Exhibit 2.3
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of October 8, 2001 (the "First
Supplemental Indenture"), among CORPORACION DURANGO, S.A. DE C.V., a corporation
duly organized and existing under the laws of the United Mexican States
("Corporacion Durango"), GRUPO INDUSTRIAL DURANGO, S.A. DE C.V., a corporation
duly organized and existing under the laws of the United Mexican States ("GID"),
and THE CHASE MANHATTAN BANK, a banking corporation duly organized and existing
under the laws of New York, as Trustee (the "Trustee") under the Indenture,
dated as of February 5, 2001 (the "Indenture").
WHEREAS, Corporacion Durango and GID have entered into a Merger
Agreement, dated as of October 8, 2001, pursuant to which Corporacion Durango
proposes to merge with and into GID upon the terms and subject to the conditions
provided therein (the "Merger"); and
WHEREAS, Section 801(a) of the Indenture restricts the ability of
Corporacion Durango to merge into another Person, unless, among other things,
such Person expressly assumes by a supplemental indenture to the Indenture,
executed and delivered to the Trustee, all of the obligations of Corporacion
Durango under the Securities and the Indenture; and
WHEREAS, in order to satisfy the condition described in the immediately
proceeding paragraph, Corporacion Durango desires to amend the Indenture to
provide for the assumption of Corporacion Durango's obligations under the
Indenture by GID; and
WHEREAS, pursuant to Section 901 of the Indenture, Corporacion Durango,
when authorized by a Board Resolution, and the Trustee, may amend or supplement
certain provisions of the Indenture; and
WHEREAS, this First Supplemental Indenture has been duly authorized by
all necessary corporate action on the part of Corporacion Durango and GID, and
each of Corporacion Durango, GID and the Trustee have consented to amend the
Indenture in accordance with the terms and conditions therein;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, each of
Corporacion Durango, GID and the Trustee hereby agree for the benefit of each
other and the equal and ratable benefit of the Holders of the Notes as follows:
ARTICLE I
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ASSUMPTION BY SUCCESSOR CORPORATION
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Section 1.01. Assumption of Obligations. GID, as the surviving entity
in the Merger, hereby expressly assumes the due and punctual payment of the
principal of and premium, if any, and interest on all of the Securities and the
due and punctual performance of all of the obligations and conditions of the
Indenture and the Securities.
ARTICLE II
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CONDITIONS PRECEDENT
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Section 2.01. Effectiveness of Supplemental Indenture. This First
Supplemental Indenture shall become effective on the date (the "Effective Date")
on which each of the following conditions has been satisfied: (i) each of
Corporacion Durango, GID and the Trustee shall have duly executed and delivered
this First Supplemental Indenture; (ii) the Merger shall have been consummated
in accordance with Mexican law; (iii) the Trustee shall have received from GID
an officer's certificate, substantially in the form of Exhibit A; and (iv) the
Trustee shall have received an opinion of New York counsel, substantially in the
form of Exhibit B. Following the effectiveness hereof, the Indenture shall be
deemed supplemented in accordance herewith, and this First Supplemental
Indenture shall form a part of the Indenture for all purposes, and every Holder
of Securities heretofore or hereafter authenticated and delivered under the
Indenture shall be bound thereby.
ARTICLE III
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MISCELLANEOUS
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Section 3.01. Construction. For all purposes of this First Supplemental
Indenture (i) all capitalized terms used herein but not defined herein shall
have the meanings given in the Indenture, unless otherwise indicated and (ii)
the words "herein," "hereof" and "hereby" and other words of similar import used
in this First Supplemental Indenture refer to this First Supplemental Indenture
as a whole and not to any particular Section hereof.
Section 3.02. Trustee Acceptance. The Trustee accepts the amendment of
the Indenture effected by this First Supplemental Indenture, but only upon the
terms and conditions set forth in the Indenture, as hereby amended, including
the terms and provisions defining and limiting the liabilities and
responsibilities of the Trustee in the performance of its duties and obligations
under the Indenture, as hereby amended. Without limiting the generality of the
foregoing, the Trustee has no responsibility for the correctness of the recitals
of fact herein contained which shall be taken as the statements of Corporacion
Durango and GID, and makes no representations as to the validity or
enforceability against Corporacion Durango and GID.
Section 3.03. Indenture Ratified. The Indenture, as supplemented and
amended by this First Supplemental Indenture and all other indentures
supplemental thereto, is in all respects ratified and confirmed, and the
Indenture, this First Supplemental Indenture and all indentures supplemental
thereto shall be read, taken and construed as one and the same instrument.
Except as expressly amended hereby, the Indenture is in all respects ratified
and confirmed and all the terms, conditions and provisions thereof shall remain
in full force and effect.
Section 3.04. Parties Bound. Upon the effectiveness of this First
Supplemental Indenture, the Indenture and the Notes theretofore issued shall be
deemed to be modified and amended in accordance with this First Supplemental
Indenture and the respective rights, limitation of rights, obligations, duties
and immunities under the Indenture of GID (as successor
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in interest to Corporacion Durango) and the Trustee and the Holders of the Notes
shall thereafter be determined, exercised and enforced thereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of this First Supplemental Indenture shall be and be deemed to be part of the
terms and conditions of the Indenture and the Notes theretofore issued for any
and all purposes.
Section 3.05. Successors and Assignees. This First Supplemental
Indenture shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns.
Section 3.06. Counterparts. This First Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section 3.07. Severability. In case any provision in this First
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 3.08. Headings. The headings of the Articles and Sections of
this First Supplemental Indenture have been inserted for convenience of
reference only and are not to be considered part of this First Supplemental
Indenture and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 3.09. Governing Law. This First Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of
New York without giving effect to principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed as of the date first above written.
CORPORACION DURANGO, S.A. DE C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
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Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Chief Financial Officer
GRUPO INDUSTRIAL DURANGO, S.A. DE C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
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Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, as Trustee
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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