**Exhibit4(b)**

 

 

**COMMON AGREEMENT**

 

dated as of April 29,2003

 

among

 

GRUPO MINERO MEXICO, S.A.DE C.V.,

 

MINERA MEXICO, S.A. DEC.V.,

 

INDUSTRIAL MINERA MEXICO,S.A. DE C.V.,MINERA MEXICO INTERNACIONAL, INC.,MEXICANA DE COBRE, S.A. DE C.V.,MINERALES METALICOS DEL NORTE, S.A.,MEXICANA DE CANANEA, S.A. DE C.V.,MEXICANA DEL ARCO, S.A. DE C.V.,MINERALES Y MINAS MEXICANAS, S.A. DE C.V.,COMPANIA DE TERRENOS E INVERSIONES DE SAN LUIS POTOSI, S.C. POR A., S.A.,MEXICO COMPANIA INMOBILIARIA, S.A.,PROYECCIONES URBANISTICAS S. DE R.L. DE C.V.,

 

EACH OTHER PERSONIDENTIFIED ON THE SIGNATURE PAGES HERETOas a PRINCIPAL SUBSIDIARY,

 

THE FINANCIALINSTITUTIONS IDENTIFIED HEREINas SEN HOLDERS and BANK HOLDERS,

 

BANK OF AMERICA, N.A.,as BANK HOLDERS ADMINISTRATIVE AGENT,

 

HSBC BANK USA,as SHARED PAYMENT AND COLLATERAL AGENT,

 

HSBC BANK USA,as SEN COLLATERAL AGENT,

 

and

 

THE BANK OF NEW YORK,not in its individual capacitybut solely as trustee forGRUPO MEXICO EXPORT MASTER TRUST NO. 1,as SEN TRUSTEE.

 

 

 

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**TABLE OF CONTENTS**

 
| ARTICLE  I  DEFINITIONS AND RULES OF  CONSTRUCTION  |
|----------------------------------------------------------|
|                                                     |   |
|                                                     | Section 1.01 | Definitions |
|                                                     | Section 1.02 | Construction of References |
|                                                     |   |
| ARTICLE  II  CONDITIONS PRECEDENT TO  EFFECTIVENESS |
|                                                     |   |
|                                                     | Section 2.01 | Conditions of Effectiveness |
|                                                     |   |
| ARTICLE III  REPRESENTATIONS AND WARRANTIES         |
|                                                     |   |
|                                                     | Section 3.01 | Corporate Existence and Power |
|                                                     | Section 3.02 | Corporate Authorization; No Contravention |
|                                                     | Section 3.03 | Compliance with Other Instruments; No  Breach |
|                                                     | Section 3.04 | Authorization |
|                                                     | Section 3.05 | Binding Effect |
|                                                     | Section 3.06 | Litigation |
|                                                     | Section 3.07 | No Default |
|                                                     | Section 3.08 | Employee Benefit Plans; Employment Matters |
|                                                     | Section 3.09 | Title to Properties |
|                                                     | Section 3.10 | Taxes. |
|                                                     | Section 3.11 | Financial Condition. |
|                                                     | Section 3.12 | Environmental Compliance |
|                                                     | Section 3.13 | No Burdensome Restrictions |
|                                                     | Section 3.14 | Ownership; Subsidiaries |
|                                                     | Section 3.15 | Insurance |
|                                                     | Section 3.16 | Swap Obligations |
|                                                     | Section 3.17 | Legal Form; No Filing |
|                                                     | Section 3.18 | No Liens |
|                                                     | Section 3.19 | Commercial Activity; Absence of Immunity. |
|                                                     | Section 3.20 | Solvency |
|                                                     | Section 3.21 | Enron Obligations |
|                                                     | Section 3.22 | Full Disclosure |
|                                                     | Section 3.23 | Customers; Contracts. |
|                                                     | Section 3.24 | Investment Company Act |
|                                                     | Section 3.25 | Public Utility Holding Company Act |
|                                                     | Section 3.26 | Foreign Assets Control Regulations, etc |
|                                                     | Section 3.27 | Bank Accounts |
|                                                     | Section 3.28 | Real Property Value |
|                                                     | Section 3.29 | Principal Subsidiaries |

 

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| ARTICLE  IV  AFFIRMATIVE COVENANTS |
|-----------------------------------------|
|                                    |   |   |
|                                    | Section 4.01 | Certain Payment Obligations. |
|                                    | Section 4.02 | Fees and Expenses |
|                                    | Section 4.03 | Customer Notice and Acknowledgements. |
|                                    | Section 4.04 | Financial Advisor’s Access |
|                                    | Section 4.05 | Financial Reporting |
|                                    | Section 4.06 | Certain Post-Closing Matters. |
|                                    | Section 4.07 | Notices |
|                                    | Section 4.08 | Preservation of Existence |
|                                    | Section 4.09 | Maintenance of Property |
|                                    | Section 4.10 | Insurance. |
|                                    | Section 4.11 | Payment of Taxes and other Governmental  Charges |
|                                    | Section 4.12 | Compliance with Laws; Consents |
|                                    | Section 4.13 | Maintenance of Books and Records |
|                                    | Section 4.14 | Environmental Laws |
|                                    | Section 4.15 | Priority |
|                                    | Section 4.16 | Further Assurances. |
|                                    | Section 4.17 | Instruments |
|                                    | Section 4.18 | Compliance with Other Agreements |
|                                    | Section 4.19 | Designations with Respect to Principal  Subsidiaries. |
|                                    | Section 4.20 | Maintenance of Accounts |
|                                    | Section 4.21 | New Bank Accounts |
|                                    | Section 4.22 | Remaining Collateral |
|                                    |   |
| ARTICLE  V  NEGATIVE COVENANTS     |
|                                    |   |
|                                    | Section 5.01 | Limitation on Liens |
|                                    | Section 5.02 | Prohibition Against Indebtedness |
|                                    | Section 5.03 | Asset Disposition |
|                                    | Section 5.04 | Assignments of Collateral |
|                                    | Section 5.05 | Consolidations, Mergers, Etc |
|                                    | Section 5.06 | Preservation of Collateral |
|                                    | Section 5.07 | New Mining Concessions |
|                                    | Section 5.08 | Minimum Export Receivables. |
|                                    | Section 5.09 | Use of Cash; Transactions with Affiliates |
|                                    | Section 5.10 | Maximum Reduction in Intercompany Account  Balance |
|                                    | Section 5.11 | Maximum Allowable Capital Expenditures and  Capitalized Stripping |
|                                    | Section 5.12 | Financial Covenant Default Restrictions |
|                                    | Section 5.13 | Change in Business |
|                                    | Section 5.14 | Accounting Changes |
|                                    | Section 5.15 | Limitation on Certain Restrictions  Affecting Subsidiaries |
|                                    | Section 5.16 | Restricted Payments |
|                                    | Section 5.17 | Insurance and Reimbursement Agreement |
|                                    |   |
| ARTICLE  VI  FINANCIAL COVENANTS   |
|                                    |   |
|                                    | Section 6.01 | Net Working Capital |

 

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|                                                            | Section 6.02  | Interest Coverage Ratio                     |
|-----------------------------------------------------------------|---------------|---------------------------------------------|
|                                                            | Section 6.03  | Debt Coverage Ratio                         |
|                                                            | Section 6.04  | Total Debt to Net Capitalization Ratio      |
|                                                            |          |
| ARTICLE VII  COLLATERAL ARRANGEMENTS                       |
|                                                            |          |
|                                                            | Section 7.01  | Collateral Arrangements                     |
|                                                            |          |
| ARTICLE VIII  PAYMENTS; INTEREST; FEES                     |
|                                                            |          |
|                                                            | Section 8.01  | Prepayments                                 |
|                                                            | Section 8.02  | Distribution of Prepayments                 |
|                                                            | Section 8.03  | Repayment                                   |
|                                                            | Section 8.04  | Interest                                    |
|                                                            | Section 8.05  | Fees.                                       |
|                                                            | Section 8.06  | Computation of Interest.                    |
|                                                            | Section 8.07  | Subordination of Payments on GM Notes       |
|                                                            |          |
| ARTICLE  IX  EVENTS OF DEFAULT                             |
|                                                            |          |
|                                                            | Section 9.01  | Event of Default                            |
|                                                            |          |
| ARTICLE  X  REMEDIES                                       |
|                                                            |          |
|                                                            | Section 10.01 | Lenders’ Remedies                      |
|                                                            | Section 10.02 | Trapping                                    |
|                                                            | Section 10.03 | Rights Cumulative; No Marshaling;  Waivers. |
|                                                            | Section 10.04 | Rights Not Exclusive                        |
|                                                            |          |
| ARTICLE  XI  INDEMNIFICATION; COSTS AND  EXPENSES          |
|                                                            |          |
|                                                            | Section 11.01 | Indemnification                             |
|                                                            | Section 11.02 | Costs and Expenses                          |
|                                                            |          |
| ARTICLE XII  TAXES; YIELD PROTECTION; ILLEGALITY; PAYMENTS |
|                                                            |          |
|                                                            | Section 12.01 | Taxes.                                      |
|                                                            | Section 12.02 | Illegality.                                 |
|                                                            | Section 12.03 | Increased Costs.                            |
|                                                            | Section 12.04 | Funding Losses                              |
|                                                            | Section 12.05 | Inability to Determine Rates                |
|                                                            | Section 12.06 | Reserves                                    |
|                                                            | Section 12.07 | Certificates of Lenders                     |
|                                                            | Section 12.08 | Payments by Borrower and Agents.            |
|                                                            | Section 12.09 | Sharing of Payments, Etc                    |

 

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| ARTICLE XIII  SHARED PAYMENT AND COLLATERAL AGENT |
|--------------------------------------------------------|
|                                                   |   |   |
|                                                   | Section 13.01 | Appointment and Authorization of Shared  Payment and Collateral Agent |
|                                                   | Section 13.02 | Delegation of Duties |
|                                                   | Section 13.03 | No Liability of Agent-Related Persons |
|                                                   | Section 13.04 | Reliance by Agent-Related Persons |
|                                                   | Section 13.05 | Notice of Default |
|                                                   | Section 13.06 | Credit Decision |
|                                                   | Section 13.07 | Indemnification of Agent-Related Persons  of the Shared Payment and Collateral Agent |
|                                                   | Section 13.08 | The Agent-Related Persons of the Shared  Payment and Collateral Agent in their Individual Capacity |
|                                                   | Section 13.09 | Resignations; Successor Agent |
|                                                   | Section 13.10 | Agents May File Proofs of Claim |
|                                                   | Section 13.11 | Collateral and Guaranty Matters |
|                                                   | Section 13.12 | Acts of Lenders, Bank Holders and SEN  Holders. |
|                                                   | Section 13.13 | Other Matters With Respect to Shared  Payment and Collateral Agent. |
|                                                   | Section 13.14 | The Mexican Security Trust Agreement. |
|                                                   |   |
| ARTICLE XIV  MISCELLANEOUS                        |
|                                                   |   |
|                                                   | Section 14.01 | Amendments and Waivers. |
|                                                   | Section 14.02 | Intent of Parties |
|                                                   | Section 14.03 | Limitation of Rights; No Waiver |
|                                                   | Section 14.04 | Effect of Headings |
|                                                   | Section 14.05 | Severability Clause |
|                                                   | Section 14.06 | Currency. |
|                                                   | Section 14.07 | GOVERNING LAW |
|                                                   | Section 14.08 | Payments Set Aside |
|                                                   | Section 14.09 | Set-off |
|                                                   | Section 14.10 | Notes Held by Borrower or Affiliates |
|                                                   | Section 14.11 | Tax Treatment |
|                                                   | Section 14.12 | Disclosure to Other Persons |
|                                                   | Section 14.13 | Successors and Assigns |
|                                                   | Section 14.14 | Notices. |
|                                                   | Section 14.15 | Counterparts |
|                                                   | Section 14.16 | No Third Parties Benefited |
|                                                   | Section 14.17 | Waiver of Immunity |
|                                                   | Section 14.18 | Use of English Language |
|                                                   | Section 14.19 | Survival |
|                                                   | Section 14.20 | Waiver of Jury Trial |
|                                                   | Section 14.21 | GM Guaranty |
|                                                   | Section 14.22 | Consent to Jurisdiction; Process Agent |
|                                                   | Section 14.23 | GM Note Purchases |
|                                                   | Section 14.24 | Rights Relating to GM Notes. |

 

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LIST OF APPENDIXES

 
| Appendix  A | – | Uniform  Definitions and Rules of Interpretation |
|-------------|--------|--------------------------------------------------|

 

LIST OF EXHIBITS

 
| Exhibit 2.01(h)(i)     | - | Form of Affiliate Guaranty                                                               |
|------------------------|---|------------------------------------------------------------------------------------------|
| Exhibit 2.01(h)(ii)    | - | Form of GM Guaranty                                                                      |
| Exhibit 2.01(n)(i)-A   | - | Form of Secretary’s Certificate (U.S. Entities)                                     |
| Exhibit 2.01(n)(i)-B   | - | Form of Secretary’s Certificate (Mexican Entities)                                  |
| Exhibit 2.01(n)(ii)    | - | Form of Responsible Officer Certificate                                                  |
| Exhibit 2.01(r)(i)     | - | Form of Legal Opinion of Sidley Austin Brown &  Wood LLP                             |
| Exhibit 2.01(r)(ii)    | - | Form of Legal Opinion of Borrower’s General Counsel                                 |
| Exhibit 2.01(r)(iii)   | - | Form of Legal Opinion of Jauregui, Navarrete, Nader  y Rojas, S.C.                       |
| Exhibit 2.01(r)(iv)    | - | Form of Legal Opinion of Ritch, Heather y Mueller,  S.C.                                 |
| Exhibit 2.01(r)(v)     | - | Form of Legal Opinion of Emmet, Marvin & Martin                                      |
| Exhibit 2.01(y)(iv)(A) | - | Form of Legal Opinion of Sidley Austin Brown &  Wood LLP relating to the GM Guaranty |
| Exhibit 2.01(y)(iv)(B) | - | Form of Legal Opinion of Borrower’s General Counsel  relating to the GM Guaranty    |
| Exhibit 2.01(z)(ii)    | - | Form of GM’s Responsible Officer Certificate                                        |
| Exhibit 2.01(aa)       | - | Form of Lost Note Affidavit                                                              |
| Exhibit 4.05(a)(i)     | - | Form of Summary of Sources and Uses of Cash                                              |
| Exhibit 4.05(a)(ii)    | - | Form of Borrower Operating Report                                                        |
| Exhibit 4.05(c)(ii)    | - | Form of CEO Report                                                                       |
| Exhibit 4.05(h)        | - | Lender Payments                                                                          |
| Exhibit 4.06(a)        | - | Forms of Intercompany Payable Restructuring  Documents                                   |
| Exhibit 5.10           | - | Base Net Intercompany Account Balance Total                                              |
| Exhibit 6              | - | Financial Statement Example                                                              |
| Exhibit 6.01           | - | Sample Calculation of Net Working Capital                                                |
| Exhibit 6.02           | - | Sample Calculation of Interest Coverage Ratio                                            |
| Exhibit 6.03           | - | Sample Calculation of Debt Coverage Ratio                                                |
| Exhibit 6.04           | - | Sample Calculation of Total Debt to Net  Capitalization Ratio                            |
| Exhibit 7.01           | - | SEN Make-Whole Amount Calculation Definitions                                            |
| Exhibit 7.01(f)(i)     | - | SEN Make-Whole Amount Calculation  (Liquidation/Amortization)                            |
| Exhibit 7.01(f)(iii)   | - | SEN Make-Whole Amount Calculation (Trapped Funds  Prepayment)                            |
| Exhibit 7.01(g)        | - | SEN Make-Whole Amount Calculation (Series D)                                             |
| Exhibit 8.01           | - | Cash Flow Calculations                                                                   |
| Exhibit 8.01(c)        | - | Cash Flow Prepayment                                                                     |
| Exhibit 14.23          | - | Form of Subordination Agreement                                                          |

 

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| LIST OF SCHEDULES |
|-------------------|
|              |   |   |
| Schedule A-1      | - | Primary Accounts |
| Schedule A-2      | - | Scheduled Assets |
| Schedule 1.1      | - | SEN Holders |
| Schedule 1.2      | - | Bank Holders |
| Schedules 2.01(x) | - | Translated Documents |
| Schedule 3.06     | - | Pending or Threatened Litigation |
| Schedule 3.08     | - | Retiree Benefits |
| Schedule 3.08(f)  | - | Labor Issues |
| Schedule 3.09     | - | Title to Properties |
| Schedule 3.10(a)  | - | Taxes |
| Schedule 3.12     | - | Environmental Compliance |
| Schedule 3.14     | - | Subsidiaries |
| Schedule 3.23     | - | Customers and Contracts |
| Schedule 3.27     | - | Deposit Accounts |
| Schedule 4.01(b)  | - | Restructured Debt Payment Schedule |
| Schedule 4.03(b)  | - | Acknowledgement Percentage Cash Trapping Amounts |
| Schedule 5.09     | - | Certain Payments |
| Schedule 5.11     | - | Capitalized Stripping and Capital Expenditures |
| Schedule 14.14    | - | Notices |

 

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COMMON AGREEMENT (this “**Agreement**”) dated as of April29, 2003 by and among GRUPO MINERO MEXICO, S.A. DE C.V., a sociedad anónima decapital variable organized under the laws of Mexico, as the borrower prior tothe Intercompany Payable Restructuring (“**GMM**”), MINERA MEXICO, S.A. DE C.V., asociedad anónima de capital variable organized under the laws of Mexico, asequity contributor and, from and after the Intercompany Payable Restructuring,the borrower (“**MM**”), INDUSTRIAL MINERA MEXICO, S.A. DE C.V., a sociedadanónima de capital variable organized under the laws of Mexico (“**IMMSA**”),MINERA MEXICO INTERNACIONAL, INC., a New York corporation (“**MMI**”),MEXICANA DE COBRE, S.A. DE C.V., a sociedad anónima de capital variableorganized under the laws of Mexico (“**Mexcobre**”), MINERALES METALICOS DEL NORTE,S.A., a sociedad anónima organized under the laws of Mexico (“**Mimenosa**”),MEXICANA DE CANANEA, S.A. DE C.V., a sociedad anónima de capital variableorganized under the laws of Mexico (“**Mexcananea**”), MEXICANA DEL ARCO, S.A. DEC.V., a sociedad anónima de capital variable organized under the laws of Mexico(“**Mexarco**”),MINERALES Y MINAS MEXICANAS, S.A. DE C.V., a sociedad anónima de capitalvariable organized under the laws of Mexico (“**MMM**”), COMPANIA DE TERRENOS EINVERSIONES DE SAN LUIS POTOSI, S.C. POR A., S.A., a sociedad anónima organizedunder the laws of Mexico (“**TISLP**”), MEXICO COMPANIA INMOBILIARIA,S.A., a sociedad anónima organized under the laws of Mexico (“**MCI**”),PROYECCIONES URBANISTICAS S. DE R.L. DE C.V., a sociedad de responsabilidadlimitada de capital variable organized under the laws of Mexico (“**PU**”),each other Person identified as a “Principal Subsidiary” on the signature pageshereto from time to time, the financial institutions identified on Schedule1.1 hereto as SEN Holders (the “SEN Holders”), the financial institutionsidentified on Schedule 1.2 hereto as Bank Holders (the “**Bank Holders**”),BANK OF AMERICA, N.A., as the Bank Holders Administrative Agent (the “**Bank HoldersAdministrative Agent**”), HSBC BANK USA, solely in its capacity as theShared Payment and Collateral Agent (the “**Shared Payment and Collateral Agent**”), HSBCBANK USA, solely in its capacity as the SEN Collateral Agent (the “**SENCollateral Agent**”), and THE BANK OF NEW YORK, a banking corporationorganized under the laws of the State of New York, not in its individualcapacity but solely as trustee (in such capacity, the “**SEN Trustee**”) of GRUPO MEXICOEXPORT MASTER TRUST NO. 1, a trust formed under the laws of the State of NewYork (the “**SEN Trust**”).

 

WITNESSETH:

 

WHEREAS, the parties hereto include the parties to theExisting Bank Agreements and the Existing SEN Agreements;

 

WHEREAS, GMM and the Guarantors that are party to theExisting Bank Agreements and the Existing SEN Agreements acknowledge theycurrently owe debt in favor of the Bank Holders under the Existing BankAgreements and in favor of the SEN Trustee and the SEN Holders under theExisting SEN Agreements; and

 

WHEREAS, the parties hereto desire to amend andrestate all of the Existing Bank Agreements and certain of the Existing SENAgreements, in the form of, and upon the terms and conditions set forth in,this Agreement and the other Operative Documents.

 

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NOW THEREFORE, in consideration of the mutualagreements, provisions and covenants contained herein, the parties hereto agreeas follows:

 

# **ARTICLE I**DEFINITIONS AND RULES OF CONSTRUCTION

# ** **

Section 1.01                                Definitions.  For all purposes of this Agreement, thecapitalized terms used herein that are defined in Appendix A hereto havethe respective meanings assigned in such Appendix A.

##  

Section 1.02                                Constructionof References.  For all purposes ofthis Agreement, terms used herein shall be interpreted in accordance withparagraphs A-F of Appendix A.

##  

# **ARTICLE II**CONDITIONS PRECEDENT TO EFFECTIVENESS

# ** **

Section 2.01                                Conditionsof Effectiveness.  The effectivenessof this Agreement and the occurrence of the closing of the transactionscontemplated herein on the Closing Date shall be deemed to have occurred uponsatisfaction of the conditions precedent listed in this Section 2.01.  Such conditions precedent shall be deemedsatisfied upon confirmation to each of the Bank Holders, the SEN Holders, theBank Holders Administrative Agent, the Shared Mexican Trustee, the SENCollateral Agent and the SEN Trustee by the Shared Payment and Collateral Agentthat each of the Bank Holders, the SEN Trustee and the SEN Holders accept orare deemed to accept each of the items listed in this Section 2.01.

##  

The Shared Payment andCollateral Agent shall give not less than one (1) Business Day’s notice ofthe anticipated Closing Date to each of the Bank Holders, the SEN Holders, theBank Holders Administrative Agent, the Shared Mexican Trustee, the SENCollateral Agent and the SEN Trustee. Each of the Bank Holders, the SEN Trustee and the SEN Holders shall bedeemed to have agreed to and accepted each item listed below, unless any suchPerson notifies the Shared Payment and Collateral Agent and the Bank HoldersAdministrative Agent (in the case of the Bank Holders) and the SEN CollateralAgent (in the case of the SEN Holders) that it does not so agree to or acceptsuch item by 5:00 p.m. (New York City time) on the Business Day on whichthe notice referred to in the previous sentence of this paragraph istransmitted.

 

### (a)                                  CommonAgreement.  This Agreement shallhave been duly authorized, executed and delivered by each of the partieshereto.

###  

### (b)                                 RestructuredTrust Indenture.  The RestructuredTrust Indenture shall have been duly authorized, executed and delivered by eachof the parties thereto.

###  

### (c)                                  BankHolders Restructured Loan Agreement. The Bank Holders Restructured Loan Agreement shall have been dulyauthorized, executed and delivered by each of the parties thereto.

###  

### (d)                                 MexicanSecurity Trust Agreement.  TheMexican Security Trust Agreement shall have been duly authorized, executed anddelivered by each of the parties thereto, and (i) filed for registration in(A) the Public Registry of Commerce with jurisdiction in the corporatedomicile

 

2

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of each of the grantors under the Mexican Security Trust Agreement and(B) the *Registro Público de Minería*, and (ii) be in proper form forfiling and registration in (A) the *Instituto Mexicano de la Propriedad Industrial*,(B) the Public Registry of Property with jurisdiction in each place wherereal property subject to the Mexican Security Trust Agreement is located, and(C) in any other registry or institution that, in light of the nature ofthe assets subject to the Mexican Security Trust Agreement, is required underApplicable Law to perfect or maintain the transfer of ownership to the SharedMexican Trustee under the Mexican Security Trust Agreement (including anysupplement thereto whereby any real property is transferred as of the ClosingDate) of the assets subject thereto, in all cases in proper legal form namingthe Shared Mexican Trustee as owner of such assets in favor of the SharedPayment and Collateral Agent and The Bank of New York as trustee under theYankee Bank Indenture.  In addition,(x) the Shared Mexican Trustee shall have received in ownership allcertificates representing the shares of Capital Stock subject to the MexicanSecurity Trust Agreement duly endorsed in favor of the Shared Mexican Trustee,in each case respectively by the corresponding transferor, and each suchtransfer of ownership shall have been duly recorded in the appropriatecorporate registry of the corresponding issuer of such certificates,(y) Borrower shall have delivered evidence that all of the foregoing hasbeen delivered and performed and that appropriate instruments have been filedin all locations in which filings necessary to register properly the ownershipinterest of the Shared Mexican Trustee in each asset subject to the MexicanSecurity Trust Agreement are required to be filed on or prior to the ClosingDate in accordance with the terms of the Mexican Security Trust Agreement and(z) the Shared Payment and Collateral Agent shall have executed anddelivered the Trust Acceptance Letter.

###  

### (e)                                  SecurityAgreements.

###  

#### (i)                                     TheU.S. Security Agreement shall have been duly authorized, executed and deliveredby the parties thereto.

####  

#### (ii)                                  TheSEN Security Agreement shall have been duly authorized, executed and deliveredby the parties thereto.

####  

### (f)                                    [Reserved.]

###  

### (g)                                 Liens.  The Lenders shall have received reportsacceptable to the Lenders from each of the appropriate filing or recordingoffices, in respect of a search of the applicable files and any indices ofLiens maintained by such offices (including, if applicable, indices ofjudgment, revenue and tax Liens), which reports shall evidence that theproperty covered by the U.S. Security Agreement, the SEN Security Agreement andthe Mexican Security Trust Agreement, respectively, is free and clear of allLiens other than Permitted Liens.

###  

### (h)                                 AffiliateGuaranty and GM Guaranty.

###  

#### (i)                                     EachGuarantor shall have duly authorized, executed and delivered to each Lender anoriginally executed counterpart of the Affiliate Guaranty, substantially in theform attached hereto as Exhibit 2.01(h)(i), and provided a copy of thesame to each Agent for each Lender; and

 

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#### (ii)                                  GM,GMM and MM shall have duly authorized, executed and delivered to each GMGuaranty Beneficiary an originally executed counterpart of the GM Guaranty,substantially in the form attached hereto as Exhibit 2.01(h)(ii),and provided a copy of the same to each Agent for each Lender.

####  

### (i)                                     PerfectionMatters.  Borrower and Guarantorsshall have filed appropriate Uniform Commercial Code financing statements, madesuch other filings and taken such actions as may be necessary or advisable toperfect a first priority security interest with respect to the SEN Collateraland the Shared Collateral, as applicable, pursuant to the terms and provisionsof, and to the extent required by, the Operative Documents.

###  

### (j)                                     Notes.  Each of the SEN Trustee, the SEN Holders andthe Bank Holders shall have received any Notes, duly executed by the makerthereof and, with respect to the Bank Holders Notes only, *por aval* by each Guarantor,being issued to them pursuant to the terms of the Restructured Trust Indentureor the Bank Holders Restructured Loan Agreement, as applicable.

###  

### (k)                                  UpdatedProjections.  Borrower shall haveadopted and delivered updated projections for Borrower and its Subsidiaries forthe period 2003-2010 containing a forecast on a quarterly basis through suchperiod, which projections shall be satisfactory in all material respects to theSuper-Majority Lenders (the “**Updated Projections**”).

###  

### (l)                                     Governmentaland Third Party Approvals.  Alllicenses, authorizations and permits of any Governmental Authority (includingHacienda) and all consents and approvals of any Governmental Authority or thirdparty, in each case as may be required to maintain the Restructured Debt, grantthe Liens provided for in the Collateral Documents, make the Affiliate Guarantyby each of the Guarantors, make the GM Guaranty by GM, or otherwise enter intothe Operative Documents, shall have been obtained and be in full force andeffect.

###  

### (m)                               Deliveriesto the SEN Trustee, the SEN Collateral Agent and the Bank HoldersAdministrative Agent.  The SENTrustee, the SEN Collateral Agent and the Bank Holders Administrative Agentshall have received each of the following, each in form and substance satisfactoryto the SEN Trustee, the SEN Collateral Agent and the Bank HoldersAdministrative Agent and certified by a Responsible Officer of Borrower:

###  

#### (i)                                     suchdocuments and certifications as may be necessary or advisable to evidence thateach of Borrower and the Guarantors is duly organized or formed (including thedocuments listed in Section 2.01(n));

####  

#### (ii)                                  (A) copiesof all consents, licenses and approvals required in connection with theexecution, delivery and performance by such party and the validity against suchparty of the Operative Documents to which it is a party or (B) acertificate stating that no such consents, licenses or approvals are sorequired;

####  

#### (iii)                               evidence that allinsurance required to be maintained pursuant to the Operative Documents hasbeen obtained and is in effect;

 

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#### (iv)                              evidencethat the Process Agent has accepted its appointment as such for Borrower andeach Guarantor, together with copies of the notarial deeds pursuant to whicheach such party (other than MMI) shall have granted to the Process Agent anirrevocable power of attorney for lawsuits and collections;

####  

#### (v)                                 evidencethat the Customer Notice and Acknowledgement requirements of Section 4.03have been complied with; and

####  

#### (vi)                              acalculation of the Intercompany Payable as of March 31, 2003, and anyother information or documents reasonably requested by the Lenders or theFinancial Advisor.

####  

### (n)                                 Secretaryand Officer Certificates. The SEN Trustee, the SEN Collateral Agent and theBank Holders Administrative Agent shall have received each of the following,dated as of the Closing Date:

###  

#### (i)                                     aSecretary’s Certificate in substantially the form of Exhibit 2.01(n)(i)-Aor Exhibit 2.01(n)(i)-B, as applicable, of each of AMC, Borrower and theGuarantors; and

####  

#### (ii)                                  acertificate signed by a Responsible Officer of Borrower and each Guarantor, insubstantially the form attached hereto as Exhibit 2.01(n)(ii),certifying that:

####  

##### (A)                              therepresentations and warranties contained in Article III are trueand correct on and as of such date, as though made on and as of such date;except to the extent such representations and warranties specifically relate toan earlier date, in which case such representations and warranties were trueand correct on and as of such earlier date;

#####  

##### (B)                                noDefault or Event of Default exists or would result from the restructuringcontemplated by the Operative Documents;

#####  

##### (C)                                therehas not occurred since September 30, 2002 any event or circumstance thathas resulted or could reasonably be expected to result in a Material AdverseEffect;

#####  

##### (D)                               atall times during the Interim Funding Period, each of Borrower and eachGuarantor complied in all material respects with the Affirmative Covenants andNegative Covenants;

#####  

##### (E)                                 nonew payment, bankruptcy or insolvency-related Event of Default has occurred,other than those expressly waived by the Lenders, and is continuing under anyExisting Bank Agreement or Existing SEN Agreement;

#####  

##### (F)                                 neitherMM nor any of its Subsidiaries has made any voluntary payments or hasvoluntarily given any property or collateral to Westdeutsche LandesbankGirozentrale or Siemens Financial Services GmbH (or any of their respectivesuccessors and assigns) with respect to the Enron Obligations; and

 

5

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##### (G)                                allconditions of this Section 2.01 have been met.

#####  

### (o)                                 EquityContribution.  The Lenders shallhave received satisfactory evidence that the Equity Contribution has beendelivered to a bank account of Borrower in immediately available funds forunrestricted use in operations.

###  

### (p)                                 SENClosing Date Contribution.  TheLenders shall have received satisfactory evidence that the SEN Closing DateContribution has been released by the SEN Holders on an unrestricted basis fromany of the Original Collection Accounts and the Debt Service Reserve Accountand delivered to a bank account of Borrower in immediately available funds.

###  

### (q)                                 ASARCOConfirmation and Release.  TheLenders shall have received (i) a confirmation from ASARCO that anyinventory of Borrower or any Guarantor in the possession and control of ASARCO,including any inven11tory that is in transit in the United States, does notbelong to ASARCO, and (ii) a release from ASARCO, in form and substancesatisfactory to the Lenders, with respect to any and all rights it may have in,against, or to such inventory, including any rights of set-off.

###  

### (r)                                    LegalOpinions.  The Lenders and theAgents (but as to clause (iii) below, the Bank Holders and the BankHolders Administrative Agent only, as to clause (iv) below, the SENTrustee, the SEN Collateral Agent and the SEN Holders only, and as toclause (v) below, the SEN Holders and the SEN Collateral Agent only) shallhave received favorable legal opinions, dated as of the Closing Date, of:

###  

#### (i)                                     SidleyAustin Brown & Wood LLP, special New York counsel to Borrower and eachGuarantor, as to matters set forth in Exhibit 2.01(r)(i) and as to suchother matters as the Required Lenders may reasonably request;

####  

#### (ii)                                  Mexicancounsel to AMC and the general counsel of Borrower and each Guarantor, as tothe matters set forth in Exhibit 2.01(r)(ii) and as to such othermatters as the Required Lenders may reasonably request;

####  

#### (iii)                               Jauregui, Navarrete,Nader y Rojas, S.C., special Mexican counsel to the Bank Holders, as to mattersset forth in Exhibit 2.01(r)(iii) and as to such other matters as theBank Holders’ Administrative Agent or the Required Bank Holders may reasonablyrequest;

####  

#### (iv)                              Ritch,Heather y Mueller, S.C., special Mexican counsel to the SEN Trustee and the SENHolders, as to matters set forth in Exhibit 2.01(r)(iv) and as tosuch other matters as the SEN Trustee and the Required SEN Holders mayreasonably request; and

####  

#### (v)                                 Emmet,Marvin & Martin, LLP, special New York counsel to the SEN Trustee, asto matters set forth in Exhibit 2.01(r)(v) and as to such other mattersas the Required SEN Holders may reasonably request.

####  

### (s)                                  Absenceof Event of Default.  Borrower shallhave certified that no new payment, bankruptcy or insolvency-related Event ofDefault shall have occurred, other than any that have

 

6

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### beenexpressly waived in writing by the Lenders, and be continuing under anyExisting Bank Agreement or Existing SEN Agreement.

###  

### (t)                                    InterestRelated Payments by Borrower.  TheLenders shall have received payment in full, in immediately available funds, of(i) all accrued and unpaid Current Cash Interest as of the Closing Date,and (ii) the excess, if any, of (a) all Cash Interest that would haveaccrued during the Interim Funding Period under the Operative Documents had theterms set forth herein and therein been effective and binding on Borrowerduring the Interim Funding Period less (b) the sum (without duplication)of (x) all Current Cash Interest, if any, that accrued and was actuallypaid to the Lenders during the Interim Funding Period and (y) all CurrentCash Interest that accrued during the Interim Funding Period and is to be paidpursuant to the immediately preceding clause (i).

###  

### (u)                                 Paymentof Fees and Transaction Expenses. Borrower shall have paid all fees, costs and expenses due and payablepursuant to Section 8.05 and Section 11.02.

###  

### (v)                                 TheBank of Nova Scotia.  The Bank ofNova Scotia shall have received payment of the Scotiabank Unpaid DefaultInterest.

###  

### (w)                               SENInterest Reserve Account. On the Closing Date, there shall be on deposit inthe SEN Interest Reserve Account, or Borrower shall have caused to be depositedinto such account on such date, an amount of cash equal to the SEN InterestReserve Account Required Balance as of the Closing Date.

###  

### (x)                                   TranslatedDocuments.  Borrower shall cause tobe delivered to the Shared Payment and Collateral Agent English translations ofthe documents listed in Part I of Schedule 2.01(x) and any otherdocuments that are required to be translated under Applicable Law in Mexico forthe performance of the transactions contemplated in the Operative Documents.

###  

### (y)                                 Deliveriesto the GM Agent.  The GM Agent shallhave received each of the following, each in form and substance satisfactory tothe GM Agent and its legal counsel and certified by a Responsible Officer ofeach of GM, MM and GMM:

###  

#### (i)                                     suchdocuments and certifications as the GM Agent may reasonably require to evidencethat each of GM, MM and GMM is duly organized or formed (including thedocuments listed in Section 2.01(z));

####  

#### (ii)                                  (A) copiesof all consents, licenses and approvals required in connection with theexecution, delivery and performance by GM, MM and GMM, as the case may be, andthe validity against GM, MM and GMM, as the case may be, of the GM Guaranty,and such consents, licenses and approvals shall be in full force and effect, or(B) a certificate stating that no such consents, licenses or approvals areso required;

####  

#### (iii)                               evidence that theProcess Agent has accepted its appointment as such under Section 6.20 ofthe GM Guaranty for GM and under Section 14.22 for each of MM andGMM, together with copies of the notarial deeds pursuant to which GM, MM andGMM, as the case may be, shall have granted to the Process Agent an irrevocablepower of attorney for lawsuits and collections;

 

7

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#### (iv)                              favorablelegal opinions, dated as of the Closing Date, and addressed to the GM Agent andthe GM Guaranty Beneficiaries of:

####  

##### (A)                              SidleyAustin Brown & Wood LLP, special New York counsel to GM, MM and GMM, as tomatters set forth in Exhibit 2.01(y)(iv)(A) and as to such othermatters as the GM Agent may reasonably request, and

#####  

##### (B)                                Thegeneral counsel of GM, MM and GMM, as to the matters set forth in Exhibit 2.01(y)(iv)(B)and as to such other matters as the GM Agent may reasonably request; and

#####  

#### (v)                                 anyother information reasonably requested pursuant to the terms hereof by the GMGuaranty Beneficiaries or the GM Agent.

####  

### (z)                                   CorporateDocuments, Incumbency Certificates, etc. The GM Agent shall have receivedeach of the following, each in form and substance satisfactory to the GM Agentand its legal counsel:

###  

#### (i)                                     aSecretary’s Certificate in substantially the form of Exhibit 2.01(n)(i)-Bof GM; and

####  

#### (ii)                                  acertificate signed by a Responsible Officer of each of GM, MM and GMM insubstantially the form attached hereto as Exhibit 2.01(z)(ii),stating that:

####  

##### (A)                              therepresentations and warranties contained in Article III of the GM Guaranty inthe case of GM and Article III of the Common Agreement (as modifiedby Section 6.21(a) of the GM Guaranty) are true and correct on and as ofsuch date, as though made on and as of such date; except to the extent suchrepresentations and warranties specifically relate to an earlier date, in whichcase such representations and warranties were true and correct on and as ofsuch earlier date,

#####  

##### (B)                                noGM Guaranty Default or GM Guaranty Event of Default (as each such term isdefined in the GM Guaranty) exists or would result from the restructuringcontemplated by the Operative Documents, and

#####  

##### (C)                                therehas not occurred since September 30, 2002 any event or circumstance thathas resulted or could reasonably be expected to result in a Material AdverseEffect (as defined in the GM Guaranty).

#####  

### (aa)                            CancelledNotes.  Each SEN Holder, each BankHolder and the SEN Trustee shall have delivered on the Closing Date, againstdelivery of the Notes described in Section 2.01(j), either(i) the original notes issued to them pursuant to the terms of theOriginal Trust Indenture or the Existing Bank Agreements or (ii) anaffidavit in the form attached hereto as Exhibit 2.01(aa) by anauthorized officer of such Person.

###  

### (bb)                          Ex-ImGuarantees.   Each of Bank ofAmerica, N.A. and Société Générale shall have received written confirmation, inform and substance satisfactory to each of them,

 

8

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### respectively,from Export-Import Bank of the United States that it agrees to extend itscurrently existing guarantees to the Restructured Debt held by each of suchBank Holders.

###  

# **ARTICLE III**REPRESENTATIONS AND WARRANTIES

# ** **

Borrower and each Guarantor jointly and severallyrepresent and warrant to each Agent, the SEN Trustee and each Lender, as of thedate hereof and as of the Closing Date, that:

 

## Section 3.01                                CorporateExistence and Power.  Borrower andeach Guarantor:

##  

### (a)                                  isa *sociedadanónima de capital variable*, except for Mimenosa, TISLP and MCI,each of which is a *sociedad anónima*, PU, which is a *sociedad deresponsabilidad limitada de capital variable*, and MMI, which is acorporation, duly organized, validly existing and, to the extent applicable, ingood standing under the laws of the jurisdiction of its formation;

###  

### (b)                                 hasthe requisite power and authority and all licenses, authorizations, consentsand approvals to own, lease and operate its assets and to conduct its business(except to the extent, in each such case, that the failure to have such licenses,authorizations, consents or approvals could not reasonably be expected to havea Material Adverse Effect) and to execute, deliver, and perform its obligationsunder the Operative Documents;

###  

### (c)                                  isduly qualified as a foreign entity and is licensed and in good standing (or theequivalent, if any, under Mexican Applicable Law) under the laws of eachjurisdiction where its ownership, lease or operation of property or the conductof its business requires such qualification or license (except to the extentthat the failure to be so qualified, licensed or in good standing could notreasonably be expected to have a Material Adverse Effect);

###  

### (d)                                 isin compliance with all Applicable Laws (except to the extent that the failureto be in such compliance could not reasonably be expected to have a MaterialAdverse Effect); and

###  

### (e)                                  hasno outstanding shares of Capital Stock other than such shares that have beenvalidly issued and are fully paid and non-assessable and are owned as indicatedin Schedule 3.14.

###  

## Section 3.02                                CorporateAuthorization; No Contravention. The execution, delivery and performance by Borrower and each Guarantorof this Agreement and each other Operative Document to which such Person isparty have been duly authorized by all necessary corporate action, and do notand will not:

##  

### (a)                                  contravenethe terms of any such Person’s Organizational Documents;

###  

### (b)                                 conflictwith or result in any breach or contravention of, or the creation of any Lienunder, any document evidencing any Contractual Obligation to which any suchPerson is a party (including the Yankee Bond Indenture), or any order,injunction, writ or decree of any Governmental Authority to which any suchPerson or its property is subject; provided that the parties heretoacknowledge that the assignments under the Mexican Security Trust Agreement andthe pledge under the U.S. Security Agreement may give rise to equitable Lienspursuant to the Yankee Bond Indenture (and Borrower and each Guarantor furtherrepresent and warrant that

 

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### theprovisions of the Operative Documents comply fully with the provisions of theYankee Bond Indenture); or

###  

### (c)                                  violateany Applicable Law.

###  

## Section 3.03                                Compliancewith Other Instruments; No Breach. Neither Borrower nor any Guarantor is in violation of (i) its *estatutossociales* (or, with respect to MMI, its certificate of incorporationor its by-laws), (ii) any Applicable Law, or any order, writ, injunctionor decree of any court, tribunal or Governmental Authority binding on suchPerson or its properties, or (iii) any agreement or instrument to which itis a party or by which it is bound or to which it is subject, except for suchviolations in clauses (ii) or (iii) that in the aggregate would not have aMaterial Adverse Effect.

##  

## Section 3.04                                Authorization.  No approval, consent, exemption,authorization, or other action by, or notice to, or filing with, any Person isnecessary or required in connection with the execution, delivery or performanceof any Operative Document by, or the enforcement of any Operative Documentagainst, Borrower or any Guarantor, except any such approval, consent,exemption, authorization, action, notice or filing that has already beenobtained, taken or made, as the case may be, and is in full force and effect.

##  

## Section 3.05                                BindingEffect.  This Agreement and eachother Operative Document to which Borrower or any Guarantor is a party havebeen duly executed and delivered by it and constitute the legal, valid andbinding obligations of Borrower and each Guarantor to the extent it is a partythereto, enforceable against each such Person in accordance with theirrespective terms, except as enforceability may be limited by applicablebankruptcy, insolvency, or similar laws affecting the enforcement of creditors’rights generally or by equitable principles related to enforceability.  Without limiting the foregoing, each BankHolder Note is a valid and enforceable credit instrument (*título de crédito*) inaccordance with the *Ley General de Títulos y Operaciones de Crédito*enforceable under Mexican law by means of a summary judicial proceeding (*acciónejecutiva mercantil*) against Borrower, as maker, and any Guarantorparty thereto, as *avalista*.

##  

## Section 3.06                                Litigation.  Except as specifically disclosed in Schedule 3.06,there are no actions, suits, proceedings, claims or disputes pending or, to thebest knowledge of Borrower or any Guarantor, threatened or contemplated(whether at law, in equity, in arbitration or before any GovernmentalAuthority), against Borrower or any Guarantor that:

##  

### (a)                                  purportto affect or pertain to this Agreement or any other Operative Document or anyof the transactions contemplated hereby or thereby; or

###  

### (b)                                 couldreasonably be expected to have a Material Adverse Effect.

###  

In addition, no injunction, writ, temporaryrestraining order or any order of any nature has been issued by any court orother Governmental Authority purporting to enjoin or restrain the execution,delivery or performance of this Agreement or any other Operative Document, ordirecting that the transactions provided for herein or therein not beconsummated as herein or therein provided.

 

10

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## Section 3.07                                NoDefault.  No Default or Event ofDefault exists or would result from the incurrence of any Restructured Debt byBorrower or any Guarantor.  NeitherBorrower nor any Guarantor is in default under or with respect to anyContractual Obligation in any respect that, individually or together with allsuch defaults, could reasonably be expected to have a Material Adverse Effect,or that if such default occurred after the Closing Date, could reasonably beexpected to create or constitute a Default or an Event of Default.

##  

## Section 3.08                                EmployeeBenefit Plans; Employment Matters. As of the Closing Date:

##  

### (a)                                  Eachemployee benefit plan (if any) of Borrower or any Guarantor has beenmaintained, operated and administered in accordance with its terms and withApplicable Law, and all notices, filings and disclosures required by such termsor Applicable Law have been timely made, except when the failure to maintain,operate, administer, notify, file or disclose could not reasonably be expectedto have a Material Adverse Effect.  Noproceeding with respect to the administration or the investment of any assetsof any such employee benefit plan (other than routine claims for benefits) thatcould reasonably be expected to have a Material Adverse Effect is pending orthreatened.

###  

### (b)                                 Allobligations of Borrower or any Guarantor for payments with respect to any andall mandatory and additional employee benefit plans (including *I.M.S.S.,Infonavit* and accrued payroll tax payments for their respectiveemployees) have been timely paid and properly reported in the financialstatements required to be delivered hereunder except where the failure to makesuch payments could not reasonably be expected to have a Material AdverseEffect.

###  

### (c)                                  Exceptas set forth on Schedule 3.08 or as required by Applicable Law, neitherBorrower nor any Guarantor has any liability for retiree benefits.

###  

### (d)                                 Exceptas set forth on Schedule 3.08, neither Borrower nor any Guarantor hasany payment obligations for retiree benefits that are past due and unpaid.

###  

### (e)                                  Eachof Borrower and the Guarantors has complied in all material respects with allApplicable Laws with respect to employment practices, including applicablehealth and safety regulations, and there is no charge or complaint alleging anyviolation of such Applicable Laws against Borrower or any Guarantor pending or,to any of their  knowledge, threatened(including by or before any federal or local labor board, any tribunal or the *ComisiónNacional del Sistema de Ahorro para el Retiro* (National Savings andRetirement System Commission)) that could reasonably be expected to have aMaterial Adverse Effect.

###  

### (f)                                    Exceptas set forth on Schedule 3.08(f), there is no labor strike, request forrepresentation, slowdown or stoppage pending or, to the best knowledge ofBorrower or any Guarantor, threatened against or affecting any of them thatcould reasonably be expected to have a Material Adverse Effect.

###  

### (g)                                 Borrowerand each Guarantor have filed all forms, reports and statements, in each casewith respect to employment matters and employment benefit plans, and provideragreements, benefit plan descriptions, payor agreements, beneficiary materialsand other documents (including those related to employee benefit plans)required to be filed by any of them with any Governmental Authority, includingstate and federal insurance and health

 

11

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### regulatoryauthorities, except where the failure to file could not reasonably be expectedto have a Material Adverse Effect.

###  

## Section 3.09                                Titleto Properties.  Except as set forthon Schedule 3.09, Borrower and each Guarantor has unencumbered legaltitle to, or valid leasehold interests in, all real and personal propertynecessary or used in the ordinary conduct of their respective businesses,except for such defects in title as could not individually or in the aggregatereasonably be expected to have a Material Adverse Effect.

##  

## Section 3.10                                Taxes.

##  

### (a)                                  Exceptas set forth on Schedule 3.10(a), Borrower and each Guarantor hasaccurately filed tax returns, statements and reports required to be filed, andhave timely paid all taxes, assessments, fees, penalties, and othergovernmental charges levied or imposed upon them or their properties, income orassets otherwise due and payable, except those that are being contested in goodfaith by appropriate proceedings and with respect to which bonds have beenposted as may be required by Applicable Law and adequate reserves have beenprovided in accordance with Mexican GAAP, and those that could not reasonablybe excepted to have a Material Adverse Effect. There is no proposed tax assessment against Borrower or any Guarantorthat would, if made, have a Material Adverse Effect.

###  

### (b)                                 Thereis no Tax of any kind whatsoever imposed by any Governmental Authority inMexico either (i) on or by virtue of the execution, delivery, performance,enforcement or admissibility into evidence of this Agreement, the Notes or anyother Operative Document or (ii) on any payment to be made by Borrower orany Guarantor pursuant to this Agreement, the Notes or any other OperativeDocument, except that, as of the Closing Date, any payment of interest or feespayable from Mexico under this Agreement (other than such payments to or onbehalf of Export Development Canada, which are not subject to Mexicanwithholding tax) will be subject to withholding tax as set forth in the MexicanIncome Tax Law; provided that in the case of payments made under thisAgreement to financial institutions registered with *Hacienda* for purpose ofArticle 195, Section I of the Mexican Income Tax Law that are residents (orhave the principal offices of such Lender resident, if such Lender lendsthrough a branch or agency) for tax purposes of a jurisdiction with whichMexico has in effect a treaty for the avoidance of double taxation, theapplicable rate will be 4.9%, or such other rate as may be provided in theMexican Income Tax Law.

###  

### (c)                                  NeitherBorrower nor any Guarantor intends to treat the Restructured Debt as being a“reportable transaction” (within the meaning of Treasury RegulationSection 1.6011-4).  In the eventBorrower or any Guarantor determines to take any action inconsistent with suchintention, it will promptly notify the Shared Payment and Collateral Agentthereof.  Accordingly, if Borrower orany Guarantor so notifies the Shared Payment and Collateral Agent, itacknowledges that one or more of the Lenders may treat the Restructured Debt aspart of a transaction that is subject to Treasury RegulationSection 301.6112-1, and such Lender or Lenders, as applicable, willmaintain the lists and other records required by such Treasury Regulation.  Borrower and the Guarantors acknowledge andagree that they have not received any tax advice from any Agent or Lender inconnection with the foregoing.

 

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## Section 3.11                                FinancialCondition.

##  

### (a)                                  Each of (x) the audited consolidatedbalance sheet of Borrower and each Guarantor dated December 31, 2001, andthe related consolidated statements of income or operations, shareholders’equity and cash flows for the fiscal year ended on that date, and (y) theunaudited consolidated balance sheet of Borrower and each Guarantor datedSeptember 30, 2002, and the related consolidated statements of income oroperations, shareholders’ equity and cash flows for the three fiscal quartersended on that date:

###  

#### (i)                                     wereprepared in accordance with Mexican GAAP consistently applied throughout theperiod covered thereby, except as otherwise expressly noted therein; and

####  

#### (ii)                                  fairlypresent the financial condition of each of Borrower and each Guarantor, asapplicable, as of the dates thereof, and results of operations for the periodscovered thereby (subject, in the case of the financial statements at and forthe period ended September 30, 2002, to ordinary, good faith year-end auditadjustments).

####  

### (b)                                 NeitherBorrower nor any Guarantor had on said dates any material contingentliabilities, liabilities for taxes, unusual forward or long-term commitments orunrealized or anticipated losses from any unfavorable commitments, except asreferred to or reflected or provided for in said balance sheets as of saiddates.  There has been no materialadverse change in the consolidated financial condition, operations, business orprospects of Borrower and the Guarantors, taken as a whole, since September 30,2002, from that set forth in the audited financials referred to in clause(a)(x) of this Section 3.11.

###  

## Section 3.12                                EnvironmentalCompliance.  In the ordinary courseof its business, Borrower and each Guarantor conducts an ongoing review of theeffect of Environmental Laws on its business, operations and properties, in thecourse of which it identifies and evaluates associated liabilities and costs(including any capital or operating expenditures required for cleanup orclosure of properties presently or previously owned, any capital or operatingexpenditures required to achieve or maintain compliance with environmentalprotection standards imposed by law as a condition of any license, permit orcontract, any related constraints on operating activities, including anyperiodic or permanent shutdown of any facility or reduction in the level of orchange in the nature of operations conducted thereat, and any actual orpotential liabilities to third parties, including employees, and any related costsand expenses).  On the basis of thisreview, except as set forth on Schedule 3.12, (a) Borrower and eachGuarantor is in compliance with Environmental Laws other than any failure tocomply that has not resulted and cannot reasonably be expected to result in aMaterial Adverse Effect; (b) to the best of Borrower’s and eachGuarantor’s knowledge, there is no condition on or near real property leased,owned, or otherwise used by Borrower or any Guarantor that has given or couldgive rise to liability under any Environmental Law, which liability hasresulted or could reasonably be expected to result in a Material AdverseEffect; and (c) to the best of Borrower’s and each Guarantor’s knowledge,neither Borrower nor any Guarantor has suffered any act or omission that couldgive rise to liability under any Environmental Laws that has resulted or couldreasonably be expected to result in a Material Adverse Effect.

 

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## Section 3.13                                NoBurdensome Restrictions.  NeitherBorrower nor any Guarantor is a party to or bound by a Contractual Obligation,or subject to any restriction in any Organizational Document or any ApplicableLaw, that could reasonably be expected to have a Material Adverse Effect.

##  

## Section 3.14                                Ownership;Subsidiaries.  Immediately prior tothe transfer thereof to the Shared Mexican Trustee under the Mexican SecurityTrust Agreement, MM owns, directly or indirectly, beneficially and of record,not less than 98.9093% of the Capital Stock of GMM.  As of the Closing Date, MM has no Subsidiaries other than thosespecifically disclosed in part (a) of Schedule 3.14.  The information set forth in part (a)of Schedule 3.14 concerning the Subsidiaries of MM is true, complete andcorrect as of the Closing Date.  As ofthe Closing Date, GMM has no Subsidiaries other than those specificallydisclosed in part (b) of Schedule 3.14 and has no equityinvestments in any other Person other than those specifically disclosed inpart (c) of Schedule 3.14. The information set forth in parts (b) and (c) of Schedule 3.14concerning GMM’s direct and indirect shareholdings and other equity investmentsis true, complete and correct as of the Closing Date.  As of the Closing Date, the only Subsidiaries of Borrower thatare Principal Subsidiaries are IMMSA, MMI, Mexcobre, Mimenosa, Mexcananea,Mexarco, MMM, TISLP, MCI and PU.  As ofthe Closing Date, none of the Principal Subsidiaries has any Subsidiaries otherthan those specifically disclosed in part (d) of Schedule 3.14 orhas any equity investments in any other Persons other than those specificallydisclosed in part (e) of Schedule 3.14.  The information set forth in parts (d)and (e) of Schedule 3.14 concerning the Principal Subsidiaries’ directand indirect shareholdings and other equity investments is true, complete andcorrect as of the Closing Date.

##  

## Section 3.15                                Insurance.  The properties of Borrower and eachGuarantor are insured, with financially sound and reputable independentinsurance companies that are not Affiliates of any of Borrower or anyGuarantor, in such amounts, with such deductibles and covering such risks asare customarily carried by companies engaged in similar businesses and owningsimilar properties in localities where Borrower or the applicable Guarantoroperates.

##  

## Section 3.16                                SwapObligations.  Neither Borrower norany Guarantor has incurred any outstanding obligations under any Swap Contract,other than Permitted Swap Obligations.

##  

## Section 3.17                                LegalForm; No Filing.  Each of thisAgreement, the Notes and each of the other Operative Documents is in properlegal form under the law of Mexico for the enforcement thereof under such law;each of the Operative Documents that is stated to be governed by Mexican lawconstitutes the legal, valid and binding obligations of Borrower and anyGuarantor party thereto under such law, enforceable in accordance with itsrespective terms, except as enforceability may be limited by applicablebankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rightsgenerally or by equitable principles related to enforceability; and withrespect to each of the Operative Documents that is not stated to be governed bysuch law, each such Operative Document would, if it were stated to be governedby such law, constitute the legal, valid and binding obligations of Borrower orany Guarantor party thereto under such law, enforceable in accordance with itsrespective terms, except as enforceability may be limited by applicablebankruptcy, insolvency or similar laws affecting the enforcement of creditors’rights generally or by equitable principles related to enforceability.  It is not necessary in order to ensure thelegality, validity, enforceability or admissibility in evidence of thisAgreement, any

 

14

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## Note orany other Operative Documents in Mexico that this Agreement, any Note, anyOperative Document or any other document be filed, registered, recorded orenrolled with any court or other Governmental Authority or other Person inMexico except (a) for the registration of the Mexican Security Trust Agreementin (i) the Public Registry of Commerce with jurisdiction in the corporatedomicile of each of the grantors under the Mexican Security Trust Agreement,(ii) the Public Registry of Property with jurisdiction in each place wherereal property subject to the Mexican Security Trust Agreement is located,(iii) the *Instituto Mexicano de la Propiedad Industrial* and(iv) the *Registro Público de Minería*, (b) for the registration of theterms of the Mexican Security Trust Agreement in the stock registry book ofeach issuer of certificates representing Capital Stock subject to the MexicanSecurity Trust Agreement, which registration will be made prior to the ClosingDate, and (c) that in the event of any legal proceedings, all Englishlanguage documents are required to be translated into Spanish by a courtapproved translator and such translations would have to be approved by thecourt after the defendant had been given an opportunity to be heard withrespect to the accuracy of the translation, and proceedings would thereafter bebased upon the translated documents. The Spanish versions of the Bank Holders Notes delivered pursuant tothis Agreement are in the proper form for enforcement in legal proceedings inMexico.  Except for fees payable for theregistration of the Mexican Security Trust Agreement and the notarizationthereof and of each Mexican power-of-attorney required to be granted under theOperative Documents, no Taxes are required to be paid and no notarization isrequired for the legality, validity, enforceability or admissibility intoevidence of this Agreement, any Note or any other Operative Document.

##  

## Section 3.18                                NoLiens.  There is no Lien upon orwith respect to any of the Shared Collateral or SEN Collateral, exceptPermitted Liens.  Borrower’sSubsidiaries have good title to, and are entitled to receive all monies due orto become due as the proceeds of any sale under, any Export Contracts to whichthey are parties free and clear of any adverse claims or Liens, subject only tothe Operative Documents.

##  

## Section 3.19                                CommercialActivity; Absence of Immunity.

##  

### (a)                                  Eachof Borrower and each Guarantor is subject to civil and commercial law withrespect to its obligations under this Agreement, each Note and each of theother Operative Documents to which it is a party.  The making and performance by Borrower and each Guarantor of thisAgreement, each Note and each of the other Operative Documents constituteprivate and commercial acts rather than public or governmental acts.  Neither Borrower nor any Guarantor, nor anyof their respective property, is entitled to any right of immunity in anyjurisdiction from suit, court jurisdiction, judgment, attachment (whetherbefore or after judgment), set-off or execution of a judgment or from any otherlegal process or remedy relating to the obligations of Borrower and eachGuarantor under this Agreement, each Note and each of the other OperativeDocuments to which it is a party.

###  

### (b)                                 Itis not necessary (i) in order for any Agent or any Lender to enforce thisAgreement, the Notes or any other Operative Documents or (ii) solely byreason of the execution, delivery and performance of this Agreement, the Notesor any other Operative Document, that such Agent or any Lender be licensed orqualified with any Governmental Authority in Mexico or be entitled to carry onbusiness in Mexico.

 

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## Section 3.20                                Solvency.  Each of Borrower and each Guarantor,individually and on a consolidated basis with its consolidated Subsidiaries,after giving effect to the Equity Contribution, the SEN Contribution, and theother transactions contemplated hereby and by the other Operative Documents,will be Solvent; provided, however, that the Solvency of eachPrincipal Subsidiary shall be calculated without taking into account itsobligations under the Affiliate Guaranty.

##  

## Section 3.21                                EnronObligations.  None of MM’s or GMM’sSubsidiaries, or any Affiliate thereof, has made any voluntary payment or hasvoluntarily transferred any assets or collateral to Westdeutsche LandesbankGirozentrale or Siemens Financial Services GmbH (or any of their respectivesuccessors or assigns) with respect to the Enron Obligations.

##  

## Section 3.22                                FullDisclosure.  None of therepresentations and warranties made by Borrower or any Guarantor in thisAgreement, in any Note or in any of the other Operative Documents as of thedate such representations and warranties are made or deemed made, and none ofthe statements contained in any exhibit, written report, written statement orcertificate furnished by or on behalf of Borrower or any Guarantor inconnection with the Operative Documents, contains any untrue statement of amaterial fact or omits any material fact required to be stated therein ornecessary to make the statements therein, in light of the circumstances underwhich they are made, not misleading as of the time when made or delivered.  Borrower and each Guarantor have disclosedto the Lenders in writing any and all facts or circumstances that couldreasonably be expected to have a Material Adverse Effect.

##  

## Section 3.23                                Customers;Contracts.

##  

### (a)                                  Allof the Customers, all of the Export Contracts, and all of the DomesticContracts as of the date hereof are listed on Schedule 3.23.  Each such Contract (i) constitutes thelegal, valid and binding obligation of Borrower or any Guarantor party thereto,as the case may be, and the customer named therein, and is enforceable inaccordance with its terms, (ii) is in full force and effect without anydefault thereunder by GMM, MM or any of their respective Affiliates or, to thebest of Borrower’s or any Guarantor’s knowledge, by any party thereto,(iii) is not subject to any right of rescission, set-off, recoupment,defense or counterclaim with respect to payment of amounts due to GMM, MM orany of their respective Affiliates other than those allowed under ApplicableLaw and (iv) has not been satisfied, subordinated or rescinded.  Neither Borrower nor any Guarantor hasreceived on or prior to the date hereof written notice of any claim, charge orthreat that Borrower or any Guarantor has breached any such ExportContract.  As of the date hereof and asof the Closing Date, no advance payments, other than those set forth in Schedule3.23, are outstanding under any such Export Contracts.  All amounts payable to Borrower and eachGuarantor under such Export Contracts are payable and denominated in Dollars.

###  

### (b)                                 Asof the Closing Date, neither Borrower nor any Guarantor has sold for less thanreasonably equivalent value, discounted or otherwise transferred any amountsreceivable, or any amount that may become receivable, under any Contracts.

 

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## Section 3.24                                InvestmentCompany Act.  Neither Borrower norany Guarantor is an “investment company”, or a company “controlled” by an“investment company”, within the meaning of the Investment Company Act.

##  

## Section 3.25                                PublicUtility Holding Company Act. Neither Borrower nor any Guarantor is a “holding company”, or a“subsidiary company” of a “holding company”, or an “affiliate” of a “holdingcompany” or of a “subsidiary company” of a “holding company”, as such terms aredefined in the Public Utility Holding Company Act.

##  

## Section 3.26                                ForeignAssets Control Regulations, etc. Neither Borrower nor any Guarantor is (a) an “enemy” as defined inthe Trading with the Enemies Act of 1917, as amended, or (b) a “national”of any “designated foreign country” as defined in the Foreign Assets ControlRegulations.  None of the transactionscontemplated by this Agreement or the other Operative Documents will violatethe Foreign Assets Control Regulations, the Transaction Control Regulations,the Cuban Assets Control Regulations, the Foreign Funds Control Regulations,the Iranian Assets Control Regulations, the Iranian Transactions Regulations,the Iraqi Sanctions Regulations, the Libyan Sanctions Regulations, the SovietGold Coin Regulations of the United States Treasury Department (31 C.F.R.,Subtitle B, Chapter V, as amended) or the restrictions set forth in ExecutiveOrders No. 8389, 9193, 12543 (Libya), 12544 (Libya), 12801 (Libya), 12722(Iraq), 12808 (Yugoslavia), 12810 (Yugoslavia) or 12831 (Yugoslavia), asamended, of the President of the United States of America or of any rules orregulations issued thereunder.

##  

## Section 3.27                                BankAccounts.  Neither Borrower nor anyGuarantor maintains any deposit account or securities account (as such termsare defined in the Uniform Commercial Code) in the United States, other thanthose deposit accounts listed in Schedule 3.27.

##  

## Section 3.28                                RealProperty Value.  As of the ClosingDate, the value of the real property subject to the Mexican Security TrustAgreement represents not less than seventy percent (70%) of the total value ofall real property owned by Borrower and the Principal Subsidiaries.

##  

## Section 3.29                                PrincipalSubsidiaries.  Each Subsidiary ofBorrower that is a Principal Subsidiary is a party hereto.

##  

# **ARTICLE IV**AFFIRMATIVE COVENANTS

 

Each of MM (on behalf of itself, GMM and eachPrincipal Subsidiary, but only to the extent applicable), GMM (on behalf ofitself and each Principal Subsidiary) and each Principal Subsidiary (on behalfof itself and its respective Subsidiaries, where applicable) agrees that, untilthe Restructured Debt has been paid in full, it shall comply with the followingaffirmative covenants (each, an “**Affirmative Covenant**”) unless waived by theSuper-Majority Lenders in writing.

 

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## Section 4.01                                CertainPayment Obligations.

##  

### (a)                                  Borrowershall make all payments required under the terms of this Agreement and theother Operative Documents on such dates and subject to such conditions as arespecified herein and therein (including payments of Cash Interest to be made inaccordance with Section 8.04). Borrower shall notify the Shared Payment and Collateral Agent and theBank Holders Administrative Agent of each such payment, pursuant to a notice inform and substance reasonably satisfactory to the Shared Payment and CollateralAgent and the Bank Holders Administrative Agent, not later than 11:00 a.m.(New York City time) on the date of such payment (or on such earlier dateas may be specified in this Agreement).

###  

### (b)                                 Commencingon June 25, 2004 and on a quarterly basis thereafter, and subject to anyprepayments thereof, Borrower shall make amortization payments to the SharedPayment and Collateral Agent on such dates and in such amounts as are set forthon the Restructured Debt Payment Schedule in accordance with the terms of Section8.03.

###  

### (c)                                  Uponthe occurrence of any Prepayment Event, Borrower shall pay any amounts due as aresult thereof in accordance with Article VIII.

###  

## Section 4.02                                Feesand Expenses.  Borrower shall payall outstanding and ongoing reasonable and documented fees and expenses of theAgents, the SEN Trustee and the Lenders in accordance with Section 11.02.

##  

## Section 4.03                                CustomerNotice and Acknowledgements.

##  

### (a)                                  Borrowershall ensure that Customer Notice and Acknowledgements have been sent to andreceived by at least ninety-eight percent (98%) of its Customers and use itsbest efforts to require Customers representing at least eighty-five percent(85%) of Export Sales for the immediately preceding four consecutive fullfiscal quarters to sign Customer Notice and Acknowledgements.  Each Customer Notice and Acknowledgementshall (i) direct the applicable Customer to make all future payments tothe Collection Accounts and (ii) inform the applicable Customer of theproper account information for all future payments (including informing theapplicable Customer that the Collection Accounts are now being held by the SENCollateral Agent).  Borrower shallprovide copies of each Customer Notice and Acknowledgement to the FinancialAdvisor.

###  

### (b)                                 Anythingin subsection (a) of this Section 4.03 or elsewhere herein orin any other Operative Document to the contrary notwithstanding, Borrower shallnot be required to comply with such subsection (a) during theperiod commencing on the Closing Date and ending on July 11, 2003.  Prior to 12:00 p.m. (New York Citytime) on June  13, 2003 and on Friday of each week thereafter throughJuly 11, 2003 (or if any such Friday is not a Business Day, on theBusiness Day immediately preceding such Friday) (each such day a “**PercentageCalculation Date**”), Borrower shall deliver to the Financial Advisorcopies of all Customer Notice and Acknowledgements received by Borrower sincethe immediately preceding Percentage Calculation Date (or since the ClosingDate with respect to the initial Percentage Calculation Date) and shallcalculate and notify the Financial Advisor of the percentage of total ExportSales for the immediately preceding four consecutive full fiscal quarters thatis attributable to

 

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### Customersfrom which Customer Notice and Acknowledgements have been delivered to theFinancial Advisor (the “**Acknowledgement Percentage**”).  If the Financial Advisor determines that theAcknowledgement Percentage as of any Percentage Calculation Date is 85% orgreater, this subsection (b) shall be of no further force oreffect, the obligations of Borrower under this Section 4.03 shallbe governed solely by Section 4.03(a), and Borrower shall be allowedto withdraw all funds held in the Collection Accounts and the InvestmentAccount provided that no cash trapping is then in effect pursuant to Section 7.01(b)(i)or Section 7.01(b)(ii).  If theFinancial Advisor determines that the Acknowledgement Percentage as of anyPercentage Calculation Date is less than 85%, then the Financial Advisor willon such Percentage Calculation Date instruct the SEN Collateral Agent to trapcash in the Collection Accounts and the Investment Account in accordance with Section7.01(b)(iii) in an amount (the “**Acknowledgement Cash Trapping Amount**”)equal to that set forth on Schedule 4.03(b) opposite the percentagerange within which such Acknowledgement Percentage falls.  Borrower shall cause the AcknowledgementPercentage to be 85% on or before July 11, 2003.

###  

## Section 4.04                                FinancialAdvisor’s Access.  Borrower shall,and shall cause each of its Subsidiaries to, permit the Financial Advisor tohave reasonable access to its property, employees, books and records and allother information with respect to Borrower and its Subsidiaries as theFinancial Advisor may reasonably request. The access that Borrower and its Subsidiaries shall provide theFinancial Advisor shall be sufficient to allow the Financial Advisor to providethe Lenders with a monthly financial report and a quarterly analysis ofBorrower’s (and such Subsidiaries’) financial condition during the first yearfollowing the Closing Date and if such reports are requested, in writing, bythe Required Lenders, quarterly financial reports thereafter.  Further, the Financial Advisor’s quarterlyanalysis shall specifically determine (i) whether Borrower has compliedwith each of the Financial Covenants and (ii) whether any Prepayment Eventshall have occurred.

##  

## Section 4.05                                FinancialReporting.  Borrower shall deliverto the Financial Advisor, the Bank Holders Administrative Agent and each of theLenders, the Shared Payment and Collateral Agent and the SEN Collateral Agent:

##  

### (a)                                  ona monthly basis for the first twelve (12) months following the ClosingDate, not more than thirty (30) days after the last day of each of such twelve(12) months:

###  

#### (i)                                     asummary of sources and uses of cash for each such month in substantially theform attached hereto as Exhibit 4.05(a)(i) (which shall set forth allapplicable information in Dollars), and

####  

#### (ii)                                  amonthly report of Borrower substantially in the form attached hereto as Exhibit 4.05(a)(ii)in English (which shall set forth all applicable information in both Dollarsand Pesos);

####  

### (b)                                 ona quarterly basis for each fiscal quarter from the Closing Date to the MaturityDate, as soon as available but not more than thirty (30) days after theend of such fiscal quarter:

###  

#### (i)                                     copiesof unaudited consolidated and consolidating balance sheets of Borrower and itsSubsidiaries as at the end of such fiscal quarter and the related

 

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#### unaudited consolidated and consolidating statements ofincome and cash flows for such fiscal quarter, certified by the chief financialofficer of Borrower, which certification shall include the representation ofsuch chief financial officer that to the best of such chief financial officer’sknowledge, after diligent inquiry, the information presented in such balancesheets and other financial statements fairly and accurately represents thefinancial condition of Borrower and its Subsidiaries on a consolidated orconsolidating basis, as the case may be,

####  

#### (ii)                                  asummary of sources and uses of cash with respect to Borrower and its Subsidiariesfor such fiscal quarter,

####  

#### (iii)                               a certificate from aResponsible Officer of Borrower listing any new mining exploitation andexploration activity in which Borrower or any of its Subsidiaries has engagedin the preceding fiscal quarter, which certificate shall include a statementthat, to the best of such Responsible Officer’s knowledge, after diligentinquiry, such certificate is accurate and complete,

####  

#### (iv)                              acertificate from the chief financial officer of Borrower stating that, to thebest of such chief financial officer’s knowledge, after diligent inquiry, theaggregate monthly average deposits held by Borrower and its Subsidiaries inbanking institutions not affiliated with any Lender did not, for any monthduring the prior fiscal quarter, exceed $9 million,

####  

#### (v)                                 acertificate from the chief financial officer of Borrower that shall include:(A) the specific calculations of each of the Financial Covenants for suchfiscal quarter, (B) the basis and calculation for each of the calculationsrelating to any Prepayment Event for such fiscal quarter (includingcalculations of the quarterly Excess Cash Flow for the second and third fiscalquarters of Fiscal Year 2003, even though such calculations will not in anyevent result in an Excess Cash Flow Prepayment Event), (C) a certificationby such chief financial officer that, to the best of his knowledge, afterdiligent inquiry, each of the foregoing calculations is true and accurate,(D) a certification that, to the best of the knowledge of such chief financialofficer, after diligent inquiry, no Default or Event of Default has occurredand (E) a certification that, to the best of the knowledge of such chieffinancial officer, after diligent inquiry, the Financial Covenants werecalculated in accordance with Mexican GAAP, consistently applied,

####  

#### (vi)                              acertificate from the chief financial officer of Borrower stating, to the bestof such chief financial officer’s knowledge, after diligent inquiry, the dailyaverage price of copper, zinc and silver for such fiscal quarter (determined inaccordance with Section 8.01(b)),

####  

#### (vii)                           a certificate from the chieffinancial officer of Borrower setting forth the total amount of ExportReceivables and the total amount of sales of mining products by Borrower andits Subsidiaries during such fiscal quarter and calculating the percentage setforth in Section 5.08 in reasonable detail (which shall set forthall applicable information in both Dollars and Pesos), which certificate shallstate that the data set forth

 

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#### therein is accurate to the best of such chieffinancial officer’s knowledge, after diligent inquiry into such matters,

####  

#### (viii)                        a certificate from the chieffinancial officer of Borrower setting forth in reasonable detail the basis ofthe calculation of (A) the Intercompany Payable (but only prior to theIntercompany Payable Restructuring) and (B) the Intercompany AccountBalance as of the last day of such fiscal quarter (which shall set forth allapplicable information in both Dollars and Pesos), which certificate shallstate that the data used in such calculation is accurate to the best of suchchief financial officer’s knowledge, after diligent inquiry into such matters,

####  

#### (ix)                                acertificate of the chief financial officer of Borrower setting forth the totalamount of Capitalized Stripping and Capital Expenditures during such fiscalquarter and the basis of such calculation in reasonable detail (which shall setforth all applicable information in both Dollars and Pesos), which certificateshall state that the data used in such calculation is accurate to the best ofsuch chief financial officer’s knowledge, after diligent inquiry into suchmatters, and

####  

#### (x)                                   acertificate of the chief financial officer of Borrower setting forth (A) alist of each asset (other than real property and concessions) with anacquisition price or value greater than or equal to $100,000, and all realproperty and all concessions, in each case that were acquired by any ofBorrower and its Subsidiaries during such fiscal quarter and the correspondingpurchase prices therefor, denoting which of such assets are or are required tobe subject to the Lien under the Mexican Security Trust Agreement, and(B) if Borrower proposes to not subject certain of such assets to the Lienunder the Mexican Security Trust Agreement, the reasons therefor;

####  

### (c)                                  ona quarterly basis for each fiscal quarter from the Closing Date to the MaturityDate, as soon as available but not more than thirty (30) days after the end ofeach fiscal quarter:

###  

#### (i)                                     theunaudited consolidated quarterly financial report of GM, and

####  

#### (ii)                                  thequarterly CEO Report of GM, substantially in the form attached hereto as Exhibit4.05(c)(ii) (which shall set forth all applicable information in both Dollarsand Pesos);

####  

### (d)                                 onan annual basis from the Closing Date to the Maturity Date, as soon asavailable but not more than one hundred twenty (120) days after the end of eachfiscal year:

###  

#### (i)                                     copiesof the audited consolidated balance sheets of GM and its Subsidiaries andaudited consolidated and consolidating balance sheets of Borrower and itsSubsidiaries as at the end of such year, together with, in each case, therelated consolidated, and with respect to Borrower and its Subsidiaries only,consolidating, statements of income or operations, statements of shareholders’equity and statements of cash flows for such year, setting forth in each casein English (but denominated in both Pesos and Dollars) in comparative form thefigures for the previous fiscal year, and each accompanied by the opinions ofan internationally recognized independent public accounting firm (the “**IndependentAuditor**”), each of which opinions shall state that

 

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#### such consolidated financial statements present fairlythe financial position of GM and its Subsidiaries or Borrower and itsSubsidiaries, as applicable, for the period indicated in conformity withMexican GAAP applied on a basis consistent with prior years and shall contain areconciliation under U.S. GAAP of net income and shareholders’ equity.  Such opinion shall not be qualified orlimited because of a restricted or limited examination by the IndependentAuditor of any material portion of GM’s, Borrower’s or any of their respectiveSubsidiary’s records,

####  

#### (ii)                                  annualCEO Reports of GM under U.S. GAAP and Mexican GAAP pertaining to GM and itsSubsidiaries, or such other similar report prepared by GM, if any,

####  

#### (iii)                               a copy of the financialprojections for Borrower (and its Subsidiaries on a consolidated basis), ineach case for the period commencing with the then current fiscal year andending with fiscal year 2008 and prepared in good faith based upon reasonableassumptions, and

####  

#### (iv)                              acertificate from a Responsible Officer of Borrower stating (A) that suchaction has been taken with respect to the recording, filing, re-recording andrefiling of any Collateral Documents and any supplements thereto, including anyUCC-1 financing or UCC-3 continuation statements, as is necessary to maintain,for the 15-month period succeeding the date of such certificate, the rights andinterests of the Lenders and the Agents in and to the Shared Collateral and theSEN Collateral and the perfection of the security interests created thereby andreciting the details of such action or (B) that no such action isnecessary to maintain, for the 15-month period succeeding the date of suchcertificate, the perfection of such rights and interests and securityinterests.

####  

### (e)                                  promptly,but in any event within ten (10) Business Days after filing with the SECor a request therefor, copies of all financial statements and reports that GMsends to its public shareholders, and copies of all financial statements andregular, periodic or special reports (including Forms 20-F and 6-K) thatBorrower, GM or any Principal Subsidiary may make to, or file with, the SEC;

###  

### (f)                                    promptly,but in any event within ten (10) Business Days after a request therefor,such additional information regarding the business, financial, or corporateaffairs of Borrower or any Principal Subsidiary as may reasonably be requestedby any Lender through the Shared Payment and Collateral Agent;

###  

### (g)                                 onor before the thirtieth (30th) day following any Event of Default arisingfrom a breach of any Financial Covenant, a certificate of the chief financialofficer of Borrower setting forth the basis of the calculations of eachFinancial Covenant in reasonable detail, which certificate shall state that thedata used in such calculation is accurate to the best of such chief financialofficer’s knowledge, after diligent inquiry into such matters.  In addition, on or before suchthirtieth (30th) day, Borrower shall convene one or more meetings in NewYork City with the Lenders (or their designees) and the Financial Advisor todiscuss the relevant covenant defaults and the steps being taken to remedy suchdefaults;

 

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### (h)                                 concurrentlywith any payment made by Borrower pursuant to any Operative Document, a report inthe form of Exhibit 4.05(h) specifying, on a Lender-by-Lenderbasis, the amount paid for the account of each Lender and the amount of taxwithheld, if any, by Borrower with respect to such payment; and

###  

### (i)                                     promptlyafter Borrower has notified the Shared Payment and Collateral Agent of anyintention by Borrower to treat the Restructured Debt as being a “reportabletransaction” (within the meaning of Treasury Regulation Section 1.6011-4),a duly completed copy of IRS Form 8889 or any successor form.

###  

## Section 4.06                                CertainPost-Closing Matters.

##  

### (a)                                  IntercompanyPayable Restructuring.  Prior toAugust 30, 2003, GMM and MM shall complete the Intercompany PayableRestructuring.  Conditions precedent tothe closing of the Intercompany Payable Restructuring shall include thefollowing:  (i) such restructuring(A) shall result in potential future tax savings to Borrower,(B) shall not in any way adversely affect the interests of the Lenders and(C) shall not result in MM or GMM being in default under any ContractualObligation; (ii) execution and delivery to the Bank Holders of theoriginal New Bank Holders Notes; (iii) execution and delivery to the SENTrustee of the original New SEN Trustee Notes; (iv) delivery to the Agentsand the Lenders of (A) the Intercompany Payable Restructuring Opinions and(B) certificates of a Responsible Officer of each of MM and GMM certifyingthat all conditions precedent to and delivery requirements in connection withthe Intercompany Payable Restructuring have been satisfied; and (v) executionand delivery to the Agents and the Lenders of copies of each of the otherIntercompany Payable Restructuring Documents.

###  

### (b)                                 InsurancePolicies.  Not later thanninety (90) days after the Closing Date, Borrower shall deliver to theShared Payment and Collateral Agent a certificate of a Responsible Officer ofBorrower attaching certified copies of insurance certificates with respect toall insurance policies maintained by Borrower and each Guarantor naming theShared Mexican Trustee as an additional insured and loss payee thereunder, withany loss payable to the Shared Mexican Trustee without contribution, and theShared Payment and Collateral Agent shall notify each other Agent and eachLender of the receipt thereof.  TheShared Payment and Collateral Agent shall have no duty or responsibility totake any other action in connection with such insurance certificates orinsurance policies, or any renewal or expiration thereof.

###  

### (c)                                  TranslatedDocuments.  Borrower shall cause tobe delivered to the Shared Payment and Collateral Agent, (i) not laterthan ninety (90) days after the Closing Date, Spanish translations of allOperative Documents in the English language and English translations of allOperative Documents in the Spanish language, in each case that are listed inPart II of Schedule 2.01(x), each of which shall be prepared by acourt approved translator and approved by Mexican legal counsel for the BankHolders and for the SEN Holders and (ii) not later than ninety (90)days after request therefor, English translations of any other OperativeDocument in the Spanish language and Spanish translations of any otherOperative Document in the English language as may reasonably be requested byany Lender or any Agent, each of which shall be prepared by a court approvedtranslator and approved by Mexican legal counsel for the Bank Holders and forthe SEN Holders.  Each translation intoSpanish prepared pursuant to this

 

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### Section 4.06(c)shall be delivered together with a notarial instrument approving such sworntranslation and a *primer testimonio* thereof to the Agents.  If Borrower fails to timely deliver suchtranslations and notarial instruments as set forth above, the Shared Paymentand Collateral Agent, at the written direction of the Required Lenders, willcause such translations to be prepared and delivered at Borrower’s expense.

###  

## Section 4.07                                Notices.  Borrower and each Principal Subsidiary shallpromptly notify each Agent and each Lender:

##  

### (a)                                  ofthe occurrence of any Default or Event of Default within five (5) days ofa Responsible Officer of Borrower or such Principal Subsidiary becoming awareof such occurrence;

###  

### (b)                                 ofthe occurrence of any Prepayment Event (provided that in the case of an AssetDisposition Prepayment Event, such notice shall be given not more thanten (10) days after its occurrence);

###  

### (c)                                  ofthe issuance of equity securities by Borrower or any of its Subsidiariespursuant to a private or public offering in the Mexican, United States or othercapital markets within three (3) Business Days of such issuance and theestimated amount of net issuance proceeds to be received in connectiontherewith; and

###  

### (d)                                 ofany matter (including (i) breach or non-performance of, or any defaultunder, a Contractual Obligation of Borrower, any Principal Subsidiary or any oftheir respective Subsidiaries; or (ii) any dispute, litigation,investigation, proceeding or suspension between Borrower, any PrincipalSubsidiary or any of their respective Subsidiaries and any GovernmentalAuthority or any other Person, or any developments in respect thereof) that hasresulted or could reasonably be expected to result in a Material AdverseEffect.

###  

Each notice under this Section 4.07 shall beaccompanied by a written statement by a Responsible Officer of Borrower (i)setting forth details of the occurrence referred to therein and stating whataction Borrower, GM, the affected Principal Subsidiary or any affectedSubsidiary of GM or Borrower proposes to take with respect thereto and thetimeframes in which such actions shall be taken and (ii) describing withparticularity any and all clauses or provisions of this Agreement or otherOperative Document that have been (or foreseeably will be) breached or violatedin connection therewith.

 

## Section 4.08                                Preservationof Existence.  Except in connectionwith transactions permitted by Section 5.03 or Section 5.05, eachof Borrower and each Principal Subsidiary will:

##  

### (a)                                  preserveand maintain its existence in accordance with Applicable Law; and

###  

### (b)                                 doall other things necessary to carry out its business in a proper and efficientmanner, in each case including obtaining and maintaining all rights,franchises, permits, licenses, concessions, governmental authorizations andprivileges, except such rights, franchises, permits, licenses, concessions,governmental authorizations and privileges that are not material to either(i) the performance of its obligations under the Export Contracts or theOperative Documents to which it is a party or (ii) the conduct of thebusiness activities and operations of Borrower, each

 

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### PrincipalSubsidiary and their respective Subsidiaries taken as whole.  Each of Borrower and each Principal Subsidiarywill also use reasonable efforts, in the ordinary course of business, topreserve its business organization and goodwill, and to preserve or renew allof its registered patents, trademarks, trade names and service marks, thenon-preservation of which could reasonably be expected to have a MaterialAdverse Effect.

###  

## Section 4.09                                Maintenanceof Property.  Each of Borrower andeach Principal Subsidiary shall maintain (i) all property or assets(whether real or personal) that is used or useful in its business in goodworking order and condition, ordinary wear and tear excepted, and make allnecessary repairs thereto and renewals and replacements thereof, (ii) allmining, processing, smelting and refining operations, and its extraction anddelivery of metals  for export and otherbusiness lines and operations, and (iii) in full force and effect all ofits concession rights material to its business activities and operations andshall comply with all Applicable Laws and Contractual Obligations to which it issubject as a holder or beneficiary or user of such rights or otherwiseapplicable to the foregoing businesses, except in each case where the failureto do so could not reasonably be expected to have a Material Adverse Effect,and except as permitted by Section 5.03; provided, however,that neither Borrower nor any Principal Subsidiary shall be prevented fromdiscontinuing those operations or suspending the maintenance of thoseproperties or assets that in the reasonable judgment of Borrower or anyPrincipal Subsidiary are no longer necessary or useful in the conduct of itsrespective businesses, if such discontinuance or suspension could notreasonably be expected to result in a Material Adverse Effect or a Default orEvent of Default.  Borrower, eachPrincipal Subsidiary and each of their respective Subsidiaries shall each usethe standard of care typical in the industry in the operation and maintenanceof the facilities that it uses.

##  

## Section 4.10                                Insurance.

##  

### (a)                                  Borrowerand each Guarantor shall maintain, and Borrower shall cause each of itsSubsidiaries to maintain, with financially sound and reputable independentinsurers that are not Affiliates of either Borrower or any Guarantor, insurancewith respect to their respective properties and businesses against loss ordamage of the kinds customarily insured against by Persons engaged in the sameor similar businesses in the same jurisdiction, of such types and in suchamounts as are customarily carried under similar circumstances by such otherPersons.

###  

### (b)                                 Withoutlimiting the foregoing, but subject to commercial availability, Borrower andeach Guarantor shall continue to obtain credit insurance for their respectivecustomers consistent with their practices on the date hereof.

###  

### (c)                                  Subjectto Section 4.06(b), all insurance policies (other than credit insurancepolicies) of Borrower and each Guarantor shall be endorsed in form andsubstance acceptable to legal counsel to the Bank Holders and to the SENHolders to name the Shared Mexican Trustee as an additional insured or losspayee thereunder, with loss payable to the Shared Mexican Trustee withoutcontribution.  All such insurancepolicies and endorsements shall be fully paid for and contain customaryprovisions and expiration dates and be in a form customarily issued byinsurance companies licensed to do business in Mexico.  Each such policy shall provide that suchpolicy may not be canceled or changed except upon thirty (30) days’ priorwritten notice of intention of non-renewal, cancellation or material change tothe Shared Mexican Trustee and the

 

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### SharedPayment and Collateral Agent and that no act or thing done by Borrower or anyGuarantor shall invalidate any policy as against the Shared Mexican Trustee orthe Shared Payment and Collateral Agent. If Borrower or any Guarantor fails to maintain insurance in compliancewith this Section 4.10, the Shared Mexican Trustee or the Shared Paymentand Collateral Agent, at the written direction of the Required Lenders, mayobtain such insurance and pay the premium therefor and Borrower and eachGuarantor shall, on demand, reimburse the Shared Mexican Trustee or the SharedPayment and Collateral Agent for all premiums and expenses incurred inconnection therewith, together with interest thereon, computed at the DefaultInterest Rate.  Borrower and eachGuarantor shall assign the policies or proofs of insurance to the SharedMexican Trustee, in such manner and form as the Shared Mexican Trustee and itssuccessors and assigns may reasonably require so that they shall at all timeshave and hold the same as security for the obligations under the OperativeDocuments.  Borrower and each Guarantorshall deliver copies of all original insurance policies certified to the SharedMexican Trustee by the insurance company or authorized agent as being truecopies, together with the endorsements required hereunder.

###  

### (d)                                 Uponthe occurrence of any Casualty while any Restructured Debt remains outstanding,Borrower and each Guarantor shall cause all insurance proceeds received withrespect to such Casualty (such proceeds, “**Insurance Proceeds**”) to be deposited into abank account to be held by the Shared Mexican Trustee and subject to theMexican Security Trust Agreement (the “**Insurance Proceeds Account**”).  So long as no Event of Default under Section9.01(a), Section 9.01(i) or Section 9.01(j) has occurredand is continuing, the Shared Payment and Collateral Agent shall direct theShared Mexican Trustee to release any Insurance Proceeds held in the InsuranceProceeds Account to Borrower upon delivery of a certificate of a ResponsibleOfficer of Borrower that affirmatively states that no such Event of Default hasoccurred and is continuing and that such Insurance Proceeds shall be used torepair or replace the assets damaged or destroyed in the applicable Casualty orto purchase other income-producing fixed assets.  If the Shared Payment and Collateral Agent has received noticethat an Event of Default under Section 9.01(a), Section 9.01(i)or Section 9.01(j) has occurred and is continuing, then the SharedPayment and Collateral Agent shall direct the Shared Mexican Trustee to releaseto Borrower any Insurance Proceeds held in the Insurance Proceeds Account onlyafter its receipt of a certificate from Borrower in accordance with theprevious sentence and the prior written direction of the Super-MajorityLenders.  Within one hundredeighty (180) days of the release of any Insurance Proceeds to Borrower, Borrowershall deliver to the Shared Payment and Collateral Agent evidence reasonablysatisfactory to the Financial Advisor that Borrower or a Guarantor has eitherreplaced or repaired the assets damaged or destroyed in any applicable Casualtyor purchased other income-producing fixed assets as set forth in thecertificate related thereto.  IfBorrower fails to deliver such evidence to the Shared Payment and CollateralAgent by the end of such 180-day period, then Borrower shall return all suchInsurance Proceeds to the Insurance Proceeds Account no later thanten (10) Business Days after the end of such period and deliver notice tothe Shared Payment and Collateral Agent concurrently therewith.  The return of such Insurance Proceeds to theInsurance Proceeds Account shall be deemed to be an Asset DispositionPrepayment Event, and the Shared Payment and Collateral Agent shall direct theShared Mexican Trustee to release such funds to the Shared Payment andCollateral Agent and shall distribute such funds in accordance with Section8.02(g).

 

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## Section 4.11                                Paymentof Taxes and other Governmental Charges. Each of Borrower and each Principal Subsidiary will pay (a) allmaterial taxes, assessments and other governmental charges imposed upon it orany of its properties or assets or in respect of any of its franchises,business, revenues, income or profits before any penalty or interest accruesthereon, and (b) all lawful claims (including claims for labor, services,materials and supplies) that have become due and payable and that by law haveor might become a Lien upon any of its assets, property or revenues; provided,however, that no such charge or claim need be paid if (i) it isbeing contested in good faith in appropriate legal proceedings with respect towhich bonds have been posted as may be required by law, and if such reserves orother appropriate provision, if any, as are required by Mexican GAAP have beenmade therefor or (ii) the aggregate of all such claims against Borrowerand the Principal Subsidiaries does not exceed $15,000,000.

##  

## Section 4.12                                Compliancewith Laws; Consents.  Each ofBorrower and each Principal Subsidiary will comply with all Applicable Laws(including social security, *I.M.S.S., Infonavit, Sistema de Ahorro para el Retiro*,and labor laws) and will make and maintain in full force and effect allauthorizations, approvals, licenses, registrations and consents with anyMexican, New York State or United States Federal Governmental Authority(including those required for the execution, delivery and performance of anyOperative Document), in each case where the non-compliance or thenon-maintenance, as the case may be, with the same could, singly or in theaggregate, (i) have a Material Adverse Effect or materially and adverselyaffect the ability of any of Borrower or any Principal Subsidiary to performits obligations under the Export Contracts or the other Operative Documents towhich it is a party, or (ii) affect the validity or enforceability againstBorrower or any Principal Subsidiary of any Operative Documents.

##  

## Section 4.13                                Maintenanceof Books and Records.  Borrower andeach Guarantor shall maintain and shall cause each of their respectiveSubsidiaries to maintain proper books of record and account, in which full,true and correct entries shall be made in conformity with Mexican GAAP (or inthe case of MMI, U.S. GAAP).

##  

## Section 4.14                                EnvironmentalLaws.  Borrower and each Guarantorshall conduct its operations and keep and maintain, and Borrower shall causeeach of its Subsidiaries to conduct its operations and keep and maintain, inall material respects, its property in compliance with all Environmental Laws,and store, use, release or dispose of any hazardous substance at any propertyowned or leased by Borrower, any Guarantor, or any of Borrower’s otherSubsidiaries in compliance, in all material respects, with all EnvironmentalLaws.

##  

## Section 4.15                                Priority.  Borrower and each Guarantor will ensure thatits payment obligations under this Agreement, the Notes and other OperativeDocuments rank and will at all times rank at least *pari passu* with all otherIndebtedness of Borrower or such Guarantor.

##  

## Section 4.16                                FurtherAssurances.

##  

### (a)                                  Borrowerand each Guarantor agrees that from time to time, at its own cost and expense,it will promptly prepare, execute and deliver, and will cause to be executedand delivered, all further instruments and documents submitted to it by anyAgent (at the direction of the Required Lenders), including financing andcontinuation statements (including continuations of the Uniform Commercial Codefinancing statements filed on the Closing Date naming the

 

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### SharedPayment and Collateral Agent, the SEN Collateral Agent and the SEN Trustee, asapplicable, as the secured party), and will take or cause to be taken allfurther actions that are necessary in order to preserve, perfect and protectthe valid and perfected first and subordinated Liens on and prior securityinterests in the Shared Collateral and the SEN Collateral under, or to enableany Agent to exercise and enforce its rights and remedies under, any OperativeDocument.  If Borrower or any Guarantorshall at any time establish any additional place of business within the UnitedStates or elsewhere or change its corporate domicile, it will notify the SharedPayment and Collateral Agent and the SEN Collateral Agent, as applicable, inwriting prior to such establishment or change and will make any filings thatmay be necessary or advisable in order to preserve, perfect and protect thevalid and perfected first and subordinated Liens on and prior securityinterests in the Shared Collateral and the SEN Collateral under the OperativeDocuments.  Borrower and each Guarantorhereby authorizes the Shared Payment and Collateral Agent and the SENCollateral Agent, as applicable, to take all such further action and executeall such further documents and instruments as may be necessary or desirable inorder to create, preserve, perfect and protect the valid and perfected firstand subordinated Liens on and prior security interests in the Shared Collateraland the SEN Collateral under the Operative Documents, without the signature ofBorrower or any Guarantor to the extent permitted by Applicable Law, and theShared Payment and Collateral Agent or the SEN Collateral Agent, as applicable,shall deliver a copy of each such document or instrument to Borrower.

###  

### (b)                                 IfBorrower or any Guarantor shall at any time acquire any new assets or realproperty in Mexico that are or are required to be subject to the Lien createdunder the Mexican Security Trust Agreement, then Borrower and each Guarantoragrees to, at its own cost and expense, notify the Shared Payment andCollateral Agent as required by Section 4.05(b)(x) and take suchaction as is required under the Mexican Security Trust Agreement in order topreserve, perfect and protect the valid and perfected first Lien on and priorsecurity interest in each such asset or real property, except with respect topriority of security interests in assets or real property upon which anyPermitted Lien of a type described in Section 5.01(c) or Section5.01(e) has been placed at or prior to the time of the acquisitionthereof.  Each of Borrower and eachGuarantor hereby authorizes the Shared Mexican Trustee to take all such furtheraction and execute all such further documents and instruments as may benecessary or desirable in order to create, preserve, perfect and protect thevalid and perfected first Lien on and prior security interest or title in thenew assets and real property constituting Shared Collateral, without thesignature of Borrower or any Guarantor to the extent permitted by ApplicableLaw, and the Shared Mexican Trustee shall deliver a copy of each such documentor instrument to GMM.

###  

## Section 4.17                                Instruments.  If any amount payable under or in connectionwith any of the Shared Collateral or SEN Collateral shall be or becomeevidenced by any promissory note or other instrument, Borrower or any Guarantorshall immediately assign such note or instrument to the Shared Payment andCollateral Agent or SEN Collateral Agent, as applicable (or cause the same tobe done), and any such note or instrument shall be duly endorsed to the SharedPayment and Collateral Agent or SEN Collateral Agent, as applicable.  In no event shall the Shared Payment andCollateral Agent or the SEN Collateral Agent be under any duty to examine orconfirm the effectiveness of any such note or instrument or the endorsementthereon.

 

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## Section 4.18                                Compliancewith Other Agreements.  Each ofBorrower and each Guarantor will duly and punctually perform and observe, inall material respects, all of its agreements and covenants in each of theOperative Documents to which it is a party.

##  

## Section 4.19                                Designationswith Respect to Principal Subsidiaries.

##  

On the date of each delivery required to be madepursuant to Section 4.05(b)(i), Borrower shall notify the Agents of anyexisting Subsidiary or newly acquired or formed Subsidiary, not previouslyidentified as a Principal Subsidiary, meeting the definition of a PrincipalSubsidiary.  Borrower and each otherPrincipal Subsidiary shall cause any such Subsidiary so identified as aPrincipal Subsidiary to, within five (5) Business Days of suchnotification, execute and deliver to the Agents (i) a joinder to thisAgreement as set forth in Section 4.19(b), (ii) a joinder to theBank Holders Restructured Loan Agreement as set forth therein, (iii) anaval to each Bank Holders Note, (iv) a joinder to the Affiliate Guarantyas set forth therein, (v) a joinder to the U.S. Security Agreement as setforth therein, (vi) a joinder to the SEN Security Agreement as set forththerein, (vii) a joinder to the Mexican Security Trust Agreement (includingall documents necessary to transfer the ownership interest of its assets andreal property to the Shared Mexican Trustee in accordance with the MexicanSecurity Trust Agreement) as set forth therein, (viii) such otherdocuments, certificates and financing statements as the SEN Collateral Agent(at the written direction of the Required SEN Holders) may request in order tocreate and perfect its Lien in or ownership right to any SEN Collateral ownedor held by such Principal Subsidiary and (ix) such other documents,certificates and financing statements as the Shared Payment and CollateralAgent (at the written direction of the Required Lenders) or the Shared MexicanTrustee may request in order to create and perfect its Lien in or ownershipright to any Shared Collateral owned or held by such Principal Subsidiary.  In addition, Borrower and each suchSubsidiary shall cause to be delivered favorable opinions of legal counsel toBorrower and such Subsidiary satisfactory to the Required Lenders, as tomatters as the Required Lenders may reasonably request.

 

### (a)                                  AnySubsidiary of Borrower identified as a Principal Subsidiary pursuant to Section4.19(a) shall become a party to this Agreement by executing and deliveringto the Shared Payment and Collateral Agent a signature page to each of thisAgreement and the other Operative Documents required by Section 4.19(a)identifying such Subsidiary as a Principal Subsidiary, which signature pageseach shall be dated its date of execution, and Borrower and such Subsidiaryshall execute and deliver, or cause to be executed and delivered, all suchother documentation that would have been required to be executed and deliveredpursuant to Section 2.01 and Section 14.22 if such Subsidiary hadbeen a Principal Subsidiary as of the Closing Date, each subject tosatisfaction of legal counsel to the Bank Holders and to the SEN Holders.  Each Subsidiary that executes and deliversthe items set forth in this Section 4.19 by such execution and delivery(i) shall be deemed to be a Principal Subsidiary for all purposes of thisAgreement and the other Operative Documents as of the date of such Subsidiary’ssignature pages to this Agreement and such other Operative Documents,(ii) shall be bound by all of the terms and provisions of this Agreementand the other Operative Documents, and (iii) represents and warrants thatall of the representations and warranties contained in Article IIIand elsewhere in this Agreement and the other Operative Documents, as appliedto such Subsidiary as a Principal Subsidiary, are, unless otherwise notified tothe Shared Payment and Collateral Agent, the SEN

 

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### CollateralAgent and the Bank Holders Administrative Agent, true and correct on and as ofthe date of the Subsidiary’s signature pages to this Agreement and the otherOperative Documents.

###  

## Section 4.20                                Maintenanceof Accounts.  Borrower and theGuarantors shall hold all Primary Accounts with one or more of the Lenders, orone or more participants in the loans held thereby whose participations havebeen consented to by Borrower (each such participant, a “**Specified Participant**”), andthe Primary Accounts shall be subject to set-off and set-off sharing for thebenefit of all of the holders of the Restructured Debt in the same manner asproceeds of the General Security. Borrower and the Guarantors shall hold all Collection Accounts, the SENInterest Reserve Account and the Investment Account with the SEN CollateralAgent. Notwithstanding the foregoing, Borrower and the Guarantors shall havethe right to maintain bank accounts, other than Primary Accounts, outside theUnited States at other banking institutions to the extent that the aggregateaverage monthly balance of such deposits does not exceed nine (9) millionDollars for any calendar month.  Exceptfor the Primary Accounts, all proceeds of Shared Collateral will be held by theShared Payment and Collateral Agent in an account or trust located in theUnited States and subject to and governed by the laws of the UnitedStates.  Except for the CollectionAccounts and subject to the terms and provisions of the SEN Security Agreement,all proceeds of SEN Collateral will be held by the SEN Collateral Agent in anaccount or trust located in the United States and subject to and governed bythe laws of the United States.

##  

## Section 4.21                                NewBank Accounts.  If Borrower or anyGuarantor opens a deposit account or a securities account (as such terms aredefined in the Uniform Commercial Code) in the United States other than thoseaccounts listed on Schedule 3.27, Borrower shall cause any such accountto be pledged to the Shared Payment and Collateral Agent pursuant to the U.S.Security Agreement, or if such account is a new Collection Account or otherwisesubject to the SEN Security Agreement, to the SEN Collateral Agent pursuant tothe SEN Security Agreement.

##  

## Section 4.22                                RemainingCollateral.  Not later than the timeperiods set forth in Clause Seventh of the Mexican Security TrustAgreement, Borrower shall cause title to all real property owned by Borrowerand each Principal Subsidiary as of the Closing Date (and set forth in Schedule 2to the Mexican Security Trust Agreement) to be transferred to the SharedMexican Trustee under the Mexican Security Trust Agreement.

##  

# **ARTICLE V**NEGATIVE COVENANTS

# ** **

Each of MM (on behalf of itself, GMM and eachPrincipal Subsidiary, but only to the extent applicable), GMM (on behalf ofitself and each Principal Subsidiary) and each Principal Subsidiary (on behalfof itself and its respective Subsidiaries, where applicable) agrees that, untilthe Restructured Debt has been paid in full, it shall comply with the followingnegative covenants (each, a “**Negative Covenant**”) unless waived by theSuper-Majority Lenders in writing.

 

## Section 5.01                                Limitationon Liens.  Neither Borrower nor anyGuarantor shall, nor shall it permit any of its respective Subsidiaries to,directly or indirectly, make, create, incur, assume or suffer to exist anyLien, upon or with respect to, any part of their property or assets, including,

 

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## but notlimited to, the SEN Collateral and the Shared Collateral, whether now owned orhereafter acquired, other than the following (“**Permitted Liens**”):

##  

### (a)                                  Liensin favor of the Collateral Agents under the Operative Documents securing theRestructured Debt;

###  

### (b)                                 Lienssecuring bonds issued under the Yankee Bond Indenture so long as such Liensarise only pursuant to the “equal and ratable” clause of the Yankee BondIndenture, encumber only the General Security, and do not have priority overthe Liens in favor of any Agent;

###  

### (c)                                  anyLien securing any Indebtedness described in clause (b) of thedefinition of Permitted Indebtedness covering solely the assets acquired inconnection with the Indebtedness described in such clause (b);

###  

### (d)                                 Liensfor taxes, assessments, governmental charges or levies, or statutory Liens forsums not yet due or being contested in good faith by appropriate proceedingswith respect to which bonds shall have been posted as required by ApplicableLaw so long as such proceedings do not involve any material danger of the sale,forfeiture or loss of any material asset, and the Person contesting such Liensshall maintain, in accordance with Mexican GAAP, appropriate reserves therefor;

###  

### (e)                                  anyLien on any property or asset of any entity that becomes a Principal Subsidiaryor any of its Subsidiaries, or on any property or asset acquired by Borrower, aPrincipal Subsidiary or any of their respective Subsidiaries, that exists priorto such entity becoming a Subsidiary or such acquisition and that was notcreated in contemplation thereof, so long as such Lien does not extend to anyother or additional property or asset;

###  

### (f)                                    anyreplacement, renewal or extension of the foregoing Liens, so long as (i) theprincipal amount secured by such Liens is not increased over the amountoutstanding prior to such replacement, renewal or extension and (ii) such Liensdo not extend to any other or additional property or assets;

###  

### (g)                                 anyLien incurred in the ordinary course of business in connection with socialsecurity, workers’ compensation, unemployment insurance and similar types oflegal requirements;

###  

### (h)                                 anystatutory Lien of a landlord, carrier, warehouseman, mechanic or materialmanincurred in the ordinary course of business for:  (i) a sum not yet due or (ii) a sum the payment ofwhich is being contested in good faith by appropriate proceedings so long assuch proceedings do not involve any material danger of the sale, forfeiture orloss of any material asset and the Person contesting such Lien shall maintain,in accordance with Mexican GAAP, appropriate reserves therefor;

###  

### (i)                                     depositsto secure the performance of bids, trade contracts, leases (other than CapitalLeases), statutory obligations, surety and appeal bonds, performance bonds andother obligations of a similar nature incurred in the ordinary course ofbusiness on an arms length basis;

 

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### (j)                                     anyjudgment Lien, unless (i) the judgment it secures shall not have beendischarged within sixty (60) days after the entry thereof or(ii) execution of the judgment it secures shall not have been dischargedwithin sixty (60) days after the expiration of any stay thereof pendingappeal; or

###  

### (k)                                  anyintercompany lease entered into in the ordinary course of business betweenBorrower and any of its Subsidiaries or between any of Borrower’s Subsidiaries;

###  

provided that notwithstanding theforegoing, in no event shall Borrower or any Guarantor, nor shall Borrower orany Guarantor permit any of its Subsidiaries to, directly or indirectly, make,create, incur, assume or suffer to exist any Lien upon or with respect to anyReceivables (other than the Lien of the SEN Collateral Agent on the Export Receivablesbut only to the extent permitted by the SEN Security Agreement as in effect onthe date hereof) or on the Capital Stock of any Principal Subsidiary.

 

## Section 5.02                                ProhibitionAgainst Indebtedness.  NeitherBorrower nor any Guarantor shall, nor shall it permit any of its respectiveSubsidiaries to, incur or permit to exist any Indebtedness other than PermittedIndebtedness; provided, however, that with respect toIndebtedness incurred by Borrower, any Principal Subsidiary or any of theirrespective Subsidiaries pursuant to clauses (b) and (d) ofthe definition of Permitted Indebtedness, such Indebtedness shall not exceed$30,000,000 in the aggregate at any time.

##  

## Section 5.03                                AssetDisposition.  Neither Borrower norany Guarantor nor any of their respective Subsidiaries shall, either in asingle transaction or a series of related transactions, make or commit to makeany Asset Disposition; provided, however, that an AssetDisposition shall be permitted if no Default or Event of Default has occurredand is continuing and if such Asset Disposition (i) is in the ordinarycourse of business of such Person consistent with normal industry practice or(ii) is of property that is no longer used or useful in such Person’sbusiness and the disposition of such property will not result in any materialreduction in metals production capacity taken as a whole; and provided, further,that whether or not a Default or Event of Default has occurred and is thencontinuing, permitted Asset Dispositions shall include the sale of ScheduledAssets; and provided, further, that in no event shall theBorrower or any Subsidiary of Borrower make or commit to make any sale, pledge,assignment or other disposition of any Receivable (other than (A) theExport Receivables pledged as SEN Collateral under the Operative Documents and(B) Receivables assigned to insurance companies under credit insurancepolicies in the event of non-payment of such Receivables in order to obtainpayment of such Receivables pursuant to such policies).

##  

## Section 5.04                                Assignmentsof Collateral.  Except to the extentpermitted by Section 5.03, neither Borrower nor any of itsSubsidiaries will assign, sell, transfer or otherwise dispose of any of itsrights, title or interest in or to any SEN Collateral or Shared Collateral.

##  

## Section 5.05                                Consolidations,Mergers, Etc.  Neither MM nor any ofits Subsidiaries will, either in a single transaction or through a series ofrelated transactions, merge, consolidate or combine into or with any otherPerson other than (a) the Intercompany Payable Restructuring consummatedin accordance with Section 4.06(a), or (b) any merger,consolidation, or combination by one or more Subsidiaries of Borrower with orinto one or more other

 

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## Subsidiariesof Borrower; provided that if any such Subsidiary is a Guarantor, a Guarantorshall be the survivor thereof, or (c) any merger, consolidation, orcombination by one or more Subsidiaries of Borrower with or into Borrower, solong as Borrower is the survivor thereof. In addition, Borrower and each subject Subsidiary shall cause to bedelivered favorable opinions of legal counsel to Borrower and such Subsidiarysatisfactory to the Required Lenders, as to matters as the Required Lenders mayreasonably request with respect to any transaction pursuant to subsection (b)or (c) of this Section 5.05.

##  

## Section 5.06                                Preservationof Collateral.  Without the priorwritten consent of the Super-Majority Lenders, neither Borrower nor anyPrincipal Subsidiary will take or omit to take any action with respect tomining product related sales, mining product related receivables, miningproduct related contracts, the SEN Collateral or the Shared Collateral that isoutside the scope of normal commercial practices in the markets in whichBorrower and the Principal Subsidiaries operate, if such action or omissioncould reasonably be expected to materially impair or materially adverselyaffect the value of the SEN Collateral or the Shared Collateral.  Without limiting the generality of theforegoing, neither Borrower nor any Principal Subsidiary will enter into,either in a single transaction or through a series of related transactions, anyarrangements or engage in any course of conduct with any Person resident in or organizedunder the laws of Mexico (a “**Conduit**”), pursuant to which Borrower orsuch Principal Subsidiary would, directly or indirectly, sell metals productsto such Conduit under circumstances where the acquisition of metals products byall Conduits would result in (and Borrower or a Principal Subsidiary has reasonto believe that such sales would be likely to result in) sales of metalsproducts without material further processing to Persons located outside ofMexico (“**AvoidedSales**”) and the aggregate amount of Avoided Sales in any fiscalquarter would exceed 5% of total sales of Borrower and its PrincipalSubsidiaries for such fiscal quarter.

##  

## Section 5.07                                NewMining Concessions.  All Mexicanmining concessions, exploratory rights, exploration rights, exploitation rightsand other such rights held, received or otherwise controlled by or benefitingGM or any of its Subsidiaries shall be so held, received, or controlled byBorrower or one of its Subsidiaries and will not be sold, assigned or otherwisetransferred or held by any other Person, except for transfers of concessionsmade to the Shared Mexican Trustee under the terms of the Mexican SecurityTrust Agreement; provided that any such exploration rights may betransferred if pursuant to a transaction on an arm’s-length basis.

##  

## Section 5.08                                MinimumExport Receivables.

 

### (a)                                  Onthe last day of the first four full calendar months following the Closing Date,the aggregate amount of total collections on export sales of mining products byBorrower and its Subsidiaries for the previous twelve consecutive months as ofeach such date, shall not be less than $210,000,000, and the percentage of theaggregate amount of total collections on export sales of mining products byBorrower and its Subsidiaries for such period divided by the aggregate amountof total collections on sales of mining products by Borrower and itsSubsidiaries for such period shall not be less than 30%;

###  

### (b)                                 Onthe last day of the fifth through eighth full calendar months following theClosing Date, the aggregate amount of total collections on export sales ofmining products by Borrower and its Subsidiaries for the previous twelveconsecutive months as of each such date,

 

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### shallnot be less than $220,000,000, and the percentage of the aggregate amount oftotal collections on export sales of mining products by Borrower and itsSubsidiaries for such period divided by the aggregate amount of totalcollections on sales of mining products by Borrower and its Subsidiaries forsuch period shall not be less than 30%; and

###  

### (c)                                  Onthe last day of each calendar month thereafter, the aggregate amount of totalcollections on export sales of mining products by Borrower and its Subsidiariesfor the previous twelve consecutive months as of each such date shall not beless than $240,000,000, and the percentage of the aggregate amount of totalcollections on export sales of mining products by Borrower and its Subsidiariesfor such period divided by the aggregate amount of total collections on salesof mining products by Borrower and its Subsidiaries for such period shall notbe less than 30%.

###  

## Section 5.09                                Useof Cash; Transactions with Affiliates. Neither GMM, MM nor any of their respective Subsidiaries shall use itscash in any manner other than (a) in the ordinary course of business(excluding the acquisition of or investment in any material new lines ofbusiness or new lines of operations other than new mining exploration andexploitation activity as set forth in the Updated Projections, subject to thelimitations set forth in Section 5.11), and (b) to make payments onPermitted Indebtedness (including the Restructured Debt).  Borrower shall not make, and shall not permitany of its Subsidiaries to make, on Borrower’s behalf, any payment (x) toany Person that is outside the ordinary course of business or (y) to anyAffiliate (other than Borrower or any Principal Subsidiary) for services oroutstanding payables, subject to Section 5.10 (other than any suchpayments that are made in the ordinary course of business, on an arms-lengthbasis (including standard and customary trade terms), and for reasonableexchange of value for the purposes described on Schedule 5.09); providedthat the fact that any such payment may be overdue shall not deem such paymentto be outside the ordinary course of business.

##  

## Section 5.10                                MaximumReduction in Intercompany Account Balance. On the Closing Date, Borrower shall calculate the net total IntercompanyAccount Balance, in the manner set forth on Exhibit 5.10 (such amount being the“**Base NetIntercompany Account Balance Total**”).  Borrower shall not permit the net outstanding IntercompanyAccount Balance to decline below 80% of the Base Net Intercompany AccountBalance Total so long as any portion of the Restructured Debt remainsoutstanding.

##  

## Section 5.11                                MaximumAllowable Capital Expenditures and Capitalized Stripping.  For any fiscal quarter, Borrower shall notpermit either the total amount of Capital Expenditures or the total amount ofCapitalized Stripping for such quarter to exceed 125% of the amounts scheduledin Schedule 5.11 for that period. In addition, for any fiscal quarter beginning with the last fiscalquarter of 2003, Borrower shall not permit either the cumulative amount of CapitalExpenditures or the cumulative amount of Capitalized Stripping incurred for theperiod from the Closing Date through the end of such period to exceed 110% ofthe cumulative amount scheduled in Schedule 5.11 through the sameperiod.

##  

## Section 5.12                                FinancialCovenant Default Restrictions. Notwithstanding anything to the contrary in Section 5.01, Section5.02 or Section 5.10, at all times during the ninety (90) dayperiod following a determination that a Default under Section 9.01(f)has occurred, Borrower

 

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## shallnot, and shall not permit any of its Subsidiaries to, (a) incur any newIndebtedness or Liens, or (b) reduce any portion of the IntercompanyAccount Balance as of the date of such Default.

##  

## Section 5.13                                Changein Business.  Borrower shall not,nor shall it suffer or permit any of its Principal Subsidiaries to, engage inany material line of business substantially different from those lines ofbusiness carried on by Borrower and its Principal Subsidiaries on the datehereof and any business related or ancillary thereto.

##  

## Section 5.14                                AccountingChanges.  Neither Borrower nor anyGuarantor shall, nor shall Borrower or any Guarantor suffer or permit any ofits Subsidiaries to, make any significant change in accounting treatment orreporting practices, except as permitted by Mexican GAAP and set forth in thenotes to its financial statements, or change the fiscal year of Borrower, suchGuarantor or any such Subsidiary unless such change shall be deemed by Borroweror such Guarantor to be materially advantageous to such entity and not likelyto result in a Material Adverse Effect.

##  

## Section 5.15                                Limitationon Certain Restrictions Affecting Subsidiaries.  Neither Borrower nor any of its Subsidiaries shall, nor shall anysuch Person permit any of its Subsidiaries to, directly or indirectly, createor enter into or otherwise cause or permit to exist or become effective anyagreement with any Person that would cause any consensual encumbrance orrestriction on the ability of such Subsidiary to (i) pay dividends or makeany other distributions on its Capital Stock owned by Borrower or any suchSubsidiary, (ii) pay or repay any Indebtedness owed to Borrower or anysuch Subsidiary, (iii) make loans or advances to Borrower or any suchSubsidiary, (iv) transfer any of its properties to Borrower or any suchSubsidiary or (v) guarantee any Indebtedness of Borrower or any such Subsidiaryexcept, in each case, for such encumbrances or restrictions existing under orby reason of (1) Applicable Law, (2) this Agreement or any otherOperative Document, (3) customary nonassignment provisions of any leasegoverning a leasehold interest of Borrower or any such Subsidiary and(4) any instrument governing Indebtedness of a Person acquired by Borroweror any Guarantor at the time of such acquisition, which encumbrance orrestriction is not applicable to any Person, or the properties of any Person,other than the Person so acquired.

##  

## Section 5.16                                RestrictedPayments.  Neither Borrower nor anyGuarantor nor any of their respective Subsidiaries shall declare or make aRestricted Payment, or make any deposit for any Restricted Payment, other thanRestricted Payments made by Principal Subsidiaries to Borrower or any otherPrincipal Subsidiary.

##  

## Section 5.17                                Insuranceand Reimbursement Agreement. Borrower shall not amend, modify, waive or replace any insurance andreimbursement agreement (or any similar agreement) in favor of any Pass-throughSurety if such amendment, modification, waiver or replacement would make suchagreement more favorable to such Pass-through Surety or less favorable toBorrower than any such agreement that is in effect on the Closing Date.

 

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# **ARTICLE VI**FINANCIAL COVENANTS

 

Each of MM (on behalf of itself, GMM and eachPrincipal Subsidiary, but only to the extent applicable), GMM (on behalf ofitself and each Principal Subsidiary) and each Principal Subsidiary (on behalfof itself and its respective Subsidiaries, where applicable), agrees that,until the Restructured Debt has been paid in full, it shall comply with thefollowing financial covenants (each, a “**Financial Covenant**”), unless waived by theSuper-Majority Lenders in writing.  Thefinancial statement example set forth in Exhibit 6 shall be applicableto the calculations set forth in each of Exhibits 6.02, 6.03 and 6.04.

 

## Section 6.01                                NetWorking Capital.  Borrower shall notpermit the Net Working Capital at the end of each fiscal quarter, beginningwith the first full fiscal quarter occurring after the Closing Date, to be lessthan (a) $170 million, with respect to any fiscal quarter occurring infiscal year 2003, (b) $180 million, with respect to any fiscal quarteroccurring in fiscal year 2004 and (c) $190 million, with respect to anyfiscal quarter occurring in fiscal year 2005 and in each fiscal yearthereafter.  Borrower shall calculateNet Working Capital, for purposes of determining compliance with this FinancialCovenant, at the end of each fiscal quarter, beginning with the first fullfiscal quarter occurring after the Closing Date.

 

A sample calculation ofNet Working Capital is attached hereto as Exhibit 6.01.

 

## Section 6.02                                InterestCoverage Ratio.  Borrower shall notpermit the Interest Coverage Ratio (as defined below), at the end of eachfiscal quarter beginning with the fiscal quarter ending March 31, 2004,to be lower than the ratio shown in the table below opposite the year in whichsuch fiscal quarter occurred:

 

| **For calculations during:** |   | **Interest Coverage  Ratio:** |
|------------------------------|--------|-------------------------------|
| 2004                         |   | 0.6                           |
| 2005                         |   | 1.5                           |
| 2006                         |   | 1.8                           |

 

Borrower shall calculate the Interest Coverage Ratio,for purposes of determining compliance with this Financial Covenant, at the endof each fiscal quarter ending on or after March 31, 2004.

 

The “**Interest Coverage Ratio**”, as of the end ofany fiscal quarter, will be calculated by dividing (a) the EBITDA for thepreceding four fiscal quarters, less the sum of the Scheduled CapitalExpenditures and Scheduled Capitalized Stripping for the four fiscal quartersnext succeeding such date, by (b) the total scheduled Cash Interestpayments (assuming that the LIBOR Rate as of such date will remain unchangedduring the four fiscal quarters next succeeding such date) for the four fiscalquarters next succeeding such date.

 

A sample calculation of the Interest Coverage Ratio isattached hereto as Exhibit 6.02.

 

## Section 6.03                                DebtCoverage Ratio.  Borrower shall notpermit the Debt Coverage Ratio (as defined below), at the end of each fiscalquarter beginning with the fiscal quarter ending

 

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## March31, 2004, to be lower than the ratio shown in the table below opposite the yearin which such fiscal quarter occurred:

 

| **For calculations during:** |   | **Debt  Coverage Ratio:** |
|------------------------------|--------|---------------------------|
| 2004                         |   | 0.4                       |
| 2005                         |   | 0.7                       |
| 2006                         |   | 0.8                       |

 

Borrower shall calculate the Debt Coverage Ratio, forpurposes of determining compliance with this Financial Covenant, at the end ofeach fiscal quarter ending on or after March 31, 2004.

 

The “**Debt Coverage Ratio**”, as of the end of anyfiscal quarter, will be calculated by dividing (a) EBITDA for thepreceding four fiscal quarters, less the sum of the Scheduled CapitalExpenditures and Scheduled Capitalized Stripping for the four fiscal quartersnext succeeding such date, by (b) the sum of the scheduled principalamortization under the Operative Documents (excluding any scheduledamortization of the Tranche B Principal Amount and any GM Notes thenoutstanding) and the total scheduled Cash Interest payments (assuming that theLIBOR Rate as of such date will remain unchanged during the four fiscalquarters next succeeding such date) for the four fiscal quarters nextsucceeding such date.

 

A sample calculation of the Debt Coverage Ratio isattached hereto as Exhibit 6.03.

 

## Section 6.04                                TotalDebt to Net Capitalization Ratio. Borrower shall not permit the Total Debt to Net Capitalization Ratio, atthe end of each fiscal quarter beginning with the fiscal quarter endingMarch 31, 2004, to be greater than the ratio shown in the table below oppositethe year in which such fiscal quarter occurred:

 

| **For calculations during:** |   | **Total Debt  to Net  Capitalization Ratio:** |
|------------------------------|--------|-----------------------------------------------|
| 2004                         |   | 2.3                                           |
| 2005                         |   | 2.6                                           |
| 2006                         |   | 2.6                                           |

 

Borrower shall calculate the Total Debt to NetCapitalization Ratio, for purposes of determining compliance with thisFinancial Covenant, at the end of each fiscal quarter ending on or afterMarch 31, 2004.

 

A sample calculation of the Total Debt to NetCapitalization Ratio is attached hereto as Exhibit 6.04.

 

# **ARTICLE VII**COLLATERAL ARRANGEMENTS

 

## Section 7.01                                CollateralArrangements.  Borrower, eachGuarantor, the SEN Trustee, each SEN Holder and each Bank Holder acknowledgesand agrees as follows:

 

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### (a)                                  SENCollateral.  So long as anyRestructured Debt held by any SEN Holder remains outstanding:

###  

#### (i)                                     theExport Receivables Collection Arrangement and the SEN Cash Trapping Arrangementare security provisions that are solely for the benefit of the SEN Trustee andthe SEN Holders;

####  

#### (ii)                                  allcash that is trapped in each Collection Account and the Investment Accountpursuant to the Export Receivables Collection Arrangement or the SEN CashTrapping Arrangement or is held in the SEN Interest Reserve Account (all suchcash being part of the SEN Collateral) is collateral solely for the benefit ofthe SEN Trustee and the SEN Holders; and

####  

#### (iii)                               the Bank Holders have noindependent right, title or interest at law or in equity with respect to theSEN Collateral.

####  

### (b)                                 SENCash Trapping Arrangement. Borrower, each Guarantor, the SEN Trustee, each SEN Holder and each BankHolder hereby acknowledges and agrees that clauses (i) through (iii)below (the “**SEN Cash Trapping Arrangement**”) shall be applicable asfollows:

###  

#### (i)                                     uponthe SEN Collateral Agent’s receipt from any other Agent, the Required SENHolders, Borrower or any Guarantor of written notice of the occurrence of anEvent of Default as described in Section 9.01(a), Section 9.01(i)or Section 9.01(j), the SEN Collateral Agent shall, without notice toBorrower or any other Person and without any further action being taken on thepart of the SEN Trustee or the SEN Holders, cease to allow withdrawal byBorrower or any of its Affiliates of cash deposited in any Collection Accountor the Investment Account as is described in Article 3 of the SENSecurity Agreement, which action by the SEN Collateral Agent shall continueuntil the SEN Collateral Agent receives written direction from the Required SENHolders instructing the SEN Collateral Agent to allow withdrawal by Borrower orany of its Affiliates of cash deposited in any Collection Account or theInvestment Account pursuant to the terms of the SEN Security Agreement;

####  

#### (ii)                                  uponthe occurrence of an Event of Default other than an Event of Default listed in Section7.01(b)(i) above, the SEN Collateral Agent shall, upon receipt of writtendirection signed by the Required SEN Holders, cease to allow withdrawal byBorrower or any of its Affiliates of cash deposited in any Collection Accountor the Investment Account as is described in Article 3 of the SENSecurity Agreement, which action by the SEN Collateral Agent shall continueuntil the SEN Collateral Agent receives written direction from the Required SENHolders instructing the SEN Collateral Agent to allow withdrawal by Borrower orany of its Affiliates of cash deposited in any Collection Account or theInvestment Account pursuant to the terms of the SEN Security Agreement; and

####  

#### (iii)                               upon receipt of writtendirection from the Financial Advisor that the Acknowledgement Percentage as ofany Percentage Calculation Date is less than 85% and that withdrawals of cashdeposited in any Collection Account and the Investment

 

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#### Account should be limited in accordance with Section 4.03(b),the SEN Collateral Agent shall cease to allow withdrawal by Borrower or any ofits Affiliates of cash deposited in any Collection Account or the InvestmentAccount as is described in Article 3 of the SEN Security Agreement up toan amount equal to the Acknowledgement Cash Trapping Amount set forth in suchwritten direction, which action by the SEN Collateral Agent shall continueuntil the SEN Collateral Agent receives written direction from the FinancialAdvisor either (A) instructing the SEN Collateral Agent to limit suchwithdrawals of cash in a different Acknowledgement Cash Trapping Amount inaccordance with Section 4.03(b), whereby the SEN Collateral Agentwould either (1) if such different Acknowledgement Cash Trapping Amount isgreater than the current Acknowledgement Cash Trapping Amount, limit such cashwithdrawals in an amount equal to such greater Acknowledgement Cash TrappingAmount or (2) if such different Acknowledgement Cash Trapping Amount isless than the current Acknowledgement Cash Trapping Amount, release cash fromthe Investment Account and limit such cash withdrawals in an amount equal tosuch lesser Acknowledgement Cash Trapping Amount, or (B) instructing theSEN Collateral Agent that the Acknowledgement Percentage as of a PercentageCalculation Date is 85% or greater and to allow withdrawal by Borrower or anyof its Affiliates of cash deposited in any Collection Account or the InvestmentAccount pursuant to the terms of the SEN Security Agreement; provided that ifeither Section 7.01(b)(i) or Section 7.01(b)(ii) is applicable atany time, then any amounts then subject to this Section 7.01(b)(iii)shall be subject to such other applicable clause.

####  

### (c)                                  SharedCollateral.  Each of the partieshereto agrees that the Affiliate Guaranty, the General Security and any futureassets that become part of the General Security shall constitute the “**SharedCollateral**”; provided, however, that so long as anyRestructured Debt held by any SEN Holder remains outstanding, none of thecollateral that is SEN Collateral shall be considered Shared Collateral.

###  

### (d)                                 Distributionof Proceeds from SEN Collateral. Following the occurrence of either:

###  

#### (i)                                     thetrapping of cash deposited in any Collection Account or the Investment Account,as described in Section 7.01(b)(i) or Section 7.01(b)(ii); or

####  

#### (ii)                                  theliquidation of any portion of the SEN Collateral,

####  

the SEN Collateral Agent shall, upon being instructedto do so in writing by the Required SEN Holders, distribute any portion offunds then held in any Collection Account or the Investment Account in themanner described in Section 8.02(e). The application of funds applied to reduce the claims of the SEN Trusteeand the SEN Holders shall not reduce the repayment priority provided to the SENContribution under Section 8.02(f) until, and only to the extent that,the application of such funds reduces the amount of the Restructured Debtcontained in Tranche A Restructured Debt and Tranche B Restructured Debt(including PIK Interest) held by the SEN Holders below the SEN Contribution,whereupon such repayment priority will be reduced on a Dollar for Dollar basis.

 

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### (e)                                  Distributionof Proceeds from Shared Collateral. Upon the enforcement of remedies following an Event of Default, to theextent possible, the Shared Collateral shall be liquidated and the proceedsfrom such liquidation shall be distributed in the manner described in(i) to the extent that the trustee under the Yankee Bond Indenture has anequal and ratable lien in any such Shared Collateral, Section 8.02(f)(ii),and (ii) in the case of any other such Shared Collateral, Section 8.02(f)(iii).

###  

### (f)                                    SENMake-Whole Amount.  Upon theoccurrence of: (i) an Event of Default under Section 9.01(i) or Section9.01(j), or (ii) the acceleration of the maturity of the SEN HoldersRestructured Principal, or (iii) the disbursement by the SEN CollateralAgent of funds trapped in the Collection Accounts or the Investment Accountpursuant to the SEN Cash Trapping Arrangement to make a prepayment of the SENHolders Restructured Principal in accordance with the terms of Section 8.02(e)(in excess of any scheduled payment of SEN Holders Restructured Principal, thepayment of Cash Interest thereon or the payment of fees or expenses), Borrowershall pay to the holders of SEN Series C Restructured Principal and the holdersof SEN Series D Restructured Principal a SEN Make-Whole Amount.  Any SEN Make-Whole Amount payable pursuantto clause (i) or (ii) above shall be calculated as set forth in Exhibit7.01 and Exhibit 7.01(f)(i), and any SEN Make-Whole Amount payablepursuant to clause (iii) above shall be calculated as set forth in Exhibit7.01 and Exhibit 7.01(f)(iii); provided that any SENMake-Whole Amount payable as a result of the event set forth in clause (iii)above shall be limited to the portion of such SEN Make-Whole Amount allocableto the Restructured Principal being prepaid; it being understood, for purposesof clarification, that no SEN Make-Whole Amount shall be paid to such holdersin connection with the exercise of remedies against the SEN Collateral solelyfor the purpose of paying scheduled principal and interest.  Any SEN Make-Whole Amount due in accordancewith this Section 7.01(f) shall be Tranche C Restructured Debt and,notwithstanding the foregoing, shall be repaid in accordance with the terms of Section8.02 and Section 8.03.

###  

### (g)                                 SENSeries D Make-Whole Amount.  So longas no Event of Default has occurred, on the Scheduled Maturity Date, and on anydate of a prepayment of all or a portion of the SEN Series D RestructuredPrincipal (other than any such prepayment referenced in Section 7.01(f)),Borrower shall pay to the holders of SEN Series D Restructured Principal a SENMake-Whole Amount based on the amount of SEN Series D RestructuredPrincipal paid on such date, such SEN Make-Whole Amount to be calculated as setforth in Exhibit 7.01 and Exhibit 7.01(g); providedthat the aggregate amount of payments of SEN Make-Whole Amounts to the holdersof SEN Series D Restructured Principal under this Section 7.01(g)shall not exceed $10,000,000.  Any SENMake-Whole Amount due in accordance with this Section 7.01(g) shallbe Tranche C Restructured Debt and, notwithstanding the foregoing, shallbe repaid in accordance with the terms of Section 8.02 and Section8.03.

###  

# **ARTICLE VIII**PAYMENTS; INTEREST; FEES

# ** **

## Section 8.01                                Prepayments

##  

### (a)                                  WorkingCapital Prepayment Event.  For eachfiscal quarter ending on or after the Closing Date, within thirty (30) daysafter the end of such fiscal quarter, Borrower shall calculate

 

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### theFinal Adjusted Working Capital as of the last day of such fiscal quarter.  If such Final Adjusted Working Capital is inexcess of $240,000,000 (any such event a “**Working Capital Prepayment Event**”), thenBorrower shall pay to the Shared Payment and Collateral Agent, as provided inthe immediately succeeding paragraph, an amount equal to the excess of suchFinal Adjusted Working Capital over $240,000,000 (such amount, if any, as ofany date of determination is the “**Working Capital Prepayment Amount**”).

###  

Any Working Capital Prepayment Amount shall be paid byBorrower, by wire transfer of immediately available funds, to the SharedPayment and Collateral Agent, for the benefit of the Lenders, withinthirty (30) days after the last day of the fiscal quarter for which thecalculation of the Working Capital Prepayment Amount was made.  On the earlier of such thirtieth (30th)day and the date of such payment, Borrower shall deliver to the Lenders, theFinancial Advisor, the Shared Payment and Collateral Agent and the Bank HoldersAdministrative Agent a certificate of Borrower’s chief financial officersetting forth the basis of calculation of Final Adjusted Working Capital inreasonable detail, which certificate shall state that the data used in suchcalculation is accurate to the best of such chief financial officer’sknowledge, after diligent inquiry into such matters.

 

A sample calculation of Final Adjusted Working Capitalis set forth in Exhibit 8.01.

 

### (b)                                 MetalPrice Prepayment Event.  For eachfiscal quarter ending on or after the Closing Date, within thirty (30) daysafter the end of each such fiscal quarter, upon certain changes in the pricesof copper, zinc and silver as detailed below (any such event a “**Metal PricePrepayment Event**”), Borrower shall make prepayments to the SharedPayment and Collateral Agent, for the benefit of the Lenders, in an amountequal to 75% of the amounts determined by the calculations described below(collectively, such amounts, if any, “**Metal Price Prepayment Amount**”):

###  

#### (i)                                     wherethe average daily closing price per pound of copper exceeds $0.88 during anyfiscal quarter, an amount equal to the product of (A) such average copperprice minus $0.88 and (B) the number of pounds of copper sold byBorrower and its Subsidiaries during such fiscal quarter;

####  

#### (ii)                                  wherethe average daily closing price per pound of zinc exceeds $0.485 during anyfiscal quarter, an amount equal to the product of (A) such average zincprice minus $0.485 and (B) the number of pounds of zinc sold byBorrower and its Subsidiaries during such fiscal quarter; and

####  

#### (iii)                               where the average dailyclosing price per ounce of silver exceeds $5.00 during any fiscal quarter, an amountequal to the product of (A) such average silver price minus $5.00and (B) the number of ounces of silver sold by Borrower and itsSubsidiaries during such fiscal quarter.

####  

For purposes of the foregoing, the average dailyclosing price per pound (with respect to copper and zinc) or ounce (withrespect to silver) of (i) copper shall be the average daily closing price perpound of copper defined as the Comex HG 1st Position Price for copper for therelevant fiscal quarter, as posted in Platt’s Metals Week, (ii) zinc shall bethe average daily closing price

 

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per pound of zinc definedas the LME SHG Cash Price for zinc for the relevant fiscal quarter, as postedin Platt’s Metals Week, and (iii) silver shall be the average daily closingprice per ounce of silver defined as the Comex 1st Position Price for silverfor the relevant fiscal quarter, as posted in Platt’s Metals Week.

 

Any Metal Price Prepayment Amount shall be paid byBorrower, by wire transfer of immediately available funds, to the SharedPayment and Collateral Agent, for the benefit of the Lenders, withinthirty (30) days after the last day of the fiscal quarter for which thecalculation of the Metal Price Prepayment Amount was made.  On the earlier of such thirtieth (30th)day and the date of such payment, Borrower shall deliver to each of theLenders, the Financial Advisor, the Shared Payment and Collateral Agent and theBank Holders Administrative Agent a certificate of Borrower’s chief financialofficer setting forth the basis of the calculation of such payment inreasonable detail, which certificate shall state that the data used in suchcalculation is accurate to the best of such chief financial officer’sknowledge, after diligent inquiry into such matters.

 

### (c)                                  CashFlow Prepayment Event.  For fiscalyear 2003 and for each fiscal quarter ending after December 31, 2003,Borrower shall calculate Adjusted Working Capital on the last day of suchperiod and Excess Cash Flow for such period. Based on the allocations of the Excess Cash Flow between Borrower andthe Lenders for such period as described below (and as demonstrated in Exhibit 8.01(c)),Borrower shall pay the Lenders’ allocated portion of any Excess Cash Flow tothe Shared Payment and Collateral Agent, for the benefit of the Lenders (theamount of each such payment being the “**Cash Flow Prepayment Amount**”).  The Cash Flow Prepayment Amount for anyperiod shall be equal to the total of the following:

###  

#### (i)                                     (A) ifthe Adjusted Working Capital is less than $190,000,000, Borrower shall beallocated 100% of the Excess Cash Flow until the sum of (x) the AdjustedWorking Capital and (y) the portion of the Excess Cash Flow allocated toBorrower pursuant to this Section 8.01(c)(i) (the “**Allocated ExcessCash Flow I**”) is equal to $190,000,000, and if the Excess Cash Flowequals the Allocated Excess Cash Flow I, Borrower will not be required tomake any prepayment under this Section 8.01(c), or (B) if theAdjusted Working Capital is greater than or equal to $190,000,000, theAllocated Excess Cash Flow I shall be zero;

####  

#### (ii)                                  (A) ifthe Adjusted Working Capital is less than $200,000,000, and if the Excess CashFlow is greater then the Allocated Excess Cash Flow I, such excess will beallocated 75% to Borrower and 25% to the Lenders until the sum of (x) theAdjusted Working Capital, (y) the Allocated Excess Cash Flow I and(z) the Excess Cash Flow allocated to Borrower pursuant to this Section 8.01(c)(ii)(the “**AllocatedExcess Cash Flow II**”) is equal to $200,000,000, and Borrowershall be required to pay to the Shared Payment and Collateral Agent, for thebenefit of the Lenders, an amount equal to one-third (1/3) of theAllocated Excess Cash Flow II, or (B) if the Adjusted Working Capitalis greater than or equal to $200,000,000, the Allocated Excess CashFlow II shall be zero;

####  

#### (iii)                               (A) if the AdjustedWorking Capital is less than $220,000,000, and if the Excess Cash Flow isgreater then the sum of (x) the Allocated Excess Cash Flow I and(y) 133.333% of the Allocated Excess Cash Flow II, such excess willbe allocated 50% to

 

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#### Borrower and 50% to the Lenders until the sum of(1) the Adjusted Working Capital, (2) the Allocated Excess CashFlow I, (3) the Allocated Excess Cash Flow II and (4) theExcess Cash Flow allocated to Borrower pursuant to this Section 8.01(c)(iii)(the “**AllocatedExcess Cash Flow III**”) is equal to $220,000,000, and Borrowershall be required to pay to the Shared Payment and Collateral Agent, for thebenefit of the Lenders, an amount equal to the Allocated Excess CashFlow III, or (B) if the Adjusted Working Capital is greater than orequal to $220,000,000, the Allocated Excess Cash Flow III shall be zero; and

####  

#### (iv)                              Ifthe Excess Cash Flow is greater then the sum of (A) the Allocated ExcessCash Flow I, (B) 133.333% of the Allocated Excess Cash Flow II,and (C) 200% of the Allocated Excess Cash Flow III, such excess willbe allocated 25% to Borrower and 75% to the Lenders, and Borrower shall berequired to pay to the Shared Payment and Collateral Agent, for the benefit ofthe Lenders, an amount equal to the amount of Excess Cash Flow allocated to theLenders pursuant to this Section 8.01(c)(iv).

####  

If, pursuant to the calculations described in this Section 8.01(c),Borrower is required to pay a Cash Flow Prepayment Amount (a “**Cash FlowPrepayment Event**”), it shall (i) pay the Shared Payment andCollateral Agent, for the benefit of the Lenders, by wire transfer ofimmediately available funds, an amount equal to the Cash Flow Prepayment Amountnot later than thirty (30) days after the last day of the period for whichsuch calculations were made, and (ii) notify the Shared Payment andCollateral Agent and the Bank Holders Administrative Agent of such payment inaccordance with Section 4.01. On the earlier of such thirtieth (30th) day and the date of suchpayment, Borrower shall deliver to each of the Lenders, the Financial Advisor,the Shared Payment and Collateral Agent and the Bank Holders AdministrativeAgent a certificate of Borrower’s chief financial officer setting forth thebasis of the calculation of such payment in reasonable detail, whichcertificate shall state that the data used in such calculation is accurate tothe best of such chief financial officer’s knowledge, after diligent inquiryinto such matters.

 

A sample calculation of each of Adjusted WorkingCapital and Excess Cash Flow is set forth in Exhibit 8.01.

 

### (d)                                 EarlyAsset Sale Debt Prepayment Event. For each fiscal quarter ending on or after the Closing Date, withinthirty (30) days after the end of each such fiscal quarter, Borrower shallnotify the Lenders whether the Early Asset Sale Debt Amortization Amount isgreater than zero (such an event, as determined from time to time, an “**Early AssetSale Debt Prepayment Event**”). If the Early Asset Sale Debt Amortization Amount for any such quarter isgreater than zero, then Borrower shall (i) pay such amount (an “**Early AssetSale Debt Prepayment Amount**”) to the Shared Payment and CollateralAgent as provided in the immediately succeeding paragraph, and (ii) notifythe Shared Payment and Collateral Agent, for the benefit of the Lenders, andthe Bank Holders Administrative Agent of such payment in accordance with Section 4.01.

###  

Any Early Asset Sale Debt Prepayment Amount shall bepaid by Borrower to the Shared Payment and Collateral Agent, for the benefit ofthe Lenders, via wire transfer of immediately available funds, withinthirty (30) days after the last day of the fiscal quarter for which the

 

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calculation of such EarlyAsset Sale Debt Prepayment Amount was made, and such amount shall bedistributed in accordance with Section 8.02(d).

 

### (e)                                  AssetDisposition Prepayment Event.  Withoutlimitation of the provisions of Section 5.03, within ten (10) daysafter any Asset Disposition in respect of which the Asset DispositionPrepayment Amount is greater than zero, Borrower shall notify the Lenders as tothe amount of such Asset Disposition Prepayment Amount (such an event, asdetermined from time to time, an “**Asset Disposition Prepayment Event**”).  Not later than thirty (30) days afterthe occurrence of any Asset Disposition Prepayment Event, Borrower shall(i) pay an amount equal to the applicable Asset Disposition PrepaymentAmount to the Shared Payment and Collateral Agent, for the benefit of theLenders, by wire transfer of immediately available funds, and (ii) notifythe Shared Payment and Collateral Agent and the Bank Holders AdministrativeAgent of such payment in accordance with Section 4.01, which amountshall be distributed by the Shared Payment and Collateral Agent in accordancewith Section 8.02(g).

###  

### (f)                                    VoluntaryPrepayments.  Subject to Section12.04, Borrower may, at any time or from time to time, without premium orpenalty (except to the extent provided for under Section 7.01(f)and Section 7.01(g)), upon not less than five (5) Business Days’irrevocable notice to the Shared Payment and Collateral Agent and the BankHolders Administrative Agent, prepay the Restructured Debt in whole or in part,in minimum amounts of $500,000 or any multiple of $100,000 in excessthereof.  Such notice of prepaymentshall specify the date and amount of such prepayment.  The Shared Payment and Collateral Agent will promptly notify eachLender and the Bank Holders Administrative Agent of its receipt of any suchnotice, and of the amounts to be paid to such Lender pursuant to this Section 8.01(f)and Section 8.02(h) as a result of such prepayment.  If any such notice is given by Borrower,Borrower shall make such prepayment, and the payment amount specified in suchnotice shall be due and payable on the date specified therein, together withpayment of accrued Cash Interest and crediting of accrued PIK Interest to suchdate on the amount prepaid and any amounts required pursuant to Section12.04.  The proceeds of any suchprepayment of Restructured Debt shall be distributed by the Shared Payment andCollateral Agent pursuant to the distribution provisions set forth in Section8.02(h).

###  

### (g)                                 FinancialAdviser Review.  With respect to anyfinancial report or determination of any amount delivered by Borrower at anytime under the Operative Documents, the Financial Advisor will, at Borrower’ssole cost and expense, review all calculations of the Financial Covenants,calculations of prepayments (including the prepayments set forth in this Section8.01) and any related Financial Covenants and determine if suchcalculations have been calculated in accordance with the terms hereof.  If the Financial Advisor disagrees with thecalculations set forth in any of Borrower’s required reporting, the FinancialAdvisor will inform Borrower of such disagreement in writing as soon as practicable.  If Borrower desires to dispute the FinancialAdvisor’s calculations, Borrower will have ten (10) Business Days to filedocumentation in support of Borrower’s calculation with the Lenders and theFinancial Advisor following receipt of the Financial Advisor’s written notice.  If the parties fail to resolve any suchdispute within thirty (30) days of Borrower’s filing of such documentationof dispute, Borrower will immediately deposit, into a segregated escrow accountheld by the Shared Payment and Collateral Agent, the shortfall, if any, withrespect to any: (i) Working Capital Prepayment Amount; (ii) MetalPrice Prepayment Amount; (iii) Cash Flow Prepayment Amount;(iv) Early

 

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### AssetSale Debt Prepayment Amount; and (v) Asset Disposition Prepayment Amount(as specified by the Financial Advisor in its written notice) for theapplicable period, if any, and Borrower and the Lenders shall select, andBorrower shall retain, at its sole cost and expense, a mutually agreeablenationally recognized United States accounting firm to review the disputedcalculations and reach its own conclusion in a report delivered to Borrower,the Bank Holders Administrative Agent and the Lenders within thirty (30)days after it has been retained.  Theconclusions in the report of such nationally recognized United Statesaccounting firm shall be binding upon the parties absent manifest error.  Any disputed amounts deposited with theShared Payment and Collateral Agent will be held in escrow by the SharedPayment and Collateral Agent (and invested, at the written direction ofBorrower, in Permitted Investments) until such dispute is resolved.  Upon receipt of such accounting firm’sdetermination, any portion of such disputed prepayment amounts that weresuccessfully disputed by Borrower will be returned to Borrower, including anynet earnings on any such Permitted Investments, and any portion of suchdisputed prepayment amounts that were successfully disputed by the Lendersshall be disbursed pursuant to the terms hereof.

###  

## Section 8.02                                Distributionof Prepayments.  Subject to Section 8.07:

##  

### (a)                                  Distributionof Working Capital Prepayment Amount. All amounts received by the Shared Payment and Collateral Agent inconnection with a Working Capital Prepayment Event shall be distributed by theShared Payment and Collateral Agent in the following order of priority:

###  

*first, pro rata* among the holders ofTranche B Restructured Debt to pay in full the Tranche B RestructuredDebt;

 

*second, pro rata*among the holders ofTranche A Restructured Debt to be applied in inverse order of maturity of theremaining scheduled quarterly amortization payments in respect of theTranche A Restructured Debt to pay in full the Tranche A RestructuredDebt;

 

*third, pro rata*among the holders of TrancheC Restructured Debt to pay in full the Tranche C Restructured Debt;

 

*fourth,* to pay *pro rata* all reasonable feesand expenses of and indemnity amounts owing to the Agents (including reasonablefees and expenses of attorneys);

 

*fifth,* to pay *pro rata* any other amountsdue and owed to the Lenders pursuant to the terms of the Operative Documents(including reasonable fees and expenses of attorneys and the FinancialAdvisor);

 

*sixth, pro rata* among the holders of GMNotes to pay in full all amounts of accrued and unpaid interest on andprincipal of the GM Notes; and

 

*seventh,* the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable

 

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Law and upon promptnotification to the Shared Payment and Collateral Agent.

 

### (b)                                 Distributionof Metal Price Prepayment Amount. All amounts received by the Shared Payment and Collateral Agent inconnection with a Metal Price Prepayment Event shall be distributed by theShared Payment and Collateral Agent in the following order of priority:

###  

*first, pro rata*among the holders ofTranche B Restructured Debt to pay in full the Tranche B RestructuredDebt;

 

*second, pro rata* among the holders of Tranche ARestructured Debt to be applied in inverse order of maturity of the remainingscheduled quarterly amortization payments in respect of the Tranche ARestructured Debt to pay in full the Tranche A Restructured Debt;

 

*third, pro rata* among the holders ofTranche C Restructured Debt to pay in full the Tranche C RestructuredDebt;

 

*fourth,* to pay *pro rata* all reasonable feesand expenses of and indemnity amounts owing to the Agents (including reasonablefees and expenses of attorneys);

 

*fifth,* to pay *pro rata* any other amountsdue and owed to the Lenders pursuant to the terms of the Operative Documents(including reasonable fees and expenses of attorneys and the FinancialAdvisor);

 

*sixth,**pro rata* among the holders of GM Notes topay in full all amounts of accrued and unpaid interest on and principal of theGM Notes; and

 

*seventh,* the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable Law and upon prompt notification to theShared Payment and Collateral Agent.

 

### (c)                                  Distributionof Cash Flow Prepayment Amount.  Allamounts received by the Shared Payment and Collateral Agent in connection witha Cash Flow Prepayment Event shall be distributed by the Shared Payment and CollateralAgent in the following order of priority:

###  

*first,* (a) *50% pro rata*among theholders of Tranche B Restructured Debt to pay in full the Tranche BRestructured Debt, and (b) *50% pro rata*among the holders of TrancheA Restructured Debt to be applied *pro rata*to the remaining scheduledquarterly amortization payments in respect of the Tranche A Restructured Debtto pay in full the Tranche A Restructured Debt, provided, however,that if either the Tranche A Restructured Debt or the Tranche B RestructuredDebt has been fully repaid, then any Cash Flow Prepayment Amount shall beapplied 100% toward the repayment of any existing Tranche A RestructuredDebt or Tranche B Restructured Debt, as applicable;

 

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*second, pro rata* among the holders ofTranche C Restructured Debt to pay in full the Tranche C RestructuredDebt;

 

*third,* to pay *pro rata* all reasonable feesand expenses of and indemnity amounts owing to the Agents (including reasonablefees and expenses of attorneys);

 

*fourth,* to pay *pro rata* any other amountsdue and owed to the Lenders pursuant to the terms of the Operative Documents(including reasonable fees and expenses of attorneys and the FinancialAdvisor);

 

*fifth,**pro rata*among the holders of GM Notes topay in full all amounts of accrued and unpaid interest on and principal of theGM Notes; and

 

*sixth,*the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable Law and upon prompt notification to theShared Payment and Collateral Agent.

 

### (d)                                 Distributionof Early Asset Sale Debt Prepayment Amount.  All amounts received by the Shared Payment and Collateral Agentin connection with an Early Asset Sale Debt Prepayment Event shall bedistributed by the Shared Payment and Collateral Agent in the following orderof priority:

###  

*first, pro rata*among the holders ofTranche B Restructured Debt to pay in full the Tranche B RestructuredDebt;

 

*second, pro rata*among the holders ofTranche A Restructured Debt to be applied in inverse order of maturity ofthe remaining scheduled quarterly amortization payments in respect of theTranche A Restructured Debt to pay in full the Tranche A RestructuredDebt;

 

*third, pro rata*among the holders ofTranche C Restructured Debt to pay in full the Tranche C RestructuredDebt;

 

*fourth,* to pay *pro rata*all reasonable feesand expenses of and indemnity amounts owing to the Agents (including reasonablefees and expenses of attorneys);

 

*fifth*, to pay *pro rata* any other amountsdue and owed to the Lenders pursuant to the terms of the Operative Documents(including reasonable fees and expenses of attorneys and the FinancialAdvisor);

 

*sixth*, *pro rata* among the holders of GM Notes topay in full all amounts of accrued and unpaid interest on and principal of theGM Notes; and

 

*seventh*, the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable

 

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Law and upon promptnotification to the Shared Payment and Collateral Agent.

 

### (e)                                  Distributionof Proceeds from SEN Collateral Following an Event of Default.  All amounts received by the SEN CollateralAgent as proceeds from the SEN Collateral following an Event of Default shallbe delivered to the Shared Payment and Collateral Agent and distributed by theShared Payment and Collateral Agent in the following order of priority:

###  

*first*, so much of such amount as shall berequired to pay *pro rata* all reasonable fees and expenses of and indemnityamounts owing to the Agents (including reasonable fees and expenses ofattorneys);

 

*second*, so much of such amount as shall berequired to pay *pro rata* all reasonable fees and expenses of and indemnityamounts owing to the SEN Holders (including reasonable fees and expenses ofattorneys and the Financial Advisor);

 

*third*, so much of such amount as shall berequired to replenish the SEN Interest Reserve Account, up to the SEN InterestReserve Account Required Balance, unless the Required SEN Holders direct theSEN Collateral Agent, in writing, to forego such replenishment;

 

*fourth*, so much of such amount as shall berequired to pay *pro rata*all accrued and unpaid Cash Interest due to theholders of the SEN Holders Restructured Principal;

 

*fifth*, so much of such amount as shall berequired to pay in full each of the Tranche B Principal Amount held by the SENHolders and PIK Interest due and owed to the SEN Holders, *pro rata*;

 

*sixth*, so much of such amount as shall berequired to pay in full the Tranche A Restructured Debt held by the SENHolders, to be divided *pro rata*among such holders and to beapplied in inverse order of maturity of the remaining scheduled quarterlyamortization payments in respect of such Tranche A Restructured Debt;

 

*seventh*, to pay in full the Tranche CRestructured Debt *pro rata*;

 

*eighth*, so much of such amount as shall berequired to pay *pro rata* any other amounts due and owed to the Lenderspursuant to the terms of the Operative Documents (including reasonable fees andexpenses of attorneys);

 

*ninth*, *pro rata* among the holders of GM Notes topay in full all amounts of accrued and unpaid interest on and principal of theGM Notes; and

 

*tenth*, the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable

 

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Law and upon promptnotification to the Shared Payment and Collateral Agent.

 

Any such application of funds that reduces the claimsof the SEN Holders shall not reduce the repayment priority provided to the SENContribution under Section 8.02(f) until, and only to the extent that,such application of funds reduces the amount of the Restructured Debt containedin Tranche A Restructured Debt and Tranche B Restructured Debt(including PIK Interest) held by the SEN Holders below the SEN Contribution,whereupon such repayment priority will be reduced on a Dollar for Dollar basis.

 

### (f)                                    Distributionof Proceeds from Shared Collateral. All amounts received by the Shared Payment and Collateral Agent asproceeds from the Shared Collateral shall be distributed by the Shared Paymentand Collateral Agent in the following order of priority:

###  

#### (i)                                     *first*,to payment in full of all costs and expenses relating to the collection, saleor other realization of such proceeds (including attorney fees and expenses andthe compensation and reimbursement of the Shared Payment and Collateral Agentfor services rendered in connection therewith or in connection with anyproceeding to sell if a sale is not completed), *second*, to payment in fullof all charges, expenses and advances incurred or made by the Shared Paymentand Collateral Agent in order to protect the Liens under the OperativeDocuments and the security afforded thereby in connection with the SharedCollateral, and *third*, the balance, if any, of such payment shall bedistributed as set forth in Section 8.02(f)(ii) and Section8.02(f)(iii);

####  

#### (ii)                                  inthe case of proceeds from Shared Yankee Bond Collateral, as determined byBorrower and notified to the Shared Payment and Collateral Agent by Borrower,to the trustee under the Yankee Bond Indenture and the Shared Payment andCollateral Agent *pro rata* based on the principal amount then outstandingunder the Yankee Bond Indenture and the then outstanding RestructuredPrincipal, with (A) such amounts payable to the Shared Payment andCollateral Agent to be distributed as set forth in Section 8.02(f)(iii)and (B) such amounts payable to the trustee under the Yankee BondIndenture to be distributed as set forth in Section 8.02(i); and

####  

#### (iii)                               in the case of proceedsfrom Shared Collateral other than Shared Yankee Bond Collateral, as determinedby Borrower and notified to the Shared Payment and Collateral Agent byBorrower:

####  

*first*, so much of such amount as shall berequired to pay *pro rata* all reasonable fees and expenses of and indemnityamounts owing to the Agents (including reasonable fees and expenses ofattorneys),

 

*second*, so much of such amount as shall berequired to pay *pro rata* all reasonable fees and expenses of and indemnityamounts owing to the Lenders (including reasonable fees and expenses ofattorneys and the Financial Advisor),

 

*third*, so much of such amount as shall berequired to pay the SEN Holders the full amount of the SEN Contribution forapplication to the then

 

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outstanding RestructuredDebt held by the SEN Holders in the following order of priority, (a) somuch of such amount as shall be required to pay in full the Tranche BPrincipal Amount held by the SEN Holders, *pro rata*, then (b) so much of suchamount as shall be required to pay in full the Tranche A Restructured Debtheld by the SEN Holders, to be divided *pro rata* among such holders and to beapplied in inverse order of maturity of the remaining scheduled quarterlyamortization payments in respect of such Tranche A Restructured Debt,

 

*fourth*, so much of such amount as shall berequired to pay any unpaid Cash Interest with respect to RestructuredPrincipal, *prorata* among the Lenders,

 

*fifth*, so much of such amount as shall berequired to pay the outstanding principal amount of the Tranche ARestructured Debt and the Tranche B Principal Amount of the Lenders, andPIK Interest due and owed to the SEN Holders, to be divided *pro rata*among the holders thereof, with such amounts to be applied, with respect to theTranche A Restructured Debt, in inverse order of maturity of the remainingscheduled quarterly amortization payments in respect of such Tranche ARestructured Debt,

 

*sixth*, so much of such amount as shall berequired to pay the Tranche C Restructured Debt *pro rata*,

 

*seventh*, so much of such amount as shallbe required to pay any other amounts due and owed to the Lenders pursuant tothe terms of the Operative Documents,

 

*eighth, pro rata* among the holders of GMNotes to pay in full all amounts of accrued and unpaid interest on andprincipal of the GM Notes, and

 

*ninth*, the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable Law and upon prompt notification to theShared Payment and Collateral Agent.

 

### (g)                                 Distributionof Asset Disposition Prepayment Amount.

###  

#### (i)                                     Allamounts received by the Shared Payment and Collateral Agent as a result of anAsset Disposition Prepayment Event shall be distributed by the Shared Paymentand Collateral Agent in the following order of priority;

####  

##### (A)                              inthe case of any such amounts derived from dispositions of assets thatconstitute part of the Shared Yankee Bond Collateral, as determined inaccordance with Section 8.02(g)(ii) and notified to the Shared Paymentand Collateral Agent by Borrower, to the trustee under the Yankee BondIndenture and the Shared Payment and Collateral Agent *pro rata* based on theprincipal amount then outstanding under the Yankee Bond Indenture and the then

 

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##### outstanding Restructured Principal, with (1) suchamounts payable to the Shared Payment and Collateral Agent to be distributed asset forth in Section 8.02(g)(i)(B) and (2) such amounts payable tothe trustee under the Yankee Bond Indenture to be distributed as set forth in Section8.02(i); and

#####  

##### (B)                                inthe case of any such amounts derived from dispositions of assets that do notconstitute part of the Shared Yankee Bond Collateral, as determined inaccordance with Section 8.02(g)(ii) and notified to the Shared Paymentand Collateral Agent by Borrower:

#####  

*first, pro rata* among the holders ofTranche B Restructured Debt to pay in full the Tranche B RestructuredDebt,

 

*second, pro rata* among the holders ofTranche A Restructured Debt to be applied in inverse order of maturity ofthe remaining scheduled quarterly amortization payments in respect of theTranche A Restructured Debt to pay in full the Tranche A RestructuredDebt,

 

*third, pro rata* among the holders ofTranche C Restructured Debt to pay in full the Tranche C RestructuredDebt,

 

*fourth*, to pay *pro rata* all reasonable feesand expenses of and indemnity amounts owing to the Agents (including reasonablefees and expenses of attorneys),

 

*fifth*, to pay *pro rata* any other amountsdue and owed to the Lenders pursuant to the terms of the Operative Documents(including reasonable fees and expenses of attorneys and the FinancialAdvisor),

 

*sixth, pro rata* among the holders of GMNotes to pay in full all amounts of accrued and unpaid interest on andprincipal of the GM Notes, and

 

*seventh*, the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable Law and upon prompt notification to theShared Payment and Collateral Agent.

 

#### (ii)                                  Anythingcontained in this Agreement or any other Operative Document to the contrarynotwithstanding, for purposes of Section 8.02(g)(i), (A) theportion of any Asset Disposition Prepayment Amount that is deemed to be derivedfrom dispositions of assets that constitute part of the Shared Yankee BondCollateral shall be determined by multiplying such Asset Disposition PrepaymentAmount by a fraction (x) the numerator of which is an amount equal to theaggregate Net Available Proceeds of all Asset Dispositions during such fiscalyear of assets that constitute part of the Shared Yankee Bond Collateral and(y) the denominator of which is an amount equal to the aggregate NetAvailable Proceeds of all Asset Dispositions during such fiscal year (excludingNet Available Proceeds from dispositions of Scheduled Assets) and (B) theportion of any Asset Disposition Prepayment Amount that is deemed to be derivedfrom dispositions of

 

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#### assets that do not constitute part of the SharedYankee Bond Collateral shall be determined by subtracting the amount calculatedin clause (A) of this Section 8.02(g)(ii) from the aggregate NetAvailable Proceeds of all Asset Dispositions during such fiscal year (excludingNet Available Proceeds from dispositions of Scheduled Assets).

####  

### (h)                                 Distributionof Proceeds Derived from Voluntary Prepayments.  All amounts received by the Shared Payment and Collateral Agentas proceeds of a voluntary prepayment of the Restructured Debt shall bedistributed by the Shared Payment and Collateral Agent in the following orderof priority.

###  

*first, pro rata* among the holders ofTranche B Restructured Debt to pay in full the Tranche B RestructuredDebt;

 

*second, pro rata* among the holders ofTranche A Restructured Debt to be applied in inverse order of maturity ofthe remaining scheduled quarterly amortization payments in respect of theTranche A Restructured Debt to pay in full the Tranche A RestructuredDebt;

 

*third, pro rata* among the holders ofTranche C Restructured Debt to pay in full the Tranche C RestructuredDebt;

 

*fourth*, to pay *pro rata* all reasonable feesand expenses of and indemnity amounts owing to the Agents (including reasonablefees and expenses of attorneys);

 

*fifth*, to pay *pro rata* any other amountsdue and owed to the Lenders pursuant to the terms of the Operative Documents(including reasonable fees and expenses of attorneys and the FinancialAdvisor);

 

*sixth*, *pro rata* among the holders of GM Notes topay in full all amounts of accrued and unpaid interest on and principal of theGM Notes; and

 

*seventh*, the balance, if any, of suchpayment shall be returned to Borrower or such other Person as shall be entitledthereto as required by Applicable Law and upon prompt notification to theShared Payment and Collateral Agent.

 

### (i)                                     Distributionof Amounts Payable to Trustee Under Yankee Bond Indenture.  Any amounts payable to the trustee under theYankee Bond Indenture pursuant to Section 8.02(f)(ii) or Section 8.02(g)(i)(A)shall be distributed as follows:

###  

#### (i)                                     if,at the time such amounts become payable, Borrower shall have notified theShared Payment and Collateral Agent that the principal amount of theIndebtedness under the Yankee Bond Indenture has been accelerated or isotherwise then due and payable, such amounts shall be distributed to suchtrustee, pursuant to such wire instructions and other information as shall benotified by Borrower to the Shared Payment and Collateral Agent, forapplication to such principal amount and/or any accrued and unpaid interestthereon or any other amounts then due and payable by

 

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#### Borrower under the Yankee Bond Indenture, asdetermined by such trustee (it being understood and agreed that the SharedPayment and Collateral Agent shall have no obligation to confirm or inquire asto the manner in which such trustee applies such amount); and

####  

#### (ii)                                  inall other cases, such amounts shall be held in trust by the Shared Payment andCollateral Agent in a non-interest bearing account, subject to the Lien of theapplicable Collateral Document for the benefit of such trustee, until the datethat is the second Business Day prior to the next scheduled interest paymentdate under the Yankee Bond Indenture, as notified by Borrower to the SharedPayment and Collateral Agent, at which time such amounts shall be distributedto such trustee, pursuant to such wire instructions and other information asshall be notified by Borrower to the Shared Payment and Collateral Agent, forapplication to the interest payable on such date or any other amounts then dueand payable by Borrower under the Yankee Bond Indenture, as determined by suchtrustee (it being understood and agreed that the Shared Payment and CollateralAgent shall have no obligation to confirm or inquire as to the manner in whichsuch trustee applies such amount).

####  

## Section 8.03                                Repayment.  Subject to Section 8.07:

##  

### (a)                                  Commencingon June 25, 2004, and on a quarterly basis thereafter on the last MonthlyPayment Date for each calendar quarter, Borrower shall make amortizationpayments in respect of the Tranche A Restructured Debt to the Shared Paymentand Collateral Agent, for the account of the Lenders holding such Tranche ARestructured Debt, in such amounts as set forth for such calendar quartersunder the heading titled “Restructured Tranche A” of the Restructured DebtPayment Schedule.  Borrower shall notifythe Shared Payment and Collateral Agent and the Bank Holders AdministrativeAgent of each such payment in accordance with Section 4.01.  Each such payment shall be distributed bythe Shared Payment and Collateral Agent *pro rata* among the holders of Tranche ARestructured Debt.

###  

### (b)                                 Onthe Maturity Date, Borrower shall pay to the Shared Payment and CollateralAgent, for the account of the Lenders, the Restructured Debt outstanding onsuch date, and such payment shall be distributed by the Shared Payment andCollateral Agent in the order of priority described in Section 8.02(h).  Borrower shall notify the Shared Payment andCollateral Agent and the Bank Holders Administrative Agent of such payment inaccordance with Section 4.01.

###  

## Section 8.04                                Interest.  Subject to Section 8.07:

##  

### (a)                                  CashInterest shall accrue from April 30, 2003 and be paid by Borrower to the SharedPayment and Collateral Agent, for the account of the Lenders, in arrears oneach Monthly Payment Date.  PIK Interestshall accrue from the Economic Effective Date in arrears and be added to theAccreted PIK Balance on April 30, 2003 and on each Monthly Payment Date andshall be paid in cash by Borrower to the Shared Payment and Collateral Agent,for the account of the holders of SEN Series C Restructured Principal, inarrears on the Maturity Date.  CashInterest shall also be paid on the date of any prepayment or repayment ofRestructured Principal under Section 8.01, Section 8.02 or Section8.03 for the portion of the Restructured Principal so prepaid orrepaid.  During the existence of anyEvent of Default, accrued but unpaid Cash

 

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### Interestshall be paid on demand of the Shared Payment and Collateral Agent at thewritten direction of the Required Lenders. Each payment of Cash Interest shall be distributed, and each accrual ofPIK Interest shall be credited, as the case may be, by the Shared Payment andCollateral Agent to the applicable Lenders in accordance with its determinationof required Cash Interest payments and PIK Interest accruals pursuant to Section8.06(a).

###  

### (b)                                 Notwithstandingany other provision of this Section 8.04, while any Event of Defaultexists, Borrower shall pay in cash on demand interest at a rate per annum (the“**DefaultInterest Rate**”) (after as well as before entry of judgment thereonto the extent permitted by law) on (i) the principal amount of alloutstanding Restructured Principal, equal to the rate of interest thenapplicable thereto plus an additional 200 basis points, and (ii) any feesor transaction expenses due and payable by MM, GMM or any of their respectiveSubsidiaries pursuant to the terms of the Operative Documents, equal to the sumof (x) the LIBOR Rate then applicable to LIBOR Loans and (y) 575basis points; provided that on any date occurring on or subsequent tothe Scheduled Maturity Date, the Default Interest Rate:  (A) with respect to any LIBOR Loanshall be deemed to be equal to the sum of (1) the LIBOR Rate on such day(it being understood and agreed that from and subsequent to the ScheduledMaturity Date, the LIBOR Rate shall be determined based on successive InterestPeriods (x) the first of which shall be deemed to have commenced on (andincluding) the Scheduled Maturity Date and ended on (but excluding) thetwenty-fifth (25th) day of the month following the month in which theScheduled Maturity Date occurs (unless such twenty-fifth (25th) day is nota Business Day, in which case such ending date shall be the first Business Dayimmediately succeeding such day) and (y) each of which thereafter shall bedeemed to have commenced on (and including) the last day of the immediatelypreceding Interest Period and ended on (but excluding) the twenty-fifth (25th)day of the month immediately succeeding the month in which such immediatelypreceding Interest Period was deemed to have ended (unless suchtwenty-fifth (25th) day is not a Business Day, in which case such endingdate shall be the first Business Day immediately succeeding such day), each ofsuch days to be a Monthly Payment Date), (2) the Applicable Margin and(3) 200 basis points; and (B) with respect to any Fixed Rate Loan,for each Interest Period as described above, shall be deemed to be equal to theinterest rate of such Fixed Rate Loan plus 200 basis points.  In addition, if any amount of interest onthe Restructured Principal, or any other amount payable hereunder or under anyother Operative Document related to the Restructured Principal (other thanamounts described in the immediately preceding sentence), is not paid in fullwhen due while any Event of Default exists, then to the extent permitted byApplicable Law, Borrower agrees to pay in cash on demand interest on suchunpaid interest or other amount, from the date such amount becomes due untilthe date such amount is paid in full, and after as well as before any entry ofjudgment thereon to the extent permitted by law at a rate per annum equal tothe Default Interest Rate, as determined in the manner provided inclause (ii) of the immediately preceding sentence (which shall be the“Default Interest Rate” for interest and other amounts described in thissentence).

###  

### (c)                                  CashInterest on the Restructured Principal shall accrue as follows: (i) withrespect to the SEN Series C Restructured Principal, at a fixed rate of 10.26%per annum; (ii) with respect to the SEN Series D Restructured Principal,at a rate of 11.18% per annum; (iii) with respect to the SEN Series ERestructured Principal, at a rate equal to the LIBOR Rate plus the ApplicableMargin; and (iv) with respect to the Bank Holders Restructured Principal,at a rate equal to the LIBOR Rate plus the Applicable Margin.

 

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### (d)                                 Anythingherein or in any other Operative Document to the contrary notwithstanding,interest shall accrue on the GM Notes at a rate per annum equal to the ratethen applicable to the Bank Holders Restructured Principal; providedthat interest on the GM Notes shall be capitalized on each date that interestis due on the Bank Holders Restructured Principal pursuant to this Section8.04 and shall not constitute Cash Interest for purposes of this Agreementor any other Operative Document for so long as any Indebtedness evidenced by aGM Note may not be paid under the Subordination Agreement.

###  

### (e)                                  Anythingherein or in any other Operative Document to the contrary notwithstanding, theobligations for the payment of interest to any Lender hereunder shall besubject to the limitation that payments of interest shall not be required forany period for which interest is computed hereunder, to the extent (but only tothe extent) that contracting for or receiving such payment of interest by suchLender would be contrary to the provisions of any law applicable to such Lenderlimiting the highest rate of interest that may be lawfully contracted for,charged or received by such Lender, and in such event Borrower shall pay suchinterest at the highest rate permitted by Applicable Law.

###  

## Section 8.05                                Fees.

##  

### (a)                                  AgencyFees.  Borrower shall pay to eachAgent for the account of such Agent the agency fee separately agreed to byBorrower and such Agent at such times as agreed to by Borrower and such Agent.

###  

### (b)                                 RestructuringFee.  Borrower shall pay in cash onthe Closing Date to the Shared Payment and Collateral Agent for the account ofeach Lender a non-refundable fee in the amount of 0.5% of the RestructuredPrincipal held by such Lender on such date.

###  

## Section 8.06                                Computationof Interest.

##  

### (a)                                  Allcomputations of interest shall be made on the basis of a 360-day year comprisedof twelve 30-day months and the actual number of days elapsed.  Interest shall accrue during each periodduring which interest is computed from the first day thereof to the last daythereof.  The Shared Payment andCollateral Agent shall determine for each Monthly Payment Date the amounts ofCash Interest due and payable to, and PIK Interest to be added to the AccretedPIK Balance of, the applicable Lenders and notify Borrower, the SEN CollateralAgent and the Bank Holders Administrative Agent of such amounts no later thanthree (3) Business Days prior to such Monthly Payment Date.

###  

### (b)                                 TheLIBOR Rate for each Interest Period shall be determined by the Shared Paymentand Collateral Agent, which shall provide notice thereof to each of Borrower,the Bank Holders Administrative Agent and the SEN Collateral Agent (whichnotice shall include the method of determining such LIBOR Rate in accordancewith the definition thereof) no later than 11:00 a.m. on the date that istwo (2) Business Days prior to the start of each new Interest Period.  Each determination of an interest rate bythe Shared Payment and Collateral Agent shall be conclusive and binding onBorrower and the Lenders in the absence of manifest error.

###  

## Section 8.07                                Subordinationof Payments on GM Notes.  Anythingherein or in any other Operative Document to the contrary notwithstanding, theObligations with respect to the GM

 

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## Notesare subordinated to the prior indefeasible payment in full in cash in Dollarsof all other Obligations, including pursuant to this Article VIII, inaccordance with the provisions of the Subordination Agreement.

##  

# **ARTICLE IX**EVENTS OF DEFAULT

# ** **

## Section 9.01                                Eventof Default.  Any of the followingshall constitute an “**Event of Default**”:

##  

### (a)                                  Non-Payment.  Borrower or any Principal Subsidiary failsto pay, when and as required to be paid herein or in the other OperativeDocuments, (i) any amount of principal of any Restructured Debt (includingany prepayments in accordance with Section 8.01) or (ii) anyinterest, fee, SEN Make-Whole Amount, Additional Amounts or any other amountpayable hereunder or under any other Operative Document and such failure to payinterest, fees or other amounts (other than principal) shall continueunremedied for three (3) Business Days; provided that the failureto pay any Obligation in respect of any GM Note as a result of thesubordination provisions contained in the Subordination Agreement shall notconstitute a Default or an Event of Default for any purpose under thisAgreement or any other Operative Document; or

###  

### (b)                                 Representationor Warranty.  Any representation orwarranty by Borrower or any Guarantor made or deemed made herein or in anyother Operative Document, or which is contained in any certificate, document orother written statement by Borrower or any Guarantor or any Responsible Officerof Borrower or such Guarantor furnished at any time under this Agreement, or inor under any other Operative Document, is incorrect in any material respect onor as of the date made or deemed made and such default (unless it is a willfulmisrepresentation) shall continue unremedied for a period of thirty (30)days after the earlier of (i) the date upon which a Responsible Officer ofBorrower or such Guarantor knew of such failure or (ii) the date uponwhich written notice thereof is given to Borrower by any Lender; or

###  

### (c)                                  SpecificDefaults.  Borrower or any Guarantor(a) fails to perform or observe any term, covenant or agreement containedin Section 4.03(b), Section 4.05(a), Section 4.08(a), Section4.15, Section 5.01, Section 5.02, Section 5.03, Section5.04, Section 5.05, Section 5.09, Section 5.12 or Section5.16 or (b) pays any Obligation relating to any GM Note incontravention of the provisions of the Subordination Agreement; or

###  

### (d)                                 SpecificDefaults-30 Day.  Unless otherwisereferenced within this Section 9.01, Borrower or any Guarantor fails toperform or observe any term, covenant or agreement contained in Article V,and such failure shall continue unremedied for a period of thirty (30)days after the earlier of (i) the date upon which a Responsible Officer ofBorrower or such Guarantor knew of such failure or (ii) the date uponwhich written notice thereof is given to Borrower by any Lender; or

###  

### (e)                                  SpecificDefaults-45-Day.  Unless otherwisereferenced within this Section 9.01, if Borrower or any Guarantorfails to perform or observe any term, covenant or agreement contained in Article IV,or Clause Second or Clause Seventh of the Mexican Security TrustAgreement, and such failure shall continue unremedied for a period offorty-five (45) days after

 

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### theearlier of (i) the date upon which a Responsible Officer of Borrower or suchGuarantor knew of such failure or (ii) the date upon which written noticethereof is given to Borrower by any Lender; or

###  

### (f)                                    SpecificDefaults-90-Day.  Borrower or anyGuarantor fails to perform or observe any term, covenant or agreement containedin Article VI, and such failure shall continue unremedied for a periodof ninety (90) days after the earlier of (i) the date upon which aResponsible Officer of Borrower or such Guarantor knew of such failure or(ii) the date upon which written notice thereof is given to Borrower byany Lender; or

###  

### (g)                                 SpecificDefaults-120-Day.  Unless otherwisereferenced in this Section 9.01, Borrower or any Guarantor shallfail to observe or perform any term, covenant or condition under thisAgreement, the Restructured Trust Indenture, the Bank Holders Restructured LoanAgreement or any other Operative Document and such failure shall continueunremedied for a period of one hundred twenty (120) days after the earlierof (i) the date upon which a Responsible Officer of Borrower or suchGuarantor knew of such failure or (ii) the date upon which written noticethereof is given to Borrower by any Lender; or

###  

### (h)                                 Cross-Default.  Borrower or any Guarantor or any of their respectiveSubsidiaries:

###  

#### (i)                                     failsto make any payment when due (whether at scheduled maturity, requiredprepayment, acceleration, demand or otherwise) of principal, interest or otheramounts aggregating in excess of $10,000,000 (or the equivalent in other currencies)in respect of any Indebtedness or Contingent Obligation (other than anyObligation evidenced by any Operative Document) and such failure continuesafter the applicable grace or notice period, if any, specified in the relevantdocuments on the date of such failure, or

####  

#### (ii)                                  failsto perform or observe any other condition or covenant, or any other event shalloccur or condition exist, under any agreement or instrument relating to anyIndebtedness or Contingent Obligation (other than any Obligation evidenced byany Operative Document) in principal amounts aggregating in excess of$10,000,000 (or the equivalent in other currencies), and such failure continuesthirty (30) days after the applicable grace or notice period, if any, specifiedin the relevant document on the date of such failure, if the effect of suchfailure, event or condition is to cause, or to permit the holder or holders ofsuch Indebtedness or Contingent Obligations or beneficiary or beneficiaries ofsuch Indebtedness or Contingent Obligations (or a trustee or agent on behalf ofsuch holder or holders or beneficiary or beneficiaries) to cause suchIndebtedness to be declared to be due and payable prior to its stated maturity,or such Contingent Obligation to become payable or cash collateral in respectthereof to be demanded; or

####  

### (i)                                     Insolvency;Voluntary Proceedings.  Borrower orany Guarantor (i) becomes insolvent as determined in accordance withApplicable Law, or generally fails to pay, or admits in writing its inabilityto pay, its debts as they become due, subject to applicable grace periods, ifany, whether at stated maturity or otherwise; (ii) voluntarily ceases toconduct its business in the ordinary course other than any temporary shut downby such Person of mining facilities in

 

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### responseto a labor dispute for a period of no longer than six (6) months;(iii) commences any Insolvency Proceeding with respect to itself; or(iv) takes any action to effectuate or authorize any of the foregoing; or

###  

### (j)                                     InvoluntaryProceedings.  (i) Anyinvoluntary Insolvency Proceeding is commenced or filed against Borrower or anyGuarantor or any writ, judgment, warrant of attachment, execution or similarprocess, is issued or levied against a substantial part of the properties ofBorrower or any Guarantor and any such proceeding or petition shall not bedismissed, or such writ, judgment, warrant of attachment, execution or similarprocess shall not be released, vacated or fully bonded, within sixty (60)days after commencement, filing or levy; (ii) Borrower or any Guarantoradmits the material allegations of a petition against it in any InsolvencyProceeding, or an order for relief (or similar order under non-U.S. law) isordered in any Insolvency Proceeding; or (iii) Borrower or any Guarantorapplies for, consents to or acquiesces in the appointment of, or, in theabsence of such application, consent or acquiescence, permits or suffers toexist for more than sixty (60) days, a receiver, trustee, custodian,conservator, liquidator, mortgagee in possession (or agent therefor),visitador, conciliador, sindico, interventor, or other similar Person foritself or a substantial portion of its property or business; or

###  

### (k)                                  MonetaryJudgments.  One or more non-interlocutoryjudgments, non-interlocutory orders, decrees or arbitration awards are enteredagainst Borrower or any Guarantor involving in the aggregate a liability (tothe extent not covered by independent third-party insurance as to which theinsurer does not dispute coverage) as to any single or related series oftransactions, incidents or conditions, of $10,000,000 (or the equivalent inother currencies) or more, and the same shall remain unsatisfied, unvacated andunstayed pending appeal for a period of sixty (60) days after the entrythereof; or

###  

### (l)                                     Non-MonetaryJudgments.  One or more non-monetaryjudgments, orders or decrees are entered against Borrower, any Guarantor or anyof their respective Subsidiaries that do or would reasonably be expected tohave a Material Adverse Effect, and there shall be any period of sixty (60)consecutive days during which a stay of enforcement of such judgments, ordersor decrees, by reason of a pending appeal or otherwise, shall not be in effect;or

###  

### (m)                               Changeof Control.  There occurs any Changeof Control; or

###  

### (n)                                 OperativeDocuments and Liens.  Any OperativeDocument at any time terminates or otherwise ceases to be in full force andeffect other than pursuant to its terms, or is declared to be void or partiallyor wholly revoked or invalidated, or Borrower, any Guarantor, or any Affiliateof any thereof, contests in any manner the validity or enforceability thereofor denies that it has any further liability or obligation thereunder, or anyLien created under any Operative Document ceases to be a valid and perfectedfirst priority Lien, except as otherwise permitted therein; or

###  

### (o)                                 Expropriation,etc.  There shall have occurred anyloss, seizure, compulsory requisition, expropriation or nationalization by anyGovernmental Authority of all or any material part of the property of Borroweror any Guarantor that would reasonably be expected to result in a MaterialAdverse Effect; or

 

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### (p)                                 ReserveInterest Deficiency.  The SENInterest Reserve Account shall not be funded at any time with an amount atleast equal to the SEN Interest Reserve Account Required Balance, and suchfailure shall either have occurred (i) on each of three consecutiveMonthly Payment Dates or (ii) on any four Monthly Payment Dates within acalendar year.

###  

# **ARTICLE X**REMEDIES

# ** **

## Section 10.01                          Lenders’Remedies.  Following the occurrenceof any Event of Default, upon written direction of the Required Lenders, theShared Payment and Collateral Agent shall, and with respect to the SENCollateral the SEN Collateral Agent shall, subject to the terms and conditionsof the Operative Documents:

##  

### (a)                                  declarethe unpaid principal amount of all outstanding Restructured Debt, all interestaccrued and unpaid thereon, and all other amounts owing or payable hereunder orunder any other Operative Document to be immediately due and payable directlyfrom Borrower or the Guarantors, without presentment, demand, protest or othernotice of any kind, all of which are hereby expressly waived by Borrower andeach Guarantor;

###  

### (b)                                 exerciseon behalf of itself, the SEN Trustee and the Lenders all rights and remediesavailable to it, the SEN Trustee and the Lenders under the CollateralDocuments, any other Operative Documents or Applicable Law; or

###  

### (c)                                  exerciseany other remedy available to a secured creditor under law or in equity.

###  

## Section 10.02                          Trapping.  Upon the occurrence of an Event of Defaultas described in Section 9.01(a), Section 9.01(i) or Section 9.01(j),and receipt of written notice of such Event of Default, the SEN CollateralAgent shall trap cash deposited in any Collection Account as further describedin Section 7.01(b)(i).  Upon theoccurrence of an Event of Default other than those described in Section9.01(a), Section 9.01(i) and Section 9.01(j), and receipt ofwritten direction from the Required SEN Holders, the SEN Collateral Agent shalltrap cash deposited in any Collection Account as further described in Section7.01(b)(ii).

##  

## Section 10.03                          RightsCumulative; No Marshaling; Waivers.

##  

### (a)                                  Eachof Borrower and each Guarantor hereby agrees that the rights and remedies setforth in Section 10.01 and in the other provisions of the OperativeDocuments are cumulative and may be exercised singly or concurrently or fromtime to time and are in addition to all other rights and remedies howeverexisting or arising.  Subject to theprovisions of Clause Thirteenth of the Mexican Security Trust Agreement,to the extent that it lawfully may, each of Borrower and each Guarantor herebyagrees that it will not at any time plead, claim or take the benefit of anyappraisement, valuation, stay, extension, moratorium or redemption law now orhereafter in force and any requirement of marshaling in the event offoreclosure of the security interests hereby created, the effect of which mightbe to prevent or delay the enforcement of any Collateral Document or theabsolute sale of the whole or any part of the Shared Collateral, the SENCollateral or the possession thereof by the Shared Payment and Collateral Agentor the SEN Collateral Agent, as applicable, or any purchaser at any salethereof by the Shared Payment and Collateral Agent or the SEN Collateral Agent,as applicable.  Each of Borrower and each

 

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### Guarantor,for itself and all who may claim under Borrower or any such Guarantor and asfar as each of Borrower and such Guarantor lawfully may do so, hereby waivesand releases the benefit of all such laws. Except as otherwise expressly provided in this Agreement or theapplicable Collateral Document, to the extent permitted by Applicable Law, eachof Borrower and each Guarantor hereby waives presentment, demand, protest, orany notice of any kind in connection with, any Collateral Document.

###  

### (b)                                 Awaiver by the Shared Payment and Collateral Agent or the SEN Collateral Agentof any right or remedy hereunder on any one occasion shall not be construed asa bar to any right or remedy that the Shared Payment and Collateral Agent orthe SEN Collateral Agent would otherwise have had on any future occasion.  No failure to exercise, nor any delay inexercising, on the part of the Shared Payment and Collateral Agent, the SENCollateral Agent, the SEN Trustee or any of the Lenders, any right, power,remedy or privilege hereunder shall operate as a waiver thereof, nor shall anysingle or partial exercise of any right, power, remedy or privilege hereunderpreclude any other or further exercise thereof or the exercise of any otherright, power, remedy or privilege.

###  

## Section 10.04                          RightsNot Exclusive.  The rights providedfor in this Agreement and the other Operative Documents are cumulative and arenot exclusive of any other rights, powers, privileges or remedies provided bylaw or in equity, or under any other instrument, document or agreement nowexisting or hereafter arising.

##  

# **ARTICLE XI**INDEMNIFICATION; COSTS AND EXPENSES

# ** **

## Section 11.01                          Indemnification.  Whether or not the transactions contemplatedhereby are consummated, Borrower and each Guarantor, jointly and severally,shall indemnify and hold harmless each Agent, the SEN Trustee, each Lender andtheir respective Affiliates, directors, officers, employees, counsel, agentsand attorneys-in-fact (each an “**Indemnified Person**”) from and against anyand all liabilities, obligations, losses, damages, penalties, claims, demands,actions, judgments, suits, costs, charges, expenses and disbursements(including Attorney Costs) of any kind or nature whatsoever that may at anytime (including at any time following repayment of the Restructured Debt andthe termination, resignation or replacement of any Agent) be imposed on,incurred by or asserted against any such Person in any way relating to orarising out of or in connection with (a) the execution, delivery,enforcement, performance or administration of this Agreement or any otherOperative Document or any other agreement, letter or instrument delivered inconnection with the transactions contemplated hereby or thereby or theconsummation of the transactions contemplated hereby or thereby, or(b) any actual or alleged violation of any Environmental Laws by or fromany property currently or formerly owned or operated by Borrower or anyGuarantor, or any environmental liability related in any way to Borrower or anyGuarantor, or (c) any actual or prospective claim, litigation,investigation or proceeding relating to any of the foregoing, whether based oncontract, tort or any other theory (including any investigation of, preparationfor, or defense of any pending or threatened claim, investigation, litigationor proceeding) and regardless of whether any Indemnified Person is a partythereto (all the foregoing, collectively, the “**Indemnified Liabilities**”);provided that such indemnity shall not, as to any Indemnified Person, beavailable to the extent that such liabilities, obligations, losses, damages,penalties, claims, demands,

 

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## actions,judgments, suits, costs, charges, expenses or disbursements are determined by acourt of competent jurisdiction by final and nonappealable judgment to haveresulted from the gross negligence or willful misconduct of such IndemnifiedPerson.  No Indemnified Person shall beliable for any damages arising from the use by others of any information orother materials obtained through IntraLinks or other similar informationtransmission systems in connection with this Agreement or any OperativeDocument, nor shall any Indemnified Person have any liability for any indirector consequential damages relating to this Agreement or any other OperativeDocument or in connection with or arising out of its activities in connectionherewith or therewith (whether before or after the Closing Date).  All amounts due under this Section 11.01shall be payable within ten (10) Business Days after demand therefor.  The agreements in this Section 11.01shall survive the resignation of any Agent, the replacement of the SEN Trusteeor any Lender, the termination of any of the Operative Documents and the repayment,satisfaction or discharge of all other Obligations.

##  

## Section 11.02                          Costsand Expenses.  (a)  Borrower and each Guarantor, jointly andseverally, shall pay or reimburse:

##  

#### (i)                                     eachAgent, the SEN Trustee, each Lender and each Export Credit Agency on or priorto the Closing Date for all reasonable and documented fees, costs and expenses(A) incurred by or charged to any such Agent, the SEN Trustee or suchLender in connection with or arising out of the development, negotiation,preparation, delivery and execution of (in each case, whether or notconsummated) this Agreement, any other Operative Document and any otherdocuments prepared in connection herewith or therewith, and the consummation ofthe transactions contemplated hereby and thereby, including reasonable anddocumented Attorney Costs and fees and costs of the Financial Advisor,(B) incurred by or charged to any such Export Credit Agency in connectionwith or arising out of the amendment or extension of its guarantee relating todebt guaranteed by such Export Credit Agency under the Existing Bank Agreementsand (C) without duplication of other amounts specified under this Section11.02(a)(i), incurred by or charged to any such Agent, the SEN Trustee,such Lender or such Export Credit Agency in connection with or arising out ofany Existing Bank Agreement or any Existing SEN Agreement to which such Personis a party, or any guarantee relating to debt guaranteed by such Export CreditAgency under the Existing Bank Agreements, to the extent Borrower or anyGuarantor is liable under such agreement or guarantee for such fees, costs andexpenses, including reasonable and documented Attorney Costs, and such fees,costs (including interest break funding costs) and expenses have not previouslybeen paid or reimbursed, and

####  

#### (ii)                                  eachAgent, the Bank Holders, the SEN Trustee and the SEN Holders withinfive (5) Business Days after demand for all reasonable and documentedfees, costs and expenses incurred by or charged to any such Agent, the BankHolders, the SEN Trustee and the SEN Holders in connection with or arising outof the amendment, supplement, consent, waiver, modification or administrationof this Agreement, any other Operative Document and any other documentsprepared in connection herewith or therewith (in each case, whether or notconsummated), and the administration of the transactions contemplated herebyand thereby, including reasonable and documented Attorney Costs (providedthat each of (A) the Bank Holders as a group and (B) the SEN

 

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#### Holders together with the SEN Trustee as a group,shall each have the right, unless otherwise agreed by Borrower, to engage asingle U.S. and single Mexican legal counsel for such group) and fees and costsof the Financial Advisor (provided that the amount of the FinancialAdvisor’s fees that are reimbursable by Borrower and the Guarantors from theClosing Date to and including the first anniversary of the Closing Date shallnot exceed the Financial Advisor’s Fee Cap; and provided, further,that the calculation of the Financial Advisor’s Fee Cap shall not include feesand expenses that arise as a result of (x) an Event of Default,(y) any dispute between Borrower and the Lenders with respect to anycalculations required to be computed and certified by Borrower and delivered tothe Lenders hereunder or under any other Operative Document, including inaccordance with Section 8.01(g), or (z) time spent by the FinancialAdvisor in connection with its participation in teleconferences and meetingswith the Lenders, at the Lenders’ reasonable request);

####  

### (b)                                 payor reimburse each Agent, the SEN Trustee, each Lender and each Export CreditAgency within five (5) Business Days after demand for all reasonable anddocumented costs and expenses (including Attorney Costs, consultant or advisorfees or costs, and Taxes) incurred by them in connection with or arising out ofthe enforcement, attempted enforcement, or preservation of any rights orremedies under this Agreement or any other Operative Document and theprotection or preservation of any right or claim by any such Person againstBorrower or any Guarantor arising out of this Agreement or any other OperativeDocument during the existence of an Event of Default or after acceleration ofthe Restructured Debt (including in connection with any “workout” orrestructuring regarding the Restructured Debt, and including in any InsolvencyProceeding or appellate proceeding); and

###  

### (c)                                  paythe foregoing costs and expenses, including all search, filing and recordingcharges and fees and taxes related thereto incurred by any Lender, any Agent orany Export Credit Agency in connection herewith or in connection with any otherOperative Document.

###  

# **ARTICLE XII**TAXES; YIELD PROTECTION; ILLEGALITY; PAYMENTS

# ** **

## Section 12.01                          Taxes.

##  

### (a)                                  Exceptas hereinafter provided in this Section 12.01, any and all payments toany Lender, the SEN Trustee or any Agent under this Agreement or any otherOperative Document shall be made free and clear of, and without deduction orwithholding for, any Taxes imposed by any jurisdiction in which Borrower or anyGuarantor is organized or domiciled, or from or through which Borrower or anyGuarantor effects such payment, or by any political subdivision or taxingauthority thereof.

###  

### (b)                                 If,in respect of any sum payable hereunder or under any other Operative Documentto any Lender, the SEN Trustee or any Agent, Borrower or any Guarantor shall berequired by law to deduct or withhold any Taxes imposed by any jurisdiction inwhich Borrower or any Guarantor is organized or domiciled, or from or throughwhich Borrower or such Guarantor effects such payment, or by any politicalsubdivision or taxing authority thereof, then:

 

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#### (i)                                     thesum payable shall be increased (such increased amount being an “**AdditionalAmount**”) as necessary so that after making all required deductionsand withholdings (including deductions and withholdings applicable toadditional sums payable under this Section 12.01), such Lender, the SENTrustee or such Agent, as the case may be, receives and retains an amount equalto the sum it would have received and retained had no such deductions orwithholdings been made;

####  

#### (ii)                                  Borroweror such Guarantor, as the case may be, shall make such deductions andwithholdings; and

####  

#### (iii)                               Borrower or suchGuarantor, as the case may be, shall pay the full amount deducted or withheldto the relevant taxing authority or other authority in accordance withApplicable Law.

####  

### (c)                                  Borrowerand each Guarantor agree, jointly and severally, to indemnify and hold harmlesseach Lender, the SEN Trustee and each Agent for the full amount of Taxesimposed by any jurisdiction in which Borrower or any Guarantor is organized ordomiciled, or from or through which Borrower or such Guarantor effects payment,or by any political subdivision or taxing authority thereof paid or payable bysuch Lender, the SEN Trustee or such Agent, and any liability (includingpenalties, interest, additions to tax and expenses) arising therefrom or withrespect thereto, whether or not such Taxes were correctly or legallyasserted.  Payment under thisindemnification shall be made within ten (10) days after the date theapplicable Lender or the applicable Agent makes written demand therefor.

###  

### (d)                                 Withinten (10) days after the date of any payment by Borrower or any Guarantorof Taxes imposed by any jurisdiction in which Borrower or any Guarantor isorganized or domiciled, or from or through which Borrower or such Guarantoreffects payment, or by any political subdivision or taxing authority thereof,Borrower or such Guarantor shall furnish to the applicable Lender or theapplicable Agent (with a copy to the Bank Holders Administrative Agent in thecase where such Lender is a Bank Holder and to the SEN Collateral Agent in thecase where such Lender is a SEN Holder) the original or a certified copy of areceipt evidencing payment thereof or other evidence of payment satisfactory tosuch Lender.

###  

### (e)                                  IfBorrower or any Guarantor is required to pay any amount to any Lender pursuantto subsection (b) or (c) of this Section 12.01,then such Lender shall use reasonable efforts (consistent with its internalpolicies and legal and regulatory restrictions) to change the jurisdiction ofits Lending Office if such change would eliminate any such additional paymentby Borrower or such Guarantor that may thereafter accrue, and if such change inthe sole judgment of such Lender is not otherwise disadvantageous to suchLender.

###  

### (f)                                    Notwithstandingthe foregoing provisions of this Section 12.01, neither Borrowernor any Guarantor shall be obligated to pay any Agent or any Lender any amountsdescribed in this Section 12.01 in respect of Taxes that would nothave been imposed but for the failure of such Agent or such Lender(i) (A) with respect to the Bank Holders only, to be registered withHacienda as a foreign financial institution for purposes of Article 195,Section I of the Mexican Income Tax Law and the regulations thereunder, tothe extent such registration continues to be a requirement for the applicationof a lower withholding tax rate on interest payments under the

 

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### MexicanIncome Tax Law, and (B) to be a resident (or to have the principal officesof such Lender be a resident, if such Lender lends through a branch or agency)for tax purposes of a jurisdiction with which Mexico has in effect a treaty forthe avoidance of double taxation, (ii) with respect to the Bank Holdersonly, to use its reasonable efforts (consistent with legal and regulatoryrestrictions) to maintain its registration with *Hacienda* as a foreignfinancial institution for purposes of Article 195, Section I of theMexican Income Tax Law and the regulations thereunder, to the extent suchregistration continues to be a requirement for the application of a lowerwithholding tax rate on interest payments under Mexican Income Tax Law, if themaking of such registration would not, in the reasonable judgment of suchLender or such Agent, be materially disadvantageous to such Lender or suchAgent or (iii) following a reasonable written request of Borrower or suchGuarantor upon forty-five (45) days’ prior written notice (and at the sole costand expense of Borrower), to complete and file with the appropriateGovernmental Authority, such forms, certificates or documents (collectively, “**Forms**”)prescribed by law, rule or regulation enacted or issued by Mexico, or by adouble taxation treaty to which Mexico is a party and that is in effect, thatare necessary to avoid or reduce such Taxes pursuant to provisions of any law,rule or regulation enacted or issued by Mexico, or a double taxation treaty towhich Mexico is a party and is then in effect; provided that (x) suchLender or such Agent shall be under no obligation to (1) provide anyinformation to Borrower or any Guarantor that such Lender or such Agent deems,in such Lender’s or such Agent’s judgment, to be confidential or(2) complete, execute and deliver any Form hereunder if it is an ExportCredit Agency, (y) such Lender or such Agent is legally entitled tocomplete, execute and deliver such Forms, and (z) the completion,execution and delivery of such Forms will not result, in the good faith,reasonable determination of such Lender or such Agent, in the imposition onsuch Lender or such Agent of (1) any additional material legal orregulatory obligations or liabilities, (2) any additional materialout-of-pocket costs or (3) any other material adverse consequences.

###  

### (g)                                 Borrowershall pay on each Monthly Payment Date to each Lender, or to each Agent for theaccount of each Lender, that is a Mexican bank, additional amounts sufficientto compensate such Lender for Taxes imposed, levied, collected, withheld orassessed by Mexico (or by any political subdivision or taxing authority thereofor therein) on payments made by such Lender under any lending arrangemententered into by such Lender in order to maintain its Restructured Debthereunder or under any other Operative Document; provided, however,that Borrower shall have no obligation to pay such additional amount in excessof an amount equal to the minimum Mexican withholding tax applicable to thePerson from which such Lender has arranged to maintain its Restructured Debthereunder or under any other Operative Document, provided such Person is(i) registered with *Hacienda* as a foreign financialinstitution for purposes of Article 195, Section I of the MexicanIncome Tax Law and (ii) a resident for tax purposes of a jurisdiction withwhich Mexico has in effect a treaty for the avoidance of double taxation.

###  

## Section 12.02                          Illegality.

##  

### (a)                                  Afterthe Closing Date, if any Lender determines that the introduction of anyApplicable Law, or any change in any Applicable Law, or in the interpretationor administration of any Applicable Law, has made it unlawful, or that anycentral bank or other Governmental Authority has asserted that it is unlawful,for any Lender or its applicable Lending Office to

 

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### make ormaintain its LIBOR Loan or Loans or to determine or charge interest rates basedupon the LIBOR Rate, then, on notice thereof by such Lender to Borrower throughthe Bank Holders Administrative Agent in the case where such Lender is a BankHolder and through the SEN Collateral Agent in the case where such Lender is aSEN Holder, any obligation of that Lender to maintain its LIBOR Loan or Loansshall be suspended until such Lender notifies such Agent and Borrower that thecircumstances giving rise to such determination no longer exist.

###  

### (b)                                 Ifa Lender determines that it is unlawful to maintain its LIBOR Loan or Loans,Borrower hereby agrees that upon its receipt of notice of such fact and demandfrom such Lender (with copies to (x) the Shared Payment and CollateralAgent and (y)(1) the Bank Holders Administrative Agent in the case wheresuch Lender is a Bank Holder and (2) the SEN Collateral Agent in the casewhere such Lender is a SEN Holder), such LIBOR Loan or Loans of such Lender thenoutstanding shall, from the date upon which such Lender notified Borrower ofsuch fact, accrue interest thereon pursuant to Section 8.04; providedthat (i) each reference therein to the term “LIBOR Rate” shall, withrespect to such LIBOR Loan or Loans of such Lender, be deemed to be a referenceto the term “Base Rate”, (ii) the term “Applicable Margin” shall, withrespect to such LIBOR Loan or Loans of such Lender, be reduced by onehundred (100) basis points from the Applicable Margin used in calculatingthe rate applicable to each other LIBOR Loan and (iii) the applicable InterestPeriods shall be Interest Periods consisting of a single day; and provided,further that, as provided in Section 8.04(b), each MonthlyPayment Date after the Maturity Date shall be the last Business Day of eachcalendar month thereafter.

###  

### (c)                                  Beforegiving any notice to the applicable Agent under this Section 12.02,the affected Lender shall designate a different Lending Office with respect toits LIBOR Loan or Loans if such designation will avoid the need for giving suchnotice or making such demand and will not, in the good faith but otherwise inthe sole and absolute judgment of such Lender, be inconsistent with itsinternal policies, illegal or otherwise disadvantageous to such Lender.

###  

## Section 12.03                          IncreasedCosts.

##  

### (a)                                  Ifany Lender determines that either (i) the introduction of, or any changein, or in the interpretation of, any law or regulation made or effective afterthe Closing Date or (ii) the compliance by such Lender with any guidelineor request from any central bank or other Governmental Authority (whether ornot having the force of law) made after the Closing Date:

###  

#### (i)                                     shallsubject any Lender to any tax of any kind whatsoever with respect to thisAgreement or any other Operative Document, the LIBOR Loan or Loans maintainedby it pursuant to this Agreement or any other Operative Document or change thebasis of taxation of payments to such Lender in respect thereof (except forTaxes covered by Section 12.01 and the introduction of or yearly changesin the rate of tax on the overall net income of such Lender or its LendingOffice, as the case may be);

####  

#### (ii)                                  shallimpose, modify or hold applicable any reserve, special deposit, compulsory loanor similar requirement against assets held by, deposits or other liabilities inor for the account of, advances, loans or other extensions of credit by, or anyother acquisition of funds by, any office of such Lender; or

 

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#### (iii)                               shall impose on suchLender any other condition affecting this Agreement or any other OperativeDocument, its Note(s) or any of its LIBOR Loans, as the case may be,

####  

and as a result of any of the foregoing, there shallbe any increase in the cost to such Lender of agreeing to make or making,funding or maintaining any LIBOR Loan to Borrower, then Borrower shall beliable for, and shall from time to time, within ten (10) days afterwritten demand (with a copy of such demand to be sent by such Lender to(x) the Shared Payment and Collateral Agent and (y) (1) the BankHolders Administrative Agent in the case where such Lender is a Bank Holder and(2) the SEN Collateral Agent in the case where such Lender is a SENHolder), pay to the Bank Holders Administrative Agent or the SEN CollateralAgent, as the case may be, for the account of such Lender additional amounts asare sufficient to compensate such Lender for such increased costs; provided,however, that if a Lender fails to give notice within one year after itbecomes aware of such introduction of, or change in, or in the interpretationof, any law or regulation, it shall be entitled to additional amounts underthis Section 12.03(a) only for increased costs incurred from and afterthe date that is one year prior to the giving of notice to Borrower.  For purposes of calculating amounts payableby Borrower to the Lenders under this Section 12.03(a) (and each relatedreserve, special deposit or similar requirement), any LIBOR Loan maintained bya Lender shall be conclusively deemed to have been funded at the LIBOR Rate forsuch LIBOR Loan by a matching deposit or other borrowing in the Londoninterbank eurodollar market for a comparable amount and for a comparableperiod, whether or not such LIBOR Loan is in fact so funded.

 

### (b)                                 Ifafter the Closing Date any Lender shall have determined that (i) theintroduction of any Capital Adequacy Regulation, (ii) any change in anyCapital Adequacy Regulation or (iii) any change in the interpretation oradministration of any Capital Adequacy Regulation by any central bank or otherGovernmental Authority charged with the interpretation or administrationthereof would affect the amount of capital required or expected to bemaintained by such Lender or any Person controlling such Lender and determines(taking into consideration such Lender’s or such Person’s policies with respectto capital adequacy and such Lender’s desired return on capital) that theamount of such capital is increased as a consequence of its LIBOR Loan orLoans, credits or obligations under this Agreement, then, within ten (10)days after written demand by such Lender to Borrower through the Bank HoldersAdministrative Agent in the case where such Lender is a Bank Holder and throughthe SEN Collateral Agent in the case where such Lender is a SEN Holder,Borrower shall pay to such Lender, from time to time as specified by suchLender, additional amounts sufficient to compensate such Lender for suchincrease.

###  

### (c)                                  Beforegiving any notice to the applicable Agent under this Section 12.03,any affected Lender shall designate a different Lending Office with respect toits LIBOR Loans if such designation will avoid the need for giving such noticeor making such demand and will not, in the good faith but otherwise in the soleand absolute judgment of such Lender, be inconsistent with its internalpolicies, illegal or otherwise disadvantageous to such Lender.

###  

## Section 12.04                          FundingLosses.  Upon demand therefor by anyLender (with a copy of such demand to be sent to the Bank Holders AdministrativeAgent in the case where such Lender is a Bank Holder and the SEN CollateralAgent in the case where such Lender is a SEN Holder)

 

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## fromtime to time, Borrower shall reimburse such Lender and hold such Lenderharmless from any loss or expense that such Lender may sustain or incur as aconsequence of:

##  

### (a)                                  thefailure of Borrower to make on a timely basis any payment of principal of anyLIBOR Loan;

###  

### (b)                                 thefailure of Borrower to make any prepayment of any LIBOR Loan in accordance withany notice delivered under Section 8.01(e); or

###  

### (c)                                  theprepayment for any reason, including after acceleration thereof, of all or anyportion of any LIBOR Loan on a day that is not the last day of the relevantInterest Period,

###  

including any such loss or expense arising from theliquidation or reemployment of funds obtained by it to maintain its LIBOR Loanor Loans or from fees payable to terminate the deposits from which such fundswere obtained.  For purposes of calculatingamounts payable by Borrower to the Lenders under this Section 12.04(and each related reserve, special deposit or similar requirement), each LIBORLoan made by a Lender shall be conclusively deemed to have been funded at theLIBOR Rate for such LIBOR Loan by a matching deposit or other borrowing in theLondon interbank eurodollar market for a comparable amount and for a comparableperiod, whether or not such LIBOR Loan is in fact so funded.

 

## Section 12.05                          Inabilityto Determine Rates.  If the SharedPayment and Collateral Agent or the Required Floating Rate Lenders determinethat for any reason adequate and reasonable means do not exist for determiningthe LIBOR Rate for any applicable Interest Period with respect to any LIBORLoan, or if the Required Floating Rate Lenders determine that the LIBOR Ratefor any applicable Interest Period with respect to any LIBOR Loan does notadequately and fairly reflect the cost to the Lenders thereof of funding suchLIBOR Loan, the Shared Payment and Collateral Agent, upon any suchdetermination by the Shared Payment and Collateral Agent or upon its receipt ofwritten notice of any such determination by the Required Floating Rate Lenders,will promptly so notify Borrower and each Floating Rate Lender (with a copy ofsuch notice to be sent to the Bank Holders Administrative Agent in the casewhere such Lender is a Bank Holder and the SEN Collateral Agent in the casewhere such Lender is a SEN Holder). Thereafter, the obligation of the Floating Rate Lenders to maintainLIBOR Loans hereunder or under any other Operative Document shall be suspendeduntil the Shared Payment and Collateral Agent (acting upon the direction of theRequired Floating Rate Lenders if applicable) revokes such notice in writing(with a copy of such notice to be sent to the Bank Holders Administrative Agentin the case where such Lender is a Bank Holder and the SEN Collateral Agent inthe case where such Lender is a SEN Holder). Upon receipt and prior to revocation of such notice, the Floating RateLenders shall continue the affected LIBOR Loans, but such LIBOR Loans shall,subject, in any event, to Section 8.04(b), instead bear interest ata rate agreed upon between Borrower and the Required Floating Rate Lenders ingood faith (the “**Substitute Rate**”), which Substitute Rate shall apply to allaffected LIBOR Loans or, if no Substitute Rate can be agreed upon, at a rate,for each Floating Rate Lender, equal to the cost to such Floating Rate Lender(as reasonably determined by such Floating Rate Lender in good faith) offunding or maintaining its LIBOR Loan plus the Applicable Margin (in which casethe Applicable Margin with respect thereto shall continue to be determined asif such loan is a LIBOR Loan).  Withintwo (2) Business Days after such substitution of interest rate and noticethereof to the Shared Payment

 

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## andCollateral Agent by Borrower, Borrower and each Guarantor shall deliver to theapplicable Lender (with a copy to the Agents) substitute Notes duly executed byan authorized representative of Borrower as maker and, with respect to the BankHolders Notes only, each Guarantor as *avalista*.

##  

## Section 12.06                          Reserves.  Without duplication of any amounts payableunder Section 12.03(a), Borrower shall pay to each Lender, if suchLender determines (in good faith but otherwise such determination to beconclusive absent manifest error) that any reserves are applicable to it(including any marginal, emergency, supplemental, special or other reserves)with respect to “Eurocurrency liabilities” (as such term is defined underRegulation D of the F.R.S. Board or any successor provision) or otherwisewith respect to liabilities or assets consisting of or including Eurocurrencyfunds or deposits, such additional costs on the unpaid principal amount of suchLender’s Restructured Debt, based on such reserves at the maximum rate and asallocated to such Restructured Debt by such Lender, as determined by suchLender in good faith, which determination shall be conclusive absent manifesterror, payable on each date on which interest is payable on such RestructuredDebt; provided that Borrower shall have received at least ten days’prior written notice (with a copy of such notice to be sent by such Lender to(x) the Shared Payment and Collateral Agent and (y) (1) the BankHolders Administrative Agent in the case where such Lender is a Bank Holder and(2) the SEN Collateral Agent in the case where such Lender is a SENHolder) of such additional interest from such Lender.  If a Lender fails to give notice at least ten (10) daysprior to the relevant Monthly Payment Date, such additional interest shall bepayable ten (10) days after receipt of such notice.

##  

## Section 12.07                          Certificatesof Lenders.  Any Lender claimingreimbursement or compensation under this Article XII shall deliverto Borrower (with a copy to the Shared Payment and Collateral Agent), togetherwith its claim for reimbursement or compensation, a certificate setting forthin reasonable detail the amount payable to such Lender hereunder or under anyother Operative Document, and such certificate shall be conclusive and bindingon Borrower in the absence of manifest error.

##  

## Section 12.08                          Paymentsby Borrower and Agents.

##  

### (a)                                  Allpayments to be made by Borrower and any Agent under this Agreement or any otherOperative Document shall be made without set-off, deduction, recoupment,counterclaim or other defense.  Exceptas otherwise expressly provided herein or in any other Operative Document, eachpayment by Borrower to any Agent shall be made to such Agent outside Mexico forthe account of such Agent or the applicable Lenders at such Agent’s PaymentOffice, and shall be made in Dollars and in immediately available funds, on theBusiness Day prior to, but in any case no later than 11:00 a.m. (New YorkCity time) on, the date specified under this Agreement or any other OperativeDocument.  Unless otherwise expresslyprovided herein, (i) if any Agent receives any such payment no later than5:00 p.m. (New York City time) on the Business Day immediately precedingany date specified for payment, such Agent will distribute to each applicableLender its *prorata* share (unless otherwise provided hereunder) of such payment inlike funds as received by wire transfer to such Lender’s Lending Office by nolater than 3:00 p.m. (New York City time) on the next following BusinessDay, (ii) if any Agent receives any such payment after 5:00 p.m. (NewYork City time) on the Business Day immediately preceding any date specifiedfor payment but no later than 11:00 a.m. (New York

 

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### Citytime) on any date specified for payment or on any other Business Day, suchAgent will distribute to each applicable Lender its *pro rata* share (unless otherwiseprovided hereunder) of such payment in like funds as received by wire transferto such Lender’s Lending Office by no later than 5:00 p.m. (New York Citytime) on such date or other Business Day, and (iii) if any Agent receives anysuch payment later than 11:00 a.m. (New York City time) on any datespecified for payment or on any other Business Day, such Agent will distributeto each applicable Lender its *pro rata* share (unless otherwise providedhereunder) of such payment in like funds as received by wire transfer to suchLender’s Lending Office by no later than 3:00 p.m. (New York City time) onthe next following Business Day.  Ifsuch funds are not so distributed by the subject Agent to a Lender by the timesset forth in the immediately preceding sentence, such Agent shall pay intereston such funds at the Federal Funds Rate to such Lender until such funds havebeen paid to each Lender in accordance herewith.  If, pursuant to a distribution in accordance with clause (ii) ofthis Section 12.08(a), any Lender receives such funds after3:00 p.m. on the Business Day of such distribution and is not able toinvest such funds on such Business Day, Borrower shall pay interest on suchfunds at the Federal Funds Rate to such Lender until the next following BusinessDay.  Other than as set forth inclause (i) of this Section 12.08(a), any payment received by anyAgent later than 11:00 a.m. (New York City time) on any Business Day shallbe deemed to have been received on the next following Business Day and any applicableinterest or fee shall continue to accrue. Notwithstanding the foregoing, nothing in this Section 12.08(a)shall obligate the Bank Holders Administrative Agent to receive or distributeany payment under the Operative Documents.

###  

### (b)                                 TheShared Payment and Collateral Agent shall notify in writing the Bank HoldersAdministrative Agent and the SEN Collateral Agent of each payment that theShared Payment and Collateral Agent is making to the Bank Holders and the SENHolders, as the case may be, including (i) information as to the *pro rata*share being paid to each individual Bank Holder and SEN Holder that is providedto it by Borrower and (ii) whether such payment conforms to the amountsthat Borrower notified the Shared Payment and Collateral Agent was payable tothe Bank Holders and the SEN Holders, not later than 5:00 p.m. (New YorkCity time) on the date of such payment.

###  

### (c)                                  Wheneverany payment related to the Restructured Debt is due on a day other than aBusiness Day, such payment shall be made on the following Business Day, andsuch extension of time shall in such case be included in the computation ofinterest or fees, as the case may be.

###  

### (d)                                 IfBorrower fails to make any payment of interest on the SEN Holders Notes by5:00 p.m. (New York City time) on the Business Day immediately precedingany date specified for payment thereof under this Agreement or any otherOperative Document, the Shared Payment and Collateral Agent shall immediatelynotify the SEN Collateral Agent of such failure and direct the SEN CollateralAgent to withdraw funds from the SEN Interest Reserve Account in an amountnecessary to satisfy such interest payment obligation.  To effect any withdrawal of funds from theSEN Interest Reserve Account pursuant to the terms of the SEN SecurityAgreement, the SEN Collateral Agent shall cause such funds to be immediatelywithdrawn and delivered directly to the Shared Payment and Collateral Agent’sPayment Office, and the Shared Payment and Collateral Agent shall distributesuch funds to the SEN Holders in satisfaction of the interest due and owing onthe SEN Holders Notes by no later than 3:00 p.m. on the date

 

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### specifiedfor payment.  If, after distribution tothe SEN Holders of funds from the SEN Interest Reserve Account pursuant to theimmediately preceding sentence, the Shared Payment and Collateral Agentreceives any payment from Borrower in satisfaction of the interest amounts paidwith such funds, the Shared Payment and Collateral Agent shall promptly deliversuch funds to the SEN Collateral Agent and the SEN Collateral Agent shallpromptly deposit such funds in the SEN Interest Reserve Account.

###  

## Section 12.09                          Sharingof Payments, Etc.  If, other than asexpressly provided elsewhere herein (other than Section 14.09), anyLender shall obtain on account of any Restructured Debt made by it any payment(whether voluntary, involuntary, through the exercise of any right of set-off(including Section 14.09), litigation or otherwise) in excess of itsratable share or other share contemplated hereunder (other than any paymentmade pursuant to Section 12.01, Section 12.02, Section 12.03or Section 12.04), such Lender shall immediately (a) notifythe Shared Payment and Collateral Agent and Borrower in writing of such fact(with a copy of such notice to be sent by such Lender to the Bank HoldersAdministrative Agent in the case where such Lender is a Bank Holder and to theSEN Collateral Agent in the case where such Lender is a SEN Holder) and (b) purchasefrom the other Lenders such participations in the Restructured Debt made bythem as shall be necessary to cause such purchasing Lender to share the excesspayment *prorata* with each of them; provided, however, that anyLender that obtains any payment on account of the Restructured Debt made by itas a result of litigation shall be required to purchase participations inRestructured Debt made by other Lenders pursuant to this Section 12.09only to the extent such other Lenders committed, before the outcome of thelitigation was known, to share, and shared on a *pro rata* basis, the cost ofsuch litigation; and provided, further, that if all or anyportion of such excess payment is thereafter recovered from the purchasingLender, such purchase shall to that extent be rescinded and each other Lendershall repay to the purchasing Lender the purchase price paid therefor, togetherwith an amount equal to such paying Lender’s ratable share (according to theproportion of (i) the amount of such paying Lender’s required repayment to(ii) the total amount so recovered from the purchasing Lender) of anyinterest or other amount paid or payable by the purchasing Lender in respect ofthe total amount so recovered, without further interest thereon.  Promptly after delivery of such notice, suchLender shall deliver the amount of such payment to the Shared Payment andCollateral Agent and Borrower shall direct the Shared Payment and CollateralAgent how to apply such payment among the Lenders as a result of the purchase ofsuch participations.  Borrower and eachGuarantor agree that any Lender so purchasing a participation from anotherLender may, to the fullest extent permitted by law, exercise all its rights ofpayment (including the right of set-off, but subject to Section 14.09)with respect to such participation as fully as if such Lender were the directcreditor of Borrower or such Guarantor in the amount of suchparticipation.  The Shared Payment andCollateral Agent will keep records (which shall be conclusive and binding inthe absence of manifest error) of distributions pursuant to this Section 12.09and will in each case notify the Lenders and the Bank Holders AdministrativeAgent following any such purchases or repayments.  Notwithstanding anything to the contrary in this Agreement(including this Section 12.09), in any other Operative Document or underany Applicable Law, this Section 12.09 shall not be applicable toany amounts received or obtained by any GM Guaranty Beneficiary (i) as aresult of any payment under the GM Guaranty (including Section 2.1thereof), (ii) from the purchase of any Specified Note by GM ascontemplated by Section 6.22 of the GM Guaranty or (iii) as aresult of the exercise of any remedy (including as the result of any right ofset-off) by any such GM Guaranty Beneficiary against GM, any of its Affiliates(other than MM and its

 

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## Subsidiaries),or any of their respective assets or the proceeds thereof; provided, however,that any payment made by GM under or in connection with the GM Guaranty thatresults in a reduction of the Guaranteed Obligations (as defined in the GMGuaranty) consisting of the principal amount of any Guaranteed Loans (asdefined in the GM Guaranty), other than (A) any payment made ascontemplated under the GM Guaranty (as in effect on the date hereof), includingpursuant to Section 2.1 or 6.22 thereof (each, a “**ContemplatedPayment**”) and (B) any amounts applied in respect of anyContemplated Payment as a result of the exercise of any remedy (including asthe result of any right of set-off) by any such GM Guaranty Beneficiary againstGM, any of its Affiliates (other than MM and its Subsidiaries), or any of theirrespective assets or the proceeds thereof, shall be subject to the provisionsof this Section 12.09.

##  

# **ARTICLE XIII**SHARED PAYMENT AND COLLATERAL AGENT

# ** **

## Section 13.01                          Appointmentand Authorization of Shared Payment and Collateral Agent.  Each Lender and the SEN Trustee herebyirrevocably appoints, designates and authorizes the Shared Payment andCollateral Agent to take such action on its behalf under the provisions of thisAgreement and each other Operative Document and to exercise such powers andperform such duties as are expressly delegated to it by the terms of thisAgreement or any other Operative Document, together with such powers as arereasonably incidental thereto. Notwithstanding any provision to the contrary contained elsewhere hereinor in any other Operative Document, the Shared Payment and Collateral Agentshall not have any duties or responsibilities except those expressly set forthherein, nor shall the Shared Payment and Collateral Agent have or be deemed tohave any fiduciary relationship with any Lender or the SEN Trustee, and noimplied covenants, functions, responsibilities, duties, obligations orliabilities shall be read into this Agreement or any other Operative Documentor otherwise exist against the Shared Payment and Collateral Agent.  Without limiting the generality of theforegoing sentence, the use of the term “agent” herein and in the otherOperative Documents with reference to the Shared Payment and Collateral Agentis not intended to connote any fiduciary or other implied (or express)obligations arising under agency doctrine of any Applicable Law.  Instead, such term is used merely as amatter of market custom, and is intended to create or reflect only anadministrative relationship between independent contracting parties.

##  

## Section 13.02                          Delegationof Duties.  The Shared Payment and CollateralAgent may execute any of its duties under this Agreement or any other OperativeDocument by or through agents, employees or attorneys-in-fact and shall beentitled to advice of counsel and other consultants or experts concerning allmatters pertaining to such duties.  TheShared Payment and Collateral Agent shall not be responsible for the negligenceor misconduct of any agent or attorney-in-fact that it selects with reasonablecare.

##  

## Section 13.03                          NoLiability of Agent-Related Persons. No Agent-Related Person shall (a) be liable for any action taken oromitted to be taken by any of them under or in connection with this Agreementor any other Operative Document or the transactions contemplated hereby orthereby (except for its own gross negligence or willful misconduct inconnection with its duties expressly set forth herein), or (b) beresponsible in any manner for any recital, statement, representation orwarranty made by any of Borrower, any Guarantor, any Agent-Related Person

 

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## or anyLender or any officer of any of the foregoing, contained herein or in any otherOperative Document, or in any certificate, report, statement or other documentreferred to or provided for in, or received by the Shared Payment andCollateral Agent under or in connection with this Agreement or any otherOperative Document, or the validity, effectiveness, genuineness, enforceabilityor sufficiency of this Agreement or any other Operative Document or any SENCollateral or Shared Collateral or any security interest created hereby andthereby, or for any failure of any of Borrower, any Guarantor, or any Lender orany other party to any Operative Document (other than itself) to perform itsobligations hereunder or thereunder.  NoAgent-Related Person shall be under any obligation to ascertain or to inquireas to the observance or performance of any of the agreements contained in, orconditions of, this Agreement or any other Operative Document, or to inspectthe properties, books or records of any of Borrower, any Guarantor, any Lender,the SEN Trustee or any Affiliate thereof.

##  

## Section 13.04                          Relianceby Agent-Related Persons.  EachAgent-Related Person shall be entitled to rely, and shall be fully protected inrelying, upon any writing, communication, signature, resolution,representation, notice, consent, certificate, affidavit, letter, telegram,facsimile, telex or telephone message, electronic mail message, statement orother document or conversation believed by it to be genuine and correct and tohave been signed, sent or made by the proper Person or Persons, and upon adviceand statements of legal counsel (including counsel to Borrower, any Guarantor,any Agent-Related Person, the SEN Trustee or Lender), independent accountantsand other experts selected by any Agent-Related Person.  Each Agent-Related Person shall be fullyjustified in failing or refusing to take any action under any OperativeDocument unless it shall first receive such advice, direction or concurrence ofthe Required Lenders as it requests and, if it so requests, it shall first beindemnified to its satisfaction by the Required Lenders against any and allliability and expense that may be incurred by it by reason of taking orcontinuing to take any such action; provided that for any Lender subjectto the limitations on incurrence of indemnification obligations under theUnited States Anti-Deficiency Act or any similar law in effect in thejurisdiction of its formation, such Agent-Related Person shall not require anindemnity but shall rely on the provisions of Section 13.07.  Each Agent-Related Person shall in all casesbe fully protected in acting, or in refraining from acting, under thisAgreement or any other Operative Document in accordance with a request,direction or consent of the Required Lenders (or such greater number of Lendersas may be expressly required hereby in any instance) and such request,direction or consent and any action taken or failure to act pursuant theretoshall be binding upon all the Lenders.

##  

## Section 13.05                          Noticeof Default.  None of the SharedPayment and Collateral Agent nor any Agent-Related Person related to the SharedPayment and Collateral Agent shall be deemed to have knowledge or notice of theoccurrence of any Default or Event of Default, except the Shared Payment andCollateral Agent with respect to defaults in the payment of principal, interestand fees required to be paid to the Shared Payment and Collateral Agent for theaccount of the Lenders, the SEN Trustee or the Shared Payment and CollateralAgent, unless such Agent-Related Person shall have received written notice fromthe Shared Payment and Collateral Agent, a Lender, the SEN Trustee, Borrower orany Guarantor referring to this Agreement, describing such Default or Event ofDefault and stating that such notice is a “notice of default.”  Such Agent-Related Person promptly shallnotify the Lenders of its receipt of any such notice and of the occurrence ofany default in the payment of principal, interest or fees required to be paidto the Shared Payment and Collateral Agent for the account of the Lenders.  The Shared Payment

 

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## andCollateral Agent shall take such action with respect to such Default or Eventof Default as may be directed by the requisite Lenders in accordance with Article X;provided that unless and until the Shared Payment and Collateral Agenthas received any such direction, the Shared Payment and Collateral Agent may(but shall not be obligated to) take such action, or refrain from taking suchaction, with respect to such Default or Event of Default as it shall deemadvisable or in the best interest of the Lenders.

##  

## Section 13.06                          CreditDecision.  Each Lender acknowledgesthat no Agent-Related Person has made any representation or warranty to it, andthat no act by any Agent-Related Person hereinafter taken, including anyconsent to and acceptance of any assignment or review of the affairs of GM,Borrower, any Guarantor, any Agent-Related Person or any Lender and any oftheir respective Affiliates, shall be deemed to constitute any representationor warranty by any Agent-Related Person to any Lender or other Agent-RelatedPerson as to any matter, including whether Agent-Related Persons have disclosedmaterial information in their possession. Each Lender represents to each Agent that it has, independently andwithout reliance upon any Agent-Related Person and based upon such documentsand information as it has deemed appropriate, made its own appraisal of andinvestigation into the business, prospects, operations, property, financial andother condition and creditworthiness of Borrower, any Guarantor, anyAgent-Related Person or Lender and any of their respective Affiliates, and allapplicable bank or other regulatory laws relating to the transactionscontemplated hereby, and made its own decision to enter into this Agreement andto comply with the terms hereof and of the other Operative Documents.  Each Lender also represents that it shall,independently and without reliance upon any Agent-Related Person and based uponsuch documents and information as it shall deem appropriate at the time,continue to make its own credit analysis, appraisals and decisions in taking ornot taking action under the Operative Documents, and to make suchinvestigations as it deems necessary to inform itself as to the business,prospects, operations, property, financial and other condition andcreditworthiness of Borrower or any Guarantor and their respective Affiliates.  Except for notices, reports and otherdocuments expressly herein or in the other Operative Documents required to befurnished to the Lenders by the Shared Payment and Collateral Agent or otherspecified Agent-Related Person, no Agent-Related Person shall have any duty orresponsibility to provide any Lender with any credit or other informationconcerning the business, prospects, operations, property, financial and othercondition or creditworthiness of Borrower, any Guarantor, any Agent-RelatedPerson or their respective Affiliates that may come into the possession of anyof the Agent-Related Persons.

##  

## Section 13.07                          Indemnificationof Agent-Related Persons of the Shared Payment and Collateral Agent.  Whether or not the transactions contemplatedhereby are consummated, each Lender that is not subject to the limitations onincurrence of indemnification obligations under the United StatesAntideficiency Act or any similar law in effect in the jurisdiction of itsformation (each, an “**Indemnifying Lender**”) agrees to indemnifyupon demand, and hold harmless, the Shared Payment and Collateral Agent andeach other Agent-Related Person related to the Shared Payment and CollateralAgent from and against any and all Indemnified Liabilities, and suchAgent-Related Persons shall have the right to set off and appropriate and apply(which set-off right may be exercised on behalf of any such Agent-RelatedPerson by the Shared Payment and Collateral Agent) from any and all amountsreceived by the Shared Payment and Collateral Agent from Borrower and theGuarantors and payable to the Lenders (whether or not such Lender is anIndemnifying Lender and without duplication of amounts paid by any

 

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## IndemnifyingLender hereunder) the amount of such Indemnified Liabilities, in each case(a) to the extent not reimbursed by or on behalf of any of Borrower or anyGuarantor(and without limiting the obligation of any of Borrower or anyGuarantor to do so) and (b) on a *pro rata* basis based upon the outstandingprincipal amount of such Lender’s Restructured Debt; provided that noIndemnifying Lender shall be liable for the payment to any such Person of, andno such Person shall have any such set-off right with respect to, any portionof the Indemnified Liabilities resulting solely from such Person’s (or any ofits officers’, directors’, employees’, representatives’, attorneys’ or agents’)gross negligence or willful misconduct as determined pursuant to a final,non-appealable judgment by a court of competent jurisdiction; provided, however,that no action taken in accordance with the directions of the requiredpercentage of Lenders hereunder shall be deemed to constitute gross negligenceor willful misconduct for purposes of this Section 13.07.  Without limitation of the foregoing, eachIndemnifying Lender shall reimburse each of the Shared Payment and CollateralAgent and each other Agent-Related Person related to the Shared Payment andCollateral Agent upon demand for, and each such Agent-Related Person shall havethe right to set off and appropriate and apply (which set-off right may beexercised on behalf of any such Agent-Related Person by the Shared Payment andCollateral Agent) from any and all amounts received from Borrower and theGuarantors, the amount of such Lender’s ratable share of any costs orout-of-pocket expenses (including Attorney Costs) incurred by suchAgent-Related Person in connection with the preparation, execution, delivery,administration, modification, amendment or enforcement (whether throughnegotiations, legal proceedings or otherwise) of, or legal advice in respect ofrights or responsibilities under, any Operative Document or any documentcontemplated by or referred to therein, to the extent that such Agent-RelatedPerson is not reimbursed for such expenses by or on behalf of any of Borroweror any Guarantor.  Each suchAgent-Related Person exercising set-off rights hereunder agrees promptly tonotify the applicable Lenders and the Bank Holders Administrative Agent of anysuch set-off and application made by, or by the Shared Payment and CollateralAgent on behalf of, such Agent-Related Person; provided that the failureto give such notice shall not affect the validity of such set-off andapplication.  The undertakings andset-off rights in this Section 13.07 shall survive the payment ofall Obligations hereunder and under the Operative Documents, the termination ofthe Operative Documents and, as to any relevant Agent-Related Person, theresignation or replacement of such Agent-Related Person.

##  

## Section 13.08                          TheAgent-Related Persons of the Shared Payment and Collateral Agent in theirIndividual Capacity.  Each of theShared Payment and Collateral Agent and each other Agent-Related Person relatedto the Shared Payment and Collateral Agent may make loans to, issue letters ofcredit for the account of, accept deposits from, acquire equity interests inand generally engage in any kind of banking, trust, financial advisory,underwriting or other business with each of Borrower or any Guarantor and theirrespective Affiliates as though such Agent-Related Person did not act in suchcapacity under the Operative Documents, without notice to or consent of theLenders.  The Lenders acknowledge that,pursuant to such activities, such Agent-Related Persons may receive informationregarding any of Borrower or any Guarantor (including information that may besubject to confidentiality obligations in favor of such Person) and acknowledgethat no such Agent-Related Person shall be under any obligation to provide suchinformation to any Lender.  With respectto its Restructured Debt, any Lender that also acts as the Shared Payment andCollateral Agent under the Operative Documents shall have the same rights andpowers under the Operative Documents as any other Lender and may exercise thesame as though it were not the Shared Payment and Collateral Agent thereunder.

 

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## Section 13.09                          Resignations;Successor Agent.  The Shared Paymentand Collateral Agent may upon thirty (30) days’ prior written notice to theLenders and the SEN Trustee, and at the request of the Required Lenders shall,resign as the Shared Payment and Collateral Agent.  If the Shared Payment and Collateral Agent resigns under this Agreement,the Required Lenders shall appoint from among the Lenders a successor SharedPayment and Collateral Agent for the Lenders, subject (so long as no Default orEvent of Default is then continuing) to the approval of Borrower, such approvalnot to be unreasonably withheld or delayed. If no successor Shared Payment and Collateral Agent is appointed priorto the effective date of the resignation of the Shared Payment and CollateralAgent, the Shared Payment and Collateral Agent may appoint, after consultingwith the Required Lenders and Borrower, a successor Shared Payment andCollateral Agent from among the Lenders. Upon the acceptance of its appointment as successor Shared Payment andCollateral Agent hereunder, (a) such successor Shared Payment and CollateralAgent shall succeed to all the rights (including as to the same fees except asotherwise agreed by the applicable Persons), powers and duties of the retiringShared Payment and Collateral Agent under this Agreement and the otherOperative Documents, (b) the term “Shared Payment and Collateral Agent”shall mean such successor Shared Payment and Collateral Agent and (c) theretiring Shared Payment and Collateral Agent’s appointment, rights, powers andduties as the Shared Payment and Collateral Agent shall be terminated; providedthat the retiring Shared Payment and Collateral Agent’s rights under this Article XIIIand Section 11.01 and Section 11.02 shall survive suchretirement.  After the retiring SharedPayment and Collateral Agent’s resignation hereunder, this Article XIIIand Section 11.01 and Section 11.02 shall inure to itsbenefit as to any actions taken or omitted to be taken by it while it was theShared Payment and Collateral Agent under the Operative Documents.  If no successor Shared Payment andCollateral Agent has accepted appointment as the Shared Payment and CollateralAgent by the date that is thirty (30) days after the retiring SharedPayment and Collateral Agent’s notice of resignation, the retiring SharedPayment and Collateral Agent’s resignation shall nevertheless thereupon becomeeffective and the Lenders shall perform all of the duties of the Shared Paymentand Collateral Agent hereunder until such time, if any, as the Required Lendersappoint a successor Shared Payment and Collateral Agent as provided for above.

##  

## Section 13.10                          AgentsMay File Proofs of Claim.  In caseof the pendency of any receivership, insolvency, *concurso mercantil*,liquidation, bankruptcy, reorganization, arrangement, adjustment, compositionor other judicial proceeding relative to Borrower or any Guarantor, any Agent(irrespective of whether the principal of the Restructured Debt shall then bedue and payable as herein expressed or by declaration or otherwise andirrespective of whether the Shared Payment and Collateral Agent or such otherAgent shall have made any demand on Borrower) shall be entitled and empoweredunless otherwise directed by a Lender, by intervention in such proceeding orotherwise:

##  

### (a)                                  tofile and prove a claim for the whole amount of the principal and interest owingand unpaid in respect of the Restructured Debt and all other Obligations thatare owing and unpaid and to file such other documents as may be necessary oradvisable in order to have the claims of the Lenders, the SEN Trustee and theAgents (including any claim for the reasonable compensation, expenses,disbursements and advances of the Lenders, the SEN Trustee and the Agents andtheir respective agents and counsel and all other amounts due the Lenders, theSEN Trustee and the Agents under the Operative Documents) allowed in suchproceeding; and

 

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### (b)                                 tocollect and receive any monies or other property payable or deliverable on anysuch claims and to distribute the same;

 

and any custodian, receiver, assignee, trustee,liquidator, sequestrator, *visitador, conciliador, síndico, interventor*or other similar official in any such proceeding is hereby authorized by eachLender, each Agent and the SEN Trustee to make such payments to the SharedPayment and Collateral Agent and, in the event that the Shared Payment andCollateral Agent shall consent to the making of such payments directly to theLenders, the Agents and the SEN Trustee, to pay directly to any affectedAgent-Related Person any amount due for the reasonable compensation, expenses,disbursements and advances of such Agent-Related Person, and any other amountsdue such Agent-Related Person hereunder and under the other OperativeDocuments.

 

Borrower and each Guarantor hereby irrevocablyacknowledge and agree that the Shared Payment and Collateral Agent or any otherAgent may carry out any of the acts provided for in this Section 13.10.

 

Nothing contained herein shall be deemed to authorizeany Agent-Related Person to authorize or consent to or accept or adopt onbehalf of any Lender any plan of reorganization, arrangement, adjustment orcomposition affecting the Obligations or the rights of any Lender or the SENTrustee or to authorize such Agent-Related Person to vote in respect of theclaim of any Lender or the SEN Trustee in any such proceeding.

 

## Section 13.11                          Collateraland Guaranty Matters.  The Lendersand the SEN Trustee irrevocably authorize the Shared Payment and CollateralAgent, upon its receipt of (x) a request from Borrower and (y) acertificate of a Responsible Officer of Borrower describing the relevanttransaction and certifying that (1) such transaction complies with therequirements of this Section 13.11 and (2) all conditions tosuch transaction contained in the Operative Documents have been complied with:

##  

### (a)                                  torelease any Lien on any property granted to or held by the Shared Payment andCollateral Agent under any Operative Document (other than as provided in ClauseNinth of the Mexican Security Trust Agreement) (i) upon indefeasiblepayment in full in cash of all Obligations (other than contingentindemnification obligations), (ii) that is sold or to be sold as part ofor in connection with any sale permitted under any Operative Document, or (iii) ifapproved, authorized or ratified in writing by the Lenders in accordance with Section 14.01;

###  

### (b)                                 tosubordinate any Lien on any property granted to or held by the Shared Paymentand Collateral Agent under any Operative Document to the holder of any Lien onsuch property that is permitted to be first ranking by any Operative Document;and

###  

### (c)                                  torelease any Guarantor from its obligations under the Affiliate Guaranty if suchPerson ceases to be a Subsidiary of Borrower as a result of a transactionpermitted under any Operative Document.

###  

Upon request by the Shared Payment and CollateralAgent at any time, the Required Lenders will confirm in writing the SharedPayment and Collateral Agent’s authority to release or subordinate its interestin particular types or items of property, or to release any Guarantor from itsobligations under the Affiliate Guaranty pursuant to this Section 13.11.

 

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## Section 13.12                          Actsof Lenders, Bank Holders and SEN Holders.

##  

### (a)                                  Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction provided by this Agreement or any other Operative Document to be givenor taken by the Lenders, the Bank Holders or the SEN Holders, as the case maybe, may be embodied in and evidenced by one or more instruments ofsubstantially similar tenor signed by such Lenders, Bank Holders or SEN Holdersin person or by agent duly appointed in writing; and, except as hereinotherwise expressly provided, such action shall become effective when suchinstrument or instruments are delivered to the Shared Payment and CollateralAgent, the Bank Holders Administrative Agent or the SEN Collateral Agent, asthe case may be, and, where it is hereby expressly required, to Borrower andthe Guarantors.  Proof of execution ofany such instrument or of a writing appointing any such agent shall besufficient for any purpose of this Agreement and the other Operative Documentsand conclusive in favor of the Shared Payment and Collateral Agent, the BankHolders Administrative Agent and the SEN Collateral Agent, as the case may be,and Borrower and the Guarantors, if made in the manner provided in this Section13.12.

###  

### (b)                                 Thefact and date of the execution by any Person of any such instrument or writingmay be proved in any reasonable manner that the Shared Payment and CollateralAgent, the Bank Holders Administrative Agent or the SEN Collateral Agent, asthe case may be, deems sufficient.

###  

### (c)                                  Anyrequest, demand, authorization, direction, notice, consent, waiver or otheraction by a Lender, Bank Holder or SEN Holder shall bind the holder of everyNote issued upon the transfer of such Lender’s, Bank Holder’s or SEN Holder’sNotes or in exchange therefor or in lieu thereof, in respect of anything doneor suffered to be done by the Shared Payment and Collateral Agent, the BankHolders Administrative Agent or the SEN Collateral Agent, as the case may be,in reliance thereon, whether or not notation of such action is made upon suchNotes.

###  

## Section 13.13                          OtherMatters With Respect to Shared Payment and Collateral Agent.

##  

### (a)                                  Noprovision of this Agreement or any other Operative Document (other than asspecifically provided in the fourth sentence of Section 12.08(a))shall require the Shared Payment and Collateral Agent to expend or risk its ownfunds or otherwise incur any financial liability in the performance of any ofits duties hereunder or thereunder, or in the exercise of any of its rights orpowers, if it shall have reasonable grounds for believing that repayment ofsuch funds or adequate indemnity against such risk or liability is notreasonably assured to it.

###  

### (b)                                 Whetheror not expressly so provided herein or therein, every provision of thisAgreement and the other Operative Documents relating to the conduct or affectingthe liability of or affording protection to the Shared Payment and CollateralAgent shall be subject to the provisions of this Article XIII.

###  

### (c)                                  Ineach case that the Shared Payment and Collateral Agent may or is requiredhereunder or under any other Operative Document to take any action (an “**Action**”),including to formulate opinions, to make determinations, to make requests, togive consents, to exercise

 

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### rights,powers or remedies, to release or sell collateral, to appoint a receiver orother entity to enforce a security interest or otherwise to act hereunder orunder any other Operative Document, the Shared Payment and Collateral Agent mayseek direction from the Required Lenders. The Shared Payment and Collateral Agent shall not be liable with respectto any Action taken or omitted to be taken by it in good faith in accordancewith the direction of the Required Lenders. If the Shared Payment and Collateral Agent shall request direction from theRequired Lenders with respect to any Action, the Shared Payment and CollateralAgent shall be entitled to refrain from such Action unless and until suchShared Payment and Collateral Agent shall have received direction from theRequired Lenders, and the Shared Payment and Collateral Agent shall not incurliability to any Person by reason of so refraining.

###  

### (d)                                 Withrespect to the Bank Holders, the Shared Payment and Collateral Agent shallrely, and shall be fully protected in relying, upon the most recent Register(as defined in the Bank Holders Restructured Loan Agreement) delivered to theShared Payment and Collateral Agent by the Bank Holders AdministrativeAgent.  The Shared Payment andCollateral Agent may treat the Person in whose name any Bank Holders Note isregistered as the owner of such Bank Holders Note for the purpose of receivingdistributions hereunder and for all other purposes whatsoever, and the SharedPayment and Collateral Agent shall not be affected by any notice to thecontrary.

###  

### (e)                                  TheShared Payment and Collateral Agent shall not be bound to make anyinvestigation into the facts or matters stated in any resolution, certificate,statement, instrument, opinion, report, notice, request, direction, consent,order, bond, debenture or other paper or document, including any calculationscontained in any such document.

###  

## Section 13.14                          TheMexican Security Trust Agreement.

##  

### (a)                                  Thereasonable fees and expenses of the Advisor (as defined in the Mexican SecurityTrust Agreement) shall be paid by Borrower, and the Shared Payment andCollateral Agent shall have no responsibility or liability therefor, either inits capacity as Shared Payment and Collateral Agent or in its individualcapacity.

###  

### (b)                                 EveryAction to be taken by the Shared Payment and Collateral Agent under the MexicanSecurity Trust Agreement, including making determinations, making requests,giving consents, exercising rights, powers or remedies, appointing the Advisor,approving sales, instituting or canceling foreclosure proceedings or otherwiseacting under the Mexican Security Trust Agreement, shall be taken at thedirection of the Required Lenders.  TheShared Payment and Collateral Agent shall not be liable with respect to anyaction taken or omitted to be taken by it in good faith in accordance with suchdirection of the Required Lenders.  Ifthe Shared Payment and Collateral Agent shall request direction from theRequired Lenders with respect to any such action, the Shared Payment and CollateralAgent shall be entitled to refrain from such action unless and until suchShared Payment and Collateral Agent shall have received direction from theRequired Lenders, and the Shared Payment and Collateral Agent shall not incurliability to any Person by reason of so refraining.

 

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# **ARTICLE XIV**MISCELLANEOUS

# ** **

## Section 14.01                          Amendmentsand Waivers.

##  

### (a)                                  CommonOperative Documents.  No amendment,modification or waiver of any provision of this Agreement or any other CommonOperative Document, and no consent with respect to any departure by Borrower orany Guarantor therefrom, shall be effective unless the same shall be in writingand signed by the Super-Majority Lenders (or (x) by the Agent(s) party to theapplicable Common Operative Document or, (y) with respect to the MexicanSecurity Trust Agreement, by the Shared Mexican Trustee after receipt ofdirection from the Shared Payment and Collateral Agent, in each case at thewritten direction of the Super-Majority Lenders) and Borrower and acknowledgedby such Agent, and then any such waiver or consent shall be effective only inthe specific instance and for the specific purpose for which given; provided,however, that no such amendment, modification, waiver or consent shall, unlessin writing and signed by Borrower and each Lender negatively affected therebyand acknowledged by such Agent, (A) postpone or delay any date fixed by thisAgreement or any other Common Operative Document for any payment of principal(including any such payment of principal occurring in respect of a PrepaymentEvent, where such Prepayment Event shall have previously occurred at the timesuch amendment, modification, waiver or consent shall be requested), interest,fees or other amounts due to the Lenders (or any of them) hereunder or underany other Common Operative Document, (B) reduce the principal of, or the rateof interest specified herein on, the Restructured Debt or any fees or otheramounts payable hereunder or under any other Common Operative Document(provided that the consent of the Super-Majority Lenders shall be sufficient toamend or modify the definition of Default Interest Rate or to waive anyobligation of Borrower to pay interest at the Default Interest Rate) or (C)release all or substantially all of the Liens (through one or a series oftransactions) under the Collateral Documents, or release any Guarantor from itsobligations under the Affiliate Guaranty, except as expressly permitted by Section13.11; provided, further, that no such amendment, modification,waiver or consent shall, unless in writing and signed by all the Lenders andBorrower and acknowledged by such Agent:

###  

#### (i)                                     changethe percentage of the aggregate unpaid principal amount of the RestructuredDebt that is required for the Lenders or any of them to take any actionhereunder or under any other Common Operative Document or modify the definitionof the term “Super-Majority Lenders”, “Required Lenders”, “Required BankHolders”, “Required SEN Holders” or “Required Floating Rate Lenders”; or

####  

#### (ii)                                  amendor modify Section 8.02 in a manner that would alter the pro-rata sharingof payments required thereby; or

####  

#### (iii)                               amend or modify this Section14.01, Section 12.09 or Section 14.09, or any other provisionherein or in any other Common Operative Document providing for consent or otheraction by all Lenders, the Super-Majority Lenders, the Required Lenders, theRequired Bank Holders, the Required SEN Holders or the Required Floating RateLenders.

 

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### (b)                                 SENHolders Operative Documents.  Nosupplemental indenture, amendment, modification or waiver of any provision of Section5.08 or any provision of the Restructured Trust Indenture or any other SENHolders Operative Document, and no consent with respect to any departure byBorrower or any Guarantor therefrom, shall be effective unless the same shallbe in writing and signed by the SEN Trustee (if the SEN Trustee is a party tosuch SEN Holders Operative Documents), the Required SEN Holders (or by the Agent(s)party to the applicable SEN Holders Operative Document at the written directionof the Required SEN Holders) and Borrower and acknowledged by such Agent, andthen any such waiver or consent shall be effective only in the specificinstance and for the specific purpose for which given; provided, however,that no such amendment, modification, waiver or consent shall, unless inwriting and signed by all the SEN Holders and Borrower and acknowledged by suchAgent, do any of the following:

###  

#### (i)                                     amendor modify any provision in any SEN Holders Operative Document providing forconsent or other action by all SEN Holders or the Required SEN Holders, or

####  

#### (ii)                                  amend,modify or waive any provision of Article XV or Section 16.4 ofthe Restructured Trust Indenture or Section 9.6 of the SEN SecurityAgreement;

####  

provided, further, that nosuch supplemental indenture, amendment, modification, waiver or consent shall,unless in writing and signed by the SEN Trustee, do any of the following:

 

(x)                                   amendor modify any provision in any SEN Holders Operative Document providing forconsent or other action by the SEN Trustee, or

 

(y)                                 amend,modify or waive any provision of Section 16.4 of the Restructured TrustIndenture or Section 9.6 of the SEN Security Agreement;

 

provided, further, that (1)no such supplemental indenture, amendment, modification, waiver or consentshall, unless in writing and signed by Borrower, each Guarantor, the SENTrustee and each SEN Holder negatively affected thereby and acknowledged by theSEN Collateral Agent, (A) postpone or delay any date fixed by the RestructuredTrust Indenture or any other SEN Holders Operative Document for any payment ofprincipal (including any such payment of principal occurring in respect of aPrepayment Event, where such Prepayment Event shall have previously occurred atthe time such supplemental indenture, amendment, modification, waiver orconsent shall be requested), interest, fees or other amounts due to the SENHolders (or any of them) under any SEN Holders Operative Document, (B) reducethe principal amount of, or the rate of interest specified therein on, theNotes (as defined in the Restructured Trust Indenture) or any fees or otheramounts payable thereunder or under any other SEN Holders Operative Document (providedthat any waiver of any obligation of Borrower to pay interest at the DefaultInterest Rate shall be effective and binding on each SEN Holder if suchobligation is waived under the Common Agreement pursuant to Section 14.01(a))or (C) release all or substantially all of the Liens (through one or a seriesof transactions) under the SEN Security Agreement and all related SEN HoldersOperative Documents, except as expressly permitted by Section 13.11, and(2) no such supplemental indenture, amendment, modification, waiver or consentshall, unless in writing and signed by Borrower, the SEN Trustee and each SENHolder, and acknowledged by

 

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the SEN Collateral Agent, (A) impair the right toinstitute suit for the enforcement of any payment on or in respect of any Note(as defined in the Restructured Trust Indenture) or any other SEN HoldersOperative Document or (B) reduce the percentage of aggregate principal amountof outstanding Notes (as defined in the Restructured Trust Indenture) requiredfor the adoption of resolutions or the quorum required at any meeting ofHolders (as defined in the Restructured Trust Indenture) at which a resolutionis adopted; and

 

provided, further, that anysupplemental indenture, amendment, modification or waiver of or consent withrespect to any SEN Holders Operative Document that would impair in any respect,or in any manner would be adverse in any material respect to, the rights,interests or obligations of any Bank Holder under any Operative Document shallalso require the written consent of the Required Bank Holders.

 

### (c)                                  BankHolders Operative Documents.  Noamendment, modification or waiver of any provision of the Bank HoldersRestructured Loan Agreement or any other Bank Holders Operative Document, andno consent with respect to any departure by Borrower or any Guarantortherefrom, shall be effective unless the same shall be in writing and signed bythe Required Bank Holders (or by the Agent(s) party to the applicable BankHolders Operative Document at the written direction of the Required BankHolders) and Borrower and acknowledged by such Agent, and then any such waiveror consent shall be effective only in the specific instance and for thespecific purpose for which given; provided, however, that no such amendment,modification, waiver or consent shall, unless in writing and signed by all theBank Holders and Borrower and acknowledged by such Agent, do any of thefollowing:

###  

#### (i)                                     amendor modify any provision in any Bank Holders Operative Document providing forconsent or other action by all Bank Holders or the Required Bank Holders, or

####  

#### (ii)                                  amend,modify or waive any provision of Section 9.1 of the Bank HoldersRestructured Loan Agreement;

####  

provided, however, that nosuch amendment, modification, waiver or consent shall, unless in writing andsigned by Borrower, each Guarantor and each Bank Holder negatively affectedthereby, and acknowledged by such Agent(s), (x) postpone or delay any datefixed by the Bank Holders Restructured Loan Agreement or any other Bank HoldersOperative Document for any payment of principal (including any such payment ofprincipal occurring in respect of a Prepayment Event, where such PrepaymentEvent shall have previously occurred at the time such amendment, modification,waiver or consent shall be requested), interest, fees or other amounts due tothe Bank Holders (or any of them) thereunder or under any other Bank HoldersOperative Document or (y) reduce the principal amount of, or any rate ofinterest specified therein on, the Bank Holders Notes or any fees or otheramounts payable thereunder or under any other Bank Holders Operative Document(provided that any waiver of any obligation of Borrower to pay interest at theDefault Interest Rate shall be effective and binding on each Bank Holder ifsuch obligation is waived under the Common Agreement pursuant to Section14.01(a)); and

 

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provided, further, that anyamendment, modification or waiver of or consent with any respect to any BankHolders Operative Document that would impair in any respect, or in any mannerwould be adverse in any material respect to, the rights, interests orobligations of any SEN Holder under any Operative Document shall also requirethe written consent of the Required SEN Holders.

 

### (d)                                 Agents.  No supplemental indenture, amendment,modification, waiver or consent that affects the rights or duties of any Agentunder this Agreement or any other Operative Document shall be effective unlessit is in writing and signed by such Agent, and such Agent may in its discretiondecline to execute any such supplemental indenture, amendment, modification,waiver or consent.

###  

### (e)                                  GMGuaranty Beneficiaries.  None of Section12.09 (to the extent it affects the rights of the GM Guaranty Beneficiariesprovided in the last sentence of Section 12.09), Section 14.21or Section 14.23 shall be amended or otherwise modified unless suchamendment or modification is consented to in writing by each GM Guaranty Beneficiary.

###  

### (f)                                    Evidenceof Compliance.  The Shared Paymentand Collateral Agent shall receive (i) certificates of a Responsible Officer ofeach of Borrower and any relevant Guarantors, and (ii) a written direction fromthe requisite Lenders to execute such supplemental indenture, amendment,modification, waiver or consent without the receipt of any additionaldocuments, including an opinion of counsel, as conclusive evidence that anysupplemental indenture, amendment, modification, waiver or consent executed anddelivered pursuant to this Section 14.01 complies with theapplicable provisions of the relevant Operative Documents.

###  

## Section 14.02                          Intentof Parties.  It is the intent of theparties to the Restructuring that this Agreement is the principal governingdocument with respect to the Bank Holders Restructured Loan Agreement, theRestructured Trust Indenture and the other Operative Documents.  The parties hereto agree that to the extentthat any provision of this Agreement conflicts with any provision of the BankHolders Restructured Loan Agreement, the Restructured Trust Indenture or anyother Operative Document, the provisions of this Agreement shall prevail.

##  

## Section 14.03                          Limitationof Rights; No Waiver.  Nothingexpressed or implied in this Agreement or any other Operative Document shallgive any Person other than the Agents, Borrower, the Guarantors, the SENTrustee and the Lenders any right, remedy or claim under or with respect tothis Agreement or any other Operative Documents.  No failure by any Agent or Lender to exercise, and no delay byany such Person in exercising, any right, remedy, power or privilege under thisAgreement or any other Operative Document shall operate as a waiver thereof;nor shall any single or partial exercise of any right, remedy, power orprivilege under this Agreement or any other Operative Agreement preclude anyother or further exercise thereof or the exercise of any other right, remedy,power or privilege.  The rights,remedies, powers and privileges herein provided are cumulative and notexclusive of any rights, remedies, powers and privileges provided by law.

##  

## Section 14.04                          Effectof Headings.  The Section headingsand the Table of Contents in this Agreement or any other Operative Document arefor convenience of reference only and shall not affect the construction hereof.

 

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## Section 14.05                          SeverabilityClause.  If any provision of thisAgreement or the other Operative Documents is held to be illegal, invalid orunenforceable, (a) the legality, validity and enforceability of the remainingprovisions of this Agreement and the other Operative Documents shall not beaffected or impaired thereby and (b) the parties shall endeavor in good faithnegotiations to replace the illegal, invalid or unenforceable provisions withvalid provisions the economic effect of which comes as close as possible tothat of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in aparticular jurisdiction shall not invalidate or render unenforceable suchprovision in any other jurisdiction.

##  

## Section 14.06                          Currency.

##  

### (a)                                  Ifany expense required to be reimbursed to any Agent, the SEN Trustee or anyLender pursuant to this Agreement or any other Operative Document is originallyincurred in a currency other than Dollars, Borrower and the Guarantors shallnonetheless make reimbursement of that expense in Dollars in an amount equal tothe amount in Dollars that would have been required for the Person thatincurred that expense to have purchased, in accordance with normal bankingprocedures, the sum paid in such other currency (after any premium and costs ofexchange) on the day that expense was originally incurred.

###  

### (b)                                 Eachreference in this Agreement and the other Operative Documents to Dollars is ofthe essence.  To the fullest extentpermitted by Applicable Law, the obligations of Borrower and the Guarantors inrespect of any amount due under this Agreement and the other Operative Documentsshall, notwithstanding any payment in any other currency (whether pursuant to ajudgment or otherwise), be discharged only to the extent of the amount inDollars that the Person entitled to receive that payment may, in accordancewith normal banking procedures, purchase with the sum paid in such othercurrency (after any premium and costs of exchange) on the Business Dayimmediately following the day on which that Person receives that payment.  If the amount in Dollars that may be sopurchased for any reason falls short of the amount originally due, Borrower andthe Guarantors shall pay such additional amounts, in Dollars, as may benecessary to compensate for the shortfall and if the Dollars so purchasedexceed the amount originally due, such excess shall be remitted to Borrower orthe applicable Guarantors.  Anyobligation of Borrower or the Guarantors not discharged by that payment shall,to the extent permitted by Applicable Law, be due, as a separate andindependent obligation and, until discharged as provided herein, shall continuein full force and effect.

###  

## Section 14.07                          **GOVERNINGLAW.  THIS AGREEMENT AND THEOPERATIVE DOCUMENTS (WITH THE EXCEPTION OF (A) THE MEXICAN SECURITY TRUSTAGREEMENT WHICH SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THELAWS OF MEXICO AND (B) THE BANK HOLDERS NOTES WHICH SHALL BE GOVERNED BY, ANDCONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OFMEXICO) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THESTATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELYWITHIN THE STATE OF NEW YORK; PROVIDED THAT EACH AGENT AND EACH LENDER SHALLRETAIN ALL RIGHTS ARISING UNDER UNITED STATES FEDERAL LAW.**

 

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## Section 14.08                          PaymentsSet Aside.  To the extent thatBorrower or a Guarantor makes a payment to any Agent, the SEN Trustee or anyLender, or any Agent or any Lender exercises its right of set-off, and suchpayment or the proceeds of such set-off or any part thereof are subsequentlyinvalidated, declared to be fraudulent or preferential, set aside or otherwiserequired (including pursuant to any settlement entered into by such Agent, theSEN Trustee or such Lender in its discretion) to be repaid to a trustee,receiver or any other party, in connection with any Insolvency Proceeding orotherwise, then (a) to the extent of any amounts recovered from such Agent, theSEN Trustee or such Lender or repaid to a trustee, receiver or other party, theobligation or part thereof originally intended to be satisfied shall be revivedand continued in full force and effect as if such payment had not been made orsuch set-off had not occurred, and (b) each Lender severally agrees to pay tosuch Agent upon demand its *pro rata* share of any amount so recoveredfrom or repaid by such Agent.

##  

## Section 14.09                          Set-off.  In addition to any rights and remedies ofthe Lenders, the Specified Participants and the Agents provided by law, each ofthe Lenders, each of the Specified Participants and each Agent is authorized atany time and from time to time, following the acceleration of all or anyportion of the Restructured Debt or other Obligations or the written directionof the Required Lenders, upon the occurrence and during the continuance of anEvent of Default, without prior notice to Borrower or any Guarantor, any suchnotice being waived by Borrower and each Guarantor to the fullest extentpermitted by law, to set off and apply any and all deposits (general orspecial, time or demand, provisional or final) at any time held by, and otherindebtedness at any time owing by, such Lender or such Agent to or for thecredit or the account of Borrower or any Guarantor against any and allObligations owing to such Lender or such Agent, as applicable, now or hereafterexisting, irrespective of whether or not such Agent or such Lender shall havemade demand under this Agreement or any other Operative Document and althoughsuch Obligations may be contingent or unmatured or denominated in a currencydifferent from that of the applicable deposit or indebtedness; provided,however, that any such set-off and application shall be subject to theprovisions of Section 12.09. Each of the Lenders and each Agent agrees promptly to notify Borrower orthe applicable Guarantor and the Agents after any such set-off and applicationmade by such Lender or such Agent, as the case may be; provided, however, thatthe failure to give such notice shall not affect the validity of such set-offand application.

##  

## Section 14.10                          NotesHeld by Borrower or Affiliates.  Forthe purposes of determining whether the holders of the Notes of the requisiteprincipal amount at the time outstanding have taken any action authorized inaccordance with this Agreement or any other Operative Document with respect tothe giving of consents or approvals or with respect to acceleration, any Notesowned directly or indirectly by GMM, MM or any Principal Subsidiary or any oftheir respective Affiliates shall be disregarded and deemed not to beoutstanding.  In determining whether anyAgent shall be protected in relying on any such action, only Notes that suchAgent knows to be so owned by either GMM, MM or any Principal Subsidiary ortheir respective Affiliates thereof shall be disregarded.

##  

## Section 14.11                          TaxTreatment.  Borrower and the Guarantors,each Collateral Agent, and any holder or beneficial owner of a Note by itsacceptance thereof, agree to treat the Notes as direct obligations of MM forU.S. federal income tax purposes, except to the extent required by law.  Such tax treatment shall in no way affectthe treatment of the transactions contemplated

 

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## herebyunder Applicable Law, including the investment laws governing the purchase ofthe Notes.

##  

## Section 14.12                          Disclosureto Other Persons.  Each of Borrowerand each Guarantor acknowledges that the holder of any Note or any Agent maydeliver copies of any financial statements and other documents delivered tosuch holder or Agent, and disclose any other information disclosed to such holderor Agent, by or on behalf of Borrower or any Guarantor or in connection with orpursuant to this Agreement or any other Operative Document to (i) such holder’sor Agent’s directors, officers, employees, agents, investment advisers andprofessional consultants, (ii) any other holder of any Note, (iii) any Personto which such holder offers to sell such Note or any part thereof; providedthat such Person agrees in writing to keep such information confidential to thesame extent required of the Lenders hereunder, (iv) any Person to which suchholder sells or offers to sell a participation in all or any part of such Note;provided that such Person agrees in writing to keep such informationconfidential to the same extent required of the Lenders, (v) any federal orstate regulatory authority having, or reasonably claiming to have, jurisdictionover such holder or Agent or any of their respective Affiliates, (vi) theNational Association of Insurance Commissioners, the Auditor General of Canada,the National Association of Securities Dealers or any similar organization,(vii) any other Person to which such delivery or disclosure may be necessary orappropriate (A) to effect compliance with any law, rule, regulation or orderapplicable to such holder or Agent, (B) in response to any subpoena or otherlegal process or informal investigative demand, (C) in connection with anylitigation to which such holder or Agent is a party or (D) in order to protectsuch holder’s investment in such Note, (viii) in the case of any such holderthat is a Pass-Through Vehicle, to any Pass-through Investors or Pass-throughSureties with respect to such holder, (ix) any Export Credit Agency, or (x) anyPerson in connection with the exercise of remedies by any Agent following anEvent of Default in accordance with this Agreement and the other OperativeDocuments.  Each Agent and each holderof a Note agrees to use its best efforts to hold in confidence and not discloseany information (other than information that (a) was publicly known orotherwise known to such Agent or such holder at the time of disclosure (exceptpursuant to disclosure pursuant to this Agreement or any other OperativeDocuments), (b) subsequently becomes publicly known through no act or omissionby such Agent or such holder or (c) otherwise becomes known to such Agent orsuch holder, other than through disclosure by Borrower or any Guarantor)delivered or made available by or on behalf of Borrower, any Guarantor or tosuch Agent or such holder in connection with or pursuant to this Agreement orany other Operative Document that is clearly marked or labeled as beingconfidential information, provided that nothing herein shall prevent any Agentor the holder of any Note from disclosing such information as provided in the precedingsentence.  Notwithstanding anythingherein to the contrary, each Agent and each Lender may disclose, withoutlimitation of any kind, any information with respect to the “tax treatment” and“tax structure” (in each case, within the meaning of Treasury RegulationSection 1.6011-4) of the transactions contemplated by the Operative Documentsand all materials of any kind (including opinions or other tax analyses) thatare provided to such Agent or such Lender relating to such tax treatment andtax structure; provided that with respect to any document or similar item thatin either case contains information concerning the tax treatment or taxstructure of the transactions as well as other information, this sentence shallonly apply to such portions of the document or similar item that relate to thetax treatment or tax structure of the transactions contemplated by theOperative Documents.

 

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## Section 14.13                          Successorsand Assigns.  The provisions of thisAgreement shall be binding upon and inure to the benefit of the parties heretoand their respective successors and assigns, except that neither Borrower norany Guarantor may assign or transfer any of its rights or obligations underthis Agreement or any other Operative Document without the prior writtenconsent of each Agent and each Lender. Sales of participations and assignments by the Bank Holders are subjectto Section 9.7 of the Bank Holders Restructured Loan Agreement.  For the avoidance of doubt, MM shall be thesuccessor to GMM upon the consummation of the Intercompany PayableRestructuring.

##  

## Section 14.14                          Notices.

##  

### (a)                                  Unlessotherwise expressly provided herein, all notices, directions, requests andother communications provided for hereunder shall be in writing (including byfacsimile transmission).  All suchwritten notices, directions, requests and other communications shall be mailed,faxed or delivered, to the applicable address, facsimile number or (subject tosubsection (c) below) electronic mail address (and all notices, directions,requests and other communications expressly permitted hereunder to be given bytelephone shall be made to the applicable telephone number) to the address,facsimile number, electronic mail address or telephone number specified forsuch Person on Schedule 14.14 or to such other address, facsimilenumber, electronic mail address or telephone number as shall be designated bysuch party in a notice to the other parties.

###  

### (b)                                 Allsuch notices, directions, requests and other communications shall be deemed tobe given or made upon the earlier to occur of (i) actual receipt by therelevant party hereto and (ii) (A) if delivered by hand or by courier, whensigned for by or on behalf of the relevant party hereto, (B) if delivered byfacsimile, when sent and receipt has been confirmed by telephone, and (C) ifdelivered by electronic mail (which form of delivery is subject to theprovisions of subsection (c) below and, in addition, shall not be used for anydelivery to any Collateral Agent or the SEN Trustee), when delivered.

###  

### (c)                                  Electronicmail and Internet and Intranet websites may be used only to distribute routinecommunications, and to distribute Operative Documents for execution by theparties thereto, and may not be used for any other purpose.

###  

### (d)                                 TheAgents, the SEN Trustee and the Lenders shall be entitled to rely and act uponany notice, direction, request or other communication believed in good faith bysuch Persons to have been given by or on behalf of Borrower or any Guarantoreven if (i) such notice was not made in a manner specified herein, wasincomplete or was not preceded or followed by any other form of notice,direction, request or other communication specified herein, or (ii) the termsthereof, as understood by the recipient, varied from any confirmationthereof.  Borrower or any Guarantorshall indemnify each Agent and each Lender from all losses, costs, expenses andliabilities resulting from the reliance by such Person in good faith on eachnotice, direction, request or other communication purportedly given by or onbehalf of Borrower or any Guarantor. All telephonic notices, directions and requests to and othercommunications with an Agent may be recorded by such Agent or any other partyto such communication, and each of the parties hereto hereby consents to suchrecording.

 

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## Section 14.15                          Counterparts.  This Agreement and any other OperativeDocument may be executed in any number of separate counterparts, each of which,when so executed, shall be deemed an original, and all of said counterpartstaken together shall be deemed to constitute but one and the same instrument.

##  

## Section 14.16                          NoThird Parties Benefited.  ThisAgreement is made and entered into for the sole protection and legal benefit ofBorrower, the Guarantors, the SEN Trustee, the Lenders and the Agents, andtheir permitted successors and assigns, and no other Person shall be a director indirect legal beneficiary of, or have any direct or indirect cause ofaction or claim in connection with, this Agreement or any of the otherOperative Documents.

##  

## Section 14.17                          Waiverof Immunity.  Each of Borrower andthe Guarantors acknowledges that the execution and performance of thisAgreement, the Notes and the other Operative Documents is a commercial activityand to the extent that it has or hereafter may acquire any immunity from anylegal action, suit or proceedings, from jurisdiction of any court or fromset-off or any legal process (whether service or notice, attachment prior tojudgment, attachment in aid of execution of a judgment, execution of a judgmentor otherwise) with respect to itself or any of its property, whether or notheld for its own account, it hereby irrevocably and unconditionally waives andagrees not to plead or claim such immunity in respect of its obligations underthis Agreement, the Notes and each of the other Operative Documents.  Without limiting the foregoing, Borrower andeach Guarantor agrees that the foregoing waiver shall be to the fullest extentpermitted under the Foreign Sovereign Immunities Act of 1976 of the UnitedStates and is intended to be irrevocable for the purposes of such Act.

##  

## Section 14.18                          Useof English Language.  (a)  This Agreement and the other OperativeDocuments (except for the Mexican Security Trust Agreement) are made in theEnglish language. One Spanish language translation of each of the OperativeDocuments (except for the Mexican Security Trust Agreement and the Bank HoldersNotes) prepared at Borrower’s expense and in the manner set forth in Section 4.06(c)shall be the agreed Spanish language translation hereof and thereof for allpurposes.  Such translation and no othermay be filed in one or more public registries in Mexico or used in any proceedingsin Mexico.  For all purposes, theEnglish language version hereof and of each other Operative Document (exceptfor the Mexican Security Trust Agreement) shall be the original instrument andin all cases of conflict between the English and the Spanish versions, theEnglish version shall control; provided that with respect to the proceedingsbrought before a Mexican court, the Spanish language version shall control.

##  

### (b)                                 Allcertificates, reports, notices, documents, financial statements and other communications(excluding Mexican *estatutos sociales* and powers-of-attorney)given or delivered pursuant to the Operative Documents (other than the MexicanSecurity Trust Agreement) shall be in the English language only, except asrequired by Mexican law (in which event English translations thereof certifiedby a Responsible Officer of the Person delivering such certificate, report,notice, document, financial statement or other communication shall be providedupon which all parties hereto shall have the right to rely for all purposes ofthe Operative Documents).

###  

## Section 14.19                          Survival.  The obligations of Borrower and theGuarantors under Article XI, Section 12.01, Section 12.03,Section 12.04, Section 12.06, Section 10.01and

 

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## Section 10.02,and the obligations of the Lenders under Section 13.07, shallsurvive the repayment of the Restructured Debt, the termination of theOperative Documents, the resignation of any Agent, the repayment of theObligations and, in the case of any Lender that may assign any interest in itsportion of the Restructured Debt hereunder, shall survive the making of suchassignment, notwithstanding that such assigning Lender may cease to be a“Lender” hereunder.  In addition, eachrepresentation and warranty made herein or in any other Operative Document orpursuant hereto or thereto shall survive the making of such representation andwarranty.  Such representations andwarranties have been or will be relied upon by the Agents, the SEN Trustee andeach Lender, regardless of any investigation made by the Agents, the SENTrustee or any Lender or on their behalf. None of the Lenders, the SEN Trustee and the Agents shall be deemed tohave waived, by reason of its execution hereof, any Default or Event of Defaultthat may arise by reason of such representation or warranty proving to havebeen false or misleading, notwithstanding that such Lender, the SEN Trustee orsuch Agent may have had notice or knowledge or reason to believe that such representationor warranty was false or misleading at the time of its execution hereof.

##  

## Section 14.20                          Waiverof Jury Trial.  BORROWER, THEGUARANTORS, THE LENDERS, THE SEN TRUSTEE AND THE AGENTS EACH EXPRESSLY WAIVETHEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION ORCAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THEOTHER OPERATIVE DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THEPARTIES AGAINST ANY OTHER PARTY, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECTTO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, IN EACH CASE WHETHER NOWEXISTING OR HEREAFTER ARISING. BORROWER, THE GUARANTORS, THE LENDERS, THE SEN TRUSTEE AND THE AGENTSEACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURTTRIAL WITHOUT A JURY.  WITHOUT LIMITINGTHE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIALBY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIMOR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITYOR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS OR ANYPROVISION HEREOF OR THEREOF.  THISWAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS ORMODIFICATIONS TO THIS AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS.

##  

## Section 14.21                          GMGuaranty.  By its signature hereto,each Agent and each Lender acknowledges receipt of a copy of the GM Guarantyand acknowledges and agrees that no such Person (unless it is a GM GuarantyBeneficiary) is a third-party beneficiary of such agreement (other than to theextent provided in Section 6.2(b) and Section 6.11thereof) and agrees that no GM Guaranty Beneficiary shall be required to firstpursue any right or remedy under or in respect of the GM Guaranty prior to anyright or remedy available to it hereunder or in respect of the SharedCollateral.  For the avoidance of doubt,each Lender party hereto that is a GM Guaranty Beneficiary agrees that it shallnot permit any amendment to or waiver of, or provide any consent with respectto, the GM Guaranty to become effective if such amendment, waiver or consentwould require the prior written consent of the Super-Majority Lenders pursuantto

 

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## Section 6.2of the GM Guaranty (as in effect on the Closing Date), unless (i) suchamendment, waiver or consent does not become effective unless theSuper-Majority Lenders have provided their prior written consent to suchamendment, waiver or consent and (ii) the Super-Majority Lenders actuallyprovide their prior written consent to such amendment, waiver or consent.

##  

## Section 14.22                          Consentto Jurisdiction; Process Agent.  Anyaction or proceeding relating in any way to this Agreement, any other OperativeDocument (other than the Mexican Security Trust Agreement and the Bank HoldersNotes) or the GM Guaranty shall be brought and enforced in the Federal courtsof the United States for the Southern District of New York or in any court ofthe State of New York, and each of Borrower, each Guarantor, each Lender, theSEN Trustee and each Agent irrevocably submits to the exclusive jurisdiction ofeach such court in respect of any such action or proceeding. Borrower and eachGuarantor hereby irrevocably appoints CT Corporation System (the “**ProcessAgent**”), with an office on the date hereof at 111 Eighth Avenue,13th Floor, New York, New York 10011, U.S.A., as its agent to receive on itsbehalf service of copies of the summons and complaint and any other processthat may be served in any action or proceeding brought in any New York state orfederal court.  Such service may be madeby mailing by certified mail or delivering a copy of such process to Borroweror any Guarantor, in care of the Process Agent at the address specified abovefor the Process Agent, and Borrower and each Guarantor hereby irrevocablyauthorizes and directs the Process Agent to accept such service on its behalf.  Borrower and each Guarantor also irrevocablyconsents to such service upon it by the mailing by certified mail of copiesthereof by U.S. airmail to its address set forth in Schedule 14.14.  So long as Borrower or any Guarantor has anyobligation under this Agreement, any other Operative Document or the GMGuaranty, it will maintain a duly appointed agent in New York City for theservice of such process or summons. Nothing herein shall affect the right of any party to serve process inany other manner permitted by law; provided, however, that theFederal courts for the Southern District of New York and the courts of theState of New York in the County of New York shall have exclusive jurisdictionover any action or proceeding relating in any way to this Agreement, any otherOperative Document (other than the Mexican Security Trust Agreement and theBank Holders Notes) or the GM Guaranty in which any relief (including moneydamages) is sought to be obtained from either the SEN Collateral Agent or theShared Payment and Collateral Agent; and provided, further, thatthe foregoing shall not prevent resolution of disputes arising under theMexican Security Trust Agreement in accordance with the terms of the MexicanSecurity Trust Agreement or the filing of any claims under the Bank Holders Notesas provided therein.  The parties heretoagree that a final judgment in any such suit, action, or proceeding shall beconclusive and may be enforced in other jurisdictions by suit on the judgmentor in any other manner provided by law. The parties hereto irrevocably waive, to the fullest extent permitted byApplicable Law, (i) any objection that any party may now or hereafter have tothe laying of venue of any action or proceeding with respect to the OperativeDocuments (other than the Mexican Security Trust Agreement and the Bank HoldersNotes) or the GM Guaranty in the Federal Courts of the United States for theSouthern District of New York, or the Supreme Court of the State of New York,County of New York, (ii) any claim that any such action or proceeding broughtin any such court has been brought in an inconvenient forum and (iii) theirrights to bring an action or proceeding in any other jurisdiction to which theymight be entitled.  Borrower and eachGuarantor hereby also irrevocably waives, to the fullest extent permitted bylaw, the right to demand that any Agent, the SEN Trustee or any Lender post aperformance bond or guaranty in any action or proceeding initiated againstBorrower or any Guarantor.

 

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## Section 14.23                          GMNote Purchases.  Notwithstandinganything to the contrary herein or in any other Operative Document (including Section 9.7of the Bank Holders Restructured Loan Agreement), GM has the right pursuant tothe GM Guaranty, at any time and from time to time, to purchase all or aportion of the Guaranteed Loans (as defined in the GM Guaranty).  A GM Guaranty Beneficiary shall only beallowed to consummate a transaction to sell all or any portion of theGuaranteed Loans held by it to GM, and such right may only be exercised by GM,upon satisfaction of the following conditions precedent:  (a) none of the consideration paid thereforshall consist of (i) any assets of MM or any of its Subsidiaries or theproceeds thereof, (ii) the proceeds of any Restricted Payment made by MM or anyof its Subsidiaries to GM or (iii) any portion of the $25,000,000 cash equitycontributions to be received after the date hereof by GM from EmpresariosIndustriales de México, S.A. de C.V., the controlling shareholder of GM (the “**ControllingShareholder**”), or from any other parties entitled to exercise theirstatutory preemptive rights to purchase their *pro rata* shares of any newCapital Stock of GM, in each case to the extent such cash equity contributionsare made in connection with the Controlling Shareholder’s performance of itsundertaking to subscribe for $25,000,000 of equity capital of GM as set forthin that certain letter agreement dated March 31, 2003 between the ControllingShareholder and JPMorgan Chase Bank, as administrative agent under that certainCredit Agreement, dated March 26, 2003, among, *inter alia*, certainfinancial institutions as lenders thereunder, certain of the Ferromex Entities(as defined in the GM Guaranty) and JPMorgan Chase Bank, as administrativeagent; (b) such purchase shall be effected pursuant to an assignment andassumption substantially in the form of Exhibit C to the Bank HoldersRestructured Loan Agreement; (c) GM, Borrower and the Guarantors shall haveduly executed and delivered to the Shared Payment and Collateral Agent, withcopies to each other Agent and each Lender, a subordination agreementsubstantially in the form of Exhibit 14.23 (the “**SubordinationAgreement**”); (d) GM shall have caused its New York and Mexican legalcounsel to deliver to each Agent and each Lender favorable opinions addressedto the Agents and the Lenders, in form and substance satisfactory to ApprovingCounsel; (e) no Default or Event of Default shall have occurred and be thencontinuing; (f) all licenses, authorizations and permits of any GovernmentalAuthority (including *Hacienda*) and all consents and approvalsof any Governmental Authority or third party, in each case as may be required(i) to consummate such purchase or (ii) for GM, Borrower and the Guarantors toenter into and perform the Subordination Agreement, shall have been obtainedand be in full force and effect; (g) the execution, delivery and performance byGM, Borrower and each Guarantor of the Subordination Agreement and theconsummation by GM of such purchase shall have been duly authorized by allnecessary corporate action and shall not (i) contravene the terms of any suchPerson’s Organizational Documents, (ii) conflict with or result in any breachor contravention of, or the creation of any Lien under, any document evidencingany Contractual Obligation to which any such Person is a party (including theYankee Bond Indenture), or any order, injunction, writ or decree of anyGovernmental Authority to which any such Person or its property is subject or(iii) violate any Applicable Law; and (h) a Responsible Officer of GM shallhave delivered a certificate to each Agent, each Lender and each GM GuarantyBeneficiary certifying to the satisfaction of the conditions set forth in subsections(a), (b), (e), (f) and (g) of this Section 14.23;provided that each Agent, each Lender and each GM Guaranty Beneficiaryshall be entitled to rely on such certificate as to the satisfaction of theconditions set forth in such subsections and shall not have any obligation orduty to ascertain the satisfaction thereof prior to such purchase (other than(x) in the case of the Shared Payment and Collateral Agent, the

 

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## certificationrelating to subsection (e) of this Section 14.23 if Borrowershall have notified the Shared Payment and Collateral Agent prior to suchpurchase that a Default or an Event of Default has occurred and (y) in the caseof any GM Guaranty Beneficiary, the certification relating to such subsection(e) if Borrower or the Shared Payment and Collateral Agent shall havenotified the GM Agent, each GM Guaranty Beneficiary, each Agent and each otherLender prior to such purchase that a Default or an Event of Default hasoccurred).

##  

## Section 14.24                          RightsRelating to GM Notes.

##  

### (a)                                  Notwithstandinganything to the contrary herein or in any other Operative Document, for thepurposes of determining whether (i) Lenders holding Notes of the requisiteprincipal amount at any time outstanding, (ii) each of the Lenders or (iii) allof the Lenders, in any such case, have taken any action with respect to themaking, granting or giving of any amendment, waiver, consent, approval ordirection or the taking of any other action under this Agreement or any otherOperative Document, all GM Notes shall be disregarded and deemed not to beoutstanding and no holder of any GM Note shall be deemed to be a Lender; provided,however, that any Lender holding both GM Notes and other Notes shall bedeemed to be a Lender with respect to such other Notes (but not with respect tosuch GM Notes).  In determining if anyAgent shall be protected in relying on any such action, only Notes that suchAgent knows to be GM Notes shall be disregarded and deemed not to beoutstanding.

###  

### (b)                                 Anythingherein or in any other Operative Document to the contrary notwithstanding, inthe event GM becomes the holder of any GM Notes, (i) GM shall be permitted, atany time and from time to time, in its sole discretion, to contribute all orany portion of such GM Notes to Borrower as a capital contribution and (ii)upon such capital contribution, the GM Notes so contributed shall be deemed tobe automatically cancelled and shall no longer be considered to be outstandingfor any purpose under this Agreement or any other Operative Document; provided,however, that if any shares of Capital Stock are issued by Borrower inconnection with such capital contribution such shares may only be issued if (x)no such shares are (1) mandatorily redeemable prior to March 31, 2008 or (2)convertible into Indebtedness and (y) such shares are pledged as collateral bythe holder thereof in favor of the Shared Mexican Trustee or the Shared Paymentand Collateral Agent for the benefit of the Lenders pursuant to the terms ofthe Mexican Security Trust Agreement or otherwise pursuant to documents in formand substance satisfactory to the Approving Counsel.

 

[SIGNATURE PAGES FOLLOW]

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Common Agreement to be duly executed and delivered by their proper andduly executed as of the date first written above.

 
|   | GRUPO MINERO  MEXICO, S.A. DE C.V.,  as Company                                 |
|--------|---------------------------------------------------------------------------------|
|   |                                                                            |
|   |                                                                            |
|   | By:                                                                             | /s/  Daniel Tellechea Salido |
|   |                                                                            | Name: | Daniel Tellechea  Salido |
|   |                                                                            | Title: | Attorney-in-fact |
|   |                                                                            |
|   |                                                                            |
|   | By:                                                                             | /s/  J. Eduardo González Félix |
|   |                                                                            | Name: | J. Eduardo  González Félix |
|   |                                                                            | Title: | Attorney-in-fact |
|   |                                                                            |
|   |                                                                            |
|   | MINERA MEXICO,  S.A. DE C.V.,  as Guarantor                                     |
|   |                                                                            |
|   |                                                                            |
|   | By:                                                                             | /s/  Daniel Tellechea Salido |
|   |                                                                            | Name: | Daniel Tellechea  Salido |
|   |                                                                            | Title: | Attorney-in-fact |
|   |                                                                            |
|   |                                                                            |
|   | By:                                                                             | /s/  J. Eduardo González Félix |
|   |                                                                            | Name: | J. Eduardo  González Félix |
|   |                                                                            | Title: | Attorney-in-fact |
|   |                                                                            |
|   |                                                                            |
|   | INDUSTRIAL  MINERA MEXICO, S.A. DE C.V.,  as Guarantor and Principal Subsidiary |
|   |                                                                            |
|   |                                                                            |
|   | By:                                                                             | /s/  Daniel Tellechea Salido |
|   |                                                                            | Name: | Daniel Tellechea  Salido |
|   |                                                                            | Title: | Attorney-in-fact |
|   |                                                                            |
|   |                                                                            |
|   | By:                                                                             | /s/  J. Eduardo González Félix |
|   |                                                                            | Name: | J. Eduardo  González Félix |
|   |                                                                            | Title: | Attorney-in-fact |

 

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|   | MINERA MEXICO  INTERNACIONAL, INC.  as Guarantor and Principal Subsidiary           |
|--------|-------------------------------------------------------------------------------------|
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/  Daniel Tellechea Salido |
|   |                                                                                | Name: | Daniel Tellechea  Salido |
|   |                                                                                | Title: | Attorney-in-fact |
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/  J. Eduardo González Félix |
|   |                                                                                | Name: | J. Eduardo  González Félix |
|   |                                                                                | Title: | Attorney-in-fact |
|   |                                                                                |
|   |                                                                                |
|   | MINERA DE COBRE,  S.A. DE C.V.  as Guarantor and Principal Subsidiary               |
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/  Daniel Tellechea Salido |
|   |                                                                                | Name: | Daniel Tellechea  Salido |
|   |                                                                                | Title: | Attorney-in-fact |
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/  J. Eduardo González Félix |
|   |                                                                                | Name: | J. Eduardo  González Félix |
|   |                                                                                | Title: | Attorney-in-fact |
|   |                                                                                |
|   |                                                                                |
|   | MINERALES  METALICOS DEL NORTE, S.A. DE C.V.  as Guarantor and Principal Subsidiary |
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/  Daniel Tellechea Salido |
|   |                                                                                | Name: | Daniel Tellechea  Salido |
|   |                                                                                | Title: | Attorney-in-fact |
|   |                                                                                |
|   |                                                                                |
|   | By:                                                                                 | /s/  J. Eduardo González Félix |
|   |                                                                                | Name: | J. Eduardo  González Félix |
|   |                                                                                | Title: | Attorney-in-fact |

 

93

----

 
|   | MEXICANA DE  CANANEA, S.A. DE C.V.  as Guarantor and Principal Subsidiary         |
|--------|-----------------------------------------------------------------------------------|
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/  Daniel Tellechea Salido |
|   |                                                                              | Name: | Daniel Tellechea  Salido |
|   |                                                                              | Title: | Attorney-in-fact |
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/  J. Eduardo González Félix |
|   |                                                                              | Name: | J. Eduardo  González Félix |
|   |                                                                              | Title: | Attorney-in-fact |
|   |                                                                              |
|   |                                                                              |
|   | MEXICANA DEL  ARCO, S.A. DE C.V.  as Guarantor and Principal Subsidiary           |
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/  Daniel Tellechea Salido |
|   |                                                                              | Name: | Daniel Tellechea  Salido |
|   |                                                                              | Title: | Attorney-in-fact |
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/  J. Eduardo González Félix |
|   |                                                                              | Name: | J. Eduardo  González Félix |
|   |                                                                              | Title: | Attorney-in-fact |
|   |                                                                              |
|   |                                                                              |
|   | MINERALES Y  MINAS MEXICANAS, S.A. DE C.V.  as Guarantor and Principal Subsidiary |
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/  Daniel Tellechea Salido |
|   |                                                                              | Name: | Daniel Tellechea  Salido |
|   |                                                                              | Title: | Attorney-in-fact |
|   |                                                                              |
|   |                                                                              |
|   | By:                                                                               | /s/  J. Eduardo González Félix |
|   |                                                                              | Name: | J. Eduardo  González Félix |
|   |                                                                              | Title: | Attorney-in-fact |

 

94

----

 
|   | COMPANIA DE  TERRENOS E INVERSIONES  DE SAN LUIS POTOSI, SOCIEDAD CIVIL  PORT ACCIONES, S.A.,  as Guarantor and Principal Subsidiary |
|--------|--------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  Daniel Tellechea Salido |
|   |                                                                                                                                 | Name: | Daniel Tellechea  Salido |
|   |                                                                                                                                 | Title: | Attorney-in-fact |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  J. Eduardo González Félix |
|   |                                                                                                                                 | Name: | J. Eduardo  González Félix |
|   |                                                                                                                                 | Title: | Attorney-in-fact |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | MEXICO COMPANIA  INMOBILIARIA S.A.,  as Guarantor and Principal Subsidiary                                                           |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  Daniel Tellechea Salido |
|   |                                                                                                                                 | Name: | Daniel Tellechea  Salido |
|   |                                                                                                                                 | Title: | Attorney-in-fact |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  J. Eduardo González Félix |
|   |                                                                                                                                 | Name: | J. Eduardo  González Félix |
|   |                                                                                                                                 | Title: | Attorney-in-fact |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | PROYECCIONES  URBANISTICAS, S. DE R.L. DE C.V.,  as Guarantor and Principal Subsidiary                                               |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  Daniel Tellechea Salido |
|   |                                                                                                                                 | Name: | Daniel Tellechea  Salido |
|   |                                                                                                                                 | Title: | Attorney-in-fact |
|   |                                                                                                                                 |
|   |                                                                                                                                 |
|   | By:                                                                                                                                  | /s/  J. Eduardo González Félix |
|   |                                                                                                                                 | Name: | J. Eduardo  González Félix |
|   |                                                                                                                                 | Title: | Attorney-in-fact |

 

95

----

 
|   | HSBC BANK USA,  as Shared Payment and Collateral Agent                                                                                   |
|--------|------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | By:                                                                                                                                      | /s/  Harriet Drandoff |
|   |                                                                                                                                     | Name: | Harriet Drandoff |
|   |                                                                                                                                     | Title: | Vice President |
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | HSBC BANK USA,  as SEN Collateral Agent                                                                                                  |
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | By:                                                                                                                                      | /s/  Harriet Drandoff |
|   |                                                                                                                                     | Name: | Harriet Drandoff |
|   |                                                                                                                                     | Title: | Vice President |
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | BANK OF AMERICA,  N.A.,  as Bank Holders Administrative Agent                                                                            |
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | By:                                                                                                                                      | /s/  Robert Rittelmeyer |
|   |                                                                                                                                     | Name: | Robert  Rittelmeyer |
|   |                                                                                                                                     | Title: | Vice President |
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | THE BANK OF NEW  YORK, not in its individual  capacity but solely as trustee of GRUPO MEXICO  EXPORT MASTER TRUST NO. 1,  as SEN Trustee |
|   |                                                                                                                                     |
|   |                                                                                                                                     |
|   | By:                                                                                                                                      | /s/  Janie Kim Choi |
|   |                                                                                                                                     | Name: | Janie Kim Choi |
|   |                                                                                                                                     | Title: | Vice President |

 

96

----

 
|   | COMMONWEALTH OF  PENNSYLVANIA  STATE EMPLOYEE’S RETIREMENT SYSTEM,  as SEN Holder                                                                                                                                                                                                               |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Stacey P. Agretelis |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Stacey P.  Agretelis |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Director |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | JOHN HANCOCK  VARIABLE LIFE INSURANCE COMPANY,  as SEN Holder                                                                                                                                                                                                                                        |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Stacey P. Agretelis |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Stacey P.  Agretelis |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Authorized  Signatory |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | JOHN HANCOCK  LIFE INSURANCE COMPANY,  as SEN Holder                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Stacey P. Agretelis |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Stacey P.  Agretelis |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Authorized  Signatory |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | MELLON BANK, N.A., soley in its capacity as  Trustee for the Bell Atlantic Master Trust (as  directed by John Hancock Life Insurance  Company), and not in its individual capacity,  as SEN Holder                                                                                                   |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Carole  Bruno |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Carole Bruno |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Authorized Signatory |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | The decision to  participate in the investment, any representations made herein by the  participant, and any actions taken hereunder by the participant has/have been  made solely at the direction of the investment fiduciary who has sole  investment discretion with respect to this investment. |

 

97

----

 
|   | MELLON BANK, N.A., soley in its capacity as  Trustee for the Long-Term Investment Trust (as  directed by John Hancock Life Insurance  Company), and not in its individual capacity,  as SEN Holder                                                                                                   |
|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Carole  Bruno |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Carole Bruno |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Authorized Signatory |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | The decision to  participate in the investment, any representations made herein by the  participant, and any actions taken hereunder by the participant has/have been  made solely at the direction of the investment fiduciary who has sole  investment discretion with respect to this investment. |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | GRUPO MEXICO SERIES E PASS THROUGH TRUST,  as SEN Holder                                                                                                                                                                                                                                             |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | HSBC Bank USA, |
|   |                                                                                                                                                                                                                                                                                                 | solely as Pass Through Trustee and not in its  individual capacity |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Harriet  Drandoff |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Harriet Drandoff |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Authorized Signatory |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | THE PRUDENTIAL  INSURANCE COMPANY OF AMERICA,  as SEN Holder                                                                                                                                                                                                                                         |
|   |                                                                                                                                                                                                                                                                                                 |
|   |                                                                                                                                                                                                                                                                                                 |
|   | By:                                                                                                                                                                                                                                                                                                  | /s/  Paul G. Price |
|   |                                                                                                                                                                                                                                                                                                 | Name: | Paul G. Price |
|   |                                                                                                                                                                                                                                                                                                 | Title: | Authorized  Signatory |

 

98

----

 
|   | TEACHERS INSURANCE  AND ANNUITY  ASSOCIATION OF AMERICA,  as SEN Holder |
|--------|-------------------------------------------------------------------------|
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Ho Young Lee |
|   |                                                                    | Name: | Ho Young Lee |
|   |                                                                    | Title: | Associate  Director |
|   |                                                                    |   | Special  Situations |
|   |                                                                    |
|   |                                                                    |
|   | TEACHERS  INSURANCE AND ANNUITY  ASSOCIATION OF AMERICA,  as SEN Holder |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Ho Young Lee |
|   |                                                                    | Name: | Ho Young Lee |
|   |                                                                    | Title: | Associate  Director |
|   |                                                                    |   | Special  Situations |
|   |                                                                    |
|   |                                                                    |
|   | NYLIM STRATFORD  CDO 2001-1,  as SEN Holder                             |
|   |                                                                    |
|   | By:                                                                     | New York Life  Investment  Management LLC, Its Investment Manager |
|   |                                                                    |
|   |                                                                    |
|   |                                                                    | By: | /s/  Edward J. Fitzgerald |
|   |                                                                    |   | Name: | Edward J.  Fitzgerald |
|   |                                                                    |   | Title: | Managing  Director |
|   |                                                                    |
|   |                                                                    |
|   | NEW YORK LIFE  INSURANCE COMPANY,  as SEN Holder                        |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Edward J. Fitzgerald |
|   |                                                                    | Name: | Edward J.  Fitzgerald |
|   |                                                                    | Title: | Managing  Director |

 

99

----

 
|   | CONNECTICUT  GENERAL LIFE INSURANCE COMPANY;  LIFE INSURANCE COMPANY OF NORTH AMERICA,  as SEN Holders |
|--------|--------------------------------------------------------------------------------------------------------|
|   |                                                                                                   |
|   | Severally By:  CIGNA Investments, Inc.                                                                 |
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/  Stephen A. Osborn |
|   |                                                                                                   | Name: | Stephen A.  Osborn |
|   |                                                                                                   | Title: | Managing  Director |
|   |                                                                                                   |
|   |                                                                                                   |
|   | ACE AMERICAN REINSURANCE  COMPANY,  as SEN Holder                                                      |
|   | By:                                                                                                    | Columbia  Management Advisers, Inc.,  as agent |
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/  Richard A. Hegwood |
|   |                                                                                                   | Name: | Richard A.  Hegwood |
|   |                                                                                                   | Title: | Senior Vice  President |
|   |                                                                                                   |
|   |                                                                                                   |
|   | THE LINCOLN  NATIONAL LIFE INSURANCE COMPANY,  as SEN Holder                                           |
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | Delaware  Investment Advisers, a Series of Delaware Management Business Trust,  Attorney-In-Fact |
|   |                                                                                                   |
|   |                                                                                                   |
|   | By:                                                                                                    | /s/  Charles M. Devereux |
|   |                                                                                                   | Name: | Charles M.  Devereux |
|   |                                                                                                   | Title: | Vice President |

 

100

----

 
|   | SOUTHLAND LIFE  INSURANCE COMPANY;  LIFE INSURANCE COMPANY OF GEORGIA;  SECURITY LIFE OF DENVER INSURANCE COMPANY,  as SEN Holders |
|--------|------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                               |
|   | Severally By:                                                                                                                      | ING Investment  Management LLC,  as Agent |
|   |                                                                                                                               |
|   |                                                                                                                               |
|   | By:                                                                                                                                | /s/  Fred C. Smith |
|   |                                                                                                                               | Name: | Fred C. Smith |
|   |                                                                                                                               | Title: | Executive Vice  President |
|   |                                                                                                                               |
|   |                                                                                                                               |
|   | METROPOLITAN  LIFE INSURANCE COMPANY,  as SEN Holder                                                                               |
|   |                                                                                                                               |
|   |                                                                                                                               |
|   | By:                                                                                                                                | /s/  Jacqueline D. Jenkins |
|   |                                                                                                                               | Name: | Jacqueline D.  Jenkins |
|   |                                                                                                                               | Title: | Managing  Director |
|   |                                                                                                                               |
|   |                                                                                                                               |
|   | PACIFIC LIFE  INSURANCE COMPANY,  as SEN Holder                                                                                    |
|   |                                                                                                                               |
|   |                                                                                                                               |
|   | By:                                                                                                                                | /s/  Ronn C. Conelius |
|   |                                                                                                                               | Name: | Ronn C. Conelius |
|   |                                                                                                                               | Title: | Assistant Vice  President |
|   |                                                                                                                               |
|   |                                                                                                                               |
|   | By:                                                                                                                                | /s/  Samuel Tang |
|   |                                                                                                                               | Name: | Samuel Tang |
|   |                                                                                                                               | Title: | Assistant  Secretary |
|        |                                                                                                                                    |  |  |  |

 

101

----

 
|   | LUCENT  TECHNOLOGIES INC. MASTER PENSION TRUST,  as SEN Holder |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   |                                                           |
|   | By:                                                            | John Hancock  Life Insurance Company, |
|   |                                                           | as Investment  Manager |
|   |                                                           |
|   |                                                           |
|   | By:                                                            | /s/  Stacey P. Agretelis |
|   |                                                           | Name: | Stacey P.  Agretelis |
|   |                                                           | Title: | Director |
|   |                                                           |
|   |                                                           |
|   | JPMORGAN CHAS ,  as Bank Holder                                |
|   |                                                           |
|   |                                                           |
|   | By:                                                            | /s/  Manochere Alamgir |
|   |                                                           | Name: | Manochere Alamgir |
|   |                                                           | Title: | Vice President |
|   |                                                           |
|   |                                                           |
|   | THE BANK OF NOVA  SCOTIA,  as Bank Holder                      |
|   |                                                           |
|   |                                                           |
|   | By:                                                            | /s/  David Konarek |
|   |                                                           | Name: | David Konarek |
|   |                                                           | Title: | Managing  Director & Industry Head - Mining |
|   |                                                           |
|   |                                                           |
|   | By:                                                            | /s/  Michael K. Eddy |
|   |                                                           | Name: | Micha K. Eddy |
|   |                                                           | Title: | Director –Mining |

 

102

----

 
|   | DEUTSCHE BANK AG  NEW YORK BRANCH  AND/OR CAYMAN ISLANDS BRANCH,  as Bank Holder |
|--------|----------------------------------------------------------------------------------|
|   |                                                                             |
|   |                                                                             |
|   | By:                                                                              | /s/  Alan Delsman |
|   |                                                                             | Name: | Alan Delsman |
|   |                                                                             | Title: | Chief Credit  Officer, Manager |
|   |                                                                             | Date: | April 28, 2003 |
|   |                                                                             |
|   |                                                                             |
|   | DEUTSCHE BANK AG  NEW YORK BRANCH  AND/OR CAYMAN ISLANDS BRANCH,  as Bank Holder |
|   |                                                                             |
|   |                                                                             |
|   | By:                                                                              | /s/  C.H. |
|   |                                                                             | Name:  | C.H. |
|   |                                                                             | Title:  | Vice President |

 
| for and on behalf of  HSBC BANK plc as Bank Holder |                     |
|----------------------------------------------------|--------------------------|
|                                               |                     |
| /s/  A.P.  Wilkinson                          |                     |   | /s/  R.K.  Sandhu  |
| Name                                               | A.P. Wilkinson           | Name: | R.K. Sandhu |
| Title:                                             | Head of Emerging Markets | Title: | Assistant Manager, Emerging Markets |
|                                                    |                          |  |  |  |  |

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

 

103

----

 
|   | ROYAL BANK OF  CANADA,  as Bank Holder                                  |
|--------|-------------------------------------------------------------------------|
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Rizwan Ahmed |
|   |                                                                    | Name: | Rizwan Ahmed |
|   |                                                                    | Title: | Senior Manager |
|   |                                                                    |
|   |                                                                    |
|   | DRESDNER BANK  AG, NEW YORK AND  GRAND CAYMAN BRANCHES,  as Bank Holder |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Phillip J. Glass |
|   |                                                                    | Name: | Phillip J. Glass |
|   |                                                                    | Title: | Associate |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Sanjeev Malhotra |
|   |                                                                    | Name: | Sanjeev Malhotra |
|   |                                                                    | Title: | Associate |
|   |                                                                    |
|   |                                                                    |
|   | BANCO NACIONAL  DE COMERCIO  EXTERIOR, S.N.C.,  as Bank Holder          |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Nicolas Eduardo Contla Gonzalez |
|   |                                                                    | Name: | Nicolas Eduardo  Contla Gonzalez |
|   |                                                                    | Title: | Director  Regional de Promocion de  Credit Centro |
|   |                                                                    |
|   |                                                                    |
|   | By:                                                                     | /s/  Emigdio Sanchez Gomez |
|   |                                                                    | Name: | Emigdio Sanchez  Gomez |
|   |                                                                    | Title: | Gerente Juridico  Regional Queretaro |

 

104

----

 
|   | BANK OF AMERICA,  N.A.,  as Bank Holder                                                           |
|--------|---------------------------------------------------------------------------------------------------|
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/  Orlando J. Loera |
|   |                                                                                              | Name: | Orlando J. Loera |
|   |                                                                                              | Title: | Managing  Director |
|   |                                                                                              |
|   |                                                                                              |
|   | BANK OF AMERICA,  N.A.,  as Bank Holder                                                           |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/  Gustavo Muñiz |
|   |                                                                                              | Name: | Gustavo Muñiz(1) |
|   |                                                                                              | Title: | Managing  Director |
|   |                                                                                              |
|   |                                                                                              |
|   | BANCO INBURSA,  S.A., INSTITUCION DE  BANCA MULTIPLE, GRUPO FINANCIERO  INBURSA.,  as Bank Holder |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/  Luis Frias Humphrey |
|   |                                                                                              | Name: | Luis Frias  Humphrey |
|   |                                                                                              | Title: | Director |
|   |                                                                                              |
|   |                                                                                              |
|   | EXPORT  DEVELOPMENT CANADA,  as Bank Holder                                                       |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/  Sean Mitchell |
|   |                                                                                              | Name: | Sean Mitchell |
|   |                                                                                              | Title: | Manager, Special  Risks |
|   |                                                                                              |
|   |                                                                                              |
|   | By:                                                                                               | /s/  Vito Di Turi CA |
|   |                                                                                              | Name: | Vito Di Turi CA |
|   |                                                                                              | Title: | Asset Manager |

 

----

(1)           With respect to theNotes guaranteed by Export-Import Bank of the United States

 

105

----

 
|   | WESTLB AG, NEW  YORK BRANCH,  as Bank Holder      |
|--------|---------------------------------------------------|
|   |                                              |
|   |                                              |
|   | By:                                               | /s/  Salvatore Battinelli |
|   |                                              | Name: | Salvatore  Battinelli |
|   |                                              | Title: | Managing  Director |
|   |                                              |
|   |                                              |
|   | By:                                               | /s/  Daniel Hitchcock |
|   |                                              | Name: | Daniel Hitchcock |
|   |                                              | Title: | Associate  Director |
|   |                                              |
|   |                                              |
|   | WESTLB AG,  LONDON BRANCH,  as Bank Holder        |
|   |                                              |
|   |                                              |
|   | By:                                               | /s/ |
|   |                                              | Name: |   |
|   |                                              | Title: | Executive  Director |
|   |                                              |
|   |                                              |
|   | By:                                               | /s/  J. K. Gray |
|   |                                              | Name: | J. K. Gray |
|   |                                              | Title: | Director |
|   |                                              |
|   |                                              |
|   | SIEMENS  FINANCIAL SERVICES GMBH,  as Bank Holder |
|   |                                              |
|   |                                              |
|   | By:                                               | /s/  Miguel Schmidt |
|   |                                              | Name: | Miguel Schmidt |
|   |                                              | Title: |   |
|   |                                              |
|   |                                              |
|   | By:                                               | /s/  Schiffers |
|   |                                              | Name: | Schiffers |
|   |                                              | Title: |   |
|   |                                              |

 

106

----

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

 

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**Appendix A****ToCommon Agreement, dated as of April 29, 2003**

** **

** **

**UNIFORMDEFINITIONS AND RULES OF INTERPRETATION**

** **

A. Interpretation.  Ineach Operative Document and each appendix, schedule or exhibit thereto, unlessa clear contrary intention appears:

 

(i) the singular number includes the plural number and vice versa;

 

(ii) reference to any Person includes such Person’s successors andassigns but, if applicable, only if such successors and assigns are permittedby the Operative Documents, and reference to a Person in a particular capacityexcludes such Person in any other capacity or individually;

 

(iii) reference to any gender includes each other gender;

 

(iv) reference to any agreement (including any Operative Document),document or instrument means such agreement, document or instrument as amendedor modified and in effect from time to time in accordance with the termsthereof and, if applicable, the terms of the other Operative Documents andreference to any promissory note includes any promissory note that is anextension or renewal thereof or a substitute or replacement therefor;

 

(v) reference to any law (including any Applicable Law) means such lawas amended, modified, codified, replaced or reenacted, in whole or in part, andin effect from time to time, including rules and regulations promulgatedthereunder, and reference to any section or other provision of any law meansthat provision of such law from time to time in effect and constituting thesubstantive amendment, modification, codification, replacement or reenactmentof such section or other provision;

 

(vi) reference in such Operative Document to any Article, Section,Appendix, Schedule, or Exhibit means such Article or Section thereof orAppendix, Schedule or Exhibit thereto;

 

(vii) “hereunder”, “hereof”, “hereto” and words of similar import shallbe deemed references to such Operative Document as a whole and not to anyparticular Article, Section or other provision thereof;

 

(viii) headings are for purposes of reference only and shall nototherwise affect the meaning or interpretation of any provision thereof;

 

(ix) “including” (and with correlative meaning, the term “include”)means including without limiting the generality of any description precedingsuch term;

 

(x) “or” is not exclusive;

 

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(xi) relative to the determination of any period of time, “from” means“from and including” and “to” means “to but excluding”;

 

(xii) references to any amount as on deposit or outstanding on anyparticular date means such amount at the close of business on such day; and

 

(xiii) “fiscal year” and “fiscal quarter” shall mean “fiscal year ofBorrower” and “fiscal quarter of Borrower”, respectively.

 

B.            Accounting Terms.  In each Operative Document, unless expresslyotherwise provided, accounting terms shall be construed and interpreted, andaccounting determinations and computations shall be made, in accordance withMexican GAAP.

 

C.            Determination ofCurrency Rate.  Except asspecifically provided in Section 14.06 of the Common Agreement (orany similar provision in any other Operative Document), any financial covenantor other provision of such Operative Document that requires the combination ofDollars, Pesos and/or any other currency shall be determined in Dollarsapplying the exchange rate in effect with respect to the respective currencies(without consideration of any fees or other charges applicable should any suchconversion actually be made) as most recently published by Banco de México inthe *DiarioOficial de la Federación as the Tipo de cambio para solventar obligacionesdenominadas en moneda extranjera pagaderas dentro de la República Mexicana*(it being understood that any such determination to be made as of an earlierdate shall be determined by applying such exchange rate most recently publishedon or before such earlier date); provided that the exchange rate used inconnection with the preparation of any income statement or other financialstatement that, unlike a balance sheet, is based upon events throughout afinancial reporting period shall be calculated in accordance with Mexican GAAP,using the average of the exchange rates so published by Banco de Méxicothroughout the applicable fiscal quarter or other period; provided, further,that should any such exchange rate not be so published by Banco de México, thenthe applicable exchange rate shall be the official Mexican government exchangerate as of the date of the most recent publication of such rate by Banco deMéxico (or such other competent Governmental Authority) in the *DiarioOficial de la Federación* or such other means that may be utilized topublish such rate, and such official Mexican government exchange rate isintended to replace the *Tipo de cambio para solventar obligacionesdenominadas en moneda extranjera pagaderas dentro de la República Mexicana*;and provided, further, that if such replacement Mexicangovernment rate is also not available, then the applicable exchange rate shallbe the rate reasonably determined by the Shared Payment and Collateral Agent tobe the rate customarily used in the international financial markets as theappropriate exchange rate for such type of currency conversion.

 

D.            Conflict inOperative Documents.  If there isany conflict between any Operative Documents, such Operative Documents shall beinterpreted and construed, if possible, so as to avoid or minimize suchconflict but, to the extent (and only to the extent) the Common Agreement isone of the Operative Documents that is the subject of such conflict, the CommonAgreement shall prevail and control.

 

E.             LegalRepresentation of the Parties.  TheOperative Documents were negotiated by the parties with the benefit of legalrepresentation and any rule of construction or 

 

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interpretation otherwise requiring any OperativeDocument to be construed or interpreted against any party shall not apply toany construction or interpretation hereof or thereof.

 

F.             Effect ofIntercompany Payable Restructuring. From and after the date of the Intercompany Payable Restructuring, forall purposes of the Common Agreement and each other Operative Document, (i) MMshall be the Borrower and (ii) MM shall no longer be a Guarantor.

 

G.            Defined Terms.  Unless a clear contrary intention appears,terms defined herein shall have the meanings set forth below:

 

“**AcknowledgementCash Trapping Amount**” has the meaning set forth in Section 4.03(b)of the Common Agreement.

 

“**AcknowledgementPercentage**” has the meaning set forth in **Section 4.03(b)** of the CommonAgreement.

 

“**AccretedPIK Balance**” means, as of any date of determination, the aggregateamount of PIK Interest that has accrued in all Interest Periods ending prior tosuch date.

 

“**Action**”has the meaning set forth in Section 13.13(c) of the Common Agreement.

 

“**AdditionalAmount**” has the meaning set forth in Section 12.01(b)(i) ofthe Common Agreement.

 

“**AdjustedWorking Capital**” means, for any fiscal quarter, an amount equal to(a) the Net Working Capital as of the end of such fiscal quarter less(b) the sum of (i) the amount of any prepayments to the Lenders required as aresult of a Metal Price Prepayment Event or an Early Asset Sale PrepaymentEvent or an Asset Disposition Prepayment Event (to the extent such amounts werenot previously paid in such fiscal quarter), (ii) any Excess Cash Flow for suchfiscal quarter, to the extent it is greater than zero and (iii) ExcessCumulative Asset Sale Net Available Proceeds for such fiscal quarter plus(c) the sum of (i) an amount equal to (x) Capital Expenditures made by Borroweror any consolidated Subsidiary during such period less (y) the amountdetermined in accordance with clause (b)(i) of the definition of Excess CashFlow and (ii) an amount equal to (x) Capitalized Stripping during such period less(y) the amount determined in accordance with clause (b)(ii) of the definitionof Excess Cash Flow.

 

“**Affiliate**”means, as to any specified Person, any other Person (a) directly or indirectlycontrolling, controlled by or under direct or indirect common control with suchspecified Person, (b) that beneficially owns or holds 10% or more of any classof Capital Stock  of such specifiedPerson or (c) 10% or more of any class of Capital Stock of which is owned,directly or indirectly, by such specified Person.  For purposes of this definition, the term “control” (including,with correlative meanings, the terms “controlled by” and “under common controlwith”) as used with respect to any Person, means the possession, directly orindirectly, of the power to direct or cause the direction of the management orpolicies of such Person, whether through the ownership of Capital Stock or bycontract or otherwise.

 

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“**AffiliateGuaranty**” means the guaranty executed and delivered by the Guarantorspursuant to Section 2.01(h)(i) or Section 4.19(a) of the CommonAgreement (and for the avoidance of doubt, does not for the purposes of anyOperative Document include the GM Guaranty).

 

“**AffirmativeCovenant**” has the meaning set forth in the preamble to Article IVof the Common Agreement.

 

“**Agent**”means any of the Bank Holders Administrative Agent, any Collateral Agent or theSEN Trustee.

 

“**Agent-RelatedPerson**” means any Agent and any successor or replacement agentthereof, together with their respective Affiliates, and the officers,directors, employees, agents, attorneys, consultants, and attorneys-in-fact ofsuch Persons and Affiliates; provided that for purposes of ArticleXIII of the Common Agreement, the term “Agent-Related Person” means the SharedPayment and Collateral Agent and any successor or replacement agent thereof,together with their respective Affiliates, and the officers, directors,employees, agents, attorneys, consultants and attorneys-in-fact of such Personsand Affiliates.

 

“**AllocatedExcess Cash Flow I**” has the meaning set forth in Section8.01(c)(i) of the Common Agreement.

 

“**AllocatedExcess Cash Flow II**” has the meaning set forth in Section8.01(c)(ii) of the Common Agreement.

 

“**AllocatedExcess Cash Flow III**” has the meaning set forth in Section 8.01(c)(iii)of the Common Agreement.

 

“**AMC**”means Americas Mining Corporation, a Delaware corporation.

 

“**ApplicableLaw**” means, as to any Person, any law (statutory or common), treaty,rule or regulation or determination of an arbitrator or of a GovernmentalAuthority, in each case applicable to or binding upon such Person or any of itsproperty or to which such Person or any of its property is subject.

 

“**ApplicableMargin**” means (i) with respect to the calculation of interest on anyLIBOR Loan, 375 basis points and (ii) with respect to the calculation ofinterest on any Fixed Rate Loan, 0 basis points.

 

“**ApprovingCounsel**” means New York and Mexican legal counsel to the BankHolders Administrative Agent and to the SEN Holders.

 

“**ASARCO**”means ASARCO Incorporated, a wholly-owned Subsidiary of GM.

 

“**AssetDisposition**” means the sale, lease, conveyance, transfer or otherdisposition of any asset or property (including any of the Capital Stock of anySubsidiary) or interest therein (other than Liens) by MM or any of itsSubsidiaries to any Person other than Borrower or a Guarantor, or an agreementto do any of the foregoing; provided that Asset 

 

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Dispositions shall not include: (i) sales of inventoryin the ordinary course of business; (ii) sales, conveyances, transfers or otherdispositions of mining operating equipment being replaced within thirty (30)Business Days with equipment having substantially the same or better usefullife and value as the equipment sold, conveyed, transferred or otherwisedisposed of; and (iii) sales, conveyances, transfers or other dispositions ofassets or property in the ordinary course of business in a single transactionor a related series of transactions in which the aggregate gross proceeds donot exceed $100,000.

 

“**AssetDisposition Prepayment Amount**” means, with respect to any AssetDisposition or two or more concurrent Asset Dispositions consummated in anyfiscal year, an amount equal to (i) the excess of the aggregate Net AvailableProceeds of all Asset Dispositions consummated during such fiscal year(excluding Net Available Proceeds from dispositions of Scheduled Assets) over$5,000,000 less (ii) the aggregate of all Asset Disposition PrepaymentAmounts in respect of any Asset Dispositions previously consummated during suchfiscal year.

 

“**AssetDisposition Prepayment Event**” has the meaning set forth in Section 8.01(e)of the Common Agreement.

 

“**AssumptionAgreement**” means that certain Assumption Agreement, dated the dateof the closing of the Intercompany Payable Restructuring, by and between MM,the SEN Trustee and each Agent, substantially in the form included in Exhibit4.06(a) to the Common Agreement.

 

“**AttorneyCosts**” means and includes all reasonable and documented fees anddisbursements of any law firm or other external counsel, the allocated cost ofinternal legal services and all reasonable and documented disbursements ofinternal counsel.

 

“**AttributableIndebtedness**” means, on any date, (a) in respect of any CapitalLease of any Person, the capitalized amount thereof that would appear on abalance sheet of such Person prepared as of such date in accordance withMexican GAAP, and (b) in respect of any Synthetic Lease Obligation, thecapitalized amount of the remaining lease payments under the relevant leasethat would appear on a balance sheet of such Person prepared as of such date inaccordance with Mexican GAAP if such lease were accounted for as a CapitalLease.

 

“**AvoidedSales**” has the meaning set forth in Section 5.06 of theCommon Agreement.

 

“**BankHolders**” has the meaning set forth in the preamble of the CommonAgreement, and for the avoidance of doubt shall mean only those Persons thathold Bank Holders Notes from time to time.

 

“**BankHolders Administrative Agent**” has the meaning set forth in thepreamble of the Common Agreement.

 

“**BankHolders Notes**” means (i) prior to the date of the IntercompanyPayable Restructuring, the notes issued by GMM pursuant to the Bank HoldersRestructured Loan Agreement and (ii) from and after the date of theIntercompany Payable Restructuring, the Notes issued by MM pursuant to the BankHolders Restructured Loan Agreement.

 

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“**BankHolders Operative Documents**” means the Bank Holders RestructuredLoan Agreement and the Bank Holders Notes.

 

“**BankHolders Restructured Loan Agreement**” means that certain Amended andRestated Credit Agreement dated as of April 29, 2003, by and among the BankHolders, Borrower, the Bank Holders Administrative Agent and the Guarantors.

 

“**BankHolders Restructured Principal**” has the meaning set forth in theBank Holders Restructured Loan Agreement.

 

“**BankruptcyCode**” means Title 11 of the United States Code entitled “Bankruptcy”as now or hereafter in effect, or any successor thereto.

 

“**BaseNet Intercompany Account Balance Total**” has the meaning set forth inSection 5.10 of the Common Agreement.

 

“**BaseRate**” means, for any day, the rate per annum equal to the higher of(i) the Federal Funds Rate for such day plus one-half of one percent (0.5%) and(ii) the Prime Rate for such day.  Anychange in the Base Rate due to a change in the Prime Rate or the Federal FundsRate shall be effective on the effective date of such change in the Prime Rateor Federal Funds Rate.

 

“**Borrower**”means (i) prior to the date of the Intercompany Payable Restructuring, GMM and(ii) from and after the date of the Intercompany Payable Restructuring, MM.

 

“**BusinessDay**” means (i) any day other than a Saturday, Sunday or other day onwhich commercial banks in (A) New York City, (B) Mexico City, Mexico or (C)Toronto, Canada are authorized or required by law to close and (ii) relative tothe continuing, prepaying or repaying of any LIBOR Loan, any day that is aBusiness Day described in the immediately preceding clause (i) and that is alsoa day on which dealings in Dollars are carried on in the London interbankeurodollar market.

 

“**CapitalAdequacy Regulation**” means any guideline, law, rule, regulation,request or directive of any central bank or other Governmental Authority,whether or not having the force of law, in each case regarding capital adequacyof any bank or of any corporation controlling a bank.

 

“**CapitalExpenditures**” means, for any period, all expenditures of Borrowerand its Subsidiaries for fixed or capital assets made during such period thatwould be classified as capital expenditures in accordance with Mexican GAAP.

 

“**CapitalLease**” means, with respect to any Person, any lease of (or agreementconveying the right to use) real or personal property, required to beclassified and accounted for as a capital lease on a balance sheet of suchPerson in accordance with Mexican GAAP.

 

“**CapitalStock**” means any and all shares, interests, participations, rightsor other equivalents (however designated) of capital stock (including common orpreferred stock) or other 

 

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equity participation rights or interests, includingpartnership interests, whether general or limited, fixed or variable capital ofa *sociedadanónima*, membership or limited liability company interests in alimited liability company and any rights, warrants or options to acquire suchcapital stock or other equity participation rights or interests.

 

“**CapitalizedStripping**” means, for any period, all expenditures of Borrower andits Subsidiaries for stripping made during such period that would be classifiedas capitalized stripping in accordance with Mexican GAAP and the definition ofcapitalized stripping used in the Updated Projections.

 

“**CashFlow Prepayment Amount**” has the meaning set forth in Section8.01(c) of the Common Agreement.

 

“**CashFlow Prepayment Event**” has the meaning set forth in Section8.01(c) of the Common Agreement.

 

“**CashInterest**” means, as of any Monthly Payment Date, the interest due onthe Restructured Principal, determined in accordance with the provisions of theOperative Documents (it being understood that no Cash Interest shall be due andpayable in respect of any outstanding GM Notes until such time as may bepermitted pursuant to the provisions of the Subordination Agreement).

 

“**Casualty**”means, with respect to any real or personal property of Borrower or anyGuarantor, the occurrence of an event or a series of related events in whichBorrower and such Guarantor receive or are entitled to receive proceeds frominsurance policies where the aggregate of such proceeds, with respect to suchevent or such series of related events, shall be in excess of $10,000,000.00.

 

“**CEOReport**” means a report, signed by the chief executive officer of GM,substantially in the form of Exhibit 4.05(c)(ii) of the CommonAgreement.

 

“**Changeof Control**” means (a) the acquisition of ownership, directly orindirectly, beneficially or of record, by any Person or group (within themeaning of the U.S. Securities Exchange Act of 1934 and the rules of the SECthereunder as in effect on the Closing Date) (other than by the Larrea Family(as defined below) or, in the case of MM, by GM or AMC), of shares representing50% or more of the aggregate ordinary voting power represented by the issuedand outstanding capital stock of GM or MM; (b) occupation of a majority of theseats (other than vacant seats) on the board of directors of GM or MM byPersons who were neither (i) nominated by the Larrea Family (or, in the case ofMM, by GM or AMC) nor (ii) appointed by directors so nominated; (c) prior tothe date of the Intercompany Payable Restructuring, the failure of MM tobeneficially own (within the meaning of Rule 13d-3 under the U.S. SecuritiesExchange Act of 1934), directly or indirectly, at least 51% of the issued andoutstanding shares of voting stock of GMM; (d) the failure of AMC tobeneficially own (within the meaning of Rule 13d-3 under the U.S. Securities ExchangeAct of 1934), directly or indirectly, at least 51% of the issued andoutstanding shares of voting stock of MM; (e) the failure of Borrower tobeneficially own, directly or indirectly, at least 51% of the issued andoutstanding shares of voting stock of any Principal Subsidiary; (f) the failureof GM to have the 

 

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power, directly or indirectly, to elect or designatefor election a majority of the board of directors of Borrower whether byownership of share capital, contract or otherwise; or (g) the failure ofBorrower to have the power to elect or designate for election a majority of theboard of directors of any Principal Subsidiary whether by ownership of sharecapital, contract or otherwise.  For purposesof this definition, “Larrea Family” means Mr. German Larrea Mota-Velasco andhis spouse, siblings, parent and trusts and other entities for the benefit of,or controlled by, such Persons.

 

“**ClosingDate**” means the date on which all of the conditions precedent setforth in Section 2.01 of the Common Agreement shall have been satisfied(or deemed satisfied) or waived.

 

“**Code**”means the Internal Revenue Code of 1986, and regulations promulgatedthereunder.

 

“**CollateralAgents**” means, collectively, the Shared Payment and CollateralAgent, the SEN Collateral Agent and the Shared Mexican Trustee.

 

“**CollateralDocuments**” means the U.S. Security Agreement, the SEN SecurityAgreement, the Mexican Security Trust Agreement, the Trust Acceptance Letter,the Shared Collateral Control Agreement, the Affiliate Guaranty and all UniformCommercial Code financing statements or any similar perfection or transfer ofownership documents to be filed in any applicable jurisdiction relating to anyof the foregoing.

 

“**CollectionAccounts**” has the meaning set forth in the SEN Security Agreement.

 

“**CommonAgreement**” means the Common Agreement dated as of April 29, 2003, byand among GMM, MM, the Principal Subsidiaries, the SEN Holders, the BankHolders, the Bank Holders Administrative Agent, the Shared Payment andCollateral Agent, the SEN Collateral Agent and the SEN Trustee.

 

“**CommonOperative Documents**” means the Operative Documents (other than theSEN Holders Operative Documents and the Bank Holders Operative Documents).

 

“**Conduit**”has the meaning set forth in Section 5.06 of the Common Agreement.

 

“**ContingentObligation**” means, as to any Person, any direct or indirectliability of that Person, whether or not contingent, with or without recourse:(a) with respect to any Indebtedness, lease, dividend, letter of credit orother obligation (the “primary obligation”) of another Person (the “primaryobligor”), including any obligation of that Person (i) to purchase, repurchaseor otherwise acquire any such primary obligation or any security therefor, (ii)to advance or provide funds for the payment or discharge of any such primaryobligation, or to maintain working capital or equity capital of the primaryobligor or otherwise to maintain the net worth or solvency or any balance sheetitem, level of income or financial condition of the primary obligor, (iii) topurchase property, securities or services primarily for the purpose of assuringthe owner of any such primary obligation of the ability of the primary obligorto make payment of such primary obligation, or (iv) otherwise to assure or holdharmless the holder of any such primary obligation against loss in respectthereof (each, a “Guaranty Obligation”); (b)

 

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with respect to any Surety Instrument issued for theaccount of that Person or as to which that Person is otherwise liable forreimbursement of drawings or payments; (c) to purchase any materials, suppliesor other property from, or to obtain the services of, another Person if therelevant contract or other related document or obligation requires that paymentfor such materials, supplies or other property, or for such services, shall bemade regardless of whether delivery of such materials, supplies or otherproperty is ever made or tendered, or such services are ever performed ortendered; or (d) in respect of any Swap Contract. The amount of any ContingentObligation shall, in the case of any Guaranty Obligation, be deemed equal tothe stated or determinable amount of the primary obligation in respect of whichsuch Guaranty Obligation is made if such Guaranty Obligation is in respect ofthe total stated or determinable amount thereof, or, if not stated or ifindeterminable, the maximum reasonably anticipated liability in respectthereof, and in the case of any other Contingent Obligation other than inrespect of Swap Contracts, shall be equal to the maximum reasonably anticipatedliability in respect thereof and, in the case of Contingent Obligations inrespect of Swap Contracts, shall be equal to the Swap Termination Value, asdefined in any Swap Contract.  Anythingcontained herein to the contrary notwithstanding, Contingent Obligations shallnot include endorsements for collection or deposit in the ordinary course ofbusiness.

 

“**Contract**”means any Domestic Contract or Export Contract.

 

“**ContractualObligation**” means, as to any Person, any provision of any securityissued by such Person or of any agreement, undertaking, contract, indenture,mortgage, deed of trust or other instrument, document or agreement to whichsuch Person is a party or by which it or any of its property is bound.

 

“**ControllingShareholder**” has the meaning set forth in Section 14.23 ofthe Common Agreement.

 

“**CumulativeAsset Sale Net Available Proceeds**” means, for the applicable period,Net Available Proceeds resulting from Asset Dispositions in an aggregate amountequal to:  (x) $54 million in fiscalyear 2003; (y) $58 million in fiscal year 2004; and (z) $81 million in fiscalyear 2005 and each fiscal year thereafter.

 

“**CurrentAssets**” means, at any time of determination, the sum of the accountbalances of each of (a) the Unrestricted Cash of Borrower and its consolidatedSubsidiaries, (b) trade accounts receivable of Borrower and its consolidatedSubsidiaries, (c) the inventories of materials, supplies, secondary metals andby-products owned by Borrower and its consolidated Subsidiaries, (d) refundabletaxes owed to Borrower and its consolidated Subsidiaries and (e) prepaidexpenses of Borrower and its consolidated Subsidiaries.

 

“**CurrentCash Interest**” means interest accruing prior to the Closing Datepursuant to the terms of the Existing Bank Agreements and the Existing SENAgreements, in each case calculated at the current cash pay rates (includingany applicable default rates) set forth therein.

 

“**CurrentLiabilities**” means, at any time of determination, the sum of theaccount balances of (a) all amounts noted under the heading “Suppliers” in themost recent 

 

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consolidated balance sheet delivered by Borrower (and,with respect to any future consolidated financial statements delivered byBorrower, the equivalent of such amounts as may be noted therein) and (b) allamounts noted under the heading “Accounts Payable and Accrued Liabilities” inthe most recent consolidated balance sheet delivered by Borrower (and, withrespect to any future consolidated financial statements delivered by Borrower,the equivalents of such amounts as may be noted therein).

 

“**CustomerNotice and Acknowledgement**” has the meaning set forth in the SENSecurity Agreement.

 

“**Customers**”means, with respect to Borrower or any Guarantor, each of (i) its customerslocated outside Mexico or (ii) so long as any Affiliate of Borrower (other thanany Guarantor) is directly or indirectly engaged in the business of sellingproduction of Borrower or such Guarantor to customers located outside Mexico,such Affiliate.

 

“**DebtCoverage Ratio**” has the meaning set forth in Section 6.03 of theCommon Agreement.

 

“**DebtService Reserve Account**” has the meaning set forth in the OriginalTrust Indenture.

 

“**Default**”means any Event of Default or any act, condition or event that, with the givingof notice or lapse of time, or both, would become an Event of Default.

 

“**DefaultInterest Rate**” has the meaning set forth in Section 8.04(b)of the Common Agreement.

 

“**Dollars**”or “**$**”means the lawful currency of the United States of America and, in relation toany amount to be advanced or paid under any Operative Document, funds havingimmediate value.

 

“**DomesticContract**” means any contract entered into between any PrincipalSubsidiary and any customer that is located in Mexico for the sale of copper,zinc, lead or other metals or by-products extracted, processed, smelted orrefined in whole or in part by Borrower or any Guarantor.

 

“**EarlyAsset Sale Debt Amortization Amount**” means, for any period, theamount by which the actual cumulative amount of the Net Available Proceeds fromall Asset Dispositions of Scheduled Assets consummated after the Closing Dateexceeds $81 million through the end of such period, less the total of allprevious payments of Early Asset Sale Debt Amortization Amounts and less allprepayments made pursuant to Section 8.01(e) of the Common Agreement.

 

“**EarlyAsset Sale Debt Prepayment Amount**” has the meaning set forth in **Section8.01(d)** of the Common Agreement.

 

“**EarlyAsset Sale Debt Prepayment Event**” has the meaning set forth in Section 8.01(d)of the Common Agreement.

 

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“**EBITDA**”means, during any period, (a) the consolidated income from operations ofBorrower and its consolidated Subsidiaries for such period determined inaccordance with Mexican GAAP plus (b) depreciation of fixed or capital assetsand amortization of intangibles and leasehold improvements of Borrower and itsconsolidated Subsidiaries for such period plus (c) other non-cash itemsincluded in the calculation of such consolidated income from operations, as setforth in Exhibit 6.

 

“**EconomicEffective Date**” means December 12, 2002.

 

“**EnronObligations**” means the obligations of Mexcobre pursuant to thevarious promissory notes dated June 27, 2001 made by Mexcobre in favor of EnronTrading Limited.

 

“**EnvironmentalLaws**” means all applicable federal, state, local and foreign laws,rules or regulations (including the “Treaty of La Paz” between Mexico and theUnited States of America) or required permits, licenses or approvals relatingto emissions, discharges, releases or threatened releases of pollutants,contaminants, chemicals or industrial, toxic or hazardous substances or wastesinto the environment (including air, surface water, ground water or land), orotherwise relating to the manufacture, processing, distribution, use, treatment,storage, disposal, transport or handling of pollutants, contaminants, chemicalsor industrial, toxic or hazardous substances or wastes.

 

“**EquityContribution**” means the remainder of (a) one hundred ten milliondollars ($110,000,000) minus (b) the amount of the Equity Interim Contribution,which amount shall be treated as equity under Mexican GAAP.

 

“**EquityInterim Contribution**” means one or more cash equity contributionsmade by MM to GMM during the Interim Funding Period in the aggregate amount of$38,800,000, which amount shall be treated as equity under Mexican GAAP.

 

“**Eventof Default**” has the meaning set forth in Section 9.01 of theCommon Agreement.

 

“**ExcessCash Flow**” means, for any period, EBITDA of Borrower and itsconsolidated Subsidiaries:

 

(a)           plus each of the following:

 

(i)            anyNet Available Proceeds from any Asset Disposition that are not included inEBITDA; and

 

(ii)           interestearned on cash or cash equivalents,

 

(b)           minus, to the extentpreviously paid in cash by Borrower or any consolidated Subsidiary, each of thefollowing:

 

(i)            anamount equal to the Minimal Nominal Period Capital Expenditures for suchperiod; provided that the amount of Minimal Nominal Period CapitalExpenditures that shall be deducted by Borrower or such 

 

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consolidated Subsidiaries in any period shall belimited to an amount that does not exceed either (A) an amount equal to 125% ofthe Scheduled Capital Expenditures for such period or (B) an amount that wouldcause the cumulative amount of Capital Expenditures from the Closing Datethrough such period to exceed 110% of the cumulative amount of ScheduledCapital Expenditures from the Closing Date through such period;

 

(ii)           anamount equal to the Minimal Nominal Period Capitalized Stripping for suchperiod; provided that the amount of Minimal Nominal Period CapitalizedStripping that shall be deducted by Borrower or such consolidated Subsidiariesin any period shall be limited to an amount that does not exceed either (A) anamount equal to 125% of the Scheduled Capitalized Stripping for such period or(B) an amount that would cause the cumulative amount of Capitalized Strippingfrom the Closing Date through such period to exceed 110% of the cumulativeamount of Scheduled Capitalized Stripping from the Closing Date through suchperiod;

 

(iii)          anamount equal to the excess of the current period Excess Cumulative Asset SaleNet Available Proceeds over the prior period Excess Cumulative Asset Sale NetAvailable Proceeds to the extent that the current period Excess CumulativeAsset Sale Net Available Proceeds is greater than zero, or else zero;

 

(iv)          paymentsof principal (including any: Early Asset Sale Debt Prepayment Amount; AssetDisposition Prepayment Amount; and Metal Price Prepayment Amount), interest,fees and other amounts by Borrower or such consolidated Subsidiaries for suchperiod in respect of Permitted Indebtedness;

 

(v)           severancepayments made by Borrower or such consolidated Subsidiaries for such period;

 

(vi)          incometaxes paid (or plus taxes recovered) by Borrower or such consolidatedSubsidiaries for such period;

 

(vii)         assettaxes paid by Borrower or such consolidated Subsidiaries for such period;

 

(viii)        penaltiesassessed against MM or its consolidated Subsidiaries for such period on taxesfor 2002 and 2003 related solely to events surrounding the Restructuring;

 

(ix)           withholdingtaxes assessed against Borrower or such consolidated Subsidiaries for suchperiod;

 

(x)            anycosts and expenses incurred by Borrower or such consolidated Subsidiaries forsuch period in connection with any statutory profit sharing plan; and

 

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(xi)           expensesof Borrower or such consolidated Subsidiaries for such period relating to theRestructuring incurred on or prior to the Closing Date and ongoing monitoringexpenses with respect thereto;

 

(c)           minusBorrower’s share of amounts in respect of the Metal Price Prepayment Event forsuch period.

 

“**ExcessCumulative Asset Sale Net Available Proceeds**” means, for any period,either:  (a) the excess of the aggregateNet Available Proceeds realized from the Closing Date to the end of such periodfrom Asset Dispositions of Scheduled Assets over the Cumulative Asset Sale NetAvailable Proceeds if the aggregate Net Available Proceeds realized from theClosing Date to the end of such period from Asset Dispositions of ScheduledAssets are less than $81 million, or (b) the excess of $81 million over theCumulative Asset Sale Net Available Proceeds, if the aggregate Net AvailableProceeds realized from the Closing Date to the end of such period from AssetDispositions of Scheduled Assets are equal to or greater than $81 million.

 

“**ExistingBank Agreements**” means each of the existing credit facilities to whichBorrower or any Guarantor is a party with any Bank Holder, which facilities arelisted in the Bank Holders Restructured Loan Agreement.

 

“**ExistingSEN Agreements**” means each of the existing credit facilities towhich Borrower or any Guarantor is a party with any SEN Holder, the SENTrustee, or the SEN Collateral Agent, which facilities are listed in theRestructured Trust Indenture.

 

“**ExportContract**” means any contract entered into between Borrower or anyGuarantor and any Customer for the sale of copper, zinc, lead or other metalsor by-products extracted, processed, smelted or refined in whole or in part byBorrower or such Guarantor.

 

“**ExportCredit Agency**” means the Export-Import Bank of the United States andany other export credit agency that has guaranteed debt under the Existing BankAgreements.

 

“**ExportReceivables**” means any and all accounts receivable arising fromExport Sales.

 

“**ExportReceivables Collection Arrangement**” means the process by whichExport Receivables are delivered to, held in and distributed from theCollection Accounts, as set forth in the SEN Security Agreement.

 

“**ExportSale**” means, with respect to Borrower or any Guarantor, a sale byBorrower or such Guarantor to a Customer of copper, zinc, lead and other metalsand by-products extracted, processed, smelted or refined in whole or in part byBorrower or such Guarantor pursuant to an Export Contract or otherwise.

 

“**FederalFunds Rate**” means, for any day, the rate per annum equal to theweighted average of the rates on overnight Federal funds transactions withmembers of the Federal Reserve System arranged by Federal funds brokers on suchday, as published by the Federal Reserve Bank of New York on the Business Daynext succeeding such day; provided that (a) if such day is not aBusiness Day, the Federal Funds Rate for such day shall be such rate

 

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on such transactions on the next preceding BusinessDay as so published on the next succeeding Business Day, and (b) if no such rateis so published on such next succeeding Business Day, the Federal Funds Ratefor such day shall be the average rate (rounded upward, if necessary, to awhole multiple of 1/100 of 1%) charged to the Shared Payment and CollateralAgent on such day on such transactions as determined by the Shared Payment andCollateral Agent.

 

“**FinalAdjusted Working Capital**” means, for any fiscal quarter, the sum of(a) the Adjusted Working Capital for such fiscal quarter plus (b) thatportion of the Excess Cash Flow for such fiscal quarter that Borrower is notrequired to pay to the Shared Payment and Collateral Agent for the benefit ofthe Lenders in accordance with Section 8.01(c) of the Common Agreement.

 

“**FinancialAdvisor**” means FTI Consulting, Inc. or such other financial advisoras may be designated by the Shared Payment and Collateral Agent at thedirection of the Required Lenders and with the consent of Borrower, whichconsent may not be unreasonably withheld.

 

“**FinancialAdvisor’s Fee Cap**” means, with respect to the duties to be performedby the Financial Advisor from the Closing Date to and including the firstanniversary of the Closing Date, as described in the Operative Documents,$350,000.00.

 

“**FinancialCovenants**” has the meaning set forth in the preamble to ArticleVI of the Common Agreement.

 

“**FixedRate Loan**” means, with respect to the Restructured Debt, anyRestructured Debt bearing interest at all times at a fixed rate of interest.

 

“**FloatingRate Lender**” means any Lender holding one or more LIBOR Loans.

 

“**Forms**”has the meaning set forth in Section 12.01(f) of the Common Agreement.

 

“**F.R.S.Board**” means the Board of Governors of the Federal Reserve System.

 

“**GeneralSecurity**” means (a) the assets subject to the grant of a securityinterest under the U.S. Security Agreement and (b) the assets assigned to theShared Mexican Trustee under the Mexican Security Trust Agreement.

 

“**GM**”means Grupo Mexico, S.A. de C.V., a *sociedad anónima de capital variable*organizedunder the laws of Mexico.

 

“**GMAgent**” has the meaning set forth in the GM Guaranty.

 

“**GMGuaranty**” means the guaranty executed and delivered by GM, MM andGMM pursuant to Section 2.01(h)(ii) of the Common Agreement.

 

“**GMGuaranty Beneficiary**” has the meaning set forth in the GM Guaranty.

 

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“**GMM**”has the meaning set forth in the preamble of the Common Agreement.

 

“**GMNote**” means any Specified Note (as defined in the GM Guaranty)purchased by GM from a GM Guaranty Beneficiary, whether or not held thereafterby GM or any other Person (including any Lender).

 

“**GovernmentalAuthority**” means any nation or government, any state or otherpolitical subdivision thereof, any central bank (or similar monetary orregulatory authority) thereof, any entity exercising executive, legislative,judicial, regulatory or administrative functions of or pertaining to agovernment, and any corporation or other entity owned or controlled, throughstock or capital ownership or otherwise, by any of the foregoing.

 

“**Guarantors**”means the Principal Subsidiaries and MM; provided that from and afterthe date of the Intercompany Payable Restructuring, MM shall no longer be aGuarantor.

 

“***Hacienda***”means the *Secretariade Hacienda y Crédito Público* (the Ministry of Finance of Mexico).

 

“**IMMSA**”has the meaning set forth in the preamble of the Common Agreement.

 

“***I.M.S.S.***”means the *InstitutoMexicano del Seguro Social* (Mexican Social Security Institute).

 

“**Indebtedness**”means, as to any Person at a particular time, without duplication, all of thefollowing, whether or not included as indebtedness or liabilities in accordancewith Mexican GAAP:

 

(a)           all obligations ofsuch Person for borrowed money and all obligations of such Person evidenced bybonds, debentures, notes, loan agreements or other similar instruments;

 

(b)           all direct orcontingent obligations of such Person arising under Surety Instruments;

 

(c)           net obligations ofsuch Person under any Swap Contract;

 

(d)           all obligations ofsuch Person to pay the deferred purchase price of property or services (otherthan trade accounts payable in the ordinary course of business);

 

(e)           indebtedness(excluding prepaid interest thereon) secured by a Lien on property owned orbeing purchased by such Person (including indebtedness arising under conditionalsales or other title retention agreements), whether or not such indebtednessshall have been assumed by such Person or is limited in recourse;

 

(f)            Capital Leases andSynthetic Lease Obligations; and

 

(g)           all guarantees ofsuch Person in respect of any of the foregoing.

 

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For all purposes hereof, the Indebtedness of any Person shall includethe Indebtedness of any partnership or joint venture (other than a jointventure that is itself a corporation or limited liability company) in whichsuch Person is a general partner or a joint venturer, unless such Indebtednessis expressly made nonrecourse to such Person. The amount of any net obligation under any Swap Contract on any dateshall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any Capital Lease or SyntheticLease Obligation as of any date shall be deemed to be the amount ofAttributable Indebtedness in respect thereof as of such date.

 

“**IndemnifiedLiabilities**” has the meaning set forth in Section 11.01 ofthe Common Agreement.

 

“**IndemnifiedPerson**” has the meaning set forth in Section 11.01 of theCommon Agreement.

 

“**IndemnifyingLender**” has the meaning set forth in Section 13.07 of theCommon Agreement.

 

“**IndependentAuditor**” has the meaning set forth in Section 4.05(d)(i) ofthe Common Agreement.

 

“**Infonavit**”means the *Institutodel Fondo Nacional de la Vivienda para los Trabajadores* (NationalWorker’s Housing Fund Institute).

 

“**InsolvencyProceeding**” means, with respect to any Person, (a) any case, actionor proceeding with respect to such Person before any court or otherGovernmental Authority relating to bankruptcy, *concurso mercantil*,reorganization, insolvency, custodianship, liquidation, receivership, dissolution,winding-up or relief of debtors, or (b) any general assignment for the benefitof creditors, composition or marshalling of assets for creditors, or (c) anyother similar arrangement in respect of its creditors generally or anysubstantial portion of its creditors undertaken under federal, state or foreignlaw, including the *Ley de Concursos Mercantiles* and theBankruptcy Code.

 

“**InsuranceProceeds**” has the meaning set forth in Section 4.10(d) of theCommon Agreement.

 

“**InsuranceProceeds Account**” has the meaning set forth in Section 4.10(d)of the Common Agreement.

 

“**IntercompanyAccount Balance**” means, as of any date of determination, the balanceof all accounts between (a) MM and its Subsidiaries, on the one hand, and (b)GM and its Affiliates (excluding MM and its Subsidiaries), on the other hand.

 

“**IntercompanyPayable**” means the intercompany obligation payable by MM to GMM andMexcobre, which obligation as of March 31, 2003 was $870,304,872.95.

 

“**IntercompanyPayable Restructuring**” means, collectively, the following series ofactions taken or to be taken in the following order:  (a) the declaration by GMM of a 

 

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Dividend on December 31, 2002 in an aggregate amountof 13,450,800,000 Pesos payable ratably to the shareholders of GMM asfollows:  (i) 13,304,159,569 Pesospayable in shares or assets other than cash to MM and (ii) 146,640,431 Pesospayable in shares or assets other than cash to the shareholders of GMM otherthan MM (the “Minority Shareholders”); (b) the payment of a portion of suchdividend immediately following the Closing Date in the form of (i) 89,634,106shares of common stock of Mexcobre transferred to MM and (ii) 987,960 shares ofcommon stock of Mexcobre transferred to the Minority Shareholders; (c) theMerger; (d) upon consummation of the Merger, (i) the cancellation of theremaining portion of the dividend payable to MM against the obligation of GMMto pay such dividend and (ii) the cancellation of the Intercompany Payable againstthe related receivable on the books of GMM; and (e) the distribution of theremaining portion of the dividend payable to the Minority Shareholders in theform of 6,234,245 shares of Mexcobre.

 

“**IntercompanyPayable Restructuring Documents**” means all of the documents relatingto the consummation of the Intercompany Payable Restructuring, each of whichshall be in form and substance satisfactory to the Approving Counsel; providedthat the Assumption Agreement and the form of merger agreement attached as Exhibit4.06(a) to the Common Agreement are deemed to be approved.

 

“**IntercompanyPayable Restructuring Opinions**” means favorable legal opinions to bedelivered in connection with the Intercompany Payable Restructuring, each datedas of the date of the closing of the Intercompany Payable Restructuring, fromsuch counsel acceptable to the Approving Counsel and as to such matters as theApproving Counsel may reasonably request; provided that the form of opinion ofNew York counsel to GM included in Exhibit 4.06(a) to the CommonAgreement is deemed to be approved.

 

“**InterestCoverage Ratio**” has the meaning set forth in Section 6.02 ofthe Common Agreement.

 

“**InterestPeriod**” shall mean (i) the period running from April 30, 2003 to thefirst Monthly Payment Date and (ii) thereafter, the period running from aMonthly Payment Date to the next Monthly Payment Date, subject, with respect toany applicable Note, to the provisions of Section 12.02(b) of the CommonAgreement; provided that from and subsequent to the Maturity Date,Interest Periods shall be determined in accordance with Section 8.04(b)of the Common Agreement; and provided, further, that,notwithstanding the foregoing, the initial Interest Period for determining PIKInterest shall be the period running from the Economic Effective Date to April30, 2003.

 

“**InterimFunding Period**” means the period from the Economic Effective Date tothe Closing Date.

 

“**Investment**”means, for any Person: (a) the acquisition (whether for cash, securities orother property, services or otherwise) of Capital Stock, bonds, notes,debentures or other securities of any other Person or any agreement to make anysuch acquisition (including any “short sale” or any sale of any securities at atime when such securities are not owned by the Person entering into such sale);(b) the making of any deposit (other than a bank deposit) with, or advance,loan or other extension of credit to, any Person (including the purchase ofproperty 

 

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from another Person subject to an understanding oragreement, contingent or otherwise, to resell such property to such Person),but excluding any such advance, loan or extension of credit having a term notexceeding 90 days representing the purchase price of inventory or supplies soldby such Person in the ordinary course of business; or (c) the entering into ofany Swap Contract.

 

“**InvestmentAccount**” has the meaning set forth in the Restructured TrustIndenture.

 

“**InvestmentCompany Act**” means the Investment Company Act of 1940, as amended.

 

“**Lenders**”means, collectively, the SEN Holders and the Bank Holders.

 

“**LendingOffice**” means, as to any Lender, the office or offices of suchLender specified as its “Lending Office” on Schedule 14.14 to the CommonAgreement, or such other office or offices as such Lender may from time to timenotify Borrower and the Agents.

 

“**LIBORLoan**” means, with respect to the Restructured Debt, any RestructuredDebt bearing interest at all times during an Interest Period applicable to suchRestructured Debt at the LIBOR Rate.

 

“**LIBORRate**” means, for any Interest Period, the rate of interest per annumdetermined by the Shared Payment and Collateral Agent to be the arithmetic mean(rounded upward to the next 1/100 of 1%) of the (a) offered rates for depositsin Dollars for a period equal to such Interest Period quoted on the secondBusiness Day prior to the first day of such Interest Period, as such ratesappear on the Reuters Screen LIBOR Page as of 11:00 a.m. (London time) onsuch date, if at least two such offered rates appear on the Reuters ScreenLIBOR Page, or (b) if, as of 11:00 a.m. (London time) on any such datefewer than two such rates appear on the Reuters Screen LIBOR Page, the rate fordeposits in Dollars for a period equal to such Interest Period quoted on thesecond Business Day prior to the first day of such Interest Period, as suchrate appears on the Telerate Page 3750 as of 11:00 a.m. (London time) onsuch date, in each case as determined by the Shared Payment and CollateralAgent.  If the LIBOR Rate cannot bedetermined based on either the Reuters Screen LIBOR Page or on Telerate Page3750, LIBOR Rate means the rate per annum, as quoted by the Shared Payment andCollateral Agent’s London branch to prime banks in the London interbank marketfor deposits in Dollars at approximately 11:00 a.m. (London time) twoBusiness Days prior to the first day of such Interest Period for a period oftime comparable to such Interest Period.

 

“**Lien**”means any security interest, mortgage, pledge, hypothecation, assignment,assignment in trust, deposit arrangement, encumbrance, lien (statutory orother), or preference, priority or other security agreement (including anyconditional sale or other title retention agreement, any financing lease or anythird party right to purchase having substantially the same economic effect asany of the foregoing, and the filing of any financing statement under theUniform Commercial Code or comparable law of any jurisdiction).

 

“**London**”means London, England.

 

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“**MaterialAdverse Effect**” means (a) a material adverse change in, or amaterial adverse effect upon, the operations, business, properties, condition(financial or otherwise) or prospects of Borrower and its Subsidiaries, takenas a whole; (b) a material impairment of the ability of Borrower or anyGuarantor to perform its monetary obligations under any Operative Document; or(c) a material adverse effect upon (i) the legality, validity, binding effector enforceability against Borrower or any Guarantor of any Operative Documentor (ii) the rights and remedies of any Agent or the Lenders thereunder.

 

“**MaturityDate**” means the earliest of (i) the Scheduled Maturity Date, (ii)the date of any accelerated maturity pursuant to Article IX of theCommon Agreement and (iii) the first date that all Restructured Principal hasbeen indefeasibly paid in full in cash.

 

“**MCI**”has the meaning set forth in the preamble of the Common Agreement.

 

“**Merger**”means the merger of GMM with and into MM, with MM being the survivingcorporation.

 

“**MetalPrice Prepayment Amount**” has the meaning set forth in Section8.01(b) of the Common Agreement.

 

“**MetalPrice Prepayment Event**” has the meaning set forth in Section8.01(b) of the Common Agreement.

 

“**Mexarco**”has the meaning set forth in the preamble of the Common Agreement.

 

“**Mexcananea**”has the meaning set forth in the preamble of the Common Agreement.

 

“**Mexcobre**”has the meaning set forth in the preamble of the Common Agreement.

 

“**MexicanGAAP**” means, as of any date of determination, generally acceptedaccounting principles that are applicable in Mexico as of the date ofdetermination.

 

“**MexicanIncome Tax Law**” means the *Mexican Ley del Impuesto Sobre la Renta*.

 

“**MexicanSecurity Trust Agreement**” means the Irrevocable Security TrustAgreement dated April 29, 2003, by and among GMM, MM, each PrincipalSubsidiary, AMC and the Shared Mexican Trustee.

 

“**Mexico**”means the United Mexican States (Estados Unidos Mexicanos).

 

“**Mimenosa**”has the meaning set forth in the preamble of the Common Agreement.

 

“**MinimalNominal Period Capital Expenditures**” means: (a) for any periodending after December 31, 2003, the higher of (i) 25% of the Scheduled CapitalExpenditures for 

 

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the fiscal year during which the calculation is beingmade and (ii) the actual Capital Expenditures during such period (other thanCapital Expenditures to the extent financed with proceeds of any PermittedIndebtedness); and (b) for fiscal year 2003, the Capital Expenditures duringsuch period.

 

“**MinimalNominal Period Capitalized Stripping**” means: (a) for any periodending after December 31, 2003, the higher of (i) 25% of the ScheduledCapitalized Stripping for the fiscal year during which the calculation is beingmade and (ii) the actual Capitalized Stripping during such period; and (b) forfiscal year 2003, the Capitalized Stripping during such period.

 

“**MM**”has the meaning set forth in the preamble of the Common Agreement.

 

“**MMI**”has the meaning set forth in the preamble of the Common Agreement.

 

“**MMM**”has the meaning set forth in the preamble of the Common Agreement.

 

“**MonthlyPayment Date**” means (i) (A) the twenty-fifth (25th) day of the monthin which the Closing Date occurs, or (B) if the Closing Date occurs on or afterthe twenty-fifth (25th) day of a month, the twenty-fifth (25th) day of the nextsucceeding month, (ii) thereafter the twenty-fifth (25th) day of each monthending prior to the Maturity Date and (iii) the Maturity Date; providedthat if any such day is not a Business Day, then such Monthly Payment Dateshall be the immediately succeeding Business Day; and provided, further,that from and subsequent to the Maturity Date, Monthly Payment Dates shall bedetermined in accordance with Section 8.04(b) of the CommonAgreement.

 

“**Moody’s**”means Moody’s Investor Services, Inc.

 

“**NegativeCovenant**” has the meaning set forth in the preamble to Article Vof the Common Agreement.

 

“**NetAvailable Proceeds**” means, with respect to any Asset Disposition byany Person, the aggregate amount of all cash or readily marketable cashequivalents received (including by way of sale or discounting of a note,installment receivable or other receivable, as and when received, but excludingany other consideration received in the form of an assumption by the acquireeof indebtedness or other obligations relating to the properties or assets thatwere the subject of such Asset Disposition) in respect thereof by such Person,net of (i) all legal, title and recording tax expenses, commissions and otherfees and expenses incurred and all federal, state, provincial, foreign andlocal taxes required to be accrued as a liability as a consequence of suchAsset Disposition, (ii) all payments made by such Person or any of itsSubsidiaries on any Permitted Indebtedness that is secured by the assets thatwere the subject of such Asset Disposition in accordance with the terms of anyLien that is a Permitted Lien upon or with respect to such assets or which mustby the terms of such Lien, or in order to obtain a necessary consent to suchAsset Disposition or by Applicable Law, be repaid out of the proceeds from suchAsset Disposition and (iii) appropriate amounts to be provided by such Personor any Subsidiary thereof, as the case may be, as a reserve in accordance withMexican GAAP against any liabilities associated with such assets and retainedby such Person or any Subsidiary thereof, as the case may be, after such AssetDisposition, in each case as determined by the chief executive 

 

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officer or the chief financial officer of Borrower,with such determination evidenced by a certificate of such officer delivered tothe Lenders.

 

“**NetCapitalization**” means, as of the end of any fiscal quarter ofBorrower and its consolidated Subsidiaries, the total value of Borrower’sstockholder’s equity, as presented in the balance sheet of Borrower and itsconsolidated Subsidiaries as of such date, calculated in accordance withMexican GAAP, and, prior to the Intercompany Payable Restructuring, less (a)the asset titled, “Minera Mexico, S.A. de C.V. (holding company)” as presentedin such balance sheet, and (b) the asset titled, “Current: Notes and AccountsReceivable – Affiliated Companies” as presented in such balance sheet.

 

“**NetWorking Capital**” means the result of Current Assets minus CurrentLiabilities.

 

“**NewYork City**” means the City of New York, State of New York, UnitedStates.

 

“**NewBank Holders Notes**” mean the notes issued by MM on the date of theclosing of the Intercompany Payable Restructuring in replacement of the BankHolders Notes issued by GMM pursuant to the Bank Holders Restructured LoanAgreement, which replacement notes shall also have been executed *por aval*by each of the Guarantors and, in the case of any such replacement note issuedin replacement of a Specified Note (as defined in the GM Guaranty), by GM.

 

“**NewSEN Trustee Notes**” mean the notes issued by MM on the date of theclosing of the Intercompany Payable Restructuring in replacement of the SENTrustee Notes issued pursuant to the Restructured Trust Indenture anddesignated therein as “Borrower Notes”.

 

“**Notes**”means, collectively, the SEN Trustee Notes, the SEN Holders Notes and the BankHolders Notes.

 

“**Obligations**”means all debts, liabilities, obligations, covenants and duties, including forprincipal, fees, interest (including before and after judgment and during anyInsolvency Proceeding, including at the rate specified in Section 8.04(b)of the Common Agreement), indemnities and all other amounts, in each casearising under any Operative Document and owed by Borrower or any Guarantor toany Lender, the SEN Trustee, any Agent or any Indemnified Person, whetherdirect or indirect (including those acquired by assignment), absolute orcontingent, due or to become due, now existing or hereafter arising.

 

“**OperativeDocuments**” means the following (for the avoidance of doubt, the term“Operative Documents” does not include the GM Guaranty):

 

(a)           the CommonAgreement;

 

(b)           the RestructuredTrust Indenture;

 

(c)           the Trust Agreement;

 

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(d)           the Bank HoldersRestructured Loan Agreement;

 

(e)           each Note;

 

(f)            the CollateralDocuments;

 

(g)           all documentsrequired to be delivered by MM and GMM to the Agents in connection with theIntercompany Payable Restructuring; and

 

(h)           the SubordinationAgreement.

 

“**OrganizationalDocuments**” means (i) with respect to any corporation, the *estatutossociales*, the certificate or articles of incorporation, the bylaws,any certificate of determination or instrument relating to the rights ofpreferred shareholders of such corporation, any shareholder rights agreement,and all applicable resolutions of the shareholders or the board of directors(or any committee thereof) of such corporation and (ii) with respect to anyother entity, as applicable to such type of entity, its certificate offormation or limited liability company certificate, limited liability companyagreement, memorandum and articles of association, partnership agreement orsimilar constitutive documents and including all agreements, voting trusts andsimilar arrangements with or among the holders of such Person’s Capital Stockor other equity.

 

“**OriginalCollection Accounts**” shall mean the “Collection Accounts” as definedin the Original Trust Indenture.

 

“**OriginalTrust Indenture**” means the Trust Indenture, Security Agreement andGuaranty dated as of November 20, 1995, by and among the SEN Trust, MexicoDesarrollo Industrial Minero, S.A. de C.V., IMMSA, MMI, Mexcobre, Mimenosa,Mexcananea and Chemical Bank, as collateral agent.

 

“**Pass-throughInvestor**” means any holder of a certificate of beneficial interestin a Pass-through Vehicle.

 

“**Pass-throughSurety**” means any Person providing credit enhancement, for thebenefit of a Pass-through Vehicle holding one or more SEN Holders Notes or forthe benefit of the related Pass-through Investors, in respect of such SENHolders Notes.

 

“**Pass-throughVehicle**” means any entity that is a SEN Holder and was formed tohold SEN Holders Notes and credit enhancement contracts in respect thereof.

 

“**PaymentOffice**” means, with respect to any Agent, the address of such Agentfor payments as set forth on Schedule 14.14 to the Common Agreement orsuch other address as such Agent may from time to time specify to Borrower, theother Agents and the Lenders.

 

“**PercentageCalculation Date**” has the meaning set forth in Section 4.03(b)of the Common Agreement.

 

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“**PermittedIndebtedness**” shall mean (a) all Restructured Debt, (b) Indebtedness(i) evidencing the deferred purchase price of newly acquired items of equipmentto be used in the ordinary business operations of Borrower or any Guarantor ortheir respective Subsidiaries, (ii) incurred to finance the acquisition ofitems of equipment of Borrower or any Guarantor or their respectiveSubsidiaries (pursuant to purchase money mortgages or otherwise, whether owedto the seller or a third party; provided that such items of equipmentmay not be encumbered with any Lien other than a Permitted Lien) or (iii)arising under any Surety Instrument issued by a Pass-through Surety, for thebenefit of a Pass-through Vehicle holding one or more SEN Holders Notes or forthe benefit of the related Pass-through Investors, in respect of such SENHolders Notes, (c) other unsecured intercompany Indebtedness incurred in theordinary course of business between Borrower and its Subsidiaries or betweenBorrower’s Subsidiaries and (d) other unsecured Indebtedness incurred in theordinary course of business.

 

“**Permitted Investments**” means:

 

(a)           for PermittedInvestments denominated in Dollars:

 

(i)            directobligations of, or obligations, the principal of and interest on which areunconditionally guaranteed by, the United States (or by any agency thereof tothe extent such obligations are backed by the full faith and credit of theUnited States), in each case maturing within one year from the date ofacquisition thereof,

 

(ii)           investmentsin certificates of deposit, banker’s acceptances and time deposits maturingwithin 180 days from the date of acquisition thereof issued or guaranteed by orplaced with, and money market deposit accounts issued or offered by, anydomestic office of any commercial bank organized under the laws of the UnitedStates of America or any State thereof that has a combined capital and surplusand undivided profits of not less than $250,000,000; and

 

(iii)          fullycollateralized repurchase agreements with a term of not more than 30 days forsecurities described in clause (i) of this definition and entered into with afinancial institution satisfying the criteria described in clause (iii) of thisdefinition; and

 

(b)           forPermitted Investments denominated in Pesos or Dollars:

 

(i)            directobligations of, or obligations the principal of and interest on which areunconditionally guaranteed by, Mexico (or by any agency thereof to the extentsuch obligations are backed by the full faith and credit of Mexico) so long asthe Dollar denominated short-term unsecured debt obligations of Mexico arerated “investment grade” by each of S&P and Moody’s, in each case maturingwithin one year from the date of acquisition thereof;

 

(ii)           investmentsin commercial paper maturing within 270 days from the date of acquisitionthereof and having, at such date of such acquisition, the highest credit ratingobtainable from S&P or from Moody’s; and

 

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(iii)          investmentsin certificates of deposit, banker’s acceptances and time deposits maturingwithin 180 days from the date of acquisition thereof issued or guaranteed by,and deposit accounts issued or offered by, Scotiabank Inverlat, Banco Nacionalde Mexico, S.A. (“Banamex”) or BBVA Bancomer, S.A. (“Bancomer”) and so long as,in the case of any such investment issued or offered by Banamex or Bancomer,the Dollar denominated short-term unsecured debt obligations of suchinstitution are rated “investment grade” by each of S&P and Moody’s.

 

“**PermittedLiens**” has the meaning set forth in Section 5.01 of theCommon Agreement.

 

“**PermittedSwap Obligations**” means all obligations (contingent or otherwise) ofBorrower and the Guarantors existing or arising under Swap Contracts; providedthat each of the following criteria is satisfied: (a) such obligations are (orwere) entered into by such Person in the ordinary course of business primarilyfor the purpose of mitigating risks associated with liabilities, commitments orassets held or reasonably anticipated by such Person and not for purposes ofspeculation or taking a “market view” and (b) such Swap Contracts do notcontain any provision equivalent to Section 6(e)(i)(1) or (2) of the 1992Master Agreement (Multicurrency-Cross Border) in the form published by theInternational Swap Dealers Association, Inc.

 

“**Person**”means an individual, partnership, corporation, limited liability company,business trust, joint stock company, trust, unincorporated association, jointventure, other entity or Governmental Authority.

 

“**Pesos**”or “**P$**”means the lawful money of Mexico.

 

“**PIKInterest**” means (a) non-cash interest that accrues at the PIKInterest Rate and commences accruing on the Economic Effective Date on theoutstanding SEN Series C Restructured Principal and (b) additional non-cashinterest that accrues at the rate of 11.01% per annum on the Accreted PIKBalance and commences accruing on April 30, 2003.

 

“**PIKInterest Rate**” means a rate of 0.75% per annum.

 

“**PrepaymentEvent**” means the occurrence of (i) a Working Capital PrepaymentEvent, (ii) a Metal Price Prepayment Event, (iii) a Cash Flow Prepayment Event,(iv) an Early Asset Sale Debt Prepayment Event or (v) an Asset DispositionPrepayment Event.

 

“**PrimaryAccounts**” means all primary Mexican, U.S. and other bank accounts ofBorrower and the Guarantors (other than accounts constituting SEN Collateral),each of which accounts in existence as of the Closing Date is listed in ScheduleA-1 to the Common Agreement.

 

“**PrimeRate**” means, for any day, the rate that the Shared Payment andCollateral Agent announces from time to time at its principal office in NewYork City as its prime lending rate for Dollar loans in effect as of such day.

 

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“**PrincipalSubsidiary**” means each of IMMSA, MMI, Mexcobre, Mimenosa,Mexcananea, Mexarco, MMM, TISLP, MCI, PU and any other direct or indirectSubsidiary of Borrower whose net worth, on a non-consolidated basis inaccordance with Mexican GAAP, exceeds $1,000,000 at any time or whose netrevenues (other than revenues from MM and its Subsidiaries), on anon-consolidated basis in accordance with Mexican GAAP, exceeds $3,000,000 inany fiscal year.

 

“**ProcessAgent**” has the meaning set forth in Section 14.22 of theCommon Agreement.

 

“**PU**”has the meaning set forth in the preamble of the Common Agreement.

 

“**PublicUtility Holding Company Act**” means the Public Utility HoldingCompany Act of 1935.

 

“**Receivables**”means accounts, receivables, chattel paper, instruments, documents orintangibles evidencing or relating to the right to payment of money.

 

“**RequiredBank Holders**” means, at any time, Bank Holders holding more than 50%of the then aggregate outstanding principal amount of the Restructured Debtheld by the Bank Holders.

 

“**RequiredFloating Rate Lenders**” means, at any time, Floating Rate Lendersthen holding more than 50% of the then aggregate outstanding principal amountof all LIBOR Loans.

 

“**RequiredLenders**” means, at any time, Lenders holding more than 50% of thethen aggregate outstanding principal amount of the Restructured Principalvoting as a single class; provided, however, that during anyperiod when (a) cash is being trapped by the SEN Collateral Agent (other thansolely as a result of cash trapping pursuant to the terms of Section 4.03(b)of the Common Agreement) in accordance with Section 7.01(b) of theCommon Agreement following an Event of Default and (b) the Restructured Debthas not been accelerated, the term “Required Lenders” shall, for purposes of(and only for purposes of) (i) Sections 8.04, 10.01, 13.04,13.09, 13.11, 13.13, 13.14 and 14.09 of theCommon Agreement and (ii) the Subordination Agreement, mean the Required BankHolders.

 

“**RequiredSEN Holders**” means, at any time, the SEN Holders then holding morethan 50% of the then aggregate outstanding principal amount of the RestructuredDebt held by the SEN Holders (other than the Tranche C Restructured Debt andany PIK Interest).

 

“**ResponsibleOfficer**” means, (a) with respect to any Person other than the SENTrustee, the chief executive officer or the president of such Person, or anyother officer having substantially the same authority and responsibility; or,with respect to compliance with financial covenants, the chief financialofficer or the treasurer of such Person, or any other officer havingsubstantially the same authority and responsibility and (b) with respect to theSEN Trustee, any officer within the corporate trust department of the SENTrustee, including any vice president, assistant vice president, assistantsecretary, assistant treasurer, trust officer or any other officer of the SENTrustee who customarily performs functions similar to those performed by thePersons 

 

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who at the time shall be such officers, respectively,or to whom any corporate trust matter is referred because of such Person’sknowledge of and familiarity with the particular subject and who shall havedirect responsibility for the Operative Documents to which the SEN Trustee is aparty.

 

“**RestrictedPayment**” means the declaration or payment of any dividend on, or themaking of any payment or distribution on account of, or the setting apart ofassets for a sinking or other analogous fund for the purchase, redemption,defeasance, retirement or other acquisition of, any class of Capital Stock ofBorrower, any Guarantor or any of their respective Subsidiaries, or anywarrants or options to purchase any such Capital Stock, whether now orhereafter outstanding, or the making of any other distribution in respectthereof, either directly or indirectly, whether in cash or property,obligations of Borrower, any Guarantor or any of their respective Subsidiariesor otherwise.

 

“**RestructuredDebt**” means, collectively, the Tranche A Restructured Debt, theTranche B Restructured Debt and the Tranche C Restructured Debt.

 

“**RestructuredDebt Payment Schedule**” means the payment schedule set forth as Schedule4.01(b) to the Common Agreement.

 

“**RestructuredPrincipal**” means, collectively, the Tranche A Restructured Debt andthe Tranche B Principal Amount.

 

“**ReutersScreen LIBOR Page**” means the display designated as page “LIBOR” onthe Reuters Monitor Money Rates service or such other page as may replace the“LIBOR” page of that service for the purpose of displaying LIBOR rates of majorbanks.

 

“**RestructuredTrust Indenture**” means that certain Amended and Restated TrustIndenture dated as of April 29, 2003, by and among the SEN Trustee, GMM and theSEN Collateral Agent.

 

“**Restructuring**”means the restructuring of the Existing Bank Agreements and the Existing SENAgreements under the Operative Documents.

 

“**S&P**”means Standard & Poor’s Ratings Group, a division of The McGraw-HillCompanies, Inc.

 

“**ScheduledAssets**” means those assets described in Schedule A-2 theCommon Agreement.

 

“**ScheduledCapitalized Expenditures**” means, as of any date, the applicableamount set forth on Schedule 5.11 to the Common Agreement.

 

“**ScheduledCapitalized Stripping**” means , as of any date, the applicable amountset forth on Schedule 5.11 to the Common Agreement.

 

“**ScheduledMaturity Date**” means March 31, 2007.

 

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“**ScotiabankUnpaid Default Interest**” means the excess of (x) $588,888 over (y)the excess of (1) the interest actually paid in cash to The Bank of Nova Scotiain respect of the loan made and held by it under the Existing Bank Agreementsduring the Interim Funding Period (which interest accrued thereon at a perannum rate equal to the LIBOR Rate plus 425 basis points) over (2) the amountof interest that would have accrued on such loan had the interest rateapplicable to such loan been reduced on the Economic Effective Date to theLIBOR Rate plus 375 basis points per annum.

 

“**SEC**”means the U.S. Securities and Exchange Commission, or any GovernmentalAuthority succeeding to any of its principal functions.

 

“**SENCash Trapping Arrangement**” has the meaning set forth in Section 7.01(b)of the Common Agreement.

 

“**SENClosing Date Contribution**” means an amount equal to (a) theaggregate amount of all funds held in the Original Collection Accounts and theDebt Service Reserve Account on the Closing Date prior to the closing of thetransactions contemplated by the Operative Documents minus (b) the sum of (1)the SEN Interest Reserve Account Required Balance as of the Closing Date, (2)the aggregate amount necessary to pay, in full, the fees and expenses of theSEN Holders incurred in connection with the transactions contemplated by theOperative Documents as provided in Section 2.01(u) of the CommonAgreement, and (3) the aggregate amount necessary to pay any accrued and unpaidCurrent Cash Interest to any of the SEN Holders on the Closing Date.

 

“**SENCollateral**” has the meaning set forth in the SEN Security Agreement.

 

“**SENCollateral Agent**” has the meaning set forth in the preamble of theCommon Agreement.

 

“**SENContribution**” means, collectively, (a) the SEN Interim Contributionand (b) the SEN Closing Date Contribution.

 

“**SENHolders**” has the meaning set forth in the preamble of the CommonAgreement, and for the avoidance of doubt shall mean only those Persons thathold SEN Holders Notes from time to time.

 

“**SENHolders Notes**” means the notes issued by the SEN Trustee pursuant tothe terms of the Restructured Trust Indenture, and designated therein as the“Secured Notes”.

 

“**SENHolders Operative Documents**” means the Restructured Trust Indenture,the SEN Trustee Notes, the SEN Holders Notes, the SEN Security Agreement, theTrust Agreement and any other document relating specifically to the SENCollateral, and for the avoidance of doubt shall not include the CommonAgreement and the Mexican Security Trust Agreement.

 

“**SENHolders Restructured Principal**” means that portion of theRestructured Principal held by the SEN Holders.

 

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“**SENInterest Reserve Account**” has the meaning set forth in the SENSecurity Agreement.

 

“**SENInterest Reserve Account Required Balance**” means, as of the ClosingDate or any Monthly Payment Date, the aggregate amount of Cash Interestscheduled to come due in respect of the Tranche A Restructured Debt held by SENHolders and the Tranche B Restructured Debt held by SEN Holders during thethree (3) next succeeding months, calculated as if the applicable interestrates on such Restructured Debt in effect on the Closing Date or such MonthlyPayment Date, as the case may be, will remain in effect throughout suchthree-month period; provided, however, that with respect to thethree (3) month period prior to the Scheduled Maturity Date, such amount shallexclude Cash Interest payable with respect to PIK Interest on the ScheduledMaturity Date.

 

“**SENInterim Contribution**” means an amount equal to $38,800,000.

 

“**SENMake-Whole Amount**” means an amount due to holders of SEN Series CRestructured Principal or holders of SEN Series D Restructured Principalpursuant to Section 7.01(f) or Section 7.01(g) of the CommonAgreement.

 

“**SENSecurity Agreement**” means that certain SEN Security Agreement datedas of April 29, 2003, by and among GMM, MM, the Principal Subsidiaries, the SENTrustee and the SEN Collateral Agent.

 

“**SENSeries C Restructured Principal**” has the meaning set forth in theRestructured Trust Indenture.

 

“**SENSeries D Restructured Principal**” has the meaning set forth in theRestructured Trust Indenture.

 

“**SENSeries E Restructured Principal**” has the meaning set forth in theRestructured Trust Indenture.

 

“**SENSeries E Cash Interest Rate**” shall mean the LIBOR Rate plusthe Applicable Margin.

 

“**SENTrust**” has the meaning set forth in the preamble of the CommonAgreement.

 

“**SENTrustee**” has the meaning set forth in the preamble of the CommonAgreement.

 

“**SENTrustee Notes**” means (i) prior to the Intercompany PayableRestructuring, the notes issued by GMM pursuant to the Restructured TrustIndenture and designated therein as the “Borrower Notes” and (ii) from andafter the date of the Intercompany Payable Restructuring, the notes issued byMM pursuant to the Restructured Trust Indenture and designated therein as the “BorrowerNotes”.

 

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“**SharedCollateral**” has the meaning set forth in Section 7.01(c) ofthe Common Agreement.

 

“**SharedCollateral Control Agreement**” has the meaning set forth in the U.S.Security Agreement.

 

“**SharedMexican Trustee**” means GE Capital Bank, S.A., Institución de BancaMúltiple, GE Capital Grupo Financiero.

 

“**SharedPayment and Collateral Agent**” has the meaning set forth in thepreamble of the Common Agreement.

 

“**SharedYankee Bond Collateral**” means all Shared Collateral of Borrower andits Subsidiaries other than the Excluded Assets (as defined in the MexicanSecurity Trust Agreement).

 

“**Solvent**”means, with respect to any Person on a particular date, that on such date: (a)the fair market value of the property of such Person is greater than the totalamount of its liabilities, (b) the present fair salable value of the assets ofsuch Person is not less than the amount that will be required to pay theprobable liability of such Person on its debts as they become absolute andmatured, (c) such Person does not believe that it will incur debts orliabilities beyond its ability to pay as such debts and liabilities mature, (d)such Person is not engaged in business or a transaction, and is not about toengage in business or a transaction, for which its property would constitute anunreasonably small capital, (e) no more than 35% of such Person’s paymentobligations are thirty (30) or more days past due, and (f) such Person ownsenough “Liquid Assets” (as hereafter defined) with which to pay at least 80% ofits past due payment obligations.  Forpurposes hereof, the term “Liquid Assets” means, at any time, (i) cash on hand,(ii) demand cash deposits, (iii) cash deposits and investments redeemablewithin ninety (90) days, (iv) receivables becoming due within ninety (90) daysand (v) securities for which a liquid market exists in which the value of suchsecurities on such date can be determined and such securities can be soldwithin thirty (30) Mexican banking days.

 

“**SpecifiedParticipant**” has the meaning set forth in Section 4.20 of theCommon Agreement.

 

“**SubordinationAgreement**” has the meaning set forth in Section 14.23 of theCommon Agreement.

 

“**Subsidiary**”means, with respect to any specified Person, any corporation, association,partnership, limited liability company, joint venture or other business Personof which more than 50% of the voting stock, membership interests or otherequity interests (in the case of Persons other than corporations) is owned orcontrolled directly or indirectly by such specified Person, by one or more ofthe Subsidiaries of such specified Person, or by a combination thereof.

 

“**SubstituteRate**” has the meaning set forth in Section 12.05 of theCommon Agreement.

 

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“**Super-MajorityLenders**” means, at any time, Lenders holding greater than 60% of thethen aggregate outstanding principal amount of the Restructured Principalvoting as a single class.

 

“**SuretyInstrument**” means any letter of credit (including standby andcommercial), bankers’ acceptance, bank guarantee, surety bond or similarinstrument.

 

“**SwapContract**” mean any agreement, whether or not in writing, relating toany transaction that is a rate swap, basis swap, forward rate transaction,commodity swap, commodity option, equity or equity index swap or option, bond,note or bill option, interest rate option, forward foreign exchangetransaction, cap, collar or floor transaction, currency swap, cross-currencyrate swap, swap option, currency option or any other similar transaction(including any option to enter into any of the foregoing) or any combination ofthe foregoing, and, unless the context otherwise clearly requires, any masteragreement relating to or governing any or all of the foregoing.

 

“**SwapTermination Value**” means, in respect of any one or more SwapContracts, after taking into account the effect of any legally enforceablenetting agreement relating to such Swap Contracts, (a) for any date on or afterthe date such Swap Contracts have been closed out and termination value(s)determined in accordance therewith, such termination value(s), and (b) for anydate prior to the date referenced in clause (a), the amount(s) determined asthe mark-to-market value(s) for such Swap Contracts, as determined based uponone or more mid-market or other readily available quotations provided by anyrecognized dealer in such Swap Contracts (which may include a Lender or anyAffiliate of a Lender).

 

“**SyntheticLease Obligation**” means the monetary obligation of a Person under(a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) anagreement for the use or possession of property creating obligations that donot appear on the balance sheet of such Person but which, upon the insolvencyor bankruptcy of such Person, would be characterized as indebtedness of suchPerson (without regard to accounting treatment).

 

“**Tax**”or “**Taxes**”means any and all present or future taxes, levies, assessments, imposts,duties, deductions, fees, compulsory loans, withholdings or similar charges,and all liabilities with respect thereto, and any and all stamp, court ordocumentary taxes or any other excise or property taxes, charges or similarlevies, if any, that arise from any payment under the Common Agreement or anyother Operative Document or from the execution, delivery, performance,enforcement or registration of, or otherwise with respect to, the CommonAgreement or any other Operative Document, and all liabilities with respect toany of the foregoing, excluding, in the case of each Lender and each Agent,respectively, taxes imposed on or measured by its net income by thejurisdiction (or any political subdivision thereof) under the laws of whichsuch Lender or such Agent, as the case may be, is organized or maintains aLending Office.

 

“**TeleratePage 3750**” means the display designated as page “3750” on theTelerate Service (formerly known as the Dow Jones Market Service) or such otherpage as may replace the “3750” page on the Telerate Service or such otherservice or services as may be 

 

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nominated by the British Bankers’ Association as theinformation vendor for the purpose of displaying British Bankers’ AssociationInterest Settlement Rates for Dollar deposits.

 

“**TISLP**”has the meaning set forth in the preamble to the Common Agreement.

 

“**TotalDebt**” means, as of the end of any fiscal quarter of Borrower and itsconsolidated Subsidiaries, the sum, without duplication, of (a) theRestructured Debt as of such date (excluding the principal amount of any GMNotes then outstanding (including any such principal resulting from thecapitalization of interest thereon)), (b) all other direct and indirectobligations for money borrowed by Borrower or any of its Subsidiariesoutstanding as of such date, (c) all Capital Leases of Borrower and itsSubsidiaries outstanding as of such date, and (d) the face value of any and allobligations for money borrowed by other Persons and guaranteed by Borrower orany of its Subsidiaries.

 

“**TotalDebt to Net Capitalization Ratio**” means, as of any date ofdetermination, Total Debt divided by Net Capitalization.

 

“**TrancheA Restructured Debt**” means, collectively, (i) with respect to theBank Holders, each “Tranche A Loan” (as such term is defined in the BankHolders Restructured Loan Agreement) and (ii) with respect to the SEN Holders,each “Tranche A Loan” (as such term is defined in the Restructured TrustIndenture).

 

“**TrancheB Principal Amount**” means, at any time, an amount equal to theTranche B Restructured Debt *minus* prepayments of the Tranche BRestructured Debt resulting from Prepayment Events.  For the avoidance of doubt, Tranche B Principal Amount shall notinclude PIK Interest.

 

“**TrancheB Restructured Debt**” means, collectively, (i) with respect to theBank Holders, each “Tranche B Loan” (as such term is defined in the BankHolders Restructured Loan Agreement) and (ii) with respect to the SEN Holders,each “Tranche B Loan” (as such term is defined in the Restructured TrustIndenture).

 

“**TrancheC Restructured Debt**” means any SEN Make-Whole Amount due and owingin accordance with Section 7.01(f) or Section 7.01(g) of theCommon Agreement.

 

“**TrustAcceptance Letter**” means that certain letter agreement dated as ofApril 29, 2003, whereby the Shared Payment and Collateral Agent accepts thebenefits of the Mexican Security Trust Agreement.

 

“**TrustAgreement**” has the meaning set forth in the Restructured TrustIndenture.

 

“**UniformCommercial Code**” means the Uniform Commercial Code as in effect fromtime to time in the State of New York and in any other jurisdiction the laws ofwhich control the creation or perfection of security interests under theOperative Documents, with the exception of the Mexican Security TrustAgreement.

 

“**UnitedStates**” or “**U.S.**” shall mean the United States ofAmerica.

 

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“**UnrestrictedCash**” means, as of any date, the amount of cash and any PermittedInvestments that are cash equivalents on hand as of such date less any cashheld as a reserve against the payment of the Restructured Debt, the payment ofany Indebtedness outstanding under the Yankee Bond Indenture or any similarobligation.

 

“**UpdatedProjections**” has the meaning set forth in Section 2.01(k) ofthe Common Agreement.

 

“**U.S.GAAP**” means generally accepted accounting principles set forth inthe opinions and pronouncements of the Accounting Principles Board of theAmerican Institute of Certified Public Accountants and statements andpronouncements of the Financial Accounting Standards Board (or any successorauthority) in effect as of the date of determination, applied on a consistentbasis both as to amounts and classification of items.

 

“**U.S.Security Agreement**” means the U.S. Security Agreement dated as ofApril 29, 2003, by and among GMM, MM and the Principal Subsidiaries in favor ofthe Shared Payment and Collateral Agent.

 

“**WorkingCapital Prepayment Amount**” has the meaning set forth in Section 8.01(a)of the Common Agreement.

 

“**WorkingCapital Prepayment Event**” has the meaning set forth in Section 8.01(a)of the Common Agreement.

 

“**YankeeBond Indenture**” means that certain Indenture dated as of March 31,1998, by and among GMM, as issuer, certain of its Subsidiaries, as guarantors,and The Bank of New York, as trustee.

 

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