Exhibit
4(b)


 




 





COMMON AGREEMENT


 


dated as of April 29,
2003


 


among


 


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


 


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


 


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

MINERA MEXICO INTERNACIONAL, INC.,

MEXICANA DE COBRE, S.A. DE C.V.,

MINERALES METALICOS DEL NORTE, S.A.,

MEXICANA DE CANANEA, S.A. DE C.V.,

MEXICANA DEL ARCO, S.A. DE C.V.,

MINERALES Y MINAS MEXICANAS, S.A. DE C.V.,

COMPANIA DE TERRENOS E INVERSIONES DE SAN LUIS POTOSI, S.C. POR A., S.A.,

MEXICO COMPANIA INMOBILIARIA, S.A.,

PROYECCIONES URBANISTICAS S. DE R.L. DE C.V.,


 


EACH OTHER PERSON
IDENTIFIED ON THE SIGNATURE PAGES HERETO

as a PRINCIPAL SUBSIDIARY,


 


THE FINANCIAL
INSTITUTIONS IDENTIFIED HEREIN

as SEN HOLDERS and BANK HOLDERS,


 


BANK OF AMERICA, N.A.,

as BANK HOLDERS ADMINISTRATIVE AGENT,


 


HSBC BANK USA,

as SHARED PAYMENT AND COLLATERAL AGENT,


 


HSBC BANK USA,

as SEN COLLATERAL AGENT,


 


and


 


THE BANK OF NEW YORK,

not in its individual capacity

but solely as trustee for

GRUPO MEXICO EXPORT MASTER TRUST NO. 1,

as SEN TRUSTEE.


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE
  I  DEFINITIONS AND RULES OF
  CONSTRUCTION

  
	
   

  	
   

  
	
   

  	
  Section 1.01

  	
  Definitions

  
	
   

  	
  Section 1.02

  	
  Construction of References

  
	
   

  	
   

  
	
  ARTICLE
  II  CONDITIONS PRECEDENT TO
  EFFECTIVENESS

  
	
   

  	
   

  
	
   

  	
  Section 2.01

  	
  Conditions of Effectiveness

  
	
   

  	
   

  
	
  ARTICLE III  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  
	
   

  	
  Section 3.01

  	
  Corporate Existence and Power

  
	
   

  	
  Section 3.02

  	
  Corporate Authorization; No Contravention

  
	
   

  	
  Section 3.03

  	
  Compliance with Other Instruments; No
  Breach

  
	
   

  	
  Section 3.04

  	
  Authorization

  
	
   

  	
  Section 3.05

  	
  Binding Effect

  
	
   

  	
  Section 3.06

  	
  Litigation

  
	
   

  	
  Section 3.07

  	
  No Default

  
	
   

  	
  Section 3.08

  	
  Employee Benefit Plans; Employment Matters

  
	
   

  	
  Section 3.09

  	
  Title to Properties

  
	
   

  	
  Section 3.10

  	
  Taxes.

  
	
   

  	
  Section 3.11

  	
  Financial Condition.

  
	
   

  	
  Section 3.12

  	
  Environmental Compliance

  
	
   

  	
  Section 3.13

  	
  No Burdensome Restrictions

  
	
   

  	
  Section 3.14

  	
  Ownership; Subsidiaries

  
	
   

  	
  Section 3.15

  	
  Insurance

  
	
   

  	
  Section 3.16

  	
  Swap Obligations

  
	
   

  	
  Section 3.17

  	
  Legal Form; No Filing

  
	
   

  	
  Section 3.18

  	
  No Liens

  
	
   

  	
  Section 3.19

  	
  Commercial Activity; Absence of Immunity.

  
	
   

  	
  Section 3.20

  	
  Solvency

  
	
   

  	
  Section 3.21

  	
  Enron Obligations

  
	
   

  	
  Section 3.22

  	
  Full Disclosure

  
	
   

  	
  Section 3.23

  	
  Customers; Contracts.

  
	
   

  	
  Section 3.24

  	
  Investment Company Act

  
	
   

  	
  Section 3.25

  	
  Public Utility Holding Company Act

  
	
   

  	
  Section 3.26

  	
  Foreign Assets Control Regulations, etc

  
	
   

  	
  Section 3.27

  	
  Bank Accounts

  
	
   

  	
  Section 3.28

  	
  Real Property Value

  
	
   

  	
  Section 3.29

  	
  Principal Subsidiaries

  



 


i

















 


	
  ARTICLE
  IV  AFFIRMATIVE COVENANTS

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 4.01

  	
  Certain Payment Obligations.

  
	
   

  	
  Section 4.02

  	
  Fees and Expenses

  
	
   

  	
  Section 4.03

  	
  Customer Notice and Acknowledgements.

  
	
   

  	
  Section 4.04

  	
  Financial Advisor’s Access

  
	
   

  	
  Section 4.05

  	
  Financial Reporting

  
	
   

  	
  Section 4.06

  	
  Certain Post-Closing Matters.

  
	
   

  	
  Section 4.07

  	
  Notices

  
	
   

  	
  Section 4.08

  	
  Preservation of Existence

  
	
   

  	
  Section 4.09

  	
  Maintenance of Property

  
	
   

  	
  Section 4.10

  	
  Insurance.

  
	
   

  	
  Section 4.11

  	
  Payment of Taxes and other Governmental
  Charges

  
	
   

  	
  Section 4.12

  	
  Compliance with Laws; Consents

  
	
   

  	
  Section 4.13

  	
  Maintenance of Books and Records

  
	
   

  	
  Section 4.14

  	
  Environmental Laws

  
	
   

  	
  Section 4.15

  	
  Priority

  
	
   

  	
  Section 4.16

  	
  Further Assurances.

  
	
   

  	
  Section 4.17

  	
  Instruments

  
	
   

  	
  Section 4.18

  	
  Compliance with Other Agreements

  
	
   

  	
  Section 4.19

  	
  Designations with Respect to Principal
  Subsidiaries.

  
	
   

  	
  Section 4.20

  	
  Maintenance of Accounts

  
	
   

  	
  Section 4.21

  	
  New Bank Accounts

  
	
   

  	
  Section 4.22

  	
  Remaining Collateral

  
	
   

  	
   

  
	
  ARTICLE
  V  NEGATIVE COVENANTS

  
	
   

  	
   

  
	
   

  	
  Section 5.01

  	
  Limitation on Liens

  
	
   

  	
  Section 5.02

  	
  Prohibition Against Indebtedness

  
	
   

  	
  Section 5.03

  	
  Asset Disposition

  
	
   

  	
  Section 5.04

  	
  Assignments of Collateral

  
	
   

  	
  Section 5.05

  	
  Consolidations, Mergers, Etc

  
	
   

  	
  Section 5.06

  	
  Preservation of Collateral

  
	
   

  	
  Section 5.07

  	
  New Mining Concessions

  
	
   

  	
  Section 5.08

  	
  Minimum Export Receivables.

  
	
   

  	
  Section 5.09

  	
  Use of Cash; Transactions with Affiliates

  
	
   

  	
  Section 5.10

  	
  Maximum Reduction in Intercompany Account
  Balance

  
	
   

  	
  Section 5.11

  	
  Maximum Allowable Capital Expenditures and
  Capitalized Stripping

  
	
   

  	
  Section 5.12

  	
  Financial Covenant Default Restrictions

  
	
   

  	
  Section 5.13

  	
  Change in Business

  
	
   

  	
  Section 5.14

  	
  Accounting Changes

  
	
   

  	
  Section 5.15

  	
  Limitation on Certain Restrictions
  Affecting Subsidiaries

  
	
   

  	
  Section 5.16

  	
  Restricted Payments

  
	
   

  	
  Section 5.17

  	
  Insurance and Reimbursement Agreement

  
	
   

  	
   

  
	
  ARTICLE
  VI  FINANCIAL COVENANTS

  
	
   

  	
   

  
	
   

  	
  Section 6.01

  	
  Net Working Capital

  



 


ii

















 


	
   

  	
  Section 6.02

  	
  Interest Coverage Ratio

  
	
   

  	
  Section 6.03

  	
  Debt Coverage Ratio

  
	
   

  	
  Section 6.04

  	
  Total Debt to Net Capitalization Ratio

  
	
   

  	
   

  
	
  ARTICLE VII  COLLATERAL ARRANGEMENTS

  
	
   

  	
   

  
	
   

  	
  Section 7.01

  	
  Collateral Arrangements

  
	
   

  	
   

  
	
  ARTICLE VIII  PAYMENTS; INTEREST; FEES

  
	
   

  	
   

  
	
   

  	
  Section 8.01

  	
  Prepayments

  
	
   

  	
  Section 8.02

  	
  Distribution of Prepayments

  
	
   

  	
  Section 8.03

  	
  Repayment

  
	
   

  	
  Section 8.04

  	
  Interest

  
	
   

  	
  Section 8.05

  	
  Fees.

  
	
   

  	
  Section 8.06

  	
  Computation of Interest.

  
	
   

  	
  Section 8.07

  	
  Subordination of Payments on GM Notes

  
	
   

  	
   

  
	
  ARTICLE
  IX  EVENTS OF DEFAULT

  
	
   

  	
   

  
	
   

  	
  Section 9.01

  	
  Event of Default

  
	
   

  	
   

  
	
  ARTICLE
  X  REMEDIES

  
	
   

  	
   

  
	
   

  	
  Section 10.01

  	
  Lenders’ Remedies

  
	
   

  	
  Section 10.02

  	
  Trapping

  
	
   

  	
  Section 10.03

  	
  Rights Cumulative; No Marshaling;
  Waivers.

  
	
   

  	
  Section 10.04

  	
  Rights Not Exclusive

  
	
   

  	
   

  
	
  ARTICLE
  XI  INDEMNIFICATION; COSTS AND
  EXPENSES

  
	
   

  	
   

  
	
   

  	
  Section 11.01

  	
  Indemnification

  
	
   

  	
  Section 11.02

  	
  Costs and Expenses

  
	
   

  	
   

  
	
  ARTICLE XII  TAXES; YIELD PROTECTION; ILLEGALITY; PAYMENTS

  
	
   

  	
   

  
	
   

  	
  Section 12.01

  	
  Taxes.

  
	
   

  	
  Section 12.02

  	
  Illegality.

  
	
   

  	
  Section 12.03

  	
  Increased Costs.

  
	
   

  	
  Section 12.04

  	
  Funding Losses

  
	
   

  	
  Section 12.05

  	
  Inability to Determine Rates

  
	
   

  	
  Section 12.06

  	
  Reserves

  
	
   

  	
  Section 12.07

  	
  Certificates of Lenders

  
	
   

  	
  Section 12.08

  	
  Payments by Borrower and Agents.

  
	
   

  	
  Section 12.09

  	
  Sharing of Payments, Etc

  



 


iii

















 


	
  ARTICLE XIII  SHARED PAYMENT AND COLLATERAL AGENT

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 13.01

  	
  Appointment and Authorization of Shared
  Payment and Collateral Agent

  
	
   

  	
  Section 13.02

  	
  Delegation of Duties

  
	
   

  	
  Section 13.03

  	
  No Liability of Agent-Related Persons

  
	
   

  	
  Section 13.04

  	
  Reliance by Agent-Related Persons

  
	
   

  	
  Section 13.05

  	
  Notice of Default

  
	
   

  	
  Section 13.06

  	
  Credit Decision

  
	
   

  	
  Section 13.07

  	
  Indemnification of Agent-Related Persons
  of the Shared Payment and Collateral Agent

  
	
   

  	
  Section 13.08

  	
  The Agent-Related Persons of the Shared
  Payment and Collateral Agent in their Individual Capacity

  
	
   

  	
  Section 13.09

  	
  Resignations; Successor Agent

  
	
   

  	
  Section 13.10

  	
  Agents May File Proofs of Claim

  
	
   

  	
  Section 13.11

  	
  Collateral and Guaranty Matters

  
	
   

  	
  Section 13.12

  	
  Acts of Lenders, Bank Holders and SEN
  Holders.

  
	
   

  	
  Section 13.13

  	
  Other Matters With Respect to Shared
  Payment and Collateral Agent.

  
	
   

  	
  Section 13.14

  	
  The Mexican Security Trust Agreement.

  
	
   

  	
   

  
	
  ARTICLE XIV  MISCELLANEOUS

  
	
   

  	
   

  
	
   

  	
  Section 14.01

  	
  Amendments and Waivers.

  
	
   

  	
  Section 14.02

  	
  Intent of Parties

  
	
   

  	
  Section 14.03

  	
  Limitation of Rights; No Waiver

  
	
   

  	
  Section 14.04

  	
  Effect of Headings

  
	
   

  	
  Section 14.05

  	
  Severability Clause

  
	
   

  	
  Section 14.06

  	
  Currency.

  
	
   

  	
  Section 14.07

  	
  GOVERNING LAW

  
	
   

  	
  Section 14.08

  	
  Payments Set Aside

  
	
   

  	
  Section 14.09

  	
  Set-off

  
	
   

  	
  Section 14.10

  	
  Notes Held by Borrower or Affiliates

  
	
   

  	
  Section 14.11

  	
  Tax Treatment

  
	
   

  	
  Section 14.12

  	
  Disclosure to Other Persons

  
	
   

  	
  Section 14.13

  	
  Successors and Assigns

  
	
   

  	
  Section 14.14

  	
  Notices.

  
	
   

  	
  Section 14.15

  	
  Counterparts

  
	
   

  	
  Section 14.16

  	
  No Third Parties Benefited

  
	
   

  	
  Section 14.17

  	
  Waiver of Immunity

  
	
   

  	
  Section 14.18

  	
  Use of English Language

  
	
   

  	
  Section 14.19

  	
  Survival

  
	
   

  	
  Section 14.20

  	
  Waiver of Jury Trial

  
	
   

  	
  Section 14.21

  	
  GM Guaranty

  
	
   

  	
  Section 14.22

  	
  Consent to Jurisdiction; Process Agent

  
	
   

  	
  Section 14.23

  	
  GM Note Purchases

  
	
   

  	
  Section 14.24

  	
  Rights Relating to GM Notes.

  



 


iv

















 


LIST OF APPENDIXES


 


	
  Appendix
  A

  	
  –

  	
  Uniform
  Definitions and Rules of Interpretation

  



 


LIST OF EXHIBITS


 


	
  Exhibit 2.01(h)(i)

  	
  -

  	
  Form of Affiliate Guaranty

  
	
  Exhibit 2.01(h)(ii)

  	
  -

  	
  Form of GM Guaranty

  
	
  Exhibit 2.01(n)(i)-A

  	
  -

  	
  Form of Secretary’s Certificate (U.S. Entities)

  
	
  Exhibit 2.01(n)(i)-B

  	
  -

  	
  Form of Secretary’s Certificate (Mexican Entities)

  
	
  Exhibit 2.01(n)(ii)

  	
  -

  	
  Form of Responsible Officer Certificate

  
	
  Exhibit 2.01(r)(i)

  	
  -

  	
  Form of Legal Opinion of Sidley Austin Brown &
  Wood LLP

  
	
  Exhibit 2.01(r)(ii)

  	
  -

  	
  Form of Legal Opinion of Borrower’s General Counsel

  
	
  Exhibit 2.01(r)(iii)

  	
  -

  	
  Form of Legal Opinion of Jauregui, Navarrete, Nader
  y Rojas, S.C.

  
	
  Exhibit 2.01(r)(iv)

  	
  -

  	
  Form of Legal Opinion of Ritch, Heather y Mueller,
  S.C.

  
	
  Exhibit 2.01(r)(v)

  	
  -

  	
  Form of Legal Opinion of Emmet, Marvin & Martin

  
	
  Exhibit 2.01(y)(iv)(A)

  	
  -

  	
  Form of Legal Opinion of Sidley Austin Brown &
  Wood LLP relating to the GM Guaranty

  
	
  Exhibit 2.01(y)(iv)(B)

  	
  -

  	
  Form of Legal Opinion of Borrower’s General Counsel
  relating to the GM Guaranty

  
	
  Exhibit 2.01(z)(ii)

  	
  -

  	
  Form of GM’s Responsible Officer Certificate

  
	
  Exhibit 2.01(aa)

  	
  -

  	
  Form of Lost Note Affidavit

  
	
  Exhibit 4.05(a)(i)

  	
  -

  	
  Form of Summary of Sources and Uses of Cash

  
	
  Exhibit 4.05(a)(ii)

  	
  -

  	
  Form of Borrower Operating Report

  
	
  Exhibit 4.05(c)(ii)

  	
  -

  	
  Form of CEO Report

  
	
  Exhibit 4.05(h)

  	
  -

  	
  Lender Payments

  
	
  Exhibit 4.06(a)

  	
  -

  	
  Forms of Intercompany Payable Restructuring
  Documents

  
	
  Exhibit 5.10

  	
  -

  	
  Base Net Intercompany Account Balance Total

  
	
  Exhibit 6

  	
  -

  	
  Financial Statement Example

  
	
  Exhibit 6.01

  	
  -

  	
  Sample Calculation of Net Working Capital

  
	
  Exhibit 6.02

  	
  -

  	
  Sample Calculation of Interest Coverage Ratio

  
	
  Exhibit 6.03

  	
  -

  	
  Sample Calculation of Debt Coverage Ratio

  
	
  Exhibit 6.04

  	
  -

  	
  Sample Calculation of Total Debt to Net
  Capitalization Ratio

  
	
  Exhibit 7.01

  	
  -

  	
  SEN Make-Whole Amount Calculation Definitions

  
	
  Exhibit 7.01(f)(i)

  	
  -

  	
  SEN Make-Whole Amount Calculation
  (Liquidation/Amortization)

  
	
  Exhibit 7.01(f)(iii)

  	
  -

  	
  SEN Make-Whole Amount Calculation (Trapped Funds
  Prepayment)

  
	
  Exhibit 7.01(g)

  	
  -

  	
  SEN Make-Whole Amount Calculation (Series D)

  
	
  Exhibit 8.01

  	
  -

  	
  Cash Flow Calculations

  
	
  Exhibit 8.01(c)

  	
  -

  	
  Cash Flow Prepayment

  
	
  Exhibit 14.23

  	
  -

  	
  Form of Subordination Agreement

  



 


v

















 


	
  LIST OF SCHEDULES

  
	
   

  	
   

  	
   

  
	
  Schedule A-1

  	
  -

  	
  Primary Accounts

  
	
  Schedule A-2

  	
  -

  	
  Scheduled Assets

  
	
  Schedule 1.1

  	
  -

  	
  SEN Holders

  
	
  Schedule 1.2

  	
  -

  	
  Bank Holders

  
	
  Schedules 2.01(x)

  	
  -

  	
  Translated Documents

  
	
  Schedule 3.06

  	
  -

  	
  Pending or Threatened Litigation

  
	
  Schedule 3.08

  	
  -

  	
  Retiree Benefits

  
	
  Schedule 3.08(f)

  	
  -

  	
  Labor Issues

  
	
  Schedule 3.09

  	
  -

  	
  Title to Properties

  
	
  Schedule 3.10(a)

  	
  -

  	
  Taxes

  
	
  Schedule 3.12

  	
  -

  	
  Environmental Compliance

  
	
  Schedule 3.14

  	
  -

  	
  Subsidiaries

  
	
  Schedule 3.23

  	
  -

  	
  Customers and Contracts

  
	
  Schedule 3.27

  	
  -

  	
  Deposit Accounts

  
	
  Schedule 4.01(b)

  	
  -

  	
  Restructured Debt Payment Schedule

  
	
  Schedule 4.03(b)

  	
  -

  	
  Acknowledgement Percentage Cash Trapping Amounts

  
	
  Schedule 5.09

  	
  -

  	
  Certain Payments

  
	
  Schedule 5.11

  	
  -

  	
  Capitalized Stripping and Capital Expenditures

  
	
  Schedule 14.14

  	
  -

  	
  Notices

  



 


vi

















 


COMMON AGREEMENT (this “Agreement”) dated as of April
29, 2003 by and among GRUPO MINERO MEXICO, S.A. DE C.V., a sociedad anónima de
capital variable organized under the laws of Mexico, as the borrower prior to
the Intercompany Payable Restructuring (“GMM”), MINERA MEXICO, S.A. DE C.V., a
sociedad anónima de capital variable organized under the laws of Mexico, as
equity contributor and, from and after the Intercompany Payable Restructuring,
the borrower (“MM”), INDUSTRIAL MINERA MEXICO, S.A. DE C.V., a sociedad
anónima de capital variable organized under the laws of Mexico (“IMMSA”),
MINERA MEXICO INTERNACIONAL, INC., a New York corporation (“MMI”),
MEXICANA DE COBRE, S.A. DE C.V., a sociedad anónima de capital variable
organized under the laws of Mexico (“Mexcobre”), MINERALES METALICOS DEL NORTE,
S.A., a sociedad anónima organized under the laws of Mexico (“Mimenosa”),
MEXICANA DE CANANEA, S.A. DE C.V., a sociedad anónima de capital variable
organized under the laws of Mexico (“Mexcananea”), MEXICANA DEL ARCO, S.A. DE
C.V., a sociedad anónima de capital variable organized under the laws of Mexico
(“Mexarco”),
MINERALES Y MINAS MEXICANAS, S.A. DE C.V., a sociedad anónima de capital
variable organized under the laws of Mexico (“MMM”), COMPANIA DE TERRENOS E
INVERSIONES DE SAN LUIS POTOSI, S.C. POR A., S.A., a sociedad anónima organized
under the laws of Mexico (“TISLP”), MEXICO COMPANIA INMOBILIARIA,
S.A., a sociedad anónima organized under the laws of Mexico (“MCI”),
PROYECCIONES URBANISTICAS S. DE R.L. DE C.V., a sociedad de responsabilidad
limitada de capital variable organized under the laws of Mexico (“PU”),
each other Person identified as a “Principal Subsidiary” on the signature pages
hereto from time to time, the financial institutions identified on Schedule
1.1 hereto as SEN Holders (the “SEN Holders”), the financial institutions
identified on Schedule 1.2 hereto as Bank Holders (the “Bank Holders”),
BANK OF AMERICA, N.A., as the Bank Holders Administrative Agent (the “Bank Holders
Administrative Agent”), HSBC BANK USA, solely in its capacity as the
Shared Payment and Collateral Agent (the “Shared Payment and Collateral Agent”), HSBC
BANK USA, solely in its capacity as the SEN Collateral Agent (the “SEN
Collateral Agent”), and THE BANK OF NEW YORK, a banking corporation
organized under the laws of the State of New York, not in its individual
capacity but solely as trustee (in such capacity, the “SEN Trustee”) of GRUPO MEXICO
EXPORT MASTER TRUST NO. 1, a trust formed under the laws of the State of New
York (the “SEN Trust”).


 


W  I
T  N  E  S  S  E  T  H:


 


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


 


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


 


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


 

















 


NOW THEREFORE, in consideration of the mutual
agreements, provisions and covenants contained herein, the parties hereto agree
as follows:


 


ARTICLE I

DEFINITIONS AND RULES OF CONSTRUCTION


 


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


 


Section 1.02                                Construction
of References.  For all purposes of
this Agreement, terms used herein shall be interpreted in accordance with
paragraphs A-F of Appendix A.


 


ARTICLE II

CONDITIONS PRECEDENT TO EFFECTIVENESS


 


Section 2.01                                Conditions
of Effectiveness.  The effectiveness
of this Agreement and the occurrence of the closing of the transactions
contemplated herein on the Closing Date shall be deemed to have occurred upon
satisfaction of the conditions precedent listed in this Section 2.01.  Such conditions precedent shall be deemed
satisfied upon confirmation to each of the Bank Holders, the SEN Holders, the
Bank Holders Administrative Agent, the Shared Mexican Trustee, the SEN
Collateral Agent and the SEN Trustee by the Shared Payment and Collateral Agent
that each of the Bank Holders, the SEN Trustee and the SEN Holders accept or
are deemed to accept each of the items listed in this Section 2.01.


 


The Shared Payment and
Collateral Agent shall give not less than one (1) Business Day’s notice of
the anticipated Closing Date to each of the Bank Holders, the SEN Holders, the
Bank Holders Administrative Agent, the Shared Mexican Trustee, the SEN
Collateral Agent and the SEN Trustee. 
Each of the Bank Holders, the SEN Trustee and the SEN Holders shall be
deemed to have agreed to and accepted each item listed below, unless any such
Person notifies the Shared Payment and Collateral Agent and the Bank Holders
Administrative Agent (in the case of the Bank Holders) and the SEN Collateral
Agent (in the case of the SEN Holders) that it does not so agree to or accept
such item by 5:00 p.m. (New York City time) on the Business Day on which
the notice referred to in the previous sentence of this paragraph is
transmitted.


 


(a)                                  Common
Agreement.  This Agreement shall
have been duly authorized, executed and delivered by each of the parties
hereto.


 


(b)                                 Restructured
Trust Indenture.  The Restructured
Trust Indenture shall have been duly authorized, executed and delivered by each
of the parties thereto.


 


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


 


(d)                                 Mexican
Security Trust Agreement.  The
Mexican Security Trust Agreement shall have been duly authorized, executed and
delivered by each of the parties thereto, and (i) filed for registration in
(A) the Public Registry of Commerce with jurisdiction in the corporate
domicile


 


2

















 


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


 


(e)                                  Security
Agreements.


 


(i)                                     The
U.S. Security Agreement shall have been duly authorized, executed and delivered
by the parties thereto.


 


(ii)                                  The
SEN Security Agreement shall have been duly authorized, executed and delivered
by the parties thereto.


 


(f)                                    [Reserved.]


 


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


 


(h)                                 Affiliate
Guaranty and GM Guaranty.


 


(i)                                     Each
Guarantor shall have duly authorized, executed and delivered to each Lender an
originally executed counterpart of the Affiliate Guaranty, substantially in the
form attached hereto as Exhibit 2.01(h)(i), and provided a copy of the
same to each Agent for each Lender; and


 


3

















 


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


 


(i)                                     Perfection
Matters.  Borrower and Guarantors
shall have filed appropriate Uniform Commercial Code financing statements, made
such other filings and taken such actions as may be necessary or advisable to
perfect a first priority security interest with respect to the SEN Collateral
and the Shared Collateral, as applicable, pursuant to the terms and provisions
of, and to the extent required by, the Operative Documents.


 


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


 


(k)                                  Updated
Projections.  Borrower shall have
adopted and delivered updated projections for Borrower and its Subsidiaries for
the period 2003-2010 containing a forecast on a quarterly basis through such
period, which projections shall be satisfactory in all material respects to the
Super-Majority Lenders (the “Updated Projections”).


 


(l)                                     Governmental
and Third Party Approvals.  All
licenses, authorizations and permits of any Governmental Authority (including
Hacienda) and all consents and approvals of any Governmental Authority or third
party, in each case as may be required to maintain the Restructured Debt, grant
the Liens provided for in the Collateral Documents, make the Affiliate Guaranty
by each of the Guarantors, make the GM Guaranty by GM, or otherwise enter into
the Operative Documents, shall have been obtained and be in full force and
effect.


 


(m)                               Deliveries
to the SEN Trustee, the SEN Collateral Agent and the Bank Holders
Administrative Agent.  The SEN
Trustee, the SEN Collateral Agent and the Bank Holders Administrative Agent
shall have received each of the following, each in form and substance satisfactory
to the SEN Trustee, the SEN Collateral Agent and the Bank Holders
Administrative Agent and certified by a Responsible Officer of Borrower:


 


(i)                                     such
documents and certifications as may be necessary or advisable to evidence that
each of Borrower and the Guarantors is duly organized or formed (including the
documents listed in Section 2.01(n));


 


(ii)                                  (A) copies
of all consents, licenses and approvals required in connection with the
execution, delivery and performance by such party and the validity against such
party of the Operative Documents to which it is a party or (B) a
certificate stating that no such consents, licenses or approvals are so
required;


 


(iii)                               evidence that all
insurance required to be maintained pursuant to the Operative Documents has
been obtained and is in effect;


 


4

















 


(iv)                              evidence
that the Process Agent has accepted its appointment as such for Borrower and
each Guarantor, together with copies of the notarial deeds pursuant to which
each such party (other than MMI) shall have granted to the Process Agent an
irrevocable power of attorney for lawsuits and collections;


 


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


 


(vi)                              a
calculation of the Intercompany Payable as of March 31, 2003, and any
other information or documents reasonably requested by the Lenders or the
Financial Advisor.


 


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


 


(i)                                     a
Secretary’s Certificate in substantially the form of Exhibit 2.01(n)(i)-A
or Exhibit 2.01(n)(i)-B, as applicable, of each of AMC, Borrower and the
Guarantors; and


 


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


 


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


 


(B)                                no
Default or Event of Default exists or would result from the restructuring
contemplated by the Operative Documents;


 


(C)                                there
has not occurred since September 30, 2002 any event or circumstance that
has resulted or could reasonably be expected to result in a Material Adverse
Effect;


 


(D)                               at
all times during the Interim Funding Period, each of Borrower and each
Guarantor complied in all material respects with the Affirmative Covenants and
Negative Covenants;


 


(E)                                 no
new payment, bankruptcy or insolvency-related Event of Default has occurred,
other than those expressly waived by the Lenders, and is continuing under any
Existing Bank Agreement or Existing SEN Agreement;


 


(F)                                 neither
MM nor any of its Subsidiaries has made any voluntary payments or has
voluntarily given any property or collateral to Westdeutsche Landesbank
Girozentrale or Siemens Financial Services GmbH (or any of their respective
successors and assigns) with respect to the Enron Obligations; and


 


5

















 


(G)                                all
conditions of this Section 2.01 have been met.


 


(o)                                 Equity
Contribution.  The Lenders shall
have received satisfactory evidence that the Equity Contribution has been
delivered to a bank account of Borrower in immediately available funds for
unrestricted use in operations.


 


(p)                                 SEN
Closing Date Contribution.  The
Lenders shall have received satisfactory evidence that the SEN Closing Date
Contribution has been released by the SEN Holders on an unrestricted basis from
any of the Original Collection Accounts and the Debt Service Reserve Account
and delivered to a bank account of Borrower in immediately available funds.


 


(q)                                 ASARCO
Confirmation and Release.  The
Lenders shall have received (i) a confirmation from ASARCO that any
inventory of Borrower or any Guarantor in the possession and control of ASARCO,
including any inven11tory that is in transit in the United States, does not
belong to ASARCO, and (ii) a release from ASARCO, in form and substance
satisfactory to the Lenders, with respect to any and all rights it may have in,
against, or to such inventory, including any rights of set-off.


 


(r)                                    Legal
Opinions.  The Lenders and the
Agents (but as to clause (iii) below, the Bank Holders and the Bank
Holders Administrative Agent only, as to clause (iv) below, the SEN
Trustee, the SEN Collateral Agent and the SEN Holders only, and as to
clause (v) below, the SEN Holders and the SEN Collateral Agent only) shall
have received favorable legal opinions, dated as of the Closing Date, of:


 


(i)                                     Sidley
Austin Brown & Wood LLP, special New York counsel to Borrower and each
Guarantor, as to matters set forth in Exhibit 2.01(r)(i) and as to such
other matters as the Required Lenders may reasonably request;


 


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


 


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


 


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


 


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


 


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


 


6

















 


been
expressly waived in writing by the Lenders, and be continuing under any
Existing Bank Agreement or Existing SEN Agreement.


 


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


 


(u)                                 Payment
of Fees and Transaction Expenses. 
Borrower shall have paid all fees, costs and expenses due and payable
pursuant to Section 8.05 and Section 11.02.


 


(v)                                 The
Bank of Nova Scotia.  The Bank of
Nova Scotia shall have received payment of the Scotiabank Unpaid Default
Interest.


 


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


 


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


 


(y)                                 Deliveries
to the GM Agent.  The GM Agent shall
have received each of the following, each in form and substance satisfactory to
the GM Agent and its legal counsel and certified by a Responsible Officer of
each of GM, MM and GMM:


 


(i)                                     such
documents and certifications as the GM Agent may reasonably require to evidence
that each of GM, MM and GMM is duly organized or formed (including the
documents listed in Section 2.01(z));


 


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


 


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


 


7

















 


(iv)                              favorable
legal opinions, dated as of the Closing Date, and addressed to the GM Agent and
the GM Guaranty Beneficiaries of:


 


(A)                              Sidley
Austin Brown & Wood LLP, special New York counsel to GM, MM and GMM, as to
matters set forth in Exhibit 2.01(y)(iv)(A) and as to such other
matters as the GM Agent may reasonably request, and


 


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


 


(v)                                 any
other information reasonably requested pursuant to the terms hereof by the GM
Guaranty Beneficiaries or the GM Agent.


 


(z)                                   Corporate
Documents, Incumbency Certificates, etc. The GM Agent shall have received
each of the following, each in form and substance satisfactory to the GM Agent
and its legal counsel:


 


(i)                                     a
Secretary’s Certificate in substantially the form of Exhibit 2.01(n)(i)-B
of GM; and


 


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


 


(A)                              the
representations and warranties contained in Article III of the GM Guaranty in
the case of GM and Article III of the Common Agreement (as modified
by Section 6.21(a) of the GM Guaranty) are true and correct on and as of
such date, as though made on and as of such date; except to the extent such
representations and warranties specifically relate to an earlier date, in which
case such representations and warranties were true and correct on and as of
such earlier date,


 


(B)                                no
GM Guaranty Default or GM Guaranty Event of Default (as each such term is
defined in the GM Guaranty) exists or would result from the restructuring
contemplated by the Operative Documents, and


 


(C)                                there
has not occurred since September 30, 2002 any event or circumstance that
has resulted or could reasonably be expected to result in a Material Adverse
Effect (as defined in the GM Guaranty).


 


(aa)                            Cancelled
Notes.  Each SEN Holder, each Bank
Holder and the SEN Trustee shall have delivered on the Closing Date, against
delivery of the Notes described in Section 2.01(j), either
(i) the original notes issued to them pursuant to the terms of the
Original Trust Indenture or the Existing Bank Agreements or (ii) an
affidavit in the form attached hereto as Exhibit 2.01(aa) by an
authorized officer of such Person.


 


(bb)                          Ex-Im
Guarantees.   Each of Bank of
America, N.A. and Société Générale shall have received written confirmation, in
form and substance satisfactory to each of them,


 


8

















 


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


 


ARTICLE III

REPRESENTATIONS AND WARRANTIES


 


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


 


Section 3.01                                Corporate
Existence and Power.  Borrower and
each Guarantor:


 


(a)                                  is
a sociedad
anónima de capital variable, except for Mimenosa, TISLP and MCI,
each of which is a sociedad anónima, PU, which is a sociedad de
responsabilidad limitada de capital variable, and MMI, which is a
corporation, duly organized, validly existing and, to the extent applicable, in
good standing under the laws of the jurisdiction of its formation;


 


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


 


(c)                                  is
duly qualified as a foreign entity and is licensed and in good standing (or the
equivalent, if any, under Mexican Applicable Law) under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification or license (except to the extent
that the failure to be so qualified, licensed or in good standing could not
reasonably be expected to have a Material Adverse Effect);


 


(d)                                 is
in compliance with all Applicable Laws (except to the extent that the failure
to be in such compliance could not reasonably be expected to have a Material
Adverse Effect); and


 


(e)                                  has
no outstanding shares of Capital Stock other than such shares that have been
validly issued and are fully paid and non-assessable and are owned as indicated
in Schedule 3.14.


 


Section 3.02                                Corporate
Authorization; No Contravention. 
The execution, delivery and performance by Borrower and each Guarantor
of this Agreement and each other Operative Document to which such Person is
party have been duly authorized by all necessary corporate action, and do not
and will not:


 


(a)                                  contravene
the terms of any such Person’s Organizational Documents;


 


(b)                                 conflict
with or result in any breach or contravention of, or the creation of any Lien
under, any document evidencing any Contractual Obligation to which any such
Person is a party (including the Yankee Bond Indenture), or any order,
injunction, writ or decree of any Governmental Authority to which any such
Person or its property is subject; provided that the parties hereto
acknowledge that the assignments under the Mexican Security Trust Agreement and
the pledge under the U.S. Security Agreement may give rise to equitable Liens
pursuant to the Yankee Bond Indenture (and Borrower and each Guarantor further
represent and warrant that


 


9

















 


the
provisions of the Operative Documents comply fully with the provisions of the
Yankee Bond Indenture); or


 


(c)                                  violate
any Applicable Law.


 


Section 3.03                                Compliance
with Other Instruments; No Breach. 
Neither Borrower nor any Guarantor is in violation of (i) its estatutos
sociales (or, with respect to MMI, its certificate of incorporation
or its by-laws), (ii) any Applicable Law, or any order, writ, injunction
or decree of any court, tribunal or Governmental Authority binding on such
Person or its properties, or (iii) any agreement or instrument to which it
is a party or by which it is bound or to which it is subject, except for such
violations in clauses (ii) or (iii) that in the aggregate would not have a
Material Adverse Effect.


 


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


 


Section 3.05                                Binding
Effect.  This Agreement and each
other Operative Document to which Borrower or any Guarantor is a party have
been duly executed and delivered by it and constitute the legal, valid and
binding obligations of Borrower and each Guarantor to the extent it is a party
thereto, enforceable against each such Person in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles related to enforceability.  Without limiting the foregoing, each Bank
Holder Note is a valid and enforceable credit instrument (título de crédito) in
accordance with the Ley General de Títulos y Operaciones de Crédito
enforceable under Mexican law by means of a summary judicial proceeding (acción
ejecutiva mercantil) against Borrower, as maker, and any Guarantor
party thereto, as avalista.


 


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


 


(a)                                  purport
to affect or pertain to this Agreement or any other Operative Document or any
of the transactions contemplated hereby or thereby; or


 


(b)                                 could
reasonably be expected to have a Material Adverse Effect.


 


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


 


10

















 


Section 3.07                                No
Default.  No Default or Event of
Default exists or would result from the incurrence of any Restructured Debt by
Borrower or any Guarantor.  Neither
Borrower nor any Guarantor is in default under or with respect to any
Contractual Obligation in any respect that, individually or together with all
such defaults, could reasonably be expected to have a Material Adverse Effect,
or that if such default occurred after the Closing Date, could reasonably be
expected to create or constitute a Default or an Event of Default.


 


Section 3.08                                Employee
Benefit Plans; Employment Matters. 
As of the Closing Date:


 


(a)                                  Each
employee benefit plan (if any) of Borrower or any Guarantor has been
maintained, operated and administered in accordance with its terms and with
Applicable Law, and all notices, filings and disclosures required by such terms
or Applicable Law have been timely made, except when the failure to maintain,
operate, administer, notify, file or disclose could not reasonably be expected
to have a Material Adverse Effect.  No
proceeding with respect to the administration or the investment of any assets
of any such employee benefit plan (other than routine claims for benefits) that
could reasonably be expected to have a Material Adverse Effect is pending or
threatened.


 


(b)                                 All
obligations of Borrower or any Guarantor for payments with respect to any and
all mandatory and additional employee benefit plans (including I.M.S.S.,
Infonavit and accrued payroll tax payments for their respective
employees) have been timely paid and properly reported in the financial
statements required to be delivered hereunder except where the failure to make
such payments could not reasonably be expected to have a Material Adverse
Effect.


 


(c)                                  Except
as set forth on Schedule 3.08 or as required by Applicable Law, neither
Borrower nor any Guarantor has any liability for retiree benefits.


 


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


 


(e)                                  Each
of Borrower and the Guarantors has complied in all material respects with all
Applicable Laws with respect to employment practices, including applicable
health and safety regulations, and there is no charge or complaint alleging any
violation of such Applicable Laws against Borrower or any Guarantor pending or,
to any of their  knowledge, threatened
(including by or before any federal or local labor board, any tribunal or the Comisión
Nacional del Sistema de Ahorro para el Retiro (National Savings and
Retirement System Commission)) that could reasonably be expected to have a
Material Adverse Effect.


 


(f)                                    Except
as set forth on Schedule 3.08(f), there is no labor strike, request for
representation, slowdown or stoppage pending or, to the best knowledge of
Borrower or any Guarantor, threatened against or affecting any of them that
could reasonably be expected to have a Material Adverse Effect.


 


(g)                                 Borrower
and each Guarantor have filed all forms, reports and statements, in each case
with respect to employment matters and employment benefit plans, and provider
agreements, benefit plan descriptions, payor agreements, beneficiary materials
and other documents (including those related to employee benefit plans)
required to be filed by any of them with any Governmental Authority, including
state and federal insurance and health


 


11

















 


regulatory
authorities, except where the failure to file could not reasonably be expected
to have a Material Adverse Effect.


 


Section 3.09                                Title
to Properties.  Except as set forth
on Schedule 3.09, Borrower and each Guarantor has unencumbered legal
title to, or valid leasehold interests in, all real and personal property
necessary or used in the ordinary conduct of their respective businesses,
except for such defects in title as could not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect.


 


Section 3.10                                Taxes.


 


(a)                                  Except
as set forth on Schedule 3.10(a), Borrower and each Guarantor has
accurately filed tax returns, statements and reports required to be filed, and
have timely paid all taxes, assessments, fees, penalties, and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those that are being contested in good
faith by appropriate proceedings and with respect to which bonds have been
posted as may be required by Applicable Law and adequate reserves have been
provided in accordance with Mexican GAAP, and those that could not reasonably
be excepted to have a Material Adverse Effect. 
There is no proposed tax assessment against Borrower or any Guarantor
that would, if made, have a Material Adverse Effect.


 


(b)                                 There
is no Tax of any kind whatsoever imposed by any Governmental Authority in
Mexico either (i) on or by virtue of the execution, delivery, performance,
enforcement or admissibility into evidence of this Agreement, the Notes or any
other Operative Document or (ii) on any payment to be made by Borrower or
any Guarantor pursuant to this Agreement, the Notes or any other Operative
Document, except that, as of the Closing Date, any payment of interest or fees
payable from Mexico under this Agreement (other than such payments to or on
behalf of Export Development Canada, which are not subject to Mexican
withholding tax) will be subject to withholding tax as set forth in the Mexican
Income Tax Law; provided that in the case of payments made under this
Agreement to financial institutions registered with Hacienda for purpose of
Article 195, Section I of the Mexican Income Tax Law that are residents (or
have the principal offices of such Lender resident, if such Lender lends
through a branch or agency) for tax purposes of a jurisdiction with which
Mexico has in effect a treaty for the avoidance of double taxation, the
applicable rate will be 4.9%, or such other rate as may be provided in the
Mexican Income Tax Law.


 


(c)                                  Neither
Borrower nor any Guarantor intends to treat the Restructured Debt as being a
“reportable transaction” (within the meaning of Treasury Regulation
Section 1.6011-4).  In the event
Borrower or any Guarantor determines to take any action inconsistent with such
intention, it will promptly notify the Shared Payment and Collateral Agent
thereof.  Accordingly, if Borrower or
any Guarantor so notifies the Shared Payment and Collateral Agent, it
acknowledges that one or more of the Lenders may treat the Restructured Debt as
part of a transaction that is subject to Treasury Regulation
Section 301.6112-1, and such Lender or Lenders, as applicable, will
maintain the lists and other records required by such Treasury Regulation.  Borrower and the Guarantors acknowledge and
agree that they have not received any tax advice from any Agent or Lender in
connection with the foregoing.


 


12

















 


Section 3.11                                Financial
Condition.


 


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


 


(i)                                     were
prepared in accordance with Mexican GAAP consistently applied throughout the
period covered thereby, except as otherwise expressly noted therein; and


 


(ii)                                  fairly
present the financial condition of each of Borrower and each Guarantor, as
applicable, as of the dates thereof, and results of operations for the periods
covered thereby (subject, in the case of the financial statements at and for
the period ended September 30, 2002, to ordinary, good faith year-end audit
adjustments).


 


(b)                                 Neither
Borrower nor any Guarantor had on said dates any material contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments, except as
referred to or reflected or provided for in said balance sheets as of said
dates.  There has been no material
adverse change in the consolidated financial condition, operations, business or
prospects of Borrower and the Guarantors, taken as a whole, since September 30,
2002, from that set forth in the audited financials referred to in clause
(a)(x) of this Section 3.11.


 


Section 3.12                                Environmental
Compliance.  In the ordinary course
of its business, Borrower and each Guarantor conducts an ongoing review of the
effect of Environmental Laws on its business, operations and properties, in the
course of which it identifies and evaluates associated liabilities and costs
(including any capital or operating expenditures required for cleanup or
closure of properties presently or previously owned, any capital or operating
expenditures required to achieve or maintain compliance with environmental
protection standards imposed by law as a condition of any license, permit or
contract, any related constraints on operating activities, including any
periodic or permanent shutdown of any facility or reduction in the level of or
change in the nature of operations conducted thereat, and any actual or
potential liabilities to third parties, including employees, and any related costs
and expenses).  On the basis of this
review, except as set forth on Schedule 3.12, (a) Borrower and each
Guarantor is in compliance with Environmental Laws other than any failure to
comply that has not resulted and cannot reasonably be expected to result in a
Material Adverse Effect; (b) to the best of Borrower’s and each
Guarantor’s knowledge, there is no condition on or near real property leased,
owned, or otherwise used by Borrower or any Guarantor that has given or could
give rise to liability under any Environmental Law, which liability has
resulted or could reasonably be expected to result in a Material Adverse
Effect; and (c) to the best of Borrower’s and each Guarantor’s knowledge,
neither Borrower nor any Guarantor has suffered any act or omission that could
give rise to liability under any Environmental Laws that has resulted or could
reasonably be expected to result in a Material Adverse Effect.


 


13

















 


Section 3.13                                No
Burdensome Restrictions.  Neither
Borrower nor any Guarantor is a party to or bound by a Contractual Obligation,
or subject to any restriction in any Organizational Document or any Applicable
Law, that could reasonably be expected to have a Material Adverse Effect.


 


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


 


Section 3.15                                Insurance.  The properties of Borrower and each
Guarantor are insured, with financially sound and reputable independent
insurance companies that are not Affiliates of any of Borrower or any
Guarantor, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where Borrower or the applicable Guarantor
operates.


 


Section 3.16                                Swap
Obligations.  Neither Borrower nor
any Guarantor has incurred any outstanding obligations under any Swap Contract,
other than Permitted Swap Obligations.


 


Section 3.17                                Legal
Form; No Filing.  Each of this
Agreement, the Notes and each of the other Operative Documents is in proper
legal form under the law of Mexico for the enforcement thereof under such law;
each of the Operative Documents that is stated to be governed by Mexican law
constitutes the legal, valid and binding obligations of Borrower and any
Guarantor party thereto under such law, enforceable in accordance with its
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’ rights
generally or by equitable principles related to enforceability; and with
respect to each of the Operative Documents that is not stated to be governed by
such law, each such Operative Document would, if it were stated to be governed
by such law, constitute the legal, valid and binding obligations of Borrower or
any Guarantor party thereto under such law, enforceable in accordance with its
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of creditors’
rights generally or by equitable principles related to enforceability.  It is not necessary in order to ensure the
legality, validity, enforceability or admissibility in evidence of this
Agreement, any


 


14

















 


Note or
any other Operative Documents in Mexico that this Agreement, any Note, any
Operative Document or any other document be filed, registered, recorded or
enrolled with any court or other Governmental Authority or other Person in
Mexico except (a) for the registration of the Mexican Security Trust Agreement
in (i) the Public Registry of Commerce with jurisdiction in the corporate
domicile of each of the grantors under the Mexican Security Trust Agreement,
(ii) the Public Registry of Property with jurisdiction in each place where
real property subject to the Mexican Security Trust Agreement is located,
(iii) the Instituto Mexicano de la Propiedad Industrial and
(iv) the Registro Público de Minería, (b) for the registration of the
terms of the Mexican Security Trust Agreement in the stock registry book of
each issuer of certificates representing Capital Stock subject to the Mexican
Security Trust Agreement, which registration will be made prior to the Closing
Date, and (c) that in the event of any legal proceedings, all English
language documents are required to be translated into Spanish by a court
approved translator and such translations would have to be approved by the
court after the defendant had been given an opportunity to be heard with
respect to the accuracy of the translation, and proceedings would thereafter be
based upon the translated documents. 
The Spanish versions of the Bank Holders Notes delivered pursuant to
this Agreement are in the proper form for enforcement in legal proceedings in
Mexico.  Except for fees payable for the
registration of the Mexican Security Trust Agreement and the notarization
thereof and of each Mexican power-of-attorney required to be granted under the
Operative Documents, no Taxes are required to be paid and no notarization is
required for the legality, validity, enforceability or admissibility into
evidence of this Agreement, any Note or any other Operative Document.


 


Section 3.18                                No
Liens.  There is no Lien upon or
with respect to any of the Shared Collateral or SEN Collateral, except
Permitted Liens.  Borrower’s
Subsidiaries have good title to, and are entitled to receive all monies due or
to become due as the proceeds of any sale under, any Export Contracts to which
they are parties free and clear of any adverse claims or Liens, subject only to
the Operative Documents.


 


Section 3.19                                Commercial
Activity; Absence of Immunity.


 


(a)                                  Each
of Borrower and each Guarantor is subject to civil and commercial law with
respect to its obligations under this Agreement, each Note and each of the
other Operative Documents to which it is a party.  The making and performance by Borrower and each Guarantor of this
Agreement, each Note and each of the other Operative Documents constitute
private and commercial acts rather than public or governmental acts.  Neither Borrower nor any Guarantor, nor any
of their respective property, is entitled to any right of immunity in any
jurisdiction from suit, court jurisdiction, judgment, attachment (whether
before or after judgment), set-off or execution of a judgment or from any other
legal process or remedy relating to the obligations of Borrower and each
Guarantor under this Agreement, each Note and each of the other Operative
Documents to which it is a party.


 


(b)                                 It
is not necessary (i) in order for any Agent or any Lender to enforce this
Agreement, the Notes or any other Operative Documents or (ii) solely by
reason of the execution, delivery and performance of this Agreement, the Notes
or any other Operative Document, that such Agent or any Lender be licensed or
qualified with any Governmental Authority in Mexico or be entitled to carry on
business in Mexico.


 


15

















 


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


 


Section 3.21                                Enron
Obligations.  None of MM’s or GMM’s
Subsidiaries, or any Affiliate thereof, has made any voluntary payment or has
voluntarily transferred any assets or collateral to Westdeutsche Landesbank
Girozentrale or Siemens Financial Services GmbH (or any of their respective
successors or assigns) with respect to the Enron Obligations.


 


Section 3.22                                Full
Disclosure.  None of the
representations and warranties made by Borrower or any Guarantor in this
Agreement, in any Note or in any of the other Operative Documents as of the
date such representations and warranties are made or deemed made, and none of
the statements contained in any exhibit, written report, written statement or
certificate furnished by or on behalf of Borrower or any Guarantor in
connection with the Operative Documents, contains any untrue statement of a
material fact or omits any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading as of the time when made or delivered.  Borrower and each Guarantor have disclosed
to the Lenders in writing any and all facts or circumstances that could
reasonably be expected to have a Material Adverse Effect.


 


Section 3.23                                Customers;
Contracts.


 


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


 


(b)                                 As
of the Closing Date, neither Borrower nor any Guarantor has sold for less than
reasonably equivalent value, discounted or otherwise transferred any amounts
receivable, or any amount that may become receivable, under any Contracts.


 


16

















 


Section 3.24                                Investment
Company Act.  Neither Borrower nor
any Guarantor is an “investment company”, or a company “controlled” by an
“investment company”, within the meaning of the Investment Company Act.


 


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


 


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


 


Section 3.27                                Bank
Accounts.  Neither Borrower nor any
Guarantor maintains any deposit account or securities account (as such terms
are defined in the Uniform Commercial Code) in the United States, other than
those deposit accounts listed in Schedule 3.27.


 


Section 3.28                                Real
Property Value.  As of the Closing
Date, the value of the real property subject to the Mexican Security Trust
Agreement represents not less than seventy percent (70%) of the total value of
all real property owned by Borrower and the Principal Subsidiaries.


 


Section 3.29                                Principal
Subsidiaries.  Each Subsidiary of
Borrower that is a Principal Subsidiary is a party hereto.


 


ARTICLE IV

AFFIRMATIVE COVENANTS


 


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


 


17

















 


Section 4.01                                Certain
Payment Obligations.


 


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


 


(b)                                 Commencing
on June 25, 2004 and on a quarterly basis thereafter, and subject to any
prepayments thereof, Borrower shall make amortization payments to the Shared
Payment and Collateral Agent on such dates and in such amounts as are set forth
on the Restructured Debt Payment Schedule in accordance with the terms of Section
8.03.


 


(c)                                  Upon
the occurrence of any Prepayment Event, Borrower shall pay any amounts due as a
result thereof in accordance with Article VIII.


 


Section 4.02                                Fees
and Expenses.  Borrower shall pay
all outstanding and ongoing reasonable and documented fees and expenses of the
Agents, the SEN Trustee and the Lenders in accordance with Section 11.02.


 


Section 4.03                                Customer
Notice and Acknowledgements.


 


(a)                                  Borrower
shall ensure that Customer Notice and Acknowledgements have been sent to and
received by at least ninety-eight percent (98%) of its Customers and use its
best efforts to require Customers representing at least eighty-five percent
(85%) of Export Sales for the immediately preceding four consecutive full
fiscal quarters to sign Customer Notice and Acknowledgements.  Each Customer Notice and Acknowledgement
shall (i) direct the applicable Customer to make all future payments to
the Collection Accounts and (ii) inform the applicable Customer of the
proper account information for all future payments (including informing the
applicable Customer that the Collection Accounts are now being held by the SEN
Collateral Agent).  Borrower shall
provide copies of each Customer Notice and Acknowledgement to the Financial
Advisor.


 


(b)                                 Anything
in subsection (a) of this Section 4.03 or elsewhere herein or
in any other Operative Document to the contrary notwithstanding, Borrower shall
not be required to comply with such subsection (a) during the
period commencing on the Closing Date and ending on July 11, 2003.  Prior to 12:00 p.m. (New York City
time) on June  13, 2003 and on Friday of each week thereafter through
July 11, 2003 (or if any such Friday is not a Business Day, on the
Business Day immediately preceding such Friday) (each such day a “Percentage
Calculation Date”), Borrower shall deliver to the Financial Advisor
copies of all Customer Notice and Acknowledgements received by Borrower since
the immediately preceding Percentage Calculation Date (or since the Closing
Date with respect to the initial Percentage Calculation Date) and shall
calculate and notify the Financial Advisor of the percentage of total Export
Sales for the immediately preceding four consecutive full fiscal quarters that
is attributable to


 


18

















 


Customers
from which Customer Notice and Acknowledgements have been delivered to the
Financial Advisor (the “Acknowledgement Percentage”).  If the Financial Advisor determines that the
Acknowledgement Percentage as of any Percentage Calculation Date is 85% or
greater, this subsection (b) shall be of no further force or
effect, the obligations of Borrower under this Section 4.03 shall
be governed solely by Section 4.03(a), and Borrower shall be allowed
to withdraw all funds held in the Collection Accounts and the Investment
Account provided that no cash trapping is then in effect pursuant to Section 7.01(b)(i)
or Section 7.01(b)(ii).  If the
Financial Advisor determines that the Acknowledgement Percentage as of any
Percentage Calculation Date is less than 85%, then the Financial Advisor will
on such Percentage Calculation Date instruct the SEN Collateral Agent to trap
cash in the Collection Accounts and the Investment Account in accordance with Section
7.01(b)(iii) in an amount (the “Acknowledgement Cash Trapping Amount”)
equal to that set forth on Schedule 4.03(b) opposite the percentage
range within which such Acknowledgement Percentage falls.  Borrower shall cause the Acknowledgement
Percentage to be 85% on or before July 11, 2003.


 


Section 4.04                                Financial
Advisor’s Access.  Borrower shall,
and shall cause each of its Subsidiaries to, permit the Financial Advisor to
have reasonable access to its property, employees, books and records and all
other information with respect to Borrower and its Subsidiaries as the
Financial Advisor may reasonably request. 
The access that Borrower and its Subsidiaries shall provide the
Financial Advisor shall be sufficient to allow the Financial Advisor to provide
the Lenders with a monthly financial report and a quarterly analysis of
Borrower’s (and such Subsidiaries’) financial condition during the first year
following the Closing Date and if such reports are requested, in writing, by
the Required Lenders, quarterly financial reports thereafter.  Further, the Financial Advisor’s quarterly
analysis shall specifically determine (i) whether Borrower has complied
with each of the Financial Covenants and (ii) whether any Prepayment Event
shall have occurred.


 


Section 4.05                                Financial
Reporting.  Borrower shall deliver
to the Financial Advisor, the Bank Holders Administrative Agent and each of the
Lenders, the Shared Payment and Collateral Agent and the SEN Collateral Agent:


 


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


 


(i)                                     a
summary of sources and uses of cash for each such month in substantially the
form attached hereto as Exhibit 4.05(a)(i) (which shall set forth all
applicable information in Dollars), and


 


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


 


(b)                                 on
a quarterly basis for each fiscal quarter from the Closing Date to the Maturity
Date, as soon as available but not more than thirty (30) days after the
end of such fiscal quarter:


 


(i)                                     copies
of unaudited consolidated and consolidating balance sheets of Borrower and its
Subsidiaries as at the end of such fiscal quarter and the related


 


19

















 


unaudited consolidated and consolidating statements of
income and cash flows for such fiscal quarter, certified by the chief financial
officer of Borrower, which certification shall include the representation of
such chief financial officer that to the best of such chief financial officer’s
knowledge, after diligent inquiry, the information presented in such balance
sheets and other financial statements fairly and accurately represents the
financial condition of Borrower and its Subsidiaries on a consolidated or
consolidating basis, as the case may be,


 


(ii)                                  a
summary of sources and uses of cash with respect to Borrower and its Subsidiaries
for such fiscal quarter,


 


(iii)                               a certificate from a
Responsible Officer of Borrower listing any new mining exploitation and
exploration activity in which Borrower or any of its Subsidiaries has engaged
in the preceding fiscal quarter, which certificate shall include a statement
that, to the best of such Responsible Officer’s knowledge, after diligent
inquiry, such certificate is accurate and complete,


 


(iv)                              a
certificate from the chief financial officer of Borrower stating that, to the
best of such chief financial officer’s knowledge, after diligent inquiry, the
aggregate monthly average deposits held by Borrower and its Subsidiaries in
banking institutions not affiliated with any Lender did not, for any month
during the prior fiscal quarter, exceed $9 million,


 


(v)                                 a
certificate from the chief financial officer of Borrower that shall include:
(A) the specific calculations of each of the Financial Covenants for such
fiscal quarter, (B) the basis and calculation for each of the calculations
relating to any Prepayment Event for such fiscal quarter (including
calculations of the quarterly Excess Cash Flow for the second and third fiscal
quarters of Fiscal Year 2003, even though such calculations will not in any
event result in an Excess Cash Flow Prepayment Event), (C) a certification
by such chief financial officer that, to the best of his knowledge, after
diligent inquiry, each of the foregoing calculations is true and accurate,
(D) a certification that, to the best of the knowledge of such chief financial
officer, after diligent inquiry, no Default or Event of Default has occurred
and (E) a certification that, to the best of the knowledge of such chief
financial officer, after diligent inquiry, the Financial Covenants were
calculated in accordance with Mexican GAAP, consistently applied,


 


(vi)                              a
certificate from the chief financial officer of Borrower stating, to the best
of such chief financial officer’s knowledge, after diligent inquiry, the daily
average price of copper, zinc and silver for such fiscal quarter (determined in
accordance with Section 8.01(b)),


 


(vii)                           a certificate from the chief
financial officer of Borrower setting forth the total amount of Export
Receivables and the total amount of sales of mining products by Borrower and
its Subsidiaries during such fiscal quarter and calculating the percentage set
forth in Section 5.08 in reasonable detail (which shall set forth
all applicable information in both Dollars and Pesos), which certificate shall
state that the data set forth


 


20

















 


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


 


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


 


(ix)                                a
certificate of the chief financial officer of Borrower setting forth the total
amount of Capitalized Stripping and Capital Expenditures during such fiscal
quarter and the basis of such calculation in reasonable detail (which shall set
forth all applicable information in both Dollars and Pesos), which certificate
shall state that the data used in such calculation is accurate to the best of
such chief financial officer’s knowledge, after diligent inquiry into such
matters, and


 


(x)                                   a
certificate of the chief financial officer of Borrower setting forth (A) a
list of each asset (other than real property and concessions) with an
acquisition price or value greater than or equal to $100,000, and all real
property and all concessions, in each case that were acquired by any of
Borrower and its Subsidiaries during such fiscal quarter and the corresponding
purchase prices therefor, denoting which of such assets are or are required to
be subject to the Lien under the Mexican Security Trust Agreement, and
(B) if Borrower proposes to not subject certain of such assets to the Lien
under the Mexican Security Trust Agreement, the reasons therefor;


 


(c)                                  on
a quarterly basis for each fiscal quarter from the Closing Date to the Maturity
Date, as soon as available but not more than thirty (30) days after the end of
each fiscal quarter:


 


(i)                                     the
unaudited consolidated quarterly financial report of GM, and


 


(ii)                                  the
quarterly CEO Report of GM, substantially in the form attached hereto as Exhibit
4.05(c)(ii) (which shall set forth all applicable information in both Dollars
and Pesos);


 


(d)                                 on
an annual basis from the Closing Date to the Maturity Date, as soon as
available but not more than one hundred twenty (120) days after the end of each
fiscal year:


 


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


 


21

















 


such consolidated financial statements present fairly
the financial position of GM and its Subsidiaries or Borrower and its
Subsidiaries, as applicable, for the period indicated in conformity with
Mexican GAAP applied on a basis consistent with prior years and shall contain a
reconciliation under U.S. GAAP of net income and shareholders’ equity.  Such opinion shall not be qualified or
limited because of a restricted or limited examination by the Independent
Auditor of any material portion of GM’s, Borrower’s or any of their respective
Subsidiary’s records,


 


(ii)                                  annual
CEO Reports of GM under U.S. GAAP and Mexican GAAP pertaining to GM and its
Subsidiaries, or such other similar report prepared by GM, if any,


 


(iii)                               a copy of the financial
projections for Borrower (and its Subsidiaries on a consolidated basis), in
each case for the period commencing with the then current fiscal year and
ending with fiscal year 2008 and prepared in good faith based upon reasonable
assumptions, and


 


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


 


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


 


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


 


(g)                                 on
or before the thirtieth (30th) day following any Event of Default arising
from a breach of any Financial Covenant, a certificate of the chief financial
officer of Borrower setting forth the basis of the calculations of each
Financial Covenant in reasonable detail, which certificate shall state that the
data used in such calculation is accurate to the best of such chief financial
officer’s knowledge, after diligent inquiry into such matters.  In addition, on or before such
thirtieth (30th) day, Borrower shall convene one or more meetings in New
York City with the Lenders (or their designees) and the Financial Advisor to
discuss the relevant covenant defaults and the steps being taken to remedy such
defaults;


 


22

















 


(h)                                 concurrently
with any payment made by Borrower pursuant to any Operative Document, a report in
the form of Exhibit 4.05(h) specifying, on a Lender-by-Lender
basis, the amount paid for the account of each Lender and the amount of tax
withheld, if any, by Borrower with respect to such payment; and


 


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


 


Section 4.06                                Certain
Post-Closing Matters.


 


(a)                                  Intercompany
Payable Restructuring.  Prior to
August 30, 2003, GMM and MM shall complete the Intercompany Payable
Restructuring.  Conditions precedent to
the closing of the Intercompany Payable Restructuring shall include the
following:  (i) such restructuring
(A) shall result in potential future tax savings to Borrower,
(B) shall not in any way adversely affect the interests of the Lenders and
(C) shall not result in MM or GMM being in default under any Contractual
Obligation; (ii) execution and delivery to the Bank Holders of the
original New Bank Holders Notes; (iii) execution and delivery to the SEN
Trustee of the original New SEN Trustee Notes; (iv) delivery to the Agents
and the Lenders of (A) the Intercompany Payable Restructuring Opinions and
(B) certificates of a Responsible Officer of each of MM and GMM certifying
that all conditions precedent to and delivery requirements in connection with
the Intercompany Payable Restructuring have been satisfied; and (v) execution
and delivery to the Agents and the Lenders of copies of each of the other
Intercompany Payable Restructuring Documents.


 


(b)                                 Insurance
Policies.  Not later than
ninety (90) days after the Closing Date, Borrower shall deliver to the
Shared Payment and Collateral Agent a certificate of a Responsible Officer of
Borrower attaching certified copies of insurance certificates with respect to
all insurance policies maintained by Borrower and each Guarantor naming the
Shared Mexican Trustee as an additional insured and loss payee thereunder, with
any loss payable to the Shared Mexican Trustee without contribution, and the
Shared Payment and Collateral Agent shall notify each other Agent and each
Lender of the receipt thereof.  The
Shared Payment and Collateral Agent shall have no duty or responsibility to
take any other action in connection with such insurance certificates or
insurance policies, or any renewal or expiration thereof.


 


(c)                                  Translated
Documents.  Borrower shall cause to
be delivered to the Shared Payment and Collateral Agent, (i) not later
than ninety (90) days after the Closing Date, Spanish translations of all
Operative Documents in the English language and English translations of all
Operative Documents in the Spanish language, in each case that are listed in
Part II of Schedule 2.01(x), each of which shall be prepared by a
court approved translator and approved by Mexican legal counsel for the Bank
Holders and for the SEN Holders and (ii) not later than ninety (90)
days after request therefor, English translations of any other Operative
Document in the Spanish language and Spanish translations of any other
Operative Document in the English language as may reasonably be requested by
any Lender or any Agent, each of which shall be prepared by a court approved
translator and approved by Mexican legal counsel for the Bank Holders and for
the SEN Holders.  Each translation into
Spanish prepared pursuant to this


 


23

















 


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


 


Section 4.07                                Notices.  Borrower and each Principal Subsidiary shall
promptly notify each Agent and each Lender:


 


(a)                                  of
the occurrence of any Default or Event of Default within five (5) days of
a Responsible Officer of Borrower or such Principal Subsidiary becoming aware
of such occurrence;


 


(b)                                 of
the occurrence of any Prepayment Event (provided that in the case of an Asset
Disposition Prepayment Event, such notice shall be given not more than
ten (10) days after its occurrence);


 


(c)                                  of
the issuance of equity securities by Borrower or any of its Subsidiaries
pursuant to a private or public offering in the Mexican, United States or other
capital markets within three (3) Business Days of such issuance and the
estimated amount of net issuance proceeds to be received in connection
therewith; and


 


(d)                                 of
any matter (including (i) breach or non-performance of, or any default
under, a Contractual Obligation of Borrower, any Principal Subsidiary or any of
their respective Subsidiaries; or (ii) any dispute, litigation,
investigation, proceeding or suspension between Borrower, any Principal
Subsidiary or any of their respective Subsidiaries and any Governmental
Authority or any other Person, or any developments in respect thereof) that has
resulted or could reasonably be expected to result in a Material Adverse
Effect.


 


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


 


Section 4.08                                Preservation
of Existence.  Except in connection
with transactions permitted by Section 5.03 or Section 5.05, each
of Borrower and each Principal Subsidiary will:


 


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


 


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


 


24

















 


Principal
Subsidiary and their respective Subsidiaries taken as whole.  Each of Borrower and each Principal Subsidiary
will also use reasonable efforts, in the ordinary course of business, to
preserve its business organization and goodwill, and to preserve or renew all
of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.


 


Section 4.09                                Maintenance
of Property.  Each of Borrower and
each Principal Subsidiary shall maintain (i) all property or assets
(whether real or personal) that is used or useful in its business in good
working order and condition, ordinary wear and tear excepted, and make all
necessary repairs thereto and renewals and replacements thereof, (ii) all
mining, processing, smelting and refining operations, and its extraction and
delivery of metals  for export and other
business lines and operations, and (iii) in full force and effect all of
its concession rights material to its business activities and operations and
shall comply with all Applicable Laws and Contractual Obligations to which it is
subject as a holder or beneficiary or user of such rights or otherwise
applicable to the foregoing businesses, except in each case where the failure
to do so could not reasonably be expected to have a Material Adverse Effect,
and except as permitted by Section 5.03; provided, however,
that neither Borrower nor any Principal Subsidiary shall be prevented from
discontinuing those operations or suspending the maintenance of those
properties or assets that in the reasonable judgment of Borrower or any
Principal Subsidiary are no longer necessary or useful in the conduct of its
respective businesses, if such discontinuance or suspension could not
reasonably be expected to result in a Material Adverse Effect or a Default or
Event of Default.  Borrower, each
Principal Subsidiary and each of their respective Subsidiaries shall each use
the standard of care typical in the industry in the operation and maintenance
of the facilities that it uses.


 


Section 4.10                                Insurance.


 


(a)                                  Borrower
and each Guarantor shall maintain, and Borrower shall cause each of its
Subsidiaries to maintain, with financially sound and reputable independent
insurers that are not Affiliates of either Borrower or any Guarantor, insurance
with respect to their respective properties and businesses against loss or
damage of the kinds customarily insured against by Persons engaged in the same
or similar businesses in the same jurisdiction, of such types and in such
amounts as are customarily carried under similar circumstances by such other
Persons.


 


(b)                                 Without
limiting the foregoing, but subject to commercial availability, Borrower and
each Guarantor shall continue to obtain credit insurance for their respective
customers consistent with their practices on the date hereof.


 


(c)                                  Subject
to Section 4.06(b), all insurance policies (other than credit insurance
policies) of Borrower and each Guarantor shall be endorsed in form and
substance acceptable to legal counsel to the Bank Holders and to the SEN
Holders to name the Shared Mexican Trustee as an additional insured or loss
payee thereunder, with loss payable to the Shared Mexican Trustee without
contribution.  All such insurance
policies and endorsements shall be fully paid for and contain customary
provisions and expiration dates and be in a form customarily issued by
insurance companies licensed to do business in Mexico.  Each such policy shall provide that such
policy may not be canceled or changed except upon thirty (30) days’ prior
written notice of intention of non-renewal, cancellation or material change to
the Shared Mexican Trustee and the


 


25

















 


Shared
Payment and Collateral Agent and that no act or thing done by Borrower or any
Guarantor shall invalidate any policy as against the Shared Mexican Trustee or
the Shared Payment and Collateral Agent. 
If Borrower or any Guarantor fails to maintain insurance in compliance
with this Section 4.10, the Shared Mexican Trustee or the Shared Payment
and Collateral Agent, at the written direction of the Required Lenders, may
obtain such insurance and pay the premium therefor and Borrower and each
Guarantor shall, on demand, reimburse the Shared Mexican Trustee or the Shared
Payment and Collateral Agent for all premiums and expenses incurred in
connection therewith, together with interest thereon, computed at the Default
Interest Rate.  Borrower and each
Guarantor shall assign the policies or proofs of insurance to the Shared
Mexican Trustee, in such manner and form as the Shared Mexican Trustee and its
successors and assigns may reasonably require so that they shall at all times
have and hold the same as security for the obligations under the Operative
Documents.  Borrower and each Guarantor
shall deliver copies of all original insurance policies certified to the Shared
Mexican Trustee by the insurance company or authorized agent as being true
copies, together with the endorsements required hereunder.


 


(d)                                 Upon
the occurrence of any Casualty while any Restructured Debt remains outstanding,
Borrower and each Guarantor shall cause all insurance proceeds received with
respect to such Casualty (such proceeds, “Insurance Proceeds”) to be deposited into a
bank account to be held by the Shared Mexican Trustee and subject to the
Mexican Security Trust Agreement (the “Insurance Proceeds Account”).  So long as no Event of Default under Section
9.01(a), Section 9.01(i) or Section 9.01(j) has occurred
and is continuing, the Shared Payment and Collateral Agent shall direct the
Shared Mexican Trustee to release any Insurance Proceeds held in the Insurance
Proceeds Account to Borrower upon delivery of a certificate of a Responsible
Officer of Borrower that affirmatively states that no such Event of Default has
occurred and is continuing and that such Insurance Proceeds shall be used to
repair or replace the assets damaged or destroyed in the applicable Casualty or
to purchase other income-producing fixed assets.  If the Shared Payment and Collateral Agent has received notice
that an Event of Default under Section 9.01(a), Section 9.01(i)
or Section 9.01(j) has occurred and is continuing, then the Shared
Payment and Collateral Agent shall direct the Shared Mexican Trustee to release
to Borrower any Insurance Proceeds held in the Insurance Proceeds Account only
after its receipt of a certificate from Borrower in accordance with the
previous sentence and the prior written direction of the Super-Majority
Lenders.  Within one hundred
eighty (180) days of the release of any Insurance Proceeds to Borrower, Borrower
shall deliver to the Shared Payment and Collateral Agent evidence reasonably
satisfactory to the Financial Advisor that Borrower or a Guarantor has either
replaced or repaired the assets damaged or destroyed in any applicable Casualty
or purchased other income-producing fixed assets as set forth in the
certificate related thereto.  If
Borrower fails to deliver such evidence to the Shared Payment and Collateral
Agent by the end of such 180-day period, then Borrower shall return all such
Insurance Proceeds to the Insurance Proceeds Account no later than
ten (10) Business Days after the end of such period and deliver notice to
the Shared Payment and Collateral Agent concurrently therewith.  The return of such Insurance Proceeds to the
Insurance Proceeds Account shall be deemed to be an Asset Disposition
Prepayment Event, and the Shared Payment and Collateral Agent shall direct the
Shared Mexican Trustee to release such funds to the Shared Payment and
Collateral Agent and shall distribute such funds in accordance with Section
8.02(g).


 


26

















 


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


 


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


 


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


 


Section 4.14                                Environmental
Laws.  Borrower and each Guarantor
shall conduct its operations and keep and maintain, and Borrower shall cause
each of its Subsidiaries to conduct its operations and keep and maintain, in
all material respects, its property in compliance with all Environmental Laws,
and store, use, release or dispose of any hazardous substance at any property
owned or leased by Borrower, any Guarantor, or any of Borrower’s other
Subsidiaries in compliance, in all material respects, with all Environmental
Laws.


 


Section 4.15                                Priority.  Borrower and each Guarantor will ensure that
its payment obligations under this Agreement, the Notes and other Operative
Documents rank and will at all times rank at least pari passu with all other
Indebtedness of Borrower or such Guarantor.


 


Section 4.16                                Further
Assurances.


 


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


 


27

















 


Shared
Payment and Collateral Agent, the SEN Collateral Agent and the SEN Trustee, as
applicable, as the secured party), and will take or cause to be taken all
further actions that are necessary in order to preserve, perfect and protect
the valid and perfected first and subordinated Liens on and prior security
interests in the Shared Collateral and the SEN Collateral under, or to enable
any Agent to exercise and enforce its rights and remedies under, any Operative
Document.  If Borrower or any Guarantor
shall at any time establish any additional place of business within the United
States or elsewhere or change its corporate domicile, it will notify the Shared
Payment and Collateral Agent and the SEN Collateral Agent, as applicable, in
writing prior to such establishment or change and will make any filings that
may be necessary or advisable in order to preserve, perfect and protect the
valid and perfected first and subordinated Liens on and prior security
interests in the Shared Collateral and the SEN Collateral under the Operative
Documents.  Borrower and each Guarantor
hereby authorizes the Shared Payment and Collateral Agent and the SEN
Collateral Agent, as applicable, to take all such further action and execute
all such further documents and instruments as may be necessary or desirable in
order to create, preserve, perfect and protect the valid and perfected first
and subordinated Liens on and prior security interests in the Shared Collateral
and the SEN Collateral under the Operative Documents, without the signature of
Borrower or any Guarantor to the extent permitted by Applicable Law, and the
Shared Payment and Collateral Agent or the SEN Collateral Agent, as applicable,
shall deliver a copy of each such document or instrument to Borrower.


 


(b)                                 If
Borrower or any Guarantor shall at any time acquire any new assets or real
property in Mexico that are or are required to be subject to the Lien created
under the Mexican Security Trust Agreement, then Borrower and each Guarantor
agrees to, at its own cost and expense, notify the Shared Payment and
Collateral Agent as required by Section 4.05(b)(x) and take such
action as is required under the Mexican Security Trust Agreement in order to
preserve, perfect and protect the valid and perfected first Lien on and prior
security interest in each such asset or real property, except with respect to
priority of security interests in assets or real property upon which any
Permitted Lien of a type described in Section 5.01(c) or Section
5.01(e) has been placed at or prior to the time of the acquisition
thereof.  Each of Borrower and each
Guarantor hereby authorizes the Shared Mexican Trustee to take all such further
action and execute all such further documents and instruments as may be
necessary or desirable in order to create, preserve, perfect and protect the
valid and perfected first Lien on and prior security interest or title in the
new assets and real property constituting Shared Collateral, without the
signature of Borrower or any Guarantor to the extent permitted by Applicable
Law, and the Shared Mexican Trustee shall deliver a copy of each such document
or instrument to GMM.


 


Section 4.17                                Instruments.  If any amount payable under or in connection
with any of the Shared Collateral or SEN Collateral shall be or become
evidenced by any promissory note or other instrument, Borrower or any Guarantor
shall immediately assign such note or instrument to the Shared Payment and
Collateral Agent or SEN Collateral Agent, as applicable (or cause the same to
be done), and any such note or instrument shall be duly endorsed to the Shared
Payment and Collateral Agent or SEN Collateral Agent, as applicable.  In no event shall the Shared Payment and
Collateral Agent or the SEN Collateral Agent be under any duty to examine or
confirm the effectiveness of any such note or instrument or the endorsement
thereon.


 


28

















 


Section 4.18                                Compliance
with Other Agreements.  Each of
Borrower and each Guarantor will duly and punctually perform and observe, in
all material respects, all of its agreements and covenants in each of the
Operative Documents to which it is a party.


 


Section 4.19                                Designations
with Respect to Principal Subsidiaries.


 


On the date of each delivery required to be made
pursuant to Section 4.05(b)(i), Borrower shall notify the Agents of any
existing Subsidiary or newly acquired or formed Subsidiary, not previously
identified as a Principal Subsidiary, meeting the definition of a Principal
Subsidiary.  Borrower and each other
Principal Subsidiary shall cause any such Subsidiary so identified as a
Principal Subsidiary to, within five (5) Business Days of such
notification, execute and deliver to the Agents (i) a joinder to this
Agreement as set forth in Section 4.19(b), (ii) a joinder to the
Bank Holders Restructured Loan Agreement as set forth therein, (iii) an
aval to each Bank Holders Note, (iv) a joinder to the Affiliate Guaranty
as set forth therein, (v) a joinder to the U.S. Security Agreement as set
forth therein, (vi) a joinder to the SEN Security Agreement as set forth
therein, (vii) a joinder to the Mexican Security Trust Agreement (including
all documents necessary to transfer the ownership interest of its assets and
real property to the Shared Mexican Trustee in accordance with the Mexican
Security Trust Agreement) as set forth therein, (viii) such other
documents, certificates and financing statements as the SEN Collateral Agent
(at the written direction of the Required SEN Holders) may request in order to
create and perfect its Lien in or ownership right to any SEN Collateral owned
or held by such Principal Subsidiary and (ix) such other documents,
certificates and financing statements as the Shared Payment and Collateral
Agent (at the written direction of the Required Lenders) or the Shared Mexican
Trustee may request in order to create and perfect its Lien in or ownership
right to any Shared Collateral owned or held by such Principal Subsidiary.  In addition, Borrower and each such
Subsidiary shall cause to be delivered favorable opinions of legal counsel to
Borrower and such Subsidiary satisfactory to the Required Lenders, as to
matters as the Required Lenders may reasonably request.


 


(a)                                  Any
Subsidiary of Borrower identified as a Principal Subsidiary pursuant to Section
4.19(a) shall become a party to this Agreement by executing and delivering
to the Shared Payment and Collateral Agent a signature page to each of this
Agreement and the other Operative Documents required by Section 4.19(a)
identifying such Subsidiary as a Principal Subsidiary, which signature pages
each shall be dated its date of execution, and Borrower and such Subsidiary
shall execute and deliver, or cause to be executed and delivered, all such
other documentation that would have been required to be executed and delivered
pursuant to Section 2.01 and Section 14.22 if such Subsidiary had
been a Principal Subsidiary as of the Closing Date, each subject to
satisfaction of legal counsel to the Bank Holders and to the SEN Holders.  Each Subsidiary that executes and delivers
the items set forth in this Section 4.19 by such execution and delivery
(i) shall be deemed to be a Principal Subsidiary for all purposes of this
Agreement and the other Operative Documents as of the date of such Subsidiary’s
signature pages to this Agreement and such other Operative Documents,
(ii) shall be bound by all of the terms and provisions of this Agreement
and the other Operative Documents, and (iii) represents and warrants that
all of the representations and warranties contained in Article III
and elsewhere in this Agreement and the other Operative Documents, as applied
to such Subsidiary as a Principal Subsidiary, are, unless otherwise notified to
the Shared Payment and Collateral Agent, the SEN


 


29

















 


Collateral
Agent and the Bank Holders Administrative Agent, true and correct on and as of
the date of the Subsidiary’s signature pages to this Agreement and the other
Operative Documents.


 


Section 4.20                                Maintenance
of Accounts.  Borrower and the
Guarantors shall hold all Primary Accounts with one or more of the Lenders, or
one or more participants in the loans held thereby whose participations have
been consented to by Borrower (each such participant, a “Specified Participant”), and
the Primary Accounts shall be subject to set-off and set-off sharing for the
benefit of all of the holders of the Restructured Debt in the same manner as
proceeds of the General Security. 
Borrower and the Guarantors shall hold all Collection Accounts, the SEN
Interest Reserve Account and the Investment Account with the SEN Collateral
Agent. Notwithstanding the foregoing, Borrower and the Guarantors shall have
the right to maintain bank accounts, other than Primary Accounts, outside the
United States at other banking institutions to the extent that the aggregate
average monthly balance of such deposits does not exceed nine (9) million
Dollars for any calendar month.  Except
for the Primary Accounts, all proceeds of Shared Collateral will be held by the
Shared Payment and Collateral Agent in an account or trust located in the
United States and subject to and governed by the laws of the United
States.  Except for the Collection
Accounts and subject to the terms and provisions of the SEN Security Agreement,
all proceeds of SEN Collateral will be held by the SEN Collateral Agent in an
account or trust located in the United States and subject to and governed by
the laws of the United States.


 


Section 4.21                                New
Bank Accounts.  If Borrower or any
Guarantor opens a deposit account or a securities account (as such terms are
defined in the Uniform Commercial Code) in the United States other than those
accounts listed on Schedule 3.27, Borrower shall cause any such account
to be pledged to the Shared Payment and Collateral Agent pursuant to the U.S.
Security Agreement, or if such account is a new Collection Account or otherwise
subject to the SEN Security Agreement, to the SEN Collateral Agent pursuant to
the SEN Security Agreement.


 


Section 4.22                                Remaining
Collateral.  Not later than the time
periods set forth in Clause Seventh of the Mexican Security Trust
Agreement, Borrower shall cause title to all real property owned by Borrower
and each Principal Subsidiary as of the Closing Date (and set forth in Schedule 2
to the Mexican Security Trust Agreement) to be transferred to the Shared
Mexican Trustee under the Mexican Security Trust Agreement.


 


ARTICLE V

NEGATIVE COVENANTS


 


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


 


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


 


30

















 


but not
limited to, the SEN Collateral and the Shared Collateral, whether now owned or
hereafter acquired, other than the following (“Permitted Liens”):


 


(a)                                  Liens
in favor of the Collateral Agents under the Operative Documents securing the
Restructured Debt;


 


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


 


(c)                                  any
Lien securing any Indebtedness described in clause (b) of the
definition of Permitted Indebtedness covering solely the assets acquired in
connection with the Indebtedness described in such clause (b);


 


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


 


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


 


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


 


(g)                                 any
Lien incurred in the ordinary course of business in connection with social
security, workers’ compensation, unemployment insurance and similar types of
legal requirements;


 


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


 


(i)                                     deposits
to secure the performance of bids, trade contracts, leases (other than Capital
Leases), statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a similar nature incurred in the ordinary course of
business on an arms length basis;


 


31

















 


(j)                                     any
judgment Lien, unless (i) the judgment it secures shall not have been
discharged within sixty (60) days after the entry thereof or
(ii) execution of the judgment it secures shall not have been discharged
within sixty (60) days after the expiration of any stay thereof pending
appeal; or


 


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


 


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


 


Section 5.02                                Prohibition
Against Indebtedness.  Neither
Borrower nor any Guarantor shall, nor shall it permit any of its respective
Subsidiaries to, incur or permit to exist any Indebtedness other than Permitted
Indebtedness; provided, however, that with respect to
Indebtedness incurred by Borrower, any Principal Subsidiary or any of their
respective Subsidiaries pursuant to clauses (b) and (d) of
the definition of Permitted Indebtedness, such Indebtedness shall not exceed
$30,000,000 in the aggregate at any time.


 


Section 5.03                                Asset
Disposition.  Neither Borrower nor
any Guarantor nor any of their respective Subsidiaries shall, either in a
single transaction or a series of related transactions, make or commit to make
any Asset Disposition; provided, however, that an Asset
Disposition shall be permitted if no Default or Event of Default has occurred
and is continuing and if such Asset Disposition (i) is in the ordinary
course of business of such Person consistent with normal industry practice or
(ii) is of property that is no longer used or useful in such Person’s
business and the disposition of such property will not result in any material
reduction in metals production capacity taken as a whole; and provided, further,
that whether or not a Default or Event of Default has occurred and is then
continuing, permitted Asset Dispositions shall include the sale of Scheduled
Assets; and provided, further, that in no event shall the
Borrower or any Subsidiary of Borrower make or commit to make any sale, pledge,
assignment or other disposition of any Receivable (other than (A) the
Export Receivables pledged as SEN Collateral under the Operative Documents and
(B) Receivables assigned to insurance companies under credit insurance
policies in the event of non-payment of such Receivables in order to obtain
payment of such Receivables pursuant to such policies).


 


Section 5.04                                Assignments
of Collateral.  Except to the extent
permitted by Section 5.03, neither Borrower nor any of its
Subsidiaries will assign, sell, transfer or otherwise dispose of any of its
rights, title or interest in or to any SEN Collateral or Shared Collateral.


 


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


 


32

















 


Subsidiaries
of Borrower; provided that if any such Subsidiary is a Guarantor, a Guarantor
shall be the survivor thereof, or (c) any merger, consolidation, or
combination by one or more Subsidiaries of Borrower with or into Borrower, so
long as Borrower is the survivor thereof. 
In addition, Borrower and each subject Subsidiary shall cause to be
delivered favorable opinions of legal counsel to Borrower and such Subsidiary
satisfactory to the Required Lenders, as to matters as the Required Lenders may
reasonably request with respect to any transaction pursuant to subsection (b)
or (c) of this Section 5.05.


 


Section 5.06                                Preservation
of Collateral.  Without the prior
written consent of the Super-Majority Lenders, neither Borrower nor any
Principal Subsidiary will take or omit to take any action with respect to
mining product related sales, mining product related receivables, mining
product related contracts, the SEN Collateral or the Shared Collateral that is
outside the scope of normal commercial practices in the markets in which
Borrower and the Principal Subsidiaries operate, if such action or omission
could reasonably be expected to materially impair or materially adversely
affect the value of the SEN Collateral or the Shared Collateral.  Without limiting the generality of the
foregoing, neither Borrower nor any Principal Subsidiary will enter into,
either in a single transaction or through a series of related transactions, any
arrangements or engage in any course of conduct with any Person resident in or organized
under the laws of Mexico (a “Conduit”), pursuant to which Borrower or
such Principal Subsidiary would, directly or indirectly, sell metals products
to such Conduit under circumstances where the acquisition of metals products by
all Conduits would result in (and Borrower or a Principal Subsidiary has reason
to believe that such sales would be likely to result in) sales of metals
products without material further processing to Persons located outside of
Mexico (“Avoided
Sales”) and the aggregate amount of Avoided Sales in any fiscal
quarter would exceed 5% of total sales of Borrower and its Principal
Subsidiaries for such fiscal quarter.


 


Section 5.07                                New
Mining Concessions.  All Mexican
mining concessions, exploratory rights, exploration rights, exploitation rights
and other such rights held, received or otherwise controlled by or benefiting
GM or any of its Subsidiaries shall be so held, received, or controlled by
Borrower or one of its Subsidiaries and will not be sold, assigned or otherwise
transferred or held by any other Person, except for transfers of concessions
made to the Shared Mexican Trustee under the terms of the Mexican Security
Trust Agreement; provided that any such exploration rights may be
transferred if pursuant to a transaction on an arm’s-length basis.


 


Section 5.08                                Minimum
Export Receivables.


 


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


 


(b)                                 On
the last day of the fifth through eighth full calendar months following the
Closing Date, the aggregate amount of total collections on export sales of
mining products by Borrower and its Subsidiaries for the previous twelve
consecutive months as of each such date,


 


33

















 


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


 


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


 


Section 5.09                                Use
of Cash; Transactions with Affiliates. 
Neither GMM, MM nor any of their respective Subsidiaries shall use its
cash in any manner other than (a) in the ordinary course of business
(excluding the acquisition of or investment in any material new lines of
business or new lines of operations other than new mining exploration and
exploitation activity as set forth in the Updated Projections, subject to the
limitations set forth in Section 5.11), and (b) to make payments on
Permitted Indebtedness (including the Restructured Debt).  Borrower shall not make, and shall not permit
any of its Subsidiaries to make, on Borrower’s behalf, any payment (x) to
any Person that is outside the ordinary course of business or (y) to any
Affiliate (other than Borrower or any Principal Subsidiary) for services or
outstanding payables, subject to Section 5.10 (other than any such
payments that are made in the ordinary course of business, on an arms-length
basis (including standard and customary trade terms), and for reasonable
exchange of value for the purposes described on Schedule 5.09); provided
that the fact that any such payment may be overdue shall not deem such payment
to be outside the ordinary course of business.


 


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


 


Section 5.11                                Maximum
Allowable Capital Expenditures and Capitalized Stripping.  For any fiscal quarter, Borrower shall not
permit either the total amount of Capital Expenditures or the total amount of
Capitalized Stripping for such quarter to exceed 125% of the amounts scheduled
in Schedule 5.11 for that period. 
In addition, for any fiscal quarter beginning with the last fiscal
quarter of 2003, Borrower shall not permit either the cumulative amount of Capital
Expenditures or the cumulative amount of Capitalized Stripping incurred for the
period from the Closing Date through the end of such period to exceed 110% of
the cumulative amount scheduled in Schedule 5.11 through the same
period.


 


Section 5.12                                Financial
Covenant Default Restrictions. 
Notwithstanding anything to the contrary in Section 5.01, Section
5.02 or Section 5.10, at all times during the ninety (90) day
period following a determination that a Default under Section 9.01(f)
has occurred, Borrower


 


34

















 


shall
not, and shall not permit any of its Subsidiaries to, (a) incur any new
Indebtedness or Liens, or (b) reduce any portion of the Intercompany
Account Balance as of the date of such Default.


 


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


 


Section 5.14                                Accounting
Changes.  Neither Borrower nor any
Guarantor shall, nor shall Borrower or any Guarantor suffer or permit any of
its Subsidiaries to, make any significant change in accounting treatment or
reporting practices, except as permitted by Mexican GAAP and set forth in the
notes to its financial statements, or change the fiscal year of Borrower, such
Guarantor or any such Subsidiary unless such change shall be deemed by Borrower
or such Guarantor to be materially advantageous to such entity and not likely
to result in a Material Adverse Effect.


 


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


 


Section 5.16                                Restricted
Payments.  Neither Borrower nor any
Guarantor nor any of their respective Subsidiaries shall declare or make a
Restricted Payment, or make any deposit for any Restricted Payment, other than
Restricted Payments made by Principal Subsidiaries to Borrower or any other
Principal Subsidiary.


 


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


 


35

















 


ARTICLE VI

FINANCIAL COVENANTS


 


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


 


Section 6.01                                Net
Working Capital.  Borrower shall not
permit the Net Working Capital at the end of each fiscal quarter, beginning
with the first full fiscal quarter occurring after the Closing Date, to be less
than (a) $170 million, with respect to any fiscal quarter occurring in
fiscal year 2003, (b) $180 million, with respect to any fiscal quarter
occurring in fiscal year 2004 and (c) $190 million, with respect to any
fiscal quarter occurring in fiscal year 2005 and in each fiscal year
thereafter.  Borrower shall calculate
Net Working Capital, for purposes of determining compliance with this Financial
Covenant, at the end of each fiscal quarter, beginning with the first full
fiscal quarter occurring after the Closing Date.


 


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


 


Section 6.02                                Interest
Coverage Ratio.  Borrower shall not
permit the Interest Coverage Ratio (as defined below), at the end of each
fiscal quarter beginning with the fiscal quarter ending March 31, 2004,
to be lower than the ratio shown in the table below opposite the year in which
such fiscal quarter occurred:


 




	
  For calculations during:

  	
   

  	
  Interest Coverage
  Ratio:

  
	
  2004

  	
   

  	
  0.6

  
	
  2005

  	
   

  	
  1.5

  
	
  2006

  	
   

  	
  1.8

  






 


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


 


The “Interest Coverage Ratio”, as of the end of
any fiscal quarter, will be calculated by dividing (a) the EBITDA for the
preceding four fiscal quarters, less the sum of the Scheduled Capital
Expenditures and Scheduled Capitalized Stripping for the four fiscal quarters
next succeeding such date, by (b) the total scheduled Cash Interest
payments (assuming that the LIBOR Rate as of such date will remain unchanged
during the four fiscal quarters next succeeding such date) for the four fiscal
quarters next succeeding such date.


 


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


 


Section 6.03                                Debt
Coverage Ratio.  Borrower shall not
permit the Debt Coverage Ratio (as defined below), at the end of each fiscal
quarter beginning with the fiscal quarter ending


 


36

















 


March
31, 2004, to be lower than the ratio shown in the table below opposite the year
in which such fiscal quarter occurred:


 




	
  For calculations during:

  	
   

  	
  Debt
  Coverage Ratio:

  
	
  2004

  	
   

  	
  0.4

  
	
  2005

  	
   

  	
  0.7

  
	
  2006

  	
   

  	
  0.8

  






 


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


 


The “Debt Coverage Ratio”, as of the end of any
fiscal quarter, will be calculated by dividing (a) EBITDA for the
preceding four fiscal quarters, less the sum of the Scheduled Capital
Expenditures and Scheduled Capitalized Stripping for the four fiscal quarters
next succeeding such date, by (b) the sum of the scheduled principal
amortization under the Operative Documents (excluding any scheduled
amortization of the Tranche B Principal Amount and any GM Notes then
outstanding) and the total scheduled Cash Interest payments (assuming that the
LIBOR Rate as of such date will remain unchanged during the four fiscal
quarters next succeeding such date) for the four fiscal quarters next
succeeding such date.


 


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


 


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


 




	
  For calculations during:

  	
   

  	
  Total Debt
  to Net

  Capitalization Ratio:

  
	
  2004

  	
   

  	
  2.3

  
	
  2005

  	
   

  	
  2.6

  
	
  2006

  	
   

  	
  2.6

  






 


Borrower shall calculate the Total Debt to Net
Capitalization Ratio, for purposes of determining compliance with this
Financial Covenant, at the end of each fiscal quarter ending on or after
March 31, 2004.


 


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


 


ARTICLE VII

COLLATERAL ARRANGEMENTS


 


Section 7.01                                Collateral
Arrangements.  Borrower, each
Guarantor, the SEN Trustee, each SEN Holder and each Bank Holder acknowledges
and agrees as follows:


 


37

















 


(a)                                  SEN
Collateral.  So long as any
Restructured Debt held by any SEN Holder remains outstanding:


 


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


 


(ii)                                  all
cash that is trapped in each Collection Account and the Investment Account
pursuant to the Export Receivables Collection Arrangement or the SEN Cash
Trapping Arrangement or is held in the SEN Interest Reserve Account (all such
cash being part of the SEN Collateral) is collateral solely for the benefit of
the SEN Trustee and the SEN Holders; and


 


(iii)                               the Bank Holders have no
independent right, title or interest at law or in equity with respect to the
SEN Collateral.


 


(b)                                 SEN
Cash Trapping Arrangement. 
Borrower, each Guarantor, the SEN Trustee, each SEN Holder and each Bank
Holder hereby acknowledges and agrees that clauses (i) through (iii)
below (the “SEN Cash Trapping Arrangement”) shall be applicable as
follows:


 


(i)                                     upon
the SEN Collateral Agent’s receipt from any other Agent, the Required SEN
Holders, Borrower or any Guarantor of written notice of the occurrence of an
Event of Default as described in Section 9.01(a), Section 9.01(i)
or Section 9.01(j), the SEN Collateral Agent shall, without notice to
Borrower or any other Person and without any further action being taken on the
part of the SEN Trustee or the SEN Holders, cease to allow withdrawal by
Borrower or any of its Affiliates of cash deposited in any Collection Account
or the Investment Account as is described in Article 3 of the SEN
Security Agreement, which action by the SEN Collateral Agent shall continue
until the SEN Collateral Agent receives written direction from the Required SEN
Holders instructing the SEN Collateral Agent to allow withdrawal by Borrower or
any of its Affiliates of cash deposited in any Collection Account or the
Investment Account pursuant to the terms of the SEN Security Agreement;


 


(ii)                                  upon
the occurrence of an Event of Default other than an Event of Default listed in Section
7.01(b)(i) above, the SEN Collateral Agent shall, upon receipt of written
direction signed by the Required SEN Holders, cease to allow withdrawal by
Borrower or any of its Affiliates of cash deposited in any Collection Account
or the Investment Account as is described in Article 3 of the SEN
Security Agreement, which action by the SEN Collateral Agent shall continue
until the SEN Collateral Agent receives written direction from the Required SEN
Holders instructing the SEN Collateral Agent to allow withdrawal by Borrower or
any of its Affiliates of cash deposited in any Collection Account or the
Investment Account pursuant to the terms of the SEN Security Agreement; and


 


(iii)                               upon receipt of written
direction from the Financial Advisor that the Acknowledgement Percentage as of
any Percentage Calculation Date is less than 85% and that withdrawals of cash
deposited in any Collection Account and the Investment


 


38

















 


Account should be limited in accordance with Section 4.03(b),
the SEN Collateral Agent shall cease to allow withdrawal by Borrower or any of
its Affiliates of cash deposited in any Collection Account or the Investment
Account as is described in Article 3 of the SEN Security Agreement up to
an amount equal to the Acknowledgement Cash Trapping Amount set forth in such
written direction, which action by the SEN Collateral Agent shall continue
until the SEN Collateral Agent receives written direction from the Financial
Advisor either (A) instructing the SEN Collateral Agent to limit such
withdrawals of cash in a different Acknowledgement Cash Trapping Amount in
accordance with Section 4.03(b), whereby the SEN Collateral Agent
would either (1) if such different Acknowledgement Cash Trapping Amount is
greater than the current Acknowledgement Cash Trapping Amount, limit such cash
withdrawals in an amount equal to such greater Acknowledgement Cash Trapping
Amount or (2) if such different Acknowledgement Cash Trapping Amount is
less than the current Acknowledgement Cash Trapping Amount, release cash from
the Investment Account and limit such cash withdrawals in an amount equal to
such lesser Acknowledgement Cash Trapping Amount, or (B) instructing the
SEN Collateral Agent that the Acknowledgement Percentage as of a Percentage
Calculation Date is 85% or greater and to allow withdrawal by Borrower or any
of its Affiliates of cash deposited in any Collection Account or the Investment
Account pursuant to the terms of the SEN Security Agreement; provided that if
either Section 7.01(b)(i) or Section 7.01(b)(ii) is applicable at
any time, then any amounts then subject to this Section 7.01(b)(iii)
shall be subject to such other applicable clause.


 


(c)                                  Shared
Collateral.  Each of the parties
hereto agrees that the Affiliate Guaranty, the General Security and any future
assets that become part of the General Security shall constitute the “Shared
Collateral”; provided, however, that so long as any
Restructured Debt held by any SEN Holder remains outstanding, none of the
collateral that is SEN Collateral shall be considered Shared Collateral.


 


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


 


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


 


(ii)                                  the
liquidation of any portion of the SEN Collateral,


 


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


 


39

















 


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


 


(f)                                    SEN
Make-Whole Amount.  Upon the
occurrence of: (i) an Event of Default under Section 9.01(i) or Section
9.01(j), or (ii) the acceleration of the maturity of the SEN Holders
Restructured Principal, or (iii) the disbursement by the SEN Collateral
Agent of funds trapped in the Collection Accounts or the Investment Account
pursuant to the SEN Cash Trapping Arrangement to make a prepayment of the SEN
Holders Restructured Principal in accordance with the terms of Section 8.02(e)
(in excess of any scheduled payment of SEN Holders Restructured Principal, the
payment of Cash Interest thereon or the payment of fees or expenses), Borrower
shall pay to the holders of SEN Series C Restructured Principal and the holders
of SEN Series D Restructured Principal a SEN Make-Whole Amount.  Any SEN Make-Whole Amount payable pursuant
to clause (i) or (ii) above shall be calculated as set forth in Exhibit
7.01 and Exhibit 7.01(f)(i), and any SEN Make-Whole Amount payable
pursuant to clause (iii) above shall be calculated as set forth in Exhibit
7.01 and Exhibit 7.01(f)(iii); provided that any SEN
Make-Whole Amount payable as a result of the event set forth in clause (iii)
above shall be limited to the portion of such SEN Make-Whole Amount allocable
to the Restructured Principal being prepaid; it being understood, for purposes
of clarification, that no SEN Make-Whole Amount shall be paid to such holders
in connection with the exercise of remedies against the SEN Collateral solely
for the purpose of paying scheduled principal and interest.  Any SEN Make-Whole Amount due in accordance
with this Section 7.01(f) shall be Tranche C Restructured Debt and,
notwithstanding the foregoing, shall be repaid in accordance with the terms of Section
8.02 and Section 8.03.


 


(g)                                 SEN
Series D Make-Whole Amount.  So long
as no Event of Default has occurred, on the Scheduled Maturity Date, and on any
date of a prepayment of all or a portion of the SEN Series D Restructured
Principal (other than any such prepayment referenced in Section 7.01(f)),
Borrower shall pay to the holders of SEN Series D Restructured Principal a SEN
Make-Whole Amount based on the amount of SEN Series D Restructured
Principal paid on such date, such SEN Make-Whole Amount to be calculated as set
forth in Exhibit 7.01 and Exhibit 7.01(g); provided
that the aggregate amount of payments of SEN Make-Whole Amounts to the holders
of SEN Series D Restructured Principal under this Section 7.01(g)
shall not exceed $10,000,000.  Any SEN
Make-Whole Amount due in accordance with this Section 7.01(g) shall
be Tranche C Restructured Debt and, notwithstanding the foregoing, shall
be repaid in accordance with the terms of Section 8.02 and Section
8.03.


 


ARTICLE VIII

PAYMENTS; INTEREST; FEES


 


Section 8.01                                Prepayments


 


(a)                                  Working
Capital Prepayment Event.  For each
fiscal quarter ending on or after the Closing Date, within thirty (30) days
after the end of such fiscal quarter, Borrower shall calculate


 


40

















 


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


 


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


 


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


 


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


 


(i)                                     where
the average daily closing price per pound of copper exceeds $0.88 during any
fiscal quarter, an amount equal to the product of (A) such average copper
price minus $0.88 and (B) the number of pounds of copper sold by
Borrower and its Subsidiaries during such fiscal quarter;


 


(ii)                                  where
the average daily closing price per pound of zinc exceeds $0.485 during any
fiscal quarter, an amount equal to the product of (A) such average zinc
price minus $0.485 and (B) the number of pounds of zinc sold by
Borrower and its Subsidiaries during such fiscal quarter; and


 


(iii)                               where the average daily
closing price per ounce of silver exceeds $5.00 during any fiscal quarter, an amount
equal to the product of (A) such average silver price minus $5.00
and (B) the number of ounces of silver sold by Borrower and its
Subsidiaries during such fiscal quarter.


 


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


 


41

















 


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


 


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


 


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


 


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


 


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


 


(iii)                               (A) if the Adjusted
Working Capital is less than $220,000,000, and if the Excess Cash Flow is
greater then the sum of (x) the Allocated Excess Cash Flow I and
(y) 133.333% of the Allocated Excess Cash Flow II, such excess will
be allocated 50% to


 


42

















 


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


 


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


 


If, pursuant to the calculations described in this Section 8.01(c),
Borrower is required to pay a Cash Flow Prepayment Amount (a “Cash Flow
Prepayment Event”), it shall (i) pay the Shared Payment and
Collateral Agent, for the benefit of the Lenders, by wire transfer of
immediately available funds, an amount equal to the Cash Flow Prepayment Amount
not later than thirty (30) days after the last day of the period for which
such calculations were made, and (ii) notify the Shared Payment and
Collateral Agent and the Bank Holders Administrative Agent of such payment in
accordance with Section 4.01. 
On the earlier of such thirtieth (30th) day and the date of such
payment, Borrower shall deliver to each of the Lenders, the Financial Advisor,
the Shared Payment and Collateral Agent and the Bank Holders Administrative
Agent a certificate of Borrower’s chief financial officer setting forth the
basis of the calculation of such payment in reasonable detail, which
certificate shall state that the data used in such calculation is accurate to
the best of such chief financial officer’s knowledge, after diligent inquiry
into such matters.


 


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


 


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


 


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


 


43

















 


calculation of such Early
Asset Sale Debt Prepayment Amount was made, and such amount shall be
distributed in accordance with Section 8.02(d).


 


(e)                                  Asset
Disposition Prepayment Event.  Without
limitation of the provisions of Section 5.03, within ten (10) days
after any Asset Disposition in respect of which the Asset Disposition
Prepayment Amount is greater than zero, Borrower shall notify the Lenders as to
the amount of such Asset Disposition Prepayment Amount (such an event, as
determined from time to time, an “Asset Disposition Prepayment Event”).  Not later than thirty (30) days after
the occurrence of any Asset Disposition Prepayment Event, Borrower shall
(i) pay an amount equal to the applicable Asset Disposition Prepayment
Amount to the Shared Payment and Collateral Agent, for the benefit of the
Lenders, by wire transfer of immediately available funds, and (ii) notify
the Shared Payment and Collateral Agent and the Bank Holders Administrative
Agent of such payment in accordance with Section 4.01, which amount
shall be distributed by the Shared Payment and Collateral Agent in accordance
with Section 8.02(g).


 


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


 


(g)                                 Financial
Adviser Review.  With respect to any
financial report or determination of any amount delivered by Borrower at any
time under the Operative Documents, the Financial Advisor will, at Borrower’s
sole cost and expense, review all calculations of the Financial Covenants,
calculations of prepayments (including the prepayments set forth in this Section
8.01) and any related Financial Covenants and determine if such
calculations have been calculated in accordance with the terms hereof.  If the Financial Advisor disagrees with the
calculations set forth in any of Borrower’s required reporting, the Financial
Advisor will inform Borrower of such disagreement in writing as soon as practicable.  If Borrower desires to dispute the Financial
Advisor’s calculations, Borrower will have ten (10) Business Days to file
documentation in support of Borrower’s calculation with the Lenders and the
Financial Advisor following receipt of the Financial Advisor’s written notice.  If the parties fail to resolve any such
dispute within thirty (30) days of Borrower’s filing of such documentation
of dispute, Borrower will immediately deposit, into a segregated escrow account
held by the Shared Payment and Collateral Agent, the shortfall, if any, with
respect to any: (i) Working Capital Prepayment Amount; (ii) Metal
Price Prepayment Amount; (iii) Cash Flow Prepayment Amount;
(iv) Early


 


44

















 


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


 


Section 8.02                                Distribution
of Prepayments.  Subject to Section 8.07:


 


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


 


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


 


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


 


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


 


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


 


fifth, to pay pro rata any other amounts
due and owed to the Lenders pursuant to the terms of the Operative Documents
(including reasonable fees and expenses of attorneys and the Financial
Advisor);


 


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


 


seventh, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable


 


45

















 


Law and upon prompt
notification to the Shared Payment and Collateral Agent.


 


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


 


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


 


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


 


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


 


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


 


fifth, to pay pro rata any other amounts
due and owed to the Lenders pursuant to the terms of the Operative Documents
(including reasonable fees and expenses of attorneys and the Financial
Advisor);


 


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


 


seventh, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable Law and upon prompt notification to the
Shared Payment and Collateral Agent.


 


(c)                                  Distribution
of Cash Flow Prepayment Amount.  All
amounts received by the Shared Payment and Collateral Agent in connection with
a Cash Flow Prepayment Event shall be distributed by the Shared Payment and Collateral
Agent in the following order of priority:


 


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


 


46

















 


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


 


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


 


fourth, to pay pro rata any other amounts
due and owed to the Lenders pursuant to the terms of the Operative Documents
(including reasonable fees and expenses of attorneys and the Financial
Advisor);


 


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


 


sixth, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable Law and upon prompt notification to the
Shared Payment and Collateral Agent.


 


(d)                                 Distribution
of Early Asset Sale Debt Prepayment Amount.  All amounts received by the Shared Payment and Collateral Agent
in connection with an Early Asset Sale Debt Prepayment Event shall be
distributed by the Shared Payment and Collateral Agent in the following order
of priority:


 


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


 


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


 


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


 


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


 


fifth, to pay pro rata any other amounts
due and owed to the Lenders pursuant to the terms of the Operative Documents
(including reasonable fees and expenses of attorneys and the Financial
Advisor);


 


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


 


seventh, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable


 


47

















 


Law and upon prompt
notification to the Shared Payment and Collateral Agent.


 


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


 


first, so much of such amount as shall be
required to pay pro rata all reasonable fees and expenses of and indemnity
amounts owing to the Agents (including reasonable fees and expenses of
attorneys);


 


second, so much of such amount as shall be
required to pay pro rata all reasonable fees and expenses of and indemnity
amounts owing to the SEN Holders (including reasonable fees and expenses of
attorneys and the Financial Advisor);


 


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


 


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


 


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


 


sixth, so much of such amount as shall be
required to pay in full the Tranche A Restructured Debt held by the SEN
Holders, to be divided pro rata among such holders and to be
applied in inverse order of maturity of the remaining scheduled quarterly
amortization payments in respect of such Tranche A Restructured Debt;


 


seventh, to pay in full the Tranche C
Restructured Debt pro rata;


 


eighth, so much of such amount as shall be
required to pay pro rata any other amounts due and owed to the Lenders
pursuant to the terms of the Operative Documents (including reasonable fees and
expenses of attorneys);


 


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


 


tenth, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable


 


48

















 


Law and upon prompt
notification to the Shared Payment and Collateral Agent.


 


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


 


(f)                                    Distribution
of Proceeds from Shared Collateral. 
All amounts received by the Shared Payment and Collateral Agent as
proceeds from the Shared Collateral shall be distributed by the Shared Payment
and Collateral Agent in the following order of priority:


 


(i)                                     first,
to payment in full of all costs and expenses relating to the collection, sale
or other realization of such proceeds (including attorney fees and expenses and
the compensation and reimbursement of the Shared Payment and Collateral Agent
for services rendered in connection therewith or in connection with any
proceeding to sell if a sale is not completed), second, to payment in full
of all charges, expenses and advances incurred or made by the Shared Payment
and Collateral Agent in order to protect the Liens under the Operative
Documents and the security afforded thereby in connection with the Shared
Collateral, and third, the balance, if any, of such payment shall be
distributed as set forth in Section 8.02(f)(ii) and Section
8.02(f)(iii);


 


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


 


(iii)                               in the case of proceeds
from Shared Collateral other than Shared Yankee Bond Collateral, as determined
by Borrower and notified to the Shared Payment and Collateral Agent by
Borrower:


 


first, so much of such amount as shall be
required to pay pro rata all reasonable fees and expenses of and indemnity
amounts owing to the Agents (including reasonable fees and expenses of
attorneys),


 


second, so much of such amount as shall be
required to pay pro rata all reasonable fees and expenses of and indemnity
amounts owing to the Lenders (including reasonable fees and expenses of
attorneys and the Financial Advisor),


 


third, so much of such amount as shall be
required to pay the SEN Holders the full amount of the SEN Contribution for
application to the then


 


49

















 


outstanding Restructured
Debt held by the SEN Holders in the following order of priority, (a) so
much of such amount as shall be required to pay in full the Tranche B
Principal Amount held by the SEN Holders, pro rata, then (b) so much of such
amount as shall be required to pay in full the Tranche A Restructured Debt
held by the SEN Holders, to be divided pro rata among such holders and to be
applied in inverse order of maturity of the remaining scheduled quarterly
amortization payments in respect of such Tranche A Restructured Debt,


 


fourth, so much of such amount as shall be
required to pay any unpaid Cash Interest with respect to Restructured
Principal, pro
rata among the Lenders,


 


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


 


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


 


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


 


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


 


ninth, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable Law and upon prompt notification to the
Shared Payment and Collateral Agent.


 


(g)                                 Distribution
of Asset Disposition Prepayment Amount.


 


(i)                                     All
amounts received by the Shared Payment and Collateral Agent as a result of an
Asset Disposition Prepayment Event shall be distributed by the Shared Payment
and Collateral Agent in the following order of priority;


 


(A)                              in
the case of any such amounts derived from dispositions of assets that
constitute part of the Shared Yankee Bond Collateral, as determined in
accordance with Section 8.02(g)(ii) and notified to the Shared Payment
and Collateral Agent by Borrower, to the trustee under the Yankee Bond
Indenture and the Shared Payment and Collateral Agent pro rata based on the
principal amount then outstanding under the Yankee Bond Indenture and the then


 


50

















 


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


 


(B)                                in
the case of any such amounts derived from dispositions of assets that do not
constitute part of the Shared Yankee Bond Collateral, as determined in
accordance with Section 8.02(g)(ii) and notified to the Shared Payment
and Collateral Agent by Borrower:


 


first, pro rata among the holders of
Tranche B Restructured Debt to pay in full the Tranche B Restructured
Debt,


 


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


 


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


 


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


 


fifth, to pay pro rata any other amounts
due and owed to the Lenders pursuant to the terms of the Operative Documents
(including reasonable fees and expenses of attorneys and the Financial
Advisor),


 


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


 


seventh, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable Law and upon prompt notification to the
Shared Payment and Collateral Agent.


 


(ii)                                  Anything
contained in this Agreement or any other Operative Document to the contrary
notwithstanding, for purposes of Section 8.02(g)(i), (A) the
portion of any Asset Disposition Prepayment Amount that is deemed to be derived
from dispositions of assets that constitute part of the Shared Yankee Bond
Collateral shall be determined by multiplying such Asset Disposition Prepayment
Amount by a fraction (x) the numerator of which is an amount equal to the
aggregate Net Available Proceeds of all Asset Dispositions during such fiscal
year of assets that constitute part of the Shared Yankee Bond Collateral and
(y) the denominator of which is an amount equal to the aggregate Net
Available Proceeds of all Asset Dispositions during such fiscal year (excluding
Net Available Proceeds from dispositions of Scheduled Assets) and (B) the
portion of any Asset Disposition Prepayment Amount that is deemed to be derived
from dispositions of


 


51

















 


assets that do not constitute part of the Shared
Yankee Bond Collateral shall be determined by subtracting the amount calculated
in clause (A) of this Section 8.02(g)(ii) from the aggregate Net
Available Proceeds of all Asset Dispositions during such fiscal year (excluding
Net Available Proceeds from dispositions of Scheduled Assets).


 


(h)                                 Distribution
of Proceeds Derived from Voluntary Prepayments.  All amounts received by the Shared Payment and Collateral Agent
as proceeds of a voluntary prepayment of the Restructured Debt shall be
distributed by the Shared Payment and Collateral Agent in the following order
of priority.


 


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


 


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


 


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


 


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


 


fifth, to pay pro rata any other amounts
due and owed to the Lenders pursuant to the terms of the Operative Documents
(including reasonable fees and expenses of attorneys and the Financial
Advisor);


 


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


 


seventh, the balance, if any, of such
payment shall be returned to Borrower or such other Person as shall be entitled
thereto as required by Applicable Law and upon prompt notification to the
Shared Payment and Collateral Agent.


 


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


 


(i)                                     if,
at the time such amounts become payable, Borrower shall have notified the
Shared Payment and Collateral Agent that the principal amount of the
Indebtedness under the Yankee Bond Indenture has been accelerated or is
otherwise then due and payable, such amounts shall be distributed to such
trustee, pursuant to such wire instructions and other information as shall be
notified by Borrower to the Shared Payment and Collateral Agent, for
application to such principal amount and/or any accrued and unpaid interest
thereon or any other amounts then due and payable by


 


52

















 


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


 


(ii)                                  in
all other cases, such amounts shall be held in trust by the Shared Payment and
Collateral Agent in a non-interest bearing account, subject to the Lien of the
applicable Collateral Document for the benefit of such trustee, until the date
that is the second Business Day prior to the next scheduled interest payment
date under the Yankee Bond Indenture, as notified by Borrower to the Shared
Payment and Collateral Agent, at which time such amounts shall be distributed
to such trustee, pursuant to such wire instructions and other information as
shall be notified by Borrower to the Shared Payment and Collateral Agent, for
application to the interest payable on such date or any other amounts then due
and payable by Borrower under the Yankee Bond Indenture, as determined by such
trustee (it being understood and agreed that the Shared Payment and Collateral
Agent shall have no obligation to confirm or inquire as to the manner in which
such trustee applies such amount).


 


Section 8.03                                Repayment.  Subject to Section 8.07:


 


(a)                                  Commencing
on June 25, 2004, and on a quarterly basis thereafter on the last Monthly
Payment Date for each calendar quarter, Borrower shall make amortization
payments in respect of the Tranche A Restructured Debt to the Shared Payment
and Collateral Agent, for the account of the Lenders holding such Tranche A
Restructured Debt, in such amounts as set forth for such calendar quarters
under the heading titled “Restructured Tranche A” of the Restructured Debt
Payment Schedule.  Borrower shall notify
the Shared Payment and Collateral Agent and the Bank Holders Administrative
Agent of each such payment in accordance with Section 4.01.  Each such payment shall be distributed by
the Shared Payment and Collateral Agent pro rata among the holders of Tranche A
Restructured Debt.


 


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


 


Section 8.04                                Interest.  Subject to Section 8.07:


 


(a)                                  Cash
Interest shall accrue from April 30, 2003 and be paid by Borrower to the Shared
Payment and Collateral Agent, for the account of the Lenders, in arrears on
each Monthly Payment Date.  PIK Interest
shall accrue from the Economic Effective Date in arrears and be added to the
Accreted PIK Balance on April 30, 2003 and on each Monthly Payment Date and
shall be paid in cash by Borrower to the Shared Payment and Collateral Agent,
for the account of the holders of SEN Series C Restructured Principal, in
arrears on the Maturity Date.  Cash
Interest shall also be paid on the date of any prepayment or repayment of
Restructured Principal under Section 8.01, Section 8.02 or Section
8.03 for the portion of the Restructured Principal so prepaid or
repaid.  During the existence of any
Event of Default, accrued but unpaid Cash


 


53

















 


Interest
shall be paid on demand of the Shared Payment and Collateral Agent at the
written direction of the Required Lenders. 
Each payment of Cash Interest shall be distributed, and each accrual of
PIK Interest shall be credited, as the case may be, by the Shared Payment and
Collateral Agent to the applicable Lenders in accordance with its determination
of required Cash Interest payments and PIK Interest accruals pursuant to Section
8.06(a).


 


(b)                                 Notwithstanding
any other provision of this Section 8.04, while any Event of Default
exists, Borrower shall pay in cash on demand interest at a rate per annum (the
“Default
Interest Rate”) (after as well as before entry of judgment thereon
to the extent permitted by law) on (i) the principal amount of all
outstanding Restructured Principal, equal to the rate of interest then
applicable thereto plus an additional 200 basis points, and (ii) any fees
or transaction expenses due and payable by MM, GMM or any of their respective
Subsidiaries pursuant to the terms of the Operative Documents, equal to the sum
of (x) the LIBOR Rate then applicable to LIBOR Loans and (y) 575
basis points; provided that on any date occurring on or subsequent to
the Scheduled Maturity Date, the Default Interest Rate:  (A) with respect to any LIBOR Loan
shall be deemed to be equal to the sum of (1) the LIBOR Rate on such day
(it being understood and agreed that from and subsequent to the Scheduled
Maturity Date, the LIBOR Rate shall be determined based on successive Interest
Periods (x) the first of which shall be deemed to have commenced on (and
including) the Scheduled Maturity Date and ended on (but excluding) the
twenty-fifth (25th) day of the month following the month in which the
Scheduled Maturity Date occurs (unless such twenty-fifth (25th) day is not
a Business Day, in which case such ending date shall be the first Business Day
immediately succeeding such day) and (y) each of which thereafter shall be
deemed to have commenced on (and including) the last day of the immediately
preceding Interest Period and ended on (but excluding) the twenty-fifth (25th)
day of the month immediately succeeding the month in which such immediately
preceding Interest Period was deemed to have ended (unless such
twenty-fifth (25th) day is not a Business Day, in which case such ending
date shall be the first Business Day immediately succeeding such day), each of
such days to be a Monthly Payment Date), (2) the Applicable Margin and
(3) 200 basis points; and (B) with respect to any Fixed Rate Loan,
for each Interest Period as described above, shall be deemed to be equal to the
interest rate of such Fixed Rate Loan plus 200 basis points.  In addition, if any amount of interest on
the Restructured Principal, or any other amount payable hereunder or under any
other Operative Document related to the Restructured Principal (other than
amounts described in the immediately preceding sentence), is not paid in full
when due while any Event of Default exists, then to the extent permitted by
Applicable Law, Borrower agrees to pay in cash on demand interest on such
unpaid interest or other amount, from the date such amount becomes due until
the date such amount is paid in full, and after as well as before any entry of
judgment thereon to the extent permitted by law at a rate per annum equal to
the Default Interest Rate, as determined in the manner provided in
clause (ii) of the immediately preceding sentence (which shall be the
“Default Interest Rate” for interest and other amounts described in this
sentence).


 


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


 


54

















 


(d)                                 Anything
herein or in any other Operative Document to the contrary notwithstanding,
interest shall accrue on the GM Notes at a rate per annum equal to the rate
then applicable to the Bank Holders Restructured Principal; provided
that interest on the GM Notes shall be capitalized on each date that interest
is due on the Bank Holders Restructured Principal pursuant to this Section
8.04 and shall not constitute Cash Interest for purposes of this Agreement
or any other Operative Document for so long as any Indebtedness evidenced by a
GM Note may not be paid under the Subordination Agreement.


 


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


 


Section 8.05                                Fees.


 


(a)                                  Agency
Fees.  Borrower shall pay to each
Agent for the account of such Agent the agency fee separately agreed to by
Borrower and such Agent at such times as agreed to by Borrower and such Agent.


 


(b)                                 Restructuring
Fee.  Borrower shall pay in cash on
the Closing Date to the Shared Payment and Collateral Agent for the account of
each Lender a non-refundable fee in the amount of 0.5% of the Restructured
Principal held by such Lender on such date.


 


Section 8.06                                Computation
of Interest.


 


(a)                                  All
computations of interest shall be made on the basis of a 360-day year comprised
of twelve 30-day months and the actual number of days elapsed.  Interest shall accrue during each period
during which interest is computed from the first day thereof to the last day
thereof.  The Shared Payment and
Collateral Agent shall determine for each Monthly Payment Date the amounts of
Cash Interest due and payable to, and PIK Interest to be added to the Accreted
PIK Balance of, the applicable Lenders and notify Borrower, the SEN Collateral
Agent and the Bank Holders Administrative Agent of such amounts no later than
three (3) Business Days prior to such Monthly Payment Date.


 


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


 


Section 8.07                                Subordination
of Payments on GM Notes.  Anything
herein or in any other Operative Document to the contrary notwithstanding, the
Obligations with respect to the GM


 


55

















 


Notes
are subordinated to the prior indefeasible payment in full in cash in Dollars
of all other Obligations, including pursuant to this Article VIII, in
accordance with the provisions of the Subordination Agreement.


 


ARTICLE IX

EVENTS OF DEFAULT


 


Section 9.01                                Event
of Default.  Any of the following
shall constitute an “Event of Default”:


 


(a)                                  Non-Payment.  Borrower or any Principal Subsidiary fails
to pay, when and as required to be paid herein or in the other Operative
Documents, (i) any amount of principal of any Restructured Debt (including
any prepayments in accordance with Section 8.01) or (ii) any
interest, fee, SEN Make-Whole Amount, Additional Amounts or any other amount
payable hereunder or under any other Operative Document and such failure to pay
interest, fees or other amounts (other than principal) shall continue
unremedied for three (3) Business Days; provided that the failure
to pay any Obligation in respect of any GM Note as a result of the
subordination provisions contained in the Subordination Agreement shall not
constitute a Default or an Event of Default for any purpose under this
Agreement or any other Operative Document; or


 


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


 


(c)                                  Specific
Defaults.  Borrower or any Guarantor
(a) fails to perform or observe any term, covenant or agreement contained
in Section 4.03(b), Section 4.05(a), Section 4.08(a), Section
4.15, Section 5.01, Section 5.02, Section 5.03, Section
5.04, Section 5.05, Section 5.09, Section 5.12 or Section
5.16 or (b) pays any Obligation relating to any GM Note in
contravention of the provisions of the Subordination Agreement; or


 


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


 


(e)                                  Specific
Defaults-45-Day.  Unless otherwise
referenced within this Section 9.01, if Borrower or any Guarantor
fails to perform or observe any term, covenant or agreement contained in Article IV,
or Clause Second or Clause Seventh of the Mexican Security Trust
Agreement, and such failure shall continue unremedied for a period of
forty-five (45) days after


 


56

















 


the
earlier of (i) the date upon which a Responsible Officer of Borrower or such
Guarantor knew of such failure or (ii) the date upon which written notice
thereof is given to Borrower by any Lender; or


 


(f)                                    Specific
Defaults-90-Day.  Borrower or any
Guarantor fails to perform or observe any term, covenant or agreement contained
in Article VI, and such failure shall continue unremedied for a period
of ninety (90) days after the earlier of (i) the date upon which a
Responsible Officer of Borrower or such Guarantor knew of such failure or
(ii) the date upon which written notice thereof is given to Borrower by
any Lender; or


 


(g)                                 Specific
Defaults-120-Day.  Unless otherwise
referenced in this Section 9.01, Borrower or any Guarantor shall
fail to observe or perform any term, covenant or condition under this
Agreement, the Restructured Trust Indenture, the Bank Holders Restructured Loan
Agreement or any other Operative Document and such failure shall continue
unremedied for a period of one hundred twenty (120) days after the earlier
of (i) the date upon which a Responsible Officer of Borrower or such
Guarantor knew of such failure or (ii) the date upon which written notice
thereof is given to Borrower by any Lender; or


 


(h)                                 Cross-Default.  Borrower or any Guarantor or any of their respective
Subsidiaries:


 


(i)                                     fails
to make any payment when due (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise) of principal, interest or other
amounts aggregating in excess of $10,000,000 (or the equivalent in other currencies)
in respect of any Indebtedness or Contingent Obligation (other than any
Obligation evidenced by any Operative Document) and such failure continues
after the applicable grace or notice period, if any, specified in the relevant
documents on the date of such failure, or


 


(ii)                                  fails
to perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any
Indebtedness or Contingent Obligation (other than any Obligation evidenced by
any Operative Document) in principal amounts aggregating in excess of
$10,000,000 (or the equivalent in other currencies), and such failure continues
thirty (30) days after the applicable grace or notice period, if any, specified
in the relevant document on the date of such failure, if the effect of such
failure, event or condition is to cause, or to permit the holder or holders of
such Indebtedness or Contingent Obligations or beneficiary or beneficiaries of
such Indebtedness or Contingent Obligations (or a trustee or agent on behalf of
such holder or holders or beneficiary or beneficiaries) to cause such
Indebtedness to be declared to be due and payable prior to its stated maturity,
or such Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded; or


 


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


 


57

















 


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


 


(j)                                     Involuntary
Proceedings.  (i) Any
involuntary Insolvency Proceeding is commenced or filed against Borrower or any
Guarantor or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the properties of
Borrower or any Guarantor and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or similar
process shall not be released, vacated or fully bonded, within sixty (60)
days after commencement, filing or levy; (ii) Borrower or any Guarantor
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) Borrower or any Guarantor
applies for, consents to or acquiesces in the appointment of, or, in the
absence of such application, consent or acquiescence, permits or suffers to
exist for more than sixty (60) days, a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor),
visitador, conciliador, sindico, interventor, or other similar Person for
itself or a substantial portion of its property or business; or


 


(k)                                  Monetary
Judgments.  One or more non-interlocutory
judgments, non-interlocutory orders, decrees or arbitration awards are entered
against Borrower or any Guarantor involving in the aggregate a liability (to
the extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $10,000,000 (or the equivalent in
other currencies) or more, and the same shall remain unsatisfied, unvacated and
unstayed pending appeal for a period of sixty (60) days after the entry
thereof; or


 


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


 


(m)                               Change
of Control.  There occurs any Change
of Control; or


 


(n)                                 Operative
Documents and Liens.  Any Operative
Document at any time terminates or otherwise ceases to be in full force and
effect other than pursuant to its terms, or is declared to be void or partially
or wholly revoked or invalidated, or Borrower, any Guarantor, or any Affiliate
of any thereof, contests in any manner the validity or enforceability thereof
or denies that it has any further liability or obligation thereunder, or any
Lien created under any Operative Document ceases to be a valid and perfected
first priority Lien, except as otherwise permitted therein; or


 


(o)                                 Expropriation,
etc.  There shall have occurred any
loss, seizure, compulsory requisition, expropriation or nationalization by any
Governmental Authority of all or any material part of the property of Borrower
or any Guarantor that would reasonably be expected to result in a Material
Adverse Effect; or


 


58

















 


(p)                                 Reserve
Interest Deficiency.  The SEN
Interest Reserve Account shall not be funded at any time with an amount at
least equal to the SEN Interest Reserve Account Required Balance, and such
failure shall either have occurred (i) on each of three consecutive
Monthly Payment Dates or (ii) on any four Monthly Payment Dates within a
calendar year.


 


ARTICLE X

REMEDIES


 


Section 10.01                          Lenders’
Remedies.  Following the occurrence
of any Event of Default, upon written direction of the Required Lenders, the
Shared Payment and Collateral Agent shall, and with respect to the SEN
Collateral the SEN Collateral Agent shall, subject to the terms and conditions
of the Operative Documents:


 


(a)                                  declare
the unpaid principal amount of all outstanding Restructured Debt, all interest
accrued and unpaid thereon, and all other amounts owing or payable hereunder or
under any other Operative Document to be immediately due and payable directly
from Borrower or the Guarantors, without presentment, demand, protest or other
notice of any kind, all of which are hereby expressly waived by Borrower and
each Guarantor;


 


(b)                                 exercise
on behalf of itself, the SEN Trustee and the Lenders all rights and remedies
available to it, the SEN Trustee and the Lenders under the Collateral
Documents, any other Operative Documents or Applicable Law; or


 


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


 


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


 


Section 10.03                          Rights
Cumulative; No Marshaling; Waivers.


 


(a)                                  Each
of Borrower and each Guarantor hereby agrees that the rights and remedies set
forth in Section 10.01 and in the other provisions of the Operative
Documents are cumulative and may be exercised singly or concurrently or from
time to time and are in addition to all other rights and remedies however
existing or arising.  Subject to the
provisions of Clause Thirteenth of the Mexican Security Trust Agreement,
to the extent that it lawfully may, each of Borrower and each Guarantor hereby
agrees that it will not at any time plead, claim or take the benefit of any
appraisement, valuation, stay, extension, moratorium or redemption law now or
hereafter in force and any requirement of marshaling in the event of
foreclosure of the security interests hereby created, the effect of which might
be to prevent or delay the enforcement of any Collateral Document or the
absolute sale of the whole or any part of the Shared Collateral, the SEN
Collateral or the possession thereof by the Shared Payment and Collateral Agent
or the SEN Collateral Agent, as applicable, or any purchaser at any sale
thereof by the Shared Payment and Collateral Agent or the SEN Collateral Agent,
as applicable.  Each of Borrower and each


 


59

















 


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


 


(b)                                 A
waiver by the Shared Payment and Collateral Agent or the SEN Collateral Agent
of any right or remedy hereunder on any one occasion shall not be construed as
a bar to any right or remedy that the Shared Payment and Collateral Agent or
the SEN Collateral Agent would otherwise have had on any future occasion.  No failure to exercise, nor any delay in
exercising, on the part of the Shared Payment and Collateral Agent, the SEN
Collateral Agent, the SEN Trustee or any of the Lenders, any right, power,
remedy or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power, remedy or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power, remedy or privilege.


 


Section 10.04                          Rights
Not Exclusive.  The rights provided
for in this Agreement and the other Operative Documents are cumulative and are
not exclusive of any other rights, powers, privileges or remedies provided by
law or in equity, or under any other instrument, document or agreement now
existing or hereafter arising.


 


ARTICLE XI

INDEMNIFICATION; COSTS AND EXPENSES


 


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


 


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


 


Section 11.02                          Costs
and Expenses.  (a)  Borrower and each Guarantor, jointly and
severally, shall pay or reimburse:


 


(i)                                     each
Agent, the SEN Trustee, each Lender and each Export Credit Agency on or prior
to the Closing Date for all reasonable and documented fees, costs and expenses
(A) incurred by or charged to any such Agent, the SEN Trustee or such
Lender in connection with or arising out of the development, negotiation,
preparation, delivery and execution of (in each case, whether or not
consummated) this Agreement, any other Operative Document and any other
documents prepared in connection herewith or therewith, and the consummation of
the transactions contemplated hereby and thereby, including reasonable and
documented Attorney Costs and fees and costs of the Financial Advisor,
(B) incurred by or charged to any such Export Credit Agency in connection
with or arising out of the amendment or extension of its guarantee relating to
debt guaranteed by such Export Credit Agency under the Existing Bank Agreements
and (C) without duplication of other amounts specified under this Section
11.02(a)(i), incurred by or charged to any such Agent, the SEN Trustee,
such Lender or such Export Credit Agency in connection with or arising out of
any Existing Bank Agreement or any Existing SEN Agreement to which such Person
is a party, or any guarantee relating to debt guaranteed by such Export Credit
Agency under the Existing Bank Agreements, to the extent Borrower or any
Guarantor is liable under such agreement or guarantee for such fees, costs and
expenses, including reasonable and documented Attorney Costs, and such fees,
costs (including interest break funding costs) and expenses have not previously
been paid or reimbursed, and


 


(ii)                                  each
Agent, the Bank Holders, the SEN Trustee and the SEN Holders within
five (5) Business Days after demand for all reasonable and documented
fees, costs and expenses incurred by or charged to any such Agent, the Bank
Holders, the SEN Trustee and the SEN Holders in connection with or arising out
of the amendment, supplement, consent, waiver, modification or administration
of this Agreement, any other Operative Document and any other documents
prepared in connection herewith or therewith (in each case, whether or not
consummated), and the administration of the transactions contemplated hereby
and thereby, including reasonable and documented Attorney Costs (provided
that each of (A) the Bank Holders as a group and (B) the SEN


 


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


 


(b)                                 pay
or reimburse each Agent, the SEN Trustee, each Lender and each Export Credit
Agency within five (5) Business Days after demand for all reasonable and
documented costs and expenses (including Attorney Costs, consultant or advisor
fees or costs, and Taxes) incurred by them in connection with or arising out of
the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Operative Document and the
protection or preservation of any right or claim by any such Person against
Borrower or any Guarantor arising out of this Agreement or any other Operative
Document during the existence of an Event of Default or after acceleration of
the Restructured Debt (including in connection with any “workout” or
restructuring regarding the Restructured Debt, and including in any Insolvency
Proceeding or appellate proceeding); and


 


(c)                                  pay
the foregoing costs and expenses, including all search, filing and recording
charges and fees and taxes related thereto incurred by any Lender, any Agent or
any Export Credit Agency in connection herewith or in connection with any other
Operative Document.


 


ARTICLE XII

TAXES; YIELD PROTECTION; ILLEGALITY; PAYMENTS


 


Section 12.01                          Taxes.


 


(a)                                  Except
as hereinafter provided in this Section 12.01, any and all payments to
any Lender, the SEN Trustee or any Agent under this Agreement or any other
Operative Document shall be made free and clear of, and without deduction or
withholding for, any Taxes imposed by any jurisdiction in which Borrower or any
Guarantor is organized or domiciled, or from or through which Borrower or any
Guarantor effects such payment, or by any political subdivision or taxing
authority thereof.


 


(b)                                 If,
in respect of any sum payable hereunder or under any other Operative Document
to any Lender, the SEN Trustee or any Agent, Borrower or any Guarantor shall be
required by law to deduct or withhold any Taxes imposed by any jurisdiction in
which Borrower or any Guarantor is organized or domiciled, or from or through
which Borrower or such Guarantor effects such payment, or by any political
subdivision or taxing authority thereof, then:


 


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(i)                                     the
sum payable shall be increased (such increased amount being an “Additional
Amount”) as necessary so that after making all required deductions
and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section 12.01), such Lender, the SEN
Trustee or such Agent, as the case may be, receives and retains an amount equal
to the sum it would have received and retained had no such deductions or
withholdings been made;


 


(ii)                                  Borrower
or such Guarantor, as the case may be, shall make such deductions and
withholdings; and


 


(iii)                               Borrower or such
Guarantor, as the case may be, shall pay the full amount deducted or withheld
to the relevant taxing authority or other authority in accordance with
Applicable Law.


 


(c)                                  Borrower
and each Guarantor agree, jointly and severally, to indemnify and hold harmless
each Lender, the SEN Trustee and each Agent for the full amount of Taxes
imposed by any jurisdiction in which Borrower or any Guarantor is organized or
domiciled, or from or through which Borrower or such Guarantor effects payment,
or by any political subdivision or taxing authority thereof paid or payable by
such Lender, the SEN Trustee or such Agent, and any liability (including
penalties, interest, additions to tax and expenses) arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally
asserted.  Payment under this
indemnification shall be made within ten (10) days after the date the
applicable Lender or the applicable Agent makes written demand therefor.


 


(d)                                 Within
ten (10) days after the date of any payment by Borrower or any Guarantor
of Taxes imposed by any jurisdiction in which Borrower or any Guarantor is
organized or domiciled, or from or through which Borrower or such Guarantor
effects payment, or by any political subdivision or taxing authority thereof,
Borrower or such Guarantor shall furnish to the applicable Lender or the
applicable Agent (with a copy to the Bank Holders Administrative Agent in the
case where such Lender is a Bank Holder and to the SEN Collateral Agent in the
case where such Lender is a SEN Holder) the original or a certified copy of a
receipt evidencing payment thereof or other evidence of payment satisfactory to
such Lender.


 


(e)                                  If
Borrower or any Guarantor is required to pay any amount to any Lender pursuant
to subsection (b) or (c) of this Section 12.01,
then such Lender shall use reasonable efforts (consistent with its internal
policies and legal and regulatory restrictions) to change the jurisdiction of
its Lending Office if such change would eliminate any such additional payment
by Borrower or such Guarantor that may thereafter accrue, and if such change in
the sole judgment of such Lender is not otherwise disadvantageous to such
Lender.


 


(f)                                    Notwithstanding
the foregoing provisions of this Section 12.01, neither Borrower
nor any Guarantor shall be obligated to pay any Agent or any Lender any amounts
described in this Section 12.01 in respect of Taxes that would not
have been imposed but for the failure of such Agent or such Lender
(i) (A) with respect to the Bank Holders only, to be registered with
Hacienda as a foreign financial institution for purposes of Article 195,
Section I of the Mexican Income Tax Law and the regulations thereunder, to
the extent such registration continues to be a requirement for the application
of a lower withholding tax rate on interest payments under the


 


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Mexican
Income Tax Law, and (B) to be a resident (or to have the principal offices
of such Lender be a resident, if such Lender lends through a branch or agency)
for tax purposes of a jurisdiction with which Mexico has in effect a treaty for
the avoidance of double taxation, (ii) with respect to the Bank Holders
only, to use its reasonable efforts (consistent with legal and regulatory
restrictions) to maintain its registration with Hacienda as a foreign
financial institution for purposes of Article 195, Section I of the
Mexican Income Tax Law and the regulations thereunder, to the extent such
registration continues to be a requirement for the application of a lower
withholding tax rate on interest payments under Mexican Income Tax Law, if the
making of such registration would not, in the reasonable judgment of such
Lender or such Agent, be materially disadvantageous to such Lender or such
Agent or (iii) following a reasonable written request of Borrower or such
Guarantor upon forty-five (45) days’ prior written notice (and at the sole cost
and expense of Borrower), to complete and file with the appropriate
Governmental Authority, such forms, certificates or documents (collectively, “Forms”)
prescribed by law, rule or regulation enacted or issued by Mexico, or by a
double taxation treaty to which Mexico is a party and that is in effect, that
are necessary to avoid or reduce such Taxes pursuant to provisions of any law,
rule or regulation enacted or issued by Mexico, or a double taxation treaty to
which Mexico is a party and is then in effect; provided that (x) such
Lender or such Agent shall be under no obligation to (1) provide any
information to Borrower or any Guarantor that such Lender or such Agent deems,
in such Lender’s or such Agent’s judgment, to be confidential or
(2) complete, execute and deliver any Form hereunder if it is an Export
Credit Agency, (y) such Lender or such Agent is legally entitled to
complete, execute and deliver such Forms, and (z) the completion,
execution and delivery of such Forms will not result, in the good faith,
reasonable determination of such Lender or such Agent, in the imposition on
such Lender or such Agent of (1) any additional material legal or
regulatory obligations or liabilities, (2) any additional material
out-of-pocket costs or (3) any other material adverse consequences.


 


(g)                                 Borrower
shall pay on each Monthly Payment Date to each Lender, or to each Agent for the
account of each Lender, that is a Mexican bank, additional amounts sufficient
to compensate such Lender for Taxes imposed, levied, collected, withheld or
assessed by Mexico (or by any political subdivision or taxing authority thereof
or therein) on payments made by such Lender under any lending arrangement
entered into by such Lender in order to maintain its Restructured Debt
hereunder or under any other Operative Document; provided, however,
that Borrower shall have no obligation to pay such additional amount in excess
of an amount equal to the minimum Mexican withholding tax applicable to the
Person from which such Lender has arranged to maintain its Restructured Debt
hereunder or under any other Operative Document, provided such Person is
(i) registered with Hacienda as a foreign financial
institution for purposes of Article 195, Section I of the Mexican
Income Tax Law and (ii) a resident for tax purposes of a jurisdiction with
which Mexico has in effect a treaty for the avoidance of double taxation.


 


Section 12.02                          Illegality.


 


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


 


64

















 


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


 


(b)                                 If
a Lender determines that it is unlawful to maintain its LIBOR Loan or Loans,
Borrower hereby agrees that upon its receipt of notice of such fact and demand
from such Lender (with copies to (x) the Shared Payment and Collateral
Agent and (y)(1) the Bank Holders Administrative Agent in the case where
such Lender is a Bank Holder and (2) the SEN Collateral Agent in the case
where such Lender is a SEN Holder), such LIBOR Loan or Loans of such Lender then
outstanding shall, from the date upon which such Lender notified Borrower of
such fact, accrue interest thereon pursuant to Section 8.04; provided
that (i) each reference therein to the term “LIBOR Rate” shall, with
respect to such LIBOR Loan or Loans of such Lender, be deemed to be a reference
to the term “Base Rate”, (ii) the term “Applicable Margin” shall, with
respect to such LIBOR Loan or Loans of such Lender, be reduced by one
hundred (100) basis points from the Applicable Margin used in calculating
the rate applicable to each other LIBOR Loan and (iii) the applicable Interest
Periods shall be Interest Periods consisting of a single day; and provided,
further that, as provided in Section 8.04(b), each Monthly
Payment Date after the Maturity Date shall be the last Business Day of each
calendar month thereafter.


 


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


 


Section 12.03                          Increased
Costs.


 


(a)                                  If
any Lender determines that either (i) the introduction of, or any change
in, or in the interpretation of, any law or regulation made or effective after
the Closing Date or (ii) the compliance by such Lender with any guideline
or request from any central bank or other Governmental Authority (whether or
not having the force of law) made after the Closing Date:


 


(i)                                     shall
subject any Lender to any tax of any kind whatsoever with respect to this
Agreement or any other Operative Document, the LIBOR Loan or Loans maintained
by it pursuant to this Agreement or any other Operative Document or change the
basis of taxation of payments to such Lender in respect thereof (except for
Taxes covered by Section 12.01 and the introduction of or yearly changes
in the rate of tax on the overall net income of such Lender or its Lending
Office, as the case may be);


 


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


 


65

















 


(iii)                               shall impose on such
Lender any other condition affecting this Agreement or any other Operative
Document, its Note(s) or any of its LIBOR Loans, as the case may be,


 


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


 


(b)                                 If
after the Closing Date any Lender shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation or (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof would affect the amount of capital required or expected to be
maintained by such Lender or any Person controlling such Lender and determines
(taking into consideration such Lender’s or such Person’s policies with respect
to capital adequacy and such Lender’s desired return on capital) that the
amount of such capital is increased as a consequence of its LIBOR Loan or
Loans, credits or obligations under this Agreement, then, within ten (10)
days after written demand by such Lender to Borrower through the Bank Holders
Administrative Agent in the case where such Lender is a Bank Holder and through
the SEN Collateral Agent in the case where such Lender is a SEN Holder,
Borrower shall pay to such Lender, from time to time as specified by such
Lender, additional amounts sufficient to compensate such Lender for such
increase.


 


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


 


Section 12.04                          Funding
Losses.  Upon demand therefor by any
Lender (with a copy of such demand to be sent to the Bank Holders Administrative
Agent in the case where such Lender is a Bank Holder and the SEN Collateral
Agent in the case where such Lender is a SEN Holder)


 


66

















 


from
time to time, Borrower shall reimburse such Lender and hold such Lender
harmless from any loss or expense that such Lender may sustain or incur as a
consequence of:


 


(a)                                  the
failure of Borrower to make on a timely basis any payment of principal of any
LIBOR Loan;


 


(b)                                 the
failure of Borrower to make any prepayment of any LIBOR Loan in accordance with
any notice delivered under Section 8.01(e); or


 


(c)                                  the
prepayment for any reason, including after acceleration thereof, of all or any
portion of any LIBOR Loan on a day that is not the last day of the relevant
Interest Period,


 


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


 


Section 12.05                          Inability
to Determine Rates.  If the Shared
Payment and Collateral Agent or the Required Floating Rate Lenders determine
that for any reason adequate and reasonable means do not exist for determining
the LIBOR Rate for any applicable Interest Period with respect to any LIBOR
Loan, or if the Required Floating Rate Lenders determine that the LIBOR Rate
for any applicable Interest Period with respect to any LIBOR Loan does not
adequately and fairly reflect the cost to the Lenders thereof of funding such
LIBOR Loan, the Shared Payment and Collateral Agent, upon any such
determination by the Shared Payment and Collateral Agent or upon its receipt of
written notice of any such determination by the Required Floating Rate Lenders,
will promptly so notify Borrower and each Floating Rate Lender (with a copy of
such notice to be sent to the Bank Holders Administrative Agent in the case
where such Lender is a Bank Holder and the SEN Collateral Agent in the case
where such Lender is a SEN Holder). 
Thereafter, the obligation of the Floating Rate Lenders to maintain
LIBOR Loans hereunder or under any other Operative Document shall be suspended
until the Shared Payment and Collateral Agent (acting upon the direction of the
Required Floating Rate Lenders if applicable) revokes such notice in writing
(with a copy of such notice to be sent to the Bank Holders Administrative Agent
in the case where such Lender is a Bank Holder and the SEN Collateral Agent in
the case where such Lender is a SEN Holder). 
Upon receipt and prior to revocation of such notice, the Floating Rate
Lenders shall continue the affected LIBOR Loans, but such LIBOR Loans shall,
subject, in any event, to Section 8.04(b), instead bear interest at
a rate agreed upon between Borrower and the Required Floating Rate Lenders in
good faith (the “Substitute Rate”), which Substitute Rate shall apply to all
affected LIBOR Loans or, if no Substitute Rate can be agreed upon, at a rate,
for each Floating Rate Lender, equal to the cost to such Floating Rate Lender
(as reasonably determined by such Floating Rate Lender in good faith) of
funding or maintaining its LIBOR Loan plus the Applicable Margin (in which case
the Applicable Margin with respect thereto shall continue to be determined as
if such loan is a LIBOR Loan).  Within
two (2) Business Days after such substitution of interest rate and notice
thereof to the Shared Payment


 


67

















 


and
Collateral Agent by Borrower, Borrower and each Guarantor shall deliver to the
applicable Lender (with a copy to the Agents) substitute Notes duly executed by
an authorized representative of Borrower as maker and, with respect to the Bank
Holders Notes only, each Guarantor as avalista.


 


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


 


Section 12.07                          Certificates
of Lenders.  Any Lender claiming
reimbursement or compensation under this Article XII shall deliver
to Borrower (with a copy to the Shared Payment and Collateral Agent), together
with its claim for reimbursement or compensation, a certificate setting forth
in reasonable detail the amount payable to such Lender hereunder or under any
other Operative Document, and such certificate shall be conclusive and binding
on Borrower in the absence of manifest error.


 


Section 12.08                          Payments
by Borrower and Agents.


 


(a)                                  All
payments to be made by Borrower and any Agent under this Agreement or any other
Operative Document shall be made without set-off, deduction, recoupment,
counterclaim or other defense.  Except
as otherwise expressly provided herein or in any other Operative Document, each
payment by Borrower to any Agent shall be made to such Agent outside Mexico for
the account of such Agent or the applicable Lenders at such Agent’s Payment
Office, and shall be made in Dollars and in immediately available funds, on the
Business Day prior to, but in any case no later than 11:00 a.m. (New York
City time) on, the date specified under this Agreement or any other Operative
Document.  Unless otherwise expressly
provided herein, (i) if any Agent receives any such payment no later than
5:00 p.m. (New York City time) on the Business Day immediately preceding
any date specified for payment, such Agent will distribute to each applicable
Lender its pro
rata share (unless otherwise provided hereunder) of such payment in
like funds as received by wire transfer to such Lender’s Lending Office by no
later than 3:00 p.m. (New York City time) on the next following Business
Day, (ii) if any Agent receives any such payment after 5:00 p.m. (New
York City time) on the Business Day immediately preceding any date specified
for payment but no later than 11:00 a.m. (New York


 


68

















 


City
time) on any date specified for payment or on any other Business Day, such
Agent will distribute to each applicable Lender its pro rata share (unless otherwise
provided hereunder) of such payment in like funds as received by wire transfer
to such Lender’s Lending Office by no later than 5:00 p.m. (New York City
time) on such date or other Business Day, and (iii) if any Agent receives any
such payment later than 11:00 a.m. (New York City time) on any date
specified for payment or on any other Business Day, such Agent will distribute
to each applicable Lender its pro rata share (unless otherwise provided
hereunder) of such payment in like funds as received by wire transfer to such
Lender’s Lending Office by no later than 3:00 p.m. (New York City time) on
the next following Business Day.  If
such funds are not so distributed by the subject Agent to a Lender by the times
set forth in the immediately preceding sentence, such Agent shall pay interest
on such funds at the Federal Funds Rate to such Lender until such funds have
been paid to each Lender in accordance herewith.  If, pursuant to a distribution in accordance with clause (ii) of
this Section 12.08(a), any Lender receives such funds after
3:00 p.m. on the Business Day of such distribution and is not able to
invest such funds on such Business Day, Borrower shall pay interest on such
funds at the Federal Funds Rate to such Lender until the next following Business
Day.  Other than as set forth in
clause (i) of this Section 12.08(a), any payment received by any
Agent later than 11:00 a.m. (New York City time) on any Business Day shall
be deemed to have been received on the next following Business Day and any applicable
interest or fee shall continue to accrue. 
Notwithstanding the foregoing, nothing in this Section 12.08(a)
shall obligate the Bank Holders Administrative Agent to receive or distribute
any payment under the Operative Documents.


 


(b)                                 The
Shared Payment and Collateral Agent shall notify in writing the Bank Holders
Administrative Agent and the SEN Collateral Agent of each payment that the
Shared Payment and Collateral Agent is making to the Bank Holders and the SEN
Holders, as the case may be, including (i) information as to the pro rata
share being paid to each individual Bank Holder and SEN Holder that is provided
to it by Borrower and (ii) whether such payment conforms to the amounts
that Borrower notified the Shared Payment and Collateral Agent was payable to
the Bank Holders and the SEN Holders, not later than 5:00 p.m. (New York
City time) on the date of such payment.


 


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


 


(d)                                 If
Borrower fails to make any payment of interest on the SEN Holders Notes by
5:00 p.m. (New York City time) on the Business Day immediately preceding
any date specified for payment thereof under this Agreement or any other
Operative Document, the Shared Payment and Collateral Agent shall immediately
notify the SEN Collateral Agent of such failure and direct the SEN Collateral
Agent to withdraw funds from the SEN Interest Reserve Account in an amount
necessary to satisfy such interest payment obligation.  To effect any withdrawal of funds from the
SEN Interest Reserve Account pursuant to the terms of the SEN Security
Agreement, the SEN Collateral Agent shall cause such funds to be immediately
withdrawn and delivered directly to the Shared Payment and Collateral Agent’s
Payment Office, and the Shared Payment and Collateral Agent shall distribute
such funds to the SEN Holders in satisfaction of the interest due and owing on
the SEN Holders Notes by no later than 3:00 p.m. on the date


 


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specified
for payment.  If, after distribution to
the SEN Holders of funds from the SEN Interest Reserve Account pursuant to the
immediately preceding sentence, the Shared Payment and Collateral Agent
receives any payment from Borrower in satisfaction of the interest amounts paid
with such funds, the Shared Payment and Collateral Agent shall promptly deliver
such funds to the SEN Collateral Agent and the SEN Collateral Agent shall
promptly deposit such funds in the SEN Interest Reserve Account.


 


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


 


70

















 


Subsidiaries),
or any of their respective assets or the proceeds thereof; provided, however,
that any payment made by GM under or in connection with the GM Guaranty that
results in a reduction of the Guaranteed Obligations (as defined in the GM
Guaranty) consisting of the principal amount of any Guaranteed Loans (as
defined in the GM Guaranty), other than (A) any payment made as
contemplated under the GM Guaranty (as in effect on the date hereof), including
pursuant to Section 2.1 or 6.22 thereof (each, a “Contemplated
Payment”) and (B) any amounts applied in respect of any
Contemplated Payment as a result of the exercise of any remedy (including as
the result of any right of set-off) by any such GM Guaranty Beneficiary against
GM, any of its Affiliates (other than MM and its Subsidiaries), or any of their
respective assets or the proceeds thereof, shall be subject to the provisions
of this Section 12.09.


 


ARTICLE XIII

SHARED PAYMENT AND COLLATERAL AGENT


 


Section 13.01                          Appointment
and Authorization of Shared Payment and Collateral Agent.  Each Lender and the SEN Trustee hereby
irrevocably appoints, designates and authorizes the Shared Payment and
Collateral Agent to take such action on its behalf under the provisions of this
Agreement and each other Operative Document and to exercise such powers and
perform such duties as are expressly delegated to it by the terms of this
Agreement or any other Operative Document, together with such powers as are
reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere herein
or in any other Operative Document, the Shared Payment and Collateral Agent
shall not have any duties or responsibilities except those expressly set forth
herein, nor shall the Shared Payment and Collateral Agent have or be deemed to
have any fiduciary relationship with any Lender or the SEN Trustee, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Operative Document
or otherwise exist against the Shared Payment and Collateral Agent.  Without limiting the generality of the
foregoing sentence, the use of the term “agent” herein and in the other
Operative Documents with reference to the Shared Payment and Collateral Agent
is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any Applicable Law.  Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.


 


Section 13.02                          Delegation
of Duties.  The Shared Payment and Collateral
Agent may execute any of its duties under this Agreement or any other Operative
Document by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties.  The
Shared Payment and Collateral Agent shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects with reasonable
care.


 


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


 


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or any
Lender or any officer of any of the foregoing, contained herein or in any other
Operative Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Shared Payment and
Collateral Agent under or in connection with this Agreement or any other
Operative Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Operative Document or any SEN
Collateral or Shared Collateral or any security interest created hereby and
thereby, or for any failure of any of Borrower, any Guarantor, or any Lender or
any other party to any Operative Document (other than itself) to perform its
obligations hereunder or thereunder.  No
Agent-Related Person shall be under any obligation to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Operative Document, or to inspect
the properties, books or records of any of Borrower, any Guarantor, any Lender,
the SEN Trustee or any Affiliate thereof.


 


Section 13.04                          Reliance
by Agent-Related Persons.  Each
Agent-Related Person shall be entitled to rely, and shall be fully protected in
relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, electronic mail message, statement or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to Borrower, any Guarantor,
any Agent-Related Person, the SEN Trustee or Lender), independent accountants
and other experts selected by any Agent-Related Person.  Each Agent-Related Person shall be fully
justified in failing or refusing to take any action under any Operative
Document unless it shall first receive such advice, direction or concurrence of
the Required Lenders as it requests and, if it so requests, it shall first be
indemnified to its satisfaction by the Required Lenders against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action; provided that for any Lender subject
to the limitations on incurrence of indemnification obligations under the
United States Anti-Deficiency Act or any similar law in effect in the
jurisdiction of its formation, such Agent-Related Person shall not require an
indemnity but shall rely on the provisions of Section 13.07.  Each Agent-Related Person shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Operative Document in accordance with a request,
direction or consent of the Required Lenders (or such greater number of Lenders
as may be expressly required hereby in any instance) and such request,
direction or consent and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders.


 


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


 


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


 


Section 13.06                          Credit
Decision.  Each Lender acknowledges
that no Agent-Related Person has made any representation or warranty to it, and
that no act by any Agent-Related Person hereinafter taken, including any
consent to and acceptance of any assignment or review of the affairs of GM,
Borrower, any Guarantor, any Agent-Related Person or any Lender and any of
their respective Affiliates, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender or other Agent-Related
Person as to any matter, including whether Agent-Related Persons have disclosed
material information in their possession. 
Each Lender represents to each Agent that it has, independently and
without reliance upon any Agent-Related Person and based upon 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 Borrower, any Guarantor, any
Agent-Related Person or Lender and any of their respective Affiliates, and all
applicable bank or other regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to comply with the terms hereof and of the other Operative Documents.  Each Lender also represents that it shall,
independently and without reliance upon any Agent-Related Person and based upon
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under the Operative Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower or any Guarantor and their respective Affiliates.  Except for notices, reports and other
documents expressly herein or in the other Operative Documents required to be
furnished to the Lenders by the Shared Payment and Collateral Agent or other
specified Agent-Related Person, no Agent-Related Person shall have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrower, any Guarantor, any Agent-Related
Person or their respective Affiliates that may come into the possession of any
of the Agent-Related Persons.


 


Section 13.07                          Indemnification
of Agent-Related Persons of the Shared Payment and Collateral Agent.  Whether or not the transactions contemplated
hereby are consummated, each Lender that is not subject to the limitations on
incurrence of indemnification obligations under the United States
Antideficiency Act or any similar law in effect in the jurisdiction of its
formation (each, an “Indemnifying Lender”) agrees to indemnify
upon demand, and hold harmless, the Shared Payment and Collateral Agent and
each other Agent-Related Person related to the Shared Payment and Collateral
Agent from and against any and all Indemnified Liabilities, and such
Agent-Related Persons shall have the right to set off and appropriate and apply
(which set-off right may be exercised on behalf of any such Agent-Related
Person by the Shared Payment and Collateral Agent) from any and all amounts
received by the Shared Payment and Collateral Agent from Borrower and the
Guarantors and payable to the Lenders (whether or not such Lender is an
Indemnifying Lender and without duplication of amounts paid by any


 


73

















 


Indemnifying
Lender hereunder) the amount of such Indemnified Liabilities, in each case
(a) to the extent not reimbursed by or on behalf of any of Borrower or any
Guarantor(and without limiting the obligation of any of Borrower or any
Guarantor to do so) and (b) on a pro rata basis based upon the outstanding
principal amount of such Lender’s Restructured Debt; provided that no
Indemnifying Lender shall be liable for the payment to any such Person of, and
no such Person shall have any such set-off right with respect to, any portion
of the Indemnified Liabilities resulting solely from such Person’s (or any of
its officers’, directors’, employees’, representatives’, attorneys’ or agents’)
gross negligence or willful misconduct as determined pursuant to a final,
non-appealable judgment by a court of competent jurisdiction; provided, however,
that no action taken in accordance with the directions of the required
percentage of Lenders hereunder shall be deemed to constitute gross negligence
or willful misconduct for purposes of this Section 13.07.  Without limitation of the foregoing, each
Indemnifying Lender shall reimburse each of the Shared Payment and Collateral
Agent and each other Agent-Related Person related to the Shared Payment and
Collateral Agent upon demand for, and each such Agent-Related Person shall have
the right to set off and appropriate and apply (which set-off right may be
exercised on behalf of any such Agent-Related Person by the Shared Payment and
Collateral Agent) from any and all amounts received from Borrower and the
Guarantors, the amount of such Lender’s ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by such
Agent-Related Person in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, any Operative Document or any document
contemplated by or referred to therein, to the extent that such Agent-Related
Person is not reimbursed for such expenses by or on behalf of any of Borrower
or any Guarantor.  Each such
Agent-Related Person exercising set-off rights hereunder agrees promptly to
notify the applicable Lenders and the Bank Holders Administrative Agent of any
such set-off and application made by, or by the Shared Payment and Collateral
Agent on behalf of, such Agent-Related Person; provided that the failure
to give such notice shall not affect the validity of such set-off and
application.  The undertakings and
set-off rights in this Section 13.07 shall survive the payment of
all Obligations hereunder and under the Operative Documents, the termination of
the Operative Documents and, as to any relevant Agent-Related Person, the
resignation or replacement of such Agent-Related Person.


 


Section 13.08                          The
Agent-Related Persons of the Shared Payment and Collateral Agent in their
Individual Capacity.  Each of the
Shared Payment and Collateral Agent and each other Agent-Related Person related
to the Shared Payment and Collateral Agent may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with each of Borrower or any Guarantor and their
respective Affiliates as though such Agent-Related Person did not act in such
capacity under the Operative Documents, without notice to or consent of the
Lenders.  The Lenders acknowledge that,
pursuant to such activities, such Agent-Related Persons may receive information
regarding any of Borrower or any Guarantor (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge
that no such Agent-Related Person shall be under any obligation to provide such
information to any Lender.  With respect
to its Restructured Debt, any Lender that also acts as the Shared Payment and
Collateral Agent under the Operative Documents shall have the same rights and
powers under the Operative Documents as any other Lender and may exercise the
same as though it were not the Shared Payment and Collateral Agent thereunder.


 


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Section 13.09                          Resignations;
Successor Agent.  The Shared Payment
and Collateral Agent may upon thirty (30) days’ prior written notice to the
Lenders and the SEN Trustee, and at the request of the Required Lenders shall,
resign as the Shared Payment and Collateral Agent.  If the Shared Payment and Collateral Agent resigns under this Agreement,
the Required Lenders shall appoint from among the Lenders a successor Shared
Payment and Collateral Agent for the Lenders, subject (so long as no Default or
Event of Default is then continuing) to the approval of Borrower, such approval
not to be unreasonably withheld or delayed. 
If no successor Shared Payment and Collateral Agent is appointed prior
to the effective date of the resignation of the Shared Payment and Collateral
Agent, the Shared Payment and Collateral Agent may appoint, after consulting
with the Required Lenders and Borrower, a successor Shared Payment and
Collateral Agent from among the Lenders. 
Upon the acceptance of its appointment as successor Shared Payment and
Collateral Agent hereunder, (a) such successor Shared Payment and Collateral
Agent shall succeed to all the rights (including as to the same fees except as
otherwise agreed by the applicable Persons), powers and duties of the retiring
Shared Payment and Collateral Agent under this Agreement and the other
Operative Documents, (b) the term “Shared Payment and Collateral Agent”
shall mean such successor Shared Payment and Collateral Agent and (c) the
retiring Shared Payment and Collateral Agent’s appointment, rights, powers and
duties as the Shared Payment and Collateral Agent shall be terminated; provided
that the retiring Shared Payment and Collateral Agent’s rights under this Article XIII
and Section 11.01 and Section 11.02 shall survive such
retirement.  After the retiring Shared
Payment and Collateral Agent’s resignation hereunder, this Article XIII
and Section 11.01 and Section 11.02 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Shared Payment and Collateral Agent under the Operative Documents.  If no successor Shared Payment and
Collateral Agent has accepted appointment as the Shared Payment and Collateral
Agent by the date that is thirty (30) days after the retiring Shared
Payment and Collateral Agent’s notice of resignation, the retiring Shared
Payment and Collateral Agent’s resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Shared Payment
and Collateral Agent hereunder until such time, if any, as the Required Lenders
appoint a successor Shared Payment and Collateral Agent as provided for above.


 


Section 13.10                          Agents
May File Proofs of Claim.  In case
of the pendency of any receivership, insolvency, concurso mercantil,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to Borrower or any Guarantor, any Agent
(irrespective of whether the principal of the Restructured Debt shall then be
due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Shared Payment and Collateral Agent or such other
Agent shall have made any demand on Borrower) shall be entitled and empowered
unless otherwise directed by a Lender, by intervention in such proceeding or
otherwise:


 


(a)                                  to
file and prove a claim for the whole amount of the principal and interest owing
and unpaid in respect of the Restructured Debt and all other Obligations that
are owing and unpaid and to file such other documents as may be necessary or
advisable in order to have the claims of the Lenders, the SEN Trustee and the
Agents (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the SEN Trustee and the Agents and
their respective agents and counsel and all other amounts due the Lenders, the
SEN Trustee and the Agents under the Operative Documents) allowed in such
proceeding; and


 


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(b)                                 to
collect and receive any monies or other property payable or deliverable on any
such claims and to distribute the same;


 


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


 


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


 


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


 


Section 13.11                          Collateral
and Guaranty Matters.  The Lenders
and the SEN Trustee irrevocably authorize the Shared Payment and Collateral
Agent, upon its receipt of (x) a request from Borrower and (y) a
certificate of a Responsible Officer of Borrower describing the relevant
transaction and certifying that (1) such transaction complies with the
requirements of this Section 13.11 and (2) all conditions to
such transaction contained in the Operative Documents have been complied with:


 


(a)                                  to
release any Lien on any property granted to or held by the Shared Payment and
Collateral Agent under any Operative Document (other than as provided in Clause
Ninth of the Mexican Security Trust Agreement) (i) upon indefeasible
payment in full in cash of all Obligations (other than contingent
indemnification obligations), (ii) that is sold or to be sold as part of
or in connection with any sale permitted under any Operative Document, or (iii) if
approved, authorized or ratified in writing by the Lenders in accordance with Section 14.01;


 


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


 


(c)                                  to
release any Guarantor from its obligations under the Affiliate Guaranty if such
Person ceases to be a Subsidiary of Borrower as a result of a transaction
permitted under any Operative Document.


 


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


 


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Section 13.12                          Acts
of Lenders, Bank Holders and SEN Holders.


 


(a)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement or any other Operative Document to be given
or taken by the Lenders, the Bank Holders or the SEN Holders, as the case may
be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Lenders, Bank Holders or SEN Holders
in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Shared Payment and Collateral
Agent, the Bank Holders Administrative Agent or the SEN Collateral Agent, as
the case may be, and, where it is hereby expressly required, to Borrower and
the Guarantors.  Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Agreement and the other Operative Documents
and conclusive in favor of the Shared Payment and Collateral Agent, the Bank
Holders Administrative Agent and the SEN Collateral Agent, as the case may be,
and Borrower and the Guarantors, if made in the manner provided in this Section
13.12.


 


(b)                                 The
fact and date of the execution by any Person of any such instrument or writing
may be proved in any reasonable manner that the Shared Payment and Collateral
Agent, the Bank Holders Administrative Agent or the SEN Collateral Agent, as
the case may be, deems sufficient.


 


(c)                                  Any
request, demand, authorization, direction, notice, consent, waiver or other
action by a Lender, Bank Holder or SEN Holder shall bind the holder of every
Note issued upon the transfer of such Lender’s, Bank Holder’s or SEN Holder’s
Notes or in exchange therefor or in lieu thereof, in respect of anything done
or suffered to be done by the Shared Payment and Collateral Agent, the Bank
Holders Administrative Agent or the SEN Collateral Agent, as the case may be,
in reliance thereon, whether or not notation of such action is made upon such
Notes.


 


Section 13.13                          Other
Matters With Respect to Shared Payment and Collateral Agent.


 


(a)                                  No
provision of this Agreement or any other Operative Document (other than as
specifically provided in the fourth sentence of Section 12.08(a))
shall require the Shared Payment and Collateral Agent to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder or thereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.


 


(b)                                 Whether
or not expressly so provided herein or therein, every provision of this
Agreement and the other Operative Documents relating to the conduct or affecting
the liability of or affording protection to the Shared Payment and Collateral
Agent shall be subject to the provisions of this Article XIII.


 


(c)                                  In
each case that the Shared Payment and Collateral Agent may or is required
hereunder or under any other Operative Document to take any action (an “Action”),
including to formulate opinions, to make determinations, to make requests, to
give consents, to exercise


 


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rights,
powers or remedies, to release or sell collateral, to appoint a receiver or
other entity to enforce a security interest or otherwise to act hereunder or
under any other Operative Document, the Shared Payment and Collateral Agent may
seek direction from the Required Lenders. 
The Shared Payment and Collateral Agent shall not be liable with respect
to any Action taken or omitted to be taken by it in good faith in accordance
with the direction of the Required Lenders. 
If the Shared Payment and Collateral Agent shall request direction from the
Required Lenders with respect to any Action, the Shared Payment and Collateral
Agent shall be entitled to refrain from such Action unless and until such
Shared Payment and Collateral Agent shall have received direction from the
Required Lenders, and the Shared Payment and Collateral Agent shall not incur
liability to any Person by reason of so refraining.


 


(d)                                 With
respect to the Bank Holders, the Shared Payment and Collateral Agent shall
rely, and shall be fully protected in relying, upon the most recent Register
(as defined in the Bank Holders Restructured Loan Agreement) delivered to the
Shared Payment and Collateral Agent by the Bank Holders Administrative
Agent.  The Shared Payment and
Collateral Agent may treat the Person in whose name any Bank Holders Note is
registered as the owner of such Bank Holders Note for the purpose of receiving
distributions hereunder and for all other purposes whatsoever, and the Shared
Payment and Collateral Agent shall not be affected by any notice to the
contrary.


 


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


 


Section 13.14                          The
Mexican Security Trust Agreement.


 


(a)                                  The
reasonable fees and expenses of the Advisor (as defined in the Mexican Security
Trust Agreement) shall be paid by Borrower, and the Shared Payment and
Collateral Agent shall have no responsibility or liability therefor, either in
its capacity as Shared Payment and Collateral Agent or in its individual
capacity.


 


(b)                                 Every
Action to be taken by the Shared Payment and Collateral Agent under the Mexican
Security Trust Agreement, including making determinations, making requests,
giving consents, exercising rights, powers or remedies, appointing the Advisor,
approving sales, instituting or canceling foreclosure proceedings or otherwise
acting under the Mexican Security Trust Agreement, shall be taken at the
direction of the Required Lenders.  The
Shared Payment and Collateral Agent shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with such
direction of the Required Lenders.  If
the Shared Payment and Collateral Agent shall request direction from the
Required Lenders with respect to any such action, the Shared Payment and Collateral
Agent shall be entitled to refrain from such action unless and until such
Shared Payment and Collateral Agent shall have received direction from the
Required Lenders, and the Shared Payment and Collateral Agent shall not incur
liability to any Person by reason of so refraining.


 


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ARTICLE XIV

MISCELLANEOUS


 


Section 14.01                          Amendments
and Waivers.


 


(a)                                  Common
Operative Documents.  No amendment,
modification or waiver of any provision of this Agreement or any other Common
Operative Document, and no consent with respect to any departure by Borrower or
any Guarantor therefrom, shall be effective unless the same shall be in writing
and signed by the Super-Majority Lenders (or (x) by the Agent(s) party to the
applicable Common Operative Document or, (y) with respect to the Mexican
Security Trust Agreement, by the Shared Mexican Trustee after receipt of
direction from the Shared Payment and Collateral Agent, in each case at the
written direction of the Super-Majority Lenders) and Borrower and acknowledged
by such Agent, and then any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no such amendment, modification, waiver or consent shall, unless
in writing and signed by Borrower and each Lender negatively affected thereby
and acknowledged by such Agent, (A) postpone or delay any date fixed by this
Agreement or any other Common Operative Document for any payment of principal
(including any such payment of principal occurring in respect of a Prepayment
Event, where such Prepayment Event shall have previously occurred at the time
such amendment, modification, waiver or consent shall be requested), interest,
fees or other amounts due to the Lenders (or any of them) hereunder or under
any other Common Operative Document, (B) reduce the principal of, or the rate
of interest specified herein on, the Restructured Debt or any fees or other
amounts payable hereunder or under any other Common Operative Document
(provided that the consent of the Super-Majority Lenders shall be sufficient to
amend or modify the definition of Default Interest Rate or to waive any
obligation of Borrower to pay interest at the Default Interest Rate) or (C)
release all or substantially all of the Liens (through one or a series of
transactions) under the Collateral Documents, or release any Guarantor from its
obligations under the Affiliate Guaranty, except as expressly permitted by Section
13.11; provided, further, that no such amendment, modification,
waiver or consent shall, unless in writing and signed by all the Lenders and
Borrower and acknowledged by such Agent:


 


(i)                                     change
the percentage of the aggregate unpaid principal amount of the Restructured
Debt that is required for the Lenders or any of them to take any action
hereunder or under any other Common Operative Document or modify the definition
of the term “Super-Majority Lenders”, “Required Lenders”, “Required Bank
Holders”, “Required SEN Holders” or “Required Floating Rate Lenders”; or


 


(ii)                                  amend
or modify Section 8.02 in a manner that would alter the pro-rata sharing
of payments required thereby; or


 


(iii)                               amend or modify this Section
14.01, Section 12.09 or Section 14.09, or any other provision
herein or in any other Common Operative Document providing for consent or other
action by all Lenders, the Super-Majority Lenders, the Required Lenders, the
Required Bank Holders, the Required SEN Holders or the Required Floating Rate
Lenders.


 


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(b)                                 SEN
Holders Operative Documents.  No
supplemental indenture, amendment, modification or waiver of any provision of Section
5.08 or any provision of the Restructured Trust Indenture or any other SEN
Holders Operative Document, and no consent with respect to any departure by
Borrower or any Guarantor therefrom, shall be effective unless the same shall
be in writing and signed by the SEN Trustee (if the SEN Trustee is a party to
such SEN Holders Operative Documents), the Required SEN Holders (or by the Agent(s)
party to the applicable SEN Holders Operative Document at the written direction
of the Required SEN Holders) and Borrower and acknowledged by such Agent, and
then any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however,
that no such amendment, modification, waiver or consent shall, unless in
writing and signed by all the SEN Holders and Borrower and acknowledged by such
Agent, do any of the following:


 


(i)                                     amend
or modify any provision in any SEN Holders Operative Document providing for
consent or other action by all SEN Holders or the Required SEN Holders, or


 


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


 


provided, further, that no
such supplemental indenture, amendment, modification, waiver or consent shall,
unless in writing and signed by the SEN Trustee, do any of the following:


 


(x)                                   amend
or modify any provision in any SEN Holders Operative Document providing for
consent or other action by the SEN Trustee, or


 


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


 


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


 


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the SEN Collateral Agent, (A) impair the right to
institute suit for the enforcement of any payment on or in respect of any Note
(as defined in the Restructured Trust Indenture) or any other SEN Holders
Operative Document or (B) reduce the percentage of aggregate principal amount
of outstanding Notes (as defined in the Restructured Trust Indenture) required
for the adoption of resolutions or the quorum required at any meeting of
Holders (as defined in the Restructured Trust Indenture) at which a resolution
is adopted; and


 


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


 


(c)                                  Bank
Holders Operative Documents.  No
amendment, modification or waiver of any provision of the Bank Holders
Restructured Loan Agreement or any other Bank Holders Operative Document, and
no consent with respect to any departure by Borrower or any Guarantor
therefrom, shall be effective unless the same shall be in writing and signed by
the Required Bank Holders (or by the Agent(s) party to the applicable Bank
Holders Operative Document at the written direction of the Required Bank
Holders) and Borrower and acknowledged by such Agent, and then any such waiver
or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
modification, waiver or consent shall, unless in writing and signed by all the
Bank Holders and Borrower and acknowledged by such Agent, do any of the
following:


 


(i)                                     amend
or modify any provision in any Bank Holders Operative Document providing for
consent or other action by all Bank Holders or the Required Bank Holders, or


 


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


 


provided, however, that no
such amendment, modification, waiver or consent shall, unless in writing and
signed by Borrower, each Guarantor and each Bank Holder negatively affected
thereby, and acknowledged by such Agent(s), (x) postpone or delay any date
fixed by the Bank Holders Restructured Loan Agreement or any other Bank Holders
Operative Document for any payment of principal (including any such payment of
principal occurring in respect of a Prepayment Event, where such Prepayment
Event shall have previously occurred at the time such amendment, modification,
waiver or consent shall be requested), interest, fees or other amounts due to
the Bank Holders (or any of them) thereunder or under any other Bank Holders
Operative Document or (y) reduce the principal amount of, or any rate of
interest specified therein on, the Bank Holders Notes or any fees or other
amounts payable thereunder or under any other Bank Holders Operative Document
(provided that any waiver of any obligation of Borrower to pay interest at the
Default Interest Rate shall be effective and binding on each Bank Holder if
such obligation is waived under the Common Agreement pursuant to Section
14.01(a)); and


 


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


 


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


 


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


 


(f)                                    Evidence
of Compliance.  The Shared Payment
and Collateral Agent shall receive (i) certificates of a Responsible Officer of
each of Borrower and any relevant Guarantors, and (ii) a written direction from
the requisite Lenders to execute such supplemental indenture, amendment,
modification, waiver or consent without the receipt of any additional
documents, including an opinion of counsel, as conclusive evidence that any
supplemental indenture, amendment, modification, waiver or consent executed and
delivered pursuant to this Section 14.01 complies with the
applicable provisions of the relevant Operative Documents.


 


Section 14.02                          Intent
of Parties.  It is the intent of the
parties to the Restructuring that this Agreement is the principal governing
document with respect to the Bank Holders Restructured Loan Agreement, the
Restructured Trust Indenture and the other Operative Documents.  The parties hereto agree that to the extent
that any provision of this Agreement conflicts with any provision of the Bank
Holders Restructured Loan Agreement, the Restructured Trust Indenture or any
other Operative Document, the provisions of this Agreement shall prevail.


 


Section 14.03                          Limitation
of Rights; No Waiver.  Nothing
expressed or implied in this Agreement or any other Operative Document shall
give any Person other than the Agents, Borrower, the Guarantors, the SEN
Trustee and the Lenders any right, remedy or claim under or with respect to
this Agreement or any other Operative Documents.  No failure by any Agent or Lender to exercise, and no delay by
any such Person in exercising, any right, remedy, power or privilege under this
Agreement or any other Operative Document shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under this Agreement or any other Operative Agreement preclude any
other or further exercise thereof or the exercise of any other right, remedy,
power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.


 


Section 14.04                          Effect
of Headings.  The Section headings
and the Table of Contents in this Agreement or any other Operative Document are
for convenience of reference only and shall not affect the construction hereof.


 


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Section 14.05                          Severability
Clause.  If any provision of this
Agreement or the other Operative Documents is held to be illegal, invalid or
unenforceable, (a) the legality, validity and enforceability of the remaining
provisions of this Agreement and the other Operative Documents shall not be
affected or impaired thereby and (b) the parties shall endeavor in good faith
negotiations to replace the illegal, invalid or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to
that of the illegal, invalid or unenforceable provisions.  The invalidity of a provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.


 


Section 14.06                          Currency.


 


(a)                                  If
any expense required to be reimbursed to any Agent, the SEN Trustee or any
Lender pursuant to this Agreement or any other Operative Document is originally
incurred in a currency other than Dollars, Borrower and the Guarantors shall
nonetheless make reimbursement of that expense in Dollars in an amount equal to
the amount in Dollars that would have been required for the Person that
incurred that expense to have purchased, in accordance with normal banking
procedures, the sum paid in such other currency (after any premium and costs of
exchange) on the day that expense was originally incurred.


 


(b)                                 Each
reference in this Agreement and the other Operative Documents to Dollars is of
the essence.  To the fullest extent
permitted by Applicable Law, the obligations of Borrower and the Guarantors in
respect of any amount due under this Agreement and the other Operative Documents
shall, notwithstanding any payment in any other currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in
Dollars that the Person entitled to receive that payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
currency (after any premium and costs of exchange) on the Business Day
immediately following the day on which that Person receives that payment.  If the amount in Dollars that may be so
purchased for any reason falls short of the amount originally due, Borrower and
the Guarantors shall pay such additional amounts, in Dollars, as may be
necessary to compensate for the shortfall and if the Dollars so purchased
exceed the amount originally due, such excess shall be remitted to Borrower or
the applicable Guarantors.  Any
obligation of Borrower or the Guarantors not discharged by that payment shall,
to the extent permitted by Applicable Law, be due, as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.


 


Section 14.07                          GOVERNING
LAW.  THIS AGREEMENT AND THE
OPERATIVE DOCUMENTS (WITH THE EXCEPTION OF (A) THE MEXICAN SECURITY TRUST
AGREEMENT WHICH SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF MEXICO AND (B) THE BANK HOLDERS NOTES WHICH SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK AND THE LAWS OF
MEXICO) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN THE STATE OF NEW YORK; PROVIDED THAT EACH AGENT AND EACH LENDER SHALL
RETAIN ALL RIGHTS ARISING UNDER UNITED STATES FEDERAL LAW.


 


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Section 14.08                          Payments
Set Aside.  To the extent that
Borrower or a Guarantor makes a payment to any Agent, the SEN Trustee or any
Lender, or any Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or otherwise
required (including pursuant to any settlement entered into by such Agent, the
SEN Trustee or such Lender in its discretion) to be repaid to a trustee,
receiver or any other party, in connection with any Insolvency Proceeding or
otherwise, then (a) to the extent of any amounts recovered from such Agent, the
SEN Trustee or such Lender or repaid to a trustee, receiver or other party, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such set-off had not occurred, and (b) each Lender severally agrees to pay to
such Agent upon demand its pro rata share of any amount so recovered
from or repaid by such Agent.


 


Section 14.09                          Set-off.  In addition to any rights and remedies of
the Lenders, the Specified Participants and the Agents provided by law, each of
the Lenders, each of the Specified Participants and each Agent is authorized at
any time and from time to time, following the acceleration of all or any
portion of the Restructured Debt or other Obligations or the written direction
of the Required Lenders, upon the occurrence and during the continuance of an
Event of Default, without prior notice to Borrower or any Guarantor, any such
notice being waived by Borrower and each Guarantor to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Lender or such Agent to or for the
credit or the account of Borrower or any Guarantor against any and all
Obligations owing to such Lender or such Agent, as applicable, now or hereafter
existing, irrespective of whether or not such Agent or such Lender shall have
made demand under this Agreement or any other Operative Document and although
such Obligations may be contingent or unmatured or denominated in a currency
different from that of the applicable deposit or indebtedness; provided,
however, that any such set-off and application shall be subject to the
provisions of Section 12.09. 
Each of the Lenders and each Agent agrees promptly to notify Borrower or
the applicable Guarantor and the Agents after any such set-off and application
made by such Lender or such Agent, as the case may be; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application.


 


Section 14.10                          Notes
Held by Borrower or Affiliates.  For
the purposes of determining whether the holders of the Notes of the requisite
principal amount at the time outstanding have taken any action authorized in
accordance with this Agreement or any other Operative Document with respect to
the giving of consents or approvals or with respect to acceleration, any Notes
owned directly or indirectly by GMM, MM or any Principal Subsidiary or any of
their respective Affiliates shall be disregarded and deemed not to be
outstanding.  In determining whether any
Agent shall be protected in relying on any such action, only Notes that such
Agent knows to be so owned by either GMM, MM or any Principal Subsidiary or
their respective Affiliates thereof shall be disregarded.


 


Section 14.11                          Tax
Treatment.  Borrower and the Guarantors,
each Collateral Agent, and any holder or beneficial owner of a Note by its
acceptance thereof, agree to treat the Notes as direct obligations of MM for
U.S. federal income tax purposes, except to the extent required by law.  Such tax treatment shall in no way affect
the treatment of the transactions contemplated


 


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hereby
under Applicable Law, including the investment laws governing the purchase of
the Notes.


 


Section 14.12                          Disclosure
to Other Persons.  Each of Borrower
and each Guarantor acknowledges that the holder of any Note or any Agent may
deliver copies of any financial statements and other documents delivered to
such holder or Agent, and disclose any other information disclosed to such holder
or Agent, by or on behalf of Borrower or any Guarantor or in connection with or
pursuant to this Agreement or any other Operative Document to (i) such holder’s
or Agent’s directors, officers, employees, agents, investment advisers and
professional consultants, (ii) any other holder of any Note, (iii) any Person
to which such holder offers to sell such Note or any part thereof; provided
that such Person agrees in writing to keep such information confidential to the
same extent required of the Lenders hereunder, (iv) any Person to which such
holder sells or offers to sell a participation in all or any part of such Note;
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Lenders, (v) any federal or
state regulatory authority having, or reasonably claiming to have, jurisdiction
over such holder or Agent or any of their respective Affiliates, (vi) the
National Association of Insurance Commissioners, the Auditor General of Canada,
the National Association of Securities Dealers or any similar organization,
(vii) any other Person to which such delivery or disclosure may be necessary or
appropriate (A) to effect compliance with any law, rule, regulation or order
applicable to such holder or Agent, (B) in response to any subpoena or other
legal process or informal investigative demand, (C) in connection with any
litigation to which such holder or Agent is a party or (D) in order to protect
such holder’s investment in such Note, (viii) in the case of any such holder
that is a Pass-Through Vehicle, to any Pass-through Investors or Pass-through
Sureties with respect to such holder, (ix) any Export Credit Agency, or (x) any
Person in connection with the exercise of remedies by any Agent following an
Event of Default in accordance with this Agreement and the other Operative
Documents.  Each Agent and each holder
of a Note agrees to use its best efforts to hold in confidence and not disclose
any information (other than information that (a) was publicly known or
otherwise known to such Agent or such holder at the time of disclosure (except
pursuant to disclosure pursuant to this Agreement or any other Operative
Documents), (b) subsequently becomes publicly known through no act or omission
by such Agent or such holder or (c) otherwise becomes known to such Agent or
such holder, other than through disclosure by Borrower or any Guarantor)
delivered or made available by or on behalf of Borrower, any Guarantor or to
such Agent or such holder in connection with or pursuant to this Agreement or
any other Operative Document that is clearly marked or labeled as being
confidential information, provided that nothing herein shall prevent any Agent
or the holder of any Note from disclosing such information as provided in the preceding
sentence.  Notwithstanding anything
herein to the contrary, each Agent and each Lender may disclose, without
limitation of any kind, any information with respect to the “tax treatment” and
“tax structure” (in each case, within the meaning of Treasury Regulation
Section 1.6011-4) of the transactions contemplated by the Operative Documents
and all materials of any kind (including opinions or other tax analyses) that
are provided to such Agent or such Lender relating to such tax treatment and
tax structure; provided that with respect to any document or similar item that
in either case contains information concerning the tax treatment or tax
structure of the transactions as well as other information, this sentence shall
only apply to such portions of the document or similar item that relate to the
tax treatment or tax structure of the transactions contemplated by the
Operative Documents.


 


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Section 14.13                          Successors
and Assigns.  The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that neither Borrower nor
any Guarantor may assign or transfer any of its rights or obligations under
this Agreement or any other Operative Document without the prior written
consent of each Agent and each Lender. 
Sales of participations and assignments by the Bank Holders are subject
to Section 9.7 of the Bank Holders Restructured Loan Agreement.  For the avoidance of doubt, MM shall be the
successor to GMM upon the consummation of the Intercompany Payable
Restructuring.


 


Section 14.14                          Notices.


 


(a)                                  Unless
otherwise expressly provided herein, all notices, directions, requests and
other communications provided for hereunder shall be in writing (including by
facsimile transmission).  All such
written notices, directions, requests and other communications shall be mailed,
faxed or delivered, to the applicable address, facsimile number or (subject to
subsection (c) below) electronic mail address (and all notices, directions,
requests and other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number) to the address,
facsimile number, electronic mail address or telephone number specified for
such Person on Schedule 14.14 or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by
such party in a notice to the other parties.


 


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


 


(c)                                  Electronic
mail and Internet and Intranet websites may be used only to distribute routine
communications, and to distribute Operative Documents for execution by the
parties thereto, and may not be used for any other purpose.


 


(d)                                 The
Agents, the SEN Trustee and the Lenders shall be entitled to rely and act upon
any notice, direction, request or other communication believed in good faith by
such Persons to have been given by or on behalf of Borrower or any Guarantor
even if (i) such notice was not made in a manner specified herein, was
incomplete or was not preceded or followed by any other form of notice,
direction, request or other communication specified herein, or (ii) the terms
thereof, as understood by the recipient, varied from any confirmation
thereof.  Borrower or any Guarantor
shall indemnify each Agent and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such Person in good faith on each
notice, direction, request or other communication purportedly given by or on
behalf of Borrower or any Guarantor. 
All telephonic notices, directions and requests to and other
communications with an Agent may be recorded by such Agent or any other party
to such communication, and each of the parties hereto hereby consents to such
recording.


 


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


 


Section 14.16                          No
Third Parties Benefited.  This
Agreement is made and entered into for the sole protection and legal benefit of
Borrower, the Guarantors, the SEN Trustee, the Lenders and the Agents, and
their permitted successors and assigns, and no other Person shall be a direct
or indirect legal beneficiary of, or have any direct or indirect cause of
action or claim in connection with, this Agreement or any of the other
Operative Documents.


 


Section 14.17                          Waiver
of Immunity.  Each of Borrower and
the Guarantors acknowledges that the execution and performance of this
Agreement, the Notes and the other Operative Documents is a commercial activity
and to the extent that it has 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 (whether service or notice, attachment prior to
judgment, attachment in aid of execution of a judgment, execution of a judgment
or otherwise) with respect to itself or any of its property, whether or not
held for its own account, it hereby irrevocably and unconditionally waives and
agrees not to plead or claim such immunity in respect of its obligations under
this Agreement, the Notes and each of the other Operative Documents.  Without limiting the foregoing, Borrower and
each Guarantor agrees that the foregoing waiver shall be to the fullest extent
permitted under the Foreign Sovereign Immunities Act of 1976 of the United
States and is intended to be irrevocable for the purposes of such Act.


 


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


 


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


 


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


 


87

















 


Section 10.02,
and the obligations of the Lenders under Section 13.07, shall
survive the repayment of the Restructured Debt, the termination of the
Operative Documents, the resignation of any Agent, the repayment of the
Obligations and, in the case of any Lender that may assign any interest in its
portion of the Restructured Debt hereunder, shall survive the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
“Lender” hereunder.  In addition, each
representation and warranty made herein or in any other Operative Document or
pursuant hereto or thereto shall survive the making of such representation and
warranty.  Such representations and
warranties have been or will be relied upon by the Agents, the SEN Trustee and
each Lender, regardless of any investigation made by the Agents, the SEN
Trustee or any Lender or on their behalf. 
None of the Lenders, the SEN Trustee and the Agents shall be deemed to
have waived, by reason of its execution hereof, any Default or Event of Default
that may arise by reason of such representation or warranty proving to have
been false or misleading, notwithstanding that such Lender, the SEN Trustee or
such Agent may have had notice or knowledge or reason to believe that such representation
or warranty was false or misleading at the time of its execution hereof.


 


Section 14.20                          Waiver
of Jury Trial.  BORROWER, THE
GUARANTORS, THE LENDERS, THE SEN TRUSTEE AND THE AGENTS EACH EXPRESSLY WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER OPERATIVE DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING. 
BORROWER, THE GUARANTORS, THE LENDERS, THE SEN TRUSTEE AND THE AGENTS
EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT
TRIAL WITHOUT A JURY.  WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM
OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY
OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF.  THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER OPERATIVE DOCUMENTS.


 


Section 14.21                          GM
Guaranty.  By its signature hereto,
each Agent and each Lender acknowledges receipt of a copy of the GM Guaranty
and acknowledges and agrees that no such Person (unless it is a GM Guaranty
Beneficiary) is a third-party beneficiary of such agreement (other than to the
extent provided in Section 6.2(b) and Section 6.11
thereof) and agrees that no GM Guaranty Beneficiary shall be required to first
pursue any right or remedy under or in respect of the GM Guaranty prior to any
right or remedy available to it hereunder or in respect of the Shared
Collateral.  For the avoidance of doubt,
each Lender party hereto that is a GM Guaranty Beneficiary agrees that it shall
not permit any amendment to or waiver of, or provide any consent with respect
to, the GM Guaranty to become effective if such amendment, waiver or consent
would require the prior written consent of the Super-Majority Lenders pursuant
to


 


88

















 


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


 


Section 14.22                          Consent
to Jurisdiction; Process Agent.  Any
action or proceeding relating in any way to this Agreement, any other Operative
Document (other than the Mexican Security Trust Agreement and the Bank Holders
Notes) or the GM Guaranty shall be brought and enforced in the Federal courts
of the United States for the Southern District of New York or in any court of
the State of New York, and each of Borrower, each Guarantor, each Lender, the
SEN Trustee and each Agent irrevocably submits to the exclusive jurisdiction of
each such court in respect of any such action or proceeding. Borrower and each
Guarantor hereby irrevocably appoints CT Corporation System (the “Process
Agent”), with an office on the date hereof at 111 Eighth Avenue,
13th Floor, New York, New York 10011, U.S.A., as its agent to receive on its
behalf service of copies of the summons and complaint and any other process
that may be served in any action or proceeding brought in any New York state or
federal court.  Such service may be made
by mailing by certified mail or delivering a copy of such process to Borrower
or any Guarantor, in care of the Process Agent at the address specified above
for the Process Agent, and Borrower and each Guarantor hereby irrevocably
authorizes and directs the Process Agent to accept such service on its behalf.  Borrower and each Guarantor also irrevocably
consents to such service upon it by the mailing by certified mail of copies
thereof by U.S. airmail to its address set forth in Schedule 14.14.  So long as Borrower or any Guarantor has any
obligation under this Agreement, any other Operative Document or the GM
Guaranty, it will maintain a duly appointed agent in New York City for the
service of such process or summons. 
Nothing herein shall affect the right of any party to serve process in
any other manner permitted by law; provided, however, that the
Federal courts for the Southern District of New York and the courts of the
State of New York in the County of New York shall have exclusive jurisdiction
over any action or proceeding relating in any way to this Agreement, any other
Operative Document (other than the Mexican Security Trust Agreement and the
Bank Holders Notes) or the GM Guaranty in which any relief (including money
damages) is sought to be obtained from either the SEN Collateral Agent or the
Shared Payment and Collateral Agent; and provided, further, that
the foregoing shall not prevent resolution of disputes arising under the
Mexican Security Trust Agreement in accordance with the terms of the Mexican
Security Trust Agreement or the filing of any claims under the Bank Holders Notes
as provided therein.  The parties hereto
agree that a final judgment in any such suit, action, or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or in any other manner provided by law. 
The parties hereto irrevocably waive, to the fullest extent permitted by
Applicable Law, (i) any objection that any party may now or hereafter have to
the laying of venue of any action or proceeding with respect to the Operative
Documents (other than the Mexican Security Trust Agreement and the Bank Holders
Notes) or the GM Guaranty in the Federal Courts of the United States for the
Southern District of New York, or the Supreme Court of the State of New York,
County of New York, (ii) any claim that any such action or proceeding brought
in any such court has been brought in an inconvenient forum and (iii) their
rights to bring an action or proceeding in any other jurisdiction to which they
might be entitled.  Borrower and each
Guarantor hereby also irrevocably waives, to the fullest extent permitted by
law, the right to demand that any Agent, the SEN Trustee or any Lender post a
performance bond or guaranty in any action or proceeding initiated against
Borrower or any Guarantor.


 


89

















 


Section 14.23                          GM
Note Purchases.  Notwithstanding
anything to the contrary herein or in any other Operative Document (including Section 9.7
of the Bank Holders Restructured Loan Agreement), GM has the right pursuant to
the GM Guaranty, at any time and from time to time, to purchase all or a
portion of the Guaranteed Loans (as defined in the GM Guaranty).  A GM Guaranty Beneficiary shall only be
allowed to consummate a transaction to sell all or any portion of the
Guaranteed Loans held by it to GM, and such right may only be exercised by GM,
upon satisfaction of the following conditions precedent:  (a) none of the consideration paid therefor
shall consist of (i) any assets of MM or any of its Subsidiaries or the
proceeds thereof, (ii) the proceeds of any Restricted Payment made by MM or any
of its Subsidiaries to GM or (iii) any portion of the $25,000,000 cash equity
contributions to be received after the date hereof by GM from Empresarios
Industriales de México, S.A. de C.V., the controlling shareholder of GM (the “Controlling
Shareholder”), or from any other parties entitled to exercise their
statutory preemptive rights to purchase their pro rata shares of any new
Capital Stock of GM, in each case to the extent such cash equity contributions
are made in connection with the Controlling Shareholder’s performance of its
undertaking to subscribe for $25,000,000 of equity capital of GM as set forth
in that certain letter agreement dated March 31, 2003 between the Controlling
Shareholder and JPMorgan Chase Bank, as administrative agent under that certain
Credit Agreement, dated March 26, 2003, among, inter alia, certain
financial institutions as lenders thereunder, certain of the Ferromex Entities
(as defined in the GM Guaranty) and JPMorgan Chase Bank, as administrative
agent; (b) such purchase shall be effected pursuant to an assignment and
assumption substantially in the form of Exhibit C to the Bank Holders
Restructured Loan Agreement; (c) GM, Borrower and the Guarantors shall have
duly executed and delivered to the Shared Payment and Collateral Agent, with
copies to each other Agent and each Lender, a subordination agreement
substantially in the form of Exhibit 14.23 (the “Subordination
Agreement”); (d) GM shall have caused its New York and Mexican legal
counsel to deliver to each Agent and each Lender favorable opinions addressed
to the Agents and the Lenders, in form and substance satisfactory to Approving
Counsel; (e) no Default or Event of Default shall have occurred and be then
continuing; (f) all licenses, authorizations and permits of any Governmental
Authority (including Hacienda) and all consents and approvals
of any Governmental Authority or third party, in each case as may be required
(i) to consummate such purchase or (ii) for GM, Borrower and the Guarantors to
enter into and perform the Subordination Agreement, shall have been obtained
and be in full force and effect; (g) the execution, delivery and performance by
GM, Borrower and each Guarantor of the Subordination Agreement and the
consummation by GM of such purchase shall have been duly authorized by all
necessary corporate action and shall not (i) contravene the terms of any such
Person’s Organizational Documents, (ii) conflict with or result in any breach
or contravention of, or the creation of any Lien under, any document evidencing
any Contractual Obligation to which any such Person is a party (including the
Yankee Bond Indenture), or any order, injunction, writ or decree of any
Governmental Authority to which any such Person or its property is subject or
(iii) violate any Applicable Law; and (h) a Responsible Officer of GM shall
have delivered a certificate to each Agent, each Lender and each GM Guaranty
Beneficiary certifying to the satisfaction of the conditions set forth in subsections
(a), (b), (e), (f) and (g) of this Section 14.23;
provided that each Agent, each Lender and each GM Guaranty Beneficiary
shall be entitled to rely on such certificate as to the satisfaction of the
conditions set forth in such subsections and shall not have any obligation or
duty to ascertain the satisfaction thereof prior to such purchase (other than
(x) in the case of the Shared Payment and Collateral Agent, the


 


90

















 


certification
relating to subsection (e) of this Section 14.23 if Borrower
shall have notified the Shared Payment and Collateral Agent prior to such
purchase that a Default or an Event of Default has occurred and (y) in the case
of any GM Guaranty Beneficiary, the certification relating to such subsection
(e) if Borrower or the Shared Payment and Collateral Agent shall have
notified the GM Agent, each GM Guaranty Beneficiary, each Agent and each other
Lender prior to such purchase that a Default or an Event of Default has
occurred).


 


Section 14.24                          Rights
Relating to GM Notes.


 


(a)                                  Notwithstanding
anything to the contrary herein or in any other Operative Document, for the
purposes of determining whether (i) Lenders holding Notes of the requisite
principal amount at any time outstanding, (ii) each of the Lenders or (iii) all
of the Lenders, in any such case, have taken any action with respect to the
making, granting or giving of any amendment, waiver, consent, approval or
direction or the taking of any other action under this Agreement or any other
Operative Document, all GM Notes shall be disregarded and deemed not to be
outstanding and no holder of any GM Note shall be deemed to be a Lender; provided,
however, that any Lender holding both GM Notes and other Notes shall be
deemed to be a Lender with respect to such other Notes (but not with respect to
such GM Notes).  In determining if any
Agent shall be protected in relying on any such action, only Notes that such
Agent knows to be GM Notes shall be disregarded and deemed not to be
outstanding.


 


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


 


[SIGNATURE PAGES FOLLOW]


 


91

















 


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


 


	
   

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

  as Company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  



 


92

















 


	
   

  	
  MINERA MEXICO
  INTERNACIONAL, INC.

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MINERA DE COBRE,
  S.A. DE C.V.

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MINERALES
  METALICOS DEL NORTE, S.A. DE C.V.

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  



 


93

















 


	
   

  	
  MEXICANA DE
  CANANEA, S.A. DE C.V.

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEXICANA DEL
  ARCO, S.A. DE C.V.

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MINERALES Y
  MINAS MEXICANAS, S.A. DE C.V.

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  



 


94

















 


	
   

  	
  COMPANIA DE
  TERRENOS E INVERSIONES

  DE SAN LUIS POTOSI, SOCIEDAD CIVIL

  PORT ACCIONES, S.A.,

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEXICO COMPANIA
  INMOBILIARIA S.A.,

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PROYECCIONES
  URBANISTICAS, S. DE R.L. DE C.V.,

  as Guarantor and Principal Subsidiary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Tellechea Salido

  
	
   

  	
   

  	
  Name:

  	
  Daniel Tellechea
  Salido

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. Eduardo González Félix

  
	
   

  	
   

  	
  Name:

  	
  J. Eduardo
  González Félix

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact

  



 


95

















 


	
   

  	
  HSBC BANK USA,

  as Shared Payment and Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Harriet Drandoff

  
	
   

  	
   

  	
  Name:

  	
  Harriet Drandoff

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HSBC BANK USA,

  as SEN Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Harriet Drandoff

  
	
   

  	
   

  	
  Name:

  	
  Harriet Drandoff

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA,
  N.A.,

  as Bank Holders Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Robert Rittelmeyer

  
	
   

  	
   

  	
  Name:

  	
  Robert
  Rittelmeyer

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NEW
  YORK, not in its individual

  capacity but solely as trustee of GRUPO MEXICO

  EXPORT MASTER TRUST NO. 1,

  as SEN Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Janie Kim Choi

  
	
   

  	
   

  	
  Name:

  	
  Janie Kim Choi

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


96

















 


	
   

  	
  COMMONWEALTH OF
  PENNSYLVANIA

  STATE EMPLOYEE’S RETIREMENT SYSTEM,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Stacey P. Agretelis

  
	
   

  	
   

  	
  Name:

  	
  Stacey P.
  Agretelis

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN HANCOCK
  VARIABLE LIFE INSURANCE COMPANY,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Stacey P. Agretelis

  
	
   

  	
   

  	
  Name:

  	
  Stacey P.
  Agretelis

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JOHN HANCOCK
  LIFE INSURANCE COMPANY,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Stacey P. Agretelis

  
	
   

  	
   

  	
  Name:

  	
  Stacey P.
  Agretelis

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MELLON BANK, N.A., soley in its capacity as

  Trustee for the Bell Atlantic Master Trust (as

  directed by John Hancock Life Insurance

  Company), and not in its individual capacity,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Carole
  Bruno

  
	
   

  	
   

  	
  Name:

  	
  Carole Bruno

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The decision to
  participate in the investment, any representations made herein by the
  participant, and any actions taken hereunder by the participant has/have been
  made solely at the direction of the investment fiduciary who has sole
  investment discretion with respect to this investment.

  



 


97

















 


	
   

  	
  MELLON BANK, N.A., soley in its capacity as

  Trustee for the Long-Term Investment Trust (as

  directed by John Hancock Life Insurance

  Company), and not in its individual capacity,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Carole
  Bruno

  
	
   

  	
   

  	
  Name:

  	
  Carole Bruno

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  The decision to
  participate in the investment, any representations made herein by the
  participant, and any actions taken hereunder by the participant has/have been
  made solely at the direction of the investment fiduciary who has sole
  investment discretion with respect to this investment.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GRUPO MEXICO SERIES E PASS THROUGH TRUST,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  HSBC Bank USA,

  
	
   

  	
   

  	
  solely as Pass Through Trustee and not in its
  individual capacity

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Harriet
  Drandoff

  
	
   

  	
   

  	
  Name:

  	
  Harriet Drandoff

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE PRUDENTIAL
  INSURANCE COMPANY OF AMERICA,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Paul G. Price

  
	
   

  	
   

  	
  Name:

  	
  Paul G. Price

  
	
   

  	
   

  	
  Title:

  	
  Authorized
  Signatory

  



 


98

















 


	
   

  	
  TEACHERS INSURANCE
  AND ANNUITY

  ASSOCIATION OF AMERICA,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Ho Young Lee

  
	
   

  	
   

  	
  Name:

  	
  Ho Young Lee

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
  Special
  Situations

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TEACHERS
  INSURANCE AND ANNUITY

  ASSOCIATION OF AMERICA,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Ho Young Lee

  
	
   

  	
   

  	
  Name:

  	
  Ho Young Lee

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  	
   

  	
  Special
  Situations

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NYLIM STRATFORD
  CDO 2001-1,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
  By:

  	
  New York Life
  Investment

  Management LLC, Its Investment Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/  Edward J. Fitzgerald

  
	
   

  	
   

  	
   

  	
  Name:

  	
  Edward J.
  Fitzgerald

  
	
   

  	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEW YORK LIFE
  INSURANCE COMPANY,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Edward J. Fitzgerald

  
	
   

  	
   

  	
  Name:

  	
  Edward J.
  Fitzgerald

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


99

















 


	
   

  	
  CONNECTICUT
  GENERAL LIFE INSURANCE COMPANY;

  LIFE INSURANCE COMPANY OF NORTH AMERICA,

  as SEN Holders

  
	
   

  	
   

  
	
   

  	
  Severally By:
  CIGNA Investments, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Stephen A. Osborn

  
	
   

  	
   

  	
  Name:

  	
  Stephen A.
  Osborn

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ACE AMERICAN REINSURANCE
  COMPANY,

  as SEN Holder

  
	
   

  	
  By:

  	
  Columbia
  Management Advisers, Inc.,

  as agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Richard A. Hegwood

  
	
   

  	
   

  	
  Name:

  	
  Richard A.
  Hegwood

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE LINCOLN
  NATIONAL LIFE INSURANCE COMPANY,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Delaware
  Investment Advisers, a Series of Delaware Management Business Trust,
  Attorney-In-Fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Charles M. Devereux

  
	
   

  	
   

  	
  Name:

  	
  Charles M.
  Devereux

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


100

















 


	
   

  	
  SOUTHLAND LIFE
  INSURANCE COMPANY;

  LIFE INSURANCE COMPANY OF GEORGIA;

  SECURITY LIFE OF DENVER INSURANCE COMPANY,

  as SEN Holders

  
	
   

  	
   

  
	
   

  	
  Severally By:

  	
  ING Investment
  Management LLC,

  as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Fred C. Smith

  
	
   

  	
   

  	
  Name:

  	
  Fred C. Smith

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  METROPOLITAN
  LIFE INSURANCE COMPANY,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Jacqueline D. Jenkins

  
	
   

  	
   

  	
  Name:

  	
  Jacqueline D.
  Jenkins

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PACIFIC LIFE
  INSURANCE COMPANY,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Ronn C. Conelius

  
	
   

  	
   

  	
  Name:

  	
  Ronn C. Conelius

  
	
   

  	
   

  	
  Title:

  	
  Assistant Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Samuel Tang

  
	
   

  	
   

  	
  Name:

  	
  Samuel Tang

  
	
   

  	
   

  	
  Title:

  	
  Assistant
  Secretary

  
					



 


101

















 


	
   

  	
  LUCENT
  TECHNOLOGIES INC. MASTER PENSION TRUST,

  as SEN Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  John Hancock
  Life Insurance Company,

  
	
   

  	
   

  	
  as Investment
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Stacey P. Agretelis

  
	
   

  	
   

  	
  Name:

  	
  Stacey P.
  Agretelis

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  JPMORGAN CHAS ,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Manochere Alamgir

  
	
   

  	
   

  	
  Name:

  	
  Manochere Alamgir

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE BANK OF NOVA
  SCOTIA,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  David Konarek

  
	
   

  	
   

  	
  Name:

  	
  David Konarek

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director & Industry Head - Mining

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Michael K. Eddy

  
	
   

  	
   

  	
  Name:

  	
  Micha K. Eddy

  
	
   

  	
   

  	
  Title:

  	
  Director –Mining

  



 


102

















 


	
   

  	
  DEUTSCHE BANK AG
  NEW YORK BRANCH

  AND/OR CAYMAN ISLANDS BRANCH,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Alan Delsman

  
	
   

  	
   

  	
  Name:

  	
  Alan Delsman

  
	
   

  	
   

  	
  Title:

  	
  Chief Credit
  Officer, Manager

  
	
   

  	
   

  	
  Date:

  	
  April 28, 2003

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DEUTSCHE BANK AG
  NEW YORK BRANCH

  AND/OR CAYMAN ISLANDS BRANCH,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  C.H.

  
	
   

  	
   

  	
  Name:  

  	
  C.H.

  
	
   

  	
   

  	
  Title:  

  	
  Vice President

  



 


	
  for and on behalf of

  HSBC BANK plc as Bank Holder

  	
   

  
	
   

  	
   

  
	
  /s/  A.P.
  Wilkinson 

  	
   

  	
   

  	
  /s/  R.K.
  Sandhu  

  
	
  Name

  	
  A.P. Wilkinson

  	
  Name:

  	
  R.K. Sandhu

  
	
  Title:

  	
  Head of Emerging Markets

  	
  Title:

  	
  Assistant Manager, Emerging Markets

  
						



 


	
   

  	
  BNP PARIBAS, NEW
  YORK BRANCH, as Bank

  Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Pierre-Joseph Costa

  
	
   

  	
   

  	
  Name:

  	
  Pierre-Joseph
  Costa

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Vincent Aniort

  
	
   

  	
   

  	
  Name:

  	
  Vincent Aniort

  
	
   

  	
   

  	
  Title:

  	
  Director

  



 


103

















 


	
   

  	
  ROYAL BANK OF
  CANADA,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Rizwan Ahmed

  
	
   

  	
   

  	
  Name:

  	
  Rizwan Ahmed

  
	
   

  	
   

  	
  Title:

  	
  Senior Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DRESDNER BANK
  AG, NEW YORK AND

  GRAND CAYMAN BRANCHES,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Phillip J. Glass

  
	
   

  	
   

  	
  Name:

  	
  Phillip J. Glass

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Sanjeev Malhotra

  
	
   

  	
   

  	
  Name:

  	
  Sanjeev Malhotra

  
	
   

  	
   

  	
  Title:

  	
  Associate

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANCO NACIONAL
  DE COMERCIO

  EXTERIOR, S.N.C.,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Nicolas Eduardo Contla Gonzalez

  
	
   

  	
   

  	
  Name:

  	
  Nicolas Eduardo
  Contla Gonzalez

  
	
   

  	
   

  	
  Title:

  	
  Director
  Regional de Promocion de

  Credit Centro

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Emigdio Sanchez Gomez

  
	
   

  	
   

  	
  Name:

  	
  Emigdio Sanchez
  Gomez

  
	
   

  	
   

  	
  Title:

  	
  Gerente Juridico
  Regional Queretaro

  



 


104

















 


	
   

  	
  BANK OF AMERICA,
  N.A.,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Orlando J. Loera

  
	
   

  	
   

  	
  Name:

  	
  Orlando J. Loera

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA,
  N.A.,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Gustavo Muñiz

  
	
   

  	
   

  	
  Name:

  	
  Gustavo Muñiz(1)

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANCO INBURSA,
  S.A., INSTITUCION DE

  BANCA MULTIPLE, GRUPO FINANCIERO

  INBURSA.,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Luis Frias Humphrey

  
	
   

  	
   

  	
  Name:

  	
  Luis Frias
  Humphrey

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EXPORT
  DEVELOPMENT CANADA,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Sean Mitchell

  
	
   

  	
   

  	
  Name:

  	
  Sean Mitchell

  
	
   

  	
   

  	
  Title:

  	
  Manager, Special
  Risks

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Vito Di Turi CA

  
	
   

  	
   

  	
  Name:

  	
  Vito Di Turi CA

  
	
   

  	
   

  	
  Title:

  	
  Asset Manager

  



 












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


 


105

















 


	
   

  	
  WESTLB AG, NEW
  YORK BRANCH,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Salvatore Battinelli

  
	
   

  	
   

  	
  Name:

  	
  Salvatore
  Battinelli

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Daniel Hitchcock

  
	
   

  	
   

  	
  Name:

  	
  Daniel Hitchcock

  
	
   

  	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WESTLB AG,
  LONDON BRANCH,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
  Executive
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  J. K. Gray

  
	
   

  	
   

  	
  Name:

  	
  J. K. Gray

  
	
   

  	
   

  	
  Title:

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SIEMENS
  FINANCIAL SERVICES GMBH,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Miguel Schmidt

  
	
   

  	
   

  	
  Name:

  	
  Miguel Schmidt

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Schiffers

  
	
   

  	
   

  	
  Name:

  	
  Schiffers

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  



 


106

















 


	
   

  	
  SOCIÉTÉ GÉNÉRALE
  ACTING BY AND

  THROUGH ITS NEW YORK BRANCH,

  as Bank Holder

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Phillips Lee

  
	
   

  	
   

  	
  Name:

  	
  Phillips Lee

  
	
   

  	
   

  	
  Title:

  	
  Managing
  Director

  



 


107

















 


Appendix A

To

Common Agreement, dated as of April 29, 2003


 


 


UNIFORM
DEFINITIONS AND RULES OF INTERPRETATION


 


A. Interpretation.  In
each Operative Document and each appendix, schedule or exhibit thereto, unless
a clear contrary intention appears:


 


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


 


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


 


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


 


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


 


(v) reference to any law (including any Applicable Law) means such law
as amended, modified, codified, replaced or reenacted, in whole or in part, and
in effect from time to time, including rules and regulations promulgated
thereunder, and reference to any section or other provision of any law means
that provision of such law from time to time in effect and constituting the
substantive amendment, modification, codification, replacement or reenactment
of such section or other provision;


 


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


 


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


 


(viii) headings are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision thereof;


 


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


 


(x) “or” is not exclusive;


 


108

















 


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


 


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


 


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


 


B.            Accounting Terms.  In each Operative Document, unless expressly
otherwise provided, accounting terms shall be construed and interpreted, and
accounting determinations and computations shall be made, in accordance with
Mexican GAAP.


 


C.            Determination of
Currency Rate.  Except as
specifically provided in Section 14.06 of the Common Agreement (or
any similar provision in any other Operative Document), any financial covenant
or other provision of such Operative Document that requires the combination of
Dollars, Pesos and/or any other currency shall be determined in Dollars
applying the exchange rate in effect with respect to the respective currencies
(without consideration of any fees or other charges applicable should any such
conversion actually be made) as most recently published by Banco de México in
the Diario
Oficial de la Federación as the Tipo de cambio para solventar obligaciones
denominadas en moneda extranjera pagaderas dentro de la República Mexicana
(it being understood that any such determination to be made as of an earlier
date shall be determined by applying such exchange rate most recently published
on or before such earlier date); provided that the exchange rate used in
connection with the preparation of any income statement or other financial
statement that, unlike a balance sheet, is based upon events throughout a
financial reporting period shall be calculated in accordance with Mexican GAAP,
using the average of the exchange rates so published by Banco de México
throughout the applicable fiscal quarter or other period; provided, further,
that should any such exchange rate not be so published by Banco de México, then
the applicable exchange rate shall be the official Mexican government exchange
rate as of the date of the most recent publication of such rate by Banco de
México (or such other competent Governmental Authority) in the Diario
Oficial de la Federación or such other means that may be utilized to
publish such rate, and such official Mexican government exchange rate is
intended to replace the Tipo de cambio para solventar obligaciones
denominadas en moneda extranjera pagaderas dentro de la República Mexicana;
and provided, further, that if such replacement Mexican
government rate is also not available, then the applicable exchange rate shall
be the rate reasonably determined by the Shared Payment and Collateral Agent to
be the rate customarily used in the international financial markets as the
appropriate exchange rate for such type of currency conversion.


 


D.            Conflict in
Operative Documents.  If there is
any conflict between any Operative Documents, such Operative Documents shall be
interpreted and construed, if possible, so as to avoid or minimize such
conflict but, to the extent (and only to the extent) the Common Agreement is
one of the Operative Documents that is the subject of such conflict, the Common
Agreement shall prevail and control.


 


E.             Legal
Representation of the Parties.  The
Operative Documents were negotiated by the parties with the benefit of legal
representation and any rule of construction or 


 


109

















 


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


 


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


 


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


 


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


 


“Acknowledgement
Percentage” has the meaning set forth in Section 4.03(b) of the Common
Agreement.


 


“Accreted
PIK Balance” means, as of any date of determination, the aggregate
amount of PIK Interest that has accrued in all Interest Periods ending prior to
such date.


 


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


 


“Additional
Amount” has the meaning set forth in Section 12.01(b)(i) of
the Common Agreement.


 


“Adjusted
Working Capital” means, for any fiscal quarter, an amount equal to
(a) the Net Working Capital as of the end of such fiscal quarter less
(b) the sum of (i) the amount of any prepayments to the Lenders required as a
result of a Metal Price Prepayment Event or an Early Asset Sale Prepayment
Event or an Asset Disposition Prepayment Event (to the extent such amounts were
not previously paid in such fiscal quarter), (ii) any Excess Cash Flow for such
fiscal quarter, to the extent it is greater than zero and (iii) Excess
Cumulative Asset Sale Net Available Proceeds for such fiscal quarter plus
(c) the sum of (i) an amount equal to (x) Capital Expenditures made by Borrower
or any consolidated Subsidiary during such period less (y) the amount
determined in accordance with clause (b)(i) of the definition of Excess Cash
Flow and (ii) an amount equal to (x) Capitalized Stripping during such period less
(y) the amount determined in accordance with clause (b)(ii) of the definition
of Excess Cash Flow.


 


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


 


110

















 


“Affiliate
Guaranty” means the guaranty executed and delivered by the Guarantors
pursuant to Section 2.01(h)(i) or Section 4.19(a) of the Common
Agreement (and for the avoidance of doubt, does not for the purposes of any
Operative Document include the GM Guaranty).


 


“Affirmative
Covenant” has the meaning set forth in the preamble to Article IV
of the Common Agreement.


 


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


 


“Agent-Related
Person” means any Agent and any successor or replacement agent
thereof, together with their respective Affiliates, and the officers,
directors, employees, agents, attorneys, consultants, and attorneys-in-fact of
such Persons and Affiliates; provided that for purposes of Article
XIII of the Common Agreement, the term “Agent-Related Person” means the Shared
Payment and Collateral Agent and any successor or replacement agent thereof,
together with their respective Affiliates, and the officers, directors,
employees, agents, attorneys, consultants and attorneys-in-fact of such Persons
and Affiliates.


 


“Allocated
Excess Cash Flow I” has the meaning set forth in Section
8.01(c)(i) of the Common Agreement.


 


“Allocated
Excess Cash Flow II” has the meaning set forth in Section
8.01(c)(ii) of the Common Agreement.


 


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


 


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


 


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


 


“Applicable
Margin” means (i) with respect to the calculation of interest on any
LIBOR Loan, 375 basis points and (ii) with respect to the calculation of
interest on any Fixed Rate Loan, 0 basis points.


 


“Approving
Counsel” means New York and Mexican legal counsel to the Bank
Holders Administrative Agent and to the SEN Holders.


 


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


 


“Asset
Disposition” means the sale, lease, conveyance, transfer or other
disposition of any asset or property (including any of the Capital Stock of any
Subsidiary) or interest therein (other than Liens) by MM or any of its
Subsidiaries to any Person other than Borrower or a Guarantor, or an agreement
to do any of the foregoing; provided that Asset 


 


111

















 


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


 


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


 


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


 


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


 


“Attorney
Costs” means and includes all reasonable and documented fees and
disbursements of any law firm or other external counsel, the allocated cost of
internal legal services and all reasonable and documented disbursements of
internal counsel.


 


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


 


“Avoided
Sales” has the meaning set forth in Section 5.06 of the
Common Agreement.


 


“Bank
Holders” has the meaning set forth in the preamble of the Common
Agreement, and for the avoidance of doubt shall mean only those Persons that
hold Bank Holders Notes from time to time.


 


“Bank
Holders Administrative Agent” has the meaning set forth in the
preamble of the Common Agreement.


 


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


 


112

















 


“Bank
Holders Operative Documents” means the Bank Holders Restructured
Loan Agreement and the Bank Holders Notes.


 


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


 


“Bank
Holders Restructured Principal” has the meaning set forth in the
Bank Holders Restructured Loan Agreement.


 


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


 


“Base
Net Intercompany Account Balance Total” has the meaning set forth in
Section 5.10 of the Common Agreement.


 


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


 


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


 


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


 


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


 


“Capital
Expenditures” means, for any period, all expenditures of Borrower
and its Subsidiaries for fixed or capital assets made during such period that
would be classified as capital expenditures in accordance with Mexican GAAP.


 


“Capital
Lease” means, with respect to any Person, any lease of (or agreement
conveying the right to use) real or personal property, required to be
classified and accounted for as a capital lease on a balance sheet of such
Person in accordance with Mexican GAAP.


 


“Capital
Stock” means any and all shares, interests, participations, rights
or other equivalents (however designated) of capital stock (including common or
preferred stock) or other 


 


113

















 


equity participation rights or interests, including
partnership interests, whether general or limited, fixed or variable capital of
a sociedad
anónima, membership or limited liability company interests in a
limited liability company and any rights, warrants or options to acquire such
capital stock or other equity participation rights or interests.


 


“Capitalized
Stripping” means, for any period, all expenditures of Borrower and
its Subsidiaries for stripping made during such period that would be classified
as capitalized stripping in accordance with Mexican GAAP and the definition of
capitalized stripping used in the Updated Projections.


 


“Cash
Flow Prepayment Amount” has the meaning set forth in Section
8.01(c) of the Common Agreement.


 


“Cash
Flow Prepayment Event” has the meaning set forth in Section
8.01(c) of the Common Agreement.


 


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


 


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


 


“CEO
Report” means a report, signed by the chief executive officer of GM,
substantially in the form of Exhibit 4.05(c)(ii) of the Common
Agreement.


 


“Change
of Control” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the U.S. Securities Exchange Act of 1934 and the rules of the SEC
thereunder as in effect on the Closing Date) (other than by the Larrea Family
(as defined below) or, in the case of MM, by GM or AMC), of shares representing
50% or more of the aggregate ordinary voting power represented by the issued
and outstanding capital stock of GM or MM; (b) occupation of a majority of the
seats (other than vacant seats) on the board of directors of GM or MM by
Persons who were neither (i) nominated by the Larrea Family (or, in the case of
MM, by GM or AMC) nor (ii) appointed by directors so nominated; (c) prior to
the date of the Intercompany Payable Restructuring, the failure of MM to
beneficially own (within the meaning of Rule 13d-3 under the U.S. Securities
Exchange Act of 1934), directly or indirectly, at least 51% of the issued and
outstanding shares of voting stock of GMM; (d) the failure of AMC to
beneficially own (within the meaning of Rule 13d-3 under the U.S. Securities Exchange
Act of 1934), directly or indirectly, at least 51% of the issued and
outstanding shares of voting stock of MM; (e) the failure of Borrower to
beneficially own, directly or indirectly, at least 51% of the issued and
outstanding shares of voting stock of any Principal Subsidiary; (f) the failure
of GM to have the 


 


114

















 


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


 


“Closing
Date” means the date on which all of the conditions precedent set
forth in Section 2.01 of the Common Agreement shall have been satisfied
(or deemed satisfied) or waived.


 


“Code”
means the Internal Revenue Code of 1986, and regulations promulgated
thereunder.


 


“Collateral
Agents” means, collectively, the Shared Payment and Collateral
Agent, the SEN Collateral Agent and the Shared Mexican Trustee.


 


“Collateral
Documents” means the U.S. Security Agreement, the SEN Security
Agreement, the Mexican Security Trust Agreement, the Trust Acceptance Letter,
the Shared Collateral Control Agreement, the Affiliate Guaranty and all Uniform
Commercial Code financing statements or any similar perfection or transfer of
ownership documents to be filed in any applicable jurisdiction relating to any
of the foregoing.


 


“Collection
Accounts” has the meaning set forth in the SEN Security Agreement.


 


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


 


“Common
Operative Documents” means the Operative Documents (other than the
SEN Holders Operative Documents and the Bank Holders Operative Documents).


 


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


 


“Contingent
Obligation” means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse:
(a) with respect to any Indebtedness, lease, dividend, letter of credit or
other obligation (the “primary obligation”) of another Person (the “primary
obligor”), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire any such primary obligation or any security therefor, (ii)
to advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a “Guaranty Obligation”); (b)


 


115

















 


with respect to any Surety Instrument issued for the
account of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments; (c) to purchase any materials, supplies
or other property from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation requires that payment
for such materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or other
property is ever made or tendered, or such services are ever performed or
tendered; or (d) in respect of any Swap Contract. The amount of any Contingent
Obligation shall, in the case of any Guaranty Obligation, be deemed equal to
the stated or determinable amount of the primary obligation in respect of which
such Guaranty Obligation is made if such Guaranty Obligation is in respect of
the total stated or determinable amount thereof, or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof, and in the case of any other Contingent Obligation other than in
respect of Swap Contracts, shall be equal to the maximum reasonably anticipated
liability in respect thereof and, in the case of Contingent Obligations in
respect of Swap Contracts, shall be equal to the Swap Termination Value, as
defined in any Swap Contract.  Anything
contained herein to the contrary notwithstanding, Contingent Obligations shall
not include endorsements for collection or deposit in the ordinary course of
business.


 


“Contract”
means any Domestic Contract or Export Contract.


 


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


 


“Controlling
Shareholder” has the meaning set forth in Section 14.23 of
the Common Agreement.


 


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


 


“Current
Assets” means, at any time of determination, the sum of the account
balances of each of (a) the Unrestricted Cash of Borrower and its consolidated
Subsidiaries, (b) trade accounts receivable of Borrower and its consolidated
Subsidiaries, (c) the inventories of materials, supplies, secondary metals and
by-products owned by Borrower and its consolidated Subsidiaries, (d) refundable
taxes owed to Borrower and its consolidated Subsidiaries and (e) prepaid
expenses of Borrower and its consolidated Subsidiaries.


 


“Current
Cash Interest” means interest accruing prior to the Closing Date
pursuant to the terms of the Existing Bank Agreements and the Existing SEN
Agreements, in each case calculated at the current cash pay rates (including
any applicable default rates) set forth therein.


 


“Current
Liabilities” means, at any time of determination, the sum of the
account balances of (a) all amounts noted under the heading “Suppliers” in the
most recent 


 


116

















 


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


 


“Customer
Notice and Acknowledgement” has the meaning set forth in the SEN
Security Agreement.


 


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


 


“Debt
Coverage Ratio” has the meaning set forth in Section 6.03 of the
Common Agreement.


 


“Debt
Service Reserve Account” has the meaning set forth in the Original
Trust Indenture.


 


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


 


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


 


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


 


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


 


“Early
Asset Sale Debt Amortization Amount” means, for any period, the
amount by which the actual cumulative amount of the Net Available Proceeds from
all Asset Dispositions of Scheduled Assets consummated after the Closing Date
exceeds $81 million through the end of such period, less the total of all
previous payments of Early Asset Sale Debt Amortization Amounts and less all
prepayments made pursuant to Section 8.01(e) of the Common Agreement.


 


“Early
Asset Sale Debt Prepayment Amount” has the meaning set forth in Section
8.01(d) of the Common Agreement.


 


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


 


117

















 


“EBITDA”
means, during any period, (a) the consolidated income from operations of
Borrower and its consolidated Subsidiaries for such period determined in
accordance with Mexican GAAP plus (b) depreciation of fixed or capital assets
and amortization of intangibles and leasehold improvements of Borrower and its
consolidated Subsidiaries for such period plus (c) other non-cash items
included in the calculation of such consolidated income from operations, as set
forth in Exhibit 6.


 


“Economic
Effective Date” means December 12, 2002.


 


“Enron
Obligations” means the obligations of Mexcobre pursuant to the
various promissory notes dated June 27, 2001 made by Mexcobre in favor of Enron
Trading Limited.


 


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


 


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


 


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


 


“Event
of Default” has the meaning set forth in Section 9.01 of the
Common Agreement.


 


“Excess
Cash Flow” means, for any period, EBITDA of Borrower and its
consolidated Subsidiaries:


 


(a)           plus each of the following:


 


(i)            any
Net Available Proceeds from any Asset Disposition that are not included in
EBITDA; and


 


(ii)           interest
earned on cash or cash equivalents,


 


(b)           minus, to the extent
previously paid in cash by Borrower or any consolidated Subsidiary, each of the
following:


 


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


 


118

















 


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


 


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


 


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


 


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


 


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


 


(vi)          income
taxes paid (or plus taxes recovered) by Borrower or such consolidated
Subsidiaries for such period;


 


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


 


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


 


(ix)           withholding
taxes assessed against Borrower or such consolidated Subsidiaries for such
period;


 


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


 


119

















 


(xi)           expenses
of Borrower or such consolidated Subsidiaries for such period relating to the
Restructuring incurred on or prior to the Closing Date and ongoing monitoring
expenses with respect thereto;


 


(c)           minus
Borrower’s share of amounts in respect of the Metal Price Prepayment Event for
such period.


 


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


 


“Existing
Bank Agreements” means each of the existing credit facilities to which
Borrower or any Guarantor is a party with any Bank Holder, which facilities are
listed in the Bank Holders Restructured Loan Agreement.


 


“Existing
SEN Agreements” means each of the existing credit facilities to
which Borrower or any Guarantor is a party with any SEN Holder, the SEN
Trustee, or the SEN Collateral Agent, which facilities are listed in the
Restructured Trust Indenture.


 


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


 


“Export
Credit Agency” means the Export-Import Bank of the United States and
any other export credit agency that has guaranteed debt under the Existing Bank
Agreements.


 


“Export
Receivables” means any and all accounts receivable arising from
Export Sales.


 


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


 


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


 


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


 


120

















 


on such transactions on the next preceding Business
Day as so published on the next succeeding Business Day, and (b) if no such rate
is so published on such next succeeding Business 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 to the Shared Payment and Collateral
Agent on such day on such transactions as determined by the Shared Payment and
Collateral Agent.


 


“Final
Adjusted Working Capital” means, for any fiscal quarter, the sum of
(a) the Adjusted Working Capital for such fiscal quarter plus (b) that
portion of the Excess Cash Flow for such fiscal quarter that Borrower is not
required to pay to the Shared Payment and Collateral Agent for the benefit of
the Lenders in accordance with Section 8.01(c) of the Common Agreement.


 


“Financial
Advisor” means FTI Consulting, Inc. or such other financial advisor
as may be designated by the Shared Payment and Collateral Agent at the
direction of the Required Lenders and with the consent of Borrower, which
consent may not be unreasonably withheld.


 


“Financial
Advisor’s Fee Cap” means, with respect to the duties to be performed
by the Financial Advisor from the Closing Date to and including the first
anniversary of the Closing Date, as described in the Operative Documents,
$350,000.00.


 


“Financial
Covenants” has the meaning set forth in the preamble to Article
VI of the Common Agreement.


 


“Fixed
Rate Loan” means, with respect to the Restructured Debt, any
Restructured Debt bearing interest at all times at a fixed rate of interest.


 


“Floating
Rate Lender” means any Lender holding one or more LIBOR Loans.


 


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


 


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


 


“General
Security” means (a) the assets subject to the grant of a security
interest under the U.S. Security Agreement and (b) the assets assigned to the
Shared Mexican Trustee under the Mexican Security Trust Agreement.


 


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


 


“GM
Agent” has the meaning set forth in the GM Guaranty.


 


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


 


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


 


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


 


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


 


“Governmental
Authority” means any nation or government, any state or other
political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to a
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.


 


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


 


“Hacienda”
means the Secretaria
de Hacienda y Crédito Público (the Ministry of Finance of Mexico).


 


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


 


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


 


“Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with Mexican GAAP:


 


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


 


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


 


(c)           net obligations of
such Person under any Swap Contract;


 


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


 


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


 


(f)            Capital Leases and
Synthetic Lease Obligations; and


 


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


 


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


 


“Indemnified
Liabilities” has the meaning set forth in Section 11.01 of
the Common Agreement.


 


“Indemnified
Person” has the meaning set forth in Section 11.01 of the
Common Agreement.


 


“Indemnifying
Lender” has the meaning set forth in Section 13.07 of the
Common Agreement.


 


“Independent
Auditor” has the meaning set forth in Section 4.05(d)(i) of
the Common Agreement.


 


“Infonavit”
means the Instituto
del Fondo Nacional de la Vivienda para los Trabajadores (National
Worker’s Housing Fund Institute).


 


“Insolvency
Proceeding” means, with respect to any Person, (a) any case, action
or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, concurso mercantil,
reorganization, insolvency, custodianship, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the benefit
of creditors, composition or marshalling of assets for creditors, or (c) any
other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors undertaken under federal, state or foreign
law, including the Ley de Concursos Mercantiles and the
Bankruptcy Code.


 


“Insurance
Proceeds” has the meaning set forth in Section 4.10(d) of the
Common Agreement.


 


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


 


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


 


“Intercompany
Payable” means the intercompany obligation payable by MM to GMM and
Mexcobre, which obligation as of March 31, 2003 was $870,304,872.95.


 


“Intercompany
Payable Restructuring” means, collectively, the following series of
actions taken or to be taken in the following order:  (a) the declaration by GMM of a 


 


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


 


“Intercompany
Payable Restructuring Documents” means all of the documents relating
to the consummation of the Intercompany Payable Restructuring, each of which
shall be in form and substance satisfactory to the Approving Counsel; provided
that the Assumption Agreement and the form of merger agreement attached as Exhibit
4.06(a) to the Common Agreement are deemed to be approved.


 


“Intercompany
Payable Restructuring Opinions” means favorable legal opinions to be
delivered in connection with the Intercompany Payable Restructuring, each dated
as of the date of the closing of the Intercompany Payable Restructuring, from
such counsel acceptable to the Approving Counsel and as to such matters as the
Approving Counsel may reasonably request; provided that the form of opinion of
New York counsel to GM included in Exhibit 4.06(a) to the Common
Agreement is deemed to be approved.


 


“Interest
Coverage Ratio” has the meaning set forth in Section 6.02 of
the Common Agreement.


 


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


 


“Interim
Funding Period” means the period from the Economic Effective Date to
the Closing Date.


 


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


 


124

















 


from another Person subject to an understanding or
agreement, contingent or otherwise, to resell such property to such Person),
but excluding any such advance, loan or extension of credit having a term not
exceeding 90 days representing the purchase price of inventory or supplies sold
by such Person in the ordinary course of business; or (c) the entering into of
any Swap Contract.


 


“Investment
Account” has the meaning set forth in the Restructured Trust
Indenture.


 


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


 


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


 


“Lending
Office” means, as to any Lender, the office or offices of such
Lender specified as its “Lending Office” on Schedule 14.14 to the Common
Agreement, or such other office or offices as such Lender may from time to time
notify Borrower and the Agents.


 


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


 


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


 


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


 


“London”
means London, England.


 


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


 


“Maturity
Date” means the earliest of (i) the Scheduled Maturity Date, (ii)
the date of any accelerated maturity pursuant to Article IX of the
Common Agreement and (iii) the first date that all Restructured Principal has
been indefeasibly paid in full in cash.


 


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


 


“Merger”
means the merger of GMM with and into MM, with MM being the surviving
corporation.


 


“Metal
Price Prepayment Amount” has the meaning set forth in Section
8.01(b) of the Common Agreement.


 


“Metal
Price Prepayment Event” has the meaning set forth in Section
8.01(b) of the Common Agreement.


 


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


 


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


 


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


 


“Mexican
GAAP” means, as of any date of determination, generally accepted
accounting principles that are applicable in Mexico as of the date of
determination.


 


“Mexican
Income Tax Law” means the Mexican Ley del Impuesto Sobre la Renta.


 


“Mexican
Security Trust Agreement” means the Irrevocable Security Trust
Agreement dated April 29, 2003, by and among GMM, MM, each Principal
Subsidiary, AMC and the Shared Mexican Trustee.


 


“Mexico”
means the United Mexican States (Estados Unidos Mexicanos).


 


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


 


“Minimal
Nominal Period Capital Expenditures” means: (a) for any period
ending after December 31, 2003, the higher of (i) 25% of the Scheduled Capital
Expenditures for 


 


126

















 


the fiscal year during which the calculation is being
made and (ii) the actual Capital Expenditures during such period (other than
Capital Expenditures to the extent financed with proceeds of any Permitted
Indebtedness); and (b) for fiscal year 2003, the Capital Expenditures during
such period.


 


“Minimal
Nominal Period Capitalized Stripping” means: (a) for any period
ending after December 31, 2003, the higher of (i) 25% of the Scheduled
Capitalized Stripping for the fiscal year during which the calculation is being
made and (ii) the actual Capitalized Stripping during such period; and (b) for
fiscal year 2003, the Capitalized Stripping during such period.


 


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


 


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


 


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


 


“Monthly
Payment Date” means (i) (A) the twenty-fifth (25th) day of the month
in which the Closing Date occurs, or (B) if the Closing Date occurs on or after
the twenty-fifth (25th) day of a month, the twenty-fifth (25th) day of the next
succeeding month, (ii) thereafter the twenty-fifth (25th) day of each month
ending prior to the Maturity Date and (iii) the Maturity Date; provided
that if any such day is not a Business Day, then such Monthly Payment Date
shall be the immediately succeeding Business Day; and provided, further,
that from and subsequent to the Maturity Date, Monthly Payment Dates shall be
determined in accordance with Section 8.04(b) of the Common
Agreement.


 


“Moody’s”
means Moody’s Investor Services, Inc.


 


“Negative
Covenant” has the meaning set forth in the preamble to Article V
of the Common Agreement.


 


“Net
Available Proceeds” means, with respect to any Asset Disposition by
any Person, the aggregate amount of all cash or readily marketable cash
equivalents received (including by way of sale or discounting of a note,
installment receivable or other receivable, as and when received, but excluding
any other consideration received in the form of an assumption by the acquiree
of indebtedness or other obligations relating to the properties or assets that
were the subject of such Asset Disposition) in respect thereof by such Person,
net of (i) all legal, title and recording tax expenses, commissions and other
fees and expenses incurred and all federal, state, provincial, foreign and
local taxes required to be accrued as a liability as a consequence of such
Asset Disposition, (ii) all payments made by such Person or any of its
Subsidiaries on any Permitted Indebtedness that is secured by the assets that
were the subject of such Asset Disposition in accordance with the terms of any
Lien that is a Permitted Lien upon or with respect to such assets or which must
by the terms of such Lien, or in order to obtain a necessary consent to such
Asset Disposition or by Applicable Law, be repaid out of the proceeds from such
Asset Disposition and (iii) appropriate amounts to be provided by such Person
or any Subsidiary thereof, as the case may be, as a reserve in accordance with
Mexican GAAP against any liabilities associated with such assets and retained
by such Person or any Subsidiary thereof, as the case may be, after such Asset
Disposition, in each case as determined by the chief executive 


 


127

















 


officer or the chief financial officer of Borrower,
with such determination evidenced by a certificate of such officer delivered to
the Lenders.


 


“Net
Capitalization” means, as of the end of any fiscal quarter of
Borrower and its consolidated Subsidiaries, the total value of Borrower’s
stockholder’s equity, as presented in the balance sheet of Borrower and its
consolidated Subsidiaries as of such date, calculated in accordance with
Mexican GAAP, and, prior to the Intercompany Payable Restructuring, less (a)
the asset titled, “Minera Mexico, S.A. de C.V. (holding company)” as presented
in such balance sheet, and (b) the asset titled, “Current: Notes and Accounts
Receivable – Affiliated Companies” as presented in such balance sheet.


 


“Net
Working Capital” means the result of Current Assets minus Current
Liabilities.


 


“New
York City” means the City of New York, State of New York, United
States.


 


“New
Bank Holders Notes” mean the notes issued by MM on the date of the
closing of the Intercompany Payable Restructuring in replacement of the Bank
Holders Notes issued by GMM pursuant to the Bank Holders Restructured Loan
Agreement, which replacement notes shall also have been executed por aval
by each of the Guarantors and, in the case of any such replacement note issued
in replacement of a Specified Note (as defined in the GM Guaranty), by GM.


 


“New
SEN Trustee Notes” mean the notes issued by MM on the date of the
closing of the Intercompany Payable Restructuring in replacement of the SEN
Trustee Notes issued pursuant to the Restructured Trust Indenture and
designated therein as “Borrower Notes”.


 


“Notes”
means, collectively, the SEN Trustee Notes, the SEN Holders Notes and the Bank
Holders Notes.


 


“Obligations”
means all debts, liabilities, obligations, covenants and duties, including for
principal, fees, interest (including before and after judgment and during any
Insolvency Proceeding, including at the rate specified in Section 8.04(b)
of the Common Agreement), indemnities and all other amounts, in each case
arising under any Operative Document and owed by Borrower or any Guarantor to
any Lender, the SEN Trustee, any Agent or any Indemnified Person, whether
direct or indirect (including those acquired by assignment), absolute or
contingent, due or to become due, now existing or hereafter arising.


 


“Operative
Documents” means the following (for the avoidance of doubt, the term
“Operative Documents” does not include the GM Guaranty):


 


(a)           the Common
Agreement;


 


(b)           the Restructured
Trust Indenture;


 


(c)           the Trust Agreement;


 


128

















 


(d)           the Bank Holders
Restructured Loan Agreement;


 


(e)           each Note;


 


(f)            the Collateral
Documents;


 


(g)           all documents
required to be delivered by MM and GMM to the Agents in connection with the
Intercompany Payable Restructuring; and


 


(h)           the Subordination
Agreement.


 


“Organizational
Documents” means (i) with respect to any corporation, the estatutos
sociales, the certificate or articles of incorporation, the bylaws,
any certificate of determination or instrument relating to the rights of
preferred shareholders of such corporation, any shareholder rights agreement,
and all applicable resolutions of the shareholders or the board of directors
(or any committee thereof) of such corporation and (ii) with respect to any
other entity, as applicable to such type of entity, its certificate of
formation or limited liability company certificate, limited liability company
agreement, memorandum and articles of association, partnership agreement or
similar constitutive documents and including all agreements, voting trusts and
similar arrangements with or among the holders of such Person’s Capital Stock
or other equity.


 


“Original
Collection Accounts” shall mean the “Collection Accounts” as defined
in the Original Trust Indenture.


 


“Original
Trust Indenture” means the Trust Indenture, Security Agreement and
Guaranty dated as of November 20, 1995, by and among the SEN Trust, Mexico
Desarrollo Industrial Minero, S.A. de C.V., IMMSA, MMI, Mexcobre, Mimenosa,
Mexcananea and Chemical Bank, as collateral agent.


 


“Pass-through
Investor” means any holder of a certificate of beneficial interest
in a Pass-through Vehicle.


 


“Pass-through
Surety” means any Person providing credit enhancement, for the
benefit of a Pass-through Vehicle holding one or more SEN Holders Notes or for
the benefit of the related Pass-through Investors, in respect of such SEN
Holders Notes.


 


“Pass-through
Vehicle” means any entity that is a SEN Holder and was formed to
hold SEN Holders Notes and credit enhancement contracts in respect thereof.


 


“Payment
Office” means, with respect to any Agent, the address of such Agent
for payments as set forth on Schedule 14.14 to the Common Agreement or
such other address as such Agent may from time to time specify to Borrower, the
other Agents and the Lenders.


 


“Percentage
Calculation Date” has the meaning set forth in Section 4.03(b)
of the Common Agreement.


 


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“Permitted
Indebtedness” shall mean (a) all Restructured Debt, (b) Indebtedness
(i) evidencing the deferred purchase price of newly acquired items of equipment
to be used in the ordinary business operations of Borrower or any Guarantor or
their respective Subsidiaries, (ii) incurred to finance the acquisition of
items of equipment of Borrower or any Guarantor or their respective
Subsidiaries (pursuant to purchase money mortgages or otherwise, whether owed
to the seller or a third party; provided that such items of equipment
may not be encumbered with any Lien other than a Permitted Lien) or (iii)
arising under any Surety Instrument issued by a Pass-through Surety, for the
benefit of a Pass-through Vehicle holding one or more SEN Holders Notes or for
the benefit of the related Pass-through Investors, in respect of such SEN
Holders Notes, (c) other unsecured intercompany Indebtedness incurred in the
ordinary course of business between Borrower and its Subsidiaries or between
Borrower’s Subsidiaries and (d) other unsecured Indebtedness incurred in the
ordinary course of business.


 


“Permitted Investments” means:


 


(a)           for Permitted
Investments denominated in Dollars:


 


(i)            direct
obligations of, or obligations, the principal of and interest on which are
unconditionally guaranteed by, the United States (or by any agency thereof to
the extent such obligations are backed by the full faith and credit of the
United States), in each case maturing within one year from the date of
acquisition thereof,


 


(ii)           investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States of America or any State thereof that has a combined capital and surplus
and undivided profits of not less than $250,000,000; and


 


(iii)          fully
collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (i) of this definition and entered into with a
financial institution satisfying the criteria described in clause (iii) of this
definition; and


 


(b)           for
Permitted Investments denominated in Pesos or Dollars:


 


(i)            direct
obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, Mexico (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of Mexico) so long as
the Dollar denominated short-term unsecured debt obligations of Mexico are
rated “investment grade” by each of S&P and Moody’s, in each case maturing
within one year from the date of acquisition thereof;


 


(ii)           investments
in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of such acquisition, the highest credit rating
obtainable from S&P or from Moody’s; and


 


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(iii)          investments
in certificates of deposit, banker’s acceptances and time deposits maturing
within 180 days from the date of acquisition thereof issued or guaranteed by,
and deposit accounts issued or offered by, Scotiabank Inverlat, Banco Nacional
de Mexico, S.A. (“Banamex”) or BBVA Bancomer, S.A. (“Bancomer”) and so long as,
in the case of any such investment issued or offered by Banamex or Bancomer,
the Dollar denominated short-term unsecured debt obligations of such
institution are rated “investment grade” by each of S&P and Moody’s.


 


“Permitted
Liens” has the meaning set forth in Section 5.01 of the
Common Agreement.


 


“Permitted
Swap Obligations” means all obligations (contingent or otherwise) of
Borrower and the Guarantors existing or arising under Swap Contracts; provided
that each of the following criteria is satisfied: (a) such obligations are (or
were) entered into by such Person in the ordinary course of business primarily
for the purpose of mitigating risks associated with liabilities, commitments or
assets held or reasonably anticipated by such Person and not for purposes of
speculation or taking a “market view” and (b) such Swap Contracts do not
contain any provision equivalent to Section 6(e)(i)(1) or (2) of the 1992
Master Agreement (Multicurrency-Cross Border) in the form published by the
International Swap Dealers Association, Inc.


 


“Person”
means an individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture, other entity or Governmental Authority.


 


“Pesos”
or “P$”
means the lawful money of Mexico.


 


“PIK
Interest” means (a) non-cash interest that accrues at the PIK
Interest Rate and commences accruing on the Economic Effective Date on the
outstanding SEN Series C Restructured Principal and (b) additional non-cash
interest that accrues at the rate of 11.01% per annum on the Accreted PIK
Balance and commences accruing on April 30, 2003.


 


“PIK
Interest Rate” means a rate of 0.75% per annum.


 


“Prepayment
Event” means the occurrence of (i) a Working Capital Prepayment
Event, (ii) a Metal Price Prepayment Event, (iii) a Cash Flow Prepayment Event,
(iv) an Early Asset Sale Debt Prepayment Event or (v) an Asset Disposition
Prepayment Event.


 


“Primary
Accounts” means all primary Mexican, U.S. and other bank accounts of
Borrower and the Guarantors (other than accounts constituting SEN Collateral),
each of which accounts in existence as of the Closing Date is listed in Schedule
A-1 to the Common Agreement.


 


“Prime
Rate” means, for any day, the rate that the Shared Payment and
Collateral Agent announces from time to time at its principal office in New
York City as its prime lending rate for Dollar loans in effect as of such day.


 


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“Principal
Subsidiary” means each of IMMSA, MMI, Mexcobre, Mimenosa,
Mexcananea, Mexarco, MMM, TISLP, MCI, PU and any other direct or indirect
Subsidiary of Borrower whose net worth, on a non-consolidated basis in
accordance with Mexican GAAP, exceeds $1,000,000 at any time or whose net
revenues (other than revenues from MM and its Subsidiaries), on a
non-consolidated basis in accordance with Mexican GAAP, exceeds $3,000,000 in
any fiscal year.


 


“Process
Agent” has the meaning set forth in Section 14.22 of the
Common Agreement.


 


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


 


“Public
Utility Holding Company Act” means the Public Utility Holding
Company Act of 1935.


 


“Receivables”
means accounts, receivables, chattel paper, instruments, documents or
intangibles evidencing or relating to the right to payment of money.


 


“Required
Bank Holders” means, at any time, Bank Holders holding more than 50%
of the then aggregate outstanding principal amount of the Restructured Debt
held by the Bank Holders.


 


“Required
Floating Rate Lenders” means, at any time, Floating Rate Lenders
then holding more than 50% of the then aggregate outstanding principal amount
of all LIBOR Loans.


 


“Required
Lenders” means, at any time, Lenders holding more than 50% of the
then aggregate outstanding principal amount of the Restructured Principal
voting as a single class; provided, however, that during any
period when (a) cash is being trapped by the SEN Collateral Agent (other than
solely as a result of cash trapping pursuant to the terms of Section 4.03(b)
of the Common Agreement) in accordance with Section 7.01(b) of the
Common Agreement following an Event of Default and (b) the Restructured Debt
has not been accelerated, the term “Required Lenders” shall, for purposes of
(and only for purposes of) (i) Sections 8.04, 10.01, 13.04,
13.09, 13.11, 13.13, 13.14 and 14.09 of the
Common Agreement and (ii) the Subordination Agreement, mean the Required Bank
Holders.


 


“Required
SEN Holders” means, at any time, the SEN Holders then holding more
than 50% of the then aggregate outstanding principal amount of the Restructured
Debt held by the SEN Holders (other than the Tranche C Restructured Debt and
any PIK Interest).


 


“Responsible
Officer” means, (a) with respect to any Person other than the SEN
Trustee, the chief executive officer or the president of such Person, or any
other officer having substantially the same authority and responsibility; or,
with respect to compliance with financial covenants, the chief financial
officer or the treasurer of such Person, or any other officer having
substantially the same authority and responsibility and (b) with respect to the
SEN Trustee, any officer within the corporate trust department of the SEN
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the SEN
Trustee who customarily performs functions similar to those performed by the
Persons 


 


132

















 


who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such Person’s
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the Operative Documents to which the SEN Trustee is a
party.


 


“Restricted
Payment” means the declaration or payment of any dividend on, or the
making of any payment or distribution on account of, or the setting apart of
assets for a sinking or other analogous fund for the purchase, redemption,
defeasance, retirement or other acquisition of, any class of Capital Stock of
Borrower, any Guarantor or any of their respective Subsidiaries, or any
warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding, or the making of any other distribution in respect
thereof, either directly or indirectly, whether in cash or property,
obligations of Borrower, any Guarantor or any of their respective Subsidiaries
or otherwise.


 


“Restructured
Debt” means, collectively, the Tranche A Restructured Debt, the
Tranche B Restructured Debt and the Tranche C Restructured Debt.


 


“Restructured
Debt Payment Schedule” means the payment schedule set forth as Schedule
4.01(b) to the Common Agreement.


 


“Restructured
Principal” means, collectively, the Tranche A Restructured Debt and
the Tranche B Principal Amount.


 


“Reuters
Screen LIBOR Page” means the display designated as page “LIBOR” on
the Reuters Monitor Money Rates service or such other page as may replace the
“LIBOR” page of that service for the purpose of displaying LIBOR rates of major
banks.


 


“Restructured
Trust Indenture” means that certain Amended and Restated Trust
Indenture dated as of April 29, 2003, by and among the SEN Trustee, GMM and the
SEN Collateral Agent.


 


“Restructuring”
means the restructuring of the Existing Bank Agreements and the Existing SEN
Agreements under the Operative Documents.


 


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


 


“Scheduled
Assets” means those assets described in Schedule A-2 the
Common Agreement.


 


“Scheduled
Capitalized Expenditures” means, as of any date, the applicable
amount set forth on Schedule 5.11 to the Common Agreement.


 


“Scheduled
Capitalized Stripping” means , as of any date, the applicable amount
set forth on Schedule 5.11 to the Common Agreement.


 


“Scheduled
Maturity Date” means March 31, 2007.


 


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“Scotiabank
Unpaid Default Interest” means the excess of (x) $588,888 over (y)
the excess of (1) the interest actually paid in cash to The Bank of Nova Scotia
in respect of the loan made and held by it under the Existing Bank Agreements
during the Interim Funding Period (which interest accrued thereon at a per
annum rate equal to the LIBOR Rate plus 425 basis points) over (2) the amount
of interest that would have accrued on such loan had the interest rate
applicable to such loan been reduced on the Economic Effective Date to the
LIBOR Rate plus 375 basis points per annum.


 


“SEC”
means the U.S. Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.


 


“SEN
Cash Trapping Arrangement” has the meaning set forth in Section 7.01(b)
of the Common Agreement.


 


“SEN
Closing Date Contribution” means an amount equal to (a) the
aggregate amount of all funds held in the Original Collection Accounts and the
Debt Service Reserve Account on the Closing Date prior to the closing of the
transactions contemplated by the Operative Documents minus (b) the sum of (1)
the SEN Interest Reserve Account Required Balance as of the Closing Date, (2)
the aggregate amount necessary to pay, in full, the fees and expenses of the
SEN Holders incurred in connection with the transactions contemplated by the
Operative Documents as provided in Section 2.01(u) of the Common
Agreement, and (3) the aggregate amount necessary to pay any accrued and unpaid
Current Cash Interest to any of the SEN Holders on the Closing Date.


 


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


 


“SEN
Collateral Agent” has the meaning set forth in the preamble of the
Common Agreement.


 


“SEN
Contribution” means, collectively, (a) the SEN Interim Contribution
and (b) the SEN Closing Date Contribution.


 


“SEN
Holders” has the meaning set forth in the preamble of the Common
Agreement, and for the avoidance of doubt shall mean only those Persons that
hold SEN Holders Notes from time to time.


 


“SEN
Holders Notes” means the notes issued by the SEN Trustee pursuant to
the terms of the Restructured Trust Indenture, and designated therein as the
“Secured Notes”.


 


“SEN
Holders Operative Documents” means the Restructured Trust Indenture,
the SEN Trustee Notes, the SEN Holders Notes, the SEN Security Agreement, the
Trust Agreement and any other document relating specifically to the SEN
Collateral, and for the avoidance of doubt shall not include the Common
Agreement and the Mexican Security Trust Agreement.


 


“SEN
Holders Restructured Principal” means that portion of the
Restructured Principal held by the SEN Holders.


 


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“SEN
Interest Reserve Account” has the meaning set forth in the SEN
Security Agreement.


 


“SEN
Interest Reserve Account Required Balance” means, as of the Closing
Date or any Monthly Payment Date, the aggregate amount of Cash Interest
scheduled to come due in respect of the Tranche A Restructured Debt held by SEN
Holders and the Tranche B Restructured Debt held by SEN Holders during the
three (3) next succeeding months, calculated as if the applicable interest
rates on such Restructured Debt in effect on the Closing Date or such Monthly
Payment Date, as the case may be, will remain in effect throughout such
three-month period; provided, however, that with respect to the
three (3) month period prior to the Scheduled Maturity Date, such amount shall
exclude Cash Interest payable with respect to PIK Interest on the Scheduled
Maturity Date.


 


“SEN
Interim Contribution” means an amount equal to $38,800,000.


 


“SEN
Make-Whole Amount” means an amount due to holders of SEN Series C
Restructured Principal or holders of SEN Series D Restructured Principal
pursuant to Section 7.01(f) or Section 7.01(g) of the Common
Agreement.


 


“SEN
Security Agreement” means that certain SEN Security Agreement dated
as of April 29, 2003, by and among GMM, MM, the Principal Subsidiaries, the SEN
Trustee and the SEN Collateral Agent.


 


“SEN
Series C Restructured Principal” has the meaning set forth in the
Restructured Trust Indenture.


 


“SEN
Series D Restructured Principal” has the meaning set forth in the
Restructured Trust Indenture.


 


“SEN
Series E Restructured Principal” has the meaning set forth in the
Restructured Trust Indenture.


 


“SEN
Series E Cash Interest Rate” shall mean the LIBOR Rate plus
the Applicable Margin.


 


“SEN
Trust” has the meaning set forth in the preamble of the Common
Agreement.


 


“SEN
Trustee” has the meaning set forth in the preamble of the Common
Agreement.


 


“SEN
Trustee Notes” means (i) prior to the Intercompany Payable
Restructuring, the notes issued by GMM pursuant to the Restructured Trust
Indenture and designated therein as the “Borrower Notes” and (ii) from and
after the date of the Intercompany Payable Restructuring, the notes issued by
MM pursuant to the Restructured Trust Indenture and designated therein as the “Borrower
Notes”.


 


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“Shared
Collateral” has the meaning set forth in Section 7.01(c) of
the Common Agreement.


 


“Shared
Collateral Control Agreement” has the meaning set forth in the U.S.
Security Agreement.


 


“Shared
Mexican Trustee” means GE Capital Bank, S.A., Institución de Banca
Múltiple, GE Capital Grupo Financiero.


 


“Shared
Payment and Collateral Agent” has the meaning set forth in the
preamble of the Common Agreement.


 


“Shared
Yankee Bond Collateral” means all Shared Collateral of Borrower and
its Subsidiaries other than the Excluded Assets (as defined in the Mexican
Security Trust Agreement).


 


“Solvent”
means, with respect to any Person on a particular date, that on such date: (a)
the fair market value of the property of such Person is greater than the total
amount of its liabilities, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay the
probable liability of such Person on its debts as they become absolute and
matured, (c) such Person does not believe that it will incur debts or
liabilities beyond its ability to pay as such debts and liabilities mature, (d)
such Person is not engaged in business or a transaction, and is not about to
engage in business or a transaction, for which its property would constitute an
unreasonably small capital, (e) no more than 35% of such Person’s payment
obligations are thirty (30) or more days past due, and (f) such Person owns
enough “Liquid Assets” (as hereafter defined) with which to pay at least 80% of
its past due payment obligations.  For
purposes hereof, the term “Liquid Assets” means, at any time, (i) cash on hand,
(ii) demand cash deposits, (iii) cash deposits and investments redeemable
within ninety (90) days, (iv) receivables becoming due within ninety (90) days
and (v) securities for which a liquid market exists in which the value of such
securities on such date can be determined and such securities can be sold
within thirty (30) Mexican banking days.


 


“Specified
Participant” has the meaning set forth in Section 4.20 of the
Common Agreement.


 


“Subordination
Agreement” has the meaning set forth in Section 14.23 of the
Common Agreement.


 


“Subsidiary”
means, with respect to any specified Person, any corporation, association,
partnership, limited liability company, joint venture or other business Person
of which more than 50% of the voting stock, membership interests or other
equity interests (in the case of Persons other than corporations) is owned or
controlled directly or indirectly by such specified Person, by one or more of
the Subsidiaries of such specified Person, or by a combination thereof.


 


“Substitute
Rate” has the meaning set forth in Section 12.05 of the
Common Agreement.


 


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“Super-Majority
Lenders” means, at any time, Lenders holding greater than 60% of the
then aggregate outstanding principal amount of the Restructured Principal
voting as a single class.


 


“Surety
Instrument” means any letter of credit (including standby and
commercial), bankers’ acceptance, bank guarantee, surety bond or similar
instrument.


 


“Swap
Contract” mean any agreement, whether or not in writing, relating to
any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or bill option, interest rate option, forward foreign exchange
transaction, cap, collar or floor transaction, currency swap, cross-currency
rate swap, swap option, currency option or any other similar transaction
(including any option to enter into any of the foregoing) or any combination of
the foregoing, and, unless the context otherwise clearly requires, any master
agreement relating to or governing any or all of the foregoing.


 


“Swap
Termination Value” means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as
the mark-to-market value(s) for such Swap Contracts, as determined based upon
one or more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include a Lender or any
Affiliate of a Lender).


 


“Synthetic
Lease Obligation” means the monetary obligation of a Person under
(a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an
agreement for the use or possession of property creating obligations that do
not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as indebtedness of such
Person (without regard to accounting treatment).


 


“Tax”
or “Taxes”
means any and all present or future taxes, levies, assessments, imposts,
duties, deductions, fees, compulsory loans, withholdings or similar charges,
and all liabilities with respect thereto, and any and all stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies, if any, that arise from any payment under the Common Agreement or any
other Operative Document or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, the Common
Agreement or any other Operative Document, and all liabilities with respect to
any of the foregoing, excluding, in the case of each Lender and each Agent,
respectively, taxes imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of which
such Lender or such Agent, as the case may be, is organized or maintains a
Lending Office.


 


“Telerate
Page 3750” means the display designated as page “3750” on the
Telerate Service (formerly known as the Dow Jones Market Service) or such other
page as may replace the “3750” page on the Telerate Service or such other
service or services as may be 


 


137

















 


nominated by the British Bankers’ Association as the
information vendor for the purpose of displaying British Bankers’ Association
Interest Settlement Rates for Dollar deposits.


 


“TISLP”
has the meaning set forth in the preamble to the Common Agreement.


 


“Total
Debt” means, as of the end of any fiscal quarter of Borrower and its
consolidated Subsidiaries, the sum, without duplication, of (a) the
Restructured Debt as of such date (excluding the principal amount of any GM
Notes then outstanding (including any such principal resulting from the
capitalization of interest thereon)), (b) all other direct and indirect
obligations for money borrowed by Borrower or any of its Subsidiaries
outstanding as of such date, (c) all Capital Leases of Borrower and its
Subsidiaries outstanding as of such date, and (d) the face value of any and all
obligations for money borrowed by other Persons and guaranteed by Borrower or
any of its Subsidiaries.


 


“Total
Debt to Net Capitalization Ratio” means, as of any date of
determination, Total Debt divided by Net Capitalization.


 


“Tranche
A Restructured Debt” means, collectively, (i) with respect to the
Bank Holders, each “Tranche A Loan” (as such term is defined in the Bank
Holders Restructured Loan Agreement) and (ii) with respect to the SEN Holders,
each “Tranche A Loan” (as such term is defined in the Restructured Trust
Indenture).


 


“Tranche
B Principal Amount” means, at any time, an amount equal to the
Tranche B Restructured Debt minus prepayments of the Tranche B
Restructured Debt resulting from Prepayment Events.  For the avoidance of doubt, Tranche B Principal Amount shall not
include PIK Interest.


 


“Tranche
B Restructured Debt” means, collectively, (i) with respect to the
Bank Holders, each “Tranche B Loan” (as such term is defined in the Bank
Holders Restructured Loan Agreement) and (ii) with respect to the SEN Holders,
each “Tranche B Loan” (as such term is defined in the Restructured Trust
Indenture).


 


“Tranche
C Restructured Debt” means any SEN Make-Whole Amount due and owing
in accordance with Section 7.01(f) or Section 7.01(g) of the
Common Agreement.


 


“Trust
Acceptance Letter” means that certain letter agreement dated as of
April 29, 2003, whereby the Shared Payment and Collateral Agent accepts the
benefits of the Mexican Security Trust Agreement.


 


“Trust
Agreement” has the meaning set forth in the Restructured Trust
Indenture.


 


“Uniform
Commercial Code” means the Uniform Commercial Code as in effect from
time to time in the State of New York and in any other jurisdiction the laws of
which control the creation or perfection of security interests under the
Operative Documents, with the exception of the Mexican Security Trust
Agreement.


 


“United
States” or “U.S.” shall mean the United States of
America.


 


138

















 


“Unrestricted
Cash” means, as of any date, the amount of cash and any Permitted
Investments that are cash equivalents on hand as of such date less any cash
held as a reserve against the payment of the Restructured Debt, the payment of
any Indebtedness outstanding under the Yankee Bond Indenture or any similar
obligation.


 


“Updated
Projections” has the meaning set forth in Section 2.01(k) of
the Common Agreement.


 


“U.S.
GAAP” means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or any successor
authority) in effect as of the date of determination, applied on a consistent
basis both as to amounts and classification of items.


 


“U.S.
Security Agreement” means the U.S. Security Agreement dated as of
April 29, 2003, by and among GMM, MM and the Principal Subsidiaries in favor of
the Shared Payment and Collateral Agent.


 


“Working
Capital Prepayment Amount” has the meaning set forth in Section 8.01(a)
of the Common Agreement.


 


“Working
Capital Prepayment Event” has the meaning set forth in Section 8.01(a)
of the Common Agreement.


 


“Yankee
Bond Indenture” means that certain Indenture dated as of March 31,
1998, by and among GMM, as issuer, certain of its Subsidiaries, as guarantors,
and The Bank of New York, as trustee.


 


139