eduardo Gonzalez Felix |
|   |                                       | Name: | J. Eduardo  Gonzalez Felix |
|   |                                       | Title: | Attorney-in-fact |
|   |                                       |   |   |
|   |                                       |   |   |
|   | MINERALES Y  MINAS MEXICANAS, S.A. DE C.V. |
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ Daniel  Tellechea Salido |
|   |                                       | Name: | Daniel Tellechea  Salido |
|   |                                       | Title: | Attorney-in-fact |
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ J.  Eduardo Gonzalez Felix |
|   |                                       | Name: | J. Eduardo  Gonzalez Felix |
|   |                                       | Title: | Attorney-in-fact |
|        |                                            |  |  |  |  |

 

S-3

----

 
|   | COMPANIA DE  TERRENOS E INVERSIONES  DE SAN LUIS POTOSI, S.C. POR A., S.A. |
|--------|----------------------------------------------------------------------------|
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | By:                                                                        | /s/ Daniel  Tellechea Salido |
|   |                                                                       | Name: | Daniel  Tellechea Salido |
|   |                                                                       | Title: | Attorney-in-fact |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | By:                                                                        | /s/ J.  Eduardo Gonzalez Felix |
|   |                                                                       | Name: | J. Eduardo  Gonzalez Felix |
|   |                                                                       | Title: | Attorney-in-fact |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | MEXICO COMPANIA  INMOBILIARIA, S.A.                                        |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | By:                                                                        | /s/ Daniel  Tellechea Salido |
|   |                                                                       | Name: | Daniel  Tellechea Salido |
|   |                                                                       | Title: | Attorney-in-fact |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | By:                                                                        | /s/ J.  Eduardo Gonzalez Felix |
|   |                                                                       | Name: | J. Eduardo  Gonzalez Felix |
|   |                                                                       | Title: | Attorney-in-fact |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | PROYECCIONES  URBANISTICAS, S. DE R.L. DE C.V.                             |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | By:                                                                        | /s/ Daniel  Tellechea Salido |
|   |                                                                       | Name: | Daniel  Tellechea Salido |
|   |                                                                       | Title: | Attorney-in-fact |
|   |                                                                       |   |   |
|   |                                                                       |   |   |
|   | By:                                                                        | /s/ J.  Eduardo Gonzalez Felix |
|   |                                                                       | Name: | J. Eduardo  Gonzalez Felix |
|   |                                                                       | Title: | Attorney-in-fact |
|        |                                                                            |  |  |  |  |

 

S-4

----

 
|   | BANK OF  AMERICA, N.A., as the Administrative  Agent |
|--------|------------------------------------------------------|
|   |                                                 |   |   |
|   |                                                 |   |   |
|   | By:                                                  | /s/ Robert  Rittelmeyer |
|   |                                                 | Name: | Robert  Rittelmeyer |
|   |                                                 | Title: | Vice  President |
|        |                                                      |  |  |  |  |

 

 

S-5

----

 
|   | BANK OF  AMERICA, N.A., as a Bank Holder |
|--------|------------------------------------------|
|   |                                     |   |   |
|   |                                     |   |   |
|   | By:                                      | /s/ Orlando  J. Loera |
|   |                                     | Name: | Orlando J.  Loera |
|   |                                     | Title: | Managing  Director |
|        |                                          |  |  |  |  |

 

S-6

----

 
|   | BANCO  INBURSA, S.A., INSTITUCION DE  BANCA MULTIPLE, GRUPO FINANCIERO  INBURSA, as a Bank Holder |
|--------|---------------------------------------------------------------------------------------------------|
|   |                                                                                              |   |   |
|   |                                                                                              |   |   |
|   | By:                                                                                               | /s/ Luis  Frias Humphrey |
|   |                                                                                              | Name: | Luis Frias  Humphrey |
|   |                                                                                              | Title: | Director |
|        |                                                                                                   |  |  |  |  |

 

S-7

----

 
|   | JPMORGAN  CHASE BANK,  as a Bank Holder |
|--------|-----------------------------------------|
|   |                                    |   |   |
|   |                                    |   |   |
|   | By:                                     | /s/  Manochere Alamgir |
|   |                                    | Name: | Manochere  Alamgir |
|   |                                    | Title: | Vice  President |
|        |                                         |  |  |  |  |

 

S-8

----

 
|   | THE BANK OF NOVA SCOTIA,  as a Bank Holder |
|--------|--------------------------------------------|
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ David  Konarek |
|   |                                       | Name: | David  Konarek |
|   |                                       | Title: | Managing  Director & Industry Head-Mining |
|   |                                       |   |   |
|   |                                       |   |   |
|   | By:                                        | /s/ Michael  Eddy |
|   |                                       | Name: | Michael K.  Eddy |
|   |                                       | Title: | Director -  Mining |
|        |                                            |  |  |  |  |

 

S-9

----

 
|   |                                         |               |                   |
|--------|----------------------------------------------|--------------------|------------------------|
|   |                                         |               |                   |
|   | EXPORT DEVELOPMENT CANADA,  as a Bank Holder |
|   |                                         |               |                   |
|   |                                         |               |                   |
|   | By:                                          | /s/ Sean  Mitchell |
|   |                                         | Name:              | Sean  Mitchell         |
|   |                                         | Title:             | Manager  Special Risks |
|   |                                         |               |                   |
|   |                                         |               |                   |
|   | By:                                          | /s/ Vito  DiTuri   |
|   |                                         | Name:              | Vito DiTuri  CA        |
|   |                                         | Title:             | Asset  Management      |
|        |                                              |                    |                        |  |  |

 

S-10

----

 
|   | DEUTSCHE  BANK AG NEW YORK BRANCH  AND/OR CAYMAN ISLANDS BRANCH,    as a Bank Holder |
|--------|------------------------------------------------------------------------------------------------|
|   |                                                                                           |   |   |
|   |                                                                                           |   |   |
|   | By:                                                                                            | /s/ Alan  Delsman |
|   |                                                                                           | Name: | Alan Delsman |
|   |                                                                                           | Title: | Chief Credit  Officer, Manager |
|   |                                                                                           |   |   |
|   |                                                                                           |   |   |
|   | By:                                                                                            | /s/ Carlos  Huentz |
|   |                                                                                           | Name: | [Carlos  Huentz] |
|   |                                                                                           | Title: | Vice  President |
|        |                                                                                                |  |  |  |  |

 

S-11

----

 
|   | WESTLB AG, NEW YORK BRANCH  as a Bank Holder |
|--------|----------------------------------------------|
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/  Salvatore Battinelli |
|   |                                         | Name: | Salvatore  Battinelli |
|   |                                         | Title: | Managing  Director |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ Daniel  Hitchcock |
|   |                                         | Name: | Daniel  Hitchcock |
|   |                                         | Title: | Associate  Director |
|   |                                         |   |   |
|   |                                         |   |   |
|   | WESTLB AG, LONDON BRANCH  as a Bank Holder   |
|   |                                         |   |   |
|   |                                         |   |   |
|   | By:                                          | /s/ J.K.  Gray |
|   |                                         | Name: | J.K. Gray |
|   |                                         | Title: | Director |
|   |                                         |
|   |                                         |
|   | By:                                          |   |
|   |                                         | Name: |   |
|   |                                         | Title: |   |
|        |                                              |  |  |  |  |

 

S-12

----

 
|   | HSBC BANK PLC,  as a Bank Holder |
|--------|----------------------------------|
|   |                             |   |   |
|   |                             |   |   |
|   | By:                              | /s/ A.P.  Wilkinson |
|   |                             | Name: | A.P.  Wilkinson |
|   |                             | Title: | Head of  Emerging Markets |
|   |                             |   |   |
|   |                             |   |   |
|   | By:                              | /s/ R.K.  Sandhu |
|   |                             | Name: | R.K. Sandhu |
|   |                             | Title: | Assistant  Manager, Emerging Markets |
|        |                                  |  |  |  |  |

 

S-13

----

 
|   | BNP PARIBAS, NEW YORK BRANCH,  as a Bank Holder |
|--------|-------------------------------------------------|
|   |                                            |   |   |
|   |                                            |   |   |
|   | By:                                             | /s/  Pierre-Joseph Costa |
|   |                                            | Name: | Pierre-Joseph  Costa |
|   |                                            | Title: | Managing  Director |
|        |                                                 |  |  |  |  |

 

S-14

----

 
|   | ROYAL BANK OF CANADA,  as a Bank Holder |
|--------|-----------------------------------------|
|   |                                    |   |   |
|   |                                    |   |   |
|   | By:                                     | /s/ Rizwan  Ahmad |
|   |                                    | Name: | Rizwan Ahmad |
|   |                                    | Title: | Senior Manager |
|        |                                         |  |  |  |  |

 

S-15

----

 
|   | DRESDNER  BANK AG, NEW YORK AND  GRAND CAYMAN BRANCHES,    as a Bank Holder |
|--------|---------------------------------------------------------------------------------------|
|   |                                                                                  |   |   |
|   |                                                                                  |   |   |
|   | By:                                                                                   | /s/ Phillip  J. Gass |
|   |                                                                                  | Name: | Phillip J.  Gass |
|   |                                                                                  | Title: | Associate |
|        |                                                                                       |  |  |  |  |

 

S-16

----

 
|   | BANCO  NACIONAL DE COMERCIO  EXTERIOR, S.N.C.,    as a Bank Holder |
|--------|------------------------------------------------------------------------------|
|   |                                                                         |   |   |
|   |                                                                         |   |   |
|   | By:                                                                          | /s/ Nicholas  Eduardo Costa Gonzalez |
|   |                                                                         | Name: | Nicholas  Eduardo Costa Gonzalez |
|   |                                                                         | Title: | Director  Regional de Promocion de Credito Centro |
|   |                                                                         |   |   |
|   |                                                                         |   |   |
|   | By:                                                                          | /s/ Emigdio  Sanchez Gomez |
|   |                                                                         | Name: | Emigdio  Sanchez Gomez |
|   |                                                                         | Title: | Gerente  Juridico Regional Queretaro |
|        |                                                                              |  |  |  |  |

 

S-17

----

 
|   | SIEMENS FINANCIAL SERVICES GMBH,  as a Bank Holder |
|--------|----------------------------------------------------|
|   |                                               |   |   |
|   |                                               |   |   |
|   | By:                                                | /s/ Miguel  Schmidt |
|   |                                               | Name: | Miguel Schmidt |
|   |                                               | Title: |   |
|        |                                                    |  |  |  |  |

 

S-18

----

 
|   | SOCIÉTÉ  GÉNÉRALE ACTING BY AND  THROUGH ITS NEW YORK BRANCH, as a  Bank Holder |
|--------|-----------------------------------------------------------------------------------------------------|
|   |                                                                                                |   |   |
|   |                                                                                                |   |   |
|   | By:                                                                                                 | /s/ Phillips  Lee |
|   |                                                                                                | Name: | Phillips Lee |
|   |                                                                                                | Title: | Managing  Director |
|        |                                                                                                     |  |  |  |  |

 

S-19

----

 

**APPENDIXA**

 

**RULES OF INTERPRETATION; DEFINITIONS**

 

Rules of Interpretation.  Unless otherwise expressly provided herein,any reference to any action of the Administrative Agent, any Bank Holder or anygroup of Bank Holders by way of consent, approval or waiver shall be deemedmodified by the phrase “in its/their sole discretion.”

 

“**Administrative Agent**” is defined in thepreamble to this Agreement.

 

“**Agent-Related Persons**” means theAdministrative Agent and any successor or replacement agent thereof, togetherwith its Affiliates, and the officers, directors, employees, agents, attorneys,consultants, and attorneys-in-fact of such Persons and Affiliates.

 

“**Assignment  andAssumption**” means an assignment and assumption agreementsubstantially in the form of Exhibit C to this Agreement.

 

“**Bank Holders**” is defined in the preamble ofthis Agreement.

 

“**Bank Holders Restructured Principal**” meansthe principal amount of the Loans.

 

“**Bank of America**” shall mean Bank ofAmerica, N.A., and its successors and assigns.

 

“**Common Agreement**” is defined in therecitals to this Agreement.

 

“**Eligible Assignee**” is defined in Section9.7(g) of this Agreement.

 

“**Existing Agreements**” is defined in therecitals to this Agreement.

 

“**Existing Claims**” shall mean all amountspayable to the Bank Holders under one or more of the Existing Agreements,including principal, accrued and unpaid interest and other costs and expenses.

 

“**Fee Letter**” is defined in Section 2.6(a) of this Agreement.

 

“**GMM**” is defined in the preamble of thisAgreement.

 

“**GMM Entities**” is defined in Section 9.19 of this Agreement.

 

“**Grupo Mexico**” shall mean Grupo Mexico, S.A.de C.V. , a Mexican *sociedad anónima de capital variable*.

 

“**Guarantor**” is defined in the preamble ofthis Agreement.

 

“**IMMSA**” is defined in the preamble of thisAgreement.

 

“**Joinder Agreement**” means an agreement substantially inthe form of Exhibit D to this Agreement.

 

A-1

----

 

“**Loan Documents**” shall mean the OperativeDocuments and the Fee Letter.

 

“**Loan Parties**” shall mean GMM or any of itsSubsidiaries or Affiliates obligated under, or otherwise a party to, any of theOperative Documents.

 

“**Loans**” shall mean the Tranche A Loans andthe Tranche B Loans.

 

“***Mexarco****”*is defined in the preamble of this Agreement.

 

*“****Mexcananea****”* isdefined in the preamble of this Agreement.

 

*“****Mexcobre****”* isdefined in the preamble of this Agreement.

 

“**Mexico**” shall mean the United MexicanStates.

 

*“****Mimenosa****”* isdefined in the preamble of this Agreement.

 

“**MM**" is defined in the preamble of thisAgreement.

 

*“****MMI****”* is defined in the preamble of thisAgreement.

 

*“****MMM****”* is defined in the preamble of thisAgreement.

 

“**New Guarantor**” is defined in Section 9.8of this Agreement.

 

“**Note**” shall mean a promissory note (*pagaré*)of GMM payable to the order of any Bank Holder, in the form of Exhibit Ahereto (as it relates to a Tranche A Loan) or Exhibit B hereto (as itrelates to a Tranche B Loan) (as such promissory note may be amended, endorsedor otherwise modified from time to time), and also means all other promissorynotes accepted from time to time in substitution therefor or renewal thereof.

 

“**Original Note**” is defined in Section 2.9of this Agreement.

 

“**Participant**” is defined in Section 9.7(d) of this Agreement.

 

**“Register”**is defined in Section 9.7(c) of this Agreement.

 

“**Substitute Note**” is defined in Section2.9 of this Agreement.

 

“**Tranche**” shall mean Tranche A Loans andTranche B Loans (each of which constitutes a “Tranche” of Loans).

 

“**Tranche A Loan**” is defined in Section 2.1(a) of this Agreement.

 

“**Tranche B Loan**” is defined in Section 2.1(b) of this Agreement.

 

“**United States**” and “**U.S*.***”shall each mean the United States of America.

 

A-2

----

 

**SCHEDULE 2.1EXISTING AGREEMENTS**

** **

[See attached]

 

----

 

**SCHEDULE 2.1.1LOANS**

** **

[See attached]

 

----

 

**EXHIBIT AFORM OF TRANCHE A NOTE**

** **

[See attached]

 

----

 

**EXHIBIT BFORM OF TRANCHE B NOTE**

** **

[See attached]

 

----

 

**EXHIBIT CFORM OF ASSIGNMENT AND ASSUMPTION**

** **

This Assignment and Assumption (this “**Assignment and Assumption**”)is dated as of the Effective Date set forth below and is entered into by andbetween [*Insertname of Assignor*] (the “**Assignor**”) and [*Insert name of Assignee*](the “**Assignee**”).  Capitalized terms used but not definedherein shall have the meanings given to them in the Amended and Restated CreditAgreement identified below (the “**Amended and Restated****Credit Agreement**”), receiptof a copy of which is hereby acknowledged by the Assignee.  The Standard Terms and Conditions set forthin Annex 1 attached hereto are hereby agreed to and incorporated hereinby reference and made a part of this Assignment and Assumption as if set forthherein in full.

 

For an agreed consideration, the Assignor hereby irrevocably sells andassigns to the Assignee, and the Assignee hereby irrevocably purchases andassumes from the Assignor, subject to and in accordance with the Standard Termsand Conditions and the Amended and Restated Credit Agreement, as of theEffective Date inserted by the Administrative Agent as contemplated below, (i)all of the Assignor’s rights and obligations as a Bank Holder under the Amendedand Restated Credit Agreement, the other Operative Documents and any otherdocuments or instruments delivered pursuant thereto to the extent related tothe amount and percentage interest identified below of all of such outstandingrights and obligations of the Assignor, and (ii) to the extent permitted to beassigned under Applicable Law, all claims, suits, causes of action and anyother right of the Assignor (in its capacity as a Bank Holder) against anyPerson, whether known or unknown, arising under or in connection with theAmended and Restated Credit Agreement, the other Operative Documents, any otherdocuments or instruments delivered pursuant thereto or the loan transactionsgoverned thereby or in any way based on or related to any of the foregoing,including, but not limited to, contract claims, tort claims, malpracticeclaims, statutory claims and all other claims at law or in equity related tothe rights and obligations sold and assigned pursuant to clause (i) above (therights and obligations sold and assigned pursuant to clauses (i) and (ii) abovebeing referred to herein collectively as, the “**Assigned Interest**”).  Such sale and assignment is without recourseto the Assignor and, except as expressly provided in this Assignment andAssumption, without representation or warranty by the Assignor.

 

1.                                       Assignor:

 

2.                                       Assignee:                                                                                                      [and is an

Affiliate/Approved Fund of [*identify Bank Holder*](1)]

 

3.                                       Borrower:                                            [Priorto Intercompany Payable Restructuring: Grupo Minero Mexico, S.A. de C.V.] [Fromand after Intercompany Payable Restructuring: Minera Mexico, S.A. de C.V.]

 

4.                                       AdministrativeAgent: Bank of America, N.A., as the administrative agent under the Amended andRestated Credit Agreement.

 

----

(1) Select as applicable.

 

----

 

5.                                       CreditAgreement:  The Amended and RestatedCredit Agreement, dated as of April 29, 2003 among  Grupo Minero Mexico, S.A. de C.V., theGuarantors parties thereto, the Bank Holders parties thereto, and Bank ofAmerica,  N.A., as Administrative Agent.

 

6.                                       AssignedInterest:

 
| **Aggregate  Amount of Tranche A  Loans  for all Bank Holders** |   | **Amount of  Tranche A Loans  Assigned** |   | **Percentage  Assigned of Tranche A  Loans(2)** |       |
|-----------------------------------------------------------------|--------|------------------------------------------|--------|-------------------------------------------------|------------|
|                                                            |   |                                     |   |                                            |       |
| $                                                               |   |                                     | $      |                                            |       |   | % |
|                                                            |   |                                     |   |                                            |       |
| **Aggregate  Amount of Tranche B  Loans  for all Bank Holders** |   | **Amount of  Tranche B Loans  Assigned** |   | **Percentage  Assigned of Tranche B  Loans(3)** | ** ** |
|                                                            |   |                                     |   |                                            |       |
| $                                                               |   |                                     | $      |                                            |       |   | % |

 

7.                                       TradeDate:                                                                (4)

 

Effective Date:                               ,20    [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BETHE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

 

The terms set forth in this Assignment and Assumption are hereby agreedto:

 

|   | ASSIGNOR           |
|--------|--------------------|
|   | [NAME OF ASSIGNOR] |
|   |               |
|   | By:                |   |
|   |               | Title: |
|   |               |   |
|   | ASSIGNEE           |
|   | [NAME OF ASSIGNEE] |
|   |               |   |
|   | By:                |   |
|   |               | Title: |
|        |                    |  |  |

 

----

(2) Set forth, to atleast 9 decimals, as a percentage of the Tranche A Loans of all Bank Holders.

(3) Set forth, to at least 9decimals, as a percentage of the Tranche B Loans of all Bank Holders.

(4) To be completed if theAssignor and the Assignee intend that the minimum assignment amount is to bedetermined as of the Trade Date.

 

----

 
| [Consented to and](5) Accepted:                 |   |
|-------------------------------------------------|--------|
|                                            |   |
| BANK OF AMERICA, N.A.,  as Administrative Agent |   |
|                                            |   |
| By:                                             |   |   |   |
|                                            | Title: |   |
|                                                 |        |  |  |

 

----

(5)To be added only if the consent of the Administrative Agent is required by theterms of the Amended and Restated Credit Agreement.

 

----

 

***ANNEX 1 TOASSIGNMENT AND ASSUMPTION***

 

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

 

1.                                       Representationsand Warranties.

 

1.1.                              Assignor.  The Assignor (a) represents and warrantsthat (i) it is the legal and beneficial owner of the Assigned Interest, (ii)the Assigned Interest is free and clear of any lien, encumbrance or otheradverse claim and (iii) it has full power and authority, and has taken allaction necessary, to execute and deliver this Assignment and Assumption and toconsummate the transactions contemplated hereby; and (b) assumes noresponsibility with respect to (i) any statements, warranties orrepresentations made in or in connection with the Amended and Restated CreditAgreement or any other Loan Document, (ii) the execution, legality, validity,enforceability, genuineness, sufficiency or value of the Loan Documents or anycollateral thereunder, (iii) the financial condition of the Borrower, any ofits Subsidiaries or Affiliates or any other Person obligated in respect of anyLoan Document or (iv) the performance or observance by the Borrower, any of itsSubsidiaries or Affiliates or any other Person of any of their respectiveobligations under any Loan Document.

 

1.2.                              Assignee.  The Assignee (a) represents and warrantsthat (i) it has full power and authority, and has taken all action necessary,to execute and deliver this Assignment and Assumption and to consummate thetransactions contemplated hereby and to become a Bank Holder under the Amendedand Restated Credit Agreement, (ii) it meets all requirements of an EligibleAssignee under the Amended and Restated Credit Agreement (subject to receipt ofsuch consents as may be required under the Amended and Restated CreditAgreement), (iii) from and after the Effective Date, it shall be bound by theprovisions of the Amended and Restated Credit Agreement and the other OperativeDocuments as a Lender or Bank Holder thereunder and, to the extent of theAssigned Interest, shall have the obligations of a Lender or Bank Holderthereunder, and (iv) it has received a copy of the Amended and Restated CreditAgreement and the other Operative Documents, together with copies of the mostrecent financial statements delivered pursuant to Article IV thereof, asapplicable, and such other documents and information as it has deemedappropriate to make its own credit analysis and decision to enter into thisAssignment and Assumption and to purchase the Assigned Interest on the basis ofwhich it has made such analysis and decision independently and without relianceon the Administrative Agent or any other Bank Holder; and (b) agrees that (i)it will, independently and without reliance on the Administrative Agent, theAssignor or any other Bank Holder, and based on such documents and informationas it shall deem appropriate at the time, continue to make its own creditdecisions in taking or not taking action under the Loan Documents, and (ii) itwill perform in accordance with their terms all of the obligations which by theterms of the Loan Documents are required to be performed by it as a Lender orBank Holder.

 

2.                                       Payments.  From and after the Effective Date, theShared Payment and Collateral Agent shall make all payments in respect of theAssigned Interest (including payments of principal, interest, fees and otheramounts) to the Assignee whether such amounts have accrued prior to or on orafter the Effective Date. The Assignor and the Assignee shall make allappropriate

 

----

 

adjustments in payments by the Shared Paymentand Collateral Agent for periods prior to the Effective Date or with respect tothe making of this assignment directly between themselves.

 

3.                                       GeneralProvisions.  This Assignment andAssumption shall be binding upon, and inure to the benefit of, the partieshereto and their respective successors and assigns.  This Assignment and Assumption may be executed in any number ofcounterparts, which together shall constitute one instrument.  Delivery of an executed counterpart of asignature page of this Assignment and Assumption by telecopy shall be effectiveas delivery of a manually executed counterpart of this Assignment andAssumption.  This Assignment andAssumption shall be governed by, and construed in accordance with, the law ofthe State of New York.

 

----

 

**EXHIBIT DFORM OF JOINDER AGREEMENT**

** **

**JOINDER AGREEMENT**

 

This **JOINDER AGREEMENT** (this “**Agreement**”),dated as of                ,      , is hereby executed and delivered by                            ,a                    [corporation] (the “**New Guarantor**”), pursuant to the Amended and Restated Credit Agreementdescribed below. Unless otherwise defined herein, capitalized terms used hereinand defined in the Amended and Restated Credit Agreement, dated as ofApril 29, 2003 (as amended or otherwise modified from time to time, the “**Credit Agreement**”),among each of GRUPO MINERO MEXICO, S.A. DE C.V. (the “**Borrower**”), MINERA MEXICO,S.A. DE C.V., INDUSTRIAL MINERA MEXICO, S.A. DE C.V., MINERA MEXICOINTERNACIONAL, INC., MEXICANA DE COBRE, S.A. DE C.V., MINERALES METALICOSDEL NORTE, S.A., MEXICANA DE CANANEA, S.A. DE C.V., MEXICANA DELARCO, S.A. DE C.V., MINERALES Y MINAS MEXICANAS, S.A. DE C.V., COMPANIA DETERRENOS E INVERSIONES DE SAN LUIS POTOSI, S.C. POR A., S.A., MEXICO COMPANIAINMOBILIARIA, S.A., and PROYECCIONES URBANISTICAS S. DE R.L. DE C.V.,(collectively, the “**Guarantors**” and each individually a“Guarantor”, provided that, from and after the Intercompany PayableRestructuring, MM shall cease to be a Guarantor and shall become the“Borrower”), the financial institutions as are or may become parties thereto(the “**BankHolders**”), and Bank of America, N.A., as the Administrative Agentfor the Bank Holders (in such capacity, together with its successors in suchcapacity, the “**Administrative Agent**”), are used herein as therein defined.

 

***WHEREAS***, the Borrower, the Guarantors,the Bank Holders and the Shared Payment and Collateral Agent entered into theCommon Agreement with the other parties thereto;

 

***WHEREAS***,as a condition precedent to the effectiveness of the Common Agreement theBorrower and the Guarantors executed and delivered the Credit Agreement;

 

***WHEREAS***, pursuant to Section 9.8of the Credit Agreement, New Guarantor must enter into this Agreement in orderto become a party to the Credit Agreement; and

 

***WHEREAS***, New Guarantor desires toexecute and deliver this Agreement in order to become a party to the CreditAgreement.

 

***NOW,THEREFORE, IT IS AGREED*** as follows:

 

SECTION 1.  *Joinder*.By executing and delivering this Agreement, New Guarantor hereby agrees tobecome a party to the Credit Agreement and hereby expressly assumes allobligations and liabilities thereunder applicable to the Guarantors thereunder,with the same effect as if the Credit Agreement had been executed and deliveredinitially by the New Guarantor.

 

SECTION 2. *Counterparts*. This Agreement may besigned in any number of counterparts, each of which shall be an original, withthe same effect as if the signatures were upon the same agreement.

 

----

 

SECTION 3. *Governing Law*. THIS AGREEMENT SHALL BEGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF NEW YORK (NOTINCLUDING SUCH STATE’S CONFLICT OF LAWS PROVISIONS OTHER THAN SECTION 5-1401 OFTHE NEW YORK GENERAL OBLIGATIONS LAW).

 

***INWITNESS WHEREOF***, the undersigned has caused thisAgreement to be duly executed and delivered as of the date first above written.

 
|   | [NEW GUARANTOR]                                                 |
|--------|-----------------------------------------------------------------|
|   |                                                            |
|   |                                                            |
|   | Address:                                                        |   |   | By: |   |
|   |                                                            |   | Name: |   |
|   |                                                            |   | Title: |   |
|   |                                                            |   |
|   |                                                            |   |
|   | ACKNOWLEDGED:                                                   |   |
|   |                                                            |   |
|   | BANK OF AMERICA, N.A.,    as the Administrative Agent |   |
|   |                                                            |   |
|   |                                                            |   |
|   | By:                                                             |   |   |
|   |                                                            | Name: |   |   |
|   |                                                            | Title: |   |   |
|        |                                                                 |  |  |  |  |  |  |  |  |  |  |  |  |

 

----