**Exhibit 2(b)(6)**

 

 

US$668,282,700

 

SENIOR SECUREDLOAN AGREEMENT

 

Dated as of October 16,2009

 

by and among

 

GRUMA, S.A.B. deC.V.,as the Borrower

 

DEUTSCHE BANKTRUST COMPANY AMERICAS,

 

as AdministrativeAgent,

 

THE BANK OF NEWYORK MELLON,

 

as CollateralAgent,

 

and

 

The SeveralLenders Party Hereto,as Lenders

 

 

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**TABLE OF CONTENTS**

 
| ** **  | ** **                                                                                | **Page** |
|-------------|-------------------------------------------------------------------------------------------|----------|
|        |                                                                                      |     |
| ARTICLE I   | DEFINITIONS                                                                               | 1        |
|        |                                                                                      |     |
| 1.01.       | Certain Defined Terms                                                                     | 1        |
| 1.02.       | Other Interpretive  Provisions                                                            | 36       |
| 1.03.       | Accounting Principles                                                                     | 37       |
|        |                                                                                      |     |
| ARTICLE II  | THE LOANS                                                                                 | 37       |
|        |                                                                                      |     |
| 2.01.       | The Loans                                                                                 | 37       |
| 2.02.       | Evidence of  Indebtedness                                                                 | 38       |
| 2.03.       | Procedure for Making of  Loans                                                            | 38       |
| 2.04.       | Voluntary Prepayments                                                                     | 39       |
| 2.05.       | Mandatory Prepayments                                                                     | 39       |
| 2.06.       | Repayment of the Loans                                                                    | 43       |
| 2.07.       | Interest                                                                                  | 44       |
| 2.08.       | Fees                                                                                      | 44       |
| 2.09.       | Computation of Interest  and Fees                                                         | 44       |
| 2.10.       | Payments by the Company                                                                   | 44       |
| 2.11.       | Sharing of Payments,  Etc.                                                                | 45       |
| 2.12.       | Promise to Pay                                                                            | 46       |
|        |                                                                                      |     |
| ARTICLE III | TAXES, YIELD PROTECTION  AND ILLEGALITY                                                   | 46       |
|        |                                                                                      |     |
| 3.01.       | Taxes                                                                                     | 46       |
| 3.02.       | Illegality                                                                                | 48       |
| 3.03.       | Inability to Determine  Rates                                                             | 49       |
| 3.04.       | Increased Costs and  Reduction of Return                                                  | 49       |
| 3.05.       | Funding Losses                                                                            | 50       |
| 3.06.       | Reserves on Loans                                                                         | 50       |
| 3.07.       | Certificates of Lenders                                                                   | 51       |
| 3.08.       | Change of Lending  Office                                                                 | 51       |
| 3.09.       | Substitution of Lender                                                                    | 51       |
| 3.10.       | Survival                                                                                  | 52       |
|        |                                                                                      |     |
| ARTICLE IV  | CONDITIONS PRECEDENT                                                                      | 52       |
|        |                                                                                      |     |
| 4.01.       | Conditions to Closing  Date                                                               | 52       |
|        |                                                                                      |     |
| ARTICLE V   | REPRESENTATIONS AND  WARRANTIES                                                           | 57       |
|        |                                                                                      |     |
| 5.01.       | Corporate Existence and  Power                                                            | 57       |
| 5.02.       | Corporate  Authorization; No Contravention                                                | 58       |
| 5.03.       | No Additional  Authorizations                                                             | 58       |
| 5.04.       | Binding Effect                                                                            | 58       |
| 5.05.       | Litigation                                                                                | 58       |
| 5.06.       | Financial Information;  No Material Adverse Effect; No Default; No Contingent Liabilities | 59       |
| 5.07.       | Pari Passu                                                                                | 59       |

 

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**TABLE OF CONTENTS**

(continued)

 
| ** **  | ** **                                                    | **Page** |
|-------------|---------------------------------------------------------------|----------|
|        |                                                          |     |
| 5.08.       | Taxes                                                         | 60       |
| 5.09.       | Environmental Matters                                         | 60       |
| 5.10.       | Compliance with Social  Security Legislation, Etc.            | 60       |
| 5.11.       | Assets; Patents;  Licenses; Insurance; Etc.                   | 61       |
| 5.12.       | Subsidiaries                                                  | 62       |
| 5.13.       | Commercial Acts                                               | 62       |
| 5.14.       | Proper Legal Form                                             | 62       |
| 5.15.       | Full Disclosure                                               | 63       |
| 5.16.       | Investment Company Act                                        | 63       |
| 5.17.       | Margin Regulations                                            | 63       |
| 5.18.       | ERISA Compliance; Labor  Matters                              | 63       |
| 5.19.       | Security Interests                                            | 65       |
| 5.20.       | Anti-Terrorism Laws                                           | 65       |
| 5.21.       | Existing Indebtedness  and Reporto Contracts                  | 66       |
| 5.22.       | Hedging Policy                                                | 67       |
| 5.23.       | Collateral and  Guaranties Relating to Company Indebtedness   | 67       |
|        |                                                          |     |
| ARTICLE VI  | AFFIRMATIVE COVENANTS                                         | 67       |
|        |                                                          |     |
| 6.01.       | Financial Statements  and Other Information                   | 67       |
| 6.02.       | Notice of Other Events                                        | 71       |
| 6.03.       | Maintenance of  Existence; Conduct of Business                | 72       |
| 6.04.       | Insurance                                                     | 72       |
| 6.05.       | Maintenance of  Governmental Approvals                        | 73       |
| 6.06.       | Use of Proceeds                                               | 73       |
| 6.07.       | Payment of Obligations                                        | 73       |
| 6.08.       | Ranking; Priority                                             | 73       |
| 6.09.       | Compliance with Laws                                          | 73       |
| 6.10.       | Maintenance of Books  and Records                             | 74       |
| 6.11.       | Security Documents                                            | 74       |
| 6.12.       | Refinancing                                                   | 75       |
| 6.13.       | Working Capital  Indebtedness Clean-Down                      | 75       |
| 6.14.       | Intercompany  Indebtedness                                    | 76       |
| 6.15.       | Further Assurances                                            | 76       |
|        |                                                          |     |
| ARTICLE VII | NEGATIVE COVENANTS                                            | 77       |
|        |                                                          |     |
| 7.01.       | Negative Pledge                                               | 77       |
| 7.02.       | Investments                                                   | 79       |
| 7.03.       | Mergers,  Consolidations, Sales and Leases                    | 81       |
| 7.04.       | Restricted Payments                                           | 82       |
| 7.05.       | Other Agreements                                              | 83       |
| 7.06.       | Burdensome Agreements                                         | 83       |
| 7.07.       | Transactions with  Affiliates; Arm’s Length Transactions | 84       |
| 7.08.       | No Subsidiary Guarantees of Certain Indebtedness              | 84       |

 

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**TABLE OF CONTENTS**

(continued)

 
| ** **   | ** **                                                                                    | **Page**   |
|--------------|-----------------------------------------------------------------------------------------------|------------|
| ** **   | ** **                                                                                    | ** ** |
| 7.09.        | Interest Coverage Ratio                                                                       | 84         |
| 7.10.        | Leverage Ratio                                                                                | 84         |
| 7.11.        | Limitations on Changes  to Constituent Documents, Indebtedness, Corporate Existence, Business | 85         |
| 7.12.        | Fundamental Changes,  Limitations on Asset Sales, Asset Exchanges and Acquisitions            | 85         |
| 7.13.        | Limitations on Sale  Lease-Back Transactions                                                  | 87         |
| 7.14.        | Limitations on Capital  Expenditures                                                          | 87         |
| 7.15.        | Limitations on  Voluntary Prepayments of Indebtedness                                         | 88         |
| 7.16.        | Limitations on  Incurrence of Additional Indebtedness                                         | 88         |
| 7.17.        | Limitations on ERISA  Deficiencies                                                            | 91         |
| 7.18.        | Limitations on Hedging                                                                        | 91         |
| 7.19.        | Intercompany  Indebtedness                                                                    | 92         |
| 7.20.        | Material Subsidiaries                                                                         | 92         |
| 7.21.        | Uncertificated Shares                                                                         | 93         |
| 7.22.        | Reporto Contracts                                                                             | 93         |
| 7.23.        | Equity Issuances                                                                              | 93         |
| 7.24.        | Dilution                                                                                      | 93         |
|         |                                                                                          |       |
| ARTICLE VIII | EVENTS OF DEFAULT                                                                             | 93         |
|         |                                                                                          |       |
| 8.01.        | Events of Default                                                                             | 93         |
| 8.02.        | Remedies                                                                                      | 97         |
| 8.03.        | Rights Not Exclusive                                                                          | 98         |
|         |                                                                                          |       |
| ARTICLE IX   | THE ADMINISTRATIVE  AGENT                                                                     | 98         |
|         |                                                                                          |       |
| 9.01.        | Appointment and  Authorization                                                                | 98         |
| 9.02.        | Delegation of Duties                                                                          | 99         |
| 9.03.        | Liability of  Administrative Agent                                                            | 99         |
| 9.04.        | Reliance by  Administrative Agent                                                             | 99         |
| 9.05.        | Notice of Default                                                                             | 100        |
| 9.06.        | Credit Decision                                                                               | 100        |
| 9.07.        | Failure to Act                                                                                | 101        |
| 9.08.        | Indemnification                                                                               | 101        |
| 9.09.        | Patriot Act                                                                                   | 102        |
| 9.10.        | Administrative Agent in  its Individual Capacity                                              | 102        |
| 9.11.        | Successor  Administrative Agent                                                               | 102        |
|         |                                                                                          |       |
| ARTICLE X    | MISCELLANEOUS                                                                                 | 103        |
|         |                                                                                          |       |
| 10.01.       | Amendments and Waivers                                                                        | 103        |
| 10.02.       | Notices                                                                                       | 104        |
| 10.03.       | No Waiver; Cumulative  Remedies                                                               | 105        |
| 10.04.       | Costs and Expenses                                                                            | 105        |
| 10.05.       | Indemnification by the Company                                                                | 106        |

 

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**TABLE OF CONTENTS**

(continued)

 
| ** ** | ** **                                        | **Page** |
|------------|---------------------------------------------------|----------|
|       |                                              |     |
| 10.06.     | Payments Set Aside                                | 107      |
| 10.07.     | Successors and Assigns                            | 107      |
| 10.08.     | Assignments,  Participations, Etc.                | 107      |
| 10.09.     | Confidentiality                                   | 109      |
| 10.10.     | Set-off                                           | 111      |
| 10.11.     | Notification of  Addresses, Lending Offices, Etc. | 111      |
| 10.12.     | Counterparts                                      | 111      |
| 10.13.     | Severability                                      | 111      |
| 10.14.     | Governing Law                                     | 111      |
| 10.15.     | Consent to  Jurisdiction; Waiver of Jury Trial    | 111      |
| 10.16.     | Waiver of Immunity                                | 112      |
| 10.17.     | Payment in Specified  Currency; Judgment Currency | 113      |
| 10.18.     | Change to IFRS                                    | 113      |

 

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| Schedule 1.01(a) |   | -      | Loans; Pro Rata Shares                                                                |
|------------------|--------|--------|---------------------------------------------------------------------------------------|
| Schedule 1.01(b) |   | -      | Existing Material  Subsidiaries                                                       |
| Schedule 1.01(c) |   | -      | Intercompany Revolving  Facilities                                                    |
| Schedule 5.05    |   | -      | Pending Litigation                                                                    |
| Schedule 5.06(c) |   | -      | Existing Material  Adverse Effects                                                    |
| Schedule 5.06(e) |   | -      | Material Contingent  Liabilities, Forward or Long Term Commitments, Unrealized Losses |
| Schedule 5.09    |   | -      | Environmental Matters                                                                 |
| Schedule 5.11(d) |   | -      | Existing Sale  Lease-Back Transactions                                                |
| Schedule 5.12(a) |   | -      | Subsidiaries                                                                          |
| Schedule 5.12(b) |   | -      | Restrictive Subsidiary  Agreements                                                    |
| Schedule 5.21(a) |   | -      | Existing Indebtedness                                                                 |
| Schedule 5.21(b) |   | -      | Existing Intercompany  Indebtedness                                                   |
| Schedule 5.21(c) |   | -      | Existing Hedging  Agreements                                                          |
| Schedule 5.21(d) |   | -      | Existing Reporto  Contracts                                                           |
| Schedule 7.01    |   | -      | Existing Liens                                                                        |
| Schedule 7.02    |   | -      | Existing Investments                                                                  |
| Schedule 10.02   |   | -      | Notices                                                                               |
|             |   |   |                                                                                  |
| Exhibit A   |   | -      | Form of Promissory  Note                                                         |
| Exhibit B-1 |   | -      | Form of Quarterly  Compliance Certificate                                        |
| Exhibit B-2 |   | -      | Form of Annual  Compliance Certificate                                           |
| Exhibit C   |   | -      | Form of Assignment  and Acceptance                                               |
| Exhibit D   |   | -      | Form of Opinion of  Special Mexican Counsel to the Company                       |
| Exhibit E-1 |   | -      | Form of Opinion of  Special US Counsel to the Company                            |
| Exhibit E-2 |   | -      | Form of Opinion of  General Counsel to the Company                               |
| Exhibit F-1 |   | -      | Form of Collateral  Agency and Intercreditor Agreement                           |
| Exhibit F-2 |   | -      | Form of Gimsa  Trust                                                             |
| Exhibit F-3 |   | -      | Form of Gruma  Corp. Pledge                                                      |
| Exhibit F-4 |   | -      | Form of Molinera  Trust                                                          |
| Exhibit F-5 |   | -      | Form of  Intercompany Trust Agreement                                            |
| Exhibit G   |   | -      | Form of Notice of  Borrowing                                                     |
| Exhibit H   |   | -      | Form of Hedging  Policy                                                          |
| Exhibit I   |   | -      | Form of  Intercompany Subordination Agreement                                    |

 

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SENIOR SECURED LOAN AGREEMENT

 

This SENIOR SECURED LOAN AGREEMENT is entered into asof October 16, 2009, by and among GRUMA, S.A.B. de C.V., a *sociedad anónima bursátil de capital variable*organized under the laws of Mexico (together with its successors, the “Company”),the several financial institutions from time to time party to this Agreement(collectively, the “Lenders” and individually, a “Lender”),Deutsche Bank Trust Company Americas, a New York banking corporation and awholly-owned subsidiary of Deutsche Bank AG, as Administrative Agent for theLenders, and The Bank of New York Mellon, as Collateral Agent for theLenders.  All capitalized terms used butnot otherwise defined have the meaning given to them in Section 1.01 (*Definitions*).

 

WHEREAS, the Company has requested that the Lendersmake or extend credit to the Company in the form of the Loans to satisfy theTerminated Derivative Obligations in an aggregate principal amount ofUS$668,282,700; and

 

WHEREAS, the Lenders are prepared, on the terms andsubject to the conditions hereinafter set forth (including Article IV), tomake or extend such credit in the form of the Loans to the Company;

 

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

 

ARTICLEIDEFINITIONS

 

1.01.       CertainDefined Terms.  As used in thisAgreement and in any Schedules and Exhibits to this Agreement, the followingcapitalized terms have the following meanings:

 

“Acquisition Pro Forma” has the meaning setforth in Section 7.12(c)(vii)(B) (*FundamentalChanges, Limitations on Asset Sales, Asset Exchanges and Acquisitions*).

 

“Actual Amount” has the meaning set forth in Section 2.05(d) (*Mandatory Prepayments*).

 

“Additional Collateral” has the meaningspecified in Section 6.11(b) (*SecurityDocuments*).

 

“Administrative Account” has the meaningspecified in Section 2.10(b) (*Paymentsby the Company*).

 

“Administrative Agent” means Deutsche BankTrust Company Americas in its capacity as administrative agent for the Lendershereunder, and any successor administrative agent appointed pursuant to Section 9.11(*Successor Administrative Agent*).

 

“Administrative Agent’s Payment Office” meansthe address for payments set forth on the signature pages hereto, or suchother address as the Administrative Agent may from time to time specify to theother parties hereto.

 

1

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“Administrative Questionnaire” means anadministrative details form supplied by the Administrative Agent and completedby a Lender.

 

“Advisor Fee Letters” means the (a) FTIFee Reimbursement Letter, dated January 26, 2009, among FTI ConsultingCanada ULC, the Company and CGSH, (b) the Fee Reimbursement Letter, dated January 26,2009, between the Company and CGSH, and (c) the Fee Reimbursement Letter,dated January 26, 2009, between the Company and White & CaseS.C., in each case pursuant to which the Company agreed to pay each Advisor forprofessional services and to reimburse such Advisor’s expenses as provided ineach such Advisor Fee Letter.

 

“Advisors” means each of CGSH, FTI ConsultingCanada ULC and White & Case, S.C.

 

“Affected Lender” has the meaning specified in Section 3.02(a) (*Illegality*).

 

“Affiliate” means, as to any Person, any otherPerson that, directly or indirectly, is in control of, is controlled by or isunder common control with such Person or is a director or Officer of suchPerson.

 

“Agreement” means this Loan Agreement, as fromtime to time amended, supplemented, restated or otherwise modified.

 

“Agreement Value” means, for each HedgingAgreement, on any date of determination, the amount, if any, that would bepayable by the Company or any of its Subsidiaries to the counterparty in suchHedging Agreement in accordance with the terms of such Hedging Agreement, aftertaking into account the effect of any legally enforceable netting agreementrelating to such Hedging Agreement (which, for the avoidance of doubt, shallnet any amounts owed to the counterparty against any collateral consisting ofcash or Cash Equivalent Investments that was posted for the benefit of thecounterparty in accordance with such Hedging Agreement), as if (i) suchHedging Agreement was being terminated early on such date of determination, (ii) boththe Company or Subsidiary and the counterparty were the “Affected Parties” and (iii) thehedge counterparty was the sole party determining such payment amount.  Any Agreement Value with respect to a HedgingAgreement shall be determined by the counterparty in such Hedging Agreement andprovided by such counterparty to the Company, or, if such counterparty does notdetermine the Agreement Value, the Agreement Value shall be calculated by theCompany and certified to such counterparty and the Administrative Agent.

 

“Alternate Base Rate” means, for any day, afluctuating rate of interest per annum equal to the higher of (a) the rateof interest most recently announced by the Administrative Agent as its “primerate” and (b) the Federal Funds Rate most recently determined by theAdministrative Agent plus one half of one percent (0.50%).  The “prime rate” is a rate set by theAdministrative Agent based upon various factors, including the AdministrativeAgent’s costs and desired return, general economic conditions and other factors,and is used as a reference point for pricing some loans, which may be pricedat, above, or below such announced rate. Any change in such rate announced by the Administrative Agent shall takeeffect at the opening of business on the day specified in the publicannouncement of such change.

 

“Alternate Process Agent” has the meaningspecified in Section 10.15(d) (*Consentto Jurisdiction; Waiver of Jury Trial*).

 

2

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“Annual Compliance Certificate” means a certificatesubstantially in the form of Exhibit B-2.

 

“Anti-Terrorism Laws” has the meaning specifiedin Section 5.20(a) (*Anti-TerrorismLaws*).

 

“Applicable Equity Percentage” means, withrespect to the issuance of common stock, 50%, and with respect to the issuanceof preferred stock, 85%.

 

“Applicable Margin” means, during any period,the margin set forth opposite such period below:

 
| **From**            | ** ** | **To (and including)** | ** ** | **Applicable Margin** |
|---------------------|------------|------------------------|------------|-----------------------|
| Closing Date        |       | July 20,  2012    |       | 2.875%                |
| July 21,  2012 |       | July 20,  2013    |       | 3.375%                |
| July 21,  2013 |       | July 20,  2014    |       | 3.875%                |
| July 21,  2014 |       | July 20,  2015    |       | 4.875%                |
| July 21,  2015 |       | July 20,  2016    |       | 5.875%                |
| July 21,  2016 |       | Maturity Date          |       | 6.875%                |

 

“Asset Sale” means any direct or indirect Disposition of any Property of the Companyor any of its Subsidiaries to any Person other than the Company or itsSubsidiaries; provided that the following shall not be considered anAsset Sale: (a) the Disposition of goods or products in the OrdinaryCourse of Business, provided that any financing involving, orsecured by, the future sale of accounts receivable (or any similar financingtransaction) will not be considered a Disposition in the Ordinary Course ofBusiness; (b) the Disposition ofdamaged, obsolete or worn-out equipment (other than the Collateral and the BanorteShares) that are no longer used in or useful to the business; (c) theDisposition of any Property (other than the Collateral and the Banorte Shares)that has a fair market value of less than US$7,500,000 (or the US DollarEquivalent thereof) (provided that such Property does not, when takentogether with any other such Properties with a fair market value of less thanUS$7,500,000 (or the US Dollar Equivalent thereof) Disposed within thepreceding twelve (12) months in reliance on the exception described in thisclause (c), cause the aggregate fair market value of Property sold by theCompany or any of its Subsidiaries during such twelve (12)-month period toexceed US$15,000,000 (or the US Dollar Equivalent thereof)); (d) Dispositionof inventory pursuant to a Reporto Contract, provided that such ReportoContract is entered into in accordance with Section 7.22 (*Reporto Contracts*);(e) Dispositions that consist of Permitted Company Equity Issuances thatare conducted in accordance with Section 7.23(a)(ii) (*Equity Issuances*);or (f) Dispositions that consist of Sale Lease-Back Transactions enteredinto pursuant to Section 7.16(g) (*Limitationson Incurrence of Additional Indebtedness*).

 

“Assignee” has the meaning specified in Section 10.08(a) (*Assignments, Participations, Etc.*).

 

3

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“Assignment and Acceptance” has the meaningspecified in Section 10.08(a) (*Assignments,Participations, Etc.*).

 

“Attorney Costs” means and includes allreasonable and documented fees and disbursements of any law firm or otherexternal counsel, and, without duplication, the reasonable allocated cost ofinternal legal services and all reasonable and documented disbursements ofinternal counsel.

 

“Attributable Debt” means, with respect to aSale Lease-Back Transaction, as of the date of determination, the greater of (a)the fair market value of the Property being sold or transferred and (b) thepresent value (discounted at the interest rate implicit in the terms of thelease, compounded annually) of the total obligations of the lessee for rentalpayments during the remaining term of the lease included in such transaction(including any period for which such lease has been extended).

 

“Available Excess Cash Amount” means, withrespect to any Excess Cash Year, the amount of Excess Cash (if any) from suchExcess Cash Year that is not required to be applied to the mandatory repaymentof the Mandatory Prepayment Indebtedness pursuant to Section 2.05(d) (*Mandatory Prepayments*).

 

“Bancomext Loan” means the loan providedpursuant to the *Contrato de Apertura deCrédito Simple*, dated on or prior to the date hereof, as amendedfrom time to time in accordance with the provisions of this Agreement, betweenthe Company and Banco Nacional de Comercio Exterior, S.N.C.

 

“Bancomext-Gimsa Loan” means the US$30,000,000loan provided pursuant to the *Contrato deAperatura de Crédito Simple* dated as of April 3, 2009, betweenGimsa and Banco Nacional de Comercio Exterior, S.N.C.

 

“Bank of America Facility” means the CreditAgreement, dated as of October 30, 2006, by and among Bank of AmericaN.A., as Administrative Agent, the Documentation Agent and L/C Issuer partythereto, the other lenders party thereto and Gruma Corp.

 

“Banorte Shares” means the shares of capitalstock of Grupo Financiero Banorte S.A.B. de C.V. owned by the Company and itsSubsidiaries.

 

“BBVA Loan” means the loans provided pursuantto the US$197,000,000 Loan Agreement, dated on or about the date hereof, asamended from time to time, by and among the Company, BBVA Securities Inc., BBVABancomer S.A., Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer,and the several lenders party thereto.

 

“Breakage Event” has the meaning specified in Section 3.05(a) (*Funding Losses*).

 

“Business Day” means any day other than aSaturday, Sunday or day on which commercial banks in New York City, New York orMexico City, Mexico are authorized or required by law to close; provided,however, with respect only to any determination of LIBOR, the term “BusinessDay” shall also exclude any day on which banks are not open for dealings in USDollar deposits in the London interbank market.

 

4

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“CapEx Report” has the meaning specified in Section 6.01(c)(iv) (*Financial Statements and Other Information*).

 

“Capital Adequacy Regulation” means any generalguideline, request or directive of any central bank or other GovernmentalAuthority, or any other law rule or regulation, whether or not having theforce of law, in each case, regarding capital adequacy of any bank or of anycorporation controlling a bank.

 

“Capital Expenditures”means, for any period, without duplication, anyexpenditures or written commitments of the Company and its Subsidiaries (otherthan Subsidiaries that are part of the Venezuelan Division) (a) for fixed or capital assets (including renewals, improvements, replacements,repairs and maintenance)that, in accordance with Mexican GAAP, are (or should be) classified as capitalexpendituresand that are (or should be) set forth ina consolidated statement of cash flows of the Company for such period preparedin accordance with Mexican GAAP and (b) pursuant to Capital LeaseObligations of the Company and its Consolidated Subsidiaries during suchperiod; provided that the term “Capital Expenditures” shall not includeany expenditures made with (i) the portion of Net Cash Proceeds of anAsset Sale that is invested in the Company’s Core Business in accordance withand as permitted by Section 2.05(a) (*MandatoryPrepayments*) or (ii) that portion of the Net Cash Proceeds of aCasualty Event that are used to Restore the affected Properties during theReinvestment Period in accordance with and as permitted by Section 2.05(c) (*Mandatory Prepayments*).

 

“Capital Lease Obligations” of any Person means theobligations of such Person to pay rent or other amounts under any lease of (orother arrangement conveying the right to use) real or personal property, or acombination thereof, which obligations are required to be classified andaccounted for as capital leases on a balance sheet of such Person under MexicanGAAP (or, in the case of Persons organized under laws of any otherjurisdiction, the applicable GAAP therein), and the amount of such obligationsshall be the capitalized amount thereof determined in accordance with MexicanGAAP (or, in the case of Persons organized under laws of any otherjurisdiction, the applicable GAAP therein).

 

“Cash Equivalent Investment” means, at anytime:

 

(a)           anydirect obligation of (or unconditionally guaranteed by) the United States ofAmerica or a state thereof, any OECD country or other foreign government in ajurisdiction in which the Company or any of its Subsidiaries currently has orcould have operations (or any agency or political subdivision thereof, to theextent such obligations are supported by the full faith and credit of theUnited States of America or a statethereof, any OECD country or other foreign government in a jurisdiction inwhich the Company or any of its Subsidiaries currently has or could haveoperations) maturing not more than one year after such time; and

 

(b)           any insured certificateof deposit, timedeposit or bankers acceptance, maturing not more than one year after its dateof issuance, which is issued by any commercial bankthat is a lender or a member of the USFederal Revenue System,is organized under the laws of the United States or any State (or the Districtof Columbia) thereof and has (x) a credit rating of A2 or higher fromMoody’s or A or higher from S&P and (y) a combined capital and surplusgreater than US$500,000,000.

 

5

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“Casualty Certificate” means, with respect to aCasualty Event, a certificate signed by a Senior Officer of the Company statingthat within the Reinvestment Period, all or a portion of any Net Cash Proceedsreceived as a result of such Casualty Event (but in no event more than (i) US$10,000,000(or the US Dollar Equivalent thereof) without the consent of the MajorityLenders and (ii) US$55,000,000 (or the US Dollar Equivalent thereof)) shall beused to Restore any Properties in respect of which such Net Cash Proceeds werepaid (which certificate shall set forth in reasonable detail an estimate of theNet Cash Proceeds to be so expended).

 

“Casualty Event” means any casualty or otherinsured damage to any Property of the Company or its Subsidiaries.

 

“Central America Division” means GrumaCentroamerica LLC and Gruma de Guatemala S.A. together with each of theirrespective direct and indirect Subsidiaries.

 

“CGSH” means Cleary Gottlieb Steen and HamiltonLLP, special New York counsel to the Initial Lenders.

 

“Change in Control” means the occurrence of anyof the following: (a) Mr. Roberto Gonzalez Barrera, his familymembers (including his former spouse, his siblings and other linealdescendants, estates and heirs, or any trust or other investment vehicle forthe primary benefit of any such Person or their respective family members orheirs) (collectively the “Controlling Stockholder”) shall fail to own, directlyor indirectly, beneficially and of record, shares (or American DepositaryReceipts representing shares) representing at least 35% of the aggregateordinary voting power and economic rights represented by the issued andoutstanding capital stock of the Company; (b) the Controlling Stockholdershall cease to have the unconditional right (including the right without theconsent or approval of any other Person), or shall fail, to nominate a majorityof the board of directors of the Company and the chairman of the board ofdirectors of the Company; or (c) any change in control (or similar event,however denominated) with respect to the Company shall occur under and asdefined in any indenture or agreement in respect of Indebtedness to which the Companyor any of its Subsidiaries is a party.

 

“Clean-Down” has the meaning specified in Section 6.13(*Working Capital Indebtedness Clean-Down*).

 

“Clean-Down Period” has the meaning specifiedin Section 6.13 (*Working CapitalIndebtedness Clean-Down*).

 

“Closing Date” means the date on which allconditions precedent set forth in Article IV (*Conditions Precedent*) are satisfied or waived in writing byall the Lenders.

 

“Code” means the Internal Revenue Code of 1986,as amended from time to time.

 

“Collateral” means the Gimsa Collateral, theGruma Corp. Collateral and the Molinera Collateral, provided that if anyCollateral is Expropriated (such Collateral the “Expropriated Collateral”)and the Company pledges any Replacement Collateral in respect thereof in accordancewith Section 8.01(k) (*Expropriation*),such Expropriated Collateral shall cease to be Collateral and such ReplacementCollateral shall become Collateral.

 

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“Collateral Agency and Intercreditor Agreement”means the Collateral Agency and Intercreditor Agreement, dated as of theClosing Date, by and among the Collateral Agent, the Administrative Agent inits capacity as administrative agent for the Lenders, BBVA Bancomer, S.A.,Institución de Banca Múltiple, Grupo Financiero BBVA Bancomer in its capacityas administrative agent for the lenders under the BBVA Loan, and solely withrespect to certain sections thereof, the Company, substantially in the form of Exhibit F-1.

 

“Collateral Agent” has the meaning specified inthe Collateral Agency and Intercreditor Agreement.

 

“Company” has the meaning specified in theintroductory clause hereto.

 

“Company Refinancing Indebtedness” meansIndebtedness incurred to Refinance the Other Prepayment Indebtedness or the BancomextLoan.

 

“Confirmation” means, with respect to eachInitial Lender, the termination transaction entered into on March 23, 2009between the Company and such Initial Lender pursuant to which the TerminatedDerivative Obligation between the Company and such Initial Lender arose.

 

“Consolidated EBITDA” means, for anyMeasurement Period, for the Company and its Consolidated Subsidiaries, anamount equal to (a) the sum, without duplication, of (i) consolidatedoperating income (determined in accordance with Mexican GAAP) for suchMeasurement Period, (ii) the amount of depreciation and amortizationexpense deducted during such Measurement Period in determining suchconsolidated operating income, (iii) any other non-cash expenses deductedduring such Measurement Period in determining such consolidated operatingincome of the Company and its Consolidated Subsidiaries for such MeasurementPeriod, (iv) any cash dividends or other cash distributions or paymentsreceived from Grupo Financiero Banorte S.A.B. de C.V. during such MeasurementPeriod, and (v) any cash dividends or other cash distributions or paymentsreceived (directly or indirectly) from the Venezuelan Subsidiaries during suchMeasurement Period *minus* (b) thesum, without duplication, of (i) Venezuelan EBITDA for such MeasurementPeriod, (ii) any other non-cash income included in the calculation ofconsolidated operating income of the Company and its Consolidated Subsidiariesfor such Measurement Period, and (iii) any cash payments made to anySubsidiary that is part of the Venezuelan Division during such MeasurementPeriod; provided that in making theforegoing calculations (other than in respect of the calculation of ExcessCash), pro forma effect will be given to the acquisition or Disposition ofPersons, divisions or lines of businesses by the Company or any Subsidiary (other than any Subsidiarythat is part of the Venezuelan Division) of the Company that haveoccurred since the beginning of such Measurement Period as if such events hadoccurred, and, in the case of any Disposition, the proceeds thereof applied, ineach case including any incurrence or assumption of Indebtedness in connectiontherewith, on the first day of such Measurement Period.

 

“Consolidated Interest Charges” means, for anyMeasurement Period, the Interest Charges of the Company and its ConsolidatedSubsidiaries determined on a consolidated basis; provided thatConsolidated Interest Charges shall not include any Interest Charges incurredby  the Venezuelan Division with respectto Venezuelan Non-Recourse Indebtedness.

 

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“Consolidated Subsidiary” means (i) withrespect to the Company, any Subsidiary or other entity the accounts of whichwould, under Mexican GAAP, be consolidated with those of the Company in theconsolidated financial statements of the Company, and (ii) at any datewith respect to any other Person, any Subsidiary or other entity the accountsof which would be consolidated with those of such Person in the consolidatedfinancial statements of such Person as of such date.

 

“Contractual Obligation” means, as to anyPerson, any provision of any security issued by such Person or of anyagreement, undertaking, contract, indenture, mortgage, deed of trust or otherinstrument, document or agreement to which such Person is a party or by whichit or any of its Property is bound.

 

“Control” means the possession, directly orindirectly, of the power to direct or cause the direction of the management orpolicies of a Person, whether through the ability to exercise voting power, bycontract or otherwise.  “Controlling”and “Controlled” have meanings correlative thereto.

 

“Control Agreement” means, with respect to eachInitial Lender, the Control Agreement, dated on or about the date hereof, byand between Gruma and such Initial Lender and such Initial Lender’s nominee oraccount bank.

 

“Conversion Rate” means, as of any date, thePeso/US Dollar exchange rate published by Banco de México in the FederalOfficial Gazette of Mexico (*Diario Oficialde la Federación*) as the rate “*parasolventar obligaciones denominadas en moneda extranjera pagaderas en laRepública Mexicana*” as of such date (which rate is available priorto 12:00 p.m. Mexico City time athttp://www.banxico.org.mx/indicadores/fix.html (or any successor websitethereto)); provided that, if Banco de México ceases to publish such exchangerate, the Conversion Rate shall equal the average of the Peso/ US Dollarexchange rates published by either Bloomberg or Reuters (or the main offices oftheir subsidiaries located in Mexico, if not published by those institutions)on the relevant calculation date.

 

“Core Business”means, with respect to the Company and its Subsidiaries, (i) theproduction and distribution of corn flour, the production and distribution oftortillas and other related products, the production and distribution of wheatflour and any other food (including snacks) related business in which theCompany and its Subsidiaries are engaged in, or may engage in, from time totime (for the purposes of this definition, the “Food Business”) and (ii) businessesreasonably ancillary thereto, but only to the extent that such ancillarybusinesses are of a nature, and of a size no greater than, reasonably necessaryto serve or supply the Food Business.

 

“Default” means any event or circumstance that,alone or with the giving of notice, the lapse of time, themaking of a determination, or any combination thereof, would (if not cured,waived or otherwise remedied during such time) constitute an Event of Default.

 

“Disposition” and correspondingly to “Dispose”means the sale, issuance, exchange, conveyance, assignment, license, otherdisposition (including any Sale Lease-Back Transaction) or other transfer (including by way of a merger or consolidation) ofany Property by any Person, 

 

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including (i) any sale, issuance, exchange,conveyance, assignment, other disposition or other transfer of capital stock of any Person that was issuedand outstanding on the date of such sale, issuance, exchange, conveyance,assignment, other disposition or othertransfer and (ii) any sale, issuance, exchange, conveyance,assignment, license, other disposition orother transfer (including by way of a merger or consolidation) with orwithout recourse, of any notes or accounts receivable or any rights and claimsassociated therewith.

 

“Dollar Amount” means, at any date, withrespect to any Mandatory Prepayment Indebtedness or Other PrepaymentIndebtedness (i) denominated in US Dollars, the outstanding principalamount of such Mandatory Prepayment Indebtedness or Other PrepaymentIndebtedness on such date, and (ii) denominated in Pesos, the amount of USDollars that would result from the conversion of the then-outstanding principalamount of such Mandatory Prepayment Indebtedness or Other PrepaymentIndebtedness into US Dollars at the Conversion Rate as of such date.

 

“EBITDA” means for any period of four (4) consecutivefiscal quarters, with respect to any Person, an amount equal to (a) the sum,without duplication, of (i) operating income (determined in accordancewith the applicable GAAP) for such period, (ii) the amount of depreciationand amortization expense deducted during such period in determining suchoperating income, (iii) any other non-cash expenses deducted indetermining such operating income during such period minus (b) any othernon-cash income included in determining such operating income during suchperiod.

 

“Environmental Laws” means all federal,national, state, provincial, departmental, municipal, local and foreign laws,including common law, statutes, rules, regulations, treaties, ordinances,*normas técnicas* (technicalstandards) and codes, together with all orders, decrees, judgments, directives, orders (including consent orders) or injunctions issued, promulgated,approved or entered thereunder by any Governmental Authority havingjurisdiction over the Company, any of its Subsidiaries or their respectiveproperties, in each case relating to environmental or health and safetymatters.

 

“Equity Issuance” means any issuance of capitalstock of the Company or any Subsidiary in a primary offering by the Company orsuch Subsidiary.

 

“ERISA” means the Employee Retirement IncomeSecurity Act of 1974 as amended, and any successor statute thereto, asinterpreted by the rules, and regulations thereunder, all as the same may be ineffect from time to time.  References tosections of ERISA shall be construed also to refer to any successor sections.

 

“ERISA Affiliate” means any trade or business(whether or not incorporated) under common control with the Company within themeaning of Section 4001(a)(14) of ERISA, or any member of a group thatincludes the Company and that is treated as a single employer under Section 414(b) or(c) of the Code (and Sections 414(m) and (o) of the Code forpurposes of provisions relating to Section 412 of the Code).

 

“ERISA Event” means any of the following: (a) aReportable Event with respect to a Pension Plan; (b) a withdrawal by theCompany or any ERISA Affiliate from a Pension Plan 

 

9

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subject to Section 4063 of ERISA during a planyear in which it was a substantial employer (as defined in Section 4001(a)(2) ofERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) ofERISA; (c) a complete or partial withdrawal by the Company or any ERISAAffiliate from a Multiemployer Plan or notification that a Multiemployer Planis in reorganization; (d) the filing of a notice of intent to terminate aPlan under Section 4041 or 4041A of ERISA, or the commencement ofproceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e) anevent or condition which might reasonably be expected to constitute groundsunder Section 4042 of ERISA for the termination of, or the appointment of,a trustee to administer, any Pension Plan or Multiemployer Plan; or (f) theimposition of any liability under Title IV of ERISA (including as a result ofthe operation of Section 4069 or Section 4212 of ERISA), other thanPBGC premiums due but not delinquent under Section 4007 of ERISA, upon theCompany or any ERISA Affiliate.

 

“Eurocurrency Liabilities” has the meaningspecified in Section 3.06 (*Reserves onLoans*).

 

“Event of Default” has the meaning specified inSection 8.01 (*Events of Default*).

 

“Excess Cash” means, for each Fiscal Year,without duplication, the amount (no less than zero) equal to the sum of thefollowing items for the Company and its Subsidiaries as of the end of and forsuch Fiscal Year:

 

(a)           the sum, without duplication, of (1) ConsolidatedEBITDA and (2) to the extent not otherwise included in ConsolidatedEBITDA, any cash dividends and other cash distributions or similar cashpayments (in the nature of dividends, distributions, capital reductions, shareredemptions, share buy-backs, or similar distributions) received by the Companyand its Subsidiaries during such Fiscal Year;

 

*minus*

 

(b)           to the extent notalready subtracted from the calculation of Consolidated EBITDA, the sum, without duplication, of all ofthe following (except as made, paid, lost or accrued, as applicable, by theVenezuelan Division): (1) all scheduled principal payments under the Loans andall other Indebtedness (other than Working Capital Indebtedness) of the Companyand its Subsidiaries (provided that any such other Indebtedness was notincurred or maintained in violation of this Agreement) paid in cash during suchFiscal Year; (2) all optional prepayments made on the Mandatory PrepaymentIndebtedness and paid in cash during such Fiscal Year (other than the use ofthe proceeds of Permitted Refinancing Indebtedness to prepay the MandatoryPrepayment Indebtedness); (3) all scheduled interest payments on the Loansand all other Indebtedness of the Company and its Subsidiaries (providedthat any such other Indebtedness was not incurred or maintained in violation ofthis Agreement) paid in cash during such Fiscal Year (including all discountspaid in cash and all commitment fees and other fees paid in cash in respect ofany such Indebtedness during such Fiscal Year), provided that for theFiscal Year ending December 31, 2009, this amount shall include anyinterest accrued (but not paid in cash) between the Closing Date and December 31,2009 on the Loans and the Minor Derivative Counterparty Loans that has not beenpaid prior to December 31, 2009; (4) losses in the value ofInvestments that are paid in cash or Cash Equivalent Investments during suchFiscal 

 

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Year, if any; (5) all income taxes, socialcontribution and other similar taxes paid in cash during such Fiscal Year(other than payments in cash in respect of the mandatory employee statutoryprofit sharing regime established by Chapter VIII of the Federal Labor Law ofMexico); (6) the amount of Capital Expenditures made during such FiscalYear in accordance with Section 7.14 (*Limitationson Capital Expenditures*) and paid in cash, provided that suchamount shall not exceed the Permitted Capital Expenditures Amount for suchFiscal Year plus any Permitted Capital Expenditures Amounts carried over fromthe prior Fiscal Year in accordance with Section 7.14(b) (*Limitations on Capital Expenditures*), andshall not include any Capital Expenditures made pursuant to Section 7.14(c) (*Limitations on Capital Expenditures*); (7) anycash paid or cash collateral required to be posted, and actually posted, duringsuch Fiscal Year to the extent required by any Hedging Agreements entered intoin accordance with Section 7.18 (*Limitationson Hedging*); and (8) any amounts accrued for such Fiscal Yearin respect of the mandatory employee statutory profit sharing regimeestablished by Chapter VIII of the Federal Labor Law of Mexico;

 

*plus*

 

(c)           to the extent notalready added to the calculation of Consolidated EBITDA, the sum, without duplication, of all ofthe following (except as received, gained or borrowed, as applicable, by anySubsidiary that is part of the Venezuelan Division): (1) gains in the value of Investments thatare paid in cash or Cash Equivalent Investments during such Fiscal Year, ifany; (2) the aggregate amount of financial income received in cash duringsuch Fiscal Year; (3) any cash or Cash Equivalent Investments received by(including any cash collateral returned to) the Company or any of itsSubsidiaries during such Fiscal Year in connection with Hedging Agreements; and(4) any tax credits, refunds or reimbursements received in cash duringsuch Fiscal Year, provided that for the Fiscal Year ending December 31,2009, this amount shall not include any tax credits, refunds or reimbursementsreceived in cash during such Fiscal Year with respect to the Fiscal Year endingDecember 31, 2008;

 

*plus*

 

(d)           theWorking Capital Adjustment for such Fiscal Year (which may be a positive ornegative number).

 

All calculations or determinations with respect to theamount of Excess Cash will be made as of the last day of the relevant FiscalYear, based on the audited annual consolidated financial statements of the Companyand will be certified by the chief financial officer and one additional SeniorOfficer of the Company.

 

“Excess Cash Year” means any Fiscal Year duringwhich there is an amount of Excess Cash greater than zero.

 

“Excluded Taxes” means income, real property,franchise or similar taxes imposed on the Administrative Agent or any Lender bya jurisdiction as a result of the Administrative Agent or such Lender beingorganized under the laws of such jurisdiction or being a resident of suchjurisdiction to which income under this Agreement is attributable or having apermanent establishment in such jurisdiction or its Lending Office beinglocated in such jurisdiction.

 

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“Executive Order” has the meaning specified in Section 5.20(a) (*Anti-Terrorism Laws*).

 

“Existing Indebtedness” means Indebtedness of the Company and itsSubsidiaries that was outstanding on the date hereof and listed on Schedule5.21(a) (*Existing Indebtedness*);provided that Existing Indebtedness shall include the amount of anyundrawn commitments under the Bank of America Facility.

 

“Existing Intercompany Indebtedness” means IntercompanyIndebtedness that was outstanding as of September 30, 2009.

 

“Existing Other Indebtedness” has the meaning specified in Section 5.21(a) (*Existing Indebtedness and Reporto Contracts*).

 

“Existing Venezuelan Sale” means the sale of a 40% stake inValores Mundiales, S.L. on the terms and subject to the conditions of thePurchase Agreement between Rotch Energy Holdings N.V. and the Company, dated asof April 6, 2006, pursuant to which Rotch Energy Holdings N.V. agreed topay the Company US$39,600,000 through but excluding the Closing Date, andUS$26,000,000 thereafter.

 

“Existing Working Capital Indebtedness” has the meaning specifiedin Section 5.21(a) (*ExistingIndebtedness and Reporto Contracts*).

 

“Existing Sale Lease-Back Transactions” has the meaning specifiedin Section 5.11(d) (*Assets;Patents; Licenses; Insurance; Etc.*).

 

“Expropriate” means, with respect to any Property, to nationalize, seize or expropriate suchProperty, or, if such Property is a business, to assume control of the businessand operations of such Property by nationalization, seizure or expropriation.

 

“Federal Funds Rate” means, for any day, the rate per annum equalto the weighted average of the rates on overnight Federal funds transactionswith members of the Federal Reserve System arranged by Federal funds brokers onsuch day, as published by the Federal Reserve Bank on the Business Day next succeedingsuch day; provided that (a) if such day is not a Business Day, theFederal Funds Rate for such day shall be such rate on such transactions on thenext preceding Business Day as so published on the next succeeding BusinessDay, and (b) if no such rate is so published on such next succeedingBusiness Day, the Federal Funds Rate for such day shall be the average rate(rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged tothe Administrative Agent on such day on such transactions as determined by theAdministrative Agent.

 

“Fiscal Quarter” means a period of three (3) consecutivecalendar months ending on March 31, June 30, September 30 or December 31.

 

“Fiscal Year” means any period of twelve (12)consecutive calendar months ending on December 31.

 

“Fitch” means Fitch Rating, Inc.and its successors.

 

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“Foreign Financial Institution” means a bank or financial institution (i) registeredin Book I (*Libro I*), Section 1(*Sección 1*) of the Foreign Banks,Financial Entities, Pension and Retirement Funds and Investment Funds Registry(*Registro de Bancos, Entidades deFinanciamiento, Fondos de Pensiones y Jubilaciones y Fondos de Inversión delExtranjero*) maintained by Hacienda for purposes of Rule II.3.13.1of the *Resolución Miscelánea Fiscal*for the year 2009 and Article 195-I of the *Ley del Impuesto Sobre la Renta* (or any successor provisionsthereof), (ii) which is a resident (or, if such entity is lending througha branch or agency, the principal office of which is a resident) for taxpurposes in a jurisdiction with which Mexico has entered into a treaty for theavoidance of double-taxation which is in effect, and (iii) which is theeffective beneficiary (*beneficiario efectivo*)of any interest paid hereunder or under the Notes.

 

“ForeignPension Plan” means any benefit plan, other than a Pension Plan orMultiemployer Plan, that under any Requirement of Law is required to be fundedthrough a trust or other funding vehicle other than a trust or funding vehiclemaintained exclusively by a Governmental Authority.

 

“Funding Losses” has the meaning specified in Section 3.05(a) (*Funding Losses*).

 

“GAAP” means generally accepted accounting practices.

 

“Gimsa” means Grupo Industrial Maseca, S.A.B. de C.V., a *sociedad anónima bursátil de capital variable*organized under the laws of Mexico.

 

“Gimsa Collateral” means all of Company’s right, titleand interest in, to and under the shares of capital stock of Gimsa, whether now owned orhereafter acquired by the Company (including under any trade name or derivationsthereof), whether now existing or subsequently issued, and regardless of wherelocated.

 

“Gimsa Division” means Gimsa together with its direct andindirect Subsidiaries.

 

“Gimsa Trust” means the Irrevocable Guaranty and Administration Trust Agreement (*Contrato de Fideicomiso Irrevocable de Administración y Garantía conDerechos de Reversión*) substantially in the form of Exhibit F-2,pursuant to which the Gimsa Collateral is transferred to the Trustee, astrustee, with the Collateral Agent as beneficiary in the first place (*fideicomisario en primer lugar*) on behalf and for the equaland ratable benefit of the Secured Parties.

 

“Governmental Authority” means, with respect to any Person, anynation or government, any state, municipality, province or other political oradministrative subdivision thereof, any central bank (or similar monetary orregulatory authority) thereof, any entity or branch of power exercisingexecutive, legislative, judicial, regulatory or administrative functions of orpertaining to government, and any corporation or other entity exercising such functionsand owned or controlled, through stock or capital ownership or otherwiseby any of the foregoing, any arbitral bodies, or any self-regulatory organization,asserting jurisdictionover such Person.

 

“Gruma Corp.” means Gruma Corporation, a corporation organizedunder the laws of Nevada.

 

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“Gruma Corp. Collateral” means all of Company’s right, titleand interest in, to and under the shares of capital stock of Gruma Corp., whether now owned or hereafteracquired by the Company (including under any trade nameor derivations thereof), whether now existing or subsequently issued, andregardless of where located.

 

“Gruma Corp. Division” means Gruma Corp. together with itsdirect and indirect Subsidiaries.

 

“Gruma Corp. Pledge” means the pledge of the Gruma Corp.Collateral, substantially in the form of Exhibit F-3.

 

“Guaranty Obligation” means, as to any Person: (a) anyobligation, contingent or otherwise, of such Person guarantying or having theeconomic effect of guarantying any Indebtedness or other obligation payable orperformable by another Person (the “primary obligor”) in any manner, whetherdirectly or indirectly, and including an *aval*and any obligation of such Person, direct or indirect, (i) to purchase orpay (or advance or supply funds for the purchase or payment of) suchIndebtedness or other obligation, (ii) to purchase or lease property,securities or services for the purpose of assuring the obligee in respect ofsuch Indebtedness or other obligation of the payment or performance of suchIndebtedness or other obligation, (iii) to maintain working capital,equity capital or any other financial statement condition or liquidity of theprimary obligor so as to enable the primary obligor to pay such Indebtedness orother obligation, or (iv) entered into for the purpose of assuring in anyother manner the obligees in respect of such Indebtedness or other obligationof the payment or performance thereof or to protect such obligees against lossin respect thereof (in whole or in part); or (b) any Lien on any Propertyof such Person securing any Indebtedness or other obligation of any otherPerson, whether or not such Indebtedness or other obligation is assumed by suchPerson; provided that the term “Guaranty Obligation” shall not includeendorsements of instruments for deposit or collection in the Ordinary Course ofBusiness.  The amount of any GuarantyObligation shall be deemed to be an amount equal to the stated or determinable amountof the related primary obligation, or portion thereof, in respect of which suchGuaranty Obligation is made or, if not stated or determinable, the maximumreasonably anticipated liability in respect thereof as determined by theguarantying Person in good faith.

 

“Hedging Agreements” means any agreements or instruments inrespect of interest rate or currency swap, exchange or hedging transactions orother financial derivatives transactions.

 

“Hedging Policy” means the policy of the Company and itsSubsidiaries with respect to Hedging Agreements, a copy of which is attached asExhibit H, as amended from time to time with the approval of theBoard of Directors of the Company (or of a committee duly delegated by suchBoard of Directors comprised of two or more members thereof) in accordance withSection 7.18(b)(iii) (*Limitationson Hedging*).

 

“IFRS” meansInternational Financial Reporting Standards as adopted by the InternationalAccounting Standards Board.

 

“IFRS Amendments” has the meaning specified in Section 10.18(*Change to IFRS*).

 

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“IMSS” means the *Instituto Mexicano del Seguro Social*ofMexico.

 

“Indebtedness” of any Person means at any date, withoutduplication:

 

(a)                                 any obligation of such Person in respectof borrowed money or with respect to deposits of any kind (if any) and anyobligation of such Person evidenced by bonds, notes, debentures or similarinstruments;

 

(b)                                 any obligation of such Person in respectof a lease, including Capital Lease Obligations, or hire purchase contract, ineach case that would, under Mexican GAAP (or, in the case of Persons organizedunder laws of any other jurisdiction, the applicable GAAP therein), be treatedas a financial or capital lease, including all Attributable Debt of such Personin respect of Sale Lease-Back Transactions of such Person;

 

(c)                                  any obligation of others secured by (orfor which the holder of such obligation has an existing right, contingent orotherwise to be secured by) a Lien on any Property of such Person, whether ornot such obligation is assumed by such Person;

 

(d)                                 any obligations of such Person to pay thedeferred purchase price of Property or services if such deferral extends for aperiod in excess of sixty (60) days;

 

(e)                                  any Guaranty Obligations of such Personwhich could require such Person to make a payment;

 

(f)                                   the Agreement Value of any HedgingAgreements;

 

(g)                                  any obligations of such Person upon whichinterest charges are paid or accrued or are customarily paid or accrued;

 

(h)                                 any obligations of such Person underconditional sale or other title retention agreements relating to Propertypurchased by such Person;

 

(i)                                     any obligations of such Person topurchase, redeem, retire, defease or otherwise make any payment (other thandividend payments by Subsidiaries of the Company made pursuant to Section 7.04(a) (*Restricted Payments*)) in respect of anycapital stock of such Person or any other Person or any warrants, rights oroptions to acquire such equity interests, valued, in the case of redeemablepreferred interests, at the greater of its voluntary or involuntary liquidationpreference plus accrued and unpaid dividends;

 

(j)                                    any obligations of such Person as anaccount party in respect of letters of credit;

 

(k)                                 any obligations of such Person in respectof bankers’ acceptances, bank guaranties, surety bonds and similar instruments;and

 

(l)                                     any Probable Bonds for or in connectionwith liabilities arising from Proceedings in which such Person is involved;

 

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provided, however, that the followingliabilities shall be explicitly excluded from the definition of the term “Indebtedness”:

 

(i)                                     trade accounts payable that are (x) lessthan sixty (60) days overdue or (y) being contested in good faith byappropriate proceedings and for which adequate reserves have been provided inaccordance with Mexican GAAP (or, in the case of Persons organized under lawsof any other jurisdiction, the applicable GAAP therein), in each case includingany obligations in respect of letters of credit (and any other similar guarantyinstruments) that have been issued in support of such trade accounts payable;

 

(ii)                                  operating expenses that accrue and becomepayable in the Ordinary Course of Business;

 

(iii)                               customer advance payments and customerdeposits received in the Ordinary Course of Business;

 

(iv)                              obligations for *ad valorem* taxes, value added taxes, orany other taxes or governmental charges; and

 

(v)                                 Reporto Contracts that are entered intoin accordance with Section 7.22 (*ReportoContracts*) and any Guaranty Obligations in respect thereof.

 

“Indemnified Liabilities” has the meaning specified in Section 10.05(*Indemnification by the Company*).

 

“Indemnified Taxes” means Taxes imposed on or incurred by theAdministrative Agent or any Lender with respect to any payment under any LoanDocument other than Excluded Taxes.

 

“Indemnitees” has the meaning specified in Section 10.05 (*Indemnification by the Company*).

 

“INDEVAL” means S.D. Indeval, Institución para el Depósito deValores, S.A. de C.V.

 

“INFONAVIT” means *InstitutoNacional del Fondo de la Vivienda para los Trabajadores*of Mexico.

 

“Information” has the meaning specified in Section 10.09(a) (*Confidentiality*).

 

“Initial Lenders” means each of Credit Suisse, Cayman IslandsBranch, Deutsche Bank AG, London Branch and JPMorgan Chase Bank N.A.

 

“Intercompany Indebtedness” means any present or futureIndebtedness of the Company or any of its present or future Subsidiaries issuedto the Company or any of its other present or future Subsidiaries.

 

“Intercompany Indebtedness Capitalization” means any amount owedto any Intercompany Lender pursuant to an Intercompany Revolving Facility beingsatisfied in any 

 

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manner other than by payment of such amount to suchIntercompany Lender in immediately available funds pursuant to the terms ofsuch Intercompany Revolving Facility.

 

“Intercompany Lenders” means the Company and any of itsSubsidiaries that are lenders under the Intercompany Revolving Facilities.

 

“Intercompany Revolving Facilities” means, as amended from timeto time in accordance with this Agreement, the intercompany revolvingfacilities listed on Schedule 1.01(c) (*IntercompanyRevolving Facilities*).

 

“Intercompany Subordination Agreement” means the SubordinationAgreement, dated on or about the date hereof, by and among the Company and theIntercompany Lenders attached hereto as Exhibit I.

 

“Intercompany Trust Agreement” means the IrrevocableAdministration Trust Agreement (*Contrato de FideicomisoIrrevocable de Administración con Derechos de Reversión*),substantially in the form of Exhibit F-5, pursuant to which allIntercompany Lenders’ (other than Subsidiaries in the Gimsa Division) rights,title and interest in, to and under the Intercompany Revolving Facilities (asamended), dated on or about the date hereof, are transferred to the Trustee, astrustee, with the Collateral Agent, as beneficiary in the first place (*fideicomisario en primer lugar)*.

 

“Interest Charges” means, with respect to any Person or Persons,and during any Measurement Period, the sum of (a) all interest, premiumpayments, debt discount, fees, charges and related expenses of such Person orPersons during such Measurement Period, in each case to the extent treated asinterest in accordance with Mexican GAAP, (b) any interest, premiumpayments, debt discount, fees, charges and related expenses in respect ofIndebtedness of such Person or Persons accrued or capitalized (whether or notactually paid during such Measurement Period) plus the net amount payable (orminus the net amount receivable) under Hedging Agreements relating to suchinterest during such Measurement Period (whether or not actually paid orreceived during such Measurement Period), (c) the portion of rent expenseof such Person or Persons with respect to such Measurement Period under capitalor financial leases that is treated as interest in accordance with Mexican GAAPand (d) all direct or indirect dividends or other distributions paidduring such Measurement Period on account of any shares of any preferred stockof such Person, now or hereinafter outstanding.

 

“Interest Coverage Ratio” means, as of the last day of anyFiscal Quarter, the ratio of (a) Consolidated EBITDA to (b) Consolidated Interest Charges, in each case determined for the relevant Measurement Period; providedthat for the purposes of calculating the Interest Coverage Ratio, ConsolidatedEBITDA shall not include any payments received by the Company from Subsidiariesin the Venezuelan Division in respect of the sale of shares of capital stock ofSubsidiaries in the Venezuelan Division, Dispositions of Property bySubsidiaries in the Venezuelan Division and other nonrecurring extraordinarypayments by Subsidiaries in the Venezuelan Division.

 

“Interest Payment Date” means (i) the last day of eachInterest Period and (ii) the date of any repayment or prepayment made inrespect of any Loan.

 

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“Interest Period” means the period commencing on (and including)the last day of the preceding Interest Period (or in the case of the firstInterest Period, the date on which the Loans are made) and ending on (butexcluding) the numerically corresponding date three (3) months thereafter;provided, however, that:

 

(a)                                 the first (1st)Interest Period shall be the period commencing on the date on which the Loansare made and ending on January 21, 2010;

 

(b)                                 if any Interest Period would otherwiseend on a day that is not a Business Day, that Interest Period shall be extendedto the following Business Day unless the result of such extension would be tocarry such Interest Period into another calendar month, in which event suchInterest Period shall end on the next preceding Business Day;

 

(c)                                  any Interest Period that begins on thelast Business Day of a calendar month (or on a day for which there is nonumerically corresponding day in the calendar month in which such InterestPeriod is to end) shall end on the last Business Day of the calendar month inwhich such Interest Period is to end; and

 

(d)                                 no Interest Period shall extend beyondthe Maturity Date.

 

“Investment” means, as to any Person, any acquisition orinvestment (whether for cash Property, services, securities or otherwise) bysuch Person, whether by means of (a) the purchase or other acquisition ofcapital stock, bonds, debentures or other securities of another Person,including the receipt of any of the foregoing as consideration for theDisposition of Property or rendering services, (b) the making of a depositwith, or any direct or indirect loan, advance, extension of credit or capitalcontribution to, guaranty of or other contingent obligation with respect todebt or any other liability or obligations of, or purchase or other acquisitionof any other debt or equity participation or ownership or other interest in,another Person, including any partnership or joint venture interest in suchother Person, and the purchase of Property from another Person subject to anunderstanding or agreement, contingent or otherwise, to resell such Property tosuch Person, (c) the purchase or other acquisition (in one transaction ora series of transactions) of all or a substantial portion of the business orProperty or other beneficial ownership of any other Person or (d) enteringinto a Hedging Agreement.  For purposesof covenant compliance, the amount of any Investment shall be the amountactually invested, without adjustment for subsequent increases or decreases inthe value of such Investment.

 

“Investment Grade” means, with respect to Fitch, BBB- or higher,and with respect to S&P, BBB- or higher (or, in either case, the equivalentrating in the future).

 

“IRS” meansthe United States Internal Revenue Service.

 

“IT Operating Lease” means an operating lease for information technologyequipment.

 

“Joint Venture Partner” means each of (i) Archer-Daniels-Midland, Inc.and its Affiliates,  (ii) RFBHoldings de México, S.A. de C.V. and its Affiliates and (iii) Rotch EnergyHoldings, N.V. and its Affiliates.

 

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“Latin American Divisions” means each of the Molinera Division,the Gimsa Division and the Central America Division.  For the avoidance of doubt, the LatinAmerican Divisions shall not include any Venezuelan Subsidiary.

 

“Lender” has the meaning specified in the introductory clausehereto, and includes each Substitute Lender and each Assignee that becomes aLender pursuant to Section 10.08 (*Assignments,Participations, Etc*.).

 

“Lender List” has the meaning specified in Section 10.08(h) (*Assignments, Participations, Etc*.).

 

“Lender List Request” has the meaning specified in Section 10.08(h) (*Assignments, Participations, Etc*.).

 

“Lending Office” means, as to any Lender, the office or officesof such Lender specified as its “Lending Office” in the AdministrativeQuestionnaire, as from time to time amended, or such other office or offices assuch Lender may from time to time notify the Company and the AdministrativeAgent.

 

“Leverage Ratio” means, on any date, the ratio of (a) TotalIndebtedness of the Company and its Consolidated Subsidiaries on such date to (b) ConsolidatedEBITDA of the Company and its Consolidated Subsidiaries determined for theMeasurement Period ended on such date (or, if such date is not the last day ofa Fiscal Quarter, the last day of the most recent Fiscal Quarter ended prior tosuch date); provided that for the purposes of calculating the LeverageRatio, Consolidated EBITDA shall not include any payments received by theCompany from  Subsidiaries in the VenezuelanDivision in respect of the sale of shares of capital stock of Subsidiaries inthe Venezuelan Division, Dispositions of Property by Subsidiaries in theVenezuelan Division and other nonrecurring extraordinary payments bySubsidiaries in the Venezuelan Division.

 

“LIBOR” means for any Interest Period with respect to any LIBORLoan:

 

(a)                                 the rate per annum (rounded to thenearest 1/100th of1%) equal to the rate determined by the Administrative Agent as the Londoninterbank offered rate on any page or other service that displays anaverage British Bankers Association bbalibor for deposits in US Dollars with aterm of or comparable to three months, determined as of approximately 11:00 a.m.,London time, two (2) Business Days prior to the first day of such InterestPeriod (with respect to any Interest Period, the “Determination Date”);or

 

(b)                                 if the rate referenced in the precedingclause (a) is not available, the rate per annum (rounded to the nearest1/100th of1%) determined by the Administrative Agent as the rate per annum that depositsin US Dollars for delivery on the first day of such Interest Period quoted bythe Administrative Agent to prime banks in the London interbank market fordeposits in US Dollars at approximately 11:00 a.m. (London time) on therelevant Determination Date in an amount approximately equal to the principalamount of the Loans to which such Interest Period is to apply and for a  term of or comparable to three (3) months.

 

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“Lien” means with respect to any Property, (a) any securityinterest, mortgage, deed of trust, *fideicomiso*,pledge, usufruct, fiduciary transfer, charge or deposit arrangement,encumbrance, lien (statutory or other) or preferential arrangement (including asecuritization) of any kind or nature whatsoever in respect of any Propertythat has the practical effect of creating a security interest, (b) the interestof a vendor or a lessor under any conditional sale agreement, capital lease ortitle retention agreement (or any financing lease having substantially the sameeconomic effect as any of the foregoing) relating to such Property and (c) inaddition, in the case of securities, any purchase option, call or similar rightof a third party with respect to such securities.

 

“Loan” has the meaning specified in Section 2.01(a) (*Loans*).

 

“Loan Documents” means this Agreement, the Notes, the Security Documents, the IntercompanySubordination Agreementand all other related agreements and documents issued or delivered hereunder orthereunder or pursuant hereto or thereto or in connection herewith ortherewith, in each case as such Loan Document may be amended, supplemented orotherwise modified from time to time.

 

“Majority Lenders” means at any time Lenders then holding morethan 50% of the then aggregate outstanding principal amount of the Loans.

 

“Mandatory Prepayment Indebtedness” means the Loans and the BBVALoan.

 

“Material Adverse Effect” means any event, change, circumstance,condition, occurrence, effect, development or state of fact that, individuallyor together with any other event, change, circumstance, condition, occurrence,effect, development or state of fact, has had: (a) a material adversechange in, or a material adverse effect upon the operations, business, assets,liabilities (actual or contingent), obligations, rights, Property, condition(financial or otherwise) or operating results of either the Company and itsSubsidiaries taken as a whole, or any of the Pledged Entities takenindividually; (b) a material impairment of the ability of the Company toperform its obligations under any Loan Document to which it is or will be aparty; (c) a material adverse effect upon the legality, validity, bindingeffect or enforceability against the Company of any Loan Document to which itis or will be a party; (d) a material impairment of the rights andremedies of or benefits available to any Lender under any Loan Document towhich it is or will be a party; or (e) a material adverse effect on eachof the Gimsa Collateral, the Gruma Corp. Collateral and the MolineraCollateral, taken individually.

 

“Material Subsidiary” means:

 

(a)                                 the Pledged Entities;

 

(b)                                 the Subsidiaries listed on Schedule 1.01(b) (*Existing Material Subsidiaries*);

 

(c)                                  at any time, any Subsidiary of theCompany that meets any of the following conditions:

 

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(i)                                     the Company’s and its Subsidiaries’investments in or advances to such Subsidiary exceed 5% of the totalassets of the Company and its Consolidated Subsidiaries as of the end of theCompany’s most recently completed Fiscal Year;

 

(ii)                                  the Company’s and its Subsidiaries’proportionate share of the total assets (after intercompany eliminations) ofsuch Subsidiary exceeds 5% of the total assets of the Company and itsConsolidated Subsidiaries as of the end of the Company’s most recentlycompleted Fiscal Year; or

 

(iii)                               the Company’s and its Subsidiaries’proportionate share of the earnings before income tax and employee statutoryprofit sharing of such Subsidiary exceeds 5% of such earnings of theCompany and its Consolidated Subsidiaries as of the end of the Company’s mostrecently completed Fiscal Year;

 

in each case as calculated by reference to the last audited orunaudited balance sheet or income statement prepared for such Subsidiary andthe then latest audited or unaudited consolidated balance sheet or incomestatement of the Company and its Subsidiaries;

 

(d)                                 any Subsidiary that the Company adds toSchedule 1.01(b) (*Existing MaterialSubsidiaries*) for purposes of compliance with Section 7.20 (*Material Subsidiaries*); and

 

(e)                                  in the case of clauses (a), (b) and (c) above,the direct and indirect Subsidiaries of such Subsidiaries.

 

“Maturity Date” means January 21, 2017, or if such day isnot a Business Day, the next succeeding Business Day.

 

“Measurement Period” means any period of four (4) consecutiveFiscal Quarters of the Company, ending with the most recently completed FiscalQuarter, taken as one accounting period.

 

“Mexican Business Day” means any dayother than Saturday, Sunday or a day on which commercial banks in Mexico City,Mexico are authorized or required by law to close.

 

“Mexican GAAP” means, as applicable, (i) MexicanGenerally Accepted Accounting Principles (*Principios de ContabilidadGeneralmente Aceptados*) issued by the Mexican Accounting PrinciplesCommission of the Mexican Institute of Public Accountants effective until December 31,2005, (ii) the Mexican Financial Information Standards (*Normas de Información Financiera*) issued by the MexicanCouncil for the Research and Development of Financial Information Standards,effective from January 1, 2006, as amended from time to time, or (iii) IFRS as in effect as of January 1, 2012 or earlier should theCompany elect to apply them earlier than that date pursuant to Transitory Article Thirdof the January 27, 2009 amendments to the *Disposicionesde Carácter General Aplicables a las Emisoras de Valores y a OtrosParticipantes del Mercado de Valores* in effect from time to time inMexico.

 

“Mexican Pesos”, “Pesos” and “MXP$” means lawful currencyof Mexico.

 

“Mexican Pledges” means the Gimsa Trust and the Molinera Trust.

 

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“Mexico” means the United Mexican States.

 

“Ministry of Finance” means the Ministry of Finance and PublicCredit (*Secretaría de Hacienda y CréditoPúblico*) of Mexico.

 

“Minor Derivative Counterparties” means each of ABN AMRO BankN.V., Barclays Bank PLC, BNP Paribas and Standard Chartered Bank, and includeseach “Substitute Lender” and each “Assignee” that becomes a “Lender” (as suchterms are used in the Minor Derivative Counterparty Loans) pursuant to theMinor Derivative Counterparty Loans.

 

“Minor Derivative Counterparty Loans” means each of:

 

(a) the US$13,900,000 Loan Agreement, dated on or prior to thedate hereof, as amended from time to time, by and among the Company and ABNAMRO Bank;

 

(b) the US$21,500,000 Loan Agreement, dated on or prior to thedate hereof, as amended from time to time, by and among the Company andBarclays Bank PLC;

 

(c) the US$11,756,872 Loan Agreement, dated on or prior to thedate hereof, as amended from time to time, by and among the Company and BNPParibas; and

 

(d) the US$22,896,000 Loan Agreement, dated on or prior to thedate hereof, as amended from time to time, by and among the Company andStandard Chartered Bank.

 

“Molinera” means Molinera de Mexico, S.A. de C.V., a *sociedad anónima de capital variable*organized under the laws of Mexico.

 

“Molinera Collateral” means all of Company’s right, titleand interest in, to and under the shares of capital stock of Molinera, whether now owned orhereafter acquired by the Company (including under any trade name or derivationsthereof), whether now existing or subsequently issued, and regardless of wherelocated.

 

“Molinera Division” means Molinera together with its direct andindirect Subsidiaries.

 

“Molinera Trust” means the Irrevocable Guaranty and Administration Trust Agreement (*Contrato de Fideicomiso Irrevocable de Administración y Garantía conDerechos de Reversión*) substantially in the form of Exhibit F-4,pursuant to which the Molinera Collateral is transferred to the Trustee, astrustee, with the Collateral Agent as beneficiary in the first place (*fideicomisario en primer lugar*) on behalf and for the equaland ratable benefit of the Secured Parties.

 

“Moody’s” means Moody’s Investors Service, Inc. and itssuccessors.

 

“MPP Pro Rata Amount” means, as of any date, with respect to anyMandatory Prepayment Indebtedness, a fraction (expressed as a decimal, roundedto the second decimal place), the numerator of which is the aggregate DollarAmount of such Mandatory Prepayment Indebtedness as of such date, and thedenominator of which is the sum of the aggregate Dollar Amount of all MandatoryPrepayment Indebtedness on such date.

 

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“Multiemployer Plan” means any employee benefit plan of the typedescribed in Section 4001(a)(3) of ERISA, to which the Company or anyERISA Affiliate makes or is obligated to make contributions, or during thepreceding three calendar years, has made or been obligated to makecontributions.

 

“Net Cash Proceeds” means, with respect to any event:

 

(a) the cash proceeds received in respect of such event, including(i) any cash and cash equivalents received by way of deferred paymentpursuant to, or by monetization of, a note receivable or otherwise, and (ii) inthe case of a Casualty Event, insurance awards;

 

*minus*

 

(b) the sum, as applicable and without duplication, of (i) allreasonable and customary fees, underwriting discounts, commissions, premiumsand out-of-pocket expenses paid by the Company and its Subsidiaries to thirdparties (other than Affiliates) in connection with such event, (ii) in thecase of a Disposition of Property, the amount of all payments required to bemade by the Company and its Subsidiaries as a result of such event to repayIndebtedness (other than the Loans) secured by such Property or otherwise thatis required by the terms of such Indebtedness to be repaid as a result of suchDisposition, (iii) in the case of a Casualty Event, the aggregate amountof proceeds of business interruption insurance, and (iv) the amount of alltaxes required to be paid and reasonably expected to be paid in accordance withpast practice by the Company and its Subsidiaries in connection with suchevent, including, for the avoidance of doubt, any taxes required to be paid andreasonably expected to be paid in accordance with past practice by the Companyand its Subsidiaries in connection with the distribution of such cash proceedsfrom the Subsidiary that received such cash proceeds to the Company.

 

“Note” means a promissory note (*pagaré*)of the Company payable to a Lender, substantially in the form of Exhibit A(in each case, as such promissory note may be replaced from time to time),evidencing the Indebtedness of the Company to such Lender resulting from suchLender’s Loan, and also means all other promissory notes accepted from time totime in substitution therefor.

 

“Notice of Borrowing” means a notice containing the informationspecified in Section 2.03(a) (*Procedurefor Making of Loans*) substantially in the form of Exhibit G.

 

“Obligations” means all advances, debts, liabilities,obligations, covenants and duties arising under any Loan Document owing by theCompany to any Lender, the Administrative Agent, the Collateral Agent or any indemnified person, whether direct or indirect (including thoseacquired by assignment), absolute or contingent, due or to become due, nowexisting or hereafter arising.

 

“OECD” means the Organization for Economic Cooperation andDevelopment.

 

“OFAC” has the meaning specified in Section 5.20(b)(v) (*Anti-Terrorism Laws*).

 

“Officer” means, with respect to the Company, a president,senior vice president, managing director, chief marketing officer, chiefadministrative officer, chief technology officer, 

 

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chief corporate officer, director of corporatecommunications, chief procurement officer, secretary of the board, treasurer orprincipal financial officer, comptroller or principal accounting officer ofsuch Person, and any officer having substantially the same authority andresponsibility as any of the foregoing. For the avoidance of doubt, the term “Officer” shall include all personslisted as officers of the Company in the Company’s most recent annual reportfiled on Form 20-F with the US Securities and Exchange Commission.

 

“Optional Other Prepayment” with respect to any ReportingIndebtedness means (a) any partial or total voluntary or optional paymenton or redemption or acquisition for value of such Reporting Indebtedness priorto the scheduled maturity thereof, including by way of depositing with thetrustee or Person fulfilling a similar function with respect to such ReportingIndebtedness, money or securities prior to the original scheduled maturity ofsuch Reporting Indebtedness for the purpose of paying it when due, and (b) anypartial or total payment of Reporting Indebtedness prior to the scheduledmaturity thereof as a result of or in connection with the acceleration (inwhole or in part) of the maturity of such Reporting Indebtedness.

 

“Ordinary Course of Business” means, with respect to a Person,the ordinary course of business consistent with past practice of such Person.

 

“Organizational Documents” means, with respect to a Person, eachof the organizational and/or constituent documents of such Person, in each caseincluding all amendments thereto, including the articles or certificateof incorporation or *acta constitutiva*and the by-laws or *estatutos sociales*,or equivalent documents,of such Person.

 

“Other Currency” has the meaning specified in Section 10.17(b) (*Payment in US Dollars; Judgment Currency*).

 

“Other Indebtedness” means Indebtedness of the Company and itsSubsidiaries other than Working Capital Indebtedness and IntercompanyIndebtedness.

 

“Other Prepayment Indebtedness” means the Loans, the BBVA Loanand the Minor Derivative Counterparty Loans.

 

“Other Prepayment Pro Rata Amount” means, as of any date, withrespect to any Other Prepayment Indebtedness, a fraction (expressed as adecimal, rounded to the second decimal place), the numerator of which is theaggregate Dollar Amount of such Other Prepayment Indebtedness as of such date,and the denominator of which is the sum of the aggregate Dollar Amount of allOther Prepayment Indebtedness on such date.

 

“Other Restructured Indebtedness” means the BBVA Loan, theBancomext Loan and the Minor Derivative Counterparty Loans.

 

“Other Taxes” means, with respect to any Person, any present orfuture stamp, court or documentary taxes or any other excise or property taxes,or charges, imposts, duties, fees or similar levies which arise from anypayment made hereunder or any other Loan Document or from the execution,delivery or registration of, or otherwise with respect to, this Agreement orany other Loan Document and which are actually imposed, levied, collected orwithheld by any Governmental Authority.

 

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“Participation” has the meaning specified in Section 10.08(e) (*Assignments, Participations, Etc*.).

 

“Participant” has the meaning specified in Section 10.08(e) (*Assignments, Participations, Etc*.).

 

“Patriot Act” has the meaning specified in Section 5.20(a) (*Anti-Terrorism Laws*).

 

“PBGC” means the Pension Benefit Guaranty Corporation referredto and defined in ERISA and any successor entity performing similar functions.

 

“Pension Plan” means any “employee pension benefit plan” (assuch term is defined in Section 3(2) of ERISA), other than aMultiemployer Plan, that is subject to Title IV of ERISA and is sponsored ormaintained by the Company or any ERISA Affiliate or to which the Company or anyERISA Affiliate contributes or has an obligation to contribute, or in the caseof a multiple employer plan (as described in Section 4064(a) ofERISA) has made contributions at any time during the immediately preceding fiveplan years.

 

“Permitted Acquisition” has the meaningspecified in Section 7.12(c) (*FundamentalChanges, Limitations on Asset Sales, Asset Exchanges and Acquisitions*).

 

“Permitted Bancomext Guaranty” means theGuaranty Obligation of the Company in respect of the Bancomext-Gimsa Loan.

 

“Permitted Capital Expenditures Amount” meansan amount of Capital Expenditures on a consolidated basis that shall not exceedthe following amounts for each Fiscal Year specified:

 
| **Fiscal Year ending December 31,**                      | ** ** | **Permitted Capital Expenditures   Amount** | ** ** |
|---------------------------------------------------------------|------------|---------------------------------------------|------------|
| 2009                                                          |       | US$80,000,000                               |       |
| 2010                                                          |       | US$80,000,000                               |       |
| 2011                                                          |       | US$120,000,000                              |       |
| 2012                                                          |       | US$140,000,000                              |       |
| 2013 and each Fiscal Year thereafter until the  Maturity Date |       | US$150,000,000                              |       |

 

“Permitted Company Equity Issuance” has the meaning specified inSection 7.23(a)(ii) (*EquityIssuances*).

 

“Permitted Lien” has the meaning specified in Section 7.01(b) (*Negative Pledge*).

 

“Permitted New Capital Obligations” has the meaning specified inSection 7.16(g)(ii) (*Limitationson Incurrence of Additional Indebtedness*).

 

“Permitted New Indebtedness” has the meaning specified in Section 7.16(g) (*Limitations on Incurrence of Additional Indebtedness*).

 

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“Permitted New Investment Amount” means, withrespect to any Fiscal Year following an Excess Cash Year, the lesser of (i) theAvailable Excess Cash Amount for such Excess Cash Year and (ii) US$50,000,000(or the US Dollar Equivalent thereof) in each of 2009, 2010 and 2011, andUS$100,000,000 (or the US Dollar Equivalent thereof) in each year thereafter.

 

“Permitted New Working Capital Indebtedness” has the meaningspecified in Section 7.16(g)(ii) (*Limitationson Incurrence of Additional Indebtedness*).

 

“Permitted Prepayment Asset Sale” means any Asset Sale otherthan (a) the Existing Venezuelan Sale, (b) Asset Sales by anySubsidiary that is part of the Venezuelan Division, to the extent suchSubsidiary is prohibited by Venezuelan laws or regulations from transferring orpaying such Net Cash Proceeds out of Venezuela, and (c) ProhibitedCollateral Sales.

 

“Permitted Refinancing Indebtedness” means Indebtedness incurredby the Company or its Subsidiaries to Refinance (i) Other PrepaymentIndebtedness, (ii) the Bancomext Loan or (iii) Indebtedness ofSubsidiaries of the Company; provided that:

 

(a)                                 in the case of Company RefinancingIndebtedness:

 

(i)                                     the aggregate principal amountof such Company Refinancing Indebtednessas of the date that such Refinancing is consummated does not exceed theaggregate principal amount outstanding of the Indebtedness being Refinanced (plus the amountof any premium required to be paid under the terms of the instrument governingsuch Indebtedness being Refinanced);

 

(ii)                                  such Company Refinancing Indebtednesshas:

 

(A)                               a weighted average maturity that is equalto or greater than the weighted average maturity of (x) the Indebtednessbeing Refinanced and (y) the Loans, and

 

(B)                               a final maturity that is equal to orgreater than the final maturity of (x) the Indebtedness being Refinancedand (y) the Loans;

 

(iii)                               such CompanyRefinancing Indebtedness is Indebtedness of the Company;

 

(iv)                              if theIndebtedness being Refinanced is Subordinated Indebtedness, then such CompanyRefinancing Indebtedness shall be subordinate to the Loans and any other seniorIndebtedness at least to the same extent and in the same manner as theIndebtedness being Refinanced;

 

(v)                                 such Company RefinancingIndebtedness is incurredpursuant to (i) terms and pricing that reflect market terms and pricingfor the Company and (ii) terms that are no less favorable to the Companythan the terms and conditions contained hereunder;

 

(vi)                              such Company Refinancing Indebtedness issecured, if at all, by the same collateral as, and to an extent no greaterthan, the Indebtedness being Refinanced, 

 

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and if suchCompany Refinancing Indebtedness is incurred to Refinance  the Mandatory Prepayment Indebtedness, suchCompany Refinancing Indebtedness is secured, if at all, on a *pari passu* basis with such RefinancedMandatory Prepayment Indebtedness, and pursuant to an amendment to theCollateral Agency and Intercreditor Agreement;

 

(vii)                           such Company RefinancingIndebtedness is notguaranteed by any of the Company’s Subsidiaries;

 

(viii)                        all of the Net Cash Proceeds of such CompanyRefinancing Indebtednessare used to prepay the Indebtedness being Refinanced (plus the amountof any premium required to be paid under the terms of the instrument governingsuch Indebtedness being Refinanced) and any other Indebtedness required to be prepaidpursuant to Section 2.05(h) (*MandatoryPrepayments*) (and any breakage costs in connection therewith) withinfive (5) Business Days of the incurrence of such CompanyRefinancing Indebtedness;

 

(ix)                              in the case of Company RefinancingIndebtedness incurred to Refinance the Minor Derivative Counterparty Loans,such Company Refinancing Indebtedness consists only of unsecured Indebtednessraised in the debt capital markets;

 

(x)                                 in the case of CompanyRefinancing Indebtednessincurred to Refinance the Bancomext Loan:

 

(A)                               the aggregate amount of scheduledamortizations under such Company Refinancing Indebtedness on any date cannot exceed the aggregateamount of scheduled amortizations under the Bancomext Loan on such date;

 

(B)                               the interest rate for such CompanyRefinancing Indebtednesscannot be more than a rate equal to the sum of (i) the TIIE Rate plus (ii) 5.00%per annum; and

 

(C)                               the tenor of such CompanyRefinancing Indebtednesscannot be less than the tenor of the Bancomext Loan; and

 

(b)                                 in the case of Indebtedness incurred toRefinance Indebtedness of a Subsidiary:

 

(i)                                     the aggregate principal amount (or initialaccreted value, if applicable) of such new Indebtedness as of the date that suchRefinancing is consummated does not exceed the aggregate principal amountoutstanding (or initial accreted value, if applicable) of the Indebtedness being Refinanced (plus the amountof any premium required to be paid under the terms of the instrument governingsuch Indebtedness being Refinanced);

 

(ii)                                  such new Indebtedness has:

 

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(A)                               a weighted average maturity that is equalto or greater than the weighted average maturity of the Indebtedness beingRefinanced, and

 

(B)                               a final maturity that is equal to orgreater than the final maturity of the Indebtedness being Refinanced;

 

(iii)                               such newIndebtedness is Indebtedness of such Subsidiary;

 

(iv)                              if theIndebtedness being Refinanced is Subordinated Indebtedness, then such newIndebtedness shall be subordinate to any senior Indebtedness at least to thesame extent and in the same manner as the Indebtedness being Refinanced;

 

(v)                                 such new Indebtedness is incurredpursuant to (i) terms and pricing that reflect market terms and pricingfor such Subsidiary and (ii) terms that are no less favorable to theSubsidiary than the terms and conditions hereunder;

 

(vi)                              such new Indebtedness is secured usingthe same collateral as, and to an extent no greater than, the Indebtednessbeing Refinanced;

 

(vii)                           such new Indebtedness, if guaranteed bythe Company or any Subsidiary, is guaranteed by the same Persons as, and to anextent no greater than, the Indebtedness being Refinanced; provided thatthe Permitted Bancomext Guaranty may not be extended or renewed; and

 

(viii)                        all of the Net Cash Proceeds of such newIndebtedness are used to prepay the Indebtedness being Refinanced (plus the amountof any premium required to be paid under the terms of the instrument governingsuch Indebtedness being Refinanced) within five (5) Business Days of the incurrenceof such new Indebtedness.

 

“Permitted Venezuelan Recourse Indebtedness” has the meaningspecified in Section 7.16(e) (*Limitationson Incurrence of Additional Indebtedness*).

 

“Perpetual Bonds” means the 7.75% Perpetual Bonds issued by theCompany.

 

“Person” means any natural person, partnership, limitedliability company, corporation, business trust, joint stock company, trust,unincorporated association, joint venture or Governmental Authority or otherentity.

 

“Plan” means any “employee benefit plan” (as such term isdefined in Section 3(3) of ERISA) established by the Company or anyERISA Affiliate.

 

“Platform” has the meaning specified in Section 10.09(b) (*Confidentiality*).

 

“Pledged Entities” means Gimsa, Gruma Corp. and Molinera.

 

“Pledged Entity Asset Sale” means any Asset Sale by anySubsidiary in the Gimsa Division, the Gruma Corp. Division or the MolineraDivision.

 

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“Pledged Entity Casualty Event” means any Casualty Eventaffecting any Subsidiary in the Gimsa Division, the Gruma Corp. Division or theMolinera Division.

 

“Post-Default Rate” means, a rate per annum equal to (x) theAlternate Base Rate plus the Applicable Margin or (y) LIBOR plus theApplicable Margin, as notified to the Administrative Agent by the MajorityLenders, in each case plus two percent (2%).

 

“Preliminary Amount” has the meaning set forth in Section 2.05(d) (*Mandatory Prepayments*).

 

“Pro Rata Share” means, as of any date, with respect to eachLender, a fraction (expressed as a decimal, rounded to the second decimalplace) the numerator of which is the outstanding principal amount of the Loanof such Lender and the denominator of which is the aggregate outstandingprincipal amount of all Loans.

 

“Probable Bond” means a bond for or inconnection with a Proceeding for which the Company’s or its Subsidiaries’accountants have required reserves to be provided in accordance with applicableGAAP.

 

“Proceeding”means a litigation,claim, action or other proceeding before any Governmental Authority.

 

“Process Agent” has the meaning specified in Section 10.15(d) (*Consent to Jurisdiction; Waiver of Jury Trial*).

 

“Prohibited Collateral Sale” means any Disposition of theCollateral.

 

“Property” means any asset, revenue or any other property,whether tangible or intangible, including any right to receive income.

 

“Public Lender” has the meaning specified in Section 10.09(b) (*Confidentiality*).

 

“Public Registry of Property and Commerce” means the *Registro Público de la Propiedad yde Comercio* in Monterrey,Mexico.

 

“Qualified Accountant” means any of PriceWaterhouseCoopers,KPMG, Deloitte Touche Tohmatsu or Ernst and Young; provided that, at anytime, the auditor of the Company or any of its Subsidiaries shall not be aQualified Accountant.

 

“Qualified Counterparty” means afinancial institution (a) based in a country that is a member of the OECD and(b) that has a creditrating of A- or higher from S&P or A3 or higher from Moody’s, or, if suchfinancial institution is rated by both S&P and Moody’s, a credit rating ofA- or higher from S&P and A3 or higher from Moody’s.

 

“Quarterly Compliance Certificate” means a certificatesubstantially in the form of Exhibit B-1.

 

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“Refinance” means, in respect of anyIndebtedness, to issue any Indebtedness in exchange for or to refinance,replace, defease or refund such Indebtedness in whole or in part.  “Refinanced” and “Refinancing”have the meanings correlative thereto.

 

“Register” has the meaning specified in Section 10.08(c) (*Assignments, Participations, Etc.*).

 

“Reinstatement Event” means, with respect to the Company, thefirst to occur of: (i) the Leverage Ratio on the last day of each of four (4) consecutiveFiscal Quarters being equal to or greater than 2.50:1.00, (ii) the Company’slong term unsecured credit rating from Fitch or S&P being less than InvestmentGrade or (iii) the Company or any of its Subsidiaries granting in favor ofthe Reporting Indebtedness a Lien on any of its assets or Property, includingthe Collateral, as security therefor and not otherwise granted equally andratably to the Secured Parties.

 

“Reinvestment Certificate” means, with respect to an Asset Sale,a certificate signed by a Senior Officer of the Company stating that within therelevant Reinvestment Period, up to 50% of the Net Cash Proceeds of such AssetSale shall be used to make Restricted Investments.

 

“Reinvestment Period” means

 

(a)                                 with respect to any Casualty Event, theperiod of one hundred eighty (180) days following the date on which the NetCash Proceeds of such Casualty Event are received by the Company; and

 

(b)                                 with respect to any Asset Sale, theperiod of two hundred and seventy (270) days following the date on which suchAsset Sale was consummated.

 

“Replacement Collateral” has the meaning specified in Section 8.01(k) (*Expropriation*).

 

“Reportable Event” means any of the events set forth in Section 4043(c) ofERISA, other than events for which the thirty (30)-day notice period has beenwaived.

 

“Reporting Entity” has meaning specified in Section 6.01(a)(i) (*Financial Statements and Other Information*).

 

“Reporting Indebtedness” means each of (a) the SecuredIndebtedness (other than the Loans), (b) the Bancomext Loan, (c) the MinorDerivative Counterparty Loans, and (d) any Indebtedness the proceeds ofwhich are applied to the Refinancing of the foregoing.

 

“Reporting Indebtedness Documentation” has the meaning specifiedin Section 4.01(m) (*Delivery ofReporting Indebtedness Documents*).

 

“Reporto Contract” means any Contractual Obligation providingfor (a) the sale to a third party counterparty by the Company or its Subsidiariesof a negotiable warehouse receipt (*certificadode depósito*) or any similar instrument representing corn or wheatstored in a warehouse and (b) the subsequent repurchase of such negotiablewarehouse receipt (*certificado de depósito*)or similar instrument by the Company or such Subsidiary from such third partycounterparty for the same price plus a premium previously agreed to by theparties.

 

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“Required Amount” has the meaning set forth in Section 2.05(i) (*Mandatory Prepayments*).

 

“Required Payment Period” means, with respect to an Asset Saleor a Casualty Event, the period of (i) five (5) Business Daysfollowing the receipt of the Net Cash Proceeds thereof (or, if applicable,following the last day of the relevant Reinvestment Period) if such Net CashProceeds are received by the Company, or (ii) ten (10) Business Daysfollowing the receipt of the Net Cash Proceeds thereof (or, if applicable,following the last day of the relevant Reinvestment Period) if such Net CashProceeds are received by a Subsidiary of the Company.

 

“Required Repayment Date” means, with respect to an Asset Saleor Casualty Event, the last day of the relevant Required Payment Period.

 

“Requirement of Law” means, as to any Person, any law (statutoryor common), treaty, rule or regulation or order, injunction, writ, decreeor other determination of an arbitrator or a court or other GovernmentalAuthority, including any Environmental Law, in each case applicable to orbinding upon such Person or any of its property or to which the Person or anyof its property is subject.

 

“Restore” means, with respect to any Property affected by aCasualty Event, to rebuild, repair, restore or replace such affected Property.

 

“Restricted Investments” means:

 

(a)                                 Investments consisting of the purchase ofthe capital stock of Gimsa; provided that any capital stock of Gimsapurchased pursuant to this clause (a) shall be considered Collateral andshall be pledged to, and covered by the first priority security interest infavor of, the Collateral Agent, in each case as created pursuant to theSecurity Documents;

 

(b)                                 subject to and in accordance with Section 7.12(c) (*Fundamental Changes, Limitations on Asset Sales,Asset Exchanges and Acquisitions*), Investments relating to theCompany’s Core Business (other than Investments in the Venezuelan Division);

 

(c)                                  Investments by the Company in anyMaterial Subsidiary (other than any Subsidiary that is part of the VenezuelanDivision) or by any Material Subsidiary in the Company or in any MaterialSubsidiary (other than any Subsidiary that is part of the Venezuelan Division);and

 

(d)                                 Investments consisting of CapitalExpenditures in excess of the Capital Expenditures permitted by Sections 7.14(a) and7.14(b) (*Limitations on CapitalExpenditures*) for such Fiscal Year; provided that the Companycomplies with Section 7.14(c) (*Limitationson Capital Expenditures*) with respect to such Capital Expenditures;

 

provided, however, that notwithstanding any of theforegoing, the Company and its Subsidiaries (other than any Subsidiary that ispart of the Venezuelan Division) shall not make any Investments in theVenezuelan Division.

 

“Restricted Payment” means, with respect to any Person:

 

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(a)                                 any direct or indirect dividend or otherdistribution (whether in cash, securities or other Property) on account of anyshares of any class of capital stock of, partnership interest of or otherownership interest of, such Person, now or hereinafter outstanding;

 

(b)                                 any payment, sinking fund or similardeposit, purchase, redemption, retirement, acquisition, cancellation ortermination of any such shares of capital stock, partnership interest or otherownership interest in, or of any option, warrant or other right to acquire anysuch shares of capital stock, partnership interest or other interest in, of suchPerson; and

 

(c)                                  any payment or prepayment of principalof, premium, if any, or fees or other charges on or with respect to, and any redemption,purchase, retirement, defeasance, sinking fund or similar payment and any claimfor rescission with respect to, any Indebtedness which is subordinated to theObligations (other than Intercompany Indebtedness), including SubordinatedIndebtedness.

 

“S&P” means Standard & Poor’s Ratings Service,presently a division of The McGraw-Hill Companies, Inc. and itssuccessors.

 

“Sale Lease-Back Transaction” means any arrangement pursuant towhich a Person sells or transfers, directly or indirectly, any Property used oruseful in its business, and thereafter such Person or an Affiliate of suchPerson rents or leases such Property or other Property from the purchaser ortransferee (or their Affiliate) for the same or similar use in its business, orany similar transaction or arrangement.

 

“SAR” means the *Sistema deAhorro para el Retiro*of Mexico.

 

“Secured Indebtedness” means the Loans, the BBVA Loan, and thePerpetual Bonds.

 

“Secured Parties” has the meaning ascribed to such term in theCollateral Agency and Intercreditor Agreement.

 

“Security Documents” means each of the Collateral Agency andIntercreditor Agreement, the Gimsa Trust, the Gruma Corp. Pledge, the MolineraTrust and the Intercompany Trust Agreement.

 

“Senior Officer” means, with respect to any Person, the chiefexecutive officer, the president, the general manager or the chief financialofficer of such Person, or, in each case, any other officer of such Personhaving substantially the same authority and responsibility.

 

“Shared Casualty Events Proceeds” means Net Cash Proceeds ofCasualty Events (other than Net Cash Proceeds from a Casualty Event received byany Subsidiary that is part of the Venezuelan Division, to the extent suchSubsidiary is prohibited by Venezuelan laws or regulations from transferring orpaying such Net Cash Proceeds out of Venezuela).

 

“Shared Permitted Prepayment Asset Sale Proceeds” means the NetCash Proceeds of any Permitted Prepayment Asset Sale.

 

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“Shared Proceeds” means the (a) the Shared PermittedPrepayment Asset Sale Proceeds and (b) Shared Casualty Events Proceeds.

 

“Shared Proceeds Trigger” has the meaning specified in Section 2.05(a)(ii) (*Mandatory Prepayments*).

 

“Solvent” means, with respect to any Person on a particulardate, that on such date, (a) the present fair value of the property ofsuch Person is greater than the total amount of debts and liabilities,subordinated, contingent or otherwise, of such Person, (b) such Personwill be able to pay its debts and liabilities, subordinated, contingent orotherwise, as such debts and liabilities become absolute and matured, (c) suchPerson will not have unreasonably small capital with which to conduct thebusiness in which it is engaged as such business is now conducted and proposedto be conducted after such date, (d) such Person is notin a generalized default of its payment obligations *(**incumplimiento generalizado en elpago de sus obligaciones**)* within the meaning of Section Ior II of Article 10 of the Mexican *Leyde Concursos Mercantiles*, and (e) none of the events enumeratedin Sections I through VII of Article 11 of the Mexican *Ley de Concursos Mercantiles*shall be in effect with respect to suchPerson.  The amount of contingent liabilities at anytime shall be computed as the amount that, in the light of all the facts andcircumstances existing at such time, represents the amount that couldreasonably be expected to become an actual or matured liability.

 

“Specified Court” has the meaning specifiedin Section 10.15(a) (*Consent toJurisdiction; Waiver of Jury Trial*).

 

“Subordinated Indebtedness” means,with respect to the Company or any of its Subsidiaries, any Indebtedness of theCompany or such Subsidiary, as the case may be, which is pursuant to its termsexpressly subordinated in right of payment to any senior Indebtedness.

 

“Subsidiary” of a Person means any corporation, partnership,joint venture, limited liability company, trust, estate or other entity (a) of which more than 50% of the voting stock or otherequity interests (in the case of Persons other than corporations), is owned orControlled directly or indirectly by such Person, or one or more of theSubsidiaries of such Person, or a combination thereof, or (b) that is, at the time anydetermination is made, otherwise Controlled, by such Person or one or more Subsidiariesof such Person.  Unless the context otherwise clearlyrequires, references herein to a “Subsidiary” refer to a direct or indirectSubsidiary of the Company.

 

“Substitute Lender” means (a) a Foreign FinancialInstitution (including a bank that is already a Lender hereunder) or (b) amultiple banking institution (*institución debanca múltiple*) that is organized as a *sociedad anónima*under Mexican law and is authorized toengage in the business of banking by the Ministry of Finance, in each case thatis acceptable to the Administrative Agent, whose consent will not beunreasonably withheld.

 

“Suspension Date” means a date occurring prior to thesatisfaction in full of the Obligations, on which the pledges made pursuant toor under the Security Documents are suspended, and the security interestsgranted thereby are released, in each case pursuant to the Security Documents.

 

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“Target” has the meaning specified in Section 7.12(c) (*Fundamental Changes, Limitations on Asset Sales,Asset Exchanges and Acquisitions*).

 

“Taxes” means any and all present or future taxes, duties,levies, assessments, imposts, deductions, withholdings or similar charges, andall liabilities with respect thereto, including any related interest orpenalties, imposed by Mexico or any political subdivision or taxing authoritythereof or therein or by any jurisdiction from which the Company shall make anypayment (or from which any payment shall be made) hereunder or under any LoanDocument.

 

“Temporary Loan Account” has the meaning specified in Section 2.03(c) (*Procedure for Making of Loans*) withrespect to the Initial Lenders and the meaning specified in the MinorDerivative Counterparty Loans with respect to the Minor DerivativeCounterparties.

 

“Terminated Derivative Obligations” means the obligations (otherthan in respect of interest) of the Company to the Initial Lenders arising outof the Confirmations, the amount of which for each Initial Lender is set forthopposite such Initial Lender’s name on Schedule 1.01(a) (*Loans; Pro Rata Shares*).

 

“TIIE Rate” means, with respect to any date, the EquilibriumInterbanking Interest Rate (*Tasa de Interés Interbancariade Equilibrio*) for a term of 28 days, as published in theOfficial Daily Gazette (*Diario Oficial de laFederación*) by Bancode México on such date (which rate is available prior to 12:00 p.m.Mexico City time at http://www.banxico.org.mx/indicadores/tiie28.html (or anysuccessor website thereto)).

 

“Total Indebtedness” means, on any date, the outstandingprincipal balance of all Indebtedness of the Company and its ConsolidatedSubsidiaries (excluding Venezuelan Non-Recourse Indebtedness).

 

“Trade Assets” means (i) tradeaccounts receivable and inventories for the Company and its ConsolidatedSubsidiaries and (ii) other accounts receivable for Gimsa.

 

“Trade Liabilities” means tradeaccounts payable for the Company and its Consolidated Subsidiaries.

 

“Trustee” means Banco Nacional de México S.A., Integrante delGrupo Financiero Banamex, División Fiduciaria as trustee (*fiduciario*) pursuant to the Gimsa Trust,the Molinera Trust and the Intercompany Trust Agreement, respectively.

 

“UCC” means the Uniform Commercial Code as in effect from timeto time in the State of New York.

 

“Unfunded Pension Liability” means the excess of a Pension Plan’sbenefit liabilities under Section 4001(a)(16) of ERISA, over the currentvalue of that Pension Plan’s assets, determined in accordance with theassumptions used for funding the Pension Plan pursuant to Section 412 ofthe Code for the applicable plan year.

 

“United States” and “US” each means the United States ofAmerica.

 

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“Unused CapEx” means, in respect of any Fiscal Year, thePermitted Capital Expenditures Amount (without giving effect to any carry-overfrom any prior year) for such Fiscal Year less all Capital Expenditures madeduring such Fiscal Year.

 

“US Dollars”, “Dollars” and “US$” each meanslawful currency of the United States.

 

“US Dollar Equivalent” means, with respect to any non-USDollar-denominated amount on any date, the amount of US Dollars obtained byconverting such non-US Dollar-denominated amount into US Dollars using theConversion Rate on such date.

 

“US GAAP” means (i) generally accepted accountingprinciples in the United States or (ii) theinternational financial reporting standards set by the International AccountingStandards Board or any successor thereto, to the extent that a Person organized under the lawsof a jurisdiction of the United States would be permitted under the applicableRequirements of Law to use such standards in financial statements filed inreports with the Securities and Exchange Commission.

 

“Venezuelan Division” means each of theVenezuelan Subsidiaries together with their respective direct and indirectSubsidiaries.

 

“Venezuelan EBITDA” means, with respect to theVenezuelan Division, for any period, (a) the sum of (i) consolidatedoperating income (determined in accordance with Mexican GAAP) for such period, (ii) theamount of depreciation and amortization expense deducted during such period indetermining such consolidated operating income for such period and (iii) anyother non-cash expenses deducted during such period in determining suchconsolidated operating income of the Venezuelan Division for such period *minus* (b) any other non-cash incomeincluded in the calculation of consolidated operating income of the Subsidiariesthat are part of the Venezuelan Division for such period.

 

“Venezuelan Non-Recourse Indebtedness” meansany Indebtedness incurred by any Subsidiary that is part of the VenezuelanDivision that is not directly or indirectly guaranteed or otherwise withrecourse to the Company or any Subsidiary of the Company other than anySubsidiary that is part of the Venezuelan Division.

 

“Venezuelan Recourse Indebtedness” means anyIndebtedness incurred by any Subsidiary that is part of the Venezuelan Divisionthat is not Venezuelan Non-Recourse Indebtedness.

 

“Venezuelan Subsidiaries” means (i) eachof Derivados de Maíz Seleccionado, S.A. and Molinos Nacionales, C.A. and (ii) anySubsidiary of the Company that is organized under the laws of Venezuela afterthe date of this Agreement, provided that (x) such new Subsidiaryis duly organized under the laws of Venezuela and (y) the OrganizationalDocuments of such new Subsidiary do not violate the terms of this Agreement.

 

“Withdrawal Liability” has the meaning given such term under Part Iof Subtitle E of Title IV of ERISA.

 

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“WorkingCapital Adjustment” means, with respect to any Fiscal Year, the change inworking capital requirements (which may be positive or negative) of the Companyand its Consolidated Subsidiaries (excluding any Subsidiaries that are part ofthe Venezuelan Division) to be calculated as follows: the amount resulting fromdifference between (a) the amount of Working Capital Indebtednessoutstanding plus Trade Assets *minus*Trade Liabilities, in each case on the last day of such Fiscal Year and (b) theamount of Working Capital Indebtedness outstanding plus Trade Assets *minus* Trade Liabilities, in each case onthe last day of the prior Fiscal Year.

 

“Working Capital Indebtedness” means (i) Indebtedness(other than Venezuelan Non-Recourse Indebtedness) incurred or held by theCompany or any of its Subsidiaries, that matures no later than three hundredsixty-five (365) days after the date of its incurrence and (ii) the Bankof America Facility.

 

1.02.                     Other Interpretive Provisions.

 

(a)                                 The meanings of defined terms are equallyapplicable to the singular and plural forms of the defined terms.

 

(b)                                 The words “hereof”, “herein”, “hereunder”and similar words refer to this Agreement as a whole and not to any particularprovision of this Agreement; and Section, clause, Schedule and Exhibit referencesare to this Agreement unless otherwise specified.

 

(c)                                  The terms “including” and “include” arenot limiting and mean “including without limitation” and “include withoutlimitation”.

 

(d)                                 In the computation of periods of timefrom a specified date to a later specified date, the word “from” means “fromand including”; the words “to” and “until” each means “to but excluding”, andthe word “through” means “to and including”.

 

(e)                                  Any definition of or reference to anyagreement, instrument or other document herein shall be construed as referringto such agreement, instrument or other document as from time to time amended, supplementedor otherwise modified (subject to any restrictions on such amendments,supplements or modifications set forth herein).

 

(f)                                   Any reference herein to any Person shallbe construed to include such Person’s successors and assigns.

 

(g)                                  Any reference herein to “year”, “month”or “day” shall mean a calendar year, month, or day unless otherwise specified.

 

(h)                                 Any obligation to deliver a document tothe Administrative Agent shall include the obligation to deliver a sufficientnumber of copies for each of the Administrative Agent and each Lender, unlessthe relevant document is permitted by this Agreement to be deliveredelectronically, in which case delivery of one electronic copy to theAdministrative Agent shall suffice.

 

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(i)                                     The captions and headings of thisAgreement are for convenience of reference only and shall not affect theinterpretation of this Agreement.

 

(j)                                    The amounts of Consolidated EBITDA,Consolidated Interest Charges, Total Indebtedness and Excess Cash shall beexpressed in Mexican Pesos in accordance with Mexican GAAP, consistentlyapplied.

 

(k)                                 The calculation of the US DollarEquivalent of any amount shall be the US Dollar Equivalent thereof:

 

(i)                                                             if such amount is being created, incurredor assumed by the Company, as of the date of such creation, incurrence orassumption; and

 

(ii)                                                          if such amount is being paid (includingany mandatory prepayment required by Section 2.05 (*Mandatory Prepayments*) or Disposed of bythe Company, as of the date of such payment or Disposition.

 

1.03.                     Accounting Principles.

 

(a)                                 Unless the context otherwise clearlyrequires, all accounting terms not expressly defined herein shall be construed,and all financial computations required under this Agreement shall be made, inaccordance with Mexican GAAP, consistently applied.

 

(b)                                 References herein to “Fiscal Year” and “FiscalQuarter” refer to such fiscal periods of the Company.

 

ARTICLEIITHE LOANS

 

2.01.                     The Loans.

 

(a)                                 Loans.  Each InitialLender, severally and not jointly with the other Initial Lenders, agrees, onthe terms and subject to the conditions set forth herein, and relying on the representations and warranties setforth herein, to makea single term loan in US Dollars (each, a “Loan”) in a single disbursementto the Company on the Closing Date in a principal amount not to exceed the Terminated Derivative Obligationof such Initial Lender.

 

(b)                                 No amounts prepaid or repaid with respectto any Loan may be reborrowed.

 

(c)                                  In the event that each of (x) theClosing Date and (y) the disbursement of the Loans in accordance withclause (a) above do not occur on or before the date that is ten (10) calendardays following the date of this Agreement, then this Agreement and thecommitments hereunder shall automatically terminate, and the TerminatedDerivative Obligations shall continue to be governed by the Confirmations; providedthat notwithstanding the foregoing, the agreements contained in Sections 3.01 (*Taxes*), 3.05 (*Funding Losses*), 9.08 (*Indemnification*),10.04 (*Costs and Expenses*), 10.05(*Indemnification by the Company*),10.13 (*Severability*), 10.14 (*Governing Law*), 10.15 (*Consent to Jurisdiction, Waiver of Jury Trial*),10.16 (*Waiver of*

 

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*Immunity*) and 10.17 (*Payment in US Dollars; Judgment Currency*) shall survive anytermination pursuant to this Section 2.01(c).

 

2.02.                     Evidence of Indebtedness.

 

(a)                                 Each Lender’s Loan shall be evidenced bya Note payable to the order of such Lender in a principal amount equal to suchLender’s Loan, maturing on the Maturity Date.

 

(b)                                 It is the intent of the Company and theLenders that each Note qualifies as a *pagaré*under Mexican law.

 

(c)                                  In the event that any conflict arisesbetween the provisions of this Agreement and the terms of any Note, theprovisions of this Agreement shall prevail. In addition, the Company hereby agrees and covenants that it willexecute and deliver any and all endorsements to the Notes, or replace (in exchangefor) the Notes, and take all further action that the Administrative Agent orthe Majority Lenders may reasonably request from time to time in order toensure that the Notes duly reflect the terms of this Agreement.

 

2.03.                     Procedure for Making of Loans.

 

(a)                                 Disbursement of the Loans shall be madeupon the Company’s irrevocable written notice delivered to the AdministrativeAgent and the Initial Lenders in the form of a Notice of Borrowing (whichnotice must be received by the Administrative Agent and the Initial Lendersprior to 11:00 a.m. (New York City time) three (3) BusinessDays prior to the Closing Date) (i) specifying the proposed Closing Date,which shall be a Business Day, and (ii) instructing each Initial Lender toapply the proceeds of such Initial Lender’s Loan to repay the TerminatedDerivative Obligation of such Initial Lender.

 

(b)                                 The Administrative Agent will promptlynotify each Initial Lender of its receipt of a Notice of Borrowing and theproposed Closing Date.

 

(c)                                  Each Initial Lender shall disburse the full amountof its Loan in accordance not later than 11:00 a.m. (New York City time) on the ClosingDate by wire transfer of immediately available funds to an account establishedin the name of the Company at such Initial Lender or such Initial Lender’snominee (each, a “Temporary Loan Account”), which account shall begoverned by the Control Agreement with such Initial Lender.

 

(d)                                 Upon receipt of the proceeds of eachInitial Lender’s Loan in the Temporary Loan Account established in the name ofthe Company at such Initial Lender or such Initial Lender’s nominee, eachInitial Lender (or such Initial Lender’s nominee) shall, pursuant to theinstructions contained herein and in the Notice of Borrowing delivered by theCompany to such Initial Lender (or such Initial Lender’s nominee) apply the theproceeds of its Initial Loans to repay the Terminated Derivative Obligation ofsuch Initial Lender.  The Company herebyirrevocably instructs each Initial Lender (or such Initial Lender’s nominee) toapply the proceeds of the Loans to the Terminated Derivative Obligations asspecified above.

 

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2.04.                     Voluntary Prepayments.

 

(a)                                 Subject to Section 3.05 (*Funding Losses*) and Section 2.10 (*Payments by the Company*), the Company may,at any time or from time to time, upon not less than three (3) BusinessDays’ irrevocable written notice to the Administrative Agent, voluntarilyprepay the Loans on a prorata basis in accordance with clause (c) below,in whole or in part, in minimum amounts of US$10,000,000 or any multiple ofUS$1,000,000 in excess thereof.  Thenotice of prepayment shall specify the date and amount of such prepayment (and,upon the date specified in any such notice, the amount to be prepaid shallbecome due and payable hereunder).  TheAdministrative Agent will promptly notify each Lender of its receipt of anysuch notice, and of such Lender’s Pro Rata Share of such prepayment.

 

(b)                                 Any optional prepayment of any Loansunder this Section 2.04 shall (i) be accompanied by any accrued andunpaid interest with respect to the principal amount of Loans being repaidthrough the date of repayment together with additional amounts due, if any, (ii) bepaid in the currency of the applicable Loan and (iii) if such prepaymentshall be made on a day other than the last day of the Interest Periodapplicable to the Loans to be prepaid, be accompanied by any and all amountspayable in connection therewith pursuant to Section 3.05 (*Funding Losses*).

 

(c)                                  The aggregate amount of any suchprepayment of the Loans shall be (i) allocated ratably among all Loansaccording to each Lender’s Pro Rata Share; and (ii) applied to reduce prorata the amount of each of the last six (6) (or, if at the time ofsuch repayment six (6) or less are remaining, all remaining) installmentsof principal, and thereafter to the remaining installments of principal in theinverse order of maturity set forth in Section 2.06 (*Repayment of the Loans*).

 

2.05.                     Mandatory Prepayments.

 

(a)                                 In each Fiscal Year:

 

(i)                                                             the Company shall, and shall cause eachof its Subsidiaries to, prepay 100% of Shared Permitted Prepayment Asset SaleProceeds to the Mandatory Prepayment Indebtedness within the applicableRequired Payment Period until such time that the amount of Shared Proceeds paidto the Mandatory Prepayment Indebtedness pursuant to this Section 2.05exceeds US$50,000,000 (or the US Dollar equivalent thereof) in such FiscalYear; and

 

(ii)                                                          if, at any time during such Fiscal Year,the amount of Shared Proceeds received in such Fiscal Year by the Company andits Subsidaries and paid to the Mandatory Prepayment Indebtedness pursuant tothis Section 2.05 exceeds US$50,000,000 (or the US Dollar equivalentthereof) (the “Shared Proceeds Trigger” for such Fiscal Year), thenafter the Shared Proceeds Trigger and until the last day of such Fiscal Year,the Company shall, and shall cause each of its Subsidiaries to, prepay 100% ofShared Permitted Prepayment Asset Sale Proceeds of any Permitted PrepaymentAsset Sales received by the Company after such Shared Proceeds Trigger to theOther Prepayment Indebtedness within the applicable Required Payment Period; providedthat, notwithstanding the foregoing, if and for so long as any Default or Eventof Default is continuing hereunder, the Company shall and shall cause each ofits Subsidiaries to 

 

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prepay 100% of theNet Cash Proceeds of any Pledged Entity Asset Sales to the Mandatory PrepaymentIndebtedness within the applicable Required Payment Period;

 

provided that, in the case of clauses (i) and (ii) above,if and for so long as no Default or Event of Default is continuing hereunderand the Company has delivered a Reinvestment Certificate within the applicableRequired Payment Period for such Permitted Prepayment Asset Sale, up to 50% ofthe Shared Permitted Prepayment Asset Sale Proceeds (other than the Dispositionof any of the Banorte Shares) may be used for Investments in long-termproductive assets used in the Company’s Core Business during the ReinvestmentPeriod for such Permitted Prepayment Asset Sale; provided, further,that any such amount of Shared Permitted Prepayment Asset Sale Proceeds usedfor Investments in long-term productive assets used in the Company’s CoreBusiness shall not be counted against the thresholds in clauses (i) and (ii) above;provided, further, that if all or any portion of such SharedPermitted Prepayment Asset Sale Proceeds is not ultimately applied to suchInvestments within the Reinvestment Period pursuant to the preceding proviso,any remaining portion of such Shared Permitted Prepayment Asset Sale Proceedsshall be applied to prepay the Mandatory Prepayment Indebtedness or the OtherPrepayment Indebtedness, as applicable pursuant to the thresholds in clauses (i) and(ii) above, on the Required Repayment Date.  Notwithstanding anything herein to thecontrary, 100% of the Net Cash Proceeds of any Disposition of any of theBanorte Shares shall be applied to the prepayment of the Mandatory PrepaymentIndebtedness or the Other Prepayment Indebtedness, as applicable pursuant tothe thresholds in clauses (i) and (ii) above, within the applicableRequired Payment Period, and none of the Net Cash Proceeds thereof may be usedfor Investments in long-term productive assets in the Company’s Core Businessor any purpose other than prepayment of the Mandatory Prepayment Indebtednessor Other Prepayment Indebtedness, as applicable.

 

(b)                                 The Company shall, and shall cause eachof its Subsidiaries to, apply 100% of the Net Cash Proceeds of any ProhibitedCollateral Sale to the prepayment of the Mandatory Prepayment Indebtednesswithin the applicable Required Payment Period; provided, that, for theavoidance of doubt, nothing in this clause (b) shall be construed topermit the Company to Dispose of any of the Collateral.

 

(c)                                  In each Fiscal Year:

 

(i)                                                             the Company shall, and shall cause eachof its Subsidiaries to, prepay 100% of Shared Casualty Event Proceeds to theMandatory Prepayment Indebtedness within the applicable Required Payment Perioduntil such time that the amount of Shared Proceeds received by the Company andits Subsidiaries exceeds US$50,000,000 (or the US Dollar equivalent thereof) insuch Fiscal Year; and

 

(ii)                                                          if, at any time during such Fiscal Year,a Shared Proceeds Trigger occurs, then after such Shared Proceeds Trigger anduntil the last day of such Fiscal Year, the Company shall, and shall cause eachof its Subsidiaries to, prepay 100% of such Shared Casualty Event Proceedsreceived by the Company after such Shared Proceeds Trigger to the OtherPrepayment Indebtedness within the applicable Required Payment Period; providedthat, notwithstanding the foregoing, if and for so long as any Default or Eventof Default is continuing hereunder, the Company shall and shall cause each ofits 

 

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Subsidiaries toprepay 100% of the Net Cash Proceeds of any Pledged Entity Casualty Event tothe Mandatory Prepayment Indebtedness within the applicable Required PaymentPeriod;

 

provided that, if and for so long as no Default or Event ofDefault is continuing hereunder, and (i) the Shared Casualty EventsProceeds of any Casualty Event do not exceed (A) US$10,000,000 (or the USDollar Equivalent thereof) without the written consent of the Majority Lenders(such consent not to be subject to a fee or to be unreasonably withheld) or (B) US$55,000,000(or the US Dollar Equivalent thereof) in any event and (ii) the Companyhas (A) filed a claim in respect of such Casualty Event within five (5) BusinessDays thereof and (B) delivered a Casualty Certificate within ten (10) BusinessDays following the filing of such claim, all (but no more than US$10,000,000(or the US Dollar Equivalent thereof) without the written consent of theMajority Lenders or US$55,000,000 (or the US Dollar Equivalent thereof) in anyevent) of such Shared Casualty Events Proceeds from such Casualty Event may beused to Restore any such affected Properties during the Reinvestment Period; provided,further, that any such amount of Shared Casualty Events Proceeds fromsuch Casualty Event used to Restore any such affected Properties shall not becounted against the thresholds in clauses (i) and (ii) above; provided,further, that if all or any portion of such Shared Casualty Events Proceedsfrom such Casualty Event is not ultimately applied to Restore any affectedProperties within the Reinvestment Period pursuant to the preceding proviso,any remaining portion of such Shared Casualty Events Proceeds from suchCasualty Event shall be applied to prepay the Mandatory Prepayment Indebtednessor the Other Prepayment Indebtedness, as applicable pursuant to the thresholdsin clauses (i) and (ii) above, on the Required Repayment Date.

 

(d)                                 Following an Excess Cash Year, dependingon the Leverage Ratio determined as of the last day of such Excess Cash Year,the Company shall apply the following percentage of Excess Cash for such ExcessCash Year to the prepayment of the Mandatory Prepayment Indebtedness:

 

| **Leverage Ratio**            | ** ** | **Percentage of Excess Cash** |
|-------------------------------|------------|-------------------------------|
| Equal or Higher  than 3.5:1.0 |       | 75%                           |
| Lower than  3.5:1.0           |       | 0%                            |

 

Such prepayment shall be made no later than onehundred and twenty (120) days following the end of each Fiscal Year; providedthat if such prepayment is made prior to the date on which the financialstatements described in Section 6.01(a) (*Financial Statements and Other Information*) for such ExcessCash Year are required to be delivered, and the amount of such prepayment (the “PreliminaryAmount”) is less than the amount determined to be due based upon thefinancial statements delivered by the Company pursuant to Section 6.01(a) (*Financial Statements and Other Information*)(the “Actual Amount”), the Company shall pay the difference between thePreliminary Amount and the Actual Amount within five (5) Business Daysfollowing the date on which the certificate delivered pursuant to Section 6.01(c)(ii) (*Financial Statements and Other Information*)is required to be delivered.

 

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(e)                                  The Company shall apply the ApplicableEquity Percentage of the Net Cash Proceeds of any Equity Issuance to prepaymentof the Mandatory Prepayment Indebtedness within five (5) Business Daysfollowing the receipt thereof.

 

(f)                                   If the Company declares a dividend inrespect of its common stock pursuant to Section 7.04(e) (*Restricted Payments*), the Company shall,within two (2) Business Days prior to the first payment thereof to theholders of such common stock, prepay to the Mandatory Prepayment Indebtednessan amount equal to 150% of the amount of the dividend declared.

 

(g)                                  The Company shall, and shall cause eachof its Subsidiaries to, apply 100% of the Net Cash Proceeds of the issuance ofany Indebtedness of the Company or any of its Subsidiaries (other than theissuance of Indebtedness permitted by Section 7.16 (*Limitations on Incurrence of Additional Indebtedness*))to prepayment of the Other Prepayment Indebtedness within five (5) BusinessDays following the receipt thereof.

 

(h)                                 If the Company incurs any PermittedRefinancing Indebtedness with respect to any Other Prepayment Indebtedness(including any partial Refinancings thereof), and such Permitted RefinancingIndebtedness consists of:

 

(i)                                                             Permitted Refinancing Indebtedness raisedin the debt capital markets, the Company shall apply 100% of the Net CashProceeds of such Permitted Refinancing Indebtedness to prepayment of the OtherPrepayment Indebtedness within five (5) Business Days following thereceipt thereof; or

 

(ii)                                                          any other Permitted RefinancingIndebtedness, the Company shall apply 100% of the Net Cash Proceeds of suchPermitted Refinancing Indebtedness to prepayment of the Mandatory PrepaymentIndebtedness within five (5) Business Days following the receipt thereof.

 

(i)                                     If the Company or any of its Subsidiariesdirectly or indirectly make any Optional Other Prepayment (other than the useof the proceeds of Permitted Refinancing Indebtedness to prepay the BBVA Loan(and, in the circumstances described in clause (h)(i) above, the MinorityDerivative Counterparty Loans) or the Bancomext Loan, provided that, ifapplicable, any mandatory prepayment is made in respect of the incurrence ofsuch Permitted Refinancing Indebtedness pursuant to clause (h) above), theCompany shall prepay within five (5) Business Days following the datethereof, an amount equal to the Required Amount (as defined below) to theMandatory Prepayment Indebtedness (or, in the case of an Optional OtherPrepayment to the BBVA Loan, to the Loans). For purposes of this clause (i), the “Required Amount” shall bean amount equal to (i) the amount of the Mandatory Prepayment Indebtedness(or, in the case of an Optional Other Prepayment to the BBVA Loan, the Loans),multiplied by (ii) a fraction, the numerator of which is equal to theamount of the Optional Other Prepayment, and the denominator of which is equalto the aggregate principal amount of the Reporting Indebtedness in respect ofwhich the Optional Other Prepayment is being made, as determined immediatelyprior to the making of the Optional Other Prepayment.

 

(j)                                    Any mandatory prepayment of MandatoryPrepayment Indebtedness shall be made on a prorata basisaccording to the MPP Pro Rata Amounts for such Mandatory

 

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Prepayment Indebtedness, as applicable.  Any mandatory prepayment of Other PrepaymentIndebtedness shall be made on a prorata basis according to theOther Prepayment Pro Rata Amounts for such Other Prepayment Indebtedness.

 

(k)           Anymandatory prepayment of the Loans shall be paid in US Dollars and applied  (x) to all Loans on a proratabasis according to each Lender’s Pro Rata Share and (y) to reduce prorata the amount of each of the last six (6) (or, if at the time ofsuch repayment six (6) or less are remaining, all remaining) installmentsof principal set forth in Section 2.06 (*Repaymentof the Loans*) and thereafter to the remaining installments ofprincipal on a prorata basis.

 

2.06.       Repaymentof the Loans.

 

The Company shall repay the principal amount of the Loans in accordance with the following amortizationschedule:

 
| **Repayment Date**    | ** ** | **Amount**    | ** ** |
|-----------------------|------------|---------------|------------|
| July 21, 2010    |       | US$25,000,000 |       |
| January 21, 2011 |       | US$25,000,000 |       |
| July 21, 2011    |       | US$25,000,000 |       |
| January 21, 2012 |       | US$25,000,000 |       |
| July 21, 2012    |       | US$50,000,000 |       |
| January 21, 2013 |       | US$50,000,000 |       |
| July 21, 2013    |       | US$50,000,000 |       |
| January 21, 2014 |       | US$50,000,000 |       |
| July 21, 2014    |       | US$50,000,000 |       |
| January 21, 2015 |       | US$75,000,000 |       |
| July 21, 2015    |       | US$75,000,000 |       |
| January 21, 2016 |       | US$75,000,000 |       |
| July 21, 2016    |       | US$75,000,000 |       |
| January 21, 2017 |       | US$18,282,700 |       |

 

provided that the final installment payable by the Company onthe Maturity Date shall be in an amount, if such amount is different from thatspecified above, sufficient to repay the aggregate principal amount of allLoans outstanding on the Maturity Date.

 

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2.07.       Interest.

 

(a)           Subjectto the provisions of clause (c) below, the Loans shallbear interest on the outstanding principal amount thereof for each InterestPeriod at a rate per annum equal to LIBOR plus theApplicable Margin.

 

(b)           Intereston each Loan shall be paid in arrears on each Interest Payment Date.  Interest shall also be paid on the date ofany prepayment of Loans under Section 2.04 (*Voluntary Prepayments)* and Section 2.05 (*Mandatory Prepayments*) with respect to theportion of the Loans so prepaid, and upon payment (including prepayment) infull of the Loans.  During the existenceof any Event of Default, interest shall be payable on demand.

 

(c)           Uponthe occurrence and during the continuation of an Event of Default, any amountsoutstanding under the Loans (including any overdue principal and, to the extentpermitted by applicable law, overdue interest or other amount payablehereunder) shall bear interest payable on demand, for each day from the datepayment thereof was due to the date of actual payment, at a rate per annumequal to the Post-Default Rate.

 

2.08.       Fees.  On theClosing Date, the Company shall pay to each Initial Lender an up-front fee inUS Dollars, free and clear of any and all withholding or equivalent taxes, of0.25% of each Initial Lender’s Terminated Derivative Obligation.

 

2.09.       Computationof Interest and Fees.

 

(a)           Computationof the Alternate Base Rate, when the Alternate Base Rate is determined based onthe Administrative Agent’s prime rate, shall be calculated on the basis of ayear of three hundred sixty-five (365) or three hundred sixty-six (366) days,as the case may be, and the actual number of days elapsed (including the firstday but excluding the last day).  Allother computations of interest and fees which are computed on a per annum basisshall be calculated on the basis of a year of three hundred sixty (360) daysand the actual number of days elapsed (including the first day but excludingthe last day).

 

(b)           Eachdetermination of LIBOR and the Alternate Base Rate by the Administrative Agentshall be conclusive and binding on the Company and the Lenders in the absenceof manifest error.

 

2.10.       Paymentsby the Company.

 

(a)           Subjectto Section 3.01 (*Taxes*), allpayments to be made by the Company shall be made without condition or deductionfor any set-off, counterclaim or other defense. Except as otherwise expressly provided herein, all payments by theCompany shall be made to the Administrative Agent for the account of theLenders to the Administrative Account and shall be made in US Dollars inimmediately available funds, no later than 11:00 A.M. (New York City time)on the date specified herein.  TheAdministrative Agent will promptly distribute to each Lender its Pro Rata Share(or other applicable share as expressly provided herein) of such payment inlike funds as received by wire from the Company to such Lender’s LendingOffice.  Any payment received by theAdministrative Agent later than 11:00 A.M. (New York City time) may bedeemed, at the election of the Administrative Agent to have been received onthe following Business Day, and any applicable interest or fee shall continueto accrue.

 

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(b)           TheCompany hereby directs the Administrative Agent to establish and maintain forand on behalf of the Lenders the following “Administrative Account”: the“Gruma — Loan Payment AC.”  TheAdministrative Account shall be maintained by the Administrative Agent for thebenefit of the Lenders.  None of theAdministrative Agent, the Company nor any other Person claiming on behalf of orthrough the Company or the Administrative Agent shall have any right orauthority, whether express or implied, to close or make use of, or, except asexpressly provided herein, withdraw any funds from the AdministrativeAccount.  The Administrative Agent shalldisburse funds deposited in the Administrative Account in accordance with thisAgreement.  Funds retained in theAdministrative Account shall remain uninvested. The Administrative Agent shall reconcile the Administrative Account on adaily basis.  Unless otherwise agreed toby the Lenders, no checks shall be written from the Administrative Account.

 

(c)           Subjectto the provisions set forth in the definition of “Interest Period”, wheneverany payment is due on a day other than a Business Day, such payment shall bemade on the following Business Day, and such extension of time shall in suchcase be included in the computation of interest.

 

(d)           Unlessthe Administrative Agent receives notice from the Company prior to the date onwhich any payment is due to the Lenders that the Company will not make suchpayment in full as and when required, the Administrative Agent may assume thatthe Company has made such payment in full to the Administrative Agent on suchdate in immediately available funds and the Administrative Agent may (but shallnot be so required), in reliance upon such assumption, distribute to eachLender on such due date an amount equal to the amount then due suchLender.  If and to the extent the Companyhas not made such payment in full to the Administrative Agent, each Lendershall forthwith on demand repay to the Administrative Agent the amountdistributed to such Lender to the extent not paid by the Company, together withinterest thereon calculated on such amount at the Federal Funds Rate for eachday from the date such amount is distributed to such Lender until the daterecovered by the Administrative Agent; provided that if any amountremains unpaid by any Lender for more than five (5) Business Days, suchLender shall pay interest thereon to the Administrative Agent at a rate perannum equal to the Alternate BaseRate plus theApplicable Margin then in effect plus two percent (2%).

 

2.11.       Sharingof Payments, Etc.  If, other than asexpressly provided elsewhere herein, any Lender shall obtain on account of theLoans made by it any payment (whether voluntary, involuntary, through the exerciseof any right of set-off, or otherwise) in excess of its Pro Rata Share of suchpayment (or other share contemplated hereunder), such Lender shall immediately (a) notifythe Administrative Agent of such fact, and (b) purchase (for cash at facevalue) Participations in the Loans of the other Lenders to the extent necessaryto cause such purchasing Lender to share the benefit of all such excesspayments prorata with each of them; provided, however,that (A) if any such Participations are purchased and all or any portionof such excess payment is thereafter recovered from the purchasing Lender, suchParticipations shall, to that extent, be rescinded and each other Lender shallrepay to the purchasing Lender the purchase price paid therefor, together with anamount equal to such paying Lender’s ratable share (according to the proportionof (i) the amount of such paying Lender’s required repayment to (ii) thetotal amount so recovered from the purchasing Lender) of any interest or otheramount paid or payable by the purchasing Lender in respect of the total amountso recovered, and (B) the 

 

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provisions of this clause (b) shall not beconstrued to apply to any payment made by the Company pursuant to and in accordancewith the express terms of this Agreement or any payment obtained by a Lender asconsideration for the assignment of or sale of a participation in any of itsLoans to any Assignee or Participant, other than to the Company or anySubsidiary thereof (as to which the provisions of this clause (b) shallapply).  The Company agrees that anyLender so purchasing an interest from another Lender may, to the fullest extentpermitted by law, exercise all its rights of payment (including the right ofset-off) with respect to such participation as fully as if such Lender were thedirect creditor of the Company in the amount of such participation.  The Administrative Agent will keep records(which shall be conclusive and binding in the absence of manifest error) ofinterests purchased under clause (b) above and will in each case notifythe Lenders and the Company following any such purchases or repayments.  Each Lender that purchases an interest in theLoans pursuant to clause (b) above shall from and after such purchase havethe right to give all notices, requests, demands, directions and othercommunications under this Agreement with respect to the portion of theObligations purchased to the same extent as though the purchasing Lender werethe original owner of the Obligations purchased.

 

2.12.       Promiseto Pay.  The Company agrees to paythe principal amount of the Loans in installments on the dates and in theamounts set forth in Section 2.06 (*Repaymentof the Loans*) with a final installment on the Maturity Date, andfurther agrees to pay all unpaid interest accrued thereon, in accordance withthe terms of this Agreement and the Notes.

 

ARTICLEIIITAXES, YIELD PROTECTION AND ILLEGALITY

 

3.01.       Taxes.

 

(a)           Anyand all payments by the Company to or for the account of any Lender or theAdministrative Agent pursuant to this Agreement and any other Loan Documentshall be made free and clear of, and without deduction or withholding for, anyIndemnified Taxes or Other Taxes except to the extent such deduction orwithholding is required by applicable law.

 

(b)           Inaddition, the Company shall pay all Other Taxes to the relevant GovernmentalAuthority in accordance with applicable law.

 

(c)           Ifthe Company shall be required by law to deduct or withhold any IndemnifiedTaxes or Other Taxes from or in respect of any sum payable hereunder or underany other Loan Document to any Lender or the Administrative Agent, then:

 

(i)                    the sumpayable shall be increased as necessary so that, after making all requireddeductions and withholdings (including deductions and withholdings applicableto additional sums payable under this Section 3.01), such Lender or theAdministrative 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;

 

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(ii)                   the Companyshall make such deductions and withholdings;

 

(iii)                  the Companyshall pay the full amount deducted or withheld to the relevant GovernmentalAuthority in accordance with applicable law; and

 

(iv)                  in the eventof an increase, after the date of this Agreement, in the Mexican withholdingtax rate to a rate in excess of the rate applicable to each Lender party heretoon the date hereof, the Company shall also pay to each Lender or theAdministrative Agent for the account of such Lender, at the time interest ispaid, all additional amounts that such Lender specifies as necessary topreserve the after-tax yield such Lender would have received if such IndemnifiedTaxes or Other Taxes had not been imposed;

 

provided, however, that the Company shall not berequired, except during an Event of Default (including with respect to paymentsused to cure an Event of Default), to increase any such amounts payable to anyLender or the Administrative Agent with respect to withholding tax in excess ofthe rate applicable to a Lender that is a Foreign Financial Institution.

 

(d)           Subjectto the proviso contained in the last paragraph of Section 3.01(c) above,the Company agrees to indemnify and hold harmless each Lender and theAdministrative Agent for the full amount of (i) Indemnified Taxes and (ii) OtherTaxes (including deductions and withholdings applicable to additional sumspayable under this Section 3.01) in the amount that such Lender or theAdministrative Agent specifies as necessary to preserve the after-tax yieldsuch Lender or the Administrative Agent would have received if such IndemnifiedTaxes or Other Taxes had not been imposed, and any liability (including penalties,interest, additions to tax and expenses) arising therefrom or with respectthereto, whether or not such Indemnified Taxes or Other Taxes were correctly orlegally asserted.

 

(e)           Withinthirty (30) days after the date of any payment by the Company of IndemnifiedTaxes or Other Taxes, the Company shall furnish to the Administrative Agent(which shall forward the same to each Lender) the original or a certified copyof a receipt evidencing payment thereof or other evidence satisfactory to theapplicable Lender in respect of whom such Indemnified Taxes or Other Taxes havebeen paid.

 

(f)            EachLender shall, at or before the time it becomes a Lender hereunder andotherwise, if reasonably requested by the Company or the Administrative Agent(as the case may be), promptly furnish to the Company or the AdministrativeAgent (as the case may be), such forms, documents or other information as maybe required by the Mexican tax law applicable at such time and which suchLender is eligible to provide under applicable law, in order to allow theCompany to make the corresponding gross up payments to such Lender and toestablish any available exemption from, or reduction in the amount of,applicable tax rates that the company may be required to withhold in accordancewith Mexican tax law; provided, however, that compliance withrequirements under this clause (f) shall not require registration of aLender as a Foreign Financial Institution or require a Lender to discloseinformation regarding the Lender’s tax affairs or computations or owners thatsuch Lender in good faith considers to be confidential or otherwisedisadvantageous to disclose (including, in the case of a Lender that is a taxtransparent entity, any documentation from its owners) or would expose such Lenderto any 

 

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unindemnified cost, risk or expense, or to provide anydocuments, forms, or other evidence that it is not legally entitled to provide.The Lenders agree that, for the avoidance of doubt, the provision of documentsor other information relating solely to identity, nationality, residence orother similar information regarding a Lender (but not its owners) would not,absent extraordinary circumstances, be confidential or otherwise disadvantageousto the Lenders.

 

(g)           Shouldany Lender become subject to Taxes and not be entitled to indemnification underSection 3.01(c) or Section 3.01(d) with respect to Taxesimposed by the relevant Governmental Authority, the Company shall take suchsteps as the Lender shall reasonably request at the expense of the Lender toassist the Lender to recover such Taxes.

 

3.02.       Illegality.

 

(a)           Ifany Lender determines that any Requirement of Law has made it unlawful, or thatany Governmental Authority has asserted that it is unlawful, for any Lender orits applicable Lending Office to make or maintain its Loan contemplated by thisAgreement (and, in the reasonable opinion of such Lender, the designation of adifferent applicable Lending Office would either not avoid such unlawfulness orwould be disadvantageous to such Lender), then, on notice thereof by suchLender to the Company through the Administrative Agent, such Lender, togetherwith all other Lenders giving notice, shall be an “Affected Lender” andby written notice to the Company and to the Administrative Agent:

 

(i)                    anyobligation of such Affected Lender to make or continue Loans of that type shallbe suspended until the circumstances giving rise to such determination nolonger exist; and

 

(ii)                   subject to Section 3.09(*Substitution of Lender*), suchLender’s Loan shall be prepaid by the Company, together with accrued and unpaidinterest thereon and all other amounts payable to such Lender by the Companyunder the Loan Documents, on or before such date as shall be mandated by suchRequirement of Law (such prepayment not being shared with any Lenders not soaffected).

 

(b)           Ifany Lender determines that any Requirement of Law has made it unlawful, or thatany Governmental Authority has asserted that it is unlawful or restricts theauthority of such Lender to purchase or sell, or to take deposits of, USDollars in the London interbank market, or to determine or charge interestrates based upon LIBOR (and, in the reasonable opinion of such Lender, thedesignation of a different applicable Lending Office would either not avoidsuch unlawfulness or would be disadvantageous to such Lender), then, on noticethereof by such Lender to the Company through the Administrative Agent, suchLender, together with all other Lenders giving notice, shall also be anAffected Lender and by written notice to the Company and to the AdministrativeAgent:

 

(i)                    theobligation of such Affected Lender to make or continue Loans bearing interestrates based on LIBOR shall be suspended until the circumstances giving rise tosuch determination no longer exist; and

 

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(ii)                   subject to Section 3.09(*Substitution of Lender*), theLoan of such Affected Lender shall bear interest at the Alternate Base Rate plus the Applicable Margin then in effect until thecircumstances giving rise to such determination no longer exist.

 

(c)           Forpurposes of this Section 3.02, a notice to the Company by any Lender shallbe effective as to each identified Loan, if lawful, on the last day of theInterest Period currently applicable to such Loan; in all other cases suchnotice shall be effective on the date of receipt by the Company.

 

3.03.       Inabilityto Determine Rates.

 

(a)           Ifthe Administrative Agent determines (which determination will be conclusiveabsent manifest error) that (a) US Dollar deposits are not being offeredto banks in the London interbank market for the applicable amount and InterestPeriod of the Loans, (b) adequate and reasonable means do not exist fordetermining LIBOR applicable to such Interest Period, or (c) LIBOR for theLoans does not adequately and fairly reflect the cost to the Majority Lendersof making or maintaining the Loans (as advised by the Majority Lenders inwriting to the Administrative Agent), the Administrative Agent will promptlynotify the Company and each Lender. Thereafter, until the Administrative Agent revokes such notice, theLoans shall bear interest at the Alternate Base Rate plus the Applicable Margin then in effect.

 

3.04.       IncreasedCosts and Reduction of Return.

 

(a)           Ifany Lender reasonably determines that, due to either (i) the introductionof, or any change in, or any change in the interpretation or application of,any Requirement of Law or (ii) the compliance by such Lender with anyguideline, directive or request from any central bank or other GovernmentalAuthority (whether or not having the force of law), there shall be any increasein the cost to such Lender of agreeing to make or making, funding ormaintaining its Loan to the Company or to reduce any amount receivablehereunder (in either case other than payment on account of any Taxes referredto in Section 3.01 (*Taxes*)or any Excluded Taxes), then the Company shall be liable for, and shall fromtime to time, upon demand (with a copy of such demand to be sent to theAdministrative Agent), promptly pay to the Administrative Agent for the accountof such Lender, additional amounts as are sufficient to compensate such Lenderfor such increased costs or reduced amount receivable.

 

(b)           Ifany Lender reasonably determines that (i) the introduction of any CapitalAdequacy Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) anychange in the interpretation or administration of any Capital AdequacyRegulation by any central bank or other Governmental Authority charged with theinterpretation or administration thereof, or (iv) compliance by the Lender(or its Lending Office) with any Capital Adequacy Regulation affects or wouldaffect the amount of capital required or expected to be maintained by suchLender or any corporation Controlling such Lender and determines that theamount of such capital is increased as a consequence of its Loans orobligations under this Agreement, then, upon demand of such Lender to theCompany through the Administrative Agent, the Company shall pay to theAdministrative Agent for the account of such Lender, from time to time asspecified by such Lender, additional amounts sufficient to compensate theLender for such increase.

 

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3.05.       FundingLosses.

 

(a)           TheCompany shall reimburse each Lender and hold each Lender harmless from (in eachcase by prompt payment of any relevant amounts to the Administrative Agent forthe account of such Lender) any loss, cost or expense that the Lender maysustain or incur, including any loss incurred in obtaining, liquidating orredeploying deposits bearing interest by reference to LIBOR from third parties(“Funding Losses”) as a consequence of any of the following events(each, a “Breakage Event”):

 

(i)                    the failureof the Company to make on a timely basis any scheduled payment of principal ofany Loan;

 

(ii)                   the failureof the Company to borrow the Loans on the Closing Date proposed in the Noticeof Borrowing;

 

(iii)                  the failureof the Company to make any voluntary prepayment in accordance with any noticedelivered under Section 2.04 (*VoluntaryPrepayments*) or mandatory prepayment in accordance with Section 2.05(*Mandatory Prepayments*); or

 

(iv)                  theprepayment or repayment (including pursuant to Section 2.04 (*Voluntary Prepayments*), Section 2.05(*Mandatory Prepayments*) or Section 2.06(*Repayment of the Loans*), but notincluding any mandatory prepayments pursuant to Section 2.05(c)) or otherpayment (including after acceleration thereof) of any Loan on a day that is notthe last day of the relevant Interest Period therefor (including as a result ofthe replacement of a Lender with a Substitute Lender pursuant to Section 3.09(*Substitution of Lender*);

 

including in each case (x) any such loss orexpense arising from the liquidation or reemployment of funds obtained by suchLender to maintain such Loan or from fees payable to terminate the depositsfrom which such funds were obtained and (y) any customary and reasonableadministrative fees charged by such Lender in connection therewith.

 

(b)           TheFunding Losses to any Lender shall be deemed to include an amount determined bysuch Lender to be the excess, if any, of (i) the amount of interest thatwould have accrued on the principal amount of such Loan had such event notoccurred, at an amount equal to LIBORfor theInterest Period during which such Breakage Event occurs, for the period fromthe date of such Breakage Event to the end of the then current Interest Periodtherefor, over (ii) the amount of interest that would accrue on suchprincipal amount for such period at the interest rate which such Lenderdetermines in good faith would bid were it to bid, at the beginning of suchperiod, for US Dollar deposits of a comparable amount and period from otherbanks in the Eurodollar market.

 

3.06.       Reserveson Loans.  The Company shall pay toeach Lender, as long as such Lender shall be required to maintain reserves withrespect to liabilities or assets consisting of or including Eurocurrency fundsor deposits (currently known as “Eurocurrency Liabilities”), additionalinterest on the unpaid principal amount of the Loan of such Lender equal to theactual costs of such reserves allocated to the Loan by such Lender (asdetermined by such Lender in good faith, which determination shall beconclusive, absent manifest error), payable on each date 

 

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on which interest is payable on the Loans, providedthat the Company shall have received at least fifteen (15) days’ prior writtennotice (with a copy to the Administrative Agent) of such additional interestfrom such Lender.  If a Lender fails togive notice fifteen (15) days prior to the relevant Interest Payment Date, suchadditional interest shall be payable fifteen (15) days from receipt of suchnotice.

 

3.07.       Certificatesof Lenders.

 

(a)           Exceptas otherwise specified herein, any Lender claiming reimbursement orcompensation under this Article III shall deliver to the Company (with acopy to the Administrative Agent) a certificate setting forth in reasonabledetail the amount payable to such Lender hereunder and the reasons for suchclaim and such certificate shall be conclusive and binding on the Company inthe absence of manifest error.  TheCompany shall promptly pay the amount shown as due on any such certificate tothe Administrative Agent for the account of such Lender, but in no case laterthan fifteen (15) days after receipt thereof.

 

(b)           EachLender agrees to notify the Company of any claim for reimbursement pursuant to Section 3.04(*Increased Costs and Reduction of Return*)or 3.06 (*Reserves on Loans*) notlater than one hundred eighty (180) days after any officer of such Lenderresponsible for the administration of this Agreement receives actual knowledgeof the event giving rise to such claim. If any Lender fails to give such notice, the Company shall only berequired to reimburse or compensate such Lender, retroactively, for claimspertaining to the period of one hundred eighty (180) days immediately precedingthe date the claim was made.  However, ifthe change in a Requirement of Law (including any Capital Adequacy Regulation)giving rise to such increased cost or reduction is retroactive, then the onehundred eighty (180)-day period referred to above will be extended to includethe period of retroactive effect thereof.

 

3.08.       Changeof Lending Office.  Each Lenderagrees that, upon the occurrence of any event giving rise to an obligation ofthe Company under Section 3.01 (*Taxes*),Section 3.02 (*Illegality*), Section 3.04(*Increased Costs and Reduction of Return*)or Section 3.06 (*Reserves on Loans*)with respect to such Lender, it will, if requested by the Company, usereasonable efforts (subject to overall policy considerations of such Lender) todesignate another Lending Office for any Loans affected by such event or takeother action; provided that such Lender and its Lending Office suffer noeconomic, legal or regulatory disadvantage, with the object of avoiding theconsequence of the event giving rise to the obligation under any suchSection.  Nothing in this Section shallaffect or postpone any of the Obligations of the Company or the rights of anyLender provided in Section 3.01 (*Taxes*),Section 3.02 (*Illegality*), Section 3.04(*Increased Costs and Reduction of Return*)or Section 3.06 (*Reserves on Loans*).

 

3.09.       Substitutionof Lender.  Upon the receipt by theCompany from any Lender of a claim for compensation under Section 3.04 (*Increased Costs and Reduction of Return*)or Section 3.06 (*Reserves on Loans*),or giving rise to the operation of Section 3.02 (*Illegality*), the Company may, at itsoption, (i) request such Lender to use its best efforts to seek aSubstitute Lender willing to assume such Lender’s Loan or (ii) replacesuch Lender with a Substitute Lender or Substitute Lenders that shall succeedto the rights and obligations of such Lender under this Agreement uponexecution of an Assignment and Acceptance; provided, however,that such Lender shall not be replaced or removed hereunder until such Lenderhas been repaid in full 

 

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all amounts owed to it pursuant to this Agreement andthe other Loan Documents (including Section 2.09 (*Computation of Interest and Fees*), Section 3.01(*Taxes*), Section 3.04 (*Increased Costs and Reduction of Return*), Section 3.05(*Funding Losses*) and Section 3.06(*Reserves on Loans*)) unless anysuch amount is being contested by the Company in good faith.

 

3.10.       Survival.  The agreements and obligations of the Companyin this Article III shall survive the payment of all the Obligations.

 

ARTICLEIVCONDITIONS PRECEDENT

 

4.01.       Conditionsto Closing Date.  The obligation ofeach Initial Lender to make its Loan on the Closing Date is subject to the satisfaction (or waiverin writing by each Initial Lender in accordance with Section 10.01 (*Amendments and Waivers*)) of each of thefollowing conditions precedent:

 

(a)           LoanAgreement and Notes.  This Agreement,each other Loan Document and the Intercompany Revolving Facilities shall havebeen duly executed by each of the parties hereto and thereto, the Notes datedon the Closing Date shall have been duly executed by the Company, and theAdministrative Agent (or its counsel) and each Initial Lender shall havereceived from the Company a counterpart of this Agreement and each other LoanDocument and Intercompany Revolving Facility, of such Initial Lender’s Note andall related documentation, each in form and substance satisfactory to theInitial Lenders and signed by the Company.

 

(b)           OrganizationalDocuments; Resolutions;Incumbency.  The Administrative Agent shall have receivedcopies of:

 

(i)                    theOrganizational Documents of the Company and each of the Pledged Entities andIntercompany Lenders certified as of the Closing Date as true and correct andin full force and effect in their delivered form as of such date by (x) anappropriate Secretary or anAssistant Secretary ofthe Company, such Pledged Entity, or such Intercompany Lender, as the case maybe, as to effectiveness, and (y) in the case of the Company and anyPledged Entity or Intercompany Lender organized under the laws of Mexico, aMexican notary public as to authenticity;

 

(ii)                   allapplicable powers-of-attorney (*poderes*),designating the Persons authorized to execute this Agreement, the other LoanDocuments and the Intercompany Revolving Facilities on behalf of the Company,the Pledged Entities and the Intercompany Lenders, in each case (x) certifiedby a Mexican notary public (or a notary public in the jurisdiction under thelaws of which such Person is organized), (y) certified as of the ClosingDate by the Secretary or an Assistant Secretary of the Company, such PledgedEntity or such Intercompany Lender, as the case may be, and (z) includingauthority for acts of administration and to subscribe, indorse and issuenegotiable instruments (*títulos de crédito*);and

 

(iii)                  acertificate of the Secretary or Assistant Secretary of the Company (x) certifyingthe names and true signatures of the Senior Officers of the Company authorizedto execute and deliver this Agreement, all other Loan Documents and the

 

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IntercompanyRevolving Facilities to be delivered by the Company, the Pledged Entities andthe Intercompany Lenders hereunder and (y) attaching copies of alldocuments evidencing all necessary corporate action (including any necessary resolutions of the Board of Directors or of theshareholders of the Company, any Pledged Entity or Intercompany Lender) and governmental approvals, if any, withrespect to the authorization for the execution, delivery and performance ofeach such Loan Document and the transactions contemplated hereby and thereby,which certificates shall state that the resolutions or other informationreferred to in such certificates have not been amended, modified, revoked orrescinded as of the date of such certificates.

 

(c)           Authorizations.  The Administrative Agent shall have receivedevidence satisfactory to the Initial Lenders that all approvals, authorizationsor consents of, or notices to, or filings or registrations with, anyGovernmental Authority (including exchange control approvals) or third parties,if any, required in connection with the execution, delivery and performance bythe Company of this Agreement or any other Loan Document (including withoutlimitation, with respect to the Security Documents and the Intercompany RevolvingFacilities) have been obtained and are in full force and effect.  If no such approvals, authorizations,consents, notices or registrations are necessary, the Administrative Agentshall have received a certificate executed by a Senior Officer of the Companyso stating.

 

(d)           ProcessAgent.  The Administrative Agentshall have received (i) copies of irrevocable powers of attorney forlawsuits and collections (*poder irrevocable parapleitos y cobranzas*) granted by the Company, certified by a Mexicannotary public, in form reasonably satisfactory to the Initial Lenders,irrevocably appointing each of the Process Agent and the Alternate ProcessAgent to act as such on behalf of the Company under this Agreement and each ofthe other Loan Documents and (ii) an acceptance letter duly executed anddelivered by the Process Agent and the Alternate Process Agent dated on orprior to the date hereof pursuant to which each agent irrevocably consents to and accepts its appointment as Process Agent orAlternate Process Agent for the Company under and for the term of thisAgreement and each of the other Loan Documents that requires such anappointment in connection with any Proceeding relating to this Agreement or theNotes or the transactions contemplated under anyof the Loan Documents.

 

(e)           LegalOpinions.   The Administrative Agentshall have received (i) an opinion of Mijares, Angoita, Cortés y Fuentes,special Mexican counsel to the Company, substantially in the form of Exhibit D;(ii) an opinion of Milbank, Tweed, Hadley & McCloy LLP, specialNew York counsel to the Company, substantially in the form of Exhibit E-1;(iii) an opinion of Salvador Vargas Guajardo, General Counsel to theCompany, substantially in the form of Exhibit E-2; (iv) afavorable opinion of White &Case, S.C., specialMexican counsel to the Initial Lenders; and (v) a favorable opinion of CGSH, special New York counsel to the Initial Lenders.

 

(f)            Paymentof Fees.   The Administrative Agentshall have received evidence of payment of all fees and expenses then due andpayable under each of the Advisor Fee Letters and under this Agreement or theother Loan Documents, including trustees’ and advisors’ fees and AttorneyCosts, plus such additional amounts of Attorney Costs as shall constitute itsreasonable estimate of Attorney Costs incurred or to be incurred through theclosing proceedings, and any other fees required to be paid on or prior to theClosing Date.

 

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(g)           Changes in Condition.

 

(i)                    The representationsand warranties of the Company contained in this Agreement or in any other LoanDocument shall be true and correct as of the Closing Date, except to the extentthat such representations and warranties specifically refer to an earlier date,in which case they shall be true and correct as of such earlier date.

 

(ii)                   The Companyshall be in compliance with all of its covenants and agreements contained inthe Loan Documents and the Intercompany Revolving Facilities.

 

(iii)                  There shallnot have occurred since the date of the audited financial statements of theCompany and its Consolidated Subsidiaries described in clause (o) below, aMaterial Adverse Effect, except as otherwise disclosed in the Company’s publicfilings with the US Securities and Exchange Commission or the Comisión NacionalBancaria y de Valores prior to the date hereof and listed on Schedule 5.06(c) (*Existing Material Adverse Effects*).

 

(iv)                  No Defaultor Event of Default shall have occurred and be continuing either prior to orafter giving effect to the transactions (including any transactions withrespect to the Other Restructured Indebtedness) contemplated on the ClosingDate.

 

(v)                   There shallhave occurred no circumstance and/or event of a financial, political oreconomic nature in Mexico or in the international financial, banking or capitalmarkets that has a reasonable likelihood of having a Material Adverse Effect onthe Company and its Subsidiaries.

 

(vi)                  No defaultshall have occurred and be continuing on any material Indebtedness of theCompany or any of its Subsidiaries (including the Bank of America Facility andthe Bancomext-Gimsa Loan).

 

(vii)                 TheAdministrative Agent shall have received a certificate signed by the chieffinancial officer and one additional Senior Officer of the Company, dated as ofthe Closing Date, to the effect that, both before and after giving effect tothe transactions contemplated by the Loan Documents and the IntercompanyRevolving Facilities,, each of the conditions precedent in clauses (i) through(vi) above are true and correct.

 

(h)           Paymentof Interest and Fees under Confirmation. All interest and fees payable in respect of each Terminated DerivativeObligation pursuant to the Confirmations shall have been paid in US Dollars andin immediately available funds no later than 11:00 a.m. (New York Citytime) on the Closing Date.  For theavoidance of doubt, (x) such interest shall have been payable at a rateequal to (i) the sum of LIBOR plus 2.875% per annum from and including thedate of the Confirmation to but excluding September 21, 2009 and (ii) thesum of LIBOR plus 4.875% per annum from and including September 21, 2009to but excluding the Closing Date and (y) the fee payable to each InitialLender pursuant to the Confirmation shall be equal to 1.00% of each InitialLender’s Terminated Derivative Obligation (which fee has been paid prior to thedate hereof).

 

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(i)            ControlAgreements.  The Company shall haveentered into Control Agreements with each Initial Lender and the bank where theTemporary Loan Account for each Initial Lender is located, on terms andconditions satisfactory to such Initial Lender.

 

(j)            Security.

 

(i)                    Each of theSecurity Documents shall have been duly executed by the parties thereto in formand substance satisfactory to the Initial Lenders, and shall each be in full force and effect and, other than the Intercompany TrustAgreement and the Collateral Agency and Intercreditor Agreement, create afully perfected, valid,legally binding and enforceable first priority Lien and security interest inthe Collateral and the proceeds thereof in favor of the CollateralAgent on behalf of the Secured Parties upon the completion of the steps listedin clauses (iv), (v) and (vii) below, and the Collateral Agent (or its counsel) shall havereceived from the Company a counterpart of such Security Documents signed onbehalf of such party.

 

(ii)                   TheObligations shall be secured by a perfected first priority lien and securityinterest on the Collateral and the signatures of each of the Intercompany TrustAgreement, the Molinera Trust and the Gimsa Trust shall have been dulyformalized before a Mexican notary public.

 

(iii)                  TheCollateral Agent shall have received copies, duly notarized by a Mexican notarypublic, of (x) minutes of a meeting of the Shareholders or Board of Directorsof the Company approving (x) the transfer of the Gimsa Collateral to theGimsa Trust  and (y) the  transfer of the Molinera Collateral to theMolinera Trust as required under the Organizational Documents of Molinera, ineach case as required under the Organizational Documents of the Company.

 

(iv)                  The Trustee shall have received (x) all of the MolineraCollateral, endorsed in property to the Trustee and (y) a copy of the entryin the relevant corporate book of Molinera certifying the inscription of theMolinera Trust, duly notarized by a Mexican notary public.

 

(v)                   The Trustee shall have received all of the Gimsa Collateraldeposited into its brokerage account.

 

(vi)                  The Collateral Agent shall have received (x) anoriginal counterpart of the Molinera Trust and the Gimsa Trust and (y) acertificate by the Trustee (A) stating that the conditions precedentoutlined in clauses (iv) and (v) above have been satisfied and (B) evidencingthe Collateral Agent’s status as a beneficiary in first place (*fideicomisario en primer lugar*) under theMolinera Trust and the Gimsa Trust.

 

(vii)                 TheCollateral Agent shall have received all of the Gruma Corp. Collateral,indorsed in blank or to the Collateral Agent in form and substance satisfactoryto the Collateral Agent and shall have made all UCC filings with respect to theGruma Corp. Collateral as the Collateral Agent deems necessary or desirable toperfect the Collateral Agent’s first priority security interest in and Lien onthe Gruma Corp. Collateral.

 

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(viii)                TheCollateral Agent shall have received satisfactory evidence of notice andacknowledgment being delivered to the borrowers under the IntercompanyRevolving Facilities regarding the transfer of the rights of the IntercompanyLenders (other than Subsidiaries in the Gimsa Division) to the IntercompanyTrust Agreement.

 

(ix)                  TheCollateral Agent shall have received complete and accurate information from theCompany with respect to the name and the location of the principal place ofbusiness and chief executive office for the Company, Gimsa, Molinera and GrumaCorp.; all necessary UCC financings statements shall have been filed and allother filings and recordings shall have been made; and all applicable filingand recording fees and taxes shall have been paid or duly provided for by theCompany.  The Initial Lenders shall bereasonably satisfied that all Liens granted to the Collateral Agent withrespect to all Collateral are valid and effective and will be perfected and offirst priority.

 

(k)           LegalMatters.  No Requirement of Law,shall in the reasonable judgment of any Initial Lender, restrain, prevent, orimpose materially adverse conditions upon the execution and delivery of, andperformance under, the Loan Documents or the Intercompany Revolving Facilitiesor the transactions contemplated hereby and under the other Loan Documents andthe Intercompany Revolving Facilities and all corporate and other proceedingsand all documents and other legal matters in connection with the transactionscontemplated hereby and under the Loan Documents and the Intercompany RevolvingFacilities.

 

(l)            Restructuredor Refinanced Indebtedness.  TheOther Restructured Indebtedness shall have been executed and delivered by theCompany, and shall have been funded or settled by the counterparties thereto.

 

(m)          Deliveryof Reporting Indebtedness Documents. The Company shall have provided the Administrative Agent with copies ofall Contractual Obligations for all of the Reporting Indebtedness (suchContractual Obligations, the “Reporting Indebtedness Documentation”).

 

(n)           NoLitigation.  There shall be nopending or, to the best knowledge of the Company, threatened Proceeding(including a bankruptcy, *concurso*or other insolvency proceeding) with respect to this Agreement or the otherLoan Documents and the Intercompany Revolving Facilities or the transactionscontemplated hereby or thereby, or that could reasonably be expected to have aMaterial Adverse Effect.

 

(o)           Deliveryof Financial Statements.  TheAdministrative Agent shall have received (i) the audited financialstatements described in Section 6.01(a) (*Financial Statements and Other Information*) for the Fiscal Yearending on December 31, 2008; provided that such audited financialstatements may contain the “going concern” qualification disclosed in thefinancial statements contained in Item 18 of the Company’s annual report on Form 20-Ffiled with the US Securities and Exchange Commission on June 30, 2009 and (ii) theunaudited financial statements described in Section 6.01(b) (*Financial Statements and Other Information*)for the Fiscal Quarters ending on March 31, 2009 and June 30, 2009(or, with respect to Gruma Corp., on June 27, 2009).

 

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(p)           PatriotAct. The Administrative Agent shall have received (for itself and asrequested by any Initial Lender) any documents or information reasonablyrequired to obtain, verify and record information that identifies the Companyand its Subsidiaries, which information may include (but shall not be limitedto) the name and address of the Company and its Subsidiaries and any otherinformation that will allow such the Administrative Agent or such InitialLender, as applicable, to identify the Company and its Subsidiaries inaccordance with the Patriot Act.

 

(q)           Deliveryof Notice of Borrowing.  TheAdministrative Agent shall have received a Notice of Borrowing from the Companysigned by a Senior Officer of the Company.

 

(r)            Solvency.  The Company and each Pledged Entity, aftergiving effect to the transactions contemplated hereby and by the other LoanDocuments and the Intercompany Revolving Facilities, shall be Solvent and eachof the Administrative Agent and the Collateral Agent shall have received acertificate from the chief financial officer of the Company to such effect.

 

(s)            IntercompanyRevolving Facilities.  TheIntercompany Revolving Facilities and the Intercompany Trust Agreement shall bein full force and effect and the Administrative Agent and the Collateral Agentshall have copies of all definitive documentation (and any amendments thereto)and Contractual Obligations with respect to the Intercompany Revolving Facilitiesand the Intercompany Trust Agreement.

 

(t)            OtherDocuments.  The Administrative Agentshall have received such other certificates, powers of attorney, approvals,opinions, documents or materials as the Administrative Agent, the CollateralAgent or any Initial Lender (through the Administrative Agent) may reasonablyrequest.

 

ARTICLEVREPRESENTATIONS AND WARRANTIES

 

The Company represents and warrants to theAdministrative Agent and each Lender that:

 

5.01.       CorporateExistence and Power.  The Company andeach of its Subsidiaries:

 

(a)           isa corporation duly organized and validly existing under the laws of thejurisdiction of its organization and, to the extent applicable under the lawsof its jurisdiction of organization, is in good standing;

 

(b)           isqualified to do business in every jurisdiction where such qualification isrequired, except where the failure to be qualified has not had and could notreasonably be expected to have a Material Adverse Effect;

 

(c)           hasall requisite corporate power and authority and all requisite governmentallicenses, authorizations, consents and approvals to (i) conduct itsbusiness as now conducted and as proposed to be conducted and to own itsProperties, except to the extent that the failure to obtain any suchgovernmental license, authorization, consent or approval has not had and couldnot reasonably be expected to have a Material Adverse Effect, and (ii) execute,deliver and 

 

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perform all of its obligations under each of the LoanDocuments and the Intercompany Revolving Facilities and each other agreement orinstrument contemplated thereby to which it is or will be a party and receive aLoan hereunder; and

 

(d)           isin compliance with all Requirements of Law, except to the extent that thefailure to comply therewith has not had and could not reasonably be expected tohave a Material Adverse Effect.

 

5.02.       CorporateAuthorization; No Contravention.  Theexecution and delivery of, and performance by the Company under, this Agreementand each other Loan Document to which it is a party have been duly authorizedby all necessary corporate and, if required, stockholderaction and do not and will not:

 

(a)           contravenethe terms of the Company’s or any of its Subsidiaries’ OrganizationalDocuments; or

 

(b)           conflictor be inconsistent with or result in any breach, violation or contravention of(alone or with notice or the lapse of time or both), or the creation of anyLien under, or give rise toany right to accelerate or to require the prepayment, repurchase or redemptionof any obligation under or constitute a default in respect of (i) any document evidencing anyContractual Obligation to which the Company or any of its Subsidiaries is aparty or (ii) any Requirement of Law to which the Company or any of itsSubsidiaries or their respective Property is subject.

 

5.03.       NoAdditional Authorizations.  Noapproval (including exchange control approval), consent, exemption,authorization, registration or other action by, or notice to, or filing with,any Governmental Authority or other third party is necessary or required inconnection with the execution, delivery or performance by, or enforcementagainst, the Company of this Agreement or any other Loan Document other than ashave been obtained pursuant to Section 4.01(c) (*Authorizations*) and Section 4.01(j)(iii) (*Security*).

 

5.04.       BindingEffect.  This Agreement has been, andeach other Loan Document, when delivered hereunder, will have been, dulyexecuted and delivered by the Company. This Agreement constitutes, and each other Loan Document when sodelivered will constitute, a legal, valid and binding obligation of theCompany, enforceable against the Company in accordance with its terms, exceptas enforceability may be limited by applicable bankruptcy, insolvency, *concurso mercantil*, *quiebra*, or similar laws affecting theenforcement of creditors’ rights generally or by equitable principles relatingto enforceability (regardless of whether enforcement thereof is sought in aProceeding at law or in equity).

 

5.05.       Litigation.  Except as disclosed in Schedule 5.05 (*Pending Litigation*), there are noProceedings pending, or to the best knowledge of the Company, threatened orcontemplated, at law, in equity, in arbitration or before any GovernmentalAuthority, by or against the Company or any of its Subsidiaries, which:

 

(a)           couldreasonably be expected to affect the legality, validity or enforceability ofthis Agreement or any other Loan Document, or any of the transactionscontemplated hereby or thereby; or

 

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(b)           couldreasonably be expected to have a material adverse effect on the ability of theCompany to perform its obligations under any Loan Document; or

 

(c)           that,in the aggregate, could reasonably be expected to have a Material AdverseEffect.

 

5.06.       FinancialInformation; No Material Adverse Effect; No Default; No Contingent Liabilities.

 

(a)           TheCompany’s audited consolidated financial statements for the Fiscal Year ended December 31,2008 (copies of which have been furnished to the Administrative Agent) (i) arecomplete and correct in all material respects, (ii) have been prepared inaccordance with Mexican GAAP applied on a consistent basis and fairly presentin accordance with Mexican GAAP the financial condition of the Company and itsConsolidated Subsidiaries as of such date and the results of their operationsfor the Fiscal Year ended December 31, 2008, and (iii) have beenaudited and certified by independent certified public accountants ofinternational standing.

 

(b)           TheCompany’s unaudited financial statements for each of the Fiscal Quarters ended March 31,2009 and June 30, 2009 (copies of which have been furnished to theAdministrative Agent) (i) are complete and correct in all materialrespects and (ii) have been prepared in accordance with Mexican GAAPapplied on a consistent basis and fairly present in accordance with MexicanGAAP the financial condition of the Company and its Consolidated Subsidiariesas of such date and the results of their operations for the period coveredthereby, subject to the absence of footnotes and to normal year-end auditadjustments.

 

(c)           Sincethe date of the most recent audited financial statements, there has occurred nodevelopment, event or circumstance which has had or could reasonably beexpected to have a Material Adverse Effect, except as otherwise disclosed inthe Company’s public filings with the US Securities and Exchange Commission orthe Comisión Nacional Bancaria y de Valores and listed on**Schedule 5.06(c) (*Existing Material Adverse Effects*).

 

(d)           Asof the Closing Date, neither the Company nor any of its Subsidiaries is indefault under or with respect to any Contractual Obligation in any respectwhich has had or could reasonably be expected to have a Material AdverseEffect, or that would, if such default had occurred after the Closing Date,create an Event of Default under Section 8.01(e) (*Cross-Default*).

 

(e)           Exceptas set forth on Schedule 5.06(e) (*MaterialContingent Liabilities, Forward or Long Term Commitments, Unrealized Losses*),none of the Company or its Consolidated Subsidiaries has any materialcontingent liabilities, material forward or long-term commitments or unrealizedlosses except as disclosed in the financial statements described in clauses (a) or(b) above.

 

5.07.       PariPassu.  The Obligations constitutedirect, unconditional and general obligations of the Company and rank at least *pari passu* in all respects with all otherunsecured and unsubordinated Indebtedness of the Company, except suchIndebtedness ranking senior by operation of law (and not by contract oragreement), which, in any event, is not material to the Company.  The Obligations rank at least *pari passu* in all respects with allSecured Indebtedness.

 

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5.08.       Taxes.  The Company and each of its Subsidiaries havetimely filed all federal (Mexican), state, provincial, local and foreign(non-Mexican) tax returns and reports required to be filed, and have timelypaid all taxes, assessments, fees and other governmental charges levied orimposed upon them or their Properties, including related interest andpenalties, otherwise due and payable, except (a) those which are beingcontested in good faith by appropriate proceedings and for which adequatereserves have been provided in accordance with Mexican GAAP (or, in the case ofPersons organized under laws of any other jurisdiction, the applicable GAAPtherein) and (b) those tax returns or taxes for which such failure to timelyfile or timely pay (as the case may be) could not reasonably be expected tohave a material adverse effect on the business, financial condition oroperations of the Company or such Subsidiary.

 

5.09.       EnvironmentalMatters.

 

(a)           Theon-going operations of the Company and each of its Subsidiaries are, and duringthe past five (5) years have been, in compliance in all material respectswith all applicable Environmental Laws except as set forth on Schedule 5.09 (*Environmental Matters*) or except to theextent that the failure to comply therewith has not had and could notreasonably be expected to have a Material Adverse Effect;

 

(b)           TheCompany and each of its Subsidiaries have obtained all material environmental,health and safety permits necessary or required for its operations, all suchpermits are in good standing, and the Company and each of its Subsidiaries isand has been in compliance in all material respects with all applicable termsand conditions of such permits, except as set forth on Schedule 5.09 (*Environmental Matters*) or except to theextent that the failure to obtain, and maintain in full force and effect, anysuch permit, or to the extent that failure to comply with the material termsthereof, has not had and could not reasonably be expected to have a MaterialAdverse Effect;

 

(c)           Neitherthe Company nor any of its Subsidiaries is conducting, or to the best knowledgeof the Company after reasonable investigation, is required to conduct, anyinvestigations or remediation of hazardous substances under any applicableEnvironmental Law at any property currently or formerly owned or operated bythe Company or any Subsidiary (including soils, groundwater, surface water,buildings or other structures) except as set forth on Schedule 5.09 (*Environmental Matters*) or except as hasnot had and could not reasonably be expected to have a Material Adverse Effect;and

 

(d)           Neitherthe Company nor any of its Subsidiaries has received any notice, demand,letter, claim or request for information indicating that it may be in violationof or subject to liability under any Environmental Law, including any liabilityfor any release of any hazardous substance on any third party property, or issubject to any order, decree, injunction or other arrangement with any GovernmentalAuthority relating to any Environmental Law, except as set forth on Schedule5.09 (*Environmental Matters*) orexcept as has not had and could not reasonably be expected to have a MaterialAdverse Effect.

 

5.10.       Compliancewith Social Security Legislation, Etc. The Company and each of its Subsidiaries is in compliance with allRequirements of Law relating to social security legislation, including all rules andregulations of INFONAVIT, IMSS and SAR except to the extent that 

 

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non­compliance therewith has not had during thepreceding five (5) calendar years, and could not be reasonably expected tohave, a Material Adverse Effect.

 

5.11.       Assets;Patents; Licenses; Insurance; Etc.

 

(a)           TheCompany and each of its Material Subsidiaries has good and marketable title to,or valid leasehold interests in, all Property that is reasonably necessary to,or used in the ordinary conduct of, or is otherwise material to its business,and has no knowledge of any pending or contemplated condemnation proceeding, orDisposition in lieu of such proceedings, with respect to such Property exceptas the foregoing may not reasonably be expected to have a Material AdverseEffect.

 

(b)           TheCompany and each of its Material Subsidiaries own or are licensed or otherwisehave the right to use all of the material trademarks, trade names, copyrights,patents, contractual franchises, licenses, authorizations, other intellectualproperty and other rights that are reasonably necessary for the operation oftheir respective business, without conflict with the rights of any other Personexcept as the foregoing may not reasonably be expected to have a MaterialAdverse Effect.

 

(c)           Noneof the Property of the Company or any of its Subsidiaries is subject to anyLiens except as permitted by Section 7.01 (*Negative Pledge*).

 

(d)           Neitherthe Company nor any of its Subsidiaries are party to any Sale Lease-BackTransactions except as set forth in Schedule 5.11(d) (*Existing Sale Lease-Back Transactions*)(the “Existing Sale Lease-Back Transactions”).

 

(e)           TheCompany and each of its Material Subsidiaries have insurance with financiallysound, responsible and reputable insurance companies in such amounts andcovering such risks as are usually carried by companies of good repute engagedin similar businesses and owning and/or operating properties similar to thoseowned and/or operated by the Company or such Subsidiary, as the case may be, inthe same general areas in which the Company or such Subsidiary owns and/oroperates its properties, in accordance with normal industry practice.

 

(f)            TheCompany owns the following shares of capital stock, in each case free and clearof all Liens:

 

(i)                    763,974,230shares of capital stock of Gimsa (comprised of 504,150,300 Series A sharesand 259,823,930 Series B shares), representing 83.18% of the issued andoutstanding capital stock of Gimsa;

 

(ii)                   314,056.5shares of capital stock of Gruma Corp., representing 100% of the issued andoutstanding capital stock of Gruma Corp;

 

(iii)                  508,378,245shares of capital stock of Molinera, representing 60% of the issued andoutstanding capital stock of Molinera; and

 

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(iv)                  177,546,496shares of capital stock of Grupo Financiero Banorte S.A.B. de C.V.,representing 8.79% of the issued and outstanding capital stock of GrupoFinanciero Banorte S.A.B. de C.V.

 

5.12.       Subsidiaries.

 

(a)           Acomplete and correct list of all Subsidiaries of the Company, showing thecorrect name thereof, the jurisdiction of its incorporation and the percentageof shares of each class of capital stock outstanding owned by the Company andeach Subsidiary of the Company is set forth in Schedule 5.12(a) (*Subsidiaries*).  All such shares of capital stock are fullypaid and non-assessable and are owned by the Company or one or more of itsSubsidiaries free and clear of all Liens (other than the Liens created under the Security Documents).  There are no outstanding options, warrants,rights of conversion or similar rights with respect to such capital stock.

 

(b)           Alist of all agreements, which by their terms, expressly prohibit or limit thepayment of dividends or other distributions to the Company by a Subsidiary orthe making of loans to the Company by a Subsidiary is set forth in Schedule5.12(b) (*Restrictive SubsidiaryAgreements*).

 

5.13.       CommercialActs.  The Obligations of the Companyunder the Loan Documents are commercial in nature and are subject to civil andcommercial law with respect thereto.  Theexecution and performance of the Loan Documents by the Company constituteprivate and commercial acts and not governmental or public acts.  The Company and its Property is subject tolegal action in respect of its Obligations and is not entitled to immunity onthe grounds of sovereignty or otherwise from the jurisdiction of any court orfrom any legal process (whether through service or notice, attachment prior tojudgment, attachment in aid of execution, execution or otherwise) in connectiontherewith.  If the Company or any of itsProperty should become entitled to any such right of immunity, the Company haseffectively waived such right pursuant to Section 10.16 (*Waiver of Immunity*).

 

5.14.       ProperLegal Form.  Each of the LoanDocuments is (or if not yet executed, when executed and delivered, will be) inproper legal form under any Requirements of Law for the enforcement thereofagainst the Company in accordance with their respective terms under suchRequirements of Law.  To ensure thelegality, validity, enforceability or admissibility into evidence of the LoanDocuments, it is not necessary that any of such Loan Documents or any otherdocument be filed or recorded with any applicable Governmental Authority orthat any stamp or similar tax be paid on or in respect of any LoanDocument.  Any judgment against theCompany of a state or United States federal court in the State of New York,United States arising from, related to or in connection with any Loan Documentis capable of being enforced in the courts of Mexico; provided that inthe event any legal Proceedings are brought in the courts of Mexico, a Spanishtranslation of the documents, including this Agreement, prepared by acourt-approved translator would be required in such Proceedings.  It is not necessary in order for theAdministrative Agent, the Collateral Agent or any Lender to enforce any rightsor remedies under the Loan Documents, or solely by reason of the execution,delivery and performance by the Company of the Loan Documents, that theAdministrative Agent, the Collateral Agent or any

 

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Lender be licensed or qualified with any MexicanGovernmental Authority or be entitled to carry on business in Mexico.

 

5.15.       FullDisclosure.  All written informationother than forward-looking information heretofore furnished by the Company orits Subsidiaries, or their respective agents or representatives to theAdministrative Agent, the Collateral Agent, or any Lender for purposes of or inconnection with this Agreement or the other Loan Documents or the  Intercompany Revolving Facilities or the transactionscontemplated hereby or thereby, and all such information hereafter furnished by theCompany or its Subsidiaries, or their respective agents or representatives tothe Administrative Agent or any Lender, is or will be true andaccurate in all material respects on the date as of which such information isstated or certified, and does not and will not contain any materialmisstatement of fact or, taken as a whole, omit to state any material factnecessary to make the statements therein, in light of the circumstances inwhich they were made, not misleading on the date on which such information wasfurnished.  All written forward-lookinginformation heretofore furnished in writing to the Administrative Agent or theLenders has been prepared by the Company or its Subsidiaries in good faithbased upon assumptions the Company believes to be reasonable.  The Company has disclosed to theAdministrative Agent and the Lenders in writing any and all facts known to itthat have or have had or it believes could reasonably be expected to have hador have a Material Adverse Effect.

 

5.16.       InvestmentCompany Act.  Both immediately beforeand after giving effect to this Agreement and the transactions contemplatedherein, neither the Company nor any of its Subsidiaries is, or will be requiredto register as, an “investment company” or an “affiliated person” or “promoter”of, or “principal underwriter” of or for, an “investment company”, as suchterms are defined in the Investment Company Act of 1940, as amended.

 

5.17.       MarginRegulations.  Neither the Company norany of its Subsidiaries is generally engaged in the business of purchasing orselling “margin stock” (as such term is defined in Regulations T, U or X of theBoard of Governors of the Federal Reserve System of the United States) orextending credit for the purpose of purchasing or carrying margin stock.  No part of the proceeds of the Loan will beused, whether directly or indirectly, and whether immediately, incidentally orultimately, for any purpose that entails a violation of, or that isinconsistent with, the provisions of Regulation T, U or X of the Board of Governors of theUS Federal Reserve System, or that entails a violation by the Company of any other regulationsof the Board of Governors of the US Federal Reserve System. The pledge of the Collateral pursuant to the Security Documents does notviolate such regulations.

 

5.18.       ERISACompliance; Labor Matters.

 

(a)           EachPlan is in compliance in all material respects with the applicable provisionsof ERISA, the Code and other federal or state laws and the regulations andpublished interpretations thereunder. Each Plan that is intended to qualify under Section 401(a) ofthe Code has received a favorable determination letter from the IRS or anapplication for such a letter is currently being processed by the IRS withrespect thereto and, to the best knowledge of the Company, nothing has occurredwhich would prevent, or cause the loss of, such qualification.  The Company and each ERISA Affiliate havemade all required contributions to each Plan subject to Section 412 of theCode, and no application for a funding waiver or an extension of 

 

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any amortization period pursuant to Section 412of the Code has been made with respect to any Plan.

 

(b)           Thereare no pending or, to the best knowledge of the Company, threatened claims,actions or lawsuits, or action by any Governmental Authority, with respect toany Plan that could be reasonably expected to have a Material AdverseEffect.  There has been no prohibitedtransaction or violation of the fiduciary responsibility rules withrespect to any Plan that has resulted or could be reasonably expected to resultin a Material Adverse Effect.

 

(c)           (i) NoERISA Event has occurred, or to the best knowledge of the Company, isreasonably expected to occur and no condition or event currently exists or isreasonably expected to occur that could result in an ERISA Event; (ii) noPension Plan has any Unfunded Pension Liability; (iii) neither the Companynor any ERISA Affiliate has incurred, or reasonably expects to incur, anyliability under Title IV of ERISA with respect to any Pension Plan (other thanpremiums due and not delinquent under Section 4007 of ERISA; (iv) noevent, condition or amendment has occurred, is planned or is reasonablyexpected to occur which could require the Company or any ERISA Affiliate topost security with respect to any Plan and no such event, condition oramendment is planned or is reasonably expected to occur; (v) no PensionPlan has failed to satisfy the minimum funding standard, whether or not waived,under Section 302 of ERISA or Section 412 of the Code; (vi) theCompany and each ERISA Affiliate has made all contributions required to be madeby such person to each Plan as and when such contributions have become due; (vii) neitherthe Company nor any ERISA Affiliate is required to file with the PBGC theinformation required under Section 4010 of ERISA with respect to anyPension Plan; (viii) neither the Company nor any ERISA Affiliate hasincurred, or reasonably expects to incur, any liability (and no event hasoccurred which, with the giving of notice, under Section 4219 of ERISA,would result in such liability) under Section 4201 or 4243 of ERISA withrespect to a Multiemployer Plan; (ix) no Multiemployer Plan is in “endangered”or “critical” status within the meaning of Section 305 of ERISA; (x) neitherthe Company nor any ERISA Affiliate has incurred any unsatisfied, or isreasonably expect to incur any, Withdrawal Liability to any Multiemployer Plan;(xi) neither the Company nor any ERISA Affiliate has received any notificationthat any Multiemployer Plan is in reorganization or will terminate or has beenterminated, and, to the best knowledge of the Company, no Multiemployer Plan isreasonably expected to be in reorganization or to be terminated; (xii) if theCompany and all ERISA Affiliates were to completely withdraw from allMultiemployer Plans, neither the Company nor any ERISA Affiliate would incur,directly or indirectly, any Withdrawal Liability; and (xiii) neither theCompany nor any ERISA Affiliate has engaged in a transaction that could besubject to Sections 4069 or 4212(c) of ERISA, except, in each case, aswould not be expected to have a material adverse effect on the business,financial condition or operations of the Company or such Subsidiary.

 

(d)           EachForeign Pension Plan is in compliance in all material respects with allrequirements of law applicable thereto and the respective requirements of thegoverning documents for such plan. With respect to each Foreign Pension Plan,none of the Company or its Subsidiaries or any of their respective directors,officers, employees or agents has engaged in a transaction which would subjectthe Company or any Subsidiary, directly or indirectly, to a tax or civilpenalty which could reasonably be expected to result in a Material AdverseEffect. With respect to each Foreign Pension Plan, reserves have beenestablished in the financial statements 

 

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furnished to the Administrative Agent and the Lendersto the extent required by Section 6.01 (*FinancialStatements and Other Information*) in respect of any unfundedliabilities in accordance with all Requirements of Law or, where required, inaccordance with ordinary accounting practices in the jurisdiction in which suchForeign Pension Plan is maintained. The aggregate unfunded liabilities withrespect to such Foreign Pension Plans could not reasonably be expected toresult in a Material Adverse Effect; the present value of the aggregateaccumulated benefit liabilities of all such Foreign Pension Plans (based onthose assumptions used to fund each such Foreign Pension Plan) did not, as ofthe last annual valuation date applicable thereto, exceed by more thanUS$20,000,000 the fair market value of the assets of all such Foreign PensionPlans.

 

(e)           Noneof the Company or any of its Subsidiaries are a party to any labor dispute thatcould reasonably be expected to have a Material Adverse Effect, and there areno strikes, walkouts, lockouts or slowdowns against the Company or itsSubsidiaries pending or, to the best knowledge of the Company or itsSubsidiaries, threatened, except as would not be expected to have a materialadverse effect on the business, financial condition or operations of theCompany or such Subsidiary.  There is nounfair labor practice complaint pending against any of the Company or itsSubsidiaries or, to the best knowledge of any of the Company or itsSubsidiaries, threatened against any of them that could reasonably be expectedto have a Material Adverse Effect.  Thereis no grievance or significant arbitration Proceeding arising out of or underany collective bargaining agreement pending against any of the Company or itsSubsidiaries or, to the best knowledge of any of the Company or itsSubsidiaries, threatened against any of them, in each case that couldreasonably be expected to have a Material Adverse Effect.

 

5.19.       SecurityInterests.  The Security Documents(other than the Intercompany Trust Agreement and the Collateral Agency andIntercreditor Agreement), upon execution and delivery thereof by the partiesthereto, will create in favor of the Collateral Agent, for the ratable benefitof the Secured Parties, a valid, legally binding and enforceable first priorityLien and security interest in the Collateral and the proceeds thereof.  When the actions referred to in Section 4.01(j) (*Security*) are completed, the Lien createdunder the Security Documents (other than the Intercompany Trust Agreement andthe Collateral Agency and Intercreditor Agreement) shall constitute a fullyperfected, effective, valid, legally binding and enforceable first priorityLien on, and security interest in, all right, title and interest of the Companyin such Collateral, and the proceeds thereof under the Requirements of Law ofthe United States or Mexico, as applicable, and the Collateral Agent’s securityinterests described above will be, in each case and other than as provided inthe Security Documents (other than the Intercompany Trust Agreement and theCollateral Agency and Intercreditor Agreement), prior and superior in right toany other Person now existing or hereafter arising whether by way of Lien,assignment or otherwise.

 

5.20.       Anti-TerrorismLaws.

 

(a)           Neitherthe Company nor any of its Affiliates is in violation of any laws relating toterrorism or money laundering (“Anti-Terrorism Laws”), includingExecutive Order No.  13224 on Terrorist Financing, effective September 24,2001 (the “Executive Order”), and the Uniting and Strengthening Americaby Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Actof 2001, Public Law 107-56 (the “Patriot Act”).

 

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(b)           Neitherthe Company nor any of its Affiliates acting or benefiting in any capacity inconnection with the Loan is any of the following:

 

(i)                    a Person orentity that is listed in the annex to, or is otherwise subject to theprovisions of, the Executive Order;

 

(ii)                   a Person orentity owned or Controlled by, or acting for or on behalf of, any Person orentity that is listed in the annex to, or is otherwise subject to theprovisions of, the Executive Order;

 

(iii)                  a Person orentity with which any Lender is prohibited from dealing or otherwise engagingin any transaction by any Anti-Terrorism Law;

 

(iv)                  a Person orentity that commits, threatens or conspires to commit or supports “terrorism”as defined in the Executive Order; or

 

(v)                   a Person orentity that is named as a “specially designated national and blocked person” onthe most current list published by the US Treasury Department Office of ForeignAssets Control (“OFAC”) at its official website or any replacementwebsite or other replacement official publication of such list.

 

(c)           Neitherthe Company nor any of the Company’s Affiliates acting in any capacity inconnection with the Loan (i) conducts any business or engages in making orreceiving any contribution of funds, goods or services to or for the benefit ofany Person described in clause (b)(ii) above, (ii) deals in, orotherwise engages in any transaction relating to, any property or interests inproperty blocked pursuant to the Executive Order or (iii) engages in orconspires to engage in any transaction that evades or avoids, or has thepurpose of evading or avoiding, or attempts to violate, any of the prohibitionsset forth in any Anti-Terrorism Law.

 

5.21.       ExistingIndebtedness and Reporto Contracts.

 

(a)           Setforth on Schedule 5.21(a) (*ExistingIndebtedness*) is a complete and accurate list of all ExistingIndebtedness that is (i) Working Capital Indebtedness (the “ExistingWorking Capital Indebtedness”) and (ii) Other Indebtedness (includingall Guaranty Obligations) (the “Existing Other Indebtedness”), in eachcase specifying the parties thereto, the outstanding principal amounts thereof,any unborrowed amounts thereof and any guarantors thereof.

 

(b)           Setforth on Schedule 5.21(b) (*ExistingIntercompany Indebtedness*) is a complete and accurate list of allIntercompany Indebtedness as of September 30, 2009, specifying the partiesthereto and outstanding principal amounts thereof.  All Existing Intercompany Indebtedness  (other than Intercompany Indebtedness owed toany Subsidiary in the Gimsa Division by the Company and Guaranty Obligations bythe Company that are permitted by Section 7.16(e) or 7.16(h) (*Limitations on Incurrence of Additional Indebtedness*))has been issued or made pursuant to the Intercompany Revolving Facilities.

 

(c)           Setforth on Schedule 5.21(c) (*ExistingHedging Agreements*) is a complete and accurate list of the partiesto which the Company has any liability under Hedging Agreements and thenotional amounts and the Agreement Values thereof, as of the Business Day priorto the 

 

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date hereof (or such earlier date as mutually agreedprior to the Closing Date between the Company and the Initial Lenders), and theCompany has provided reasonable documentation supporting the Agreement Valuesset forth in respect thereof

 

(d)           Setforth on Schedule 5.21(d) (*ExistingReporto Contracts*) is a complete and accurate list of anyoutstanding Reporto Contract entered into with the Company or any of itsSubsidiaries, and the aggregate principal amount thereof, as of the BusinessDay prior to the date hereof.

 

(e)           Eachof the Reporting Indebtedness Documentation is a true and correct copy of suchContractual Obligation, and (i) the Company has not entered into anyContractual Obligations in respect of the Reporting Indebtedness other than theReporting Indebtedness Documentation and (ii) the Company has not paid anyfees or made any other payment (and no fee or other payment is payable) inrespect of the Reporting Indebtedness other than as expressly provided in theReporting Indebtedness Documentation.

 

(f)            Sincethe date of the audited financial statements of the Company and itsConsolidated Subsidiaries described in Section 4.01(o) (*Delivery of Financial Statements*), neitherthe Company nor its Subsidiaries have restructured or Refinanced anyIndebtedness, or unwound any other Hedging Agreements to which they are aparty, in each case other than the Indebtedness identified in Section 4.01(l) (*Restructured or Refinanced Indebtedness*)or the Terminated Derivative Obligations.

 

5.22.       HedgingPolicy.  The Hedging Policy has beenapproved by the Board of Directors of the Company (or by a committee dulydelegated by such Board of Directors that is comprised of two or more membersthereof) and is currently in effect.

 

5.23.       Collateraland Guaranties Relating to Company Indebtedness.

 

(a)           NoIndebtedness of the Company other than the Secured Indebtedness is secured by aLien on any Property of the Company or its Subsidiaries.

 

(b)           NoIndebtedness of the Company is guaranteed by the Company’s Subsidiaries.

 

ARTICLEVIAFFIRMATIVE COVENANTS

 

The Company covenants and agrees that for so long as any Loan or otherObligation (other than unasserted contingent indemnification obligations as towhich no claim is known) remains unpaid:

 

6.01.       FinancialStatements and Other Information.

 

(a)           TheCompany will deliver to the Administrative Agent:

 

(i)                    as soon asavailable and in any case within one hundred twenty (120) days after the end ofeach Fiscal Year, (x) consolidated financial statements of the Company andits Consolidated Subsidiaries for such Fiscal Year, (y) consolidated 

 

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financialstatements for each Pledged Entity for such Fiscal Year and (z) unconsolidatedfinancial statements for the Company for such Fiscal Year (each such entity a “ReportingEntity”), in each case audited by independent accountants of recognizedinternational standing (without a “going concern” or like qualification orexception and without any qualification or exception as to the scope of suchaudit, provided that the financial statements of the Company and itsConsolidated Subsidiaries may contain an exception that the independentaccountants did not audit the financial statements of Grupo Financiero BanorteS.A.B. de C.V.), including an annual audited consolidated balance sheet and therelated consolidated statements of income, changes in equity and changes infinancial position prepared in accordance with Mexican GAAP (or US GAAP in thecase of Gruma Corp.) consistently applied (except as otherwise discussed in thenotes to such financial statements), which financial statements shall presentfairly, in accordance with Mexican GAAP (or US GAAP in the case of GrumaCorp.), the financial condition of the relevant Reporting Entity as at the endof the relevant Fiscal Year and the results of the operations of such ReportingEntity for such Fiscal Year; and

 

(ii)                   as soon asavailable and in any event within one hundred twenty (120) days after the endof each Fiscal Year, an English translation of the audited consolidatedfinancial statements of the Company and its Consolidated Subsidiaries for suchFiscal Year.

 

(b)           TheCompany will deliver to the Administrative Agent:

 

(i)                    as soon asavailable and in any case within forty-five (45) days after the end of each ofthe first three (3) Fiscal Quarters, (x) consolidated financialstatements of the Company and its Consolidated Subsidiaries for such FiscalQuarter, (y) consolidated financial statements for each Pledged Entity forsuch Fiscal Quarter and (z) unconsolidated financial statements for theCompany for such Fiscal Quarter, in each case including therein an unauditedconsolidated balance sheet and the related consolidated statements of incomeprepared in accordance with Mexican GAAP (or US GAAP in the case of GrumaCorp.), consistently applied (except as otherwise discussed in the notes tosuch statements), which financial statements shall present fairly, inaccordance with Mexican GAAP (or US GAAP in the case of Gruma Corp.), thefinancial condition of the relevant Reporting Entity as at the end of therelevant Fiscal Quarter and the results of the operations of the ReportingEntity for such Fiscal Quarter and for the portion of the Fiscal Year thenended except for the absence of complete footnotes and except for normal,recurring year-end accruals and subject to normal year-end adjustments; and

 

(ii)                   as soon asavailable and in any event within forty-five (45) days after the end of each ofthe first three (3) Fiscal Quarters an English translation of theconsolidated financial statements of the Company and its ConsolidatedSubsidiaries for such Fiscal Quarter.

 

(c)           TheCompany will deliver to the Administrative Agent:

 

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(i)                    concurrentlywith the delivery of the financial statements pursuant to clauses (a)(i) and(b)(i) above, a Quarterly Compliance Certificate, substantially in theform of Exhibit B-1, signed by the chief financial officer and oneadditional Senior Officer of the Company, which shall set forth in reasonabledetail and in form and substance satisfactory to the Lenders, the calculationsrequired to determine the Leverage Ratio and the Interest Coverage Ratio as ofthe date of the financial statements delivered concurrently with such QuarterlyCompliance Certificate;

 

(ii)                   concurrentlywith the delivery of the financial statements for a Fiscal Year pursuant toclause (a)(i) above, an Annual Compliance Certificate, substantially in theform of Exhibit B-2, signed by the chief financial officer and oneadditional Senior Officer of the Company:

 

(A)                  setting forthin reasonable detail and in a form reasonably satisfactory to the Lenders, thecalculations required to determine the amount of Excess Cash for such FiscalYear;

 

(B)                  setting forthin reasonable detail the amount of Available Excess Cash Amount used to financeCapital Expenditures pursuant to Section 7.14(c) (*Limitations on Capital Expenditures*) andother Restricted Investments pursuant to Section 7.02(b) (*Investments*);

 

(C)                  containingthe dates of the Clean-Down Periods for such Fiscal Year for all WorkingCapital Indebtedness of the Gruma Corp. Division (other than the Bank ofAmerica Facility) and attaching thereto evidence, in a form reasonablysatisfactory to the Lenders, of such Clean-Downs;

 

(D)                  listing allof the Asset Sales in which the Company or its Subsidiaries have engaged duringthe prior twenty-one (21)-month period ending on the last day of such FiscalYear, including the amounts of Net Cash Proceeds thereof, any amount of NetCash Proceeds thereof that was prepaid to the Lenders and any amount of NetCash Proceeds thereof that was invested in long term productive assets used inthe Company’s Core Business as well as reasonable detail with respect to suchInvestment;

 

(E)                   listing allof the Casualty Events with respect to the Company or its Subsidiaries duringthe prior eighteen (18)-month period ending on the last day of such FiscalYear, including the amounts of Net Cash Proceeds thereof, any amount of NetCash Proceeds thereof that was prepaid to the Lenders and any amount of NetCash Proceeds thereof that was used to Restore such affected Properties; and

 

(F)                   listing allof the Subsidiaries of the Company and the Company’s and each Subsidiaries’respective ownership percentages therein;

 

(iii)                  concurrentlywith the delivery of the financial statements for a Fiscal Year pursuant toclause (a)(i) above, a certificate signed by the independent accountants thathave audited the financial statements described in clause (a)(i) above, statingwhether 

 

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during the courseof their examination of such financial statements they obtained knowledge ofany Default under Section 7.09 (*InterestCoverage Ratio*) or Section 7.10 (*Leverage Ratio*) (which certificate may be limited to theextent required by accounting rules or guidelines); and

 

(iv)                  concurrentlywith the delivery of the financial statements for a Fiscal Year pursuant toclause (a)(i) above, a written notice signed by the chief financial officer andone additional Senior Officer of the Company (a “CapEx Report”)indicating:

 

(A)                  the amount ofCapital Expenditures made during such Fiscal Year;

 

(B)                  the portionof the Permitted Capital Expenditures Amount to be carried forward from suchFiscal Year to the present Fiscal Year, if any; and

 

(C)                  the amount ofAvailable Excess Cash Amount used to finance Capital Expenditures in suchFiscal Year pursuant to Section 7.14(c) (*Limitations on Capital Expenditures*).

 

(d)           Tothe extent not otherwise provided under clause (a) or (b) above, theCompany will furnish to the Administrative Agent, promptly after they arepublicly available, copies of all financial statements and financial reportsfiled by the Company or any of its Subsidiaries with (i) any GovernmentalAuthority (if such statement or reports are required to be filed for thepurpose of being publicly available) or (ii) with any Mexican or othersecurities exchange (including the Bolsa Mexicana de Valores, S.A.B. de C.V.,the New York Stock Exchange and the Luxembourg Stock Exchange) and which arepublicly available.

 

(e)           TheCompany will furnish to the Administrative Agent, within twenty (20) BusinessDays after the end of each month (or otherwise promptly if requested in writingby the Administrative Agent), the Agreement Value of its Hedging Agreements asof the last day of such month, together with reasonable supportingdocumentation of the Agreement Value of its Hedging Agreements for the end ofsuch month and for each date during such period on which there was a materialchange in the Agreement Value in respect thereof, including such documentationprovided to the Company by the counterparties to such Hedging Agreements afterreasonable request.

 

(f)            TheCompany will deliver to the Administrative Agent, promptly after the furnishingthereof, copies of any statement, report, proposed amendment or request forwaiver, or any other similar notice furnished to any holder of ReportingIndebtedness and not otherwise required to be furnished to the AdministrativeAgent pursuant to this Section 6.01 or Section 6.02 (*Notice of Other Events*).

 

(g)           TheCompany will furnish to the Administrative Agent, promptly upon request of theAdministrative Agent or any Lender (through the Administrative Agent), suchadditional information regarding the business, financial or corporate affairsof the Company and its Subsidiaries as the Administrative Agent or any Lendermay reasonably request including for know-your-customer and anti-moneylaundering rules and regulations, including the Patriot Act.

 

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(h)           TheCompany will furnish to the Administrative Agent upon request a complete copyof the annual report (Form 5500) of each Plan of the Company or any ERISAAffiliate required to be filed with the Internal Revenue Service.

 

(i)            TheCompany will furnish to the Administrative Agent the definitive documentationfor any Permitted Refinancing Indebtedness incurred to Refinance any ReportingIndebtedness within five (5) Business Days of the execution thereof.

 

(j)            TheCompany will furnish to the Administrative Agent as soon as available and inany case within five (5) Business Days after the end of the precedingmonth, a listing of the Intercompany Indebtedness, specifying the partiesthereto and outstanding principal amounts thereof, current as of the last dayof the immediately preceding month.

 

(k)           TheCompany will furnish to the Administrative Agent as soon as available and inany case within five (5) Business Days after the end of the precedingmonth, the listing of the Reporto Contracts, specifying the parties thereto andoutstanding principal amounts thereof, current as of the last day of theimmediately preceding month.

 

(l)            TheAdministrative Agent will promptly deliver to each of the Lenders copies of thedocuments provided to the Administrative Agent by the Company pursuant to this Section 6.01;provided that the failure to make such a delivery by the AdministrativeAgent shall not be deemed a failure by the Company.

 

6.02.       Noticeof Other Events.  The Company willfurnish to the Administrative Agent, no later than three (3) Business Daysafter the Company obtains knowledge thereof (and the Administrative Agent willnotify each Lender thereof):

 

(a)           noticeof any Default or Event of Default, signed by a Senior Officer of the Company,describing such Default or Event of Default and the steps that the Companyproposes to take in connection therewith;

 

(b)           noticeof any litigation, claim, action or Proceeding pending or threatened in writingbefore any Governmental Authority (i) against the Company or any of itsSubsidiaries, in which there is a probability of success by the plaintiff onthe merits and which, if determined adversely to the Company or such Subsidiarycould be reasonably expected to have a Material Adverse Effect, (ii) whichcould reasonably be expected to result in liability of the Company and itsSubsidiaries in an aggregate amount exceeding US$20,000,000 (orthe US Dollar Equivalent thereof) or (iii) relating to this Agreement orany of the other Loan Documents or the Intercompany Revolving Facilities or thetransactions contemplated hereby or thereby;

 

(c)           noticeof the modification of any consent, license, approval or authorization referredto in Section 4.01(c) (*Authorizations*);

 

(d)           noticeof the occurrence of any ERISA Event that, alone or together with any otherERISA Events that have occurred, could reasonably be expected to result inliability of the Company and its Subsidiaries in an aggregate amount exceedingUS$5,000,000 (or the US Dollar Equivalent thereof);

 

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(e)           noticethat an application has been made to the Secretary of the Treasury for a waiveror modification of the minimum funding standard (including any requiredinstallment payments) or an extension of any amortization period under Section 412of the Code with respect to a Pension Plan;

 

(f)            noticethat a material contribution required to be made to a Pension Plan by theCompany or any ERISA Affiliate has not been timely made;

 

(g)           noticethat a Pension Plan has failed to meet minimum funding standards to a levelsufficient to give rise to a lien under ERISA or the Code;

 

(h)           noticethat a proceeding has been instituted pursuant to Section 515 of ERISA tocollect a material delinquent contribution to a Multiemployer Plan;

 

(i)            noticethat the Company or any ERISA Affiliate is required to file with the PBGC theinformation required under Section 4010 with respect to any Pension Plan;and

 

(j)            noticeof any other event or development of which the Company obtains knowledge thathas had or could reasonably be expected to have a Material Adverse Effect.

 

6.03.       Maintenanceof Existence; Conduct of Business.

 

(a)           TheCompany will, and will cause each of its Subsidiaries to: (i) maintain ineffect its corporate existence and all registrations necessary therefor; (ii) takeall necessary actions to maintain all rights, privileges, titles to property,franchises and the like, necessary or desirable in the normal conduct of itsbusiness (as now conducted and as proposed to be conducted), activities oroperations; and (iii) maintain and preserve all of its Property and keepsuch Property in good working order or condition; provided, however,that this covenant shall not prohibit any transaction by the Company or any ofits Subsidiaries otherwise permitted under Section 7.03 (*Mergers, Consolidations, Sales and Leases*),nor shall it require any Subsidiary (other than a Material Subsidiary) tomaintain any such right, privilege, title to property or franchise or theCompany to preserve the corporate existence of any Subsidiary (other than aMaterial Subsidiary) if the Company shall determine in good faith that themaintenance or preservation thereof is no longer desirable in the conduct ofthe business of the Company or its Subsidiaries and that the loss thereof couldnot reasonably be expected to have a Material Adverse Effect.

 

(b)           TheCompany will, and will cause each of its Material Subsidiaries to, continue toengage only in the Company’s Core Business.

 

6.04.       Insurance.  The Company will, and will cause each of itsSubsidiaries to, maintain, and pay all premiums with respect to, insurance withfinancially sound, responsible and reputable insurance companies in suchamounts and covering such risks as are usually carried by companies of goodrepute engaged in similar businesses and owning and/or operating propertiessimilar to those owned and/or operated by the Company or such Subsidiary, asthe case may be, in the same general areas in which the Company or suchSubsidiary owns and/or operates its properties, in accordance with normalindustry practice; provided that the Company and its Subsidiaries shallnot be required to maintain such insurance for damaged, obsolete or

 

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worn-out equipment or otherProperty (in each case other than the Collateral) that is no longer used in oruseful to the business or if the failure to maintain such insurance could not reasonably beexpected to have a Material Adverse Effect.

 

6.05.       Maintenanceof Governmental Approvals.  TheCompany will, and will cause each of its Material Subsidiaries to, maintain infull force and effect all governmental approvals (including any exchangecontrol approvals), consents, licenses and authorizations which may benecessary or appropriate under any Requirement of Law for the conduct of itsbusiness (except where the failure to maintain any such approval, consent,license or authorization could not reasonably be expected to have a MaterialAdverse Effect) or for the performance of any of the Loan Documents or theIntercompany Revolving Facilities and for the validity or enforceabilityhereof.  The Company will, and, ifapplicable, will cause each of its Subsidiaries to, file all applicationsnecessary for, and shall use its reasonable best efforts to obtain, anyadditional authorization as soon as possible after determination that suchauthorization or approval is required for the Company or Subsidiary, asapplicable, to perform its obligations under this Agreement or any of the otherLoan Documents or the Intercompany Revolving Facilities.

 

6.06.       Useof Proceeds.  The Company will usethe proceeds of the Loans to repay the Terminated Derivative Obligations on theClosing Date.

 

6.07.       Paymentof Obligations.  The Company will,and will cause each of its Subsidiaries to, pay all taxes, assessments andother governmental charges imposed upon it or any of its Property in respect ofany of its franchises, businesses, income or profits before any penalty orinterest accrues thereon, and pay promptly all Indebtedness and otherobligations or claims (including claims for labor, services, materials andsupplies) for sums that have become due and payable in accordance with theirterms and that by law have or might become a Lien upon its Property, except (a) ifthe failure to make such payment has not had and would not reasonably beexpected to have a Material Adverse Effect or (b) if such charge or claimis being contested in good faith by appropriate provision promptly initiatedand diligently conducted and if such reserves or other appropriate provision,if any, as shall be required by Mexican GAAP (or, in the case of Personsorganized under laws of any other jurisdiction, the applicable GAAP therein)shall have been made therefor.

 

6.08.       Ranking;Priority.  The Company will, and willcause each of its Subsidiaries to, promptly take all actions as may benecessary to ensure that its obligations under the Loan Documents will at alltimes constitute direct, unconditional and general obligations thereof rankingat least *pari passu* in allrespects with all other future and present unsecured and unsubordinatedIndebtedness of the Company, except such Indebtedness ranking senior byoperation of law (and not by contract or agreement).

 

6.09.       Compliancewith Laws.

 

(a)           TheCompany will, and will cause each of its Subsidiaries to, comply in allrespects with all applicable Requirements of Law, including all applicableEnvironmental Laws and all Requirements of Law relating to social security andERISA, including INFONAVIT, IMSS and SAR except (i) where the necessity ofcompliance therewith is contested in good faith by appropriate proceedingspromptly initiated and diligently conducted and if such reserves or 

 

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other appropriate provision, if any, as shall berequired by Mexican GAAP (or, in the case of Persons organized under laws ofany other jurisdiction, the applicable GAAP therein) shall have been madetherefor or (ii) where any non-compliance could not reasonably be expectedto have a Material Adverse Effect.

 

(b)           Notwithstandingthe foregoing, the Company will, and will cause each of its Subsidiaries to,comply in all respects with Requirements of Law relating to or arising frommaintaining the registration of securities with the Mexican Registro Nacionalde Valores (or any substitute registry) and listing of securities in the BolsaMexicana de Valores, S.A.B. de C.V. (or any substitute securities exchange),including filing all statements and reports (financial or otherwise) requiredfrom time to time under applicable laws and regulations in Mexico; provided,however, that if at any time securities issued by the Company cease tobe so registered or listed for any reason, then the Company shall furnish toeach Lender (on a non-confidential basis) all such statements and reports(financial or otherwise) that the Company would have been required to file ordisclose from time to time under applicable laws and regulations in Mexico, hadsuch securities continued to be so registered or listed.

 

6.10.       Maintenanceof Books and Records.

 

(a)           TheCompany will, and will cause each of its Mexican Subsidiaries to, maintainbooks, accounts and other records in accordance with Mexican GAAP, and theCompany will cause its Subsidiaries organized under laws of any otherjurisdiction to maintain their books and records in accordance either with theGAAP of the applicable jurisdiction or Mexican GAAP.

 

(b)           TheCompany will, and will cause each of its Material Subsidiaries to, permitrepresentatives of the Administrative Agent or its designee to visit andinspect any of their respective properties and to examine their respectivecorporate, financial and operating books and records, all at such reasonabletimes during normal business hours and as often as may be reasonably desiredupon reasonable advance notice to the Company or such Subsidiary, and one (1) suchvisit per year shall be at the expense of the Company; provided, however,that when a Default or Event of Default exists the Administrative Agent or itsdesignee may do any of the foregoing at any time during normal business hoursand without advance notice; and provided further that when an Event ofDefault exists, all of the foregoing shall be at the expense of the Company.

 

6.11.       SecurityDocuments.

 

(a)           TheCompany will furnish to the Administrative Agent prompt written notice of anychange in (i) the Company’s, any Pledged Entity’s or any IntercompanyLender’s corporate name, (ii) the jurisdiction of organization of theCompany, any Pledged Entity or Intercompany Lender or (iii) the Company’s,any Pledged Entity’s or any Intercompany Lender’s identity or corporatestructure.  The Company agrees not to,and to cause the Pledged Entities not to and not to permit any of the PledgedEntities to, effect or permit any change referred to in the preceding sentenceunless all filings have been made under the UCC or otherwise that are requiredfor the Collateral Agent to continue at all times following such change to havea valid, legal and perfected security interest in the Collateral.

 

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(b)           Foras long as the Security Documents so provide, within five (5) BusinessDays of any direct or indirect acquisition of any shares of a Pledged Entity (“AdditionalCollateral”), the Company will duly execute and deliver to the CollateralAgent or Trustee, as applicable, such additional pledges, supplements oramendments to existing Security Documents, and other security agreements, andin form and substance satisfactory to the Majority Lenders as are necessary ordesirable to create in favor of the Collateral Agent, for the ratable benefitof the Secured Parties, a fully perfected, effective, legal, valid and enforceablesecurity interest in, and a fully perfected, effective, valid, legally bindingand enforceable first priority Lien on, all right, title and interest of theCompany in such Additional Collateral and the proceeds thereof.

 

(c)           Subjectto the provisions of Article IX of the Collateral Agency and IntercreditorAgreement, within five (5) Business Days of a Reinstatement Event thatoccurs on or after a Suspension Date, the Company will create in favor of theCollateral Agent, for the ratable benefit of the Secured Parties, a legal,valid and enforceable first priority security interest in the Collateral andthe proceeds thereof and will (i) take any reasonable action necessary toperfect such Lien on the Collateral and (ii) duly execute and deliver tothe Collateral Agent or Trustee, as applicable, such pledges, securityagreements or other documents, in each case in form and substance satisfactoryto the Majority Lenders, but in any event substantially similar to the initialSecurity Documents, as are reasonably necessary or desirable to create in favorof the Collateral Agent, for the ratable benefit of the Secured Parties, afully perfected, effective, legal, valid and enforceable security interest in,and a fully perfected, effective, valid, legally binding and enforceable firstpriority Lien on, all right, title and interest of the Company in theCollateral and the proceeds thereof.

 

(d)           Aspromptly as possible after the Closing Date, but in any event within ten (10) BusinessDays thereof, the Company shall file the Gruma Corp. Pledge with the PublicRegistry of Property and Commerce of the corporate domicile of the Company,and, as promptly as possible thereafter but in any event within ninety (90)days of the Closing Date, shall deliver evidence thereof to the AdministrativeAgent and the Collateral Agent.

 

6.12.       Refinancing.  The Company will use its commerciallyreasonable efforts to Refinance the Loans as soon as practicable following thethird (3rd) anniversary of the Closing Date.

 

6.13.       WorkingCapital Indebtedness Clean-Down.  TheCompany will cause each of the Subsidiaries in the Gruma Corp. Division torepay or prepay in full such Subsidiary’s Working Capital Indebtedness (otherthan, in the case of Gruma Corp., the Bank of America Facility) (each suchrepayment or prepayment, a “Clean-Down”) for a period of not less thanfifteen (15) consecutive calendar days (the “Clean-Down Period”) duringeach Fiscal Year ending on or after December 31, 2010; providedthat (w) no one Clean-Down Period may begin in one Fiscal Year and end inthe subsequent Fiscal Year; (x) if any Subsidiary’s Clean-Down Periodoccurs during the last fifteen (15) calendar days of any Fiscal Year, theClean-Down Period for such Subsidiary for the following Fiscal Year may notoccur during the first fifteen (15) calendar days of such following FiscalYear; (y) the Clean-Down Period for any Subsidiary may not occur within aperiod of thirty (30) calendar days immediately following the prior Clean-DownPeriod for such Subsidiary; and (z) the proceeds of Indebtedness may notbe used to Clean-Down any Working Capital Indebtedness.

 

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6.14.       IntercompanyIndebtedness.

 

(a)           TheCompany will and will cause its Subsidiaries to cause all IntercompanyIndebtedness (other than Intercompany Indebtedness owed to any Subsidiary inthe Gimsa Division by the Company and Guaranty Obligations by the Company thatare permitted by Section 7.16(e) or 7.16(h) (*Limitations on Incurrence of Additional Indebtedness*))to be subordinated to the Loans pursuant to the Intercompany SubordinationAgreement and the Intercompany Trust Agreement and to be evidenced by andissued pursuant to the Intercompany Revolving Facilities.  Prior to the issuance of any IntercompanyIndebtedness by any Subsidiary that is not an Intercompany Lender, suchSubsidiary shall (i) provide to the Administrative Agent certified copiesof the Organizational Documents of such Subsidiary as are in full force andeffect, and such applicable corporate documentation evidencing the authority ofsuch Subsidiary (and the signatories of such Subsidiary, as applicable) toenter into and perform (x) the Intercompany Revolving Facility and (y) inthe case of any Subsidiary other than Subsidiaries in the Gimsa Division, theIntercompany Trust Agreement and the Intercompany Subordination Agreement and (ii) becomea party to (x) an Intercompany Revolving Facility and (y) in the caseof any Subsidiary other than Subsidiaries in the Gimsa Division, theIntercompany Trust Agreement and the Intercompany Subordination Agreement.  TheCompany will treat the Obligations as senior in payment to any obligations owedto any Subsidiary that is part of the Gimsa Division by the Company inaccordance with Section 7.19(c) (*IntercompanyIndebtedness*) and will not take any action that would result in theObligations not being treated as senior in payment to any obligations owed toany Subsidiary that is part of the Gimsa Division by the Company in accordancewith Section 7.19(c) (*IntercompanyIndebtedness*).

 

(b)           Duringthe pendency of any proceeding filed by or against the Company seeking reliefas debtor, or seeking to adjudicate the Company as bankrupt or insolvent, orseeking reorganization, arrangement, adjustment or composition of the Companyor its debts under any law relating to bankruptcy, insolvency, reorganization, *concurso mercantil*,*quiebra*, or relief of debtors, or seekingappointment of a receiver, trustee, assignee, custodian, liquidator or *visitador*, *conciliador* or *sindico*or any other similar official for the Company or for any substantial part ofits property, the Company will cause each Subsidiary to vote any claims thatsuch Subsidiary might have based on Intercompany Indebtedness in the samemanner as the majority of the third party creditors of the Company.

 

6.15.       FurtherAssurances.  The Company will, andwill cause each of its Subsidiaries to, at the Company’s own cost and expense,execute and deliver to the Administrative Agent or the Collateral Agent allsuch other documents, instruments and agreements and do all such other acts andthings as may be reasonably required in the opinion of the Administrative Agentor the Collateral Agent or their respective counsel, to enable theAdministrative Agent or the Collateral Agent or any Lender to exercise andenforce its rights under, and to enable the Administrative Agent, theCollateral Agent, the Lenders, the Company or any of the Pledged Entities tocarry out the intent of this Agreement or the other Loan Documents, and inorder to grant, preserve, protect and perfect the validity and first priorityof the security interests created or intended to be created by the SecurityDocuments, including in each case (i) filing UCC and other financingstatements, (ii) making payments of fees and other charges, (iii) issuingand, if necessary, filing or recording supplemental documentation, includingcontinuation statements, (iv) discharging all 

 

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claims or other Liens affecting the Collateral, and (v) publishing or otherwise delivering notice tothird parties.

 

ARTICLEVIINEGATIVE COVENANTS

 

The Company covenants and agrees that for so long as any Loan or otherObligation (other than unasserted contingent indemnification obligations as towhich no claim is known) remains unpaid:

 

7.01.       NegativePledge.  The Company:

 

(a)           willnot, and will not cause or permit any of its Subsidiaries to, directly orindirectly, create, incur, assume or suffer to exist any Lien upon or withrespect to any of the Collateral (other than any Lien created by the SecurityDocuments); and

 

(b)           willnot, and will not cause or permit any of its Subsidiaries (other than anySubsidiary that is part of the Venezuelan Division) to, directly or indirectly,create, incur, assume or suffer to exist any Lien upon or with respect to anyof its other present or future Property, except the following Liens (each a “PermittedLien”):

 

(i)                    any Liencreated by the Security Documents (including any Lien created by an amendmentthereto in connection with the incurrence of Permitted Refinancing Indebtednessin respect of the Mandatory Prepayment Indebtedness);

 

(ii)                   the Liensin favor of each Initial Lender or Minor Derivative Counterparty on such Person’sTemporary Loan Account; provided, however, that such Liens shallbe terminated immediately upon payment of such Initial Lender’s TerminatedDerivative Obligation in accordance with Section 2.03(d) (*Procedure for Making Loans*) or such MinorDerivative Counterparty’s (or its Affiliate’s) “Terminated DerivativeObligation” (as such term is used in the Minor Derivative Counterparty Loans)in accordance with the Minor Derivative Counterparty Loans;

 

(iii)                  any Lien onany Property (or, in the case of a line of credit secured by inventory oraccounts receivable, class of Property) existing on the date hereof and setforth in Schedule 7.01 (*Existing Liens*);provided that such Liens shall secure only those obligations which theysecure on the date hereof;

 

(iv)                  any Lien onany asset securing all or any part of the purchase price of property or assets(excluding inventories) acquired or any portion of the cost of construction,development, alteration or improvement of any property, facility or asset orIndebtedness incurred or assumed solely for the purpose of financing all or anypart of the cost of acquiring or constructing, developing, altering orimproving such property, facility or asset; provided that (A) suchIndebtedness is otherwise permitted by Section 7.16 (*Limitations on Incurrence of Additional Indebtedness*),(B) such Indebtedness does not exceed the lesser of the cost and the fairmarket value of such property, facility or asset, and (C) such Lienattaches solely to such property, facility or asset during the period that suchproperty, facility or asset is being constructed, 

 

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developed, alteredor improved or concurrently with or within one hundred twenty (120) days afterthe acquisition, construction, development, alteration or improvement thereof;

 

(v)                   Liens of aSubsidiary existing prior to the time such Subsidiary became a Subsidiary ofthe Company which (A) do not secure Indebtedness exceeding the aggregateprincipal amount of Indebtedness subject to such Lien prior to the time suchSubsidiary became a Subsidiary of the Company, (B) do not attach to anyProperty other than the Property attached pursuant to such Lien prior to thetime such Subsidiary became a Subsidiary of the Company, and (C) were notcreated in contemplation of such Subsidiary becoming a Subsidiary of theCompany;

 

(vi)                  any Lien onany Property existing thereon at the time of the acquisition of such Propertyand not created in connection with or in contemplation of such acquisition;

 

(vii)                 any Lien onany Property (or, in the case of a line of credit secured by inventory oraccounts receivable, class of Property) securing an extension, renewal,refunding or replacement of Indebtedness or a line of credit secured by a Lienreferred to in clauses (iii), (iv), (v) or (vi) above or this clause(vii); provided that (A) the prior Lien was otherwise permittedpursuant to this Agreement at the time of such extension, renewal, refunding orreplacement; (B) such new Lien is limited to the Property (or, in the caseof a line of credit secured by inventory or accounts receivable, class ofProperty) which was subject to the prior Lien immediately before suchextension, renewal, refunding or replacement; and (C) the principal amountof Indebtedness or the amount of the line of credit secured by the prior Lienis not increased immediately before or in contemplation of or in connectionwith such extension, renewal, refunding or replacement;

 

(viii)                any Liensecuring taxes, assessments and other governmental charges, the payment ofwhich is not yet due or the payment of which is being contested in good faithby appropriate proceedings promptly initiated and diligently conducted and forwhich such reserves or other appropriate provision, if any, as shall berequired by Mexican GAAP or, in the case of Subsidiaries organized under lawsof any other jurisdiction, the applicable GAAP therein, shall have been made;

 

(ix)                  Liensincurred or deposits made in the Ordinary Course of Business in connection withworkers’ compensation, unemployment insurance, other types of social securityand any Liens imposed by ERISA;

 

(x)                   statutoryLiens of landlords and Liens of carriers, warehousemen, mechanics, materialmen,repairmen or the like arising in the Ordinary Course of Business for sums notyet due or the payment of which is being contested in good faith by appropriateproceedings promptly initiated and diligently conducted and for which suchreserves or other appropriate provision, if any, as shall be required byMexican GAAP or, in the case of Subsidiaries organized under laws of any otherjurisdiction, the applicable GAAP therein, shall have been made;

 

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(xi)                  any Liencreated by attachment or judgment (provided that such attachment orjudgment does not constitute an Event of Default), unless the judgment itsecures shall not, within sixty (60) days after the entry thereof, have beendischarged or execution thereof stayed pending appeal;

 

(xii)                 any Lien oncash, Cash Equivalent Investments or in the form of a letter of credit, in eachcase created in connection with, and posted or granted as required by, aHedging Agreement entered into in accordance with Section 7.18 (*Limitations on Hedging*) in an amount notin excess of US$35,000,000 (or the US Dollar Equivalent thereof) in theaggregate at any one time; and

 

(xiii)                Lienscreated to secure Permitted New Indebtedness not in excess of US$250,000,000(or the US Dollar Equivalent thereof) in the aggregate consisting of:

 

(A)                  Liens on realor personal property to secure Permitted New Capital Obligations consisting ofCapital Lease Obligations not in excess of US$50,000,000 (or the US DollarEquivalent thereof); provided that any Lien on real or personal propertyto secure a Permitted New Capital Obligation consisting of a Capital LeaseObligation shall be on the real or personal property leased pursuant to suchCapital Lease Obligation; and

 

(B)                  Liens oninventories or accounts receivable created to secure Permitted New WorkingCapital Indebtedness, when taken together with Liens pursuant to clause(b)(xiii)(A) of this Section 7.01, not in excess of US$250,000,000(or the US Dollar Equivalent thereof), subject to the restrictions on suchIndebtedness in Section 7.16(g) (*Limitationson Incurrence of Additional Indebtedness*);

 

provided that, in addition to the foregoing restrictions, theCompany shall not cause, or permit any Pledged Entity to, directly orindirectly, create, incur, assume or suffer to exist any Lien other thanPermitted Liens that (i) secure Working Capital Indebtedness or PermittedNew Capital Obligations consisting of Capital Lease Obligations, or PermittedRefinancing Indebtedness in respect of the foregoing or (ii) are permittedpursuant to clause (vii) above,  ineach case which Permitted Liens shall not secure such Indebtedness of (x) theGimsa Division in excess of US$250,000,000, (y) the Gruma Corp. Divisionin excess of US$150,000,000 or (z) the Molinera Division in excess ofUS$50,000,000, or, in each case, the US Dollar Equivalent thereof.

 

7.02.       Investments.  The Company will not, and will not cause orpermit any of its Subsidiaries (other than Subsidiaries that are part of theVenezuelan Division) to, make, maintain or suffer to exist any Investment,except the following:

 

(a)           theCompany and its Subsidiaries may make (or, in the case of clause (i) below,maintain) at any time:

 

(i)                    AnyInvestment existing on the date hereof (A) as set forth inSchedule 7.02 (*Existing Investments*)if in excess of US$1,000,000 (or the US Dollar 

 

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Equivalentthereof) and (B) if less than such amount, included in the financialstatements of the Company and/or its Subsidiaries prior to the date hereof;

 

(ii)                   CashEquivalent Investments;

 

(iii)                  CapitalExpenditures not to exceed (A) the Permitted Capital Expenditures Amountand (B) any portion of the Permitted Capital Expenditures Amount carriedover in accordance with Section 7.14(b) (*Limitations on Capital Expenditures*);

 

(iv)                  Investmentsconsisting of extensions of credit of less than sixty (60) days in the natureof accounts receivable or notes receivable arising from the sale or lease ofgoods or services in the Ordinary Course of Business;

 

(v)                   Subject to Section 7.12(c) (*Fundamental Changes, Limitations on Asset Sales,Asset Exchanges and Acquisitions*), and as long as no Default orEvent of Default has occurred and is continuing, or will occur as a result ofsuch Investment, Investments in the Core Business (other than Investments inthe Venezuelan Division) made from any Net Cash Proceeds of a Permitted CompanyEquity Issuance that is consummated in accordance with Section 7.23(a)(ii) (*Equity Issuances*) that are not required tobe applied to the mandatory prepayment of Mandatory Prepayment Indebtednesspursuant to Section 2.05(e) (*MandatoryPrepayments*);

 

(vi)                  Subject to Section 7.12(c) (*Fundamental Changes, Limitations on Asset Sales,Asset Exchanges and Acquisitions*), Investments in the long-termproductive assets used in the Core Business (other than Investments in theVenezuelan Division) made from 50% of the Net Cash Proceeds of an Asset Saleduring the relevant Reinvestment Period for such Asset Sale; provided that (x) noDefault or Event of Default has occurred and is continuing, or will occur as aresult of such Investment, (y) a Reinvestment Certificate has beendelivered within the applicable Required Payment Period for such Asset Sale and(z) the Company has made any mandatory prepayments required pursuant to Section 2.05(a) (*Mandatory Prepayments*);

 

(vii)                 Investmentsto Restore Property affected by a Casualty Event made from the Net CashProceeds of such Casualty Event and made during the relevant ReinvestmentPeriod for such Casualty Event; provided that (w) no Default orEvent of Default has occurred and is continuing, or will occur as a result ofsuch Investment, (x) the Company has (i) filed an insurance claim inrespect of such Casualty Event within five (5) Business Days thereof and (ii) delivereda Casualty Certificate within ten (10) Business Days following the filingof such claim, (y) the Company has made any mandatory prepayments requiredpursuant to Section 2.05(c) (*MandatoryPrepayments*) and (z) the aggregate value of Investments inrespect of any Casualty Event do not exceed (i) US$10,000,000 (or the USDollar Equivalent thereof) unless the written consent of the Majority Lendershas been obtained or (ii) US$55,000,000 (or the US Dollar Equivalentthereof) in any event;

 

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(viii)                HedgingAgreements permitted by and entered into in accordance with Section 7.16(f) (*Limitations on Incurrence of Additional Indebtedness*)and Section 7.18 (*Limitations onHedging*);

 

(ix)                  Investmentsin Intercompany Indebtedness permitted by and made in accordance with Sections7.16(e), 7.16(h) or 7.16(j) (*Limitationson Incurrence of Additional Indebtedness*); and

 

(x)                   Investmentsin Subsidiaries, other than Subsidiaries in the Venezuelan Division, consistingof (x) Intercompany Indebtedness Capitalization made prior to January 1,2010 in an aggregate amount not to exceed an amount equal to the sum of (A) theamount of Existing Intercompany Indebtedness set forth on Schedule 5.21(b) (*Existing Intercompany Indebtedness*) and (B) US$30,000,000(or the US Dollar Equivalent thereof) and (y) Intercompany IndebtednessCapitalization in an aggregate amount not to exceed US$30,000,000 (or the USDollar Equivalent thereof) per annum thereafter; and

 

(b)           aslong as no Default or Event of Default has occurred and is continuing, or willoccur as a result of such Investment, in any Fiscal Year, if such Fiscal Yearfollows an Excess Cash Year, the Company and its Subsidiaries may make, solelyfrom the Available Excess Cash Amount for such Fiscal Year, RestrictedInvestments (other than Investments in the Venezuelan Division, which shall bedeemed excluded from this Clause (b)) in an amount not to exceed in theaggregate for the Company and its Subsidiaries the Permitted New InvestmentAmount;

 

provided, however, that notwithstanding any of theforegoing clauses (a) and (b), the Company and its Subsidiaries (otherthan Subsidiaries that are part of the Venezuelan Division) shall not make anyInvestments in the Venezuelan Division.

 

7.03.       Mergers, Consolidations, Sales andLeases.  The Company will not, andwill not permit or cause any of its Material Subsidiaries (other than anySubsidiary that is part of the Venezuelan Division) to (x) dissolve orliquidate, or (y) merge, amalgamate or consolidate with or into, or (z) convey,transfer or lease all or substantially all of its Property (other than Propertyof any Subsidiary that is part of the Venezuelan Division) (whether now ownedor hereinafter acquired) to or in favor of any Person (in each case, whether inone transaction or a series of transactions), unless (i) the MajorityLenders consent to such dissolution, liquidation, merger, amalgamation,consolidation, conveyance, transfer or lease and (ii) immediately aftergiving effect to any dissolution, liquidation, merger, amalgamation,consolidation, conveyance, transfer or lease:

 

(a)           noDefault or Event of Default has occurred and is continuing; and

 

(b)           inthe case of a merger, amalgamation, consolidation, or conveyance, transfer orlease of substantially all of the Company’s Property, any corporation formed byany such merger or consolidation with the Company or the Person which acquiresby conveyance or transfer, or which leases, all or substantially all of theCompany’s Property shall expressly assume in writing the due and punctualpayment of the principal of, and interest on all Obligations, according totheir terms, and the due and punctual performance of all of the covenants andobligations of the 

 

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Company under this Agreement by an instrument in formand substance reasonably satisfactory to the Majority Lenders and shall providean opinion of counsel acceptable to the Majority Lenders, obtained at theCompany’s expense, on which the Administrative Agent and the Lenders mayconclusively rely;

 

provided that the consent of the Majority Lenders shall not berequired for any merger, consolidation, conveyance, transfer or lease in whicha Material Subsidiary (other than a Pledged Entity or its Subsidiaries) mergeswith any other Subsidiary (other than a Pledged Entity or its Subsidiaries)where the Material Subsidiary is the surviving entity; and

 

provided further that, notwithstanding the foregoing, the Company willnot, and will not permit or cause any of the Pledged Entities or theirrespective Subsidiaries to (x) dissolve or liquidate, or (y) merge,amalgamate or consolidate with or into, or (z) convey, transfer or leaseall or substantially all of its Property (whether now owned or hereinafteracquired) to or in favor of any Person (in each case, whether in onetransaction or a series of transactions).

 

7.04.       Restricted Payments.  The Company will not, and will not cause orpermit any of its Subsidiaries to, declare or make, directly or indirectly, anyRestricted Payment, or incur any obligation (contingent or otherwise) to do so.Notwithstanding the foregoing limitation, and if and to the extent permitted bythis Agreement, the Company or any Subsidiary may declare or make the followingRestricted Payments:

 

(a)           eachSubsidiary may make Restricted Payments:

 

(i)                    to theCompany (and, in the case of such Restricted Payment by a non-wholly-ownedSubsidiary, to each other owner of capital stock of such Subsidiary on a prorata basis based on their relative ownership interests);

 

(ii)                   consistingof dividend payments or other distributions in respect of such Subsidiary’scapital stock, partnership interest or ownership interest to any otherSubsidiary of the Company (and, in the case of such Restricted Payment by anon-wholly-owned Subsidiary, to each other owner of capital stock of suchSubsidiary on a prorata basis based on their relative ownershipinterests); and

 

(iii)                  other thanas permitted by clauses (i) or (ii) above, as long as no Default orEvent of Default has occurred and is continuing, to wholly-owned Subsidiaries(other than any Subsidiary that is part of the Venezuelan Division) (and, inthe case of such Restricted Payment by a non-wholly-owned Subsidiary, to theCompany and any Subsidiary (other than any Subsidiary that is part of theVenezuelan Division) and to each other owner of capital stock of suchSubsidiary on a prorata basis based on their relative ownershipinterests); provided that such Restricted Payment would be otherwisepermitted by 7.02(b) (*Investments*);

 

(b)           theCompany and each Subsidiary may declare and make dividend payments or otherdistributions payable solely in the common stock of such Person;

 

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(c)           aslong as no Default or Event of Default has occurred and is continuing, or wouldoccur as a result of such Restricted Payment, Gimsa may purchase shares of thecapital stock of Gimsa to the extent permitted pursuant to Section 7.02 (*Investments*);

 

(d)           aslong as no Default or Event of Default has occurred and is continuing, or wouldoccur as a result of such Restricted Payment, the Company may declare and makedividend payments in respect of its preferred stock; provided that theCompany has made any required mandatory prepayment in connection with theissuance thereof pursuant to Section 2.05(e) (*Mandatory Prepayments*); and

 

(e)           aslong as no Default or Event of Default has occurred and is continuing, or wouldoccur as a result of such Restricted Payment, the Company may declare and makedividend payments in respect of its common stock; provided that:

 

(i)                    on the datesuch dividend payment is declared (A) the Leverage Ratio has been equal toor less than 3.0:1.0 for the twelve (12)-month period prior to such date, (B) atleast 40% of the aggregate principal amount of the Loans has been paid and (C) afterthe date of this Agreement, the Company has made Permitted Company EquityIssuances that have provided Net Cash Proceeds to the Company of at least US$100,000,000(or the US Dollar Equivalent thereof) of common stock and has made allmandatory prepayments required by Section 2.05(e) (*Mandatory Prepayments*) in connectiontherewith; and

 

(ii)                   the Companymakes a mandatory prepayment in respect of such dividend payment pursuant to Section 2.05(f) (*Mandatory Prepayments*).

 

7.05.       OtherAgreements.  The Company will not,and will not cause or permit any of its Subsidiaries to enter into, renew,suffer or permit to exist or become effective, any agreement or arrangementwith any other Person with respect to the incurrence of any Indebtedness thatcontains any covenants (including but not limited to, affirmative, financial ornegative covenants) mandatory prepayments or events of default that are morerestrictive than those set forth herein.

 

7.06.       Burdensome Agreements. The Company will not, and will not cause or permit any of itsSubsidiaries to, create, cause, incur, assume, enter into, renew, extend,suffer or permit to exist on or become effective, any consensual encumbrance orrestriction of any kind or agreement that: (a) expressly prohibits orrestricts the payment of dividends or other distributions to the Company or themaking of loans to the Company or the ability to transfer any of its propertyor assets to any of the foregoing, other than in connection with themaintenance, renewal or extension of any agreement listed in Schedule 5.12(b) (*Restrictive Subsidiary Agreements*), providedthat (i) the restrictions or prohibitions under such agreement are notincreased as a result of such renewal or extension, and (ii) in connectionwith any such renewal or extension of an agreement that does not alreadycontain any such prohibition, the Company will not, and will not permit itsSubsidiaries to, agree to or accept the inclusion of such prohibition; (b) subordinatesany Indebtedness (other than Intercompany Indebtedness) owed to the Company orits Subsidiaries, or (c) in any way restricts or otherwise prevents theCompany from performing its obligations under any Loan Document, provided thatany payment or 

 

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Disposition of Property otherwise permitted by thisAgreement shall not be deemed to restrict or otherwise prevent the Company fromperforming its obligations under any Loan Document.

 

7.07.       Transactionswith Affiliates; Arm’s Length Transactions. The Company will not, and will not cause or permit any of itsSubsidiaries to, enter into, renew or extend or be a party to any transactionor series of related transactions with (a) any Affiliate of the Company, (b) anyJoint Venture Partner, or (c) any director or officer of the Company,except in each case if such transaction is entered into upon fair andreasonable terms no less favorable to the Company or such Subsidiary than areobtainable in a comparable arm’s length transaction with an independentunrelated third party that is not one of the persons listed in (a), (b) or(c) above.  The Company will not,and will not cause or permit any of its Subsidiaries to, enter into anytransaction other than on an arm’s length basis.

 

7.08.       NoSubsidiary Guarantees of Certain Indebtedness.  The Company will not cause or permit any ofits Subsidiaries, directly or indirectly, to guarantee or otherwise becomeliable or responsible for, in any manner, any Indebtedness of the Company.

 

7.09.       Interest Coverage Ratio.  The Companywill not permit its Interest Coverage Ratio as of the last day of any FiscalQuarter ending after the date of this Agreement to be less than the following ratios in the following years:

 
| **Fiscal Year ending December 31,** | ** ** | **Interest Coverage Ratio** | ** ** |
|------------------------------------------|------------|-----------------------------|------------|
| 2009                                     |       | 2.50 to 1.00                |       |
| 2010                                     |       | 2.50 to 1.00                |       |
| 2011                                     |       | 2.75 to 1.00                |       |
| 2012                                     |       | 2.75 to 1.00                |       |
| 2013                                     |       | 2.75 to 1.00                |       |
| 2014                                     |       | 2.75 to 1.00                |       |
| 2015                                     |       | 2.75 to 1.00                |       |
| 2016                                     |       | 2.75 to 1.00                |       |
| 2017                                     |       | 2.75 to 1.00                |       |

 

7.10.       Leverage Ratio. The Company will not permit its Leverage Ratio on any date after thedate of this Agreement to be greater than the following ratios in the following years:

 
| **Fiscal Year ending December 31,** | ** ** | **Leverage Ratio** | ** ** |
|------------------------------------------|------------|--------------------|------------|
| 2009                                     |       | 5.95 to 1.00       |       |
| 2010                                     |       | 5.60 to 1.00       |       |
| 2011                                     |       | 5.00 to 1.00       |       |
| 2012                                     |       | 4.50 to 1.00       |       |
| 2013                                     |       | 4.00 to 1.00       |       |
| 2014                                     |       | 3.60 to 1.00       |       |
| 2015                                     |       | 3.00 to 1.00       |       |
| 2016                                     |       | 2.50 to 1.00       |       |
| 2017                                     |       | 2.50 to 1.00       |       |

 

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7.11.       Limitationson Changes to Constituent Documents, Indebtedness, Corporate Existence,Business.  The Company will not, andwill not cause or permit any of its Subsidiaries to:

 

(a)           amend,modify or otherwise change any of its Organizational Documents in any way thatwould adversely affect the Lenders; provided  that any amendment, modification or changethat would adversely affect the value of Collateral, the IntercompanyIndebtedness or the ability of any Lender to enforce its rights in theCollateral or exercise its rights under the Intercompany Trust Agreement shallbe deemed to adversely affect the Lenders;

 

(b)           amend,modify or otherwise change the terms of any Reporting Indebtedness (includingthrough an amendment or modification to the Reporting IndebtednessDocumentation or the entry into any Contractual Obligation in respect of theReporting Indebtedness) in any way that would (i) require additionalmandatory prepayments of such Reporting Indebtedness, (ii) require theCompany or its Subsidiaries to incur any Liens, (iii) reduce the weightedaverage maturity of such Reporting Indebtedness, (iv) increase the interestrate or any other amount payable in respect of such Reporting Indebtedness, (v) requirethe payment of any fees to the holders of such Reporting Indebtedness (otherthan nominal amendment and waiver fees in amounts consistent with marketpractice at the time such fees are paid), or (vi)  in any way that wouldotherwise adversely affect (x) the economic rights of the Lenders or (y) theeconomic obligations of the Company in a more onerous manner than the terms ofsuch Reporting Indebtedness;

 

(c)           takeany action or conduct its affairs in a manner that could reasonably be expectedto result in its corporate existence being ignored by any court of competentjurisdiction or in its assets and/or liabilities being substantivelyconsolidated with those of any other Person in a bankruptcy, reorganization orother insolvency proceeding; or

 

(d)           withrespect to the Company, change its accounting policies or tax reportingpractices (other than as permitted by Mexican GAAP) or change the end of itsFiscal Year to a date other than December 31 (regardless of whether suchchange is permitted by Mexican GAAP).

 

7.12.       FundamentalChanges, Limitations on Asset Sales, Asset Exchanges and Acquisitions.

 

(a)           TheCompany will not, and will not cause or permit any of its Subsidiaries toconduct any Asset Sales (other than Asset Sales by any Subsidiary that is partof the Venezuelan 

 

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Division) except Asset Sales in respect of which (i) theconsideration for such Asset Sale is at least 80% cash and (ii) amandatory prepayment is made in accordance with Section 2.05(a) (*Mandatory Prepayments*);

 

(b)           Notwithstanding clause (a) above or any other provisionof this Agreement, the Company will not, and will not cause or permit any ofits Subsidiaries to (i) Dispose of any of the Collateral at any time or (ii) conductany Asset Sale (other than Asset Sales by any Subsidiary that is part of theVenezuelan Division) in any Fiscal Year if the fair market value of such AssetSale, as evidenced by the relevant sales documentation, when taken togetherwith the aggregate fair market value of all other Asset Sales, as evidenced bythe relevant sales documentation (other than Asset Sales by any Subsidiary thatis part of the Venezuelan Division) conducted in such Fiscal Year, would exceedUS$50,000,000 (or the US Dollar Equivalent thereof) in the aggregate for suchFiscal Year.

 

(c)           TheCompany and its Subsidiaries may acquire all or substantially all of the assetsor capital stock of any Person (the “Target”) (in each case, a “PermittedAcquisition”) subject to any other limitations under this Agreement and thesatisfaction of each of the following conditions:

 

(i)                    theAdministrative Agent shall receive at least fifteen (15) days’ prior writtennotice of such proposed Permitted Acquisition, which notice shall include areasonably detailed description of such proposed Permitted Acquisition;

 

(ii)                   suchPermitted Acquisition shall only involve assets comprising a business, or thoseassets of a business, engaged in the Core Business, and which would not subjectthe Administrative Agent or any Lender to regulatory or third party approvalsin connection with the exercise of its rights and remedies under this Agreementor any other Loan Documents other than approvals applicable to the exercise ofsuch rights and remedies with respect to Company prior to such PermittedAcquisition;

 

(iii)                  no additionalIndebtedness or other liabilities other than Indebtedness permitted pursuant toSection 7.16 (*Limitations on Incurrenceof Additional Indebtedness*) shall be incurred, assumed or otherwisebe reflected on a consolidated balance sheet of Company and Target after givingeffect to such Permitted Acquisition, except ordinary course trade payables andaccrued expenses;

 

(iv)                  the sum ofall amounts payable in connection with all Permitted Acquisitions (including,without duplication, all transaction costs and all Indebtedness and liabilities(other than customary indemnities provided by purchasers) incurred or assumedin connection therewith or otherwise reflected on a consolidated balance sheetof Company and Target) shall be permitted pursuant to Section 7.02 (*Investments*);

 

(v)                   at the timeof such Permitted Acquisition and after giving effect thereto, no Default orEvent of Default has occurred and is continuing.

 

(vi)                  the businessand assets acquired in such Permitted Acquisition shall be free and clear ofall Liens (other than Liens permitted pursuant to Section 7.01 (*Negative Pledge*)); and

 

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(vii)                 with respectto any Permitted Acquisition where the aggregate consideration (including anyassumption of Indebtedness) in connection therewith is equal to or greater thanUS$40,000,000 (or the US Dollar Equivalent thereof):

 

(A)                  Target shallhave had a consolidated EBITDA of greater than negative US$5,000,000 (or the USDollar Equivalent thereof), pro forma for adjustments reasonably satisfactoryto the Administrative Agent for the trailing twelve-month period preceding thedate of the Permitted Acquisition, as determined based upon the Target’sfinancial statements for its most recently completed fiscal year and its mostrecent interim financial period completed within sixty (60) days prior to thedate of consummation of such Permitted Acquisition; and

 

(B)                  Concurrentlywith delivery of the notice referred to in clause (i) above, the Companyshall have delivered to the Administrative Agent:

 

a.             a pro forma consolidated balance sheet, income statementand cash flow statement of the Company and its Subsidiaries (the “AcquisitionPro Forma”), based on recent financial statements, which shall be completeand shall fairly present in all material respects the assets, liabilities,financial condition and results of operations of the Company and itsSubsidiaries in accordance with GAAP consistently applied, but taking intoaccount such Permitted Acquisition; and

 

b.             a certificate of the chief financial officer of theCompany to the effect that:  (i) theCompany will be Solvent upon the consummation of the Permitted Acquisition; (ii) theAcquisition Pro Forma fairly presents the financial condition of the Companyand its Subsidiaries (on a consolidated basis) as of the date thereof aftergiving effect to the Permitted Acquisition; and (iii) the Company and itsSubsidiaries have completed their due diligence investigation with respect tothe Target and such Permitted Acquisition, which investigation has producedresults satisfactory to the Company and its Subsidiaries.

 

7.13.       Limitationson Sale Lease-Back Transactions.  TheCompany will not, and will not cause or permit any of its Subsidiaries (otherthan Subsidiaries that are part of the Venezuelan Division) to, directly or indirectly, enter intoany Sale Lease-Back Transactions other than Permitted New Capital Obligationsthat are permitted by Section 7.16(g) (*Limitations on Incurrence of Additional Indebtedness*)consisting of Sale Lease-Back Transactions.

 

7.14.       Limitationson Capital Expenditures.

 

(a)           Subjectto clauses (b) and (c) below, the Company will not, and will notcause or permit any of its Subsidiaries to, directly or indirectly, make (or beor become legally or contractually obligated to make) any Capital Expenditures(other than Capital Expenditures in Venezuela by Subsidiaries that are partof the Venezuelan Division) during any Fiscal Year that 

 

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would cause the aggregate Capital Expenditures forsuch year to exceed the Permitted Capital Expenditures Amount for such FiscalYear (which amount shall include any Permitted New Capital Obligationsconsisting of Capital Lease Obligations incurred in such Fiscal Year).

 

(b)           Tothe extent that the Company and its Subsidiaries do not expend the fullPermitted Capital Expenditures Amount in any given Fiscal Year, the Company andits Subsidiaries will be permitted to carry forward any Unused CapEx to theimmediately following Fiscal Year (but not to any subsequent Fiscal Year); providedthat (i) the Company has delivered the CapEx Report in the present FiscalYear and (ii) no Default or Event of Default has occurred and iscontinuing or would occur after giving effect to such transaction.

 

(c)           Inaddition to the foregoing, the Company may, in its discretion, make additionalCapital Expenditures to the extent permitted by Section 7.02(b) (*Investments*); provided that (i) theCompany has delivered the CapEx Report in the present Fiscal Year and (ii) noDefault or Event of Default has occurred and is continuing or would occur aftergiving effect to such Capital Expenditure.

 

7.15.       Limitationson Voluntary Prepayments of Indebtedness. The Company will not, and will not cause or permit any of itsSubsidiaries to, directly or indirectly (a) make any Optional OtherPrepayment of Indebtedness other than Optional Other Prepayments for which amandatory prepayment is made pursuant to Section 2.05(i) (*Mandatory Prepayments*), if applicable, or (b)make any payment in violation of any subordination terms of any Indebtedness,other than the payment of Venezuelan Non-Recourse Indebtedness by anySubsidiary that is part of the Venezuelan Division.

 

7.16.       Limitationson Incurrence of Additional Indebtedness. The Company will not, and will not cause or permit any of itsSubsidiaries to, directly or indirectly, create, incur, assume or suffer toexist any Indebtedness; provided that the Company and its Subsidiariesshall be permitted to incur, assume, or suffer to exist, without duplication:

 

(a)           Indebtednessunder the Loan Documents;

 

(b)           ExistingIndebtedness listed on Schedule 5.21(a) (*ExistingIndebtedness*);

 

(c)           PermittedRefinancing Indebtedness (provided that, if applicable, the Company makesany mandatory prepayment required by Section 2.05(h) (*Mandatory Prepayments*));

 

(d)           VenezuelanNon-Recourse Indebtedness;

 

(e)           VenezuelanRecourse Indebtedness in respect of Indebtedness owed to Persons other than theCompany or its Affiliates in an amount not to exceed US$40,000,000 (or the USDollar Equivalent thereof) outstanding at any one time to the extent suchVenezuelan Recourse Indebtedness is Working Capital Indebtedness, the proceedsof which are used solely for grain purchases (“Permitted Venezuelan RecourseIndebtedness”);

 

(f)            theAgreement Value of Hedging Agreements executed in accordance with Section 7.18(*Limitations on Hedging*);

 

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(g)           Aslong as no Default or Event of Default has occurred and is continuing or wouldoccur after giving effect to such Indebtedness under this clause (g),additional Indebtedness not otherwise permitted by this Section 7.16 in anaggregate amount for the Company and its Subsidiaries at any time outstandingnot to exceed an amount equal to (x) US$250,000,000 (or the US DollarEquivalent thereof) less (y) the aggregate principal amount of all ReportoContracts outstanding at such time (such Indebtedness, “Permitted NewIndebtedness”), to the extent such Permitted New Indebtedness:

 

(i)                    is eitherunsecured or secured in accordance with Section 7.01 (*NegativePledge*); and

 

(ii)                   consists ofeither: (x) Working Capital Indebtedness (excluding Venezuelan RecourseIndebtedness); provided that the Company shall comply with Section 6.13(*Working Capital Indebtedness Clean-Down*)(such Working Capital Indebtedness, “Permitted New Working CapitalIndebtedness”), or (y) no more than US$50,000,000 (or the US DollarEquivalent thereof) of Capital Lease Obligations and/or Sale Lease-BackTransactions related to the Company’s Core Business (collectively, “PermittedNew Capital Obligations”);

 

(h)           anyof the following Guaranty Obligations in respect of Indebtedness owed toPersons other than the Company or its Affiliates (provided that solelyfor the purposes of this Section 7.16(h), Grupo Financiero Banorte S.A.B.de C.V. and its Subsidiaries shall not be considered Affiliates of theCompany):

 

(i)                    GuarantyObligations of a Subsidiary in respect of obligations of its direct or indirectSubsidiaries that are related to the Core Business; provided that,notwithstanding the foregoing, any Subsidiary that is not part of theVenezuelan Division may not incur Guaranty Obligations in respect ofobligations of any Subsidiary that is part of the Venezuelan Division;

 

(ii)                   thePermitted Bancomext Guaranty;

 

(iii)                  theGuaranty Obligation incurred by the Company in respect of operating leases ofSubsidiaries that are not part of the Gruma Corp. Division, the Latin AmericanDivisions or the Venezuelan Division; provided that such GuarantyObligation shall not exceed US$25,000,000 (or the US Dollar Equivalentthereof);

 

(iv)                  GuarantyObligations of the Company in respect of Indebtedness not to exceedUS$60,000,000 (or the US Dollar Equivalent thereof) outstanding principalamount in the aggregate at any time, consisting of:

 

(A)                  WorkingCapital Indebtedness (other than Venezuelan Recourse Indebtedness, andincluding Guaranty Obligations in respect of Existing Working CapitalIndebtedness but excluding the Permitted Bancomext Guaranty) or IT OperatingLeases of Subsidiaries that are part of the Gimsa Division, in each case to theextent permitted under this clause (iv), which Working Capital Indebtedness andIT Operating Leases shall not exceed US$60,000,000 (or the US 

 

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Dollar Equivalentthereof) of outstanding principal amount in the aggregate at any time;

 

(B)                  WorkingCapital Indebtedness of Subsidiaries that are part of the Central AmericaDivision  (including Guaranty Obligationsin respect of Existing Working Capital Indebtedness but excluding the PermittedBancomext Guaranty) to the extent permitted pursuant to this clause (iv), whichWorking Capital Indebtedness shall not exceed US$35,000,000 (or the US DollarEquivalent thereof) of outstanding principal amount in the aggregate at anytime;

 

(C)                  WorkingCapital Indebtedness of Subsidiaries that are part of the Molinera Division(including Guaranty Obligations in respect of Existing Working CapitalIndebtedness but excluding the Permitted Bancomext Guaranty), to the extentpermitted pursuant to this clause (iv), which Working Capital Indebtednessshall not exceed US$20,000,000 (or the US Dollar Equivalent thereof) ofoutstanding principal amount in the aggregate at any time;

 

(i)           OtherRestructured Indebtedness; and

 

(j)           Intercompany Indebtedness (i) evidencedby and issued pursuant to the Intercompany Revolving Facilities in accordancewith Section 6.14 (*IntercompanyIndebtedness*), (ii) subordinated to the Loans pursuant to theIntercompany Subordination Agreement and the Intercompany Trust Agreement(other than, in each case, Intercompany Indebtedness owed by the Company to aSubsidiary in the Gimsa Division), and (iii) where all rights of such IntercompanyLender of such Intercompany Indebtedness (other than Intercompany Indebtednessowed  by the Company to a Subsidiary inthe Gimsa Division) have been assigned to the Trustee pursuant to theIntercompany Trust Agreement;

 

provided that, in addition to the foregoing restrictions, theCompany and its Subsidiaries will not, and will not cause, or permit any of itsSubsidiaries to, directly or indirectly, create, incur, assume or suffer toexist any Indebtedness otherwise permitted by this Section 7.16 (except Permitted RefinancingIndebtedness that is actually applied within five (5) Business Days toprepay Indebtedness being Refinanced (plus the amount of anypremium required to be paid under the terms of the instrument governing suchIndebtedness being Refinanced) and any other Indebtedness required to be prepaid pursuant to Section 2.05(*Mandatory Prepayments*) (and anybreakage costs in connection therewith)) if the creation, incurrence,assumption or existence of such Indebtedness would cause the Leverage Ratio toexceed the limits set in Section 7.10 (*LeverageRatio*) or the Interest Coverage Ratio to be less than the minimumset forth in Section 7.09 (*InterestCoverage Ratio*) on a pro forma basis; and

 

providedfurther that, in addition to the foregoing restrictions, the Company shall notcause, or permit any of the Pledged Entities or their direct or indirectSubsidiaries to, directly or indirectly, (x) incur Indebtedness other thanIndebtedness permitted under Section 7.16(b), (c), (f), (g), (h)(i) or(j) or (y) create,incur, assume or suffer to exist outstanding Indebtedness in excess ofUS$250,000,000 (or the US Dollar Equivalent thereof) at any time in the case ofthe Gimsa Division, US$200,000,000 (or the US Dollar Equivalent thereof) at anytime in the case of the Gruma Corp. Division and US$50,000,000 (or the USDollar Equivalent thereof) at any

 

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time in the case of theMolinera Division (including, in each case, Indebtedness permitted under Section 7.16(b)).

 

7.17.       Limitationson ERISA Deficiencies.  The Companyshall not, and shall not cause or permit any of its Subsidiaries or any ERISAAffiliate to (i) permit any Pension Plan to incur any “funding deficiency,”whether or not waived, within the meaning of Section 302 of ERISA or Section 412of the Code or (ii) permit or cause the Unfunded Pension Liability of allPension Plans to exceed, in the aggregate, US$10,000,000 (or the US DollarEquivalent thereof).

 

7.18.       Limitationson Hedging.

 

(a)           TheCompany will not, and will not cause or permit any Subsidiary to, enter into(or become legally obligated to enter into) any Hedging Agreement or transactionunder any Hedging Agreement that:

 

(i)                    is forspeculative purposes or is with the aim of obtaining profits based on changingmarket values;

 

(ii)                   is based onor associated with the underlying value of a product, interest rate or currencyother than those products, interest rates or currencies that are used by theCompany or such Subsidiary in the Ordinary Course of Business;

 

(iii)                  has anotional value that exceeds:

 

(A)                  in the caseof a commodity or product, 150% of the volume of such commodity or productconsumed by the Company or such Subsidiary during the most recent MeasurementPeriod; or

 

(B)                  in the caseof an interest rate or currency, the Company’s or such Subsidiary’srequirements for such interest rate or currency (pursuant to the Company’s orsuch Subsidiary’s Contractual Obligations) for the eighteen (18) monthsimmediately following the date of such Hedging Agreement;

 

(iv)                  has a tenorof more than eighteen (18) months;

 

(v)                   would causethe aggregate notional amount of all Hedging Agreements with any singlecounterparty to exceed US$100,000,000 (or the US Dollar Equivalent thereof);

 

(vi)                  is with acounterparty other than a Qualified Counterparty; or

 

(vii)                 is inviolation of, or otherwise violates, the Hedging Policy as in effect from time totime;

 

provided that the Company will be permitted to enter intonon-speculative Hedging Agreements for the purpose of hedging the full amountof the interest rate risk associated with the Loans and the Other RestructuredIndebtedness if such Hedging Agreements otherwise are in compliance withclauses (i), (ii), (v), (vi) and (vii) above.

 

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(b)           TheCompany will not:

 

(i)                    permit orcause the effectiveness of the Hedging Policy to lapse until all Loans havebeen repaid;

 

(ii)                   permit orcause the Hedging Policy to permit hedging for speculative purposes or with theaim of obtaining profits based on changing market values;

 

(iii)                  amend orotherwise change the Hedging Policy unless (x) such amendment or changehas been approved by the Board of Directors of the Company (or of a committeeduly delegated by such Board of Directors comprised of two (2) or moremembers thereof) and (y) the Administrative Agent is provided with writtennotice and copies of such amendment or change to the Hedging Policy no laterthan five (5) Business Days after any such amendment or change is approvedas contemplated above.

 

7.19.       IntercompanyIndebtedness.

 

(a)           TheCompany will not, and will not cause or permit any Subsidiary to enter into ormaintain any Intercompany Indebtedness other than (i) Guaranty Obligationspermitted by Sections 7.16(e) or 7.16(h) (*Limitations on Incurrence of Additional Indebtedness*) and (ii) Intercompany Indebtedness entered into pursuant to Section 6.14 (*Intercompany Indebtedness*) and that iseither (x) owed toany Subsidiary in the Gimsa Division by the Company or (y) subordinated tothe Loans pursuant to the Intercompany Subordination Agreement and theIntercompany Trust Agreement, and where all rights of such Intercompany Lenderof such Intercompany Indebtedness (other than Intercompany Indebtedness owed toany Subsidiary in the Gimsa Division by the Company) have been assigned to theTrustee pursuant to the Intercompany Trust Agreement.

 

(b)           TheCompany will not, and will not cause or permit any Subsidiary to, amend orwaive any part of the Intercompany Revolving Facilities in any way that wouldresult in (i) a violation of this Agreement or (ii) a change of anykind in the provisions of the Intercompany Revolving Facilities relating to thesubordination of the Intercompany Indebtedness.

 

(c)           Upon the occurrence and during the continuation of an Eventof Default, the Company will not make any payment to any Subsidiary pursuant tothe terms of any Intercompany Indebtedness and will not take any action whichcould cause or result in such payment being made.

 

7.20.       MaterialSubsidiaries.  The Company will not,at any time, permit or cause the Company and its Material Subsidiaries to:

 

(a)           ownless than 85% of the total assets of the Company and its ConsolidatedSubsidiaries as of the end of the Company’s most recently completed FiscalYear; or

 

(b)           generateless than 85% of earnings before income tax and employee statutory profitsharing of the Company and its Consolidated Subsidiaries as of the end of theCompany’s most recently completed Fiscal Year;

 

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provided that at any time, the Company may, by written noticeto the Administrative Agent, amend Schedule 1.01(b) (*Existing Material Subsidiaries*) so as to (x) make anySubsidiary a Material Subsidiary or (y) remove any Subsidiary fromSchedule 1.01(b) (*Existing MaterialSubsidiaries*)**if suchSubsidiary (i) does not qualify as a Material Subsidiary pursuant toclauses (a), (b) or (d) of the definition thereof and (ii) isnot required for the Company to meet the conditions specified in clauses (a) and(b) above.

 

7.21.       UncertificatedShares.  The Company will not, at anytime, permit or cause Gruma Corp. or Molinera to have uncertificated shares ofcapital stock.

 

7.22.       ReportoContracts.  The aggregate principalamount of all of the Reporto Contracts at any time when taken together with allPermitted New Indebtedness shall not exceed US$250,000,000 (or the US DollarEquivalent thereof).

 

7.23.       EquityIssuances.

 

(a)           TheCompany will not, and will not cause or permit any Subsidiary to issue anycapital stock of the Company or such Subsidiary, except:

 

(i)                    the Companymay pay dividends in capital stock of the Company and a Subsidiary of theCompany may pay dividends in capital stock of such Subsidiary, in each case inaccordance with Section 7.04(b) (*RestrictedPayments*); and

 

(ii)                   the Companymay issue capital stock of the Company in a primary offering (such issuance a “PermittedCompany Equity Issuance”); provided that the Company makes anyrequired mandatory prepayment pursuant to Section 2.05(e) (*Mandatory Prepayments*).

 

(b)           Forthe avoidance of doubt, the Company shall not cause or permit any Subsidiary toissue any capital stock (other than to the Company, but only to the extentreasonably necessary in connection with an Intercompany IndebtednessCapitalization permitted under Section 7.02(a)(x) (*Investments*)).

 

7.24.       Dilution.  The Company will not, without the consent ofthe Lenders required by Section 10.01(b) (*Amendments and Waivers*), permit or cause a decrease in theCompany’s ownership of any of the Pledged Entities, whether through theissuance of additional shares of capital stock of a Pledged Entity, Dispositionby the Company of any capital stock of a Pledged Entity or otherwise.

 

ARTICLEVIIIEVENTS OF DEFAULT

 

8.01.       Eventsof Default.  Any of the followingevents shall constitute an “Event of Default”:

 

(a)           Non-Payment.  The Company fails to pay (i) when and asrequired to be paid herein, any amount of principal of any Loan, (ii) withinthree (3) days after the same becomes due, any interest payablehereunder or under any other Loan Document or (iii) within five (5) 

 

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days after the same becomes due, any other amountpayable hereunder (including any amount due under any other Loan Document), in each case whether at the due date thereof orat a date fixed for mandatory prepayment thereof or by acceleration orotherwise; or

 

(b)           Representationor Warranty.  Any representation orwarranty by the Company made herein or in any other Loan Document, or which iscontained in any certificate, document or financial or other statement by theCompany or any Senior Officer of the Company, furnished at any time under thisAgreement or any other Loan Document, is incorrect in any material respect onor as of the date made; or

 

(c)           SpecificDefaults.  The Company fails toperform or observe any term, covenant or agreement contained in Sections 6.02(a) (*Notice of Other Events*), 6.03(a) (*Maintenance of Existence; Conduct of Business*)with respect to the corporate existence of the Company and the MaterialSubsidiaries, 6.05 (*Maintenance ofGovernment Approvals*), 6.08 (*Ranking;Priority*) or 6.11 (*SecurityDocuments*) or fails to perform or observe any term, covenant oragreement contained in Article VII (*NegativeCovenants*); or

 

(d)           OtherDefaults.  The Company fails toperform or observe any other term or covenant contained in this Agreement or inany other Loan Document (other than as specified in clauses (a) and (c) above),and such default continues unremedied for a period of thirty (30) days afterthe earlier of (a) date upon which written notice thereof isgiven to the Company by the Administrative Agent or any Lender or (b) the date on which the Company hasknowledge thereof; or

 

(e)           Cross-Default.  The Company or any of its MaterialSubsidiaries (i) fails to make any payment in respect of any Indebtedness(other than Indebtedness hereunder and under the Notes) having an aggregateprincipal amount (or its US Dollar Equivalent) equal to US$20,000,000 (or theUS Dollar Equivalent thereof) or more when due (whether by scheduled maturity,required prepayment, acceleration, demand, or otherwise) and such failurecontinues after the applicable grace period, if any, specified in the agreementor instrument relating to such Indebtedness; or (ii) fails to perform orobserve any other condition or covenant, or any other event shall occur orcondition exist, under any agreement or instrument relating to suchIndebtedness, and such failure continues after the applicable grace or noticeperiod, if any, specified in the relevant document on the date of such failureif the effect of such failure, event or condition is to cause, or to permit theholder or holders of such Indebtedness to cause, such Indebtedness to bedeclared to be due and payable prior to its stated maturity; or

 

(f)            BBVADefault.  There shall have occurredand be continuing an “Event of Default” under the BBVA Loan (as definedtherein); or

 

(g)           InvoluntaryProceedings.  (i) A decree ororder by a court having jurisdiction has been entered adjudging the Company orany Material Subsidiary as bankrupt or insolvent, or approving as properlyfiled a petition seeking reorganization, *concursomercantil*, *quiebra*orbankruptcy of the Company or any Material Subsidiary and such decree or ordershall have continued undischarged and unstayed for a period of sixty (60) consecutive days; or (ii) a decree or order of a court havingjurisdiction for the appointment of a receiver or liquidator or *visitador*, *conciliador* or *síndico*or trustee or assignee in bankruptcy or insolvency or any other similar 

 

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official of the Company or any Material Subsidiary orof any substantial part of the Property of the Company or any MaterialSubsidiary or for the winding up or liquidation of the affairs of the Companyor any Material Subsidiary has been entered, and such decree or order hascontinued undischarged and unstayed for a period of sixty (60) consecutive days; or (iii) any writ or warrant of execution orsimilar process is issued or levied against any substantial part of theProperty of the Company or any Material Subsidiary; or

 

(h)           VoluntaryProceedings.  The Company or anySubsidiary institutes proceedings to be adjudicated bankrupt or consents to thefiling of a bankruptcy proceeding against it, or files a petition or answer orconsent in any proceeding seeking reorganization, *concurso mercantil*, *quiebra*or bankruptcy or consents to the filing of any such petition, orconsents to the appointment of a receiver or liquidator or trustee or *visitador*, *conciliador*or s*índico*orassignee in bankruptcy or insolvency or any other similar official of it or anysubstantial part of its Property, or admits in writing that it is unable to payits debts, or fails to generally to pay its debts when they come due or makes ageneral assignment for the benefit of creditors; or

 

(i)            MonetaryJudgments.  One or more judgments,orders, attachments or *embargos*,decrees or arbitration awards are entered against the Company or any of itsSubsidiaries involving in the aggregate a liability (to the extent not coveredby independent third-party insurance as to which the insurer does not disputecoverage) as to any single or related series of transactions, incidents orconditions, of an amount (or its US Dollar Equivalent) equal to US$20,000,000(or, if in another currency, the US Dollar Equivalent thereof), and the sameshall remain unsatisfied, unvacated or unstayed pending appeal for a period ofsixty (60) consecutive days after the entry thereof; or

 

(j)            Unenforceability.  Any of the Loan Documents or the Intercompany Revolving Facilitiesat any time is suspended, revoked or terminated (by any Person otherthan a Lender) or for any reason ceases to be in full force and effect inaccordance with its respective terms or the binding effect or enforceabilitythereof, or of the transactions contemplatedthereby, is contestedby the Company or its Subsidiaries, or the Company deniesthat it has any further liability or obligation hereunder or thereunder or inrespect hereof or thereof, or performance by the Company under any of the LoanDocuments or the Intercompany Revolving Facilities shall become illegal, or theCompany shall assert that any obligation under a Loan Document or IntercompanyRevolving Facility has become illegal; or

 

(k)           Expropriation.  Any Governmental Authority Expropriates allor a substantial portion of (x) the Property of the Company and itsSubsidiaries taken as a whole, or of any Pledged Entity taken individually, (y) the common stock of the Company or (z) anyof the Gimsa Collateral, the Gruma Corp. Collateral or the Molinera Collateral,taken individually; provided that, solely with respect to anyExpropriation of any Pledged Entity or of the Gimsa Collateral, the Gruma Corp.Collateral or the Molinera Collateral, an Event ofDefault will not be deemed to have occurred if the Company (1) pays to theCollateral Agent on behalf of the Secured Parties the proceeds (if any)received as a result of such Expropriation within five (5) Business Daysof the receipt thereof, (2) identifies in a written notice to the Lenders,within five (5) Business Days of such Expropriation, replacementcollateral that will be pledged to the Collateral Agent on behalf of theSecured Parties and is of equal or greater value than an amount equal to thedifference between (x) the fair market value of the Collateral or PledgedEntity that was 

 

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Expropriated and (y) the amount of proceeds paidto the Collateral Agent on behalf of the Secured Parties, which replacementcollateral shall be reasonably acceptable to the Lenders (such replacementcollateral, the “Replacement Collateral”) and (3) grants to theCollateral Agent for the benefit of the Secured Parties a first prioritysecurity interest in and a Lien on such Replacement Collateral within thirty(30) days of such Expropriation; or

 

(l)            Change of Control. Any Change in Control has occurred; or

 

(m)          SecurityDocuments.  At any time a securityinterest in or Lien upon the Collateral is provided for under the SecurityDocuments from time to time, the Security Documents cease to be effective or(other than in the case of the Intercompany Trust Agreement and the CollateralAgency and Intercreditor Agreement) for any reason fail to create or cease tomaintain a duly perfected, effective, valid, legally binding and enforceablefirst priority Lien and security interest in any of the Collateral or theproceeds thereof, or the first priority security interest in or Lien upon theCollateral or the proceeds thereof ceases to be perfected for any reason and isnot reperfected within five (5) Business Days (other than in accordancewith the Security Documents); or any Collateral is subject to any Lien (otherthan the Lien provided for in the Security Documents); or any beneficiary ofany Lien on any Collateral takes any action to foreclose on such Collateral orany other action inconsistent with the security interest held by the CollateralAgent; or the enforceability of the Collateral Agent’s security interest in orLien upon any Collateral is contested or denied in writing by the Company orany of its Subsidiaries; or

 

(n)           Intercompany Trust Agreement.  At any time the assignment of rights pursuantto the Intercompany Trust Agreement (i) shall be or become unenforceable, (ii) shallbe contested or denied in writing by any Intercompany Lender or (iii) shallbe contested or denied in writing by any Governmental Authority and suchcontest or denial has not been stayed or rescinded for a period of sixty (60)consecutive days; or

 

(o)           GovernmentApproval.  Any approval,authorization, consent or registration of a Governmental Authority that is atany time necessary to enable the Company to comply with any of its obligationsunder any of the Loan Documents is revoked, withdrawn, withheld or otherwisenot in full force and effect and is not reinstated to the satisfaction of theMajority Lenders within the earlier of (i) ten (10) days after suchrevocation, withdrawal, withholding or other loss of effectiveness or (ii) thethird (3rd) Business Day before the day in which itshall be required to enable the Company to comply with its obligations underthe Loan Documents; or

 

(p)           ERISA.  (i) An ERISA Event has occurred; (ii) theCompany, any Subsidiary or any ERISA Affiliate has been notified by the sponsorof a Multiemployer Plan that it has incurred Withdrawal Liability to suchMultiemployer Plan or that such Multiemployer Plan is in reorganization or isbeing terminated, partitioned or reorganized; (iii) the Company or anERISA Affiliate fails to pay, when due, after the expiration of any applicablegrace period, any installment payment with respect to its Withdrawal Liabilityunder Section 4201 of ERISA or (iv) the Company, any Subsidiary orany ERISA Affiliate has incurred any liability in connection with a withdrawalfrom a Pension Plan subject to Section 4063 of ERISA, such that, in thecase of any event described in (i), (ii), (iii) or (iv), the Company, anySubsidiary or any ERISA Affiliate has incurred, in the aggregate andaggregating liabilities resulting from all such events 

 

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that have occurred, liability equal to US$20,000,000(or the US Dollar Equivalent thereof) or more; or

 

(q)           Lapseof Process Agent.  The Company’sappointment of the Process Agent or the Alternate Process Agent shall havelapsed, whether because of nonpayment of fees or otherwise, and such lapseremains unremedied for a period of three (3) Business Days after the Companyobtains knowledge or receives notice thereof.

 

8.02.       Remedies.

 

(a)           Ifany Event of Default occurs, the Administrative Agent shall, at the writtendirection of the Majority Lenders, take any or all of the following actions:

 

(i)                    declare theunpaid principal amount of the Loans, all interest accrued and unpaidthereon, and all other Obligations owing or payable hereunder or under anyother Loan Document to be immediately due and payable, without presentment,demand, protest or other notice of any kind, all of which are hereby expresslywaived by the Company; and

 

(ii)                   exercise onbehalf of itself and the Lenders all rights and remedies available to it andthe Lenders under the Loan Documents or applicable law.

 

(b)           Notwithstandingthe foregoing, upon the occurrence of any event specified in Section 8.01(g) (*Involuntary Proceedings*) or 8.01(h) (*Voluntary Proceedings*), the unpaidprincipal amount of the Loans and all interest and otherObligations shall automatically become due and payable without further act ofthe Administrative Agent or any Lender.

 

(c)           Notwithstandingthe foregoing, if any Lender provides written notice to the AdministrativeAgent that the administrative agent under the BBVA Loan has taken any action toaccelerate the BBVA Loan pursuant to Section 8.02(a)(i) thereof, thenthe unpaid principal amount of the Loans and all interest and other Obligationsshall automatically become due and payable without further act of theAdministrative Agent or any Lender; provided that the Majority Lenders,by written notice to the Administrative Agent, may rescind such acceleration;and provided further that the rescission of such acceleration by theMajority Lenders shall not affect the rights of the Lenders in connection withany Event of Default giving rise to such acceleration.

 

(d)           Afterthe exercise of remedies provided for in this Section 8.02 (or after theLoans have automatically become immediately due and payable), any amountsreceived on account of the Obligations shall be applied by the AdministrativeAgent in the following order:

 

(i)                    first, topayment of that portion of the Obligations constituting fees, indemnities,expenses and other amounts (including Attorney Costs and amounts payable under Article III(*Taxes, Yield Protection and Illegality*))payable to the Administrative Agent and the Collateral Agent in theirrespective capacitiesas such;

 

(ii)                   second, topayment of that portion of the Obligations constituting fees, indemnities andother amounts (other than principal and interest) payable to the Lenders 

 

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(includingAttorney Costs and amounts payable under Article III (*Taxes, Yield Protection and Illegality*)),ratably among them in proportion to the amounts described in this clause (ii) payableto them;

 

(iii)                  third, topayment of that portion of the Obligations constituting accrued and unpaidinterest on the Loans, ratably among the Lenders in accordance with their ProRata Share and in proportion to the respective amounts described in this clause(iii) payable to them;

 

(iv)                  fourth, topayment of that portion of the Obligations constituting unpaid principal of theLoans, ratably among the Lenders in accordance with their Pro Rata Share and inproportion to the respective amounts described in this clause (iv) held bythem; and

 

(v)                   last, thebalance, if any, after all of the Obligations have been indefeasibly paid infull, to the Company or as otherwise required by law.

 

8.03.       RightsNot Exclusive.  The rights providedfor in this Agreement and the other Loan Documents are cumulative and are notexclusive of any other rights, powers, privileges or remedies provided by lawor in equity, or under any other instrument, document or agreement now existingor hereafter arising.

 

ARTICLEIXTHE ADMINISTRATIVE AGENT

 

9.01.       Appointmentand Authorization.  Each Lender herebyirrevocably appoints, designates and authorizes Deutsche Bank Trust CompanyAmericas as the Administrative Agent under this Agreement, and each Lenderhereby irrevocably authorizes the Administrative Agent to take such action onits behalf under the provisions of this Agreement and each other Loan Document (including to enter into the Collateral Agency andIntercreditor Agreement on behalf of all of the Lenders) and to exercise such powers and performsuch duties as are expressly delegated to it by the terms of this Agreement orany other Loan Document, together with such powers as are reasonably incidentalthereto.  Furthermore, each Lender herebyauthorizes and appoints the Administrative Agent as an agent (*comisionista*) under the terms of Articles273 and 274 of the Mexican Commerce Code (*Códigode Comercio*) to execute, deliver and perform any Loan Document towhich the Administrative Agent is a party, as well as any other document,agreement or instrument necessary or convenient for the delivery, perfection,execution and foreclosure of the Loan Documents and any other Collateral orLien that may be granted in connection with this Agreement.  Notwithstanding any provision to the contrarycontained elsewhere in this Agreement or in any other Loan Document, theAdministrative Agent (which term used in this sentence and Sections 9.03 (*Liability of Administrative Agent*) and9.08 (*Indemnification*) shallinclude reference to its Affiliates and to its own, and its Affiliates’officers, directors, employees and agents) shall not have any duties orresponsibilities, except those expressly set forth in the Loan Documents, norshall the Administrative Agent have or be deemed to have any fiduciaryrelationship with any Lender or any Participant, and no implied covenants,functions, responsibilities, duties, obligations or liabilities shall be readinto this Agreement or any other Loan Document or otherwise exist against theAdministrative Agent.  

 

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Without limiting the generality of the foregoingsentence, the use of the term “agent” herein and in the other Loan Documentswith reference to the Administrative Agent is not intended to connote anyfiduciary or other implied (or express) obligations arising under agencydoctrine of any applicable law.  Instead,such term is used merely as a matter of market custom, and is intended tocreate or reflect only an administrative relationship between independentcontracting parties.

 

9.02.       Delegationof Duties.  The Administrative Agentmay execute any of its duties under this Agreement or any other Loan Documentby or through any one or more sub-agents appointed by it, employees orattorneys-in-fact and shall be entitled to advice of counsel concerning allmatters pertaining to such duties.  TheAdministrative Agent shall not be responsible for the negligence or misconductof any agent or attorney-in-fact that it selects with reasonable care.

 

9.03.       Liabilityof Administrative Agent.  Neither theAdministrative Agent nor any of its Affiliates, officers, directors, employees,agents or attorneys in fact shall (a) be liable for any action taken oromitted to be taken by it or any such Person under or in connection with thisAgreement or any other Loan Document or the transactions contemplated hereby(except for its own gross negligence or willful misconduct), or (b) beresponsible in any manner to any Lender or any Participant for any recital,statement, representation or warranty made by the Company, or any officerthereof, contained in this Agreement or in any other Loan Document, or in anycertificate, report, statement or other document referred to or provided forin, or received by the Administrative Agent under or in connection with, thisAgreement or any other Loan Document, or the validity, effectiveness,genuineness, enforceability or sufficiency of this Agreement or any other LoanDocument, or for any failure of the Company to perform its obligationshereunder or thereunder.  Except asotherwise expressly stated therein, the Administrative Agent shall not be underany obligation to any Lender or any Participant to ascertain or to inquire asto the observance or performance of any of the agreements contained in, orconditions of, or facts stated in, this Agreement or any other Loan Document,or to inspect the properties, books or records of the Company or any of itsSubsidiaries.

 

9.04.       Relianceby Administrative Agent.

 

(a)           TheAdministrative Agent shall be entitled to rely, and shall be fully protected inrelying, upon any writing, communication, signature, resolution,representation, notice, consent, certificate, affidavit, letter, telegram,facsimile, telex, teletype or telephone message, electronic mail message,statement or other document or conversation believed by it to be genuine andcorrect and to have been signed, sent or made by the proper Person or Persons,and upon advice and statements of legal counsel (including counsel to theCompany), independent accountants and other experts selected by theAdministrative Agent.  The AdministrativeAgent shall be fully justified in failing or refusing to take any action underthis Agreement or any other Loan Document unless it shall first receive suchadvice or concurrence of the Majority Lenders as it deems appropriate and, ifit so requests, it shall first be indemnified to its satisfaction by theLenders against any and all liability and expense which may be incurred by itby reason of failing to take, taking or continuing to take any such action.  As to any matters not expressly provided forin the Loan Documents, the Administrative Agent shall in all cases be fullyprotected in acting, or in refraining from acting, in accordance with a requestor consent of the 

 

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Majority Lenders (or such greater number of Lenders asmay be expressly required hereby), and such request or consent of the MajorityLenders and any action taken or failure to act pursuant thereto shall bebinding upon all of the Lenders.

 

(b)           Forpurposes of determining compliance with the conditions specified in Section 4.01(*Conditions to Closing Date*),each Lender that has executed this Agreement shall be deemed to have consentedto, approved, accepted or to be satisfied with, each document or other mattereither provided by the Company to such Lender for consent, approval, acceptanceor satisfaction, or required thereunder to be consented to or approved by oracceptable or satisfactory to such Lender unless the Administrative Agent shallhave received notice from such Lender prior to the proposed Closing Datespecifying its objection thereto.

 

9.05.       Noticeof Default.  The Administrative Agentshall not be deemed to have knowledge or notice of the occurrence of anyDefault or Event of Default, except with respect to Defaults in the payment ofprincipal, interest and fees required to be paid to the Administrative Agentfor the account of the Lenders, unless an individual of the AdministrativeAgent responsible for the administration of this Agreement shall have receivedwritten notice from a Lender or the Company referring to this Agreement,describing such Default or Event of Default and stating that such notice is a “Noticeof Default”.  The Administrative Agentwill notify the Lenders of its receipt of any such notice.  The Administrative Agent will provideBancomext with a copy of any notice sent to the Lenders pursuant to this Section 9.05.  The Administrative Agent shall take suchaction with respect to such Default or Event of Default as may be directed bythe Majority Lenders in writing in accordance with Article VIII (*Events of Default*); provided, however,that unless and until the Administrative Agent has received any such writtendirection, the Administrative Agent may (but shall not be obligated to) take suchaction, or refrain from taking such action, with respect to such Default orEvent of Default as it shall deem advisable or in the best interest of theLenders.

 

9.06.       CreditDecision.  Each Lender acknowledgesthat neither the Administrative Agent nor any of its Affiliates, officers,directors, employees, agents or attorneys-in-fact have made any representationor warranty to it, and that no act by the Administrative Agent hereinaftertaken, including any consent to and acceptance of any assignment or any reviewof the affairs of the Company and its Subsidiaries, shall be deemed toconstitute any representation or warranty by the Administrative Agent to anyLender as to any matter, including whether the Administrative Agent hasdisclosed material information in its possession.  Each Lender represents to the AdministrativeAgent that it has, independently and without reliance upon the AdministrativeAgent and based on such documents and information as it has deemed appropriate,made its own appraisal of and investigation into the business, prospects,operations, property, financial and other condition and creditworthiness of theCompany and its Subsidiaries and all applicable bank regulatory laws relatingto the transactions contemplated hereby, and made its own decision to enterinto this Agreement and to extend credit to the Company hereunder.  Each Lender also represents that it will,independently and without reliance upon the Administrative Agent and based onsuch 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 this Agreement and the other Loan Documents, and tomake such investigations as it deems necessary to inform itself as to thebusiness, prospects, operations, property, financial and other condition andcreditworthiness of the Company and its Subsidiaries.

 

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Except for notices, reports and other documentsexpressly herein required to be furnished to the Lenders by the AdministrativeAgent, the Administrative Agent shall not have any duty or responsibility toprovide any Lender with any credit or other information concerning thebusiness, prospects, operations, property, financial and other condition orcreditworthiness of the Company which may come into the possession of any ofthe Administrative Agent or any of their Affiliates, officers, directors,employees, agents or attorneys-in-fact.

 

9.07.       Failureto Act.  Except for any actionexpressly required of the Administrative Agent under a Loan Document to whichthe Administrative Agent is a party, the Administrative Agent shall in allcases be fully justified in failing or refusing to act under the Loan Documentsunless it shall receive further assurances to its satisfaction from the Lendersof their indemnification obligations under Section 9.08 (*Indemnification*) against any and allliability and expense that may be incurred by it by reason of taking orcontinuing to take any such action.  Noprovision of any Loan Document shall require the Administrative Agent to takeany action that it reasonably believes to be contrary to a Requirement of Lawor to expend or risk its own funds or otherwise incur financial liability inthe performance of any of its duties thereunder or in the exercise of any ofits rights or powers if it shall have reasonable grounds to believe thatrepayment of such funds or adequate indemnity against such risk or liability isnot reasonably assured to it.

 

9.08.       Indemnification.

 

(a)           Whetheror not the transactions contemplated hereby are consummated, the Lenders shallindemnify upon demand the Administrative Agent and its Affiliates, directors,officers, agents and employees (to the extent not reimbursed by or on behalf ofthe Company and without limiting the obligation of the Company to do so), prorata, and hold the Administrative Agent harmless from and against anyand all Indemnified Liabilities; provided, however, that noLender shall be liable for the payment to the Administrative Agent of anyportion of such Indemnified Liabilities to the extent determined in a final,nonappealable judgment by a court of competent jurisdiction to have resultedfrom the Administrative Agent’s gross negligence or willful misconduct.  Without limitation of the foregoing, eachLender shall reimburse the Administrative Agent upon demand for its ratableshare of any costs or out-of-pocket expenses (including Attorney Costs)incurred by the Administrative Agent in connection with the preparation,execution, delivery, modification, amendment or enforcement (whether throughnegotiations, legal proceedings or otherwise) of, or legal advice in respect ofrights or responsibilities under, this Agreement, any other Loan Document, orany document contemplated by or referred to herein, to the extent that theAdministrative Agent is not reimbursed for such expenses by or on behalf of theCompany.  The Lenders also agree toreimburse the Administrative Agent, in advance, for any documented taxesrequired to be paid by the Administrative Agent pursuant to Section 11.08of the Collateral Agency and Intercreditor Agreement.

 

(b)           Inno event shall the Administrative Agent be liable under this Agreement or anyother Loan Document for any indirect, special, punitive or consequential lossor damage of any kind whatsoever, including, but not limited to, lost profits,even if it has been advised of the likelihood of such loss or damage, andregardless of the form of action, except to the exent such 

 

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damage is due to the Administrative Agent’s own grossnegligence, willful misconduct or bad faith.

 

(c)           Notwithstandingany provision herein to the contrary, in no event shall the AdministrativeAgent be liable for any failure or delay in the performance of its obligationsunder this Agreement or any other Loan Document because of circumstances beyondits control that are not reasonably foreseeable, including acts of God, flood,war (whether declared or undeclared), terrorism, fire, riot, strikes or workstoppages for any reason, embargo, loss or malfunctions of utilities,communications or computer (software or hardware) services, government action,including any laws, ordinances, regulations or the like which restrict orprohibit the providing of the services contemplated by this Agreement, and anyother causes beyond its control and not reasonably foreseeable, whether or notof the same class or kind as specifically named above, except to the extentsuch failure or delay is due to its own gross negligence, willful misconduct orbad faith.

 

(d)           Theundertakings in this Section 9.08 shall survive the payment of all otherObligations and the resignation or removal of the Administrative Agent.

 

9.09.       PatriotAct.  The parties hereto acknowledgethat in accordance with Section 326 of the Patriot Act, Deutsche BankTrust Company Americas, like all financial institutions, in order to help fightthe funding of terrorism and money laundering, is required to obtain, verifyand record information that identifies each person or legal entity thatestablishes a relationship or opens an account. The parties to this Agreement agree that they will provide Deutsche BankTrust Company Americas with such information as it may reasonably request inorder for Deutsche Bank Trust Company Americas to satisfy the requirements ofthe Patriot Act.

 

9.10.       AdministrativeAgent in its Individual Capacity. Deutsche Bank Trust Company Americas and its Affiliates may make loansto, issue letters of credit for the account of, accept deposits from, acquireequity interests in and generally engage in any kind of banking, trust,financial advisory, underwriting or other business with the Company and any ofthe Company’s Affiliates as though Deutsche Bank Trust Company Americas was notthe Administrative Agent hereunder and without notice to or consent of theLenders.  The Lenders acknowledge that,pursuant to such activities, Deutsche Bank Trust Company Americas or itsAffiliates may receive information regarding the Company or any of itsAffiliates (including information that may be subject to confidentialityobligations in favor of the Company or such Affiliate) and acknowledge that theAdministrative Agent shall be under no obligation to provide such informationto them.  With respect to its Loans,Deutsche Bank AG, London Branch shall have the same rights and powers underthis Agreement as any other Lender and may exercise such rights and powers asthough it were not an Affiliate of the Administrative Agent, and the terms “Lender”and “Lenders” include Deutsche Bank AG, London Branch in its individualcapacity.

 

9.11.       SuccessorAdministrative Agent.  TheAdministrative Agent may resign upon thirty (30) days’ notice to the Lenders,and the Administrative Agent may be removed at any time, upon written notice tothe Administrative Agent, with or without cause by the Majority Lenders.  If the Administrative Agent resigns or isremoved under this Agreement, the Majority Lenders shall appoint from among theLenders a successor agent for the Lenders, which successor agent shall besubject to the prior approval of the Company at all times other than 

 

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during the existence of an Event of Default (whichconsent of the Company shall not be unreasonably withheld or delayed).  If no successor agent is appointed prior tothe effective date of the resignation of the relevant existing AdministrativeAgent or the Majority Lenders’ election to remove such existing AdministrativeAgent, then such existing Administrative Agent may appoint, after consultingwith the Lenders and the Company, a successor agent from among theLenders.  Upon the acceptance of itsappointment as the successor agent hereunder, such successor agent shallthereupon succeed to and become vested with all the rights, powers and dutiesof the retiring Administrative Agent, such retiring Administrative Agent’sappointment, powers and duties as Administrative Agent shall be terminated, andthe term “Administrative Agent” shall mean such successor agent.  After the Administrative Agent’s resignationor removal hereunder as Administrative Agent, the provisions of this Article IXand Sections 10.04 (*Costs and Expenses*)and 10.05 (*Indemnification by the Company*)shall inure to its benefit as to any actions taken or omitted to be taken by itwhile it was Administrative Agent under this Agreement.  If no successor agent has accepted appointmentas Administrative Agent by the date which is thirty (30) days following aretiring Administrative Agent’s notice of resignation or removal, the retiringAdministrative Agent’s resignation or removal shall nevertheless thereuponbecome effective and the Lenders shall perform all of the duties of theAdministrative Agent hereunder until such time, if any, as the Majority Lendersappoint a successor agent as provided for above.

 

ARTICLEXMISCELLANEOUS

 

10.01.     Amendmentsand Waivers.  (a) No amendmentor waiver of any provision of this Agreement or any other Loan Document, and noconsent to any departure by the Company therefrom, shall be effective unlessthe same shall be in writing and signed by the Majority Lenders and the Companyand acknowledged by the Administrative Agent, and then any such waiver orconsent shall be effective only in the specific instance and for the specificpurpose for which given; provided, however, that no such waiver,amendment or consent shall, unless signed by all of the Lendersand the Company and acknowledged by the Administrative Agent, do any of thefollowing:

 

(i)                    postpone ordelay any date fixed by this Agreement or any Note for any payment ofprincipal, interest, fees or other amounts hereunder or under any other LoanDocument;

 

(ii)                   reduce theprincipal of, or the rate of interest specified herein on, any Loan, or reducethe amount or change the method of calculation of any fees or other amountspayable hereunder or under any other Loan Document;

 

(iii)                  amend, modifyor waive any condition set forth in Section 4.01 (*Conditions to Closing Date*) or Section 10.08(*Assignments, Participations, Etc.*);

 

(iv)                  amend ormodify the definition of “Majority Lenders” or any other provision of thisAgreement specifying the percentage or number of Lenders required to amend,waive or otherwise modify any rights hereunder or make any determination ortake any action hereunder;

 

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(v)                   amend,modify or waive any provision of this Section 10.01(a); and

 

(vi)                  amend,modify or waive any provision of this Agreement relating to the proratatreatment of the Lenders required hereby;

 

(b)           Noamendment, modification or waiver, shall, unless in writing and signed by theAdministrative Agent and Lenders holding more than sixty-six and two-thirdspercent (66 2/3%) of the then aggregate unpaid outstanding amount of the Loans,(i) amend, modify or waive any covenant set forth in Section 7.09 (*Interest Coverage Ratio*), Section 7.10(*Leverage Ratio*) or Section 7.24(*Dilution*), (ii) amend,modify or waive any obligation set forth in Section 2.05 (*Mandatory Prepayments*) or (iii) amendor modify any of the definitions referred to in the provisions listed inclauses (i) or (ii) above.

 

(c)           Noamendment, waiver or consent shall, unless in writing and signed by theCollateral Agent and all of the Lenders, operate to release the securityinterest in and Lien on the Collateral created by the Security Documents(except as expressly provided in the Security Documents) or the contractualrights under the Intercompany Trust Agreement.

 

(d)           Noamendment, waiver or consent shall, unless in writing and signed by theAdministrative Agent or the Collateral Agent, as applicable, in addition to theMajority Lenders or all the Lenders, as applicable, affect the rights or dutiesof the Administrative Agent or the Collateral Agent, as applicable, under thisAgreement or any other Loan Document.

 

10.02.     Notices.

 

(a)           Exceptas otherwise expressly provided herein, all notices, requests, demands or othercommunications to or upon any party hereunder shall be in English and inwriting (including facsimile transmission and, subject to clause (c) below,a PDF attachment to an electronic mail message) and shall be mailed by aninternationally recognized overnight courier service, transmitted by facsimileor electronic mail or delivered by hand to such party: (i) in the case ofthe Company, the Administrative Agent, the Collateral Agent, the InitialLenders or Bancomext, at its address, facsimile number or electronic mailaddress set forth on Schedule 10.02 (*Notices*)hereof or at such other address, facsimile number or electronic mail address assuch party may designate by notice to the other parties hereto, and (ii) inthe case of any Lender other than the Initial Lenders, at its address,facsimile number or electronic mail address set forth in the AdministrativeQuestionnaire or at such other address, facsimile number or electronic mailaddress as such Lender may designate by notice to the Company and theAdministrative Agent.

 

(b)           Unlessotherwise expressly provided for herein, each such notice, request, demand orother communication shall be effective upon the earlier to occur of (i) actualreceipt and (ii) (A) if sent by overnight courier service ordelivered by hand, when signed for by or on behalf of the party to whom suchnotice is directed (or, in the case of the Administrative Agent, when receivedby the individual responsible for administration of the Loans), (B) ifgiven by facsimile, when transmitted to the facsimile number specified pursuantto clause (a) above and confirmation of receipt of a legible copy isreceived by telephone, return facsimile or electronic mail, or (C) ifgiven by any other means, when delivered at the address specified pursuant toclause (a) above; provided, however, that notices to theAdministrative Agent or the Collateral 

 

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Agent under Article II (*The Loans*), Article III (*Taxes, Yield Protection and Illegality*)and this Article X shall not be effective until received.  Delivery by any Lender by facsimiletransmission or electronic mail of an executed counterpart of any amendment orwaiver or any provision of this Agreement or the Notes or any other LoanDocument to be executed and delivered hereunder shall be effective as deliveryof a manually executed counterpart thereof.

 

(c)           Electronicmail and internet websites may be used only to distribute routinecommunications, such as financial statements, Casualty Certificates,Reinvestment Certificates, or any certificate or document required by Article IV(*Conditions Precedent*) (exceptfor each Initial Lender’s Note), Article VI (*Affirmative Covenants*) or Article VII (*Negative Covenants*) and other related information,and to distribute Loan Documents for execution by the parties thereto, and maynot be used for any other purpose.

 

(d)           Anyagreement of the Administrative Agent, the Collateral Agent and the Lendersherein to receive certain notices by telephone, facsimile transmission orelectronic mail is solely for the convenience and at the request of theCompany.  The Administrative Agent, theCollateral Agent and the Lenders shall be entitled to rely on the authority ofany Person that according to the books and records of the Administrative Agentis a Person authorized by the Company to give such notice and theAdministrative Agent, the Collateral Agent and the Lenders shall not have anyliability to the Company or any other Person on account of any action taken ornot taken by the Administrative Agent, the Collateral Agent or the Lenders inreliance upon such telephonic, facsimile or electronic mail notice.  The obligation of the Company to repay theLoans shall not be affected in any way or to any extent by any failure by theAdministrative Agent, the Collateral Agent and the Lenders to receive writtenconfirmation of any telephonic, facsimile or electronic mail notice or thereceipt by the Administrative Agent, the Collateral Agent and the Lenders of a confirmationwhich is at variance with the terms understood by the Administrative Agent, theCollateral Agent and the Lenders to be contained in the telephonic, facsimileor electronic mail notice.

 

10.03.     NoWaiver; Cumulative Remedies.  Nofailure to exercise and no delay in exercising, on the part of theAdministrative Agent, the Collateral Agent or any Lender, any right, remedy,power or privilege hereunder or under any Loan Document, shall operate as awaiver thereof; nor shall any single or partial exercise of any right, remedy,power or privilege hereunder or thereunder preclude any other or furtherexercise thereof or the exercise of any other right, remedy, power orprivilege.  The rights and remediesherein provided are cumulative and not exclusive of any rights or remediesprovided by law.

 

10.04.     Costsand Expenses.  The Company agrees:

 

(a)           topay or reimburse the Administrative Agent, the Collateral Agent and the InitialLenders (i) upon demand for all reasonable and documented costs andexpenses (including Attorney Costs) incurred by the Administrative Agent, theCollateral Agent or the Initial Lenders in connection with the TerminatedDerivative Obligations and the preparation, negotiation, administration andexecution of the Loan Documents (whether or not consummated) and (ii) withinfive (5) Business Days after demand for all reasonable and documentedcosts and expenses incurred by the Administrative Agent, the Collateral Agentor the Lenders in connection with any amendment, supplement, waiver ormodification requested by the Company 

 

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(in each case, whether or not consummated) to thisAgreement or any other Loan Document, including Attorney Costs incurred by theAdministrative Agent, the Collateral Agent or the Lenders with respect thereto;provided that the obligation of the Company with respect to thereimbursement of Attorney Costs in the case of clauses (i) and (ii) aboveshall in any event be limited to one (1) US counsel and one (1) localMexican counsel  for the Initial Lendersand one (1) US counsel and one (1) local Mexican counsel for theAdministrative Agent; and

 

(b)           topay or reimburse the Administrative Agent, the Collateral Agent and each Lenderwithin five (5) Business Days after demand for all reasonable costs andexpenses (including Attorney Costs) incurred by them in connection with theenforcement, attempted enforcement, or preservation of any rights or remediesunder this Agreement or any other Loan Document during the existence of anEvent of Default or after acceleration of the Loans (including in connectionwith any “workout” or restructuring regarding the Loans, and including in anyinsolvency or bankruptcy proceeding involving the Company).

 

(c)           Thefees and expenses of the Administrative Agent will be paid pursuant to the feeproposals, dated September 2, 2009 and September 29, 2009, by andbetween the Administrative Agent and the Company.

 

10.05.     Indemnificationby the Company.  Whether or not thetransactions contemplated hereby are consummated, the Company agrees toindemnify and hold harmless the Administrative Agent, the Collateral Agent, each Lender and their respective Affiliates,directors, officers, employees, counsel, agents and attorneys-in-fact(collectively the “Indemnitees”) from and against: (a) any and alldirect, punitive and consequential damages, claims, demands, actions or causesof action that are asserted against any Indemnitee by any Person relating,directly or indirectly, to a claim, demand, action or cause of action that suchPerson asserts or may assert against the Company or any of its respectiveofficers or directors, (b) any and all claims, demands, expenses(including Attorney Costs), actions or causes of action that may at any time(including at any time following repayment of the Obligations and theresignation of the Administrative Agent or the Collateral Agent or the replacement of any Lender) be asserted orimposed against any Indemnitee, arising out of or relating to, the LoanDocuments (including the preparation, negotiation, execution and administrationthereof), the use or contemplated use of the proceeds of any Loan, or therelationship of the Administrative Agent, the Collateral Agent and the Lenders under this Agreement or any other Loan Document, (c) anyadministrative or investigative proceeding by any Governmental Authorityarising out of or related to a claim, demand, action or cause of actiondescribed in (a) or (b) above, and (d) any and all liabilities(including liabilities under indemnities), losses, costs or expenses (includingAttorney Costs) that any Indemnitee suffers or incurs as a result of theassertion of any foregoing claim, demand, action, cause of action orproceeding, or as a result of the preparation of any defense in connection withany foregoing claim, demand, action, cause of action or proceeding, in allcases, whether or not an Indemnitee is a party to such claim, demand, action,cause of action or proceeding (all the foregoing, collectively, the “IndemnifiedLiabilities”), in all cases, whether or not caused by or arising, in wholeor in part, out of the negligence of the Indemnitee; provided that noIndemnitee shall be entitled to indemnification for any claim caused by its owngross negligence or willful misconduct or for any loss asserted against it byanother Indemnitee determined in a final, nonappealable judgment by a court ofcompetent jurisdiction.  No Indemniteesshall be liable for any damages arising from the use by others of anyinformation or 

 

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other materials obtained through any informationtransmission systems in connection with this Agreement, nor shall anyIndemnitee have any liability for any indirect or consequential damagesrelating to this Agreement or any other Loan Document or arising out of itsactivities in connection herewith or therewith (whether before or after theClosing Date).  All amounts due underthis Section 10.05 shall be payable within ten (10) Business Daysafter demand therefor.  The agreements inthis Section 10.05 shall survive the repayment of all Obligations and, inthe case of the Administrative Agent, the Administrative Agent’s removal orresignation.

 

10.06.     PaymentsSet Aside.  To the extent that theCompany makes a payment to the Administrative Agent, the Collateral Agent orany Lender, or the Administrative Agent, the Collateral Agent or any Lenderexercises its right of set-off, and such payment or the proceeds of suchset-off or any part thereof are subsequently invalidated, declared to befraudulent or preferential, set aside or required (including pursuant to anysettlement entered into by the Administrative Agent, the Collateral Agent orsuch Lender in its discretion) to be repaid to a trustee, receiver or any otherparty, in connection with any insolvency, “*concursomercantil*” or bankruptcy proceeding involving the Company orotherwise, then (a) to the extent of such recovery the obligation or partthereof originally intended to be satisfied shall be revived and continued infull force and effect as if such payment had not been made or such set-off hadnot occurred, and (b) each Lender severally agrees to pay to theAdministrative Agent and the Collateral Agent upon demand its Pro Rata Share ofany amount so recovered from or repaid by the Administrative Agent.

 

10.07.     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 the Company may notassign or transfer any of its rights or obligations under this Agreementwithout the prior written consent of the Administrative Agent and each Lender(and any attempted assignment or transfer by the Company without such consentshall be null and void).  Nothing in thisAgreement, expressed or implied, shall be construed to confer upon any Person(other than the parties hereto, their respective successors and assignspermitted hereby and, to the extent expressly contemplated hereby, theIndemnitees) any legal or equitable right, remedy or claim under or by reasonof this Agreement.

 

10.08.     Assignments,Participations, Etc.

 

(a)           AnyLender may, at any time, assign to one or more assignees other than the Companyor any of its Affiliates or Subsidiaries (each an “Assignee”) all or anypart of its Loan and the other rights and obligations of such Lender hereunder,in a minimum amount of US$5,000,000.  The Company and the Administrative Agent may continueto deal solely and directly with such Lender in connection with the interest soassigned to an Assignee and the assignment will not be effective until: (i) writtennotice of such assignment, together with payment instructions, addresses andrelated information with respect to the Assignee, shall have been given to theCompany and the Administrative Agent by the assigning Lender and the Assignee; (ii) theassigning Lender and its Assignee shall have delivered to the Company and theAdministrative Agent an Assignment and Acceptance substantially in the form of Exhibit C(an “Assignment and Acceptance”), together with any Note subject to suchassignment; and (iii) the assigning Lender or the Assignee has paid to theAdministrative Agent a processing fee in the 

 

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amount of US$3,500 (such processing fee being payablefor all assignments, including, but not limited to, an assignment by a Lenderto another Lender).

 

(b)           Fromand after the date that the Administrative Agent notifies the assigning Lenderthat it has received (and provided its consent with respect to) an executedAssignment and Acceptance and payment of the processing fee, (i) theAssignee thereunder shall be a party hereto and, to the extent that rights andobligations hereunder have been assigned to it pursuant to such Assignment andAcceptance, shall have the rights and obligations of a Lender under the LoanDocuments, and (ii) the assigning Lender shall, to the extent that rightsand obligations hereunder and under the other Loan Documents have been assignedby it pursuant to such Assignment and Acceptance, relinquish its rights and bereleased from its obligations under the Loan Documents.

 

(c)           TheAdministrative Agent, acting solely for this purpose as an agent of theCompany, shall maintain at the Administrative Agent’s Payment Office a copy ofeach Assignment and Acceptance delivered to it and a register for therecordation of the names and addresses of the Lenders, and principal amount ofthe Loans owing to, each Lender pursuant to the terms hereof from time to time(the “Register”).  The entries inthe Register shall be conclusive, absent manifest error, and the Company, theAdministrative Agent and the Lenders may treat each Person whose name isrecorded in the Register pursuant to the terms hereof as a Lender hereunder forall purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available forinspection by the Company and any Lender, at any reasonable time and from timeto time upon reasonable prior notice.

 

(d)           Withinten (10) Business Days after its receipt of notice by the AdministrativeAgent that it has received an executed Assignment and Acceptance and payment ofthe processing fee, the Company shall execute and deliver to the AdministrativeAgent a new Note or Notes in the amount of such Assignee’s assigned Loan and,if the assigning Lender has retained a portion of its Loan, replacement Notesfor the assignor Lender (such Notes to be in exchange for, but not in paymentof, the Notes held by the assigning Lender). Immediately upon each Assignee’s making its processing fee payment underthe Assignment and Acceptance, this Agreement shall be deemed to be amended tothe extent, but only to the extent, necessary to reflect the addition of theAssignee and the resulting adjustment of the Loansarisingtherefrom.

 

(e)           AnyLender (the “originating Lender”) may at any time sell to one or morecommercial banks or other Persons, other than the Company or any of itsAffiliates or Subsidiaries, (a “Participant”) participating interests inall or any part of its Loan (each a “Participation”); provided, however,that (i) the originating Lender’s obligations under this Agreement shallremain unchanged, (ii) the originating Lender shall remain solelyresponsible for the performance of such obligations, (iii) the Company andthe Administrative Agent shall continue to deal solely and directly with theoriginating Lender in connection with the originating Lender’s rights andobligations under this Agreement and the other Loan Documents and (iv) noLender shall transfer or grant any participating interest under which theParticipant has rights to approve any amendment to, or any consent or waiverwith respect to, this Agreement or any other Loan Document, except to theextent such amendment, consent or waiver would require unanimous consent of theLenders as described Section 10.01(a) (*Amendments and Waivers*). In the case of any such participation, the Lender selling such 

 

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participation shall be entitled to agree to pay overto the Participant any amounts paid to such Lender pursuant to Section 3.01(*Taxes*), Section 3.04 (*Increased Costs and Reduction of Return*)and Section 3.05 (*Funding Losses*)and if amounts outstanding under this Agreement are due and unpaid, or shallhave been declared or shall have become due and payable upon the occurrence ofan Event of Default, each Participant shall, to the fullest extent permitted bylaw, be deemed to have the right of set-off in respect of its participatinginterest in amounts owing under this Agreement to the same extent as if theamount of its participating interest were owing directly to it as a Lenderunder this Agreement; provided that such agreement or instrument mayprovide that such Lender will not, without the consent of the Participant,agree to any amendment, waiver or other modification that would (x) postponeany date upon which any payment of money is scheduled to be paid to suchParticipant or (y) reduce the principal, interest, fees or other amountspayable to such Participant.  Subject toclause (f) of this Section 10.08, the Company agrees that eachParticipant shall be entitled to the benefits of Section 3.01 (*Taxes*), Section 3.04 (*Increased Costs and Reduction of Return*)and Section 3.05 (*Funding Losses*)to the same extent as if it were a Lender and had acquired its interest byassignment pursuant to clause (a) of this Section 10.08.  To the fullest extent permitted by law, eachParticipant also shall be entitled to the benefits of Section 10.10 (*Set-off*) as though it were a Lender; providedsuch Participant agrees to be subject to Section 2.11 (*Sharing of Payments, Etc.*) as though itwere a Lender.

 

(f)            Exceptif an Event of Default has occurred and is continuing, no Assignee orParticipant shall be entitled to receive any greater payment under Section 3.01(*Taxes*), Section 3.04 (*Increased Costs and Reduction of Return*), Section 3.05(*Funding Losses*) or Section 3.06(*Reserves on Loans*) than theapplicable Lender would have been entitled to receive with respect to therights transferred or participated, unless such transfer or participation ismade with the Company’s prior written consent or at a time when thecircumstances giving rise to such greater payment did not exist.

 

(g)           AnyLender may at any time pledge or assign a security interest in all or anyportion of its rights under this Agreement to secure obligations of suchLender, including any pledge or assignment to secure obligations to a FederalReserve Bank; provided that no such pledge or assignment shall release aLender from any of its obligations hereunder or substitute any such pledgee orassignee for such Lender as a party hereto.

 

(h)           TheAdministrative Agent shall provide to any Initial Lender, upon written requestto the Administrative Agent by such Initial Lender (a “Lender List Request”),a list of all Lenders and their respective outstanding principal amounts as ofthe date of such Lender List Request (a “Lender List”); providedthat the Administrative Agent shall not be required to provide a Lender List toany Initial Lender if, in the thirty (30) days prior to the date of the LenderList Request of such Initial Lender, such Initial Lender has submitted a LenderList Request and the Administrative Agent has provided a Lender List to suchInitial Lender.

 

10.09.     Confidentiality.

 

(a)           Eachof the Administrative Agent, theCollateral Agent andthe Lenders agrees to maintain the confidentiality of the Information (asdefined below), except that Information may be disclosed (i) to its andits Affiliates’, directors, officers, employees and agents, includingaccountants, legal counsel and other advisors (it being understood that thePersons to whom such 

 

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disclosure is made will be informed of theconfidential nature of such Information and instructed to keep such Informationconfidential); (ii) to the extent requested by any regulatory orself-regulatory authority including any securities exchange; (iii) to theextent required by applicable laws or regulations or by any subpoena or similarlegal process; (iv) to any direct or indirect credit insurance provider,insurer, insurance broker or rating agencies relating to the Company and theObligations; (v) to any other party to this Agreement; (vi) inconnection with the exercise of any remedies hereunder or any suit, action orproceeding relating to this Agreement or the enforcement of rights hereunder; (vii) subjectto an agreement containing provisions substantially the same as those of this Section 10.09(a),to (1) any Assignee of or Participant in, or any prospective Assignee ofor Participant in, any of its rights or obligations under this Agreement or (2) anydirect or indirect contractual counterparty or prospective counterparty (orsuch contractual counterparty’s or prospective counterparty’s professionaladvisor) to any derivative or hedging transaction relating to obligations ofthe Company; (viii) with the consent of the Company; (ix) upon theoccurrence of any Event of Default; or (x) to the extent such Information (1) becomespublicly available other than as a result of a breach of this Section or (2) becomesavailable to the Administrative Agent or any Lender on a nonconfidential basisfrom a source other than the Company.  Inaddition, the Administrative Agent and the Lenders may disclose the existenceof this Agreement and information about this Agreement to market datacollectors, similar service providers to the lending industry, and serviceproviders to the Administrative Agent and the Lenders in connection with theadministration and management of this Agreement, the other Loan Documents, theParticipations, and the Loans.  Forpurposes of this Section, “Information” means all information receivedfrom the Company relating to the Company and/or its business, other than anysuch information that is available to the Administrative Agent or any Lender ona nonconfidential basis prior to disclosure by the Company; providedthat, in the case of information received from the Company after the datehereof, such information shall be deemed not to be confidential unless it isclearly identified in writing at the time of delivery as confidential or it isapparent on its face that such information is confidential.  Any Person required to maintain theconfidentiality of Information as provided in this Section shall beconsidered to have complied with its obligation to do so if such Person hasexercised the same degree of care to maintain the confidentiality of suchInformation as such Person would accord to its own confidentialinformation.  This Section 10.09(a) shallsupersede any prior confidentiality agreements entered into between the Companyand the Initial Lenders, and all Information provided prior to the date hereofshall be subject to this Section 10.09(a).

 

(b)           The Company and each Lender hereby acknowledge that (i) theAdministrative Agent will make Information available to the Lenders by postingthe Information on Intralinks or another similar electronic system (the “Platform”)and (ii) certain of the Lenders may be “public-side” Lenders (i.e.,Lenders that do not wish to receive material non-public information withrespect to the Company or its securities) (each, a “Public Lender”).   The Company hereby agrees that (w) allInformation that is not to be made available to Public Lenders (whichInformation shall not include the Loan Documents) shall be clearly andconspicuously marked “PRIVATE” which, at a minimum, shall mean that the word “PRIVATE”shall appear prominently on the first page thereof; (x) by notmarking the Information as “PRIVATE”, the Company shall be deemed to haveauthorized the Administrative Agent and the Lenders to treat such Informationas not containing any material non-public information with respect to theCompany, its Subsidiaries or their respective securities for purposes of UnitedStates federal and state securities laws; (y) all Information marked “PRIVATE”is not permitted to be made

 

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availablethrough a portion of the Platform designated as “Public Investor”.  The Administrative Agent shall be entitled totreat any Information that is not marked “PUBLIC” as being suitable only forposting on a portion of the Platform not marked as “Public Investor.”  Each Lender hereunder agrees that anydocument posted on the Platform by the Administrative Agent shall be deemed tohave been delivered to the Lenders.

 

10.10.      Set-off.  In addition to any rights and remedies of theLenders provided by law, if an Event of Default exists or the Loans have beenaccelerated, each Lender is authorized at any time and from time to time,without prior notice to the Company, any such notice being waived by theCompany to the fullest extent permitted by law, to set off and apply any andall deposits (general or special, time or demand, provisional or final in anycurrency, matured or unmatured) at any time held by, and other Indebtedness atany time owing by, such Lender to or for the credit or the account of the Companyagainst any and all Obligations owing to such Lender, now or hereafterexisting, irrespective of whether or not the Administrative Agent or suchLender shall have made demand under this Agreement or any Loan Document andalthough such Obligations may be contingent or unmatured.  Each Lender agrees promptly to notify theCompany and the Administrative Agent after any such set-off and applicationmade by such Lender; provided, however, that the failure to givesuch notice shall not affect the validity of such set-off and application.

 

10.11.      Notificationof Addresses, Lending Offices, Etc. Each Lender and the Collateral Agent shall notify the AdministrativeAgent in writing of any changes in the address to which notices to such Personshould be directed, of addresses of its Lending Office in the case of a Lender,of payment instructions in respect of all payments to be made to it hereunderand of such other administrative information as the Administrative Agent shallreasonably request.

 

10.12.      Counterparts.  This Agreement may be executed in any numberof separate counterparts, each of which, when so executed, shall be deemed anoriginal, and all of said counterparts taken together shall be deemed toconstitute but one and the same instrument. Delivery of an executed counterpart of a signature page to thisAgreement by facsimile or electronic mail shall be effective as delivery of amanually executed counterpart of this Agreement.

 

10.13.      Severability.  The illegality or unenforceability of anyprovision of this Agreement or any instrument or agreement required hereundershall not in any way affect or impair the legality or enforceability of theremaining provisions of this Agreement or any instrument or agreement requiredhereunder.

 

10.14.      GoverningLaw.  THIS AGREEMENT SHALL BEGOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEWYORK.

 

10.15.      Consentto Jurisdiction; Waiver of Jury Trial.

 

(a)           Eachof the parties hereto hereby irrevocably and unconditionally submits, in anyaction or proceeding arising out of or relating to this Agreement, any otherLoan Document (other than the Mexican Pledges) or the transactions contemplatedhereby, to the exclusive 

 

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jurisdiction of any New York State or federal courtsitting in New York City and any appellate court thereof (a “Specified Court”).

 

(b)           Eachof the parties hereto hereby irrevocably waives, to the fullest extent it mayeffectively do so, the defense of an inconvenient forum to the maintenance ofsuch action or proceeding, the right to object that any Specified Court doesnot have any jurisdiction over such party, and any right of jurisdiction insuch action or proceeding to which it may otherwise be entitled.

 

(c)           EACHOF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY RIGHTS IT MAY HAVE TOA TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON, OR ARISING OUT OF,THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OFDEALING, STATEMENT OR ACTIONS OF THE ADMINISTRATIVE AGENT, THE LENDERS OR THECOMPANY RELATING THERETO.

 

(d)           TheCompany hereby irrevocably appoints Gruma Corporation (the “Process Agent”),with an office on the date hereof at 1159 Cottonwood Ln., Irving, TX 75038,Attention: Vice President of Legal Services, or, if service cannot beeffectuated on the Process Agent, CT Corporation (the “Alternate ProcessAgent”), with an office on the date hereof at 111 Eighth Avenue, 13thFloor, New York, New York 10011, as its agent to receive on behalf of theCompany service of the summons and complaint and any other process which may beserved in any action or proceeding brought in any New York state or federalcourt sitting in New York City.  Suchservice may be made by mailing or delivering a copy of such process to theCompany, in care of the Process Agent or the Alternate Process Agent, asapplicable, at the address specified above for the Process Agent or theAlternate Process Agent, as applicable, and the Company hereby irrevocablyauthorizes and directs the Process Agent and the Alternate Process Agent, asapplicable, to accept such service on its behalf.  Such appointment shall be contained in anotarial instrument that complies with the 1940 Protocol on Uniformity ofPowers of Attorney to be utilized abroad as ratified by the United States andMexico.

 

(e)           Finaljudgment in any such action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law.

 

10.16.      Waiverof Immunity.  The Companyacknowledges that the execution and performance of this Agreement and eachother Loan Document is a commercial activity and to the extent that the Companyhas or hereafter may acquire any immunity from any legal action, suit or proceedings,from jurisdiction of any court or from set-off or any legal process (whetherservice or notice, attachment prior to judgment, attachment in aid of executionof judgment, execution of judgment or otherwise) with respect to itself or anyof its Property, whether or not held for its own account, the Company, to thefullest extent permitted by applicable law, hereby irrevocably andunconditionally waives and agrees not to plead or claim such immunity inrespect of its obligations under this Agreement or any other Loan Document.

 

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10.17.      Paymentin US Dollars; Judgment Currency.

 

(a)           Allpayments by the Company to the Administrative Agent or the Collateral Agenthereunder shall be made in US Dollars and in immediately available funds and insuch funds as are customary at the time for the settlement of internationaltransactions.

 

(b)           Iffor purposes of obtaining judgment against the Company with respect to itsobligations under this Agreement or the Notes in any court it is necessary toconvert a sum due under this Agreement in US Dollars into another currency (the“Other Currency”), the Company agrees, to the fullest extent permittedby applicable law, that the rate of exchange used shall be that at which inaccordance with normal banking procedures the Administrative Agent couldpurchase US Dollars with the Other Currency on the Business Day preceding thaton which final judgment is given.

 

(c)           Theobligation of the Company in respect of any sum due under this Agreement or anyNote in US Dollars shall, notwithstanding any judgment in any Other Currency,be discharged only to the extent that on the Business Day following receipt bythe Administrative Agent or the Collateral Agent of any sum adjudged to be sodue in the Other Currency the Administrative Agent or the Collateral Agent mayin accordance with normal banking procedures purchase US Dollars with the OtherCurrency; if the amount of US Dollars so purchased is less than the sumoriginally due to the Administrative Agent or the Collateral Agent in USDollars, the Company hereby agrees, as a separate obligation andnotwithstanding any such judgment, to indemnify the Administrative Agent, theCollateral Agent and the Lenders against such loss.

 

10.18.      Changeto IFRS.  If the Company intends oris required to adopt IFRS, the Company and the Lenders shall, at least onehundred and twenty (120) days prior to such adoption, commence to negotiate ingood faith with a view to agreeing such written amendments to the financialcovenants in Sections 7.09 (*InterestCoverage Ratio*) and 7.10 (*LeverageRatio*) and, in each case, the definitions used therein and theequivalent definitions in the Security Documents, as may be necessary to ensurethat the criteria for evaluating the Company’s financial condition (i) notprejudice the Company in terms of its compliance with the terms of thisAgreement more than, and (ii) grant to the Lenders protection equivalentto that which would have been enjoyed, in each case, had the Company notadopted IFRS (such amendments, the “IFRS Amendments”).  If no written agreement with respect to anyof the IFRS Amendments is reached within sixty (60) days prior to the Company’sadoption of IFRS, then the Company and the Lenders shall submit their differingpositions with respect to the IFRS Amendments to a Qualified Accountantselected by the mutual agreement of the parties.  The Qualified Accountant shall consider onlythe IFRS Amendments and shall only make a decision with respect thereto that iswithin the bounds set by the differing positions of the Lenders and theCompany.  The Qualified Accountant’sdecision with respect thereto shall be final and binding on the parties heretoand shall be made in writing and notified to the parties hereto at least five (5) BusinessDays prior to the adoption of IFRS by the Company.  Any IFRS Amendments agreed between theCompany and the Lenders or determined by the Qualified Accountant shall takeeffect as of the date of the Company’s adoption of IFRS.  The parties agree that no amendment fee shallbe payable by the Company to the Lenders in respect of any IFRS Amendmentsother than (x) at the request of the Administrative Agent, customary feespayable to administrative agents and (y) payments or reimbursements inaccordance with Section 10.04(a) (*Costsand Expenses*) of reasonable and documented costs (including AttorneyCosts and the fees of the Qualified Accountant) incurred by the AdministrativeAgent, the Collateral Agent or the Lenders in connection with such IFRSAmendments.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to beduly executed and delivered by their proper and duly authorized officers as ofthe day and year first above written.

 
|   | GRUMA, S.A.B. de C.V. |
|--------|-----------------------|
|   |                  |
|   | By:                   |   |
|   |                  | Name: |
|   |                  | Title: |
|   |                  |   |
|   | By:                   |   |
|   |                  | Name: |
|   |                  | Title: |

 

114

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THIS PAGE IS A SIGNATURE PAGE FOR THE LOAN AGREEMENT, DATED AS OFOCTOBER 16, 2009, AMONG GRUMA, S.A.B. DE C.V., AS THE BORROWER, DEUTSCHE BANKTRUST COMPANY AMERICAS AS ADMINISTRATIVE AGENT FOR THE LENDERS, THE BANK OF NEWYORK MELLON AS COLLATERAL AGENT FOR THE LENDERS, AND THE LENDERS

 
|   | DEUTSCHE BANK TRUST  COMPANY AMERICAS |
|--------|---------------------------------------|
|   | as Administrative Agent               |
|   |                                  |
|   | By:                                   |   |
|   |                                  | Name: |
|   |                                  | Title: |
|   |                                  |   |
|   | By:                                   |   |
|   |                                  | Name: |
|   |                                  | Title: |

 

115

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THIS PAGE IS A SIGNATURE PAGE FOR THE LOAN AGREEMENT, DATED AS OFOCTOBER 16, 2009, AMONG GRUMA, S.A.B. DE C.V., AS THE BORROWER, DEUTSCHE BANKTRUST COMPANY AMERICAS AS ADMINISTRATIVE AGENT FOR THE LENDERS, THE BANK OF NEWYORK MELLON AS COLLATERAL AGENT FOR THE LENDERS, AND THE LENDERS

 
|   | THE BANK OF NEW YORK  MELLON |
|--------|------------------------------|
|   | as Collateral Agent          |
|   |                         |
|   | By:                          |   |
|   |                         | Name: |
|   |                         | Title: |
|   |                         |   |
|   | By:                          |   |
|   |                         | Name: |
|   |                         | Title: |

 

116

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THIS PAGE IS A SIGNATURE PAGE FOR THE LOAN AGREEMENT, DATED AS OFOCTOBER 16, 2009, AMONG GRUMA, S.A.B. DE C.V., AS THE BORROWER, DEUTSCHE BANKTRUST COMPANY AMERICAS AS ADMINISTRATIVE AGENT FOR THE LENDERS, THE BANK OF NEWYORK MELLON AS COLLATERAL AGENT FOR THE LENDERS, AND THE LENDERS

 
|   | CREDIT SUISSE, CAYMAN  ISLANDS BRANCH, |
|--------|----------------------------------------|
|   | as Lender                              |
|   |                                   |
|   | By:                                    |   |
|   |                                   | Name: |
|   |                                   | Title: |
|   |                                   |   |
|   | By:                                    |   |
|   |                                   | Name: |
|   |                                   | Title: |

 

117

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THIS PAGE IS A SIGNATURE PAGE FOR THE LOAN AGREEMENT, DATED AS OFOCTOBER 16, 2009, AMONG GRUMA, S.A.B. DE C.V., AS THE BORROWER, DEUTSCHE BANKTRUST COMPANY AMERICAS AS ADMINISTRATIVE AGENT FOR THE LENDERS, THE BANK OF NEWYORK MELLON AS COLLATERAL AGENT FOR THE LENDERS, AND THE LENDERS

 
|   | DEUTSCHE BANK AG,  LONDON BRANCH, |
|--------|-----------------------------------|
|   | as Lender                         |
|   |                              |
|   | By:                               |   |
|   |                              | Name: |
|   |                              | Title: |
|   |                              |   |
|   | By:                               |   |
|   |                              | Name: |
|   |                              | Title: |

 

118

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THIS PAGE IS A SIGNATURE PAGE FOR THE LOAN AGREEMENT, DATED AS OF OCTOBER16, 2009, AMONG GRUMA, S.A.B. DE C.V., AS THE BORROWER, DEUTSCHE BANK TRUSTCOMPANY AMERICAS AS ADMINISTRATIVE AGENT FOR THE LENDERS, THE BANK OF NEW YORKMELLON AS COLLATERAL AGENT FOR THE LENDERS, AND THE LENDERS

 
|   | JP MORGAN CHASE BANK  N.A., |
|--------|-----------------------------|
|   | as Lender                   |
|   |                        |
|   | By:                         |   |
|   |                        | Name: |
|   |                        | Title: |

 

119

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