Exhibit 4(f)


 


English Version for 


Information Purposes Only


 


Final Version


 


 


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


 


IRREVOCABLE SECURITY TRUST AGREEMENT, DATED APRIL
29, 2003 ENTERED INTO BY AND BETWEEN GRUPO MINERO MÉXICO, S.A. DE C.V. (“GMM”),
INDUSTRIAL MINERA MÉXICO, S.A. DE C.V., (“IMMSA”), MEXICANA DE COBRE,
S.A. DE C.V., (“Mexcobre”), MINERALES METÁLICOS DEL NORTE, S.A., (“Mimenosa”),
MEXICANA DE CANANEA, S.A. DE C.V., (“Mexcananea”), MEXICANA DEL ARCO,
S.A. DE C.V., (“Mexarco”), MINERALES Y MINAS MEXICANAS, S.A. DE C.V., (“MMM”),
AMERICAS MINING CORPORATION (“AMC”), MINERA MÉXICO, S.A. DE C.V. (“MM”),
COMPAÑÍA DE TERRENOS E INVERSIONES DE SAN LUIS POTOSÍ, SOCIEDAD CIVIL POR
ACCIONES, S.A. (“TISLP”) AND MÉXICO COMPAÑÍA INMOBILIARIA, S.A., (“MCI”)
AS GRANTORS (GMM, IMMSA, Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM, AMC, MM,
TISLP and MCI collectively, the “GRANTORS”) AND GE CAPITAL BANK, S.A.,
INSTITUCION DE BANCA MÚLTIPLE, GE CAPITAL GRUPO FINANCIERO, AS TRUSTEE (the “TRUSTEE”)
PURSUANT TO THE FOLLOWING RECITALS, REPRESENTATIONS AND CLAUSES:


 


RECITALS


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


VII.                            Pursuant to that certain indenture dated as of
March 31, 1998 (the “Yankee Notes Indenture”), by and between GMM, as
issuer, certain of its subsidiaries, as guarantors, and The Bank of New York
(the “Yankee Notes Trustee”), as trustee, GMM and the subsidiaries party
thereto agreed not to, directly or indirectly incur or suffer to exist any lien
on or with respect to any property or assets of GMM or such subsidiaries
without making an effective provision for securing the notes issued under the
Yankee Notes Indenture (the “Yankee Notes”) and the guarantees issued in
respect thereof (the “Yankee Guarantees”) equally and ratably with the
secured indebtedness for so long as such indebtedness will be so secured. For
purposes of this Agreement, the obligations of GMM and its subsidiaries under
the Yankee Notes and the Yankee Guarantees will be referred to as the “Yankee
Obligations”.


 


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Section 4.08 of the Yankee
Notes Indenture provides the following:


 


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


 


REPRESENTATIONS



 


I.                                        Each of the Grantors
represents that:


 


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


 


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


 


(c)                                  Its attorney-in-fact is duly authorized to
execute this Agreement, on its behalf, and to assume the obligations set forth
herein, as is evidenced by the power of attorney attached hereto as Exhibit
B, which authority has not been revoked or modified in any manner
whatsoever;


 


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


 


3

















 


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


 


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


 


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


 


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


 


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


 


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


 


(j)                                    This Agreement and the security interest created hereunder
constitutes a legal, valid and binding obligation of the Grantor, enforceable
against the Grantor in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, concurso mercantil,
reorganization, moratorium or similar laws affecting the enforcement of
creditors’ rights generally;


 


(k)                                 Except for those matters listed in Schedule B hereto, there
is no litigation, administrative proceeding, investigation or other legal
action (including any


 


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


 


(l)                                    The transfer of the Assets to the Trustee pursuant to the terms
hereof does not require the authorization of the Federal Competition
Commission;


 


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


 


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


 


II.                                    The Trustee represents that:


 


(a)                                 It is a multiple banking institution (institución
de banca múltiple) duly organized and validly existing under the
laws of Mexico and is duly empowered, in
accordance with the terms of its constituent and organizational documents, to
execute this Agreement and to assume the obligations set forth herein as is
evidenced by the documents that are attached hereto as Exhibit E;


 


(b)                                Its attorney-in-fact is duly authorized to
execute this Agreement, on its behalf, and to assume the obligations set forth
herein, as is evidenced by the power of attorney attached hereto as Exhibit
F, which authority has not been revoked or modified in any manner
whatsoever; and


 


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


 


IN
WITNESS WHEREOF, the parties hereto agree to the following:


 


CLAUSES


 


FIRST.  Definitions.  Defined
terms used in this Agreement will have the meaning set forth below, in the
understanding that such meaning will be applicable to both the singular and
plural form thereof:


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Agreement” means this Irrevocable Security
Trust Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“GAAP” means generally accepted
accounting principles in Mexico.


 


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


 


“Guarantors” has the meaning set forth
in Recital IV hereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


“LGTOC” means the Mexican General Law of
Negotiable Instruments and Credit Transactions (Ley General de Títulos y Operaciones de
Crédito).


 


“LIC” means the Mexican Credit
Institutions Law (Ley de Instituciones de Crédito).


 


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


 


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“Loss Proceeds” means any proceeds
derived from (i) insurance payments in respect of the Assets, and (ii) any
payment received as a result of expropriation, seizure or similar governmental
action in respect of the Assets.


 


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


 


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


 


“Mexcananea” has the meaning set forth
in the introduction hereof.


 


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


 


“Mexico” means the United Mexican
States.


 


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


 


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


 


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


 


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


 


“Permitted Investments” means debt
instruments with a remaining maturity not in excess of one year issued or
guaranteed by the federal government of the U.S.


 


“Peso” means the lawful currency of the
Mexico.


 


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


 


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


 


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


 


“Scheduled
Assets” means such assets listed in Schedule 8 hereto.


 


“Second Beneficiaries” means the
Grantors in connection with the rights thereof set forth in Clause Third
hereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Trust Account” means the account to be
opened and maintained by the Trustee at BBVA Bancomer, S.A., Institución de
Banca Múltiple, Grupo Financiero BBVA Bancomer or any other account that the
Trustee may open and maintain in substitution thereof and that the Trustee will
notify in writing to the Grantors and the Shared Payment and Collateral Agent
within the 5 (five) Business Days immediately following the opening thereof.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


SECOND.  Acknowledgment of Indebtedness; Creation of the Trust. (a) The Grantors hereby acknowledge that on
the date hereof, (i) the Borrower and the Guarantors, as the case may be, owe
such amounts under the Common Agreement, the Restructured Trust Indenture, the
Bank Holders Restructured Loan Agreement and the Affiliate Guaranty, (ii) MM
owes such amounts under the Intercompany Payable and (iii) GMM and its
subsidiaries owe such amounts under the Yankee Notes and Yankee Guarantee, all
of which are described in Schedule 1 hereto.


 


9

















 


(b)                                  The Grantors hereby create this Irrevocable
Security Trust (hereinafter referred to as this “Trust”) with the
Trustee to secure the full and punctual payment and performance of the Secured
Obligations by transferring to the Trustee title to the Assets as described in
Clause Fifth and Sixth below.


 


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


 


(d)                                  With respect to any of the Assets now or
hereafter transferred to this Trust, all the Grantors will be liable for any
claims made by third parties in connection with title to the Assets (saneamiento
para el caso de evicción). The Grantors (except AMC) will indemnify
the Trustee and the Shared Payment and Collateral Agent (and their respective
officers, directors and employees) for any such claims as described in Clause
Sixteenth hereof.


 


(e)                                  In accordance with the LGTOC and the LM, the Asset Grantors agree, to
obtain and maintain the registration of this Agreement and of any amendment or
supplement thereto (and any Exhibit or Schedule hereto) in the Public Registry
of Property of any location where Real Estate Assets or any Additional Real
Estate Assets are located, in the Public Registries of Commerce of the
corporate domicile of each of the Asset Grantors, in the Public Mining Registry
and any other registry or institution (including the Instituto Mexicano de la Propiedad
Industrial) that, in light of the nature of the Assets is required
by applicable law.


 


Likewise,
the Asset Grantors agree to deliver to the Trustee, (i) within the 90 (ninety)
Business Days immediately following the date of this Agreement or the date of
any amendment or supplement hereto (and to any Exhibit or Schedule hereto), the
receipt issued by the corresponding public registries or institutions evidencing
receipt for the filing for registration of the first notarial copy of the
public deed containing this Agreement or the respective amendment or supplement
as well as any receipts evidencing payment of the corresponding registration
fees, (ii) within the 150 (one hundred and fifty) Business Days immediately
following the date of this Agreement or the date of any amendment or supplement
hereto (and to any Exhibit or Schedule hereto), the first notarial copy of the
public deed containing this Agreement or the respective amendment or supplement
with the respective registration information evidencing its registration with
the aforementioned public registries or institutions and (iii) within the 40
(forty) Business Days immediately following the expiration of the 150 (one
hundred and fifty) Business Days period set forth in (ii) above, no-liens
certificates issued by the appropriate public registries or institutions
evidencing the security interest created hereunder as the only lien registered
upon the respective Assets.


 


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The
Asset Grantors (except AMC) agree to jointly and severally pay all costs and
expenses, as well as all taxes derived from the ratification of this Agreement
or any amendment or supplement hereto (or any Exhibit or Schedule hereto) in a
public deed, as well as all costs, expenses, taxes and registration fees that
may derive from the registration of the same in the aforementioned public
registries or institutions.


 


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


 


	
  Grantors
  and Second Beneficiaries:

  	
   

  	
  GMM, IMMSA, Mexcobre, Mimenosa, Mexcananea, Mexarco, MMM, AMC, MM, TISLP
  and MCI.

  
	
   

  	
   

  	
   

  
	
  Trustee:

  	
   

  	
  GE
  Capital Bank, S.A., Institución de Banca Múltiple, GE Capital Grupo
  Financiero.

  
	
   

  	
   

  	
   

  
	
  First
  Beneficiaries:

  	
   

  	
  The
  Shared Payment and Collateral Agent for the benefit of the SEN Holders and
  Bank Holders and the Yankee Notes Trustee for the benefit of the holders of
  the Yankee Notes and Yankee Guarantees.

  



 


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


 


The
appointment of the Yankee Notes Trustee (for the benefit of the holders of the
Yankee Notes and the Yankee Guarantees) as a First Beneficiary hereunder is
made, as required by the Yankee Notes Indenture, as an effective provision for
securing the Yankee Obligations equally and ratably with the Restructuring
Obligations for so long as the Restructuring Obligations are secured hereunder
and in the same terms and conditions as the Restructuring Obligations are so
secured (except in connection with the Shares and Additional Shares and the
Excluded Assets as described below).


 


The
parties hereto recognize and acknowledge that neither the Yankee Notes Trustee
nor the holders of the Yankee Notes or the Yankee Guarantees will have any type
of participation or involvement in the making of any decisions hereunder, in
the understanding that the only circumstance where the consent of the Yankee
Notes Trustee will be required will be to amend this Agreement in a


 


11

















 


manner that would cause it not to have an equal
and ratable right to the security interest created hereunder as provided in
Clause Twenty Fifth hereof.


 


All
parties hereto agree and acknowledge that only the Restructuring Obligations
will be secured by the Shares and the Additional Shares and the Excluded Assets
and that therefore, the Yankee Notes Trustee will have no right in or interest
upon the Shares and Additional Shares and the Excluded Assets or any proceeds
derived from the sale thereof.


 


The
Shared Payment and Collateral Agent has executed and delivered its acceptance
letter to the Trustee in the form attached hereto as Exhibit G.


 


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


 


The
appointment of the First Beneficiaries and the Second Beneficiaries hereunder
shall be effective on the date hereof.


 


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


 


FIFTH.  Transfer of Assets to the Trustee.  The Grantors hereby transfer
title to the Assets described below to the Trustee as trustee of the Trust in
accordance to the provisions of this Clause Fifth.


 


(a)                                   Real Estate Assets:  Each
of the Asset Grantors transfers title to the real estate assets owned by it and
described in Schedule 2 hereto (the “Real Estate Assets”) to the
Trustee for the purposes set forth herein.


 


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


 


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


 


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(b)                                  Tangible Movable Assets:  Each
Asset Grantor transfers title to all buildings, machinery and equipment owned
by it and used in the ordinary course of its business including without
limitation, those buildings, machinery and equipment described in Schedule 3
hereto and any buildings, machinery and equipment it may own in the future and
use in the ordinary course of its business (all such Assets together, the “Tangible
Movable Assets”) to the Trustee for the purposes set forth herein.


 


Each
of the Asset Grantors acknowledges that transfer of the Tangible Movable Assets
to the Trustee will be perfected by means of the execution and delivery of this
Agreement and registration of this Agreement in the Public Registry of Commerce
of the corporate domicile of each Asset Grantor.  Each Asset Grantor further acknowledges that because the Trust
will include all of the buildings, machinery and equipment used in the ordinary
course of its business, that no further identification is required as provided
under articles 408 and 354 of the LGTOC.


 


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


 


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


 


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


 


In
connection with Intangible Assets that each Asset Grantor may acquire after the
date hereof and all trademarks and other intellectual property currently owned
by each Asset Grantor and that are not described in Schedule 4 hereto
(the “Additional Intangible Assets”), each Asset Grantor agrees to carry
out such actions described in Clause Seventh (b) (3) hereof.


 


MM specifically acknowledges and consents to the assignment of GMM’s
rights under the Intercompany Payable to this Trust for the purposes set forth
herein.


 


13

















 


(d)                                  Shares of GMM and MM.


 


Each
of the Shareholders transfers title to all shares held by them representing the
capital stock of each of GMM and MM described in Schedule 5 hereto (the
“Shares”) to the Trustee for the purposes set forth herein, which Shares
represent 98.9098% (ninety eight point nine zero nine eight percent) and
99.8089% (ninety nine point eight zero eight nine percent) of the outstanding
shares of GMM and MM respectively.


 


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


 


(i)                                       the original share certificates evidencing the
Shares duly endorsed in property (endoso en propiedad) in favor of the
Trustee; and


 


(ii)                                    a copy, certified by the Secretary of the Board
of Directors of each of GMM and MM, of the stock registry books (libros de
registro de acciones) of each of GMM and MM, containing a notation
duly certified by the Secretary of the Board of Directors of GMM and MM,
stating that the Shares have been transferred in favor of the Trustee pursuant
to the provisions hereof.


 


In
connection with shares representing the capital stock of each of GMM and MM
that each Shareholder may acquire after the date hereof (either by means of
subscription and payment of any capital increase in the capital stock of GMM or
MM, as payment of a dividend in shares paid by GMM or MM, or otherwise) (the “Additional
Shares”) each Shareholder agrees to carry out such actions described in
Clause Eighth hereof.


 


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


 


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


 


In
connection with Concessions that each Asset Grantor may acquire after the date
hereof and that are therefore not described in Schedule 6 hereto (the “Additional
Concessions”) and the Excluded Concessions (provided any


 


14

















 


restrictions on transfer are eliminated
therefrom) each Asset Grantor agrees to carry out such actions described in
Clause Seventh (b) (4) hereof.


 


The
parties hereto recognize that the transfer of the Concessions and any
Additional Concessions or Excluded Concessions (provided any restrictions on
transfer are eliminated therefrom) described above is exclusively for the
purpose described in this Agreement and to create a security interest
thereon.  Therefore, the parties
recognize that the transfer of the Concessions and any Additional Concessions
or Excluded Concessions to the Trustee will not be deemed a transfer under the
terms of the LM and its regulations. 
Therefore, the Trustee will not acquire any rights or any obligations
under the Concessions and any Additional Concessions or Excluded Concessions
(except its rights hereunder).  Each of
the respective Asset Grantors will continue to operate the Concessions and
Additional Concessions or Excluded Concessions in the ordinary course of their
business as set forth in Clause Eleventh below.


 


The
parties also recognize and acknowledge that under the terms of Clause
Thirteenth hereof, within the context of a Foreclosure Procedure, such
Concessions may only be sold to an entity meeting the requirements set forth by
the LM (and other applicable laws).


 


(ii)                                   Excluded Concessions.  Each
of the Asset Grantors that currently holds Excluded Concessions, hereby agrees
to carry out such actions as may be reasonably requested by the Shared Payment
and Collateral Agent in connection with such Excluded Concessions, subject to
the provisions on limitations of transfers provided in such Excluded
Concessions.


 


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


 


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


 


(2)                                  the Real Estate Assets;


 


(3)                                  the Tangible Movable Assets;


 


(4)                                  the Intangible Assets;


 


(5)                                  the Shares;


 


(6)                                  the Concessions;


 


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


 


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


 


15

















 


(9)                                  any securities or other instruments acquired
with the proceeds obtained from the sale of the Assets in a Foreclosure
Procedure and Loss Proceeds resulting from such Assets;


 


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


 


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


 


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


 


(c)                                  The Trustee will invest any amounts held at any
time in the Trust Account (if the respective amounts so allow) in Permitted
Investments as instructed to the Trustee in writing by the Shared Payment and
Collateral Agent.  The Shared Payment
and Collateral Agent will be entitled to notify the Trustee how to proceed and
apply any amounts maintained at any time in the Trust Account and the Trustee
will be released from any liability incurred in regards to such amounts so long
as it complies with such instructions. 
In the event that the amounts maintained in the Trust Account are not
sufficient to make investments in Permitted Investments, the same will be
maintained in the Trust Account.


 


SEVENTH.  Transfer of Real Estate Assets and Additional Assets. 
(a)  Each of the Asset Grantors
hereby acknowledges that on the date hereof it has transferred to the Trustee
all Real Estate Assets, Additional Tangible Movable Assets, Additional
Intangible Assets and Additional Concessions and agrees to transfer to the
Trustee all Additional Real Estate Assets (the Additional Real Estate Assets,
Additional Tangible Movable Assets, Additional Intangible Assets and Additional
Concessions, together, the “Additional Assets”).  Each Asset Grantor hereby agrees to perfect
the transfer to the Trustee of all Real Estate Assets and, to the extent
necessary, Additional Assets in the manner set forth below.


 


(b)                                  The Asset Grantors agree to take the following
actions in order to perfect the transfer of such Real Estate Assets and
Additional Assets to the Trustee:


 


16

















 


(1)                                   Real Estate Assets and Additional Real Estate
Assets.


 


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


 


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


 


The
Asset Grantors, as the case may be, must deliver to the Trustee or the Shared
Payment and Collateral Agent, prior to the expiration of the 120 (one hundred
and twenty) Business Day term set forth above, such documentation or
information relating to the Real Estate Assets, other than the Troubled Real
Estate Assets (including such documentation as is required under the laws
applicable to such Real Estate Assets to perfect the transfer thereof) as the
Trustee or the Shared Payment and Collateral Agent may reasonably request.


 


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


 


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


 


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


 


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


 


17

















 


end of such fiscal quarter, each Asset Grantor
will give written notice to the Trustee (who must transmit a copy of such
notice to the Shared Payment and Collateral Agent) and the Shared Payment and
Collateral Agent of the acquisition or identification by such Asset Grantor of
any Additional Real Estate Assets during such quarter.  Such notice will also provide which of such
Additional Real Estate Assets the respective Asset Grantor will contribute to
this Trust and which Additional Real Estate Assets such Asset Grantor proposes
not be contributed to this Trust. 
Within the 15 (fifteen) Business Days immediately following receipt of
such notice by the Shared Payment and Collateral Agent (whether from the Asset
Grantor or the Trustee), the Shared Payment and Collateral Agent must notify
the respective Asset Grantor and the Trustee in writing of its approval of the
terms of such notice, or if such is the case, of its decision as to which
Additional Real Estate Assets described in such notice should and should not be
assigned to the Trust.  If the Trustee
does not receive written notice to this effect from the Shared Payment and
Collateral Agent within such 15 (fifteen) Business Days, the Trustee will
assume that the Shared Payment and Collateral Agent approved the terms of the
notice delivered by the Asset Grantors.


 


Within
20 (twenty) Business Days after the expiration of the 15 (fifteen) Business Day
term set forth above, the respective Asset Grantors will perfect the transfer
of the respective Additional Real Estate Assets by means of the execution and
registration of a supplement to this Agreement as described below or otherwise.


 


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


 


The
Asset Grantors, as the case may be, must deliver to the Trustee or the Shared
Payment and Collateral Agent, prior to the expiration of the 20 (twenty)
Business Day term set forth above, such documentation or information relating
to the Additional Real Estate Assets (including such documentation as is
required under the laws applicable to such Additional Real Estate Assets or
Real Estate Assets to perfect the transfer thereof) as the Trustee or the
Shared Payment and Collateral Agent may reasonably request.


 


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


 


18

















 


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


 


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


 


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


 


The
Asset Grantors, as the case may be, must deliver to the Trustee or the Shared
Payment and Collateral Agent, prior to the expiration of the 20 (twenty)
Business Day term set forth above, such documentation or information relating
to the Additional Tangible Movable Assets (including such documentation as is required
under laws applicable to such Additional Tangible Movable Assets to perfect the
transfer thereof) as the Trustee or the Shared Payment and Collateral Agent may
reasonably request.


 


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


 


Notwithstanding
that under Clause Fifth above all Intangible Assets (including Additional Intangible
Assets) are validly transferred hereto upon execution of this Agreement, to the
extent any Additional Intangible Assets consist of trademarks and other
intellectual property or to the extent the Shared Payment and Collateral Agent
notifies the respective Asset Grantor that it is necessary, the respective
Asset Grantor, within the 20 (twenty) Business Days after receipt by the
Trustee and the Shared Payment and Collateral Agent of the notice mentioned in
the preceding paragraph or within the 20 (twenty) Business Days after receipt
of such notice from the Shared Payment and Collateral Agent, will perfect the
transfer of the Additional Intangible Assets by means of the execution and
registration of a supplement to this Agreement as described below or otherwise.


 


19

















 


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


 


The
Asset Grantors, as the case may be, must deliver to the Trustee or the Shared
Payment and Collateral Agent, prior to the expiration of the 20 (twenty)
Business Day term set forth above, such documentation or information relating
to the Additional Intangible Assets (including such documentation as is required
under laws applicable to such Additional Intangible Assets to perfect the
transfer thereof) as the Trustee or the Shared Payment and Collateral Agent may
reasonably request.


 


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


 


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


 


Within
20 (twenty) Business Days after any assignment limitations contained in the
Excluded Concessions are removed, the Asset Grantors will perfect the transfer
of the Excluded Concessions to the Trust by means of the execution and
registration of a supplement to this Agreement as described below.


 


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


 


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


 


20

















 


Concessions or Excluded Concessions to perfect
the transfer thereof) as the Trustee or the Shared Payment and Collateral Agent
may reasonably request.


 


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


 


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


 


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


 


EIGHTH.  Contribution
of Additional Shares.  The Shareholders hereby agree to transfer to
the Trustee hereunder, immediately upon the subscription and payment of or
receipt of any Additional Shares (i) the share certificates received by the
Shareholders evidencing such Additional Shares duly endorsed in property (endoso en
propiedad) in favor of the Trustee, and (ii) a copy, certified by
the Secretary of the Board of Directors of GMM or MM, as the case may be, of
GMM’s or MM’s stock registry book containing a notation, duly certified by the
Secretary of the Board of Directors, stating that such Additional Shares have
been transferred to the Trustee pursuant to the provisions hereof.  Based on this Clause Eighth, the Trustee
shall always hold at least 98.9098% (ninety eight point nine zero nine eight
percent) and 99.8089% (ninety nine point eight zero eight nine percent) of the
outstanding shares of GMM and MM respectively. 
The preceding, subject to the adjustments that will derive from that set
forth in Clause Thirty Second hereof in connection with the merger of GMM and
MM.


 


Notwithstanding
the foregoing, and for the avoidance of doubt, any increase in the capital of
GMM or MM shall be subscribed by the Shareholders in exercise of their
preferential rights in respect of the Shares or any Additional Shares, and any
shares resulting from such capital increase shall be contributed to the Trust
as set forth above.


 


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


 


21

















 


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


 


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


 


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


 


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


 


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


 


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


 


Neither the Trustee nor the Shared Payment and
Collateral Agent will be liable for the acts of the Asset Grantors in
connection with such defense.


 


If
any Asset Grantor receives a judicial or other notice or claim with respect to
the Assets (other than Shares and Additional Shares), or if any Asset Grantor
has knowledge of any fact that may affect legal title to such Assets, the
relevant Asset Grantor will advise the Trustee and the Shared Payment and
Collateral Agent in writing and forward a copy of any such notice or a
description of any such


 


22

















 


fact to the Trustee and to the Shared Payment
and Collateral Agent, no later than the fifth Business Day immediately
following the day such notice was received or the day on which the relevant
Asset Grantor acquired such knowledge, as the case may be.


 


(e)                                   If at any time, and until all the Restructuring
Obligations are paid in full, an Event of Default has occurred and is
continuing all of the rights of the Asset Grantors under this Clause to dispose
of and defend the Assets (other than Shares and Additional Shares), except for
their right to dispose of the Scheduled Assets and their right to carry out
such transactions that do not constitute Asset Dispositions, shall cease and
the Shared Payment and Collateral Agent may direct the Trustee (by written
notice) to revoke the powers of attorney previously granted to the respective
Grantors for the disposition and defense of assets as set forth in section (a)
above.  The right of the Asset Grantors
to dispose of the Assets (except the rights to dispose of the Scheduled Assets
and their right to carry out such transactions that do not constitute Asset
Dispositions) pursuant to this Clause will cease immediately while the rights
to defend the Assets will cease upon revocation of the corresponding powers of
attorney provided new powers of attorney are granted as set forth in this
Agreement.


 


Upon
receipt of such notice, and at the latest on the second Business Day
immediately following receipt thereof, the Trustee will be obligated to revoke
such powers of attorney as required under applicable law and to grant, to the
person or persons appointed by the Shared Payment and Collateral Agent similar
powers of attorney and to grant to the respective Grantors a special power of
attorney exclusively for the purpose of any sales, leases or other dispositions
permitted under the Common Agreement (notwithstanding the occurrence and
continuance of an Event of Default thereunder).


 


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


 


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


 


(g)                                  The parties agree that the provisions of this
Clause Ninth will substitute the provisions contained in article 402 of the
LGTOC.


 


23

















 


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


 


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


 


(c)                                  Until the Shareholders’ power of attorney is
revoked under section (d) below, the Shareholders will have the right to
receive any cash dividends paid in respect of the Shares and any Additional
Shares.  In order for the Shareholders
to receive such distributions, the Trustee, upon written notice by the
Shareholders, will deliver to the Shareholders, if necessary, the coupons (cupones)
attached to the share certificates evidencing the Shares and any Additional
Shares, as reasonably requested by the Shareholders, and in any case, within
the 5 (five) Business Days immediately following the date on which the Trustee
receives the request.  All distributions
made in respect of or in exchange for the Shares and any Additional Shares in
any form other than cash, will become a part of the Assets hereunder and, if
received by the Shareholders, will be subject to their contribution obligations
described above.


 


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


 


Upon
receipt of such notice, and at the latest on the second Business Day
immediately following receipt thereof, the Trustee will be obligated to revoke
such power of attorney as required under applicable law and to grant, to the
person or


 


24

















 


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


 


During
the continuance of an Event of Default any and all dividends on the Shares and
any Additional Shares and any and all distributions made on or in respect of
the Shares and any Additional Shares (whether in cash, cash equivalents, in
kind, in additional shares or in any other form); and any and all cash or other
property received in exchange for or in respect of any Shares and any
Additional Shares shall be and become part of the Assets and, if received by
the Shareholders (and in addition to their contribution obligations described
above), shall forthwith be delivered to the Trustee (together with, if
appropriate, proper instruments of assignment, endorsement of the relevant
certificates, notations on the relevant registries and/or powers executed by
the Shareholders) to be held hereunder, subject to the terms of this Agreement.


 


Upon receipt by the Trustee of
a notice from the Shared Payment and Collateral Agent that any existing Event
of Default has been cured the Trustee will, at the latest the second Business
Day immediately following receipt of such notice, revoke the power of attorney
granted to the person appointed by the Shared Payment and Collateral Agent and
grant new powers of attorney to the Shareholders as instructed by the Shared
Payment and Collateral Agent.


 


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


 


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


 


ELEVENTH.  Operation
of the Concessions.  At all times, the Asset Grantors, as the
case may be, will be entitled to operate the Concessions and any Additional
Concessions in the ordinary course of their business.


 


TWELFTH.  Covenants
of the Grantors.  Each of the Grantors (except in connection
with sections (a), (g), (j) and (k) below, which are only applicable to the
Asset Grantors) covenants and agrees, from and after the date hereof and until
the Restructuring Obligations are fully satisfied:


 


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


 


25

















 


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


 


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


 


Any
Loss Proceeds derived from the occurrence of events covered under the Insurance
Policies will be transferred to the Trust Account as set forth in Clause Sixth
above and the Trustee will apply such funds as instructed in writing by the
Shared Payment and Collateral Agent as described in section 4.10 of the Common
Agreement.


 


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


 


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


 


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


 


(e)                                   Defense of the Assets.  To
defend, each at its own cost and expense, the Assets which are or may become
part of this Trust, and any rights of the Trustee or the First Beneficiaries
deriving from this Agreement, from and against any action or judicial
proceeding initiated by any third party before any governmental authority,
court or arbitrator in accordance with the terms hereof.  The obligations of the Grantors contained
herein will be subject to the provisions of Clause Ninth and Fifteenth hereof.


 


26

















 


(f)                                     Rights of Inspection.  Upon
prior written notice given to the Grantors no less than 48 (forty eight) hours
in advance (except during the existence of an Event of Default or during any
Foreclosure Procedure, in which case, no prior notice will be required, to
allow the Trustee and the Shared Payment and Collateral Agent and their
representatives free and full access, during normal business hours, and without
interrupting the Grantors’ operations to the books and records and
correspondence of the Grantors in any manner related with the Assets or the
Grantors’ operation or use thereof.  The
Trustee and the Shared Payment and Collateral Agent and their representatives
will be entitled to and the Trustee or the Shared Payment and Collateral Agent
or their representatives may examine the books, records and correspondence of
the Grantors and make extracts or copies thereof. Likewise, the Grantors will
provide the Trustee and the Shared Payment and Collateral Agent or its
representatives such assistance as is reasonably requested for the purposes of
this section (f).  By notice given to
the Grantors at least 48 (forty eight) hours in advance (except during the
existence of an Event of Default or during any Foreclosure Procedure, in which
case no prior notice will be required), the Trustee and the Shared Payment and
Collateral Agent and their representatives will have the right to enter any of
the Assets during normal business hours and without interrupting the Grantors’
operations with the purpose of inspecting, observing its use, or protecting
their interests.


 


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


 


(h)                                  Compliance with laws and regulations.  To
comply with all laws and regulations applicable to the Assets or to the
Grantors in their operation thereof, including environmental protection, zoning
and other similar laws and regulations, whether such laws are of a municipal,
state or federal nature, except to the extent (i) compliance with such laws or
regulations is being challenged by the Grantors through the appropriate legal
proceedings and prior creation of the necessary reserves if required under
GAAP, and (ii) non-compliance with such laws or regulations will not have a
Material Adverse Effect.


 


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


 


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


 


27

















 


the Grantors through the appropriate legal
proceedings and prior creation of the necessary reserves if required under GAAP
and (b) non-compliance with such Environmental Laws will not have a Material
Adverse Effect, (ii) notify the Trustee and the Shared Payment and Collateral
Agent immediately upon discovery of any spill, discharge, release or presence
of any pollutant at, upon, under, within, contiguous to or otherwise affecting
the Assets and (iii) promptly deliver to the Trustee and the Shared Payment and
Collateral Agent copies of all orders, notices, claims, permits, applications
or other communications or reports in connection with any or the items
described in (ii) above.


 


(k)                                   Excluded Concessions.  To
take such action as is necessary or convenient to eliminate any prohibitions
contained in the Excluded Concessions that may in any way limit the possibility
of such Excluded Concessions being assigned hereto, including, without
limitation, executing and delivering such further instruments and documents,
making such filings with any Mexican governmental authorities and taking such
further actions as may be necessary for such purpose.  As soon as any such prohibitions are eliminated, the respective
Asset Grantors will transfer such Excluded Concessions to the Trust as set forth
in Clause Seventh hereof and such Excluded Concessions will be deemed as
Concessions for all purposes hereunder.


 


THIRTEENTH.  Foreclosure Proceeding.  (a)  Sale
of Assets.  Without limiting the
other rights of the Shared Payment and Collateral Agent hereunder, if the
Shared Payment and Collateral Agent notifies the Trustee in writing that an
Event of Default has occurred and is continuing, then the Trustee shall be
entitled to exercise directly or through any attorneys-in-fact appointed as
described in Clauses Ninth and Tenth above its rights hereunder, and proceed in
accordance with the following foreclosure proceeding which is hereby agreed
upon by the parties hereto, based on article 83 of the LIC:


 


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


 


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


 


28

















 


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


 


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


 


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


 


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


 


(5)                                  the Shared Payment and Collateral Agent will
appoint an independent advisor or investment bank among those listed in Exhibit
K hereof (the “Advisor”) to organize and coordinate the bidding
process contemplated herein and to prepare all relevant documentation, provided
that the Shared Payment and Collateral Agent may at any time change the Advisor
(with or without cause);


 


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


 


29

















 


(7)                                  the Grantors agree to timely produce and
deliver to the Trustee, the Advisor and the Shared Payment and Collateral Agent
such information (legal, financial or otherwise) reasonably requested in
writing by the Trustee, the Advisor or the Shared Payment and Collateral Agent,
which may be necessary or desirable for a potential bidder to make an informed
offer; provided that, the Advisor may obtain such information from other
sources;


 


(8)                                  at the written request of the Advisor, and as
long as the Shared Payment and Collateral Agent advances all reasonable amounts
that may be necessary, the Trustee shall issue and/or publish such invitations
and notices to potential bidders, hold meetings with such potential bidders and
take the actions requested by the Advisor or the Shared Payment and Collateral
Agent, in connection with the submittal of bids, provided that no public
notice shall be required in connection with any proceedings under this Clause
and provided further that all notices to bidders shall expressly state
that the Trustee, upon instructions from the Shared Payment and Collateral
Agent reserves the right to suspend or cancel the bid process at any time
without liability for the Trustee or any of the parties hereto;


 


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


 


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


 


(11)                            the Trustee shall open the envelopes in the
presence of the bidders, their representatives, and a notary public, on the
date and time set for the sale of the Designated Assets, in the understanding
that the absence of any bidder or representative shall not impede the opening
of the bids;


 


(12)                            the Trustee shall designate, as the winning
bidder, the bidder that submitted the proposal which, as determined exclusively
by the Advisor, offers the best terms, conditions and assurances, it being
understood that such determination by the Advisor shall be considered
conclusive and irrevocable for all legal purposes, provided that the accepted
offer must provide for consideration at least equal to 90% (ninety percent) of
the Appraisal Value of the Designated Assets. 
The offer price must be paid within a term of 15 (fifteen) Business Days
following the award as specified by the Trustee;


 


30

















 


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


 


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


 


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


 


(16)                            if the sale of the Designated Assets is not
made to any of the bidders pursuant to the procedure specified above, the
Trustee shall undertake new bidding processes following substantially the
foregoing steps, until the sale of the Assets is completed, provided that the
minimum percentage of the Appraisal Value that must be met to accept an offer
as set forth in (12) above will be reduced 5% (five percent) for each sale
process to a minimum of 80% (eighty percent); and


 


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


 


For purposes of this paragraph
(a), the parties hereby agree that (i) the Shared Payment and Collateral Agent
may, at any time during such proceeding, instruct the Trustee in writing to either
suspend or cancel such proceeding or to not accept any bid submitted by any
bidder and (ii) the Shared Payment and Collateral Agent shall be obligated to
instruct the Trustee to cancel the foreclosure proceeding contemplated herein
if, at any time during such proceeding, the then outstanding Restructuring
Obligations are satisfied in full, which shall be confirmed by the Shared
Payment and Collateral Agent to the Trustee in writing.


 


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


 


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


 


31

















 


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


 


(c)                                  Limitations on Sale of Concessions.  The
parties hereto agree that the Concessions may not be sold to an entity that
fails to meet the requirements set forth by the LM  (and other applicable laws) for the transfer of mining
exploitation concessions.  Neither the
Trustee nor the Shared Payment and Collateral Agent will have any liability in
connection with such a sale made based upon such a determination.


 


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


 


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


 


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


 


(3)                                  third, to the Shared Payment and Collateral
Agent to be applied in accordance with the terms of Article VIII of the Common
Agreement; and


 


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


 


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


 


32

















 


foreclosure procedure contemplated herein, the
Trustee shall act only pursuant to the written instructions of the Shared
Payment and Collateral Agent.


 


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


 


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


 


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


 


FOURTEENTH.  Legal
Obligations.  (a) 
For purposes of article 412 of the LGTOC, the parties agree that in the
event the proceeds of the sale of each and every one of the Assets are not
sufficient to cover the total amount of the Secured Obligations, the debtors
under the Secured Obligations shall be released from the obligation to pay the
balance, and the rights of the Lenders and the holders of the Yankee Notes and
the Yankee Guarantees to claim such balance shall be considered terminated.  Notwithstanding the above, the parties
further agree that if during the term of this Agreement, article 412 of the
LGTOC is derogated or amended in any way to allow the Grantors to waive the
provisions of such article, this Section (a) will automatically cease to be in
effect.


 


(b)                                 For purposes of articles 402, 404, 405 and 406
of the LGTOC, the parties agree that the Tangible Movable Assets to be
contributed to this Trust shall be installed in or maintained within the Asset
Grantors’ current facilities, including those described in Schedule 7
hereto (the “Facilities”), except to the extent that it is
necessary to remove the same from such facilities in the ordinary course of
business of the Asset Grantors.  Neither
the Trustee nor the Shared Payment and Collateral Agent will be obligated to
verify or to inspect (i) the condition, installation and maintenance in the
Facilities of the Tangible Movable Assets, (ii) the need to remove any such
Tangible Movable Assets in the ordinary course of business, and


 


33

















 


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


 


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


 


(d)                                 The Grantors hereby expressly waive the
provisions of article 349 of the LGTOC and agree that the Assets shall not be
reduced or released as a result of any partial payment of the Secured
Obligations.


 


FIFTEENTH.  Trustee’s
Liability; Protection of the Assets.


 


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


 


(b)                                 The parties hereto agree that the Trustee will
not be liable for any act or omission, including, without limitation, the
failure to receive written instructions in accordance with the terms of this
Agreement, of any other party to this Agreement or of any third party that may
result in the failure to achieve the purposes set forth in this Agreement,
except in the case of willful misconduct, bad faith or negligence.


 


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


 


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


 


34

















 


(e)                                  In the events mentioned in the preceding
paragraph, unless the Assets in connection with which the claim is brought are
covered by an effective power of attorney granted to any Asset Grantor under
Clause Ninth hereof, the Trustee will have the obligation to grant, to the
persons or entities appointed in writing by the Shared Payment and Collateral
Agent, the necessary powers of attorney to defend the Assets against any legal
claims.  In the event that the Shared
Payment and Collateral Agent fails to designate a person or entity to defend
the Assets in the foregoing terms and it is likely that such lack of defense
will have a material adverse effect on the Assets, then the Trustee, without
being liable, except in case of willful misconduct, bad faith or negligence,
will grant the requisite powers to the person or persons that the Trustee deems
appropriate in its sole and absolute discretion and will give the necessary
instructions for the effective defense of the Assets, until such time when the
Shared Payment and Collateral Agent delivers the appropriate written
instructions in connection with such defense. 
The Trustee will not be liable for the acts of the attorneys-in-fact
appointed by it in accordance with this Agreement or for the payment of the
relevant fees and expenses, which payment will be covered jointly and severally
by the Grantors (except AMC).


 


(f)                                    Should an action be necessary to protect and
maintain title to the Assets, the Trustee will be obligated to initiate any
immediate action, as soon as practicable, and as required to protect the
Assets.  It being understood, that the
Grantors (except AMC) jointly and severally agree to deliver to the Trustee, as
soon as practicable, the necessary funds, and to reimburse all reasonable and
documented costs and expenses incurred by the Trustee in connection with the
initiation of the aforementioned action, in order for the Trustee to continue
with such action.


 


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


 


(h)                                 To satisfy the purposes of this Agreement, the
Trustee will have the following powers (which the Trustee agrees to exercise
pursuant to the provisions of this Agreement): power to dispose of the Assets
with the most ample powers granted to general attorneys-in-fact for lawsuits
and collections, acts of administration, acts of ownership, even those that
require a special clause, power to appear and conduct all types of proceedings
before federal, state and municipal authorities, arbitrators, decentralized
entities, persons or entities, in terms of articles 2554 and 2587 of the
Federal Civil Code and its correlatives articles of the civil codes for the
other states of Mexico and the Federal District; to promote and


 


35

















 


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


 


(i)                                     Notwithstanding any  other limitations to the Trustee’s
liability hereunder, the parties hereto agree that the Trustee will not be
liable for, or have any duty to ascertain, verify or inquire into any of the
following:


 


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


 


(2)                                    the contents of any certificate, report or other document
delivered hereunder or in connection herewith by the Shared Payment and Collateral Agent or the
Grantors;


 


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


 


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


 


(5)                                    the occurrence and continuance of any Event of Default as
determined by the Shared
Payment and Collateral Agent;


 


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


 


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


 


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


 


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


 


36

















 


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


 


(b)                                 The obligations of the
Grantors (except AMC) specified in paragraph (a) above will not be applicable
in respect of any Claim resulting from such Indemnified Person’s negligence or
willful misconduct.


 


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


 


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


 


XIX.  When
entering into the operations referred to in Section XV of Article 46 of this
Law:


 


b)  To respond
to the settlors, principals or agents, of any breach by the debtors, for loans
granted thereto, or on behalf of issuers, for securities acquired, unless it is
due to their fault, as set forth in the last paragraph of article 356 of the
General Law of Negotiable Instruments and Credit Operations, or to guarantee
obtaining certain returns in connection with funds, the investment of which is
requested therefrom.


 


If upon termination of the trust agreement, mandate or
agency established to grant loans, any such loans shall have not been repaid by
the debtors, the institution shall transfer them to the settlor or the
beneficiary, as the case may be, or to the representative or agent, without
repaying any outstanding amounts.


 


37

















 


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


 


In any trust agreements, mandates or agencies, the
prior paragraphs shall be inserted conspicuously as well as a representation
from the institution to the effect that it has, clearly and without doubt, made
its meaning be known to the persons from which it has received assets for
investment.”


 


EIGHTEENTH.  Replacement of the Trustee.


 


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


 


(b)                                 If the Trustee ceases to act as trustee under
this Agreement due to early termination of its duties in accordance with
paragraph (a) above, the Trustee will prepare account statements, balances and
accounts related to the Assets, which will be delivered on the date of
effectiveness of such termination.


 


(c)                                  The Shared Payment and Collateral Agent will be
entitled to appoint any successor Trustee; provided that, as long as no
Event of Default has occurred and continues, the Grantors must give their
written consent to any such appointment within 15 (fifteen) calendar days
following the date the Grantors have received notice of such appointment by the
Shared Payment and Collateral Agent, which consent may not be unreasonably
withheld and which consent will be deemed given if the Grantors do not object
to such appointment within the above mentioned term.


 


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


 


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


 


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


 


38

















 


TWENTIETH.  Taxes.  Any and all taxes (including, without
limitation, any income taxes, applied through a withholding or in any other
manner, sales taxes, value added taxes, property taxes and asset taxes),
contributions, fees or assessments, of any nature, imposed on or with respect
to the Assets, this Trust or in connection with the compliance by the Trustee
with the purposes of this Trust will be payable jointly and severally by the
Grantors (except AMC), provided that the Trustee will not be responsible
for the calculation, withholding and payment of any taxes, except if required
by applicable law.


 


TWENTY FIRST.  Reports; Inspections.


 


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


 


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


 


(c)                                  The Shared Payment and Collateral Agent and the Grantors, through
their designees, may inspect the files kept by the Trustee with respect to this
Trust, at any time during the effectiveness of this Agreement.  For such purposes, the Shared Payment and
Collateral Agent and the Grantors, as the case may be, shall give written
notice to the Trustee, at least 3 (three) Business Days prior to the date
proposed for the inspection.  Any
inspection shall be carried out during business hours.


 


TWENTY SECOND.  Duration and Irrevocability.  This Agreement shall be
irrevocable and shall remain in full force and effect until all the
Restructuring Obligations are satisfied and paid in full, which shall be
notified in writing by the Shared Payment and Collateral Agent (which notice will
not be unreasonably withheld or delayed), upon request by the Grantors and may
not be terminated, except (i) upon the occurrence of any of the events
contemplated in article 392 of the LGTOC (except the event contemplated in
section VI of such article) or (ii) if all of the Assets are sold pursuant to
the terms hereof.


 


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


 


39

















 


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


 


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


 


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


 


All
notices and other communications provided for hereunder required or permitted
to be given to a party hereto shall be personally delivered or sent by an
overnight courier or by facsimile transmission and shall be delivered or sent
to the domiciles specified below, or, as to each party, at such other domicile
or facsimile number, as shall be designated by such party in a written notice
to the other parties.  As long as no
such change of domicile notice has been received by the other parties in accordance
herewith, notices delivered to the domicile indicated below shall be
effective.  Notices that are delivered
by hand or overnight courier shall be deemed delivered upon delivery.  Notices that are delivered by facsimile
shall be deemed delivered upon receipt. 
The parties designate as their domiciles:


 


The Trustee:


Prolongación Paseo de la Reforma 490 - 2-B


Col. Santa Fe, 01210, México, D.F.


Attention: Ramón Galván Gutiérrez / Alejandro de
Iturbide


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


Telecopy: (5255) 5257-95-80


 


40

















 


The Grantors:


Av. Baja California no. 200


Col. Roma, 06760, México, D.F.


Attention: Armando Ortega Gómez / Jesús Eduardo González Félix


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


Telecopy: (5255) 5574-84-43


 


The Shared Payment and Collateral
Agent:


HSBC
Bank USA


Issuer
Services


10
East 40th Street, 14th Floor


New
York, New York 10016


USA


Attention: Ms. Harriet
Drandoff, Vice President


Telephone: (212) 525-1351


Telecopy: (212) 525-1300


 


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


 


The parties hereto recognize
and acknowledge that the consent of the Yankee Trustee will not be necessary to
amend this Agreement as long as such amendment does not, in any manner, affect
the equal and ratable right to the security interest created hereunder of the
Yankee Notes Trustee.  Any amendment
that would cause the Yankee Notes Trustee not to have an equal and ratable
right to the security interest created hereunder will require the written
consent of the Yankee Note Trustee.  The
determination of whether the consent of the Yankee Notes Trustee is required
hereunder will be made by the Grantors. 
The Trustee and the Shared Payment and Collateral Agent will not assume
any liability whatsoever in such regards.


 


TWENTY SIXTH.  Assignment.  Neither the Trustee, nor the
Grantors may assign, transfer or encumber their rights or delegate their
obligations under this Agreement; except (a) upon receiving the prior
written consent of the Shared Payment and Collateral Agent or (b) as expressly
permitted hereunder.


 


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


 


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


 


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


 


41

















 


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


 


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


 


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


 


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


 


THIRTIETH.  Reversion of Assets to Grantors.  Upon payment in full of the Restructuring
Obligations and termination of this Agreement as described in Clause Twenty
Second above, title to the Assets then subject to this Trust will revert to
each of the corresponding Grantors.


 


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


 


42

















 


deliver such translations to the Trustee and the
Shared Payment and Collateral Agent within the 90 (ninety) calendar days
immediately following the date of this Agreement.  If the Grantors fail to obtain and deliver such translations as
set forth above, the Shared Payment and Collateral Agent will be entitled to do
so at the Grantors’ expense and the translations so obtained will be binding on
the Grantors.


 


THIRTY SECOND.  Merger.  The parties hereto recognize and acknowledge
that after execution of this Agreement, GMM will merge into MM and that as a
consequence thereof, MM (as the entity surviving such merger) will acquire and
assume all of the assets, rights and obligations of GMM.  The parties further recognize that as a
result of such merger, the Shares representing the capital stock of GMM will
have to be cancelled and will cease to be part of the Trust.  The Trustee will take such actions that in
the reasonable judgment of the Shared Payment and Collateral Agent are
necessary to reflect the effects of such merger on the Trust and the Assets.


 


In
addition, MM agrees to deliver to the Trustee and the Shared Payment and
Collateral Agent, within the 90 (ninety) Business Days immediately following
the date on which the shareholder meetings of GMM and MM that approved the
aforementioned merger were held, the receipt issued by the corresponding Public
Registries of Commerce, evidencing receipt for the filing for registration of
the first notarial copy of the public deed containing such shareholder meetings
and the appropriate merger agreement.


 


THIRTY THIRD.  Additional Grantors.  The parties hereto agree that in certain
events described in the Common Agreement, entities different from the initial
Grantors hereunder that are subsidiaries of MM may be obligated to transfer
assets to the Trust.  In any such event,
any such entity will be obligated to execute and deliver to the Trustee and the
Shared Payment and Collateral Agent a letter of adherence substantially in the
form attached hereto as Exhibit M and, to the extent the Shared Payment
and Collateral Agent notifies such entity, within the 20 (twenty) Business Days
after receipt by the Trustee and the Shared Payment and Collateral Agent of any
such notices, the respective entities will perfect the transfer of their assets
to the Trust by means of the execution and registration of a supplement to this
Agreement.


 


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


 


The
respective entity, as the case may be, must deliver to the Trustee or the
Shared Payment and Collateral Agent, prior to the expiration of the 20 (twenty)
Business Day term set forth above, such documentation or information relating
to such entity and the respective assets (including such documentation as is
required


 


43

















 


under applicable laws to perfect the transfer
thereof) as the Trustee or the Shared Payment and Collateral Agent may
reasonably request.


 


To the extent the Trustee does
not receive documentation or information that evidences that the respective
entity complies with the Trustee’s internal policies as an entity that may
become a grantor hereunder, the Trustee may object to such entity adhering to
this Agreement and such adherence will only become effective once such
requirements have been met to the Trustee’s satisfaction.


 


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


 


THIRTY FOURTH.  Obligations
of AMC.  The parties hereto
recognize and acknowledge that AMC will only be obligated hereunder in
connection with the Shares and any Additional Shares transferred thereby to
this Trust as is set forth, among others, in Clauses Fifth, Eighth, Tenth and
Twelfth but will not assume any monetary obligations hereunder.  Therefore, any provision of this Agreement
that obligates the Grantors to pay any amount of money or assume any type of
cost or expense, will, to the extent not expressly stated, be deemed to exclude
AMC.


 


THIRTY FIFTH.  Shared
Payment and Collateral Agent.  The
Grantors and the Trustee hereby expressly acknowledge, recognize and agree
that:


 


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


 


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


 


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


 


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


 


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


 


44

















 


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


 


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


 


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


 


By
virtue of the foregoing, this Agreement is executed on this 29th day
of April of 2003.


 


	
   

  	
  THE GRANTORS

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AMERICAS MINING
  CORPORATION

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


45

















 


	
   

  	
  MINERA MÉXICO, S.A. DE
  C.V.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MINERALES METÁLICOS DEL NORTE,
  S.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


46

















 


	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


47

















 


	
   

  	
  COMPAÑÍA
  DE TERRENOS E INVERSIONES DE SAN LUIS POTOSÍ, SOCIEDAD

  CIVIL POR ACCIONES, S.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  MÉXICO
  COMPAÑÍA INMOBILIARIA, S.A.

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  THE
  TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
  Title:

  	
   

  
								



 


48

















 


LIST OF EXHIBITS


 


EXHIBIT
“A”


 


[INTENTIONALLY
OMITTED]


 


EXHIBIT
“B”


 


POWER
OF ATTORNEY OF THE ASSET GRANTORS


 


EXHIBIT
“C”


 


LIST
OF LIENS AND ENCUMBRANCES ON ASSETS


 


EXHIBIT
“D”


 


LIST
AND DESCRIPTION OF THE INSURANCE POLICES


 


EXHIBIT
“E”


 


[INTENTIONALLY
OMITTED]


 


EXHIBIT
“F”


 


POWER
OF ATTORNEY OF THE TRUSTEE


 


EXHIBIT
“G”


 


LETTER
OF ACCEPTANCE OF THE SHARED PAYMENT AND COLLATERAL AGENT


 


EXHIBIT
“H-1”


 


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


 


EXHIBIT
“H-2”


 


FORM
OF POWERS OF ATTORNEY TO BE GRANTED TO THE ASSET GRANTORS (IN CONNECTION WITH
THE SCHEDULED ASSETS)


 


EXHIBIT
“I”


 


FORM
OF POWER OF ATTORNEY TO BE GRANTED TO THE SHAREHOLDERS


 


49

















 


EXHIBIT
“J”


 


FORM
OF THE FORECLOSURE REQUEST


 


EXHIBIT
“K”


 


LIST
OF POSSIBLE ADVISORS


 


EXHIBIT
“L”


 


TRUSTEE’S
FEE LETTER


 


EXHIBIT
“M”


 


FORM
OF LETTER OF ADHERENCE TO BE DELIVERED TO THE TRUSTEE AND THE SHARED PAYMENT
AND COLLATERAL AGENT


 


50

















 


LIST OF SCHEDULES


 


 


SCHEDULE
“1”


 


DESCRIPTION
OF THE AMOUNTS OWED BY THE GRANTORS


 


SCHEDULE
“2”


 


DESCRIPTION
OF THE REAL ESTATE ASSETS


 


SCHEDULE
“3”


 


DESCRIPTION
OF THE TANGIBLE MOVABLE ASSETS


 


SCHEDULE
“4”


 


DESCRIPTION
OF ALL TRADEMARKS AND OTHER INTELLECTUAL PROPERTY HELD BY ANY OF THE ASSET
GRANTORS


 


SCHEDULE
“5”


 


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


 


SCHEDULE
“6”


 


DESCRIPTION
OF MINING EXPLOITATION CONCESSIONS HELD


BY
THE ASSET GRANTORS


 


SCHEDULE
“7”


 


DESCRIPTION
OF THE ASSET GRANTORS’ FACILITIES


 


SCHEDULE
“8”


 


DESCRIPTION
OF SCHEDULED ASSETS


 


SCHEDULE
“9”


 


DESCRIPTION
OF EXCLUDED ASSETS


 


SCHEDULE
“10”


 


DESCRIPTION
OF EXCLUDED CONCESSIONS


 


51

















 


SCHEDULE “A”


 


LIST
OF NON COMPLIANCES WITH APPLICABLE LAWS


 


SCHEDULE
“B”


 


LIST
OF LITIGATION


 


52