Exhibit 4.5
GRUPO INDUSTRIAL DURANGO, S.A. DE C.V.
AMENDED AND RESTATED UNSUBORDINATED PROMISSORY NOTE
U.S.$____________ Dated:______________
THIS AMENDED AND RESTATED UNSUBORDINATED PROMISSORY NOTE
(this "Unsubordinated Promissory Note") amends and restates
the Unsubordinated Promissory Note dated as of February 5,
2001 issued by the Borrower (as defined below) to the order
of the Creditor (as defined below).
FOR VALUE RECEIVED, the undersigned, GRUPO INDUSTRIAL DURANGO, S.A. de
C.V., a variable capital company (sociedad anonima de capital variable)
organized under the laws of the United Mexican States (the "Borrower", which
term includes any successor person), HEREBY PROMISES TO PAY to the order of
CORPORACION DURANGO, S.A. de C.V., a variable capital company (sociedad anonima
de capital variable) organized under the laws of the United Mexican States (the
"Creditor", which term includes any successor person or assignee) the principal
amount of $____________, or, if less, the unpaid principal of the indebtedness
evidenced hereby, on _______, ______ and to pay interest thereon from the date
hereof or the most recent interest payment date to which interest has been paid,
semiannually on ________ and __________ in each year, commencing on __________
at the rate of ___% per annum, until the principal amount hereof is paid in
full. Interest will be paid on the interest payment date or, if the interest
payment date is not a Business Day, on the next preceeding Business Day.
Interest is computed on the basis of a 360-day year of twelve 30-day months. The
term "Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in The City of New York are authorized by law to close.
Both principal and interest are payable in lawful money of the United
States of America to the Creditor at its principal office or such other location
or account as the Creditor may designate, in same day funds.
Additional Amounts
(a) Any and all payments by the Borrower hereunder shall be made free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions or charges or withholdings, and all liabilities with
respect thereto imposed by Mexico or any political subdivision thereof, or by
any other jurisdiction from which any amounts hereunder are paid by the
Borrower, excluding, taxes imposed on the Creditor's overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the jurisdiction
under the laws of which such Creditor is organized or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable hereunder, (i) the sum payable shall
be increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
paragraph) such Creditor receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) In addition, the Borrower shall pay any applicable present or
future stamp or documentary taxes or any other applicable excise or property
taxes, charges or similar levies that arise from any payment made hereunder or
from the execution, delivery or registration of, performing under, or otherwise
with respect to, this Unsubordinated Promissory Note.
Representations and Warranties
The Borrower represents and warrants as of the date hereof as follows:
(a) The Borrower is a variable capital company (sociedad anonima de
capital variable) duly organized and existing under the laws of Mexico.
(b) The execution, delivery and performance by the Borrower of this
Unsubordinated Promissory Note are within the Borrower's corporate powers,
have been duly authorized by all necessary corporate action, and do not
contravene (i) the Borrower's charter or by-laws or (ii) applicable law or
any material contractual restriction binding on or affecting the Borrower.
(c) No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for the due execution, delivery and performance by the Borrower of this
Note.
(d) This Unsubordinated Promissory Note is the legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms except as the enforceability thereof may be
limited by bankruptcy, insolvency, reorganiztion, or other similar laws
affecting the enforcement of creditors' rights generally and to general
equitable principles (regardless of whether the issue of enforceability is
considered in a proceeding in equity or at law).
Events of Default
If any of the following events ("Events of Default") shall occur and
be continuing:
(a) the Borrower shall fail to pay any principal of, or interest on,
this Unsubordinated Promissory Note when the same becomes due and payable;
or
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(b) any event of default shall exist under any agreement or instrument
relating to any indebtedness of the Borrower having an outstanding
principal amount of US$25 million or more and such indebtedness shall be
declared to be immediately due and payable, or required to be prepaid in
full (other than by a regularly scheduled required prepayment), redeemed,
purchased or defeased, or an offer to prepay, redeem, purchase or defease
such indebtedness in full shall be required to be made, in each case prior
to the stated maturity thereof and such acceleration shall not have been
waived or extended within 30 consecutive days of the acceleration; or
(c) the Borrower fails to make a principal payment at the final
maturity of any loan having an outstanding principal amount of US$25
million or more and such defaulted payment is not waived or extended within
30 consecutive days of the payment default; or
(d) an event of default specified in clauses (a), (b), (g) or (h) of
Section 501 of the Indenture dated as of the date hereof between
Corporacion Durango, S.A. de C.V., as issuer, and The Chase Manhattan Bank,
as trustee (the "Trustee"), under which Corporacion Durango, S.A. de C.V.
issued its 13?% Senior Notes due 2006 (the "Senior Notes") occurs and such
notes are either automatically accelerated or accelerated by the holders of
such notes;
then, and in any such event, the Creditor may, by notice to the Borrower,
declare this Note, all interest thereon and all other amounts payable under this
Note to be forthwith due and payable, whereupon this Note, all such interest and
all such amounts shall become and be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that in the event of
an entry of an order for relief with respect to the Borrower under Mexican
bankruptcy law, this Note, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
Miscellaneous
Consideration. This Unsubordinated Promissory Note has been issued to
the Creditor in consideration for (i) the cancellation or discharge, by the
Creditor, of $_______________ of the Borrower's 12 5/8% Notes due 2003 (the "GID
Notes") tendered in an exchange offer launched by the Creditor on _____________
(the "Exchange Offer") and the payment by the Creditor of premium, fees and
expenses related to the Exchange Offer, (ii) the cancelation or discharge of
$150 million of the Borrower's 12% Notes in February 2001, and (iii) the
repayment by the Creditor, on behalf of the Borrower, of $30 million of
short-term indebtedness owed by the Borrower to Banamex and The Chase Manhattan
Bank in February 2001.
Amendments, Etc. (a) Prior to the date (the "Pledge Release Date") on
which the Trustee terminates the security interest created in this
Unsubordinated Promissory Note by the Pledge Agreement dated as of the date
hereof between the Trustee and Corporacion Durango, S.A. de C.V., no amendment
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or waiver of any provision of this Note, nor consent to any departure by the
Borrower herefrom, shall in any event be effective unless the same shall be in
writing and signed by the Trustee and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
(b) Subsequent to the Pledge Release Date and until the maturity of
the exchange notes, this Unsubordinated Promissory Note may be modified so long
as the interest rate of this Unsubordinated Promissory Note is no less than the
interest rate of the Senior Notes.
Prepayments. Prepayments of principal hereunder may be made so long
as, after giving effect to such prepayment, the outstanding principal amount
under the Unsubordinated Promissory Note would be no less than the outstanding
principal amount of the Senior Notes.
Notices, Etc. All notices and other communications provided for
hereunder shall be in writing (including telecopier, telegraphic, telex or cable
communication) and sent via reputable commercial courier, telecopied,
telegraphed, telexed, cabled or delivered, if to the Borrower, at its address at
Grupo Industrial Durango, S.A. de C.V., Torre Corporacion Durango, Potasio 150,
Ciudad Industrial, Durango, Durango, United Mexican States, Attention: Legal
Counsel, or at such other address as shall be designated by the Borrower in
writing to the Creditor; and if to the Creditor, as shall be designated by such
Creditor in a written notice to Borrower. All such notices and communications
shall, when couriered, telecopied, telegraphed, telexed or cabled, be effective
when picked up by courier, telecopied, delivered to the telegraph company,
confirmed by telex answerback or delivered to the cable company, respectively.
No Waiver; Remedies. No failure on the part of the Creditor to
exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Costs and Expenses. The Borrower agrees to pay on demand all losses,
costs and expenses, if any (including reasonable counsel fees and expenses), in
connection with the enforcement (whether through negotiations, legal proceedings
or otherwise) of this Unsubordinated Promissory Note.
Binding Effect. This Note shall be binding upon and inure to the
benefit of the Borrower and the Creditor and their respective successors and
assigns, except that the Borrower shall not have the right to assign its rights
hereunder.
Jurisdiction. Each party hereto irrevocably agrees that any legal
suit, action or proceeding arising out of or relating to this Unsubordinated
Promissory Note may be instituted in any federal or state court in the Borough
of Manhattan, The City of New York, waives any objection which it may now or
hereafter have to the laying of the venue of any such legal suit, action or
proceeding, waives any immunity from jurisdiction or to service of process in
respect of any such suit, action or proceeding, waives any right to which it may
be entitled on account of place of residence or domicile and irrevocably submits
to the jurisdiction of any such court in any such suit, action or proceeding.
The Borrower agrees that a final judgment in any such suit, action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law in accordance with applicable
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law. The Borrower hereby appoints Durango Paper Company, 0000 Xxxxxxx Xxxxxx,
Xx. Xxxxx, Xxxxxxx 00000, Attention: Xxxxxxxxx Xxxxxxxx, as its authorized agent
upon which process may be served in any legal suit, action or proceeding arising
out of or relating to this Unsubordinated Promissory Note which may be
instituted in any federal or state court in the Borough of Manhattan, The City
of New York, and agrees that service of process upon such agent, and written
notice of said service to the Borrower by the person serving the same, shall be
deemed in every respect effective service of process upon the Borrower in any
such suit, action or proceeding and further designates its domicile, the
domicile of Durango Paper Company specified above and any domicile Durango Paper
Company may have in the future as its domicile to receive any notice hereunder
(including service of process). If for any reason Durango Paper Company (or any
successor agent for this purpose) shall cease to act as agent for service of
process as provided above, the Borrower will promptly appoint a successor agent
for this purpose reasonably acceptable to the Creditor. The Borrower agrees to
take any and all actions as may be necessary to maintain such designation and
appointment of such agent in full force and effect.
Judgment Currency. If for the purpose of obtaining judgment in any
court it is necessary to convert an amount due under this Unsubordinated
Promissory Note into any currency other than United States dollars, the parties
hereto agree, to the fullest extent permitted under applicable law, that the
rate of exchange used shall be the rate at which, in accordance with normal
banking procedures, the Creditor could purchase United States dollars with such
other currency in The City of New York on the Business Day preceding that on
which final judgment is given. To the fullest extent permitted under applicable
law, the obligation of the Borrower with respect to any sum due under this
Unsubordinated Promissory Note, notwithstanding any judgment in a currency other
than United States dollars, shall not be discharged, following receipt by the
Creditor of such amount adjudged to be so due in such other currency, until the
first Business Day on which (and only to the extent that) the Creditor may in
accordance with normal banking procedures purchase United States dollars with
such other currency, and if the amount of United States dollars so purchased is
less than the amount originally due to the Creditor hereunder, the Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify the Creditor against such loss. If the United States dollars so
purchased are greater than the amount originally due to the Creditor hereunder,
the Creditor agrees to pay the Borrower an amount equal to the excess of the
United States dollars so purchased over the sum originally due to the Creditor
hereunder.
Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York, United States.
WAIVER OF JURY TRIAL. THE BORROWER AND THE CREDITOR EACH IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
(WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO
THIS UNSUBORDINATED PROMISSORY NOTE OR THE ACTIONS OF THE CREDITOR IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT THEREOF.
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IN WITNESS WHEREOF, the Borrower has caused this Unsubordinated
Promissory Note to be executed by its officer thereunto duly authorized, as of
the date first above written.
GRUPO INDUSTRIAL DURANGO, S.A. de C.V.
By___________________________________
Title:
This Unsubordinated Promissory Note has been endorsed to The Chase Manhattan
Bank, as trustee, by Corporacion Durango, S.A. de C.V. pursuant to the terms of
the Amended and Restated Pledge Agreement dated as of the date hereof between
The Chase Manhattan Bank and Corporacion Durango, S.A. de C.V. on this ____ day
of __________ in ___________________, ______________________.
CORPORACION DURANGO, S.A. de C.V.
By_______________________________
Title:
