**Exhibit 2(b)(2)**

** **

FIRST SUPPLEMENTAL INDENTURE

 

Dated as of October 21, 2009

to

INDENTURE

Dated as of December 3, 2004

between

GRUMA, S.A.B. de C.V.

AND

THE BANK OF NEW YORK MELLON AS TRUSTEE

 

7.75% PERPETUAL BONDS

 

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ThisFIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of October 21,2009, is entered into by and between Gruma, S.A.B. de C.V. (the “Company”), acorporation (*sociedad an**ó**nimaburs**á**tilde capital variable*)*,*organized and existing underthe laws of the United Mexican States (“Mexico”) and THE BANK OF NEW YORKMELLON, a corporation organized under the laws of The State of New York,authorized to conduct a banking business, as trustee (herein called the “Trustee”)for the Holders of 7.75% Perpetual Bonds issued under the Indenture (as definedbelow). Capitalized terms used herein but not otherwise defined herein shallhave the meanings ascribed thereto in such Indenture, unless otherwisespecified.

 

W I T N E S S E T H:

 

WHEREAS,the Company and the Trustee have entered into that certain Indenture dated as December 3,2004 (the “Indenture”) which provides for, among other things, the issuance bythe Company of US$300,000,000 of 7.75% Perpetual Bonds (the “Bonds”); and

 

WHEREAS,the Company is entering into a senior secured loan agreement dated October 16,2009 with Deutsche Bank Trust Company Americas as administrative agent (“Loan AAdministrative Agent”) and the several financial institutions from time to timeparty thereto (collectively, the “Loan A Lenders” and individually, a “Loan ALender”), pursuant to which, among other things, the Loan A Lenders will makeor extend certain loans and other financial accommodations to the Company onthe terms and conditions set forth therein (the “Loan A Obligations”); and

 

WHEREAS,the Company is entering into a senior secured loan agreement dated October 16,2009 with BBVA Bancomer, S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer asadministrative agent (“Loan B Administrative Agent” and, together with Loan A AdministrativeAgent, the “Administrative Agents”) and the several financial institutionsparty thereto (collectively, the “Loan B Lenders” and, individually, a “Loan BLender”, and, together with the Loan A Lenders, the “Secured Loan A and BLenders”), pursuant to which, among other things, the Loan B Lenders will makeor extend certain loans and other financial accommodations to the Company onthe terms and conditions set forth therein (the “Loan B Obligations” and,together with the Loan A Obligations, the “Secured Loan A and B Obligations”);and

 

WHEREAS,pursuant to the Security Documents (as defined in the Intercreditor Agreementdescribed below) the Company will grant to The Bank of New York Mellon, alsoacting through its appointed sub-agent, THE BANK OF NEW YORK MELLON, S.A.,INSTITUCÍON DE BANCA MÚLTIPLE as collateral agent(the “Collateral Agent”) on behalf of the Secured Loan A and B Lenders and theHolders, certain liens on and a security interest in shares of certainsubsidiaries of the Company and a certain security interest in intercompanyindebtedness owed to the Company by certain of its subsidiaries (collectively,the “Loan A and B Collateral”) to secure the Secured Loan A and B Obligations(the “Secured Loan A and B Liens”) and obligations under the Bonds; and

 

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WHEREAS,the Company is entering into the following loan agreements dated the datehereof with the lenders party thereto (collectively, the “Loan C Lenders” andtogether with the Secured Loan A and B Lenders, the “Secured Loan A, B and CLenders”) pursuant to which, among other things, the Loan C Lenders will makeor extend certain loans and otherfinancial accommodations tothe Company on the terms and conditions set forth therein (the “Loan CObligations” and, together with the Secured Loan A and B Obligations, the “SecuredLoan A, B and C Obligations”)

 

(A)          the Loan Agreement, dated on or prior to the date hereof,as amended from time to time, by and among the Company and ABN AMRO Bank N.V.,providing for a term loan facility in an aggregate principal amount ofUS$13,900,000;

 

(B)           the Loan Agreement, dated on or prior to the date hereof,as amended from time to time, by and among the Company and Barclays Bank PLC,providing for a term loan facility in an aggregate principal amount ofUS$21,500,000;

 

(C)           the Loan Agreement, dated on or prior to the date hereof,as amended from time to time, by and among the Company and BNP Paribas,providing for a term loan facility in an aggregate principal amount ofUS$11,756,872;

 

(D)          the Loan Agreement, dated on or prior to the date hereof,as amended from time to time, by and among the Company and Standard CharteredBank PLC, providing for a term loan facility in an aggregate principal amountof US$22,896,000; and

 

WHEREAS,pursuant to (i) a Subordination Agreement dated as of October 21,2009 between the Company and certain of its subsidiaries, with respect tocertain subordinated intercompany indebtedness owed by the Company to itssubsidiaries (defined in the Intercreditor Agreement described below as “SubordinatedLiabilities”) (the “Subordination Agreement”) and (ii) the IntercompanyTrust Agreement (as defined in such Intercreditor Agreement), the Company hasgranted certain rights to the Secured Loan A, B and C Lenders (the “Loan A, Band C Collateral”) in connection with the Loan A, B and C Obligations (the “SecuredLoan A, B and C Liens”) and to the Trustee, on behalf of the Holders inconnection with obligations under the Bonds; and

 

WHEREAS,the Administrative Agents are entering into a collateral agency andintercreditor agreement dated as of October 21, 2009 (the “IntercreditorAgreement”) with the Collateral Agent, the Company (with respect to certainsections), the Administrative Agents, the Loan C Lenders (as signatories foracknowledgment purposes) and the Trustee (as a signatory for acknowledgmentpurposes) pursuant to which the Secured Loan A and B Lenders set forth theirrights and that of the Trustee on behalf of the Holders with respect to theLoan A and BCollateral and the Secured Loan A, B and CLenders set forth their rights and that of the Trustee on behalf of the Holderswith respect to the Loan A, B and C Collateral; and

 

WHEREAS,with respect to the Loan A and B Collateral, the granting of the Secured Loan Aand B Liens is permitted by Section 10.4 of the Indenture, provided thatthe

 

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Company grant to the Trustee, on behalf of the Holders,Liens on the Loan A and B Collateral in order to secure the Bonds on an equaland ratable basis with the Secured Loan A and B Obligations; and

 

WHEREAS, with respect to the Loan A, B and C Collateral,the granting of the Secured Loan A, B and C Liens is permitted by Section 10.4of the Indenture, provided that the Company grant to the Trustee, on behalf ofthe Holders, Liens on the Loan A, B and C Collateral in order to secure theBonds on an equal and ratable basis with the Secured Loan A, B and CObligations; and

 

WHEREAS, Section 9.2(5) of the Indentureprovides, among other things, that the Company and the Trustee may enter intoindentures supplemental to the Indenture without the consent of the Holdersfor, among other things, the purpose of securing the Bonds; and

 

WHEREAS, the parties hereto desire to enter into thisSupplemental Indenture in accordance with Section 9.2(5) of theIndenture; and

 

WHEREAS, the Company has been and is duly authorized toenter into, execute and deliver, and hereby authorizes and directs the Trusteeon behalf of the Holders to execute and deliver, this Supplemental Indenture:

 

NOW, THEREFORE, for and in consideration of the premisesand covenants and agreements contained herein and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the Company and the Trustee agree as follows:

 

SECTION 1. The Trustee hereby acknowledges thegranting of the Liens to the Collateral Agent, on behalf of the Trustee and theHolders pursuant to the Security Documents, on the Loan A and B Collateral to secure the payment of principal and interest and all otheramounts due and owing pursuant to the terms of the Bonds on an equal andratable basis with the Secured Loan A and B Obligations and, in connectionherewith, the Trustee hereby acknowledges on behalf of the Holders the executionand delivery of the Security Documents pursuant to which such Liens on the LoanA and B Collateral referred to herein shall be granted to the Collateral Agent,on behalf of the Trustee and the Holders and on behalf of the Secured Loan Aand B Lenders.

 

Upon the release of the Secured Loan A and B Liens on theLoan A and B Collateral upon satisfaction of certain financial and otherconditions as set forth in the Security Documents (an “Interim CollateralRelease”) or upon the release of the Secured Loan A and B Liens upon payment infull of the Secured Loan A and B Obligations, the Trustee hereby agrees tocause the Collateral Agent to release all the Liens and security interests onthe Loan A and B Collateral granted to the Collateral Agent, on behalf of theTrustee and the Holders pursuant to the Security Documents on the same termsand conditions as the Collateral Agent, acting on behalf of the AdministrativeAgents, shall release. The Trustee hereby acknowledges that following anInterim Collateral Release, if such certain financial and other conditionscease to be satisfied, the Liens on the Loan A and B Collateral shall bereinstated to the Collateral Agent on behalf of the Holders and the SecuredLoan A and B Lenders pursuant to the Security

 

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Documents. In such case, the Trustee hereby agrees tocause the Collateral Agent to release all the Liens and security interests onthe Loan A and B Collateral granted pursuant to the Security Documents on thesame terms and conditions as the Collateral Agent, acting on behalf of theAdministrative Agents, shall release upon a subsequent Interim CollateralRelease or upon payment in full of the Secured Loan A and B Obligations.

 

SECTION 2. The Trustee hereby acknowledges the granting of the Liens on the Loan A,B and C Collateral under the Subordination Agreement and the Intercompany TrustAgreement to secure the payment of principal and interest and all other amountsdue and owing pursuant to the terms of the Bonds on an equal and ratable basiswith the Secured Loan A, B and C Obligations and, in connection herewith, theTrustee hereby acknowledges on behalf of the Holders the execution and deliveryof the Intercreditor Agreement, the Subordination Agreement and theIntercompany Trust Agreement pursuant to which such Liens on the Loan A, B andC Collateral referred to herein shall be granted to the Collateral Agent, onbehalf of the Trustee and the Holders and on behalf of the Secured Loan A, Band C Lenders.

 

Upon the release of the Secured Loan A, B and C Liens onthe Loan A, B and C Collateral upon payment in full of the Secured Loan A, Band C Obligations, the Trustee hereby agrees to cause the Collateral Agent torelease all the Liens and security interests on the Loan A, B and C Collateralgranted to the Collateral Agent pursuant to the Subordination Agreement and theIntercompany Trust Agreement on the same terms and conditions as the CollateralAgent, acting on behalf of theAdministrative Agents, shall release.

 

SECTION 3. The Company hereby consents to thegranting of the Liens on the Loan A and B Collateral and the Loan A, B and CCollateral for the benefit of the Trustee and the Holders to secure the paymentof principal and interest and all other amounts due and owing pursuant to theterms of the Bonds on an equal and ratable basis as described in Sections 1 and2 above and in the Security Documents and the Subordination Agreement until therelease of the Liens on the Loan A and B Collateral and the Loan A, B and CCollateral in accordance with the provisions described in Sections 1 and 2above. In connection herewith, the Company authorizes the Trustee to be asignatory to the Intercreditor Agreement for the sole purpose of acknowledgingthe Liens on the Loan A and B Collateral and the Loan A, B and C Collateral, onbehalf of the Trustee and the Holders to secure the payment of principal andinterest and all other amounts due and owing on the Bonds on an equal andratable basis as described in Sections 1 and 2 above, in accordance with theIndenture.

 

SECTION 4. Except as expressly supplemented by thisSupplemental Indenture, the Indenture and the Bonds are in all respectsratified and confirmed and all of the rights, remedies, terms, conditions,covenants and agreements of the Indenture and the Bonds shall remain in fullforce and effect.

 

SECTION 5. This Supplemental Indenture is executedand shall constitute an indenture supplemental to the Indenture and shall beconstrued in connection with and as part of the Indenture. This SupplementalIndenture shall be governed by and construed in accordance with the laws of thejurisdiction that governs the Indenture and its construction.

 

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SECTION 6.This Supplemental Indenture may be executed in any number of counterparts, eachof which shall be deemed to be an original for all purposes; but suchcounterparts shall together be deemed to constitute but one and the sameinstrument.

 

SECTION 7.Any and all notices, requests, certificates and other instruments executed anddelivered after the execution and delivery of this Supplemental Indenture mayrefer to the Indenture without making specific reference to this SupplementalIndenture, but nevertheless all such references shall include this SupplementalIndenture unless the context otherwise requires.

 

SECTION 8.This Supplemental Indenture shall be deemed to have become effective upon thedate first written above.

 

SECTION 9.In the event of a conflict between the terms of this Supplemental Indenture andthe Indenture, this Supplemental Indenture shall control.

 

SECTION 10.The Trustee shall not be responsible in any manner whatsoever for or in respectof the validity or sufficiency of this Supplemental Indenture or for or inrespect of the recital contained herein, all of which recitals are made solelyby the Company.

 

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INWITNESS WHEREOF, the parties have caused this Supplemental Indenture to be dulyexecuted as of the day and year first set forth above.

 
|   | GRUMA,  S.A.B. de C.V.                   |
|--------|------------------------------------------|
|   |                                     |   |
|   |                                     |   |
|   |                                     | By: | /s/  Raul Alonso Pelaez Cano |
|   |                                     |   | Name:  Raul Alonso Pelaez Cano |
|   |                                     |   | Title:  Chief Financial Officer |
|   |                                     |   |   |
|   |                                     |   |   |
|   |                                     | By: | /s/ Juan Antonio Quiroga García |
|   |                                     |   | Name:  Juan Antonio Quiroga García |
|   |                                     |   | Title:  Chief Corporate Officer |
|   |                                     |   |   |
|   |                                     |   |   |
|   |                                     | By: | /s/  Salvador Vargas Guajardo |
|   |                                     |   | Name:  Salvador Vargas Guajardo |
|   |                                     |   | Title:  General Counsel |
|   |                                     |   |   |
|   |                                     |   |   |
|   | THE  BANK OF NEW YORK MELLON, as TRUSTEE |
|   |                                     |   |   |
|   |                                     |   |   |
|   |                                     | By: | /s/  William Potes |
|   |                                     |   | Name:  William Potes |
|   |                                     |   | Title:  Assistant Vice President |

 

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