Exhibit 4.4
Draft: June 26, 2001
AMENDED AND RESTATED PLEDGE AGREEMENT
Dated as of ____________ , 2001
Between
CORPORACION DURANGO, S.A. DE C.V., as Pledgor
and
THE CHASE MANHATTAN BANK, as Trustee
AMENDED AND RESTATED PLEDGE AGREEMENT
This PLEDGE AGREEMENT (this "Pledge Agreement") is amended and
restated as of ____________, 2001 between 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 "Pledgor"), having its principal
office at Torre Corporativa Durango, Potasio 150, Ciudad Industrial, Durango,
Durango, United Mexican States 34220, and THE CHASE MANHATTAN BANK, a banking
corporation duly organized and existing under the laws of New York, having an
office at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000-0000, as trustee
(the "Trustee") for the holders (the "Holders") of the Notes (as defined
herein). Capitalized terms used herein and not otherwise defined herein shall
have the meanings given to such terms in the Indenture.
W I T N E S S E T H
WHEREAS, the Pledgor and the Trustee entered into that certain
indenture dated February 5, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which the
Pledgor issued its 13 1/8% Senior Notes due 2006 (the "Notes") in an aggregate
principal amount of US$180 million; and
WHEREAS, to secure the obligations of the Pledgor under the Indenture
and the Notes (the "Obligations") the Pledgor (i) pledged to the Trustee for its
benefit and the ratable benefit of the Holders of the Original Notes, a security
interest in a US$180 million unsubordinated promissory note dated February 5,
2001 (as amended or supplemented from time to time, the "Promissory Note")
issued by Grupo Industrial Durango, S.A. de C.V., a variable capital company
(sociedad anonima de capital variable) organized under the laws of the United
Mexican States ("GID"), to the Pledgor, and all interest, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for the Promissory Note and (ii) executed and
delivered this Pledge Agreement in order to secure the payment and performance
by the Pledgor of the Obligations; and
WHEREAS, in accordance with the terms of the Indenture the Pledgor is
issuing an additional US$___ million in aggregate principal amount of the Notes;
WHEREAS, Section 1018 of the Indenture requires that the principal
amount outstanding under the Promissory Note to be at least equal to the
outstanding principal amount of the Notes; and
WHEREAS, the Promissory Note has been amended and restated as of the
date hereof in order to increase the principal amount outstanding thereunder
from US$180 million to US$___ million in order to comply with Section 1018 of
the Indenture; and
WHEREAS, the Pledgor and the Trustee are amending and restating this
agreement in order to confirm the continuation of the security interest in the
Promissory Note, as amended and restated on the date hereof; and
WHEREAS, it is a condition precedent to the issuance of additional
Notes by the Pledgor that the Pledgor shall have entered into this Pledge
Agreement;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and in order to induce the Holders of the Notes to purchase such
Notes, the Pledgor hereby agrees with the Trustee, for the benefit of the
Trustee and for the ratable benefit of the Holders of the Notes, as follows:
SECTION 1. Pledge and Grant of Security Interest. The Pledgor hereby
assigns and pledges to the Trustee for its benefit and for the ratable benefit
of the Holders of the Notes, and hereby grants to the Trustee for its benefit
and for the ratable benefit of the Holders of the Notes, a security interest in
the following (the "Collateral"):
(a) the Promissory Note, as amended and restated on the date hereof,
issued by GID to the Pledgor in an aggregate principal amount of
US$_________, a copy of which is attached hereto as Exhibit A, and all
interest, cash, instruments and other property from time to time received,
receivable or otherwise distributed in respect of or in exchange for the
Promissory Note, and
(b) all proceeds of any or all of the foregoing.
SECTION 2. Security for Obligation. This Pledge Agreement and the
grant of a security interest in the Collateral hereunder secures the prompt and
complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of all the Obligations, whether for principal,
interest, fees or otherwise, now or hereafter existing, under this Pledge
Agreement, the Notes or the Indenture (all such Obligations being the "Secured
Obligations"). Without limiting the generality of the foregoing, this Pledge
Agreement and the grant of a security interest in the Collateral hereunder
secures the payment of all amounts that constitute part of the Secured
Obligations and would be owed by the Pledgor to the Trustee or the Holders under
the Notes or the Indenture but for the fact that they are unenforceable or not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Pledgor.
SECTION 3. Delivery of Collateral. The Promissory Note is hereby
endorsed and delivered by the Pledgor to the Trustee and is accompanied by an
Acknowledgement and Consent Agreement (the "Acknowledgement and Consent
Agreement"), substantially in the form of Exhibit B hereto, executed by GID,
whereby GID, among other things, acknowledges and consents to the pledge of the
Promissory Note by the Pledgor.
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SECTION 4. Representations and Warranties. The Pledgor hereby
represents and warrants as of the date hereof that:
(a) The execution and delivery by the Pledgor of, and the performance
by the Pledgor of its obligations under, this Pledge Agreement do not and
will not contravene any provision of applicable law or the estatutos
sociales of the Pledgor or any material agreement or other material
instrument binding upon the Pledgor or any of its subsidiaries or any
judgment, order, decree, license or permit of any governmental body, agency
or court having jurisdiction over the Pledgor or any of its Restricted
Subsidiaries, or result in the creation or imposition of any Lien on any
assets of the Pledgor, except for the security interests granted under this
Pledge Agreement.
(b) No consent of any other person and no approval, authorization,
order of, action by or qualification with, any governmental authority,
regulatory body, agency or other third party is required (i) for the
execution, delivery or performance by the Pledgor of its obligations under
this Pledge Agreement, (ii) for the grant by the Pledgor of the security
interest created hereby, for the pledge by the Pledgor of the Collateral
pursuant to this Pledge Agreement or (iii) for the exercise by the Trustee
of the rights provided for in this Pledge Agreement or the remedies in
respect of the Collateral pursuant to this Pledge Agreement.
(c) The Pledgor is the owner of the Collateral, free and clear of any
Lien or claims of any person or entity (except for the security interests
created by this Pledge Agreement).
(d) This Pledge Agreement has been duly authorized and validly
executed and delivered by the Pledgor and constitutes a valid and binding
agreement of the Pledgor, enforceable against the Pledgor in accordance
with its terms except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, 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).
(e) Upon the delivery of the Promissory Note to the Trustee the pledge
and grant of a security interest in the Collateral pursuant to this Pledge
Agreement for the benefit of the Trustee and the Holders of the Notes will
constitute a valid and perfected first priority security interest in the
Collateral, securing the payment of the Secured Obligations.
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(f) There are no legal or governmental proceedings pending or, to the
best of the Pledgor's knowledge, threatened to which the Pledgor or any of
its Restricted Subsidiaries is a party that would affect the power or
ability of the Pledgor to perform its obligations under this Pledge
Agreement or to consummate the transactions contemplated hereby.
(g) Neither the Pledgor nor the Collateral has any immunity from
jurisdiction of any court or from set-off or any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise).
(h) There is no tax, levy, impost, deduction, charge or withholding
imposed by the Pledgor's jurisdiction of incorporation or any organization
or any political subdivision thereof on or by virtue of the execution or
delivery of this Agreement.
(i) To ensure the legality, validity, enforceability or admissibility
in evidence of this Agreement in the Pledgor's jurisdiction of
incorporation, it is not necessary that this Pledge Agreement or any other
document be filed or recorded with any court or other authority in such
jurisdiction or that any stamp or similar tax be paid on or in respect of
this Pledge Agreement.
(j) GID has duly executed and delivered the Acknowledgement and
Consent Agreement.
SECTION 5. Further Assurances. The Pledgor agrees that at any time and
from time to time, at the expense of the Pledgor, it will promptly execute and
deliver all further instruments and documents, and take all reasonable further
action, that may be necessary, or that the Trustee may reasonably request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Trustee to exercise and enforce its rights and
remedies hereunder with respect to the Collateral.
SECTION 6. Covenants. The Pledgor covenants and agrees with the
Trustee and the Holders of the Notes that from and after the date of this Pledge
Agreement until the date that this Pledge Agreement is terminated pursuant to
Section 20 hereof:
(a) that (i) it will not (and will not purport to) sell or otherwise
dispose of the Collateral or its beneficial interest therein, and (ii) it
will not create or permit to exist any Lien or other adverse interest in or
with respect to its beneficial interest in the Collateral (except for the
security interests granted under this Pledge Agreement);
(b) that it will not (i) enter into any agreement or understanding
that restricts or inhibits or purports to restrict or inhibit the Trustee's
rights or remedies hereunder, or (ii) fail to pay or discharge any tax,
assessment or levy of any nature with respect to its beneficial interest in
the Collateral not later than five days prior to the date of any proposed
sale under any judgment, writ or warrant of attachment with respect to such
beneficial interest; and
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(c) that it will not amend, waive or otherwise modify any term of the
Promissory Note except as permitted thereunder.
SECTION 7. Power of Attorney. The Pledgor hereby appoints and
constitutes the Trustee as the Pledgor's attorney-in-fact (with full power of
substitution), with full authority in the place and stead of the Pledgor and in
the name of the Pledgor or otherwise, from time to time in the Trustee's
discretion following the occurrence and during the continuation of an Event of
Default to take any action and to execute any instrument that the Trustee may
deem necessary or advisable to accomplish the purposes of this Pledge Agreement;
provided, however, that the Trustee shall have no obligation to perform any of
the foregoing actions. The Pledgor agrees that if the power-of-attorney granted
hereunder shall require any formalities under Mexican law, the pledgor shall
take any and all action reasonably requested by the Trustee to complete such
formalities.
SECTION 8. No Assumption of Duties; Reasonable Care. The rights and
powers conferred on the Trustee hereunder are solely to preserve and protect the
security interest of the Trustee and the Holders of the Notes in and to the
Collateral granted hereby and shall not be interpreted to, and shall not impose
any duties on the Trustee in connection therewith other than those expressly
provided herein or imposed under applicable law. Except as provided by
applicable law or by the Indenture, the Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Collateral in
its possession if the Collateral is accorded treatment substantially equal to
that which the Trustee accords similar property held by the Trustee for its own
account, it being understood that the Trustee in its capacity as such shall not
have any responsibility for (a) ascertaining or taking action with respect to
calls, conversions, exchanges, maturities or other matters relative to any
Collateral, whether or not the Trustee has or is deemed to have knowledge of
such matters, (b) taking any necessary steps to preserve rights against any
parties with respect to any Collateral or (c) investing or reinvesting any of
the Collateral or any loss on any investment.
SECTION 9. Indemnity; Trustee's Limitation of Liability to Pledgor.
(a) The Pledgor shall indemnify, reimburse, hold harmless and defend the Trustee
and its directors, officers, agents and employees, from and against any and all
claims, actions, obligations, liabilities and expenses, including reasonable
defense costs, reasonable investigative fees and costs, and reasonable legal
fees and damages arising from the Trustee's performance or lack of performance
as Trustee under this Pledge Agreement, except to the extent that such claim,
action, obligation, liability or expense is directly attributable to the bad
faith, gross negligence or willful misconduct of such indemnified person. This
indemnity shall be a continuing obligation of the Pledgor, its respective
successors and assigns, notwithstanding the termination of this Pledge
Agreement.
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(b) If at any time the Trustee is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects Collateral (including, but
not limited to, orders of attachment or garnishment or other forms of
levies or injunctions or stays relating to the transfer of Collateral), the
Trustee is authorized to comply therewith in any manner as it or its legal
counsel of its own choosing deems appropriate and if the Trustee complies
with any such judicial or administrative order, judgment, decree, writ or
other form of judicial or administrative process, the Trustee shall not be
liable to the Pledgor even though such order, judgment, decree, writ or
process may be subsequently modified or vacated or otherwise determined to
have been without legal force or effect.
(c) The Trustee shall not incur any liability to the Pledgor for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of the Trustee
(including, but not limited to, any act or provision or any present or
future law or regulation or governmental authority, any act of God or war,
or the unavailability of the Federal Reserve Bank wire or telex or other
wire or communication facility).
(d) The Trustee shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities
deposited hereunder, or for any description therein, or for the identity,
authority or rights of persons executing or delivering or purporting to
execute or deliver any such document, security or endorsement.
SECTION 10. Remedies Upon Event of Default. If any Event of Default
under the Indenture (any such Event of Default being referred to in this Pledge
Agreement as an "Event of Default") shall have occurred and be continuing:
(a) The Trustee may exercise in respect of the Collateral, in addition
to other rights and remedies provided for herein or otherwise available to
it, all the rights and remedies of a secured party upon default under the
Uniform Commercial Code in effect in the State of New York at such time
(the "N.Y. Uniform Commercial Code") (whether or not the N.Y. Uniform
Commercial Code applies to the affected Collateral) and also may without
notice except as specified below, sell the Collateral or any part thereof
in one or more parcels at public or private sale, at any of the Trustee's
offices or elsewhere, for cash, on credit or for future delivery, and upon
such other terms as the Trustee may deem commercially reasonable. To the
extent notice of sale shall be required by law, at least 10 Business Days'
notice to the Pledgor of the time and place of any public sale or the time
after which any private sale is to be made shall constitute reasonable
notification. The Trustee shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. The Trustee may
adjourn any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
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(b) All cash proceeds received by the Trustee in respect of any sale
of, collection from, or other realization upon all or any part of the
Collateral may, in the discretion of the Trustee, be held by the Trustee as
collateral for, and/or then or at any time thereafter applied in whole or
in part by the Trustee for the ratable benefit of the Holders of the Notes
against, all or any part of the Secured Obligations in such order as the
Trustee shall elect. Any surplus of such cash or cash proceeds held by the
Trustee and remaining after payment in full of all the Secured Obligations
shall be paid over to the Pledgor or to whomsoever may be lawfully entitled
to receive such surplus.
SECTION 11. Security Interest Absolute. The obligations of the Pledgor
under this Agreement are independent of the Secured Obligations, and a separate
action or actions may be brought and prosecuted against the Pledgor to enforce
this Pledge Agreement, irrespective of whether any action is brought against the
Pledgor or whether the Pledgor is joined in any such action or actions. All
rights of the Trustee and the Holders of the Notes and the pledge, assignment
and security interest hereunder, and all obligations of the Pledgor hereunder,
shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of the Indenture or Notes
or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Secured Obligations, or any other
amendment or waiver of or any consent to any departure from the Indenture;
(c) any taking, exchange, surrender, release or non-perfection of any
Liens on any other collateral for all or any of the Secured Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Secured Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Secured Obligations or
any other assets of the Pledgor;
(e) any change, restructuring or termination of the corporate
structure or existence of the Pledgor; or
(f) any other circumstance which might otherwise constitute a defense
available to, or a discharge of, the Pledgor in respect of the Secured
Obligations or of this Pledge Agreement.
SECTION 12. Notices. Any notice or communication given hereunder shall
be sufficiently given if in writing and delivered in person or mailed by
reputable commercial courier service or telecopier communication, addressed as
follows:
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if to the Pledgor:
Corporacion Durango, S.A. de X.X.
Xxxxx Corporacion Durango
Potasio 000
Xxxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Attention: Legal Counsel
if to the Trustee:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxxxx
All such notices and other communications shall, when sent by reputable
commercial courier, telecopied or telexed, respectively, be effective when
couriered, transmitted by telecopier or confirmed by telex answerback,
respectively, addressed as aforesaid.
Section 13. Severability. The provisions of this Pledge Agreement are
severable, and if any clause or provision shall be held invalid, illegal or
unenforceable in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect in that jurisdiction only such clause or
provision, or part thereof, and shall not in any manner affect such clause or
provision in any other jurisdiction or any other clause or provision of this
Pledge Agreement in any jurisdiction.
Section 14. Headings. The headings in this Pledge Agreement have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15. Counterpart Originals. This Pledge Agreement may be signed
in two or more counterparts, each of which shall be deemed an original, but all
of which shall together constitute one and the same agreement.
Section 16. Benefits of Pledge Agreement. Nothing in this Pledge
Agreement, express or implied, shall give to any person, other than the parties
hereto and their successors hereunder, and the Holders of the Notes, any benefit
or any legal or equitable right, remedy or claim under this Pledge Agreement.
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Section 17. Amendments, Waivers and Consents. Any amendment or waiver
of any provision of this Pledge Agreement and any consent to any departure by
the Pledgor from any provision of this Pledge Agreement shall be effective only
if made or duly given in compliance with all of the terms and provisions of the
Indenture, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. Neither the
Trustee nor any Holder of Notes shall be deemed, by any act, delay, indulgence,
omission or otherwise, to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. Failure of the Trustee or any Holder of Notes to
exercise, or delay in exercising, any right, power or privilege hereunder shall
not preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. A waiver by the Trustee or any Holder of Notes of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy that the Trustee or such Holder of Notes would otherwise
have on any future occasion. The rights and remedies herein provided are
cumulative, may be exercised singly or concurrently and are not exclusive of any
rights or remedies provided by law.
Section 18. Interpretation of Agreement. As long as the Trustee acts
in good faith to the extent a term or provision of this Pledge Agreement
conflicts with the Indenture, the Indenture shall control with respect to the
subject matter of such term or provision. Notwithstanding the foregoing and any
other provision of this Pledge Agreement or the Indenture, the Trustee shall
have no fiduciary responsibility under this Pledge Agreement.
Section 19. Continuing Security Interest. This Pledge Agreement shall
create a continuing security interest in and to the Collateral and shall, unless
otherwise provided in this Pledge Agreement, remain in full force and effect
until the payment in full in cash of the Secured Obligations. This Pledge
Agreement shall be binding upon the Pledgor, its transferees, successors and
assigns, and shall inure, together with the rights and remedies of the Trustee
hereunder, to the benefit of the Trustee, the Holders of the Notes and their
respective successors, transferees and assigns.
Section 20. Termination. So long as no Event of Default shall have
occurred and be continuing, this Pledge Agreement shall terminate upon the
earlier of (i) the payment in full in cash of the Secured Obligations and (ii)
the Pledge Release Date (as defined in the Supplemental Indenture). Upon any
such termination, the Trustee will, at the Pledgor's expense, execute and
deliver to the Pledgor such documents as the Pledgor shall reasonably request to
evidence such termination.
Section 21. Survival of Representations and Covenants. All
representations, warranties and covenants of the Pledgor contained herein shall
survive the execution and delivery of this Pledge Agreement, and shall terminate
only upon the termination of this Pledge Agreement.
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Section 22. Authority of the Trustee. (a) The Trustee shall have and
be entitled to exercise all powers hereunder that are specifically granted to
the Trustee by the terms hereof, together with such powers as are reasonably
incident thereto. The Trustee may perform any of its duties hereunder or in
connection with the Collateral by or through agents or employees and shall be
entitled to retain counsel and to act in reliance upon the advice of counsel
concerning all such matters. Except as otherwise expressly provided in this
Pledge Agreement or the Indenture, neither the Trustee nor any director,
officer, employee, attorney or agent of the Trustee shall be liable to the
Pledgor for any action taken or omitted to be taken by the Trustee, in its
capacity as Trustee, hereunder, except for its own bad faith, gross negligence
or willful misconduct, and the Trustee shall not be responsible for the
validity, effectiveness or sufficiency hereof or of any document or security
furnished pursuant hereto. The Trustee and its directors, officers, employees,
attorneys and agents shall be entitled to rely on any communication, instrument
or document believed by it or them to be genuine and correct and to have been
signed or sent by the proper person or persons.
(b) The Pledgor acknowledges that the rights and responsibilities of
the Trustee under this Pledge Agreement with respect to any action taken by the
Trustee or the exercise or non-exercise by the Trustee of any option, right,
request, judgment or other right or remedy provided for herein or resulting or
arising out of this Pledge Agreement shall, as between the Trustee and the
Holders of the Notes, be governed by the Indenture and by such other agreements
with respect thereto as may exist from time to time among them, but, as between
the Trustee and the Pledgor, the Trustee shall be conclusively presumed to be
acting as agent for the Holders of the Notes with full and valid authority so to
act or refrain from acting, and the Pledgor shall not be obligated or entitled
to make any inquiry respecting such authority.
Section 23. Rights of Holders of the Notes. No Holder of Notes shall
have any independent rights hereunder other than those rights granted to
individual Holders of the Notes pursuant to the Indenture; provided that nothing
in this subsection shall limit any rights granted to the Trustee under the Notes
or the Indenture.
Section 24. Governing Law; Submission to Jurisdiction; Terms. (a) This
Pledge Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York. Unless otherwise defined herein, terms defined in
Article 9 of the Uniform Commercial Code of the State of New York are used
herein as therein defined.
(b) The Pledgor hereby irrevocably submits to the jurisdiction of any
New York State or Federal court (to the extent such court has subject matter
jurisdiction) sitting in New York City and to the courts of its own corporate
domicile in respect of any actions brought against it as a defendant and any
appellate court from any thereof in any action or proceeding arising out of or
relating to this Pledge Agreement, and the Pledgor hereby irrevocably agrees
that all claims in respect of such action or proceeding may be heard and
determined in any such court.
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The Pledgor hereby irrevocably waives, to the fullest extent it may effectively
do so, the defense of an inconvenient forum to the maintenance of such action or
proceeding and any right which it may be entitled on account of place of
residence or domicile. Solely for the purposes of this Pledge Agreement, to the
full extent permitted by law the Pledgor hereby irrevocably appoints Durango
Paper Company, 0000 Xxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxxxxx Xxxxxxxx, as its agent to receive on behalf of the Pledgor and its
property service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding. Such service may be made
by mailing or delivering a copy of such process to the Pledgor in care of the
Durango Paper Company at such its address stated above, and the Pledgor hereby
irrevocably authorizes and directs Durango Paper Company to accept such service
on its behalf. The Pledgor agrees that a final judgment in any such 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 applicable law.
(c) Nothing in this Section 24 shall affect the right of the Trustee
to serve legal process in any other manner permitted by applicable law or affect
any right which the Trustee would otherwise have to bring any action or
proceeding against the Pledgor or its property in the courts of other
jurisdictions.
(d) To the extent that the Pledgor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property, the
Pledgor to the extent permitted by law hereby irrevocably waives such immunity
in respect of its obligations under this Pledge Agreement and, without limiting
the generality of the foregoing, agrees that the waivers set forth in this
subsection (d) shall have the fullest scope permitted under the United States
Foreign Sovereign Immunities Act of 1976, as amended, and are intended to be
irrevocable for purposes of such Act.
Section 25. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY 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 PLEDGE AGREEMENT, THE TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF
THE PLEDGOR OR THE TRUSTEE OR ANY HOLDER OF NOTES IN THE ADMINISTRATION,
PERFORMANCE OR ENFORCEMENT THEREOF.
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Section 26. Waiver of Liability. The Pledgor agrees that neither
the Holder of Notes nor the Trustee in its capacity as Trustee shall have any
liability to the Pledgor (whether arising in tort, contract or otherwise) for
losses suffered by the Pledgor in connection with, arising out of, or in any way
related to, the transactions contemplated by this Pledge Agreement, or any act,
omission or event occurring in connection therewith, unless it is determined by
a final nonappealable judgment of a court that is binding on the Trustee or such
Holder of Notes, as the case may be, that such losses were the result of acts or
omissions on the part of the Trustee or such Holders of Notes, as the case may
be, constituting bad faith, gross negligence, or willful misconduct.
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IN WITNESS WHEREOF, the Pledgor and the Trustee have each caused this
Pledge Agreement to be duly executed and delivered as of the date first above
written.
Pledgor:
CORPORACION DURANGO, S.A. DE C.V.
By:______________________________
Name:
Title:
Trustee:
THE CHASE MANHATTAN BANK
By:____________________________
Name:
Title:
EXHIBIT A
Form of GID Unsubordinated Promissory Note
EXHIBIT B
Form of Acknowledgment and Consent Agreement
The undersigned hereby acknowledges notice of, and consents to the
terms and provisions of, the Pledge Agreement as amended and restated on
_________, 2001 (the "Pledge Agreement", the terms defined therein being used
herein as therein defined) between Corporacion Durango, S.A. de C.V. (the
"Pledgor") and The Chase Manhattan Bank, as Trustee (the "Trustee") for the
holders of the 13 1/8% Senior Notes due 2006 (the "Senior Notes") issued under
the Indenture dated as of February 5, 2001 between the Pledgor and the Trustee,
and hereby agrees with the Trustee that:
(a) The Trustee shall be entitled to exercise any and all rights and
remedies of the Pledgor under the unsubordinated promissory note
issued by the undersigned to the Pledgor (as amended and restated on
the date hereof, the "GID Note") in accordance with the terms of the
Pledge Agreement, and the undersigned shall comply in all respects
with such exercise.
(b) The undersigned will not make any prepayment of principal under the
GID Note, except as expressly provided therein.
This Acknowledgement and Consent Agreement shall be binding upon the
undersigned and its successors and assigns, and shall inure, together with the
rights and remedies of the Trustee hereunder, to the benefit of the Trustee, the
holders of the Senior Notes and their permitted successors, transferees and
assigns. This Acknowledgement and Consent Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the undersigned has duly executed this
Acknowledgement and Consent Agreement as of the date set opposite its name
below.
Dated: _______________ GRUPO INDUSTRIAL DURANGO, S.A. DE C.V.
By______________________________________
Name:
Title:
