**Exhibit 4(f)**

 

#### **English Version for**

#### **Information Purposes Only**

 

Final Version

 

 

[TO BE FORMALIZED IN SPANISH BEFORE A NOTARY PUBLIC IN MEXICO]

 

IRREVOCABLE SECURITY TRUST AGREEMENT, DATED APRIL29, 2003 ENTERED INTO BY AND BETWEEN GRUPO MINERO MÉXICO, S.A. DE C.V. (“GMM”),INDUSTRIAL MINERA MÉXICO, S.A. DE C.V., (“IMMSA”), MEXICANA DE COBRE,S.A. DE C.V., (“Mexcobre”), MINERALES METÁLICOS DEL NORTE, S.A., (“Mimenosa”),MEXICANA DE CANANEA, S.A. DE C.V., (“Mexcananea”), MEXICANA DEL ARCO,S.A. DE C.V., (“Mexarco”), MINERALES Y MINAS MEXICANAS, S.A. DE C.V., (“MMM”),AMERICAS MINING CORPORATION (“AMC”), MINERA MÉXICO, S.A. DE C.V. (“MM”),COMPAÑÍA DE TERRENOS E INVERSIONES DE SAN LUIS POTOSÍ, SOCIEDAD CIVIL PORACCIONES, S.A. (“TISLP”) AND MÉXICO COMPAÑÍA INMOBILIARIA, S.A., (“MCI”)AS GRANTORS (GMM, IMMSA, Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM, AMC, MM,TISLP and MCI collectively, the “GRANTORS”) AND GE CAPITAL BANK, S.A.,INSTITUCION DE BANCA MÚLTIPLE, GE CAPITAL GRUPO FINANCIERO, AS TRUSTEE (the “TRUSTEE”)PURSUANT TO THE FOLLOWING RECITALS, REPRESENTATIONS AND CLAUSES:

 

**RECITALS**

 

I.                                        On April 29, 2003, GMM, MM, IMMSA, MineraMéxico Internacional, Inc., Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM,TISLP, MCI and Proyecciones Urbanísticas, S. de R.L. de C.V., each other Person identified on the signature pages thereof as aPrincipal Subsidiary, the Financial Institutions identified therein as SENHolders and Bank Holders, Bank of America, N.A., as Bank Holders AdministrativeAgent, HSBC Bank USA, as Shared Payment and Collateral Agent and SEN CollateralAgent and Grupo Mexico Export Master Trust No. 1 (acting by and through TheBank of New York) entered into a Common Agreement (as the same may be amended,supplemented or otherwise modified, the “Common Agreement”).  Capitalized terms used and not otherwisedefined herein shall have the meaning given thereto in the Common Agreement andin Appendix A thereto;

 

II.                                    On April 29, 2003, the SEN Trust, GMM and  the SEN Collateral Agent entered into thatcertain Restructured Trust Indenture (as the same may be amended, supplementedor otherwise modified, the Restructured Trust Indenture);

 

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III.                                On April 29, 2003, the Bank Holders, GMM, MM,the Bank Holders Administrative Agent, the Guarantors (as defined below) enteredinto that certain Amended and Restated Credit Agreement (as the same may beamended, supplemented or otherwise modified, the “Bank Holders RestructuredLoan Agreement”);

 

IV.                                On April 29, 2003, each of MM, IMMSA, MineraMéxico Internacional, Inc., Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM,TISLP, MCI and Proyecciones Urbanísticas, S. de R.L. de C.V. (the “Guarantors”) executed theAffiliate Guaranty (as the same may be amended, supplemented or otherwisemodified, the “Affiliate Guaranty”) guaranteeing all obligations of theBorrower to the Shared Payment and Collateral Agent and each of the SecuredParties, which arise out of or in connection with the Common Agreement or anyother Operative Document;

 

V.                                    MM owes to GMM an amount equal to U.S.$870,304,872.95 (eighthundred seventy million three hundred and four thousand eight hundred andseventy two Dollars 95/100) (the “Intercompany Payable”);

 

VI.                                It is a condition precedent to theeffectiveness of the Common Agreement, the Restructured Trust Indenture, theBank Holders Restructured Loan Agreement and the Affiliate Guaranty amongothers, that the Grantors execute this Agreement in order to, subject to itsterms, secure the full and punctual payment and performance of all theObligations of (a) the Borrower and the Guarantors under the (i) CommonAgreement, (ii) Restructured Trust Indenture and (iii) Bank HoldersRestructured Loan Agreement, (b) the Guarantors under the Affiliate Guaranty,and (c) MM under the Intercompany Payable (jointly the “RestructuringObligations”, and together with the Yankee Obligations,  the “Secured Obligations”);

 

VII.                            Pursuant to that certain indenture dated as ofMarch 31, 1998 (the “Yankee Notes Indenture”), by and between GMM, asissuer, certain of its subsidiaries, as guarantors, and The Bank of New York(the “Yankee Notes Trustee”), as trustee, GMM and the subsidiaries partythereto agreed not to, directly or indirectly incur or suffer to exist any lienon or with respect to any property or assets of GMM or such subsidiarieswithout making an effective provision for securing the notes issued under theYankee Notes Indenture (the “Yankee Notes”) and the guarantees issued inrespect thereof (the “Yankee Guarantees”) equally and ratably with thesecured indebtedness for so long as such indebtedness will be so secured. Forpurposes of this Agreement, the obligations of GMM and its subsidiaries underthe Yankee Notes and the Yankee Guarantees will be referred to as the “YankeeObligations”.

 

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Section 4.08 of the YankeeNotes Indenture provides the following:

 

“Section 4.08.  Limitation on Liens.  GMM will not, and will not permit anyRestricted Subsidiary to, directly or indirectly, Incur or suffer to exist anyLien other than a Permitted Lien on or with respect to any property or assetsof GMM or any Restricted Subsidiary now owned or hereafter acquired to secureany Indebtedness of GMM or any Restricted Subsidiary without making, or causingsuch Subsidiary to make, effective provision for securing the Notes and theGuarantees (x) equally and ratably with such Indebtedness for so long as suchIndebtedness will be so secured or (y) in the event such Indebtedness issubordinate in right of payment to the Notes; prior to such Indebtedness for solong as such Indebtedness will be so secured.”

 

**REPRESENTATIONS**

 

I.                                        Each of the Grantorsrepresents that:

 

(a)                                 In the case of GMM,IMMSA, Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM, TISLP, MCI and MM(jointly, the “Asset Grantors”) it is a corporation duly incorporatedand validly existing under the laws of Mexico and in the case of AMC it is acorporation duly incorporated and validly existing under the laws of the stateof Delaware, United States of America, and is duly empowered, in accordancewith the terms of its constituent and organizational documents, to execute thisAgreement and to assume the obligations set forth herein as is evidenced by thedocuments that are attached hereto as Exhibit A;

 

(b)                                It has obtained all the necessary permits andauthorizations (whether corporate or otherwise) to execute this Agreement,transfer title to its Assets (as defined below) pursuant to the terms hereofand comply with its obligations hereunder;

 

(c)                                  Its attorney-in-fact is duly authorized toexecute this Agreement, on its behalf, and to assume the obligations set forthherein, as is evidenced by the power of attorney attached hereto as ExhibitB, which authority has not been revoked or modified in any mannerwhatsoever;

 

(d)                                 Neither the execution or delivery of thisAgreement, the transfer of title to such Grantor’s Assets in favor of theTrustee, nor the compliance with any of its obligations hereunder, will breachor conflict with or result in a violation of (i) if applicable, its constituentor organizational documents, (ii) any credit agreement, indenture, contract orobligation to take money in the form of loans or any other agreement, contract,authorization, concession, license, permit or other instrument to which it is aparty or to which it, the Assets or any of its other assets are subject to, or(iii) any law, rule, regulation, norm,

 

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decree, order, resolution ofany court, administrative or governmental agency applicable to it, therespective Assets or any of its other assets;

 

(e)                                 Prior to the execution of this Agreement, itwas the sole and rightful owner of the Assets transferred thereby upon creationof this Trust;

 

(f)                                   The Assets transferred thereby upon creation ofthis Trust are free from any liens, encumbrances, security interests or anyother ownership limitation, except for the security interest createdhereby and except as provided in Exhibit C; the rights of the Grantor toits Assets are, and the rights of the Grantor to its Additional Assets (asdefined below) shall be, upon their transfer to the Trust, free of any lien,security interest or any other ownership limitation, except for thesecurity interest created pursuant to the terms of this Agreement and otherPermitted Liens;

 

(g)                                It hasobtained, and currently maintains over the Assets transferred thereby upon creation of this Trust, theinsurance policies listed and described in Exhibit D hereto (the “InsurancePolicies”); and the Insurance Policies are valid and effective as of thedate hereof; it will obtain and maintain insurance over its Additional Assetssimilar to the one provided under the Insurance Policies;

 

(h)                                In order to secure the full and punctual payment and performance ofthe Secured Obligations, it intends on creating, by means of this Agreement, afirst priority security interest on the Assets in favor of the FirstBeneficiaries (as defined below), pursuant to the terms hereof;

 

(i)                                    Except for those matters listed in Schedule A hereto, it isin compliance with all laws and regulations applicable to the Assets or theGrantor’s operation thereof, including environmental protection, development,zoning and other similar laws and regulations, whether such laws or regulationsare of a municipal, state or federal nature, except to the extent (i)compliance with such laws or regulations is being challenged by the Grantorthrough the appropriate legal proceedings and prior creation of the necessaryreserves if required under GAAP, and (ii) non-compliance with such laws orregulations will not have a Material Adverse Effect;

 

(j)                                    This Agreement and the security interest created hereunderconstitutes a legal, valid and binding obligation of the Grantor, enforceableagainst the Grantor in accordance with its terms, except as enforceability maybe limited by applicable bankruptcy, insolvency, *concurso mercantil*,reorganization, moratorium or similar laws affecting the enforcement ofcreditors’ rights generally;

 

(k)                                 Except for those matters listed in Schedule B hereto, thereis no litigation, administrative proceeding, investigation or other legalaction (including any

 

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proceeding under any state or federalbankruptcy law) pending or, to the knowledge of the Grantor, threatened,against the Assets which if adversely determined could have a material adverseeffect on such Assets, or when transferred to the Trust, the Additional Assets;

 

(l)                                    The transfer of the Assets to the Trustee pursuant to the termshereof does not require the authorization of the Federal CompetitionCommission;

 

(m)                              Except for GMM, it continuously has had and as of the date hereofhas business relationships with GMM and is therefore entitled pursuant to itscorporate by-laws to execute this Agreement; and

 

(n)                                The Real Estate Assets (as defined below) and Troubled Real EstateAssets (as defined below) listed in Schedule 2 hereto are the only realestate assets owned by each Grantor of significant commercial value or that arematerial to such Grantor’s business operations.

 

II.                                    The Trustee represents that:

 

(a)                                 It is a multiple banking institution (*instituciónde banca múltiple*) duly organized and validly existing under thelaws of Mexico and is duly empowered, inaccordance with the terms of its constituent and organizational documents, toexecute this Agreement and to assume the obligations set forth herein as isevidenced by the documents that are attached hereto as Exhibit E;

 

(b)                                Its attorney-in-fact is duly authorized toexecute this Agreement, on its behalf, and to assume the obligations set forthherein, as is evidenced by the power of attorney attached hereto as ExhibitF, which authority has not been revoked or modified in any mannerwhatsoever; and

 

(c)                                 It has accepted its appointment as trusteeunder the terms of this Agreement in reliance on the Recitals and on theRepresentations of the Grantors contained above.

 

INWITNESS WHEREOF, the parties hereto agree to the following:

 

**CLAUSES**

 

**FIRST. **Definitions.  Definedterms used in this Agreement will have the meaning set forth below, in theunderstanding that such meaning will be applicable to both the singular andplural form thereof:

 

“Additional Assets” has the meaning setforth in Clause Seventh (a) hereof.

 

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“Additional Concessions” has the meaningset forth in Clause Fifth (e)(i).

 

“Additional Intangible Assets” has themeaning set forth in Clause Fifth (c) hereof.

 

“Additional Real Estate Assets” has themeaning set forth in Clause Fifth (a) hereof.

 

“Additional Shares” has the meaning setforth in Clause Fifth (d) hereof.

 

“Additional Tangible Movable Assets” hasthe meaning set forth in Clause Fifth (b) hereof.

 

“Advisor” has the meaning set forth inClause Thirteenth (a)(5) hereof.

 

“Affiliate Guaranty” has the meaning setforth in Recital IV hereof.

 

“Agreement” means this Irrevocable SecurityTrust Agreement.

 

“AMC” has the meaning set forth in theintroduction hereof.

 

“Appraisal Value” has the meaning set forth inClause Thirteenth (a)(6) hereof.

 

“Assets” shall mean such assets as aredescribed in Clause Sixth hereof.

 

“Asset Grantors” has the meaning setforth in Representation I (a) hereof.

 

“Bank Holders Restructured Loan Agreement”has the meaning set forth in Recital III hereof.

 

“Business Day” means any day other than aSaturday, Sunday or other day on which commercial banks in New York City,United States of America, Mexico City, Mexico or Toronto, Canada are authorizedor required by law to close.

 

“Claims” has the meaning set forth in ClauseSixteenth (a) hereof.

 

“Concessions” has the meaning set forthin Clause Fifth (e)(i) hereof.

 

“Common Agreement” has the meaning setforth in Recital I hereof.

 

“Date of the Foreclosure Request” hasthe meaning set forth in Clause Thirteenth (a)(1) hereof.

 

“Designated Assets” has the meaning setforth in Clause Thirteenth (a)(1) hereof.

 

“Dollars” or “US$” means thelawful currency of the United States of America.

 

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“Excluded Assets” means such assetsdescribed in Schedule 9 hereto in connection with which, as permittedunder Section 4.08 and subsection (xvii) of the definition of Permitted Liensof the Yankee Notes Indenture, an equal and ratable security interest to thesecurity interest created hereunder will not be created in favor of theYankee Notes Trustee.

 

“Excluded Concessions” has the meaningset forth in Clause Fifth (e) (i) hereof.

 

“Facilities” has the meaning set forthin Clause Fourteenth (b) hereof.

 

“First Beneficiaries” means (i) theShared Payment and Collateral Agent, acting on behalf and for the benefit ofthe SEN Holders and the Bank Holders (as such terms are defined in the CommonAgreement) and (ii) the Yankee Notes Trustee, acting on behalf and for thebenefit of the holders of the Yankee Notes and Yankee Guarantees.

 

“Foreclosure Procedure” means anyforeclosure procedure commenced as provided in Clause Thirteenth hereof.

 

“Foreclosure Request” has the meaningset forth in Clause Thirteenth (a)(1) hereof.

 

“GAAP” means generally acceptedaccounting principles in Mexico.

 

“GMM” has the meaning set forth in theintroduction hereof.

 

“Guarantors” has the meaning set forthin Recital IV hereof.

 

“Grantors” has the meaning set forth inthe introduction hereof.

 

“IMMSA” hasthe meaning set forth in the introduction hereof.

 

“Indemnified Persons” has the meaningset forth in Clause Sixteenth (a) hereof.

 

“Insurance Policies” has the meaning setforth in Representation I (g) hereof.

 

“IntangibleAssets” has the meaning set forth in Clause Fifth (c) hereof.

 

“Intercompany Payable” has the meaningset forth in Recital V hereof.

 

“LGTOC” means the Mexican General Law ofNegotiable Instruments and Credit Transactions (*Ley General de Títulos y Operaciones deCrédito*).

 

“LIC” means the Mexican CreditInstitutions Law (*Ley de Instituciones de Crédito*).

 

“LM” means the Mexican Mining Law (*Ley Minera*).

 

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“Loss Proceeds” means any proceedsderived from (i) insurance payments in respect of the Assets, and (ii) anypayment received as a result of expropriation, seizure or similar governmentalaction in respect of the Assets.

 

“MCI” has the meaning set forth in theintroduction hereof.

 

“Mexarco” has the meaning set forth inthe introduction hereof.

 

“Mexcananea” has the meaning set forthin the introduction hereof.

 

“Mexcobre” has the meaning set forth inthe introduction hereof.

 

“Mexico” means the United MexicanStates.

 

“Mimenosa” has the meaning set forth inthe introduction hereof.

 

“MM” has the meaning set forth in theintroduction hereof.

 

“MMM” has the meaning set forth in theintroduction hereof.

 

“Permitted Dispositions” has the meaningset forth in Clause Ninth (b) hereof.

 

“Permitted Investments” means debtinstruments with a remaining maturity not in excess of one year issued orguaranteed by the federal government of the U.S.

 

“Peso” means the lawful currency of theMexico.

 

“Real Estate Assets” has the meaning setforth in Clause Fifth (a) hereof.

 

“Restructured  Trust Indenture” has the meaning setforth in Recital II hereof.

 

“RestructuringObligations” has the meaning set forth in Recital VI hereof.

 

“ScheduledAssets” means such assets listed in Schedule 8 hereto.

 

“Second Beneficiaries” means theGrantors in connection with the rights thereof set forth in Clause Thirdhereof.

 

“Secured Obligations” has the meaningset forth in Recital VI hereof.

 

“Shareholders” means AMC as shareholderof MM and MM as shareholder of GMM.

 

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“Shared Payment and Collateral Agent”means HSBC Bank USA or any other financial institution that replaces HSBC BankUSA as Shared Payment and Collateral Agent under the Common Agreement. 

 

“Shares” has the meaning set forth inClause Fifth (d) hereof.

 

“Tangible Movable Assets” has themeaning set forth in Clause Fifth (b) hereof.

 

“TISLP” has the meaning set forth in theintroduction hereof.

 

“Troubled Real Estate Assets” means thereal estate assets identified as such in Schedule 2 hereto.

 

“Trust” has the meaning set forth inClause Second (b) hereof.

 

“Trust Account” means the account to beopened and maintained by the Trustee at BBVA Bancomer, S.A., Institución deBanca Múltiple, Grupo Financiero BBVA Bancomer or any other account that theTrustee may open and maintain in substitution thereof and that the Trustee willnotify in writing to the Grantors and the Shared Payment and Collateral Agentwithin the 5 (five) Business Days immediately following the opening thereof.

 

“Trustee” has the meaning set forth inthe introduction hereof.

 

“U.S.”means the United States of America.

 

“YankeeGuarantees” has the meaning set forth in Recital VII hereof.

 

“YankeeNotes” has the meaning set forth in Recital VII hereof.

 

“YankeeNotes Indenture” has the meaning set forth in Recital VII hereof.

 

“YankeeNotes Trustee” has the meaning set forth in Recital VII hereof.

 

“YankeeObligations” has the meaning set forth in Recital VII hereof.

 

**SECOND. **Acknowledgment of Indebtedness; Creation of the Trust. (a) The Grantors hereby acknowledge that onthe date hereof, (i) the Borrower and the Guarantors, as the case may be, owesuch amounts under the Common Agreement, the Restructured Trust Indenture, theBank Holders Restructured Loan Agreement and the Affiliate Guaranty, (ii) MMowes such amounts under the Intercompany Payable and (iii) GMM and itssubsidiaries owe such amounts under the Yankee Notes and Yankee Guarantee, allof which are described in Schedule 1 hereto.

 

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(b)                                  The Grantors hereby create this IrrevocableSecurity Trust (hereinafter referred to as this “Trust”) with theTrustee to secure the full and punctual payment and performance of the SecuredObligations by transferring to the Trustee title to the Assets as described inClause Fifth and Sixth below.

 

(c)                                   The Trustee hereby accepts its appointment astrustee and receives the Assets as such receipt is described in Clause Fifthand Seventh below, and will receive Additional Assets as set forth in ClauseSeventh below.  The execution of thisAgreement constitutes evidence of the receipt of the Assets transferred to theTrustee upon execution hereof.

 

(d)                                  With respect to any of the Assets now orhereafter transferred to this Trust, all the Grantors will be liable for anyclaims made by third parties in connection with title to the Assets (*saneamientopara el caso de evicción)*. The Grantors (except AMC) will indemnifythe Trustee and the Shared Payment and Collateral Agent (and their respectiveofficers, directors and employees) for any such claims as described in ClauseSixteenth hereof.

 

(e)                                  In accordance with the LGTOC and the LM, the Asset Grantors agree, toobtain and maintain the registration of this Agreement and of any amendment orsupplement thereto (and any Exhibit or Schedule hereto) in the Public Registryof Property of any location where Real Estate Assets or any Additional RealEstate Assets are located, in the Public Registries of Commerce of thecorporate domicile of each of the Asset Grantors, in the Public Mining Registryand any other registry or institution (including the *Instituto Mexicano de la PropiedadIndustrial*) that, in light of the nature of the Assets is requiredby applicable law.

 

Likewise,the Asset Grantors agree to deliver to the Trustee, (i) within the 90 (ninety)Business Days immediately following the date of this Agreement or the date ofany amendment or supplement hereto (and to any Exhibit or Schedule hereto), thereceipt issued by the corresponding public registries or institutions evidencingreceipt for the filing for registration of the first notarial copy of thepublic deed containing this Agreement or the respective amendment or supplementas well as any receipts evidencing payment of the corresponding registrationfees, (ii) within the 150 (one hundred and fifty) Business Days immediatelyfollowing the date of this Agreement or the date of any amendment or supplementhereto (and to any Exhibit or Schedule hereto), the first notarial copy of thepublic deed containing this Agreement or the respective amendment or supplementwith the respective registration information evidencing its registration withthe aforementioned public registries or institutions and (iii) within the 40(forty) Business Days immediately following the expiration of the 150 (onehundred and fifty) Business Days period set forth in (ii) above, no-lienscertificates issued by the appropriate public registries or institutionsevidencing the security interest created hereunder as the only lien registeredupon the respective Assets.

 

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TheAsset Grantors (except AMC) agree to jointly and severally pay all costs andexpenses, as well as all taxes derived from the ratification of this Agreementor any amendment or supplement hereto (or any Exhibit or Schedule hereto) in apublic deed, as well as all costs, expenses, taxes and registration fees thatmay derive from the registration of the same in the aforementioned publicregistries or institutions.

 

**THIRD. **Parties to the Agreement.  (a) The parties to this Agreement and the First Beneficiaries are thefollowing:

 
| Grantors  and Second Beneficiaries: |   | GMM, IMMSA, Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM, AMC, MM, TISLP  and MCI.                                                                                                                    |
|-------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|                                |   |                                                                                                                                                                                                  |
| Trustee:                            |   | GE  Capital Bank, S.A., Institución de Banca Múltiple, GE Capital Grupo  Financiero.                                                                                                        |
|                                |   |                                                                                                                                                                                                  |
| First  Beneficiaries:               |   | The  Shared Payment and Collateral Agent for the benefit of the SEN Holders and  Bank Holders and the Yankee Notes Trustee for the benefit of the holders of  the Yankee Notes and Yankee Guarantees. |

 

(b)                                  The First Beneficiaries are beneficiaries withrespect to, among other rights granted to them hereunder, (i) all their rights,in accordance to the terms of this Agreement, for the Assets to serve assecurity for the full and punctual payment and performance of the SecuredObligations and (ii) the right, in the event of a foreclosure process conductedas set forth in Clause Thirteenth to all the proceeds obtained from the sale ofthe Assets and to be applied as set forth in Clause Thirteenth (d) hereof.

 

Theappointment of the Yankee Notes Trustee (for the benefit of the holders of theYankee Notes and the Yankee Guarantees) as a First Beneficiary hereunder ismade, as required by the Yankee Notes Indenture, as an effective provision forsecuring the Yankee Obligations equally and ratably with the RestructuringObligations for so long as the Restructuring Obligations are secured hereunderand in the same terms and conditions as the Restructuring Obligations are sosecured (except in connection with the Shares and Additional Shares and theExcluded Assets as described below).

 

Theparties hereto recognize and acknowledge that neither the Yankee Notes Trusteenor the holders of the Yankee Notes or the Yankee Guarantees will have any typeof participation or involvement in the making of any decisions hereunder, inthe understanding that the only circumstance where the consent of the YankeeNotes Trustee will be required will be to amend this Agreement in a

 

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manner that would cause it not to have an equaland ratable right to the security interest created hereunder as provided inClause Twenty Fifth hereof.

 

Allparties hereto agree and acknowledge that only the Restructuring Obligationswill be secured by the Shares and the Additional Shares and the Excluded Assetsand that therefore, the Yankee Notes Trustee will have no right in or interestupon the Shares and Additional Shares and the Excluded Assets or any proceedsderived from the sale thereof.

 

TheShared Payment and Collateral Agent has executed and delivered its acceptanceletter to the Trustee in the form attached hereto as Exhibit G.

 

(c)                                   TheGrantors will be second beneficiaries with respect to the rights of eachGrantor (in connection with the Assets contributed by each such Grantor) (i) toreceive the proceeds obtained from the sale of the Assets in excess of suchamounts that are necessary to satisfy the Secured Obligations and (ii) toreacquire title to the Assets upon termination of the Trust.

 

Theappointment of the First Beneficiaries and the Second Beneficiaries hereundershall be effective on the date hereof.

 

**FOURTH. **Purpose of this Trust.  The purpose of the Trust created hereby isto secure the Secured Obligations with the Assets as provided for herein andfor the Trustee to perform its obligations and to carry out such other actionsas are described herein or in any other document executed pursuant to the termsof this Agreement.

 

**FIFTH. **Transfer of Assets to the Trustee.  The Grantors hereby transfertitle to the Assets described below to the Trustee as trustee of the Trust inaccordance to the provisions of this Clause Fifth.

 

(a)                                   Real Estate Assets:  Eachof the Asset Grantors transfers title to the real estate assets owned by it anddescribed in Schedule 2 hereto (the “Real Estate Assets”) to theTrustee for the purposes set forth herein.

 

Eachof the Asset Grantors acknowledges that transfer of the Real Estate Assets tothe Trustee will be perfected by means of the execution and delivery of thisAgreement and to the extent provided under Clause Seventh (b) (1) hereof,additional supplements to this Agreement, and registration of this Agreement orsuch additional supplements in the Public Registry of Property of any locationwhere Real Estate Assets are located.

 

Inconnection with the real estate assets that each Asset Grantor may acquireafter the date hereof (the “Additional Real Estate Assets”), each AssetGrantor agrees to carry out such actions described in Clause Seventh (b) (1)hereof.

 

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(b)                                  Tangible Movable Assets:  EachAsset Grantor transfers title to all buildings, machinery and equipment ownedby it and used in the ordinary course of its business including withoutlimitation, those buildings, machinery and equipment described in Schedule 3hereto and any buildings, machinery and equipment it may own in the future anduse in the ordinary course of its business (all such Assets together, the “TangibleMovable Assets”) to the Trustee for the purposes set forth herein.

 

Eachof the Asset Grantors acknowledges that transfer of the Tangible Movable Assetsto the Trustee will be perfected by means of the execution and delivery of thisAgreement and registration of this Agreement in the Public Registry of Commerceof the corporate domicile of each Asset Grantor.  Each Asset Grantor further acknowledges that because the Trustwill include all of the buildings, machinery and equipment used in the ordinarycourse of its business, that no further identification is required as providedunder articles 408 and 354 of the LGTOC.

 

Inconnection with Tangible Movable Assets that each Asset Grantor may acquireafter the date hereof (the “Additional Tangible Movable Assets”), eachAsset Grantor agrees to carry out such actions described in Clause Seventh (b)(2) hereof.

 

(c)                                   Intangible Assets.  EachAsset Grantor transfers title to all trademarks and other intellectual propertyheld by it, including without limitation, those described in Schedule 4hereto and in the case of GMM, its rights under the Intercompany Payable andany trademarks and other intellectual property it may hold in the future (allsuch Assets together, the “Intangible Assets”) to the Trustee for thepurposes set forth herein.

 

Eachof the Asset Grantors acknowledges that transfer of the Intangible Assets tothe Trustee will be perfected by means of the execution and delivery of thisAgreement and registration of this Agreement in the Public Registry of Commerceof the corporate domiciles of each Asset Grantor and any other registry orinstitution (including the *Instituto Mexicano de la Propiedad Industrial*)that, in light of the nature of the Assets is required by applicable law.

 

Inconnection with Intangible Assets that each Asset Grantor may acquire after thedate hereof and all trademarks and other intellectual property currently ownedby each Asset Grantor and that are not described in Schedule 4 hereto(the “Additional Intangible Assets”), each Asset Grantor agrees to carryout such actions described in Clause Seventh (b) (3) hereof.

 

MM specifically acknowledges and consents to the assignment of GMM’srights under the Intercompany Payable to this Trust for the purposes set forthherein.

 

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(d)                                  Shares of GMM and MM.

 

Eachof the Shareholders transfers title to all shares held by them representing thecapital stock of each of GMM and MM described in Schedule 5 hereto (the“Shares”) to the Trustee for the purposes set forth herein, which Sharesrepresent 98.9098% (ninety eight point nine zero nine eight percent) and99.8089% (ninety nine point eight zero eight nine percent) of the outstandingshares of GMM and MM respectively.

 

Forpurposes of this section (d), the Shareholders hereby deliver to the Trustee:

 

(i)                                       the original share certificates evidencing theShares duly endorsed in property (*endoso en propiedad*) in favor of theTrustee; and

 

(ii)                                    a copy, certified by the Secretary of the Boardof Directors of each of GMM and MM, of the stock registry books (*libros deregistro de acciones*) of each of GMM and MM, containing a notationduly certified by the Secretary of the Board of Directors of GMM and MM,stating that the Shares have been transferred in favor of the Trustee pursuantto the provisions hereof.

 

Inconnection with shares representing the capital stock of each of GMM and MMthat each Shareholder may acquire after the date hereof (either by means ofsubscription and payment of any capital increase in the capital stock of GMM orMM, as payment of a dividend in shares paid by GMM or MM, or otherwise) (the “AdditionalShares”) each Shareholder agrees to carry out such actions described inClause Eighth hereof.

 

(e)                                   (i)                                     Concessions.  Each of the Asset Grantorstransfers to the Trustee for the purposes set forth herein, all miningexploitation concessions held by it, including without limitation thosedescribed in Schedule 6 hereto and any mining exploitation concessionsit may own in the future (all such Assets together, with the exception of theExcluded Concessions, the “Concessions”) except for the miningexploitation concessions described in Schedule 10 hereto (suchconcessions, the “Excluded Concessions”).

 

Eachof the Asset Grantors acknowledges that the transfer in guaranty of theConcessions described in Schedule 6 hereto will be perfected by means ofthe execution and delivery of this Agreement and registration of this Agreementin the Public Mining Registry.

 

Inconnection with Concessions that each Asset Grantor may acquire after the datehereof and that are therefore not described in Schedule 6 hereto (the “AdditionalConcessions”) and the Excluded Concessions (provided any

 

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restrictions on transfer are eliminatedtherefrom) each Asset Grantor agrees to carry out such actions described inClause Seventh (b) (4) hereof.

 

Theparties hereto recognize that the transfer of the Concessions and anyAdditional Concessions or Excluded Concessions (provided any restrictions ontransfer are eliminated therefrom) described above is exclusively for thepurpose described in this Agreement and to create a security interestthereon.  Therefore, the partiesrecognize that the transfer of the Concessions and any Additional Concessionsor Excluded Concessions to the Trustee will not be deemed a transfer under theterms of the LM and its regulations. Therefore, the Trustee will not acquire any rights or any obligationsunder the Concessions and any Additional Concessions or Excluded Concessions(except its rights hereunder).  Each ofthe respective Asset Grantors will continue to operate the Concessions andAdditional Concessions or Excluded Concessions in the ordinary course of theirbusiness as set forth in Clause Eleventh below.

 

Theparties also recognize and acknowledge that under the terms of ClauseThirteenth hereof, within the context of a Foreclosure Procedure, suchConcessions may only be sold to an entity meeting the requirements set forth bythe LM (and other applicable laws).

 

(ii)                                   Excluded Concessions.  Eachof the Asset Grantors that currently holds Excluded Concessions, hereby agreesto carry out such actions as may be reasonably requested by the Shared Paymentand Collateral Agent in connection with such Excluded Concessions, subject tothe provisions on limitations of transfers provided in such ExcludedConcessions.

 

**SIXTH**.** **Assets.  (a) The Assets shall include the following:

 

(1)                                  an amount equal to $25,000.00 (twenty five thousand Pesos 00/100);

 

(2)                                  the Real Estate Assets;

 

(3)                                  the Tangible Movable Assets;

 

(4)                                  the Intangible Assets;

 

(5)                                  the Shares;

 

(6)                                  the Concessions;

 

(7)                                  any Additional Assets transferred to this Trust pursuant to ClauseSeventh hereof;

 

(8)                                  any Additional Shares transferred to this Trust pursuant to ClauseEighth hereof;

 

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(9)                                  any securities or other instruments acquiredwith the proceeds obtained from the sale of the Assets in a ForeclosureProcedure and Loss Proceeds resulting from such Assets;

 

(10)                            any amounts at any time maintained in the TrustAccount; and

 

(11)                            any other assets that, for any reason or underany circumstance, may be transferred to this Trust.

 

(b)                                 Notwithstanding anything to the contraryhereunder, any Loss Proceeds received by the Trustee in respect of any of theAssets or amounts paid to the Trustee under the Intercompany Payable, (i) ifdenominated in Dollars, shall be delivered by the Trustee to the Trust Account,no later than the next Business Day after receipt thereof, and (ii) ifdenominated in Pesos, such proceeds shall be converted into Dollars by theTrustee pursuant to the terms of Clause Twenty Eighth hereof, and shall bedelivered, no later than the next Business Day by the Trustee to the TrustAccount and will be maintained in such Trust Account and applied by the Trusteein accordance with the instructions of the Shared Payment and CollateralAgent.  However, any Loss Proceedsreceived by the Trustee under any of the Insurance Policies may be delivered bythe Trustee to the respective Grantors as set forth in Clause Twelfth hereof.

 

(c)                                  The Trustee will invest any amounts held at anytime in the Trust Account (if the respective amounts so allow) in PermittedInvestments as instructed to the Trustee in writing by the Shared Payment andCollateral Agent.  The Shared Paymentand Collateral Agent will be entitled to notify the Trustee how to proceed andapply any amounts maintained at any time in the Trust Account and the Trusteewill be released from any liability incurred in regards to such amounts so longas it complies with such instructions. In the event that the amounts maintained in the Trust Account are notsufficient to make investments in Permitted Investments, the same will bemaintained in the Trust Account.

 

**SEVENTH. **Transfer of Real Estate Assets and Additional Assets. (a)  Each of the Asset Grantorshereby acknowledges that on the date hereof it has transferred to the Trusteeall Real Estate Assets, Additional Tangible Movable Assets, AdditionalIntangible Assets and Additional Concessions and agrees to transfer to theTrustee all Additional Real Estate Assets (the Additional Real Estate Assets,Additional Tangible Movable Assets, Additional Intangible Assets and AdditionalConcessions, together, the “Additional Assets”).  Each Asset Grantor hereby agrees to perfectthe transfer to the Trustee of all Real Estate Assets and, to the extentnecessary, Additional Assets in the manner set forth below.

 

(b)                                  The Asset Grantors agree to take the followingactions in order to perfect the transfer of such Real Estate Assets andAdditional Assets to the Trustee:

 

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(1)                                   Real Estate Assets and Additional Real EstateAssets.

 

(i)                                      Real Estate Assets (other than Troubled RealEstate Assets): Within the 120(one hundred and twenty) Business Days immediately following the date of thisAgreement, the Asset Grantors will perfect the transfer of the Real EstateAssets (other than the Troubled Real Estate Assets, the transfer of which willbe perfected as set forth in (ii) below) by means of the execution andregistration of a supplement to this Agreement as described below.

 

Theabovementioned supplement will be granted before a notary public by therespective Asset Grantors and the Trustee and must be registered in therespective public registries of property as set forth in Clause Second (e)above. The Asset Grantors will be liable for the registration of the respectivesupplement hereto in the applicable public registries as set forth in ClauseSecond (e) above.

 

TheAsset Grantors, as the case may be, must deliver to the Trustee or the SharedPayment and Collateral Agent, prior to the expiration of the 120 (one hundredand twenty) Business Day term set forth above, such documentation orinformation relating to the Real Estate Assets, other than the Troubled RealEstate Assets (including such documentation as is required under the lawsapplicable to such Real Estate Assets to perfect the transfer thereof) as theTrustee or the Shared Payment and Collateral Agent may reasonably request.

 

(ii)                                   Troubled Real Estate Assets: Within the 180 (one hundred and eighty)Business Days immediately following the date of this Agreement, the AssetGrantors will perfect the transfer of the Troubled Real Estate Assets by meansof the execution and registration of a supplement to this Agreement asdescribed below.

 

Theabovementioned supplement will be granted before a notary public by therespective Asset Grantors and the Trustee and must be registered in therespective public registries of property as set forth in Clause Second (e)above. The Asset Grantors will be liable for the registration of the respectivesupplement hereto in the applicable public registries as set forth in ClauseSecond (e) above.

 

TheAsset Grantors, as the case may be, must deliver to the Trustee or the SharedPayment and Collateral Agent, prior to the expiration of the 180 (one hundredand eighty) Business Day term set forth above, such documentation orinformation relating to the Troubled Real Estate Assets (including suchdocumentation as is required under the laws applicable to such Troubled RealEstate Assets to perfect the transfer thereof) as the Trustee or the SharedPayment and Collateral Agent may reasonably request.

 

(iii)                                Additional Real Estate Assets. On a quarterly basis for each fiscal quarterof the Asset Grantors, and no later than 30 (thirty) calendar days after the

 

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end of such fiscal quarter, each Asset Grantorwill give written notice to the Trustee (who must transmit a copy of suchnotice to the Shared Payment and Collateral Agent) and the Shared Payment andCollateral Agent of the acquisition or identification by such Asset Grantor ofany Additional Real Estate Assets during such quarter.  Such notice will also provide which of suchAdditional Real Estate Assets the respective Asset Grantor will contribute tothis Trust and which Additional Real Estate Assets such Asset Grantor proposesnot be contributed to this Trust. Within the 15 (fifteen) Business Days immediately following receipt ofsuch notice by the Shared Payment and Collateral Agent (whether from the AssetGrantor or the Trustee), the Shared Payment and Collateral Agent must notifythe respective Asset Grantor and the Trustee in writing of its approval of theterms of such notice, or if such is the case, of its decision as to whichAdditional Real Estate Assets described in such notice should and should not beassigned to the Trust.  If the Trusteedoes not receive written notice to this effect from the Shared Payment andCollateral Agent within such 15 (fifteen) Business Days, the Trustee willassume that the Shared Payment and Collateral Agent approved the terms of thenotice delivered by the Asset Grantors.

 

Within20 (twenty) Business Days after the expiration of the 15 (fifteen) Business Dayterm set forth above, the respective Asset Grantors will perfect the transferof the respective Additional Real Estate Assets by means of the execution andregistration of a supplement to this Agreement as described below or otherwise.

 

Theabovementioned supplement will be granted before a notary public by therespective Asset Grantors and the Trustee and must be registered in the respectivepublic registries of property as set forth in Clause Second (e) above. TheAsset Grantors will be liable for the registration of the respective supplementhereto in the applicable public registries as set forth in Clause Second (e)above.

 

TheAsset Grantors, as the case may be, must deliver to the Trustee or the SharedPayment and Collateral Agent, prior to the expiration of the 20 (twenty)Business Day term set forth above, such documentation or information relatingto the Additional Real Estate Assets (including such documentation as isrequired under the laws applicable to such Additional Real Estate Assets orReal Estate Assets to perfect the transfer thereof) as the Trustee or theShared Payment and Collateral Agent may reasonably request.

 

(2)                                   Additional Tangible Movable Assets.  On aquarterly basis for each fiscal quarter of the Asset Grantors, and no laterthan 30 (thirty) calendar days after the end of such fiscal quarter, each AssetGrantor will give written notice to the Trustee (who must transmit a copy ofsuch notice to the Shared Payment and Collateral Agent) and the Shared Paymentand Collateral Agent of the acquisition or identification by such Asset Grantorof any Additional Tangible Movable Assets with a value (determined based on theprice of acquisition or, if identified, appraisal

 

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value) of U.S.$100,000.00 (one hundred thousandDollars 00/100) or more during such quarter.

 

Notwithstandingthat under Clause Fifth above all Tangible Movable Assets (including AdditionalTangible Movable Assets) are validly transferred hereto upon execution of thisAgreement, to the extent the Shared Payment and Collateral Agent notifies therespective Asset Grantor that it is necessary, the respective Asset Grantor,within the 20 (twenty) Business Days after receipt of such notice from theShared Payment and Collateral Agent, will perfect the transfer of theAdditional Tangible Movable Assets by means of the execution and registrationof a supplement to this Agreement as described below or otherwise.

 

Theabovementioned supplement will be granted before a notary public by therespective Asset Grantors and the Trustee and must be registered in therespective public registries of commerce as set forth in Clause Second (e)above. The Asset Grantors will be liable for the registration of the respectivesupplement hereto in the applicable public registries as set forth in ClauseSecond (e) above.

 

TheAsset Grantors, as the case may be, must deliver to the Trustee or the SharedPayment and Collateral Agent, prior to the expiration of the 20 (twenty)Business Day term set forth above, such documentation or information relatingto the Additional Tangible Movable Assets (including such documentation as is requiredunder laws applicable to such Additional Tangible Movable Assets to perfect thetransfer thereof) as the Trustee or the Shared Payment and Collateral Agent mayreasonably request.

 

(3)                                   Additional Intangible Assets.  On aquarterly basis for each fiscal quarter of the Asset Grantors, and no laterthan 30 (thirty) calendar days after the end of such fiscal quarter, each AssetGrantor will give written notice to the Trustee (who must transmit a copy ofsuch notice to the Shared Payment and Collateral Agent) and the Shared Paymentand Collateral Agent of the acquisition or identification by such Asset Grantorof any Additional Intangible Assets during such quarter.

 

Notwithstandingthat under Clause Fifth above all Intangible Assets (including Additional IntangibleAssets) are validly transferred hereto upon execution of this Agreement, to theextent any Additional Intangible Assets consist of trademarks and otherintellectual property or to the extent the Shared Payment and Collateral Agentnotifies the respective Asset Grantor that it is necessary, the respectiveAsset Grantor, within the 20 (twenty) Business Days after receipt by theTrustee and the Shared Payment and Collateral Agent of the notice mentioned inthe preceding paragraph or within the 20 (twenty) Business Days after receiptof such notice from the Shared Payment and Collateral Agent, will perfect thetransfer of the Additional Intangible Assets by means of the execution andregistration of a supplement to this Agreement as described below or otherwise.

 

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Theabove mentioned supplements will be granted before a notary public by therespective Asset Grantors and the Trustee and must be registered in therespective public registries as set forth in Clause Second (e) above. The AssetGrantors will be liable for the registration of the respective supplementhereto in the applicable public registries as set forth in Clause Second (e)above.

 

TheAsset Grantors, as the case may be, must deliver to the Trustee or the SharedPayment and Collateral Agent, prior to the expiration of the 20 (twenty)Business Day term set forth above, such documentation or information relatingto the Additional Intangible Assets (including such documentation as is requiredunder laws applicable to such Additional Intangible Assets to perfect thetransfer thereof) as the Trustee or the Shared Payment and Collateral Agent mayreasonably request.

 

(4)                                   Additional Concessions.  On aquarterly basis for each fiscal quarter of the Asset Grantors, and no laterthan 30 (thirty) calendar days after the end of such fiscal quarter, each AssetGrantor will give written notice to the Trustee (who must transmit a copy ofsuch notice to the Shared Payment and Collateral Agent) and the Shared Paymentand Collateral Agent of the acquisition or identification by such Asset Grantorof any Additional Concessions during such quarter.

 

Notwithstandingthat under Clause Fifth above all Concessions (including AdditionalConcessions) are validly transferred hereto upon execution of this Agreement,within 20 (twenty) Business Days after receipt by the Trustee and SharedPayment and Collateral Agent of the notice mentioned in the precedingparagraph, the Asset Grantors will perfect the transfer of the AdditionalConcessions by means of the execution and registration of a supplement to thisAgreement as described below or otherwise.

 

Within20 (twenty) Business Days after any assignment limitations contained in theExcluded Concessions are removed, the Asset Grantors will perfect the transferof the Excluded Concessions to the Trust by means of the execution andregistration of a supplement to this Agreement as described below.

 

Theabovementioned supplements will be granted before a notary public by the respectiveAsset Grantors and the Trustee and must be registered in the respective publicregistries as set forth in Clause Second (e) above. The Asset Grantors will beliable for the registration of the respective supplement hereto in theapplicable public registries as set forth in Clause Second (e) above.

 

TheAsset Grantors, as the case may be, must deliver to the Trustee or the SharedPayment and Collateral Agent, prior to the expiration of the 20 (twenty)Business Day terms set forth above, such documentation or information relatingto the Additional Concessions or Excluded Concessions (including suchdocumentation as is required under laws applicable to such Additional

 

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Concessions or Excluded Concessions to perfectthe transfer thereof) as the Trustee or the Shared Payment and Collateral Agentmay reasonably request.

 

(c)                                   Neither the Trustee nor the Shared Payment andCollateral Agent shall be responsible in any way for compliance by the AssetGrantors with their obligations under this Clause Seventh.

 

(d)                                 The parties to this Agreement acknowledge that the failure by any ofthe Asset Grantors to comply with their obligations under this Clauseconstitutes an Event of Default under section 9.01 (e) of the Common Agreementonce the respective cure periods have expired and as such, may result inforeclosure of the Trust as provided hereunder.

 

(e)                                  The Shared Payment and Collateral Agent may, at any time and bymeans of a written notice delivered to the Asset Grantors and the Trustee waiveany of its rights and the corresponding obligations of the Asset Grantors(including the obligation to assign Additional Assets to the Trust) under thisClause Seventh.

 

**EIGHTH. **Contributionof Additional Shares.  The Shareholders hereby agree to transfer tothe Trustee hereunder, immediately upon the subscription and payment of orreceipt of any Additional Shares (i) the share certificates received by theShareholders evidencing such Additional Shares duly endorsed in property (*endoso enpropiedad*) in favor of the Trustee, and (ii) a copy, certified bythe Secretary of the Board of Directors of GMM or MM, as the case may be, ofGMM’s or MM’s stock registry book containing a notation, duly certified by theSecretary of the Board of Directors, stating that such Additional Shares havebeen transferred to the Trustee pursuant to the provisions hereof.  Based on this Clause Eighth, the Trusteeshall always hold at least 98.9098% (ninety eight point nine zero nine eightpercent) and 99.8089% (ninety nine point eight zero eight nine percent) of theoutstanding shares of GMM and MM respectively. The preceding, subject to the adjustments that will derive from that setforth in Clause Thirty Second hereof in connection with the merger of GMM andMM.

 

Notwithstandingthe foregoing, and for the avoidance of doubt, any increase in the capital ofGMM or MM shall be subscribed by the Shareholders in exercise of theirpreferential rights in respect of the Shares or any Additional Shares, and anyshares resulting from such capital increase shall be contributed to the Trustas set forth above.

 

**NINTH. **Use,Operation and Disposals of and Defense of Assets (other than Shares andAdditional Shares).  (a)  At all times, and until the Trustee has receiveda notice from the Shared Payment and Collateral Agent as described in section (e) below, the AssetGrantors will be entitled to operate, use,profit from and dispose of and defend the Assets (other than Shares andAdditional Shares) as described below. The Trustee will grant to the Asset Grantors (i) revocable powers of attorney so that the AssetGrantors may dispose of and defend the

 

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Assets (other than theScheduled Assets, Shares and Additional Shares) only as permitted herein, and(ii) powers of attorney so that the Asset Grantors may dispose of and defendthe Scheduled Assets as permitted herein. The form of powers of attorney that will be granted by the Trustee tothe Asset Grantors are attached hereto as Exhibit H-1 and ExhibitH-2.  The powers of attorneydescribed in this section (a) (except the power of attorney to dispose of theScheduled Assets) will be revoked by the Trustee as described in section (e)below.

 

(b)                                  The Asset Grantors shall be prohibited fromselling, leasing, transferring or otherwise disposing of the Real EstateAssets, Additional Real Estate Assets, Tangible Movable Assets, AdditionalTangible Movable Assets, Intangible Assets, Additional Intangible Assets,Concessions and Additional Concessions except as permitted in section 5.01 (k)and section 5.03 of the Common Agreement and except for such transactions thatdo not constitute Asset Dispositions under Common Agreement and Appendix Athereto (such permitted transactions, “Permitted Dispositions”).

 

It is hereby acknowledged that PermittedDispositions expressly includes the disposition of the Scheduled Assets.

 

(c)                                   The proceeds of such Permitted Dispositionsshall cease to be part of the Assets subject to this Trust and shall bedelivered to the Asset Grantors as the case may be, provided that the AssetGrantors, to the extent Additional Assets are purchased with such proceeds orare received in exchange for the disposed of Assets, will be subject to theircontribution obligations as set forth above.

 

(d)                                 The power of attorney granted to the AssetGrantors hereunder will allow the Asset Grantors to defend the Assets (other than Shares and Additional Shares)against any legal claims and participate in any legal proceeding (includingjudicial, extra-judicial and arbitration proceedings) that is ongoing inconnection with such Assets.

 

The Asset Grantors agree to defend the Assets (otherthan Shares and Additional Shares) against any legal claim brought inconnection therewith and to use their respective best efforts to conduct suchdefense in a manner which will, to the extent possible, not negatively affectthe value of such Assets or the rights of the Trustee or the Shared Payment andCollateral Agent to such Assets.

 

Neither the Trustee nor the Shared Payment andCollateral Agent will be liable for the acts of the Asset Grantors inconnection with such defense.

 

Ifany Asset Grantor receives a judicial or other notice or claim with respect tothe Assets (other than Shares and Additional Shares), or if any Asset Grantorhas knowledge of any fact that may affect legal title to such Assets, therelevant Asset Grantor will advise the Trustee and the Shared Payment andCollateral Agent in writing and forward a copy of any such notice or adescription of any such

 

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fact to the Trustee and to the Shared Paymentand Collateral Agent, no later than the fifth Business Day immediatelyfollowing the day such notice was received or the day on which the relevantAsset Grantor acquired such knowledge, as the case may be.

 

(e)                                   If at any time, and until all the RestructuringObligations are paid in full, an Event of Default has occurred and iscontinuing all of the rights of the Asset Grantors under this Clause to disposeof and defend the Assets (other than Shares and Additional Shares), except fortheir right to dispose of the Scheduled Assets and their right to carry outsuch transactions that do not constitute Asset Dispositions, shall cease andthe Shared Payment and Collateral Agent may direct the Trustee (by writtennotice) to revoke the powers of attorney previously granted to the respectiveGrantors for the disposition and defense of assets as set forth in section (a)above.  The right of the Asset Grantorsto dispose of the Assets (except the rights to dispose of the Scheduled Assetsand their right to carry out such transactions that do not constitute AssetDispositions) pursuant to this Clause will cease immediately while the rightsto defend the Assets will cease upon revocation of the corresponding powers ofattorney provided new powers of attorney are granted as set forth in thisAgreement.

 

Uponreceipt of such notice, and at the latest on the second Business Dayimmediately following receipt thereof, the Trustee will be obligated to revokesuch powers of attorney as required under applicable law and to grant, to theperson or persons appointed by the Shared Payment and Collateral Agent similarpowers of attorney and to grant to the respective Grantors a special power ofattorney exclusively for the purpose of any sales, leases or other dispositionspermitted under the Common Agreement (notwithstanding the occurrence andcontinuance of an Event of Default thereunder).

 

Uponreceipt by the Trustee of a notice from the Shared Payment and Collateral Agentthat any existing Event of Default has been cured, the Trustee will, at thelatest the second Business Day immediately following receipt of such notice,revoke the powers of attorney granted to the person appointed by the SharedPayment and Collateral Agent and the Grantors and grant new powers of attorneyto the respective Grantors as instructed by the Shared Payment and CollateralAgent.

 

(f)                                    The Trustee will have no liability in connectionwith the actions of the Asset Grantors when exercising the authority grantedthereto under the powers of attorney referred to in section (a) above.  The Trustee will not be obligated to monitorthe Grantors’ activities thereunder and will only be obligated to take suchactions as are described in section (e) above.

 

(g)                                  The parties agree that the provisions of thisClause Ninth will substitute the provisions contained in article 402 of theLGTOC.

 

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**TENTH**.** **Shares.  (a)  At all times, and until the Trustee has receiveda notice from the Shared Payment and Collateral Agent as described in section (d) below, theShareholders will be entitled to exercise any and all rights pertaining to theShares and any Additional Shares (whether corporate, economic or otherwise) and the Shareholders shallexercise such rights in a manner not inconsistent with the terms of thisAgreement, the Common Agreement or any other Operative Document.  The Trustee will grant the Shareholders arevocable power of attorney so that the Shareholders may exercise any and allrights pertaining to the Shares and any Additional Shares (whether corporate,economic or otherwise) only as permitted herein, and limited to such acts thatdo not affect or contravene any rights of the Shared Payment andCollateral Agent and the Trustee hereunder.The form of power of attorney that will be granted by the Trustee to theShareholders is attached hereto as Exhibit I.  The power of attorney described in this section (a) will berevoked by the Trustee as described in section (d) below.

 

(b)                                 Each of the Shareholdersagrees that it will deliver to the Trustee and the Shared Payment and Collateral Agent, at least 5 (five) Business Days priorto the date on which any shareholders meeting is scheduled to be held (or tothe date on which resolutions outside a meeting are to be taken, if permittedunder GMM’s and MM’s by-laws), a certificate describing the items contained inthe agenda for the relevant shareholders meeting or a description of such itemsthat will be resolved outside a shareholders meeting.

 

(c)                                  Until the Shareholders’ power of attorney isrevoked under section (d) below, the Shareholders will have the right toreceive any cash dividends paid in respect of the Shares and any AdditionalShares.  In order for the Shareholdersto receive such distributions, the Trustee, upon written notice by theShareholders, will deliver to the Shareholders, if necessary, the coupons (*cupones*)attached to the share certificates evidencing the Shares and any AdditionalShares, as reasonably requested by the Shareholders, and in any case, withinthe 5 (five) Business Days immediately following the date on which the Trusteereceives the request.  All distributionsmade in respect of or in exchange for the Shares and any Additional Shares inany form other than cash, will become a part of the Assets hereunder and, ifreceived by the Shareholders, will be subject to their contribution obligationsdescribed above.

 

(d)                                  If at any time, and until all the RestructuringObligations are paid in full, an Event of Default has occurred and iscontinuing the rights of Shareholders under this Clause shall cease immediatelyand the Shared Payment and Collateral Agent may direct the Trustee (by writtennotice) to revoke the power of attorney previously granted to the Shareholders.

 

Uponreceipt of such notice, and at the latest on the second Business Dayimmediately following receipt thereof, the Trustee will be obligated to revokesuch power of attorney as required under applicable law and to grant, to theperson or

 

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persons appointed by the Shared Payment andCollateral Agent a similar power of attorney.

 

Duringthe continuance of an Event of Default any and all dividends on the Shares andany Additional Shares and any and all distributions made on or in respect ofthe Shares and any Additional Shares (whether in cash, cash equivalents, inkind, in additional shares or in any other form); and any and all cash or otherproperty received in exchange for or in respect of any Shares and anyAdditional Shares shall be and become part of the Assets and, if received bythe Shareholders (and in addition to their contribution obligations describedabove), shall forthwith be delivered to the Trustee (together with, ifappropriate, proper instruments of assignment, endorsement of the relevantcertificates, notations on the relevant registries and/or powers executed bythe Shareholders) to be held hereunder, subject to the terms of this Agreement.

 

Upon receipt by the Trustee ofa notice from the Shared Payment and Collateral Agent that any existing Eventof Default has been cured the Trustee will, at the latest the second BusinessDay immediately following receipt of such notice, revoke the power of attorneygranted to the person appointed by the Shared Payment and Collateral Agent andgrant new powers of attorney to the Shareholders as instructed by the SharedPayment and Collateral Agent.

 

(e)                                  The Shareholders shall be prohibited from selling, transferring orotherwise disposing of the Shares and any Additional Shares.

 

(f)                                    The Trustee will have no liability inconnection with the actions of the Shareholders when exercising the authoritygranted thereto under the power of attorney referred to in section (a) above.The Trustee will not be obligated to monitor the Shareholders’ activitiesthereunder and will only be obligated to take such actions as are described insection (d) above.

 

**ELEVENTH. **Operationof the Concessions.  At all times, the Asset Grantors, as thecase may be, will be entitled to operate the Concessions and any AdditionalConcessions in the ordinary course of their business.

 

**TWELFTH. **Covenantsof the Grantors.  Each of the Grantors (except in connectionwith sections (a), (g), (j) and (k) below, which are only applicable to theAsset Grantors) covenants and agrees, from and after the date hereof and untilthe Restructuring Obligations are fully satisfied:

 

(a)                                   Insurance; Application of Loss Proceeds. To maintain insurance in connection with theAssets in the terms provided for in Section 4.10 of the Common Agreement.

 

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The respective insurance mustname the Trustee as an additional insured or loss payee thereunder, with anyLoss Proceeds payable to the Trustee without any contribution or payment by theTrustee.

 

In the event that the AssetGrantors fail to maintain the insurance coverage as provided for in thisparagraph (a), the Shared Payment and Collateral Agent may obtain suchinsurance and pay the premium therefore and the Asset Grantors (except AMC)hereby agree on a joint and several basis to reimburse the Shared Payment andCollateral Agent, on demand, for all premiums and expenses incurred inconnection therewith, together with interest thereon, computed at the DefaultInterest Rate.  The security interestcreated hereunder will also secure such amounts.

 

AnyLoss Proceeds derived from the occurrence of events covered under the InsurancePolicies will be transferred to the Trust Account as set forth in Clause Sixthabove and the Trustee will apply such funds as instructed in writing by theShared Payment and Collateral Agent as described in section 4.10 of the CommonAgreement.

 

(b)                                  Further Identification of the Assets.  Ifand when reasonably requested in writing by the Trustee or the Shared Paymentand Collateral Agent, to furnish to the Trustee and the Shared Payment andCollateral Agent statements and other documents further identifying anddescribing the Assets and such other reports containing information to whichthe Grantors have access in connection with the Assets (or any element thereof)as the Trustee or the Shared Payment and Collateral Agent may reasonably request,all in reasonable detail.

 

(c)                                  Notices.  To advise the Trustee and theShared Payment and Collateral Agent promptly, in reasonable detail, (1) of anymaterial lien or claim made or asserted against the Assets, including judicialproceedings and governmental investigations affecting or involving the Assets,(2) of any material change in the composition of the Assets, and (3) of theoccurrence of any event which would have a material adverse effect on theaggregate value of the Assets or on the security interest created hereunder.

 

(d)                                  Actions affecting this Trust.  Torefrain from taking any action or allowing any person under its control to takeany action, that may affect the validity or enforceability of the Trust and thesecurity interest created hereunder.

 

(e)                                   Defense of the Assets.  Todefend, each at its own cost and expense, the Assets which are or may becomepart of this Trust, and any rights of the Trustee or the First Beneficiariesderiving from this Agreement, from and against any action or judicialproceeding initiated by any third party before any governmental authority,court or arbitrator in accordance with the terms hereof.  The obligations of the Grantors containedherein will be subject to the provisions of Clause Ninth and Fifteenth hereof.

 

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(f)                                     Rights of Inspection.  Uponprior written notice given to the Grantors no less than 48 (forty eight) hoursin advance (except during the existence of an Event of Default or during anyForeclosure Procedure, in which case, no prior notice will be required, toallow the Trustee and the Shared Payment and Collateral Agent and theirrepresentatives free and full access, during normal business hours, and withoutinterrupting the Grantors’ operations to the books and records andcorrespondence of the Grantors in any manner related with the Assets or theGrantors’ operation or use thereof.  TheTrustee and the Shared Payment and Collateral Agent and their representativeswill be entitled to and the Trustee or the Shared Payment and Collateral Agentor their representatives may examine the books, records and correspondence ofthe Grantors and make extracts or copies thereof. Likewise, the Grantors willprovide the Trustee and the Shared Payment and Collateral Agent or itsrepresentatives such assistance as is reasonably requested for the purposes ofthis section (f).  By notice given tothe Grantors at least 48 (forty eight) hours in advance (except during theexistence of an Event of Default or during any Foreclosure Procedure, in whichcase no prior notice will be required), the Trustee and the Shared Payment andCollateral Agent and their representatives will have the right to enter any ofthe Assets during normal business hours and without interrupting the Grantors’operations with the purpose of inspecting, observing its use, or protectingtheir interests.

 

(g)                                 Maintenance of the Assets.  Tocarry out all actions as may be necessary or convenient to maintain the Assetsin good working order and condition, consistent with its past practice and withstandards applicable to business similar to those conducted by the Grantors.

 

(h)                                  Compliance with laws and regulations.  Tocomply with all laws and regulations applicable to the Assets or to theGrantors in their operation thereof, including environmental protection, zoningand other similar laws and regulations, whether such laws are of a municipal,state or federal nature, except to the extent (i) compliance with such laws orregulations is being challenged by the Grantors through the appropriate legalproceedings and prior creation of the necessary reserves if required underGAAP, and (ii) non-compliance with such laws or regulations will not have aMaterial Adverse Effect.

 

(i)                                      Taxes and assessments.  Topay on or prior to their due date and to refrain from entering into anyagreement to defer, any real estate taxes and assessments, franchise taxes andcharges and other governmental charges that may become a lien upon the Assets,and upon prior written request of the Shared Payment and Collateral Agent orthe Trustee to promptly furnish the Shared Payment and Collateral Agent or theTrustee with evidence of such payment.

 

(j)                                      Environmental Laws. Notwithstanding their obligations under (h) above, to (i) comply in allrespects with all applicable Environmental Laws, except (a) to the extentcompliance with such Environmental Laws is being challenged by

 

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the Grantors through the appropriate legalproceedings and prior creation of the necessary reserves if required under GAAPand (b) non-compliance with such Environmental Laws will not have a MaterialAdverse Effect, (ii) notify the Trustee and the Shared Payment and CollateralAgent immediately upon discovery of any spill, discharge, release or presenceof any pollutant at, upon, under, within, contiguous to or otherwise affectingthe Assets and (iii) promptly deliver to the Trustee and the Shared Payment andCollateral Agent copies of all orders, notices, claims, permits, applicationsor other communications or reports in connection with any or the itemsdescribed in (ii) above.

 

(k)                                   Excluded Concessions.  Totake such action as is necessary or convenient to eliminate any prohibitionscontained in the Excluded Concessions that may in any way limit the possibilityof such Excluded Concessions being assigned hereto, including, withoutlimitation, executing and delivering such further instruments and documents,making such filings with any Mexican governmental authorities and taking suchfurther actions as may be necessary for such purpose.  As soon as any such prohibitions are eliminated, the respectiveAsset Grantors will transfer such Excluded Concessions to the Trust as set forthin Clause Seventh hereof and such Excluded Concessions will be deemed asConcessions for all purposes hereunder.

 

**THIRTEENTH. **Foreclosure Proceeding.  (a)  Saleof Assets.  Without limiting theother rights of the Shared Payment and Collateral Agent hereunder, if theShared Payment and Collateral Agent notifies the Trustee in writing that anEvent of Default has occurred and is continuing, then the Trustee shall beentitled to exercise directly or through any attorneys-in-fact appointed asdescribed in Clauses Ninth and Tenth above its rights hereunder, and proceed inaccordance with the following foreclosure proceeding which is hereby agreedupon by the parties hereto, based on article 83 of the LIC:

 

(1)                                  if the Trustee receives a foreclosure requestfrom the Shared Payment and Collateral Agent in the form of the foreclosurerequest attached hereto as Exhibit J (hereinafter, the “ForeclosureRequest” and, the date such request is delivered, hereinafter, the “Dateof the Foreclosure Request”), by means of which the Shared Payment andCollateral Agent requests the Trustee to sell all or a portion of the Assets,as designated by the Shared Payment and Collateral Agent in the ForeclosureRequest (hereinafter, any assets so designated, the “Designated Assets”)to satisfy the Secured Obligations, the Trustee shall proceed to sell theDesignated Assets as provided below.

 

TheShared Payment and Collateral Agent by acceptance of this Agreement agrees thatit must initially deliver a Foreclosure Request whereby it designates theShares and/or Additional Shares as the Designated Assets, and that it may onlydeliver a Foreclosure Request in connection with other Assets assigned heretoonce the initial process commenced in connection with such Shares and/orAdditional Shares has been terminated and provided the steps described up to

 

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section (11) of this section (a) have beenexhausted or before then only in the event the necessary appraisals were notable to be completed due to a lack of sufficient information, and irrespectiveof whether such initial process concluded with the sale of such Shares and/orAdditional Shares or not;

 

(2)                                  the Trustee shall give notice of theForeclosure Request (which will include a copy of the Foreclosure Request)through a notary public to each of the Grantors, to the domiciles indicatedherein and by facsimile to the numbers indicated herein, within 3 (three)Business Days after the receipt by the Trustee of the Foreclosure Request;

 

(3)                                  the Grantors, jointly, through one of suchGrantors shall have 5 (five) Business Days, from the date of receipt of thenotice from the Trustee mentioned in paragraph (2) above, to deliver to theTrustee (with a copy to the Shared Payment and Collateral Agent) evidence ofpayment of all outstanding Restructuring Obligations; provided that, theTrustee must request the Shared Payment and Collateral Agent to provide awritten confirmation that the Restructuring Obligations have been paid in full;

 

(4)                                  in the event that, (a) the Grantors fail to deliverthe evidence of payment mentioned in paragraph (3) above within the time periodspecified therein or, (b) if the Grantors deliver such evidence of payment andthe Shared Payment and Collateral Agent indicates in writing to the Trusteethat it does not concur with such evidence of payment and that theRestructuring Obligations have not been paid in full, the Trustee shallimmediately proceed to sell the Designated Assets as instructed in writing bythe Shared Payment and Collateral Agent, and as set forth in this Clause;

 

(5)                                  the Shared Payment and Collateral Agent willappoint an independent advisor or investment bank among those listed in ExhibitK hereof (the “Advisor”) to organize and coordinate the biddingprocess contemplated herein and to prepare all relevant documentation, providedthat the Shared Payment and Collateral Agent may at any time change the Advisor(with or without cause);

 

(6)                                  the Advisor and a second advisor or investmentbank appointed by the Shared Payment and Collateral Agent among those listed inExhibit K hereto, will conduct appraisals in order to determine thereference value of such Designated Assets for purposes of this Clause (the “AppraisalValue”).  If the results of such 2(two) appraisals do not differ in more than 10% (ten percent) of the higher ofsuch appraisals, the Appraisal Value will be the arithmetic average of suchresults.  If the difference between suchresults is more than 10% (ten percent) of the higher of such appraisals theShared Payment and Collateral Agent will appoint a third advisor or investmentbank among those listed in Exhibit K hereto, who will carry out a newappraisal and the Appraisal Value will be the result of either of the first twoappraisals that is closest to the result of the appraisal conducted by thethird advisor or investment bank.

 

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(7)                                  the Grantors agree to timely produce anddeliver to the Trustee, the Advisor and the Shared Payment and Collateral Agentsuch information (legal, financial or otherwise) reasonably requested inwriting by the Trustee, the Advisor or the Shared Payment and Collateral Agent,which may be necessary or desirable for a potential bidder to make an informedoffer; provided that, the Advisor may obtain such information from othersources;

 

(8)                                  at the written request of the Advisor, and aslong as the Shared Payment and Collateral Agent advances all reasonable amountsthat may be necessary, the Trustee shall issue and/or publish such invitationsand notices to potential bidders, hold meetings with such potential bidders andtake the actions requested by the Advisor or the Shared Payment and CollateralAgent, in connection with the submittal of bids, provided that no publicnotice shall be required in connection with any proceedings under this Clauseand provided further that all notices to bidders shall expressly statethat the Trustee, upon instructions from the Shared Payment and CollateralAgent reserves the right to suspend or cancel the bid process at any timewithout liability for the Trustee or any of the parties hereto;

 

(9)                                  the Advisor shall identify potential biddersand conduct the pre-qualification process of potential bidders and advise theTrustee and the Shared Payment and Collateral Agent of the results thereof;

 

(10)                            the pre-qualified bidders shall submit theiroffers in writing and in a sealed envelope to the Trustee, on the date and timeestablished in the relevant notice, and, if so requested in such notice,together with a stand-by letter of credit issued by a recognized bankinginstitution or a certified check issued in favor of the Trustee in an amountand terms determined by the Trustee (at the request of the Advisor) toguarantee the seriousness of their bid;

 

(11)                            the Trustee shall open the envelopes in thepresence of the bidders, their representatives, and a notary public, on thedate and time set for the sale of the Designated Assets, in the understandingthat the absence of any bidder or representative shall not impede the openingof the bids;

 

(12)                            the Trustee shall designate, as the winningbidder, the bidder that submitted the proposal which, as determined exclusivelyby the Advisor, offers the best terms, conditions and assurances, it beingunderstood that such determination by the Advisor shall be consideredconclusive and irrevocable for all legal purposes, provided that the acceptedoffer must provide for consideration at least equal to 90% (ninety percent) ofthe Appraisal Value of the Designated Assets. The offer price must be paid within a term of 15 (fifteen) Business Daysfollowing the award as specified by the Trustee;

 

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(13)                            the winning bidder shall pay to the Trustee theoffered price, and the Trustee shall transfer the Designated Assets upon suchpayment, within 30 (thirty) Business Days after receipt of such payment;

 

(14)                            in the event that the winning bidder fails topay the offered price within such term, the stand-by letter of credit orcertified check delivered thereby, as the case may be, shall inure to thebenefit of the Trustee, who shall apply it as set forth in paragraph (d) ofthis Clause;

 

(15)                            upon expiration of the term indicated by theTrustee pursuant to the paragraph (12) above without the proposed purchaseprice being paid, the Trustee, within the following 3 (three) Business Days,shall notify the bidder who, as determined by the Advisor, offered the secondbest conditions; if such bidder maintains its initial offer, it shall begranted a period of time (as determined by the Advisor) not to exceed 30(thirty) Business Days, to pay the purchase price to the Trustee; if the secondbest bidder does not maintain its offer, the Trustee shall continue contactingall bidders in the order of higher to lower offers, following the procedurespecified above and provided that the minimum percentage of the Appraisal Valueset forth in (12) above must be met by any such offers;

 

(16)                            if the sale of the Designated Assets is notmade to any of the bidders pursuant to the procedure specified above, theTrustee shall undertake new bidding processes following substantially theforegoing steps, until the sale of the Assets is completed, provided that theminimum percentage of the Appraisal Value that must be met to accept an offeras set forth in (12) above will be reduced 5% (five percent) for each saleprocess to a minimum of 80% (eighty percent); and

 

(17)                            upon payment to the Trustee of the purchaseprice, the Trustee shall transfer the Designated Assets to the winning bidder withinthe 30 (thirty) Business Days after receipt of such payment.

 

For purposes of this paragraph(a), the parties hereby agree that (i) the Shared Payment and Collateral Agentmay, at any time during such proceeding, instruct the Trustee in writing to eithersuspend or cancel such proceeding or to not accept any bid submitted by anybidder and (ii) the Shared Payment and Collateral Agent shall be obligated toinstruct the Trustee to cancel the foreclosure proceeding contemplated hereinif, at any time during such proceeding, the then outstanding RestructuringObligations are satisfied in full, which shall be confirmed by the SharedPayment and Collateral Agent to the Trustee in writing.

 

Regarding this section (a),the Advisor must, at all times, comply with all applicable laws related to theproceeding therein described.

 

(b)                                 Alternative Judicial Sale of Assets. Notwithstanding the provisions contained in section (a) above, theparties agree that if the validity, legality or enforceability of the foreclosureprocess described in section (a) above is judicially

 

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objected or challenged by any person other thanthe Lenders or if the Designated Assets cannot be sold under such procedurebecause no offers are made that meet the minimum value requirement set forth insection (a) (16) above, such foreclosure may be conducted following any otherforeclosure procedures provided for under applicable law.

 

(c)                                  Limitations on Sale of Concessions.  Theparties hereto agree that the Concessions may not be sold to an entity thatfails to meet the requirements set forth by the LM  (and other applicable laws) for the transfer of miningexploitation concessions.  Neither theTrustee nor the Shared Payment and Collateral Agent will have any liability inconnection with such a sale made based upon such a determination.

 

(d)                                 Application of Sale Proceeds.  Theproceeds from the sale of the Designated Assets pursuant to paragraphs (a) or(b) above, shall be delivered to the Trustee, who shall proceed as instructedin writing by the Shared Payment and Collateral Agent, provided that suchproceeds shall be applied by the Trustee in the following order of priority:

 

(1)                                  first, to the payment of all taxes due as aresult of the sale of the Designated Assets in accordance with the provisionsof paragraph (a) or (b) of this Clause, but only to the extent such taxes haveto be withheld by the Trustee in accordance with Mexican tax laws andregulations;

 

(2)                                  second, to the payment of all reasonable anddocumented expenses and commissions (plus applicable value added taxes)incurred in connection with the sale of the Designated Assets, including,without limitation, any expenses, fees or commissions reasonably charged orincurred by the Trustee, the Shared Payment and Collateral Agent or theAdvisor, if any such expenses, fees or commissions have not been paid by theGrantors;

 

(3)                                  third, to the Shared Payment and CollateralAgent to be applied in accordance with the terms of Article VIII of the CommonAgreement; and

 

(4)                                  fourth, upon payment in full of the foregoingitems, and provided the Shared Payment and Collateral Agent has returnedremaining amounts to the Trustee, any remaining amounts shall be delivered tothe Grantors, pursuant to the joint instructions of the Grantors or, absentsuch instructions for a period longer than 120 (one hundred and twenty)calendar days, as ordered by a court of competent jurisdiction.

 

(e)                                  Instructions.  The parties agree that theShared Payment and Collateral Agent shall be exclusively entitled to initiate,suspend or cancel the foreclosure proceeding contemplated in this Clause and toinstruct the Trustee with respect thereto. As to any matters not expressly contemplated in respect of the

 

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foreclosure procedure contemplated herein, theTrustee shall act only pursuant to the written instructions of the SharedPayment and Collateral Agent.

 

(f)                                    No Liability.  Neither the Shared Payment andCollateral Agent nor the Trustee agree to assume, or shall assume, anyresponsibility or liability of any nature, express or implied, with respect tothe accuracy or completeness of the information delivered by the Grantors topotential bidders in connection with the sale of the Designated Assets.

 

(g)                                 Value Added Taxes and Other Taxes.  Thepurchaser of all or a portion of the Assets pursuant to the foregoing, shallpay to the Trustee any applicable value added taxes and any other applicabletaxes that arise as a result of the transfer of the Designated Assets, whichthe Trustee will deliver to the respective Grantors.  The Grantors, jointly and severally, shall file the correspondingtax returns in accordance with applicable law.

 

(h)                                 Notice.  The Trustee hereby agrees thatprior to completing the sale of the Designated Assets under this Clause for asale price which would be less than the full amount of the then outstandingSecured Obligations, the Trustee shall send a written notice to the SharedPayment and Collateral Agent (with a copy to each Grantor) notifying the SharedPayment and Collateral Agent of the application of Clause Fourteenth (a) and(c) hereof and shall receive a written confirmation of such notice from theShared Payment and Collateral Agent before completing such sale.

 

**FOURTEENTH. **LegalObligations.  (a) For purposes of article 412 of the LGTOC, the parties agree that in theevent the proceeds of the sale of each and every one of the Assets are notsufficient to cover the total amount of the Secured Obligations, the debtorsunder the Secured Obligations shall be released from the obligation to pay thebalance, and the rights of the Lenders and the holders of the Yankee Notes andthe Yankee Guarantees to claim such balance shall be considered terminated.  Notwithstanding the above, the partiesfurther agree that if during the term of this Agreement, article 412 of theLGTOC is derogated or amended in any way to allow the Grantors to waive theprovisions of such article, this Section (a) will automatically cease to be ineffect.

 

(b)                                 For purposes of articles 402, 404, 405 and 406of the LGTOC, the parties agree that the Tangible Movable Assets to becontributed to this Trust shall be installed in or maintained within the AssetGrantors’ current facilities, including those described in Schedule 7hereto (the “Facilities”), except to the extent that it isnecessary to remove the same from such facilities in the ordinary course ofbusiness of the Asset Grantors.  Neitherthe Trustee nor the Shared Payment and Collateral Agent will be obligated toverify or to inspect (i) the condition, installation and maintenance in theFacilities of the Tangible Movable Assets, (ii) the need to remove any suchTangible Movable Assets in the ordinary course of business, and

 

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(iii) the repair, maintenance, operation andmanagement of the Tangible Movable Assets.

 

(c)                                  The parties hereto expressly waive theprovisions of the following articles of the LGTOC: (1) article 405, lastparagraph, and (2) article 406, sections II through VII, and the last paragraphof that article.  With respect to theprovisions of article 404 of the LGTOC, the parties hereto expresslyacknowledge and agree that the Grantors shall have no obligation to assign ortransfer to the Trustee other assets or properties (other than AdditionalAssets pursuant and subject to the terms of this Agreement) if the Assetsdecrease their market value.  In lightof the foregoing, the parties hereto expressly acknowledge and agree that theSecured Obligations shall not be subject to acceleration upon failure of theGrantors to assign or transfer to the Trustee such other assets or propertiesif the Assets decrease their market value.

 

(d)                                 The Grantors hereby expressly waive theprovisions of article 349 of the LGTOC and agree that the Assets shall not bereduced or released as a result of any partial payment of the SecuredObligations.

 

**FIFTEENTH. **Trustee’sLiability; Protection of the Assets.

 

(a)                                  The Trustee agrees to manage the Assets,according to the terms of this Agreement, to comply with its obligations and toexercise its rights hereunder pursuant to the terms hereof and as a good *paterfamiliae*, according to applicable law.

 

(b)                                 The parties hereto agree that the Trustee willnot be liable for any act or omission, including, without limitation, thefailure to receive written instructions in accordance with the terms of thisAgreement, of any other party to this Agreement or of any third party that mayresult in the failure to achieve the purposes set forth in this Agreement,except in the case of willful misconduct, bad faith or negligence.

 

(c)                                  Should the Assets be insufficient to satisfythe Secured Obligations, the Trustee shall have no responsibility to make anycontributions to this Trust or to make any payments in respect of the SecuredObligations.

 

(d)                                 If the Trustee receives a judicial or othernotice or claim with respect to this Trust or the Assets, or if the Trustee hasknowledge of any fact that may affect legal title to the Assets, the Trusteewill advise the Grantors and the Shared Payment and Collateral Agent in writingand forward a copy of any such notice or a description of any such fact to theGrantors and to the Shared Payment and Collateral Agent, no later than thesecond Business Day immediately following the day such notice was received orthe day on which the Trustee acquired such knowledge, as the case may be.

 

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(e)                                  In the events mentioned in the precedingparagraph, unless the Assets in connection with which the claim is brought arecovered by an effective power of attorney granted to any Asset Grantor underClause Ninth hereof, the Trustee will have the obligation to grant, to thepersons or entities appointed in writing by the Shared Payment and CollateralAgent, the necessary powers of attorney to defend the Assets against any legalclaims.  In the event that the SharedPayment and Collateral Agent fails to designate a person or entity to defendthe Assets in the foregoing terms and it is likely that such lack of defensewill have a material adverse effect on the Assets, then the Trustee, withoutbeing liable, except in case of willful misconduct, bad faith or negligence,will grant the requisite powers to the person or persons that the Trustee deemsappropriate in its sole and absolute discretion and will give the necessaryinstructions for the effective defense of the Assets, until such time when theShared Payment and Collateral Agent delivers the appropriate writteninstructions in connection with such defense. The Trustee will not be liable for the acts of the attorneys-in-factappointed by it in accordance with this Agreement or for the payment of therelevant fees and expenses, which payment will be covered jointly and severallyby the Grantors (except AMC).

 

(f)                                    Should an action be necessary to protect andmaintain title to the Assets, the Trustee will be obligated to initiate anyimmediate action, as soon as practicable, and as required to protect theAssets.  It being understood, that theGrantors (except AMC) jointly and severally agree to deliver to the Trustee, assoon as practicable, the necessary funds, and to reimburse all reasonable anddocumented costs and expenses incurred by the Trustee in connection with theinitiation of the aforementioned action, in order for the Trustee to continuewith such action.

 

(g)                                 The Trustee will not be liable for any actionit takes pursuant to the written instructions, notifications and/or noticesgiven to it by the Grantors, the Shared Payment and Collateral Agent or theAdvisor, as the case may be, in accordance with this Agreement and itsSchedules; the Trustee will be liable if acting with negligence, bad faith orwillful misconduct or other than in accordance with its obligations pursuant toparagraph (a) of this Clause, including, without limitation, notice of theexistence of an Event of Default and the continuance thereof.

 

(h)                                 To satisfy the purposes of this Agreement, theTrustee will have the following powers (which the Trustee agrees to exercisepursuant to the provisions of this Agreement): power to dispose of the Assetswith the most ample powers granted to general attorneys-in-fact for lawsuitsand collections, acts of administration, acts of ownership, even those thatrequire a special clause, power to appear and conduct all types of proceedingsbefore federal, state and municipal authorities, arbitrators, decentralizedentities, persons or entities, in terms of articles 2554 and 2587 of theFederal Civil Code and its correlatives articles of the civil codes for theother states of Mexico and the Federal District; to promote and

 

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withdraw from a “*juicio de amparo”*, incriminal matters, present accusations, formulate suits, assist the *ministeriopúblico*, and claim damages; general power of attorney to issueagainst any account maintained hereunder or endorse negotiable instruments, interms of Article 9 of the LGTOC (with the sole limitation that such powers ofattorney with respect to the issuance against accounts or endorsement ofnegotiable instruments must be exercised by a fiduciary delegate of the Trusteewith the prior written instructions of the Shared Payment and Collateral Agentor in strict adherence with the terms of this Agreement), and power to grantand revoke powers of attorney granting to the appointed attorneys-in-fact, theauthority specified in writing pursuant to the terms of this Agreement.

 

(i)                                     Notwithstanding any********other limitations to the Trustee’sliability hereunder, the parties hereto agree that the Trustee will not beliable for, or have any duty to ascertain, verify or inquire into any of thefollowing:****

 

****(1)********                                   ********any statement or recital hereunder made by the Grantors;****

 

****(2)********                                   ********the contents of any certificate, report or other documentdelivered hereunder or in connection herewith by the****Shared Payment and Collateral Agent ****or theGrantors;****

 

****(3)********                                   ********the performance and compliance by the****Shared Payment and Collateral Agent ****or theGrantors of any of their covenants or agreements set forth herein;****

 

****(4)********                                   ********the possession, identification, management and use of theAssets;****

 

****(5)********                                   ********the occurrence and continuance of any Event of Default asdetermined by the****SharedPayment and Collateral Agent****;****

 

****(6)********                                   ********any Permitted Disposition pursuant to the terms of theinstructions delivered by the Grantors to the Trustee;****

 

****(7)********                                   ********except in connection with the Shares and any AdditionalShares contributed to this Trust, the validity, legitimacy, enforceability,effectiveness or genuineness of any negotiable instrument, commercial letter ofcredit or similar document that may become a part of the Assets; and****

 

****(8)********                                   ********the lack of registration of this Agreement in thecorresponding public registries pursuant to the terms of Clause Second (e)hereof.****

 

(j)                                     The Trustee will not be liable in connectionwith Assets that are not specifically identified to the Trustee.

 

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**SIXTEENTH**.** **Indemnity.  (a) The Grantors (except AMC) hereby jointly and severally agree toindemnify and hold harmless the Trustee and the Shared Payment and CollateralAgent and its respective officers, directors and employees (collectively, the “IndemnifiedPersons”) for all damages that may result from the non-performance of theobligations of the Grantors herein set forth, in any manner relating to, inconnection with, or arising from this Agreement, or that arise from or inconnection with any transaction derived from this Agreement, as well as for damagesthat may arise in case a claim, proceeding, judgment or complaint is filed orpresented against any of the Indemnified Persons in connection with thisAgreement, or the transactions contemplated herein or the Assets (collectively,the “Claims”), except when such damages are the consequence of thenegligence or willful misconduct of the Indemnified Person.  As a result, the Grantors (except AMC)hereby jointly and severally agree to reimburse the Indemnified Persons for anyexpense of any nature incurred (including attorney’s fees and expenses), ifsuch expense is reasonable and duly documented, and to repair any damages thatany Indemnified Person may have suffered as a result of its participation inany of the transactions contemplated herein.

 

(b)                                 The obligations of theGrantors (except AMC) specified in paragraph (a) above will not be applicablein respect of any Claim resulting from such Indemnified Person’s negligence orwillful misconduct.

 

**SEVENTEENTH. **Mandatory Provision Regarding the Trustee’s Liability. Pursuant to article 106, XIX, b) of the LIC, the Trustee represents thatit has explained clearly and without doubt to the parties hereto, the terms,legal meaning and consequences of such article, which reads as follows:

 

“*ARTICLE 106.  It shall be prohibited to credit institutions:*

 

*XIX.  Whenentering into the operations referred to in Section XV of Article 46 of thisLaw:*

 

*b)  To respondto the settlors, principals or agents, of any breach by the debtors, for loansgranted thereto, or on behalf of issuers, for securities acquired, unless it isdue to their fault, as set forth in the last paragraph of article 356 of theGeneral Law of Negotiable Instruments and Credit Operations, or to guaranteeobtaining certain returns in connection with funds, the investment of which isrequested therefrom.*

 

*If upon termination of the trust agreement, mandate oragency established to grant loans, any such loans shall have not been repaid bythe debtors, the institution shall transfer them to the settlor or thebeneficiary, as the case may be, or to the representative or agent, withoutrepaying any outstanding amounts.*

 

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*Any agreement contrary to what is set forth in the twopreceding paragraphs shall not have legal validity.*

 

*In any trust agreements, mandates or agencies, theprior paragraphs shall be inserted conspicuously as well as a representationfrom the institution to the effect that it has, clearly and without doubt, madeits meaning be known to the persons from which it has received assets forinvestment.”*

 

**EIGHTEENTH.  **Replacement of the Trustee.

 

(a)                                  Subject to paragraphs (c) and (d) below, theTrustee may resign as trustee hereunder by means of a written notice deliveredto the Grantors and the Shared Payment and Collateral Agent, at least 90(ninety) calendar days in advance. Subject to paragraph (c) below, the Trustee may be removed by means of awritten notice delivered by the Shared Payment and Collateral Agent at least 20(twenty) calendar days in advance.

 

(b)                                 If the Trustee ceases to act as trustee underthis Agreement due to early termination of its duties in accordance withparagraph (a) above, the Trustee will prepare account statements, balances andaccounts related to the Assets, which will be delivered on the date ofeffectiveness of such termination.

 

(c)                                  The Shared Payment and Collateral Agent will beentitled to appoint any successor Trustee; provided that, as long as noEvent of Default has occurred and continues, the Grantors must give theirwritten consent to any such appointment within 15 (fifteen) calendar daysfollowing the date the Grantors have received notice of such appointment by theShared Payment and Collateral Agent, which consent may not be unreasonablywithheld and which consent will be deemed given if the Grantors do not objectto such appointment within the above mentioned term.

 

(d)                                 The Trustee will continue acting as trustee interms of this Agreement until a successor trustee has been appointed, it hasaccepted its appointment and it has assumed its position.

 

(e)                                  Any successor trustee will have the same rightsand obligations as the Trustee hereunder and will be deemed the “Trustee”for all purposes of this Agreement.

 

**NINETEENTH. **Feesand Expenses of the Trustee.  The Grantors (except AMC) jointly andseverally agree to pay to the Trustee the fees specified in Exhibit Lhereto, and any other fees and any and all reasonable and documented costs,expenses and commissions incurred or paid thereby in connection with the execution,administration, compliance with and discharge of its obligations hereunder, andthe Trustee agrees to issue the relevant invoice to the relevant Grantorsagainst such payment.

 

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**TWENTIETH**.  Taxes.  Any and all taxes (including, withoutlimitation, any income taxes, applied through a withholding or in any othermanner, sales taxes, value added taxes, property taxes and asset taxes),contributions, fees or assessments, of any nature, imposed on or with respectto the Assets, this Trust or in connection with the compliance by the Trusteewith the purposes of this Trust will be payable jointly and severally by theGrantors (except AMC), provided that the Trustee will not be responsiblefor the calculation, withholding and payment of any taxes, except if requiredby applicable law.

 

**TWENTY FIRST. **Reports; Inspections.

 

(a)                                  For as long as this Agreement remains ineffect, the Trustee hereby agrees to provide to the Shared Payment andCollateral Agent and the Grantors quarterly statements, within 5 (five)Business Days after the end of each calendar quarter, with respect to theassets constituting the Assets, as well as any investments with respectthereto.

 

(b)                                 Also, the Trustee agrees to provide to theShared Payment or Collateral Agent and the Grantors all the informationreasonably requested by either of them in connection with this Agreement andthe Assets prior written notice given with at least 2 (two) Business Days ofanticipation.

 

(c)                                  The Shared Payment and Collateral Agent and the Grantors, throughtheir designees, may inspect the files kept by the Trustee with respect to thisTrust, at any time during the effectiveness of this Agreement.  For such purposes, the Shared Payment andCollateral Agent and the Grantors, as the case may be, shall give writtennotice to the Trustee, at least 3 (three) Business Days prior to the dateproposed for the inspection.  Anyinspection shall be carried out during business hours.

 

**TWENTY SECOND. **Duration and Irrevocability.  This Agreement shall beirrevocable and shall remain in full force and effect until all theRestructuring Obligations are satisfied and paid in full, which shall benotified in writing by the Shared Payment and Collateral Agent (which notice willnot be unreasonably withheld or delayed), upon request by the Grantors and maynot be terminated, except (i) upon the occurrence of any of the eventscontemplated in article 392 of the LGTOC (except the event contemplated insection VI of such article) or (ii) if all of the Assets are sold pursuant tothe terms hereof.

 

The parties hereto agree thatthe Trust may terminate as provided in the preceding paragraph without the needfor the consent of or notice to the Yankee Notes Trustee, in the understandingthat as of the termination hereof no security interest will exist in favor ofthe Shared Payment and Collateral Agent, the SEN Holders or the Bank Holdersand therefore no security interest will have to be

 

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maintained in favor of the Yankee NotesTrustee, or the holders of the Yankee Notes or Yankee Guarantees.

 

**TWENTY THIRD. **Further Assurances.  For as long as this Agreement remains ineffect, the Grantors, jointly and severally agree at their own expense, thatthey will take the actions that, at the reasonable request of the SharedPayment and Collateral Agent, may be necessary to (a) perfect and protect thetransfer of Assets or Additional Assets made by each Grantor hereunder and thecreation of the ensuing security interest on the Assets or Additional Assetstransferred, (b) maintain in full force and effect the security interestcreated hereby or to allow the Trustee to take any and all actions specified inthis Agreement, and (c) protect the rights of the Shared Payment and CollateralAgent and the First Beneficiaries hereunder, enable the Shared Payment andCollateral Agent and the First Beneficiaries to exercise and enforce theirrights and remedies hereunder and they further agree to carry out any otheraction necessary to comply with the purposes of this Agreement, including,without limitation, executing and delivering such further instruments anddocuments and taking such further actions as may be necessary for the purposeof obtaining or preserving the rights under each of the Assets.

 

**TWENTY FOURTH. **Notices.  All notices and othercommunications provided for hereunder required or permitted to be given to aparty hereto shall be in writing, in Spanish or English (and, if in Spanish,shall be translated into English by a court approved translator and paid forjointly by the Grantors (except AMC)). All notices and other communications to be given to the Shared Paymentand Collateral Agent must be in English.

 

Allnotices and other communications provided for hereunder required or permittedto be given to a party hereto shall be personally delivered or sent by anovernight courier or by facsimile transmission and shall be delivered or sentto the domiciles specified below, or, as to each party, at such other domicileor facsimile number, as shall be designated by such party in a written noticeto the other parties.  As long as nosuch change of domicile notice has been received by the other parties in accordanceherewith, notices delivered to the domicile indicated below shall beeffective.  Notices that are deliveredby hand or overnight courier shall be deemed delivered upon delivery.  Notices that are delivered by facsimileshall be deemed delivered upon receipt. The parties designate as their domiciles:

 

**The Trustee:**

Prolongación Paseo de la Reforma 490 - 2-B

Col. Santa Fe, 01210, México, D.F.

Attention: Ramón Galván Gutiérrez / Alejandro deIturbide

Telephone: (5255) 5257-62-05,(5255)5257-95-83

Telecopy: (5255) 5257-95-80

 

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**The Grantors:**

Av. Baja California no. 200

Col. Roma, 06760, México, D.F.

Attention: Armando Ortega Gómez / Jesús Eduardo González Félix

Telephone: (5255) 5574-84-22, (5255)5584-53-76, (5255) 5264-00-36

Telecopy: (5255) 5574-84-43

 

**The Shared Payment and CollateralAgent:**

HSBCBank USA

IssuerServices

10East 40th Street, 14th Floor

NewYork, New York 10016

USA

Attention: Ms. HarrietDrandoff, Vice President

Telephone: (212) 525-1351

Telecopy: (212) 525-1300

 

**TWENTY FIFTH. **Amendments.  This Agreement may not be amended except bymeans of a written public instrument signed by the Grantors and the Trustee andconsented to in writing by the Shared Payment and Collateral Agent.

 

The parties hereto recognizeand acknowledge that the consent of the Yankee Trustee will not be necessary toamend this Agreement as long as such amendment does not, in any manner, affectthe equal and ratable right to the security interest created hereunder of theYankee Notes Trustee.  Any amendmentthat would cause the Yankee Notes Trustee not to have an equal and ratableright to the security interest created hereunder will require the writtenconsent of the Yankee Note Trustee.  Thedetermination of whether the consent of the Yankee Notes Trustee is requiredhereunder will be made by the Grantors. The Trustee and the Shared Payment and Collateral Agent will not assumeany liability whatsoever in such regards.

 

**TWENTY SIXTH. **Assignment.  Neither the Trustee, nor theGrantors may assign, transfer or encumber their rights or delegate theirobligations under this Agreement; except (a) upon receiving the priorwritten consent of the Shared Payment and Collateral Agent or (b) as expresslypermitted hereunder.

 

**TWENTY SEVENTH. **Governing Law and Jurisdiction.  (a)  This Agreement shall be governed and construed in accordance withthe laws of Mexico.  For any matterrelated to or in connection with this Agreement, the parties submit to thejurisdiction of the courts of Mexico City, Federal District.

 

(b)                                 The parties hereby waive any right or otherjurisdiction to which they may be entitled by reason of their present or futuredomicile or place of residence.

 

(c)                                  The parties agree that with regards to thisAgreement and any matter related to this Agreement, the Trustee (i) will beexclusively submitted to the

 

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jurisdiction of the courts of Mexico City,Federal District and that as a consequence, the Trustee may not be sued in anyother court or before any other authority and (ii) may not be subject to trialby jury outside of Mexico.

 

(d)                                 The parties agree that all costs, expenses,legal fees and other amounts payable in connection with any legal or judicialproceeding arising under this Agreement will be borne by jointly and severallyby the Grantors (except AMC).

 

**TWENTY EIGHTH. **Conversion.  Any amounts denominated in Pesos received by the Trusteehereunder which are to be converted by the Trustee into Dollars in accordancewith the terms of this Agreement shall be converted by the Trustee at the mostfavorable rate (being that which results in more Dollars per Peso) among thosequoted by the Trustee with Banco Nacional de México, S.A., Integrante del GrupoFinanciero Banamex or BBVA Bancomer, S.A., Institución de Banca Múltiple, GrupoFinanciero BBVA Bancomer or their respective affiliates or successors.

 

**TWENTY NINTH. **Expensesand Costs. The Grantors (except AMC) jointly and severally agree to pay all of thecosts and expenses and taxes derived from the execution of this Agreement andthe respective public deed, as well as such that derive from the registrationof the same in the applicable public registries, as is set forth in ClauseSecond (e) hereof.  Likewise, theGrantors (except AMC) will jointly and severally pay to the Trustee and theShared Payment and Collateral Agent, any traveling expenses and necessary andreasonable legal fees, including necessary and reasonable costs and expenses ofinternal counsel to the Trustee and the Shared Payment and Collateral Agentincurred as a result of the preparation and execution of this Agreement.  Additionally, the Grantors (except AMC)agree to jointly and severally pay the Trustee and the Shared Payment andCollateral Agent, as soon as requested thereby, any traveling expenses andnecessary and reasonable legal fees, including necessary and reasonable costsand expenses of internal counsel to the Trustee and the Shared Payment andCollateral Agent incurred as a result of the amendment of or supplement to thisAgreement (and any Exhibit or Schedule hereof), as well as any cost or expense,if existing, in connection with the enforcement of this Agreement.

 

**THIRTIETH. **Reversion of Assets to Grantors.  Upon payment in full of the RestructuringObligations and termination of this Agreement as described in Clause TwentySecond above, title to the Assets then subject to this Trust will revert toeach of the corresponding Grantors.

 

**THIRTY FIRST. **Spanish Translations.  The Grantors (except AMC) agree to obtain,at their own expense, Spanish translations of the Common Agreement, theRestructured Trust Indenture, the Bank Holders Restructured Loan Agreement, theAffiliate Guaranty, the Intercompany Payable and the Yankee Notes Indentureprepared by a court-approved translator and to the satisfaction of counsel tothe Bank Holders and for the SEN Trust and the SEN Holders, and to

 

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deliver such translations to the Trustee and theShared Payment and Collateral Agent within the 90 (ninety) calendar daysimmediately following the date of this Agreement.  If the Grantors fail to obtain and deliver such translations asset forth above, the Shared Payment and Collateral Agent will be entitled to doso at the Grantors’ expense and the translations so obtained will be binding onthe Grantors.

 

**THIRTY SECOND. **Merger.  The parties hereto recognize and acknowledgethat after execution of this Agreement, GMM will merge into MM and that as aconsequence thereof, MM (as the entity surviving such merger) will acquire andassume all of the assets, rights and obligations of GMM.  The parties further recognize that as aresult of such merger, the Shares representing the capital stock of GMM willhave to be cancelled and will cease to be part of the Trust.  The Trustee will take such actions that inthe reasonable judgment of the Shared Payment and Collateral Agent arenecessary to reflect the effects of such merger on the Trust and the Assets.

 

Inaddition, MM agrees to deliver to the Trustee and the Shared Payment andCollateral Agent, within the 90 (ninety) Business Days immediately followingthe date on which the shareholder meetings of GMM and MM that approved theaforementioned merger were held, the receipt issued by the corresponding PublicRegistries of Commerce, evidencing receipt for the filing for registration ofthe first notarial copy of the public deed containing such shareholder meetingsand the appropriate merger agreement.

 

**THIRTY THIRD. **Additional Grantors.  The parties hereto agree that in certainevents described in the Common Agreement, entities different from the initialGrantors hereunder that are subsidiaries of MM may be obligated to transferassets to the Trust.  In any such event,any such entity will be obligated to execute and deliver to the Trustee and theShared Payment and Collateral Agent a letter of adherence substantially in theform attached hereto as Exhibit M and, to the extent the Shared Paymentand Collateral Agent notifies such entity, within the 20 (twenty) Business Daysafter receipt by the Trustee and the Shared Payment and Collateral Agent of anysuch notices, the respective entities will perfect the transfer of their assetsto the Trust by means of the execution and registration of a supplement to thisAgreement.

 

Theabovementioned supplement will be granted before a notary public by therespective entity and the Trustee and must be registered in the respectivepublic registries as set forth in Clause Second (e) above. The entity will beliable for the registration of the respective supplement hereto in theapplicable public registries as set forth in Clause Second (e) above.

 

Therespective entity, as the case may be, must deliver to the Trustee or theShared Payment and Collateral Agent, prior to the expiration of the 20 (twenty)Business Day term set forth above, such documentation or information relatingto such entity and the respective assets (including such documentation as isrequired

 

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under applicable laws to perfect the transferthereof) as the Trustee or the Shared Payment and Collateral Agent mayreasonably request.

 

To the extent the Trustee doesnot receive documentation or information that evidences that the respectiveentity complies with the Trustee’s internal policies as an entity that maybecome a grantor hereunder, the Trustee may object to such entity adhering tothis Agreement and such adherence will only become effective once suchrequirements have been met to the Trustee’s satisfaction.

 

As of the date of executionand delivery of the respective letter, and provided any Trustee requirementshave been met as set forth in the immediately preceding paragraph, any suchentity will be deemed to be a Grantor hereunder, and to the extent such entityassigns assets (other than shares), such entity will be deemed an “AssetGrantor”.

 

**THIRTY FOURTH**.** **Obligationsof AMC.  The parties heretorecognize and acknowledge that AMC will only be obligated hereunder inconnection with the Shares and any Additional Shares transferred thereby tothis Trust as is set forth, among others, in Clauses Fifth, Eighth, Tenth andTwelfth but will not assume any monetary obligations hereunder.  Therefore, any provision of this Agreementthat obligates the Grantors to pay any amount of money or assume any type ofcost or expense, will, to the extent not expressly stated, be deemed to excludeAMC.

 

**THIRTY FIFTH**.** **SharedPayment and Collateral Agent.  TheGrantors and the Trustee hereby expressly acknowledge, recognize and agreethat:

 

(a)                                  For all matters relating to, or arising from, or in connection withthis Agreement, the Shared Payment and Collateral Agent is acting in itscapacity as agent solely for the benefit of the SEN Holders and Bank Holders,and assumes no direct or personal obligations, expressed or implied;

 

(b)                                 Any action taken or notice, direction, request or consent given orjudgment, opinion or decision made by the Shared Payment and Collateral Agentunder the terms of this Agreement will be taken, given or made thereby only tothe extent it is permitted to do so under the terms of the Common Agreement orother Operative Documents;

 

(c)                                  The Shared Payment and Collateral Agent has all necessary authorityand legal capacity to act in the name and on behalf of the SEN Holders and BankHolders;

 

(d)                                 The Shared Payment and Collateral Agent is in no way obligated toexpend or risk its own funds; and

 

(e)                                  To the extent the Shared Payment and Collateral Agent is required togive directions or any other type of notices or communications or take anyother

 

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action within a specified term, if the Shared Paymentand Collateral Agent has not received any necessary instructions under theCommon Agreement or other Operative Documents, the Shared Payment andCollateral Agent may so notify the Trustee and the respective term will beimmediately extended for so long as the Shared Payment and Collateral Agentinstructs the Trustee.  Any terms thatare counted as of expiration of the term given to the Shared Payment orCollateral Agent or that are dependent thereon shall likewise be extended.

 

**THIRTY SIXTH**.** **Headings.The headings used in this Agreement are for convenience of reference only andshall not be used to interpret any of the provisions of this Agreement.

 

**THIRTY SEVENTH. **Information.  The Trustee may and eachparty to this Agreement hereby expressly authorizes the Trustee to provide anyof its Mexican or foreign affiliates for supervision purposes thereof any andall information and documentation related to this Agreement, to the Grantors,or to the operation and performance of this Agreement by the Grantors as wellas any information and documentation that is in any way connected to thisAgreement that it has obtained or may obtain in the future either from theGrantors or any other third party.

 

Byvirtue of the foregoing, this Agreement is executed on this 29th dayof April of 2003.

 
|   | **THE GRANTORS**                        |   |
|--------|-----------------------------------------|--------|
|   |                                    |   |
|   | GRUPO MINERO MÉXICO, S.A.  DE C.V. |   |
|   |                                    |   |
|   |                                    |   |   |   |
|   |                                    | Name:  |   |
|   |                                    | Title: |   |
|   |                                    |   |
|   |                                    |   |
|   | AMERICAS MINING  CORPORATION            |   |
|   |                                    |   |
|   |                                    |   |   |   |
|   |                                    | Name:  |   |
|   |                                    | Title: |   |

 

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|   | MINERA MÉXICO, S.A. DE  C.V.            |   |
|--------|----------------------------------------------|--------|
|   |                                         |   |
|   |                                         |   |   |   |
|   |                                         | Name:  |   |
|   |                                         | Title: |   |
|   |                                         |   |
|   |                                         |   |
|   | INDUSTRIAL MINERA MÉXICO, S.A.  DE C.V. |   |
|   |                                         |   |
|   |                                         |   |   |   |
|   |                                         | Name:  |   |
|   |                                         | Title: |   |
|   |                                         |   |
|   |                                         |   |
|   | MEXICANA DE COBRE, S.A.  DE C.V.             |   |
|   |                                         |   |
|   |                                         |   |   |   |
|   |                                         | Name:  |   |
|   |                                         | Title: |   |
|   |                                         |   |
|   |                                         |   |
|   | MINERALES METÁLICOS DEL NORTE,  S.A.    |   |
|   |                                         |   |
|   |                                         |   |   |   |
|   |                                         | Name:  |   |
|   |                                         | Title: |   |
|   |                                         |   |
|   |                                         |   |
|   | MEXICANA DE CANANEA, S.A.  DE C.V.           |   |
|   |                                         |   |
|   |                                         |   |   |   |
|   |                                         | Name:  |   |
|   |                                         | Title: |   |
|   |                                         |   |
|   |                                         |   |
|   | MEXICANA DEL ARCO, S.A.  DE C.V.             |   |
|   |                                         |   |
|   |                                         |   |   |   |
|   |                                         | Name:  |   |
|   |                                         | Title: |   |

 

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|   | MINERALES MINAS  MEXICANAS, S.A. DE C.V. |   |
|--------|------------------------------------------|--------|
|   |                                     |   |
|   |                                     |   |   |   |
|   |                                     | Name:  |   |
|   |                                     | Title: |   |
|        |                                          |        |  |  |

 

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|   | COMPAÑÍA  DE TERRENOS E INVERSIONES DE SAN LUIS POTOSÍ, SOCIEDAD  CIVIL POR ACCIONES, S.A. |   |
|--------|-----------------------------------------------------------------------------------------------------------|--------|
|   |                                                                                                      |   |
|   |                                                                                                      |   |
|   |                                                                                                      |   |   |   |
|   |                                                                                                      | Name:  |   |
|   |                                                                                                      | Title: |   |
|   |                                                                                                      |   |
|   |                                                                                                      |   |
|   | MÉXICO  COMPAÑÍA INMOBILIARIA, S.A.                                                        |   |
|   |                                                                                                      |   |
|   |                                                                                                      |   |
|   |                                                                                                      |   |   |   |
|   |                                                                                                      | Name:  |   |
|   |                                                                                                      | Title: |   |
|   |                                                                                                      |   |
|   | **THE  TRUSTEE**                                                                                          |   |
|   |                                                                                                      |   |
|   |                                                                                                      |   |
|   |                                                                                                      |   |   |   |   |
|   | Name:                                                                                                     | Name:  |   |
|   | Title:                                                                                                    | Title: |   |
|        |                                                                                                           |        |  |  |  |  |  |

 

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**LIST OF EXHIBITS**

 

# **EXHIBIT“A”**

 

[INTENTIONALLYOMITTED]

 

# **EXHIBIT“B”**

 

POWEROF ATTORNEY OF THE ASSET GRANTORS

 

# **EXHIBIT“C”**

 

LISTOF LIENS AND ENCUMBRANCES ON ASSETS

 

# **EXHIBIT“D”**

 

LISTAND DESCRIPTION OF THE INSURANCE POLICES

# ** **

# **EXHIBIT“E”**

 

[INTENTIONALLYOMITTED]

 

# **EXHIBIT“F”**

 

POWEROF ATTORNEY OF THE TRUSTEE

# ** **

# **EXHIBIT“G”**

 

LETTEROF ACCEPTANCE OF THE SHARED PAYMENT AND COLLATERAL AGENT

 

# **EXHIBIT“H-1”**

 

FORMOF POWERS OF ATTORNEY TO BE GRANTED TO THE ASSET GRANTORS (IN CONNECTION WITHASSETS OTHER THAN THE SCHEDULED ASSETS)

 

# **EXHIBIT“H-2”**

 

FORMOF POWERS OF ATTORNEY TO BE GRANTED TO THE ASSET GRANTORS (IN CONNECTION WITHTHE SCHEDULED ASSETS)

 

# **EXHIBIT“I”**

 

FORMOF POWER OF ATTORNEY TO BE GRANTED TO THE SHAREHOLDERS

 

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# **EXHIBIT“J”**

 

FORMOF THE FORECLOSURE REQUEST

 

# **EXHIBIT“K”**

 

LISTOF POSSIBLE ADVISORS

 

# **EXHIBIT“L”**

 

TRUSTEE’SFEE LETTER

 

# **EXHIBIT“M”**

 

FORMOF LETTER OF ADHERENCE TO BE DELIVERED TO THE TRUSTEE AND THE SHARED PAYMENTAND COLLATERAL AGENT

 

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**LIST OF SCHEDULES**

 

 

# **SCHEDULE“1”**

 

DESCRIPTIONOF THE AMOUNTS OWED BY THE GRANTORS

 

# **SCHEDULE“2”**

 

DESCRIPTIONOF THE REAL ESTATE ASSETS

 

# **SCHEDULE“3”**

 

DESCRIPTIONOF THE TANGIBLE MOVABLE ASSETS

 

# **SCHEDULE“4”**

 

DESCRIPTIONOF ALL TRADEMARKS AND OTHER INTELLECTUAL PROPERTY HELD BY ANY OF THE ASSETGRANTORS

 

# **SCHEDULE“5”**

 

DESCRIPTIONOF THE SHARE CERTIFICATES THAT EVIDENCE THE SHARES OF EACH OF GMM AND MM

 

# **SCHEDULE“6”**

 

DESCRIPTIONOF MINING EXPLOITATION CONCESSIONS HELD

BYTHE ASSET GRANTORS

 

# **SCHEDULE“7”**

 

DESCRIPTIONOF THE ASSET GRANTORS’ FACILITIES

 

# **SCHEDULE“8”**

 

DESCRIPTIONOF SCHEDULED ASSETS

 

# **SCHEDULE“9”**

 

DESCRIPTIONOF EXCLUDED ASSETS

 

# **SCHEDULE“10”**

 

DESCRIPTIONOF EXCLUDED CONCESSIONS

 

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**SCHEDULE “A”**

 

LISTOF NON COMPLIANCES WITH APPLICABLE LAWS

 

# **SCHEDULE“B”**

 

LISTOF LITIGATION

 

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