PLAN SUPPORT AGREEMENT
Agreement (together with the Exhibits and Schedules hereto,this
"Agreement"),dated as of August 13, 2004, by and among Corporacion
Durango, S.A. de C.V. ("Corporacion Durango", or the "Company"),
the Note Guarantors listed on Schedule 2 hereto (collectively, the
"Note Guarantors"), certain subsidiaries of the Company listed on
Schedule 3 hereto that hold claims against the Company (collectively,
the "Intercompany Creditors"), the individual signatories listed on
Schedule 4 hereto, each in his or her capacity as a creditor and/or
shareholder of the Company, as the case may be (collectively, the
"Individual Signatories"), Banco Nacional de Mexico, S.A., Integrante
del Grupo Financiero Banamex, Bank of America, N.A., JPMorgan Chase
Bank, California Commerce Bank, and Banc of America Securities LLC
(collectively, the "Bank Lenders"), and the holders of the Company's
(i) 13 1/8% Senior Notes due 2006; (ii) 13 1/2% Senior Notes due 2008;
(iii) 12 5/8% Senior Notes due 2003; and/or (iv) 13 3/4% Senior Notes
due 2009 (collectively, the "Existing Notes") who have executed this
Agreement on the signature pages hereto (collectively, the "Initial
Signatory Noteholders"), and other holders of Existing Notes who from
time to time become bound by this Agreement (collectively, together
with the Initial Signatory Noteholders, the "Noteholders" and,
together with the Bank Lenders, the Intercompany Creditors and the
Individual Signatories, the "Supporting Creditors"). Corporacion
Durango's obligations to each of the Bank Lenders are referred to
herein collectively as the "Existing Bank Debt." Corporacion Durango,
the Note Guarantors, the Bank Lenders, the Intercompany Creditors and
the Noteholders are referred to herein collectively as the "Parties."
WHEREAS, on April 30, 2004, the Parties entered into that certain
agreement (the "Initial Plan Support Agreement") to support a financial
restructuring of the Company's unsecured indebtedness upon the terms
set forth in the term sheet (the "Initial Term Sheet") attached to
such agreement; and
WHEREAS, the Initial Plan Support Agreement has been terminated; \and
WHEREAS, on May 18, 2004, the Company initiated a voluntary insolvency
proceeding (the "Concurso Proceeding") under Mexico's Ley de Concurso
Mercantiles (the "Mexican Business Reorganization Act") with the Federal
District Court of Durango (the "Durango District Court"), and on
May 21, 2004, commenced an ancillary case (the "304 Case") under section
304 of title 11 of the United States Code (the "Bankruptcy Code") with
the United States Bankruptcy Court for the Southern District of New York
(the "Bankruptcy Court"); and
WHEREAS, on June 30, 2004, the Bankruptcy Court entered, as to the Bank
Lenders and Noteholders, a consensual preliminary injunction (the
"Preliminary Injunction") enjoining the commencement or continuation
of any action against the Company and certain subsidiaries of the
Company,as well as their assets, which Preliminary Injunction is set
to expire at midnight on August 16, 2004, unless further extended by
order of the Bankruptcy Court;
WHEREAS, the Parties have agreed to a revised restructuring proposal,
as set forth more fully in the Term Sheet attached hereto as Exhibit A
(the "Term Sheet") which provides for a restructuring of the Company's
capital structure (the "Restructuring"); and
WHEREAS, the Term Sheet provides that the Parties will implement the
Restructuring through the prosecution and confirmation of a plan of
reorganization under the Mexican Business Reorganization Act on terms
substantially similar to those set forth in the Term Sheet
(the "Plan") so long as the Company obtains the votes necessary under
the Mexican Business Reorganization Act to confirm the Plan.
NOW, THEREFORE, in consideration of the premises and mutual covenants
and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged,each of the Parties hereby agrees as follows:
1. Initial Signatories. It shall be a condition to the effectiveness
of this Agreement that each of the Initial Signatory Noteholders,
each Bank Lender, the Company, the Note Guarantors, the
Intercompany Creditors and the Individual Signatories shall have
entered into this Agreement.
2. Definitions. Capitalized terms used but not defined herein shall
have the meanings ascribed to such terms in the Term Sheet.
3. Pursue Restructuring. Upon an entry of declaration of concurso
by the Durango District Court in the Concurso Proceeding, the
Company will use commercially reasonable efforts to implement
the Restructuring in the Concurso Proceeding, including without
limitation:
(a) supporting applications by the ad hoc committee of Existing
Notes (the "Ad Hoc Bondholders Committee") and the Bank Lenders,
acting through their respective counsel, to appoint one
conservator for each of the Ad Hoc Bondholders Committee and
the Bank Lenders, respectively, pursuant to Article 63 of the
Mexican Business Reorganization Act with the powers set forth
in Article 64 of the Mexican Business Reorganization Act,
including the right to be heard in the Concurso Proceeding;
(b) on or before fourteen (14) days prior to the deadline for
creditors to file proofs of claim in the Concurso Proceeding,
delivering to the Indenture Trustee for further dissemination
to the holders of Existing Notes, an English language
explanation containing: (i) a description of the concurso
mercantil process under the Mexican Business Reorganization
Act and of the Concurso Proceeding; (ii) the procedure
for filing proofs of claim in the Concurso Proceeding,
including a discussion of the powers of attorney and other
documentation required under the Mexican Business Reorganization
Act or in the Concurso Proceeding in connection with the filing
of proofs of claim; and (iii) information on how holders of
Existing Notes may contact either the Indenture Trustee or
counsel to the Ad Hoc Bondholders Committee for further
information regarding how to file proofs of claim;
(c) (i) supporting and not objecting to (x) the Indenture Trustee
(as defined herein) (or any other lawfully authorized
representative who would be recognized in the Concurso
Proceeding as such, collectively, the "Authorized Representative"),
on behalf of all holders of Existing
Notes, and (y) any holder of Existing Notes or any Bank Lender
who executes this Agreement, becoming recognized creditors (as
such term is contemplated under the Mexican Business
Reorganization Act) in the Concurso Proceeding; and (ii)
cooperating with any reasonable requests of the Authorized
Representative for ordersin the 304 Case for procedures to
facilitate (x) the filing of proofs of claim by the Authorized
Representative on behalf of holders of Existing Notes (other
than Noteholders) including any powers of attorney or other
documentationthat may be required under the Mexican Business
Reorganization Act or in the Concurso Proceeding in connection
therewith; and (y) the execution of the Plan within the time period
set forth in Article 161 of the Mexican Business Reorganization Act
by the Authorized Representative on behalf of and pursuant to the
instructions (whether through electronic instruction through the
DTC or other clearing system, as applicable, or otherwise, so
long as any such method is legally valid, acceptable to the
Authorized Representative, and does not require any disclosure
obligations on the part of the Company other than that set forth
in Sections 3(b) and 3(d) hereof)
of holders of Existing Notes (other than Noteholders), or by
individual holders of Existing Notes who have timely filed proofs
of claim separately;
(d) (x) supporting the dissemination to creditors who become
recognized creditors (as such term is contemplated under the
Mexican Business Reorganization Act) (the "Recognized Creditors")
of (i) a summary of the Restructuring, (ii) the Plan, and (iii)
the other Restructuring Documents by the person appointed by the
Institute (as defined below) to act as conciliador in the Concurso
Proceeding; and (y) in the e vent the documents listed in this
Section 3(d) are disseminated by the conciliador without an
English language translation of same, (i) promptly preparing an
English language translation of such documents and (ii)
disseminating such English language translation to all Recognized
Creditors no less than five (5) business days prior to the
deadline for such Recognized Creditors to communicate to the
conciliador their assent to the Restructuring; and (e) timely
file in the United States with the Securities and Exchange
Commission its quarterly and annual consolidated financial
statements for the Company in scope and format consistent with
its historical practices.
4. Cooperation and Support. Each of the Parties covenants and
agrees to negotiate in good faith to arrive at mutually agreeable
definitive documents to implement the Restructuring and to agree
upon non-binding target dates for the drafting and exchange of
such documents.
The Supporting Creditors shall have the opportunity to review
drafts of each Restructuring Document prior to its presentation
to the Durango District Court. Each Restructuring Document shall
be subject to each Supporting Creditor's approval, which will
not be unreasonably withheld or delayed so long as it is (i)
consistent in all material respects with, and at least as
favorable to the Supporting Creditor in all material respects as,
the Term Sheet and (ii) consistent in all material respects with
the information previously provided to the Supporting Creditors.
So long as this Agreement remains in effect, and except as may
otherwise be provided below, each Supporting Creditor shall:
(a) (i) timely complete and file a proof of claim in the form
approved by the Instituto Federal de Especialistas de Concursos
Mercantiles (the "Institute") in respect of its
Holdings; (ii) grant a duly
executed power of attorney exercisable in Mexico in favor of its
respective Mexican counsel in order that such counsel may take all
reasonably necessary action on behalf of the Supporting Creditor
in respect of the Concurso Proceeding; and(iii) in the case of a
Noteholder, obtain from its brokerage or depositary institution
certification letters, and a position listing from the DTC listing
the amount of bonds held by such Noteholder as of the date of such
certification;
(b) so long as such Supporting Creditor shall have approved the
Restructuring Documents as provided in Section 4 hereof, timely
vote all of its Holdings (as such term is defined hereinafter) to
accept the Plan by delivering its duly executed and completed
signature to the Plan, and not change, revoke or withdraw (or cause
to be changed,revoked or withdrawn) such assent to the Plan, except
as permitted by the terms of this Agreement;
(c) so long as such Supporting Creditor shall have approved the
Restructuring Documents as provided in Section 4 hereof, (i) not
object to the Plan filed by the Conciliator and vote in favor of
the Plan, in accordance with Articles 161 and 162 of the Mexican
Business Reorganization Act; (ii) not (y) object to the Plan or
support any such objection by any third party, or otherwise commence
any proceeding or take any action to oppose or alter the Plan or (z)
propose, file, support or vote for any restructuring, workout, or
plan of reorganization for the Company other than the Plan; and
(iii) perform any other reasonable requirement under the Mexican
Business Reorganization Act reasonably necessary to obtain
confirmation of the Plan by the Durango District Court;
(d) not object to or oppose any proof of claim filed by a Supporting
Creditor in the Concurso Proceeding;
(e) not (nor will it encourage any other person to), directly or
indirectly, delay, interfere, impede, or take any other action that
could reasonably be expected to delay, interfere or impede, or that
is inconsistent in any respect with, acceptance, confirmation or
implementation of the Plan;
(f) with respect to a Noteholder, neither (i) send, (ii) join in or
support, nor (iii) instruct any indenture trustee for the Existing
Notes (the "Indenture Trustee"), to send a written notice (under
section 502 of any indenture governing the Existing Notes)
accelerating the Company's or a Note Guarantor's obligations
under the Existing Notes (each, an "Acceleration Notice"); and in
the event an Acceleration Notice is sent to the Company, shall
provide, to the extent permitted in the Indenture, written notice
to the Indenture Trustee rescinding and annulling any such
Acceleration Notice pursuant to Section 513 of the respective
indenture;
(g) with respect to its respective Existing Bank Debt or Existing
Notes,not take any action or exercise any remedy, whether at law or in
equity, against any of Los Cuatro; and
(h) (y) support the Preliminary Injunction entered in the 304 Case and
any and all extensions to such order through and including February
28, 2005 (collectively, the "Injunctive Relief"), so long as any
such Injunctive Relief is substantially in accordance with the
Preliminary Injunction and further provides that (i) such order
does not enjoin the Supporting Creditors from, in the case an event
of termination set forth in Section 7 hereof has occurred and not
been cured by the Company and/or any of the Note Guarantors,
terminating this Agreement or commencing any action in Mexico
against Los Cuatro and (ii) a Supporting Creditor that so
terminates this Agreement may seek from the Bankruptcy Court in
the 304 Case relief from the Injunctive Relief for any and all
remedies or other enforcement actions in the United States, and
that the Company and its subsidiaries shall have the burden of
proof for justifying the continuation of such Injunctive Relief
should any of the Supporting Creditors seek to terminate or modify
the Injunctive Relief; and (z) except as provided for in such
Injunctive Relief, not object to the Injunctive Relief or support
any objection by any third party or otherwise file any pleading
or commence any proceeding or take any action to oppose the
Injunctive Relief; provided, however, that each Supporting Creditor
may raise and be heard on any issue arising in the Concurso
Proceeding so long as it is not attempting to oppose or alter a
Restructuring Document approved by it. A Supporting Creditor may,
but shall not be required to, use commercially reasonable efforts
to obtain the joinder of other creditors to this Agreement or an
agreement substantially similar to this Agreement.
5. Holdings and Transfers.
(a) Each Supporting Creditor severally represents and warrants to
the Company that it is the beneficial owner, owner of record
with the power to bind the beneficial holder and/or the investment
advisor or manager on behalf of the beneficial owner, of Existing
Bank Debt, Existing Notes or Intercompany Claims, as the case may
be, of the issues and in the principal amounts (i) in the case of
a Bank Lender or Intercompany Creditor, set forth on such Supporting
Creditor's signature page and (ii) in the case of a Noteholder,
disclosed to U.S. counsel to the Ad Hoc Bondholders Committee,
Xxxxxxx XxXxxxxxx LLP ("Xxxxxxx"), in the manner described in the
following sentence (collectively, the "Holdings"), and has the power
to vote and dispose of the Holdings in accordance with this Agreement
on behalf of such beneficial owners, and that the amount of the
Holdings constitutes the principal amount of all of such Supporting
Creditor's unsecured claims against the Company at the time this
Agreement becomes effective. Notwithstanding anything in this
section to the contrary, each Noteholder shall only be required to
disclose its Holdings to Xxxxxxx. Xxxxxxx shall (i) on the date of
the execution and delivery of this Agreement by the Initial
Signatory Noteholders, (ii) if a termination event under Section
7 hereof occurs, and (iii) as may be reasonably requested by U.S.
counsel to the Company, certify in
writing to the Company (with a copy to counsel for the Bank Lenders)
the aggregate Holdings of the Initial Signatory Noteholders or
Noteholders, as the case may be, as certified to Xxxxxxx by such
Initial Signatory Noteholders or Noteholders.
(b) Each Supporting Creditor severally agrees that it will not sell,
pledge,assign, hypothecate, or otherwise transfer any Holdings,
and any such attempted sale, pledge, assignment, hypothecation,
or other transfer shall be void and without effect unless the
transferee executes and there is delivered to the Company and to
the other notice parties listed in Section 18 hereof, a written
undertaking (in the form of the Transferee Signature Page attached
hereto as Schedule 1) agreeing to become a party to this Agreement
with respect to the Holdings being transferred (but not any claims
against the Company previously owned or thereafter acquired), and
such transferee (hereinafter a "Transferee") shall thereupon be deemed
to be a Supporting Creditor with respect to the amount of such
transferred Holdings for purposes of this Agreement, and the transferor
shall no longer be a Supporting Creditor with respect to such
transferred Holdings. The Company hereby agrees that any Transferee
executing such an undertaking shall be entitled to the benefits of
this Agreement.
(c) This Agreement shall in no way be construed to preclude a Supporting
Creditor from acquiring additional Existing Bank Debt, Existing
Notes or other claims against the Company, provided that such
Supporting Creditor (other than a Transferee) shall vote, and take
such other actions in respect of, such additional Existing Bank Debt,
Existing Notes or other claims as is provided for herein.
6. Additional Conditions Precedent. The following shall be
additional conditions to the effectiveness of this Agreement:
(a) The professional advisors to the Bank Lenders and the Ad Hoc
Bondholders Committee shall have been brought current with respect
to fees and expenses incurred during the Restructuring negotiations.
(b) Each of the Company and Note Guarantors shall have (i) entered into
one or more agreements (or reaffirmed a previous agreement) whereby
it jointly and severally agrees to pay the fees and expenses of the
professional advisors to the Bank Lenders and the Ad Hoc Bondholders
Committee, whether incurred before or after the filing of the
Concurso Proceeding. Such agreements shall be on terms substantially
identical to the terms of the previously existing fee agreements
between the Company and such professionals; and (ii) fund the
retainers of the professional advisors to the Bank Lenders and the
Ad Hoc Bondholders Committee, in the amounts agreed to among the
Company and each such professional in a separate writing.
(c) The Company shall have certified in writing to U.S. counsel to both
the Bank Lenders and the Noteholders that the Supporting Creditors
executing this Agreement hold unsecured debt of the Company in a
principal amount necessary to confirm the Plan in the Concurso
Proceeding.
7. Termination.
(a) Except as may otherwise be provided for herein, this Agreement
shall terminate as to a Supporting Creditor, if any of the events
set forth in the following paragraph occurs and is not cured
(which in the case of any date set forth in the following paragraph,
shall mean that the Company fulfills the condition(s)
notwithstanding such date) prior to the time such Supporting
Creditor electing to terminate this Agreement sends a written
notice (a "Notice of Termination") to the Company, with a copy to
the other Notice Parties in accordance with Section 18 hereof,
terminating this Agreement and identifying the event giving rise to
such termination.
For purposes of this Section 7, the following shall constitute
events of termination:
1) The Company shall have failed to file (i) the Term Sheet with
the Institute or (ii) a Form 6-K with the Securities and Exchange
Commission attaching a copy of the Term Sheet and this Agreement
on or before two (2) business days from the declaration of
concurso in the Concurso Proceeding by the Durango District Court;
or
2) Following approval pursuant to Section 4 hereof, any Restructuring
Document shall be amended, modified or supplemented (i) in any
respect such that such Restructuring Document is materially
inconsistent with the Term Sheet without having first obtained
the consent of such Supporting Creditor, or (ii) in any other
respect without the consent of Xxxxxxx and Mayer, Brown, Xxxx &
Maw LLP; or
3) The Company shall institute an insolvency proceeding other than
the Concurso Proceeding or the 304 Case; or
4) The Company shall allow the Concurso Proceeding to be dismissed
or converted to a liquidation under the Mexican Business
Reorganization Act; or a concurso shall be declared in an
involuntary proceeding under the Mexican Business Reorganization
Act commenced against the Company or any Note Guarantor other than
the Concurso Proceeding; or
5) Any Note Guarantor shall voluntarily institute an insolvency
proceeding or become a debtor under an existing insolvency
proceeding, or an involuntary insolvency proceeding other than
under the Mexican Business Reorganization Act shall be instituted
against any Note Guarantor other than by a Supporting Creditor and
not be dismissed within sixty (60) days from its commencement; or
6) The Company or the members of the Note Guarantor Group shall have
failed to pay any fees and disbursements of Xxxxxxx, Xxxxxxx y
Socios, Asesoria Juridica, Capstone Corporate Recovery, LLC,
Mayer, Brown, Xxxx & Maw LLP, Xxxxxxxx Xxxxxx Xxxxxxxx xx Xxxx
y Xxxxxx Xxxxx, or Mexican restructuring counsel to the Bank
Lenders, as advisors to the Bank Lenders or Noteholders, within
seven (7) days of having been given written notice by such party
(including, without limitation, notice by electronic mail) that
an invoice is past due. If any portion of such fees and expenses
is disputed by the Company in good faith, the Company need not pay
the disputed portion if (i) the Company timely pays that portion
of fees and expenses not subject to dispute, and (ii) the relevant
parties promptly proceed in good faith to resolve such dispute
within fifteen (15) days; or
7) The Company or one or more Note Guarantors shall have expressed in
writing or by public press release or SEC filing or Bolsa Mexicana
de Valores filing its intention not to pursue the Restructuring; or
8) The claims alleged against the Company (or any Note Guarantor)
consisting of: (i) that certain action filed April 2, 2004 by The
Official Committee of Unsecured Creditors of Durango-Georgia Paper
Company, Durango-Georgia Converting Corp., and Durango-Georgia
Converting LLC in the Name of and Behalf of the Bankruptcy Estates
of Durango-Georgia Paper Company, Durango-Georgia Converting Corp,
and Durango-Georgia Converting, LLC, Adversary Proceeding No.
04-2070, pending before the United States Bankruptcy Court for
the Southern District of Georgia, Brunswick Division; (ii) that
certain action filed December 19, 2002, by HG Estate LLC, Case No.
02 CV 10059 (CSH), pending before the United States District Court
for the Southern District of New York; and (iii) any other claims
arising from or related to Durango-Georgia Paper Company,
Durango-Georgia Converting Corp., and Durango-Georgia Converting
LLC (collectively, the "Contingent Claims"), are settled, resolved,
dismissed or treated in any manner, including, without limitation,
under a plan of reorganization, which in any case contemplates the
payment or delivery of money, property, securities, or the
incurrence of any other obligation of either the Company or any
Note Guarantor which is inconsistent with the terms previously
agreed upon by the Parties; or
9) The Company or any Note Guarantor shall fail to support an
application by the Ad Hoc Bondholders Committee and/or the Bank
Lenders, acting through their respective counsel, to be appointed
pursuant to Article 63 of the Mexican Business Reorganization Act
as conservators with the powers set forth in Article 64 of the
Mexican Business Reorganization Act, including the right to be
heard in the Concurso Proceeding; or
10) The Company or one or more of the Note Guarantors, Intercompany
Creditors or Individual Signatories shall take any action which is
materially inconsistent with the implementation of the
Restructuring;or
11) If the business, properties, assets or financial condition of the
Company and the Note Guarantors (taken as a whole) shall have been
materially and adversely affected since the date of this Agreement
by reason of any act of God, war, civil disturbance, terrorism,
earthquake, flood, fire, other casualty event, expropriation or
nationalization, as reasonably determined in writing by (i) Bank
Lenders holding at least 66 2/3% of the aggregate amount of the
Existing Bank Debt or Noteholders holding at least 66 2/3% of the
aggregate amount of the Existing Notes, or (ii) Bank Lenders and
Noteholders holding at least 51% of the aggregate amount of
Existing Notes and Existing Bank Debt; or
12) The Company shall fail to confirm the Plan by February 28, 2005.
(b) Except as otherwise provided in Section 25 hereof, this
Agreement shall terminate automatically without any action on
the part of any Party to this Agreement upon consummation of the
transactions contemplated under the Term Sheet.
8. Representations and Warranties.
(a) Each Supporting Creditor (other than the Individual Signatories)
severally hereby represents and warrants to the Company that:
1) It has the requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated by,
and perform its respective obligations under, this Agreement;
2) The execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all
necessary corporate or other organizational action on its part;
3) The execution, delivery, and performance by it of this Agreement
does not and shall not (i) violate any provision of law, rule, or
regulation applicable to it or any of its affiliates, or its
certificate of incorporation or bylaws or other organizational
documents or those of any of its affiliates, or (ii) conflict
with, result in a breach of, or constitute (with due notice or
lapse of time or both) a default under any material contractual
obligation to which it or any of its affiliates is a party;
4) The execution, delivery, and performance by it of this Agreement
does not and shall not require any registration or filing with,
the consent or approval of, notice to, or any other action with
any federal, state, or other governmental authority or regulatory
body;
5) This Agreement is the legally valid and binding obligation of it,
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to or
limiting creditors' rights generally, or by equitable principles
relating to enforceability;
6) It is an "accredited investor" within the meaning of Rule 501 of
the Securities and Exchange Commission under the Securities Act,
with sufficient knowledge and experience to evaluate properly the
terms and conditions of the Term Sheet and this Agreement, and has
been afforded the opportunity to discuss the Term Sheet and other
information concerning the Company with the Company's representa-
tives, and to consult with its legal and financial advisors with
respect to its investment decision to execute this Agreement,
and (ii) it has made its own analysis and decision to enter into
this Agreement and otherwise investigated this matter to its full
satisfaction and will not seek rescission or revocation of this
Agreement; and
(b) The Company and each of the Note Guarantors represent and warrant
to each of the Supporting Creditors that:
1) It has the requisite corporate power and authority to enter into
this Agreement and to carry out the transactions contemplated by,
and perform its respective obligations under, this Agreement;
2) The execution and delivery of this Agreement and the performance
of its obligations hereunder have been duly authorized by all
necessary corporate or other organizational action on its part;
3) The execution, delivery, and performance by it of this Agreement
does not and shall not (i) violate any provision of law, rule, or
regulation applicable to it or any of its affiliates, or its
certificate of incorporation or bylaws or other organizational
documents or those of any of its affiliates, or (ii) conflict with,
result in a breach of, or constitute (with due notice or lapse of
time or both) a default under any material contractual obligation
to which it or any of its affiliates is a party;
4) The execution, delivery, and performance by it of this Agreement
does not and shall not require any registration or filing with,
the consent or approval of, notice to, or any other action with
any federal, state, or other governmental authority or regulatory
body;
5) This Agreement is the legally valid and binding obligation of it,
enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium, or other similar laws relating to or
limiting creditors' rights generally, or by equitable principles
relating to enforceability;
6) It has been advised by professionals of international standing
and experience in transactions of this nature, and has been
afforded the opportunity to discuss and evaluate the term and
conditions of the Term Sheet and this Agreement, and to consult
with its legal and financial advisors with respect to its
decision to execute this Agreement and it has made its own analysis
and decision to enter into this Agreement and otherwise investigated
this matter to its full satisfaction and will not seek rescission
or revocation of this Agreement;
7) To the best of their knowledge and belief, the debt held by the
Intercompany Creditors and the Individual Signatories represent
the only debt of the Company held by persons or entities affiliated
with the Company; and
8) The Individual Signatories collectively hold, directly or indirectly,
a majority of the issued and outstanding shares of the Company's
capital stock.
9) Specific Performance. It is understood and agreed by each of the
Parties that money damages would not be a sufficient remedy for any
breach of this Agreement by any Party, and each non-breaching
Party shall be entitled to seek specific performance and injunctive
or other equitable relief as a remedy for such breach.
10) Material Non-Public Information. If the Company or any Note
Guarantor, Intercompany Creditor or Individual Signatory proposes
to provide any Supporting Creditor with material information
concerning the Company which is not available to the public,
the Company or such Note Guarantor, Intercompany Creditor or
Individual Signatory shall first inform such Supporting Creditor
of such fact and give it the option to decline to receive such
information.
11) Indemnification of Supporting Creditors. The Company and each of
the Note Guarantors shall, jointly and severally, indemnify each
of the Indemnified Parties and hold them harmless from and against
any and all claims, liabilities, actions, suits, damages, fines,
and judgments (including the current payment of legal fees and
expenses) directly or indirectly resulting from, arising out of,
or in any way connected with (a) such Supporting Creditor's
entering into this Agreement or (b) any action taken by such
Supporting Creditor in good faith which is in furtherance of the
Restructuring or required by this Agreement, including any action
permitted by the final sentence of Section 4 hereof. An Indemnified
Party shall promptly notify the Company and each of the Note
Guarantors in writing of any claim made against it which falls
within the scope of this indemnity, and the Company and each of
the Note Guarantors shall assume the defense of such claim,
including, without limitation, the employment of counsel
satisfactory to the Company and the Note Guarantors, at its
expense.
Each Indemnified Party shall have the right to employ separate
counsel in any such claim, action or proceeding and to consult
with the Company in the defense thereof, and the obligation to
pay fees and expenses of such counsel shall be joint and several
obligations of the Company and each Note Guarantor unless the
Company or a Note Guarantor shall have assumed the defense of
such claim, action or proceeding. The Company or any of the
Note Guarantors shall not effect any settlement of any such
claim unless such settlement contains a full and unconditional
release of the Indemnified Party. As used in this Section
"Indemnified Party" shall mean any one or more of the
Supporting Creditors or their officers, directors, employees,
agents,representatives, advisors, attorneys, successors or
assigns.
12) Successors and Assigns. Except as otherwise provided in this
Agreement, this Agreement is intended to bind and inure to the
benefit of each of the Parties and each of their respective
successors, assigns, heirs, executors, administrators, and
representatives.
13) No Third-Party Beneficiaries. Unless expressly stated herein,
this Agreement shall be solely for the benefit of the Parties
and no other person or entity shall be a third-party
beneficiary of this Agreement.
14) Prior Agreements. This Agreement supersedes all prior
negotiations and agreements among the Parties with respect to
the matters set forth herein.
15) Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York,
regardless of the laws that might otherwise govern under
applicable principles of conflicts of law of the State of New York.
16) Venue. By execution and delivery of this Agreement, each of
the Parties irrevocably and unconditionally agrees that any legal
action, suit, proceeding or other contested matter with respect to
any matter under or arising out of or in connection with this
Agreement, or for recognition or enforcement of any judgment
rendered or order entered in any such action, suit, or proceeding,
shall be brought in the Bankruptcy Court. Each Party irrevocably
waives any objection it may have to the venue of any action, suit
or proceeding brought in such court or to the convenience of the
forum.
17) Personal Jurisdiction. By execution and delivery of this Agreement,
each of the Parties irrevocably and unconditionally submits to the
personal jurisdiction of the Bankruptcy Court for purposes of any
action, suit or proceeding or other contested matter arising out of
or relating to this Agreement, or for recognition or enforcement of
any judgment rendered or order entered in any such action, suit, or
proceeding or other contested matter.
18) Notices. All notices (including, without limitation, any Notice of
Termination) and other communications hereunder shall be in writing
and shall be deemed to have been duly given if personally delivered
by courier service, messenger, or facsimile to the following
addresses, or such other addresses as may be furnished hereafter by
notice in writing:
(a) if to Corporacion Durango, any of the Note Guarantors or the
Intercompany Creditors:
Corporacion Durango, S.A. de C.V.
Potasio No. 150
Cd. Industrial - Xxxxxxx
X.X. 00000, Xxxxxxx, Xxxxxx
Attention: Xxxxxx Xxxxxx
Facsimile: 011-52-000-000-0000
With a copy to counsel for Corporacion Durango:
White & Case LLP
Wachovia Financial Center, Suite 4900
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx-Xxxxx
Facsimile: (000) 000-0000
Xxxxxxxxxxx x Xxxxx
Xxxxxx Xxxxxxx 000
Col. Xxxxxxxxxxx Xxxxxxx
00000 Xxxxxx, X.X.
Xxxxxx
Attention: Xxxxxxxx del Xxxxxxxx
Facsimile: 00 (00) 0000-0000
-and-
Xxxxxx Xxxxx Xxxxx
Xxxxxxxxx 84-A
Col. Xxxxxxxx Xxxxxx
14050 Mexico, D.F.
Facsimile: 00 (00) 0000-0000
(b) if to a Noteholder, to counsel for the Noteholders:
Xxxxxxx XxXxxxxxx LLP
Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx;
Xxxxxxx X. Xxxxx; and
Xxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(c) if to a Bank Lender, to counsel for the Bank Lenders:
Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
19) Headings. The section headings of this Agreement are for convenience
of reference only and shall not, for any purpose, be deemed a part
of this Agreement.
20) Amendments. The Parties acknowledge and agree that the Termination
Events set forth in Section 7 hereof and the Term Sheet attached
hereto as Exhibit A are a material inducement for the Supporting
Creditors to enter into this Agreement, and that no grace periods
are intended. Accordingly, except as otherwise provided herein,
no waiver, extension or modification of any Termination Event or
Term Sheet may be effectuated as to any Supporting Creditor except
in a writing signed by the Company and such Supporting Creditor.
As to any other provision contained in this Agreement, this
Agreement may not be modified, amended, or supplemented, and no
provision hereof waived, except in a writing signed, as to the Bank
Lenders, by the Company and Bank Lenders holding at least 66 2/3% of
the aggregate amount of Existing Bank Debt, and as to the Noteholders,
by the Company and Noteholders holding at least 66 2/3% of the
aggregate amount of Existing Notes.
21) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of
which shall constitute one and the same Agreement. Delivery of an
executed signature page of this Agreement by facsimile shall be
effective as delivery of a manually executed signature page of this
Agreement.
22) No Waiver of Participation and Reservation of Rights. Except as
expressly provided in this Agreement and in any amendment among the
Parties, nothing herein is intended to, or does, in any manner waive,
limit, impair, or restrict the ability of any Supporting Creditor or
the Company to protect and preserve its rights, remedies and interests,
including, without limitation, its claims against Corporacion Durango
or any of the Note Guarantors or its full participation in any
bankruptcy case filed by Corporacion Durango, or any of its affiliates
and subsidiaries, including without limitation, the Concurso Proceeding.
The Parties fully reserve any and all of their rights in the event the
transactions contemplated by this Agreement or in the Plan are not
consummated or this Agreement is terminated, including all rights to
(i) object to any request in the 304 Case, including without limitation,
the Injunctive Relief, and (ii) request to accelerate the final hearing
on the Company's request for the 304 Case.
23) Interpretation. This Agreement is the product of negotiations among
the Supporting Creditors, the Company and the Note Guarantors, and in
the enforcement or interpretation hereof, is to be interpreted in a
neutral manner, and any presumption with regard to interpretation for
or against any Party by reason of that Party having drafted or caused
to be drafted this Agreement or any portion hereof, shall not be
effective in regard to the interpretation hereof.
24) Acknowledgement. This Agreement is not and shall not be deemed to be
a solicitation of votes for the acceptance of the Plan.
25) Survival. The representations, warranties, covenants and other
agreements contained in this Agreement shall cease to be of any force
and effect upon the termination of this Agreement pursuant to Section
7 hereof; provided, however, that the obligations of the Company and
the Note Guarantors set forth in Section 11 hereof shall survive any
such termination for a period of one year from the date of such
termination.
26) Limitation of Liability. Notwithstanding anything in this Agreement
to the contrary, (i) if any of the Individual Signatories fails to
perform any of its obligations under this Agreement, the sole and
exclusive remedy of the other Parties as against the Individual
Signatory shall be the right, if any, to terminate this Agreement
pursuant to Section 7 hereof; (ii) none of the Individual Signatories,
on the one hand, and the other Supporting Creditors, on the other hand,
shall be liable to each other for any damages arising from, in connection
with, or as a result of a failure to perform or termination of this
Agreement by any Party hereto, and (iii) the Individual Signatories, on
the one hand, and the other Supporting Creditors, on the other hand,
covenant and agree among themselves not to xxx each other for any claims
arising from, in connection with, or as a result of a failure to perform
or termination of this Agreement.
[REST OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers thereunto duly
authorized, as of the date first written above.
Corporacion Durango, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Chief Financial Officer
Empaques de Carton Titan, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Compania Papelera de Atenquique, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Ponderosa Industrial de Mexico, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Industrias Centauro, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Envases y Empaques de Mexico, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Cartonpack, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Administracion Corporativa de Durango, X.X.xx C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Durango International, Inc.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Chief Financial Officer and Secretary
Grupo Pipsamex, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Porteadores de Durango, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Reciclajes Centauro, S.A. de C.V.
By: /s/ Xxxxxxxx Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx Xxxxxxxxx
Title: Attorney in Fact
Durango XxXxxxxx Paper Company
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Treasurer
Durango Internacional, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Compania Norteamericana de Inversiones en
Celulosa y Papel, S.A. de C.V.
By: /s/ Xxxxxx Xxxxxx xx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Attorney in Fact
Xxxxxx Xxxxxx Xxxxxxxxx, Individually
/s/ Xxxxxx Xxxxxx Xxxxxxxxx
By: -----------------------------------
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx, Individually
/s/ Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
By: -----------------------------------
Wifrido Xxxxxx Xxxxxxxxx, Individually
/s/ Xxxxxxxx Xxxxxx Xxxxxxxxx
By: -----------------------------------
Xxxxxxx Xxxxxx Xxxxxxxxx, Individually
/s/ Xxxxxxx Xxxxxx Xxxxxxxxx
By: -----------------------------------
Xxxxxx Xxxxxx Xxxxxxxxx, Individually
/s/ Xxxxxx Xxxxxx Xxxxxxxxx
By: ------------------------------------
Xxxxxx Xxxxxx xx Xxxxxxx, Individually
/s/ Xxxxxx Xxxxxx xx Xxxxxxx
By: -----------------------------------
THE NOTEHOLDERS
Address for Notices Marathon Special Opportunity Master Fund LTD.
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: CFO
Address for Notices Marathon Master Fund LTD.
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxx Xxxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: CFO
Address for Notices Gramercy Advisors LLC
c/o 00 Xxxxxx Xxxxxx
Xxxxxxxxx XX 00000 XXX
By: /s/ Xxxxxx Xxxxx
--------------------------------------
Name: Xxxxxx Xxxxx
Title: Managing Director
Address for Notices Merced Partner Limited Partnership
By: Global Capital Management, Inc., General
Partner
000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
By: /s/ Xxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
Address for Notices Tamarack International, Ltd.
By: Hunter Capital Management, L.P.,
Investment Manager
000 Xxxxxxx Xxxxxxx, Xxxxx 000 By: EBF & Associates, L.P., General Partner
Xxxxxxxxxx, XX 00000 By Global Capital Management, Inc., General
Partner
With Copy to:
Xxx Xxxxx
Wyndmere Capital Management
Company Ltd. By: /s/ Xxxxxxx Xxxx
Xxxxxx House -------------------------------------
00 Xx. Xxxxx'x Xxxxxx Name: Xxxxxxx Xxxx
London Title: Chief Executive Officer
SW1AIJT
Address for Notices Quadrangle Debt Opportunities Master
Found Ltd.
By: QDRA LLC
Its: Advisor
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Member
Address for Notices QDRF Master Fund Ltd.
Found Ltd.
By: QDRA LLC
Its: Advisor
By: /s/ Xxxxxx Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxxx
Title: Member
Address for Notices XX Xxxxxx Xxxxx Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Director
THE BANK LENDERS
Address for Notices Banco Nacional de Mexico, S.A.,
Prol. Paseo de la Referena Integrante del Grupo Financiero Banamex
#490Torre B, Planta Baja
Col. Santa FE Mexico, D.F. By: /s/ Xxxx Xxxx Xxxxxx
C.P. 01210 -------------------------------------
Attn: ose Xxxx Xxxxxx and Name: Xxxx Xxxx Xxxxxx
Xxxxxxx Xxxxx Title: SCO
Existing Bank Debt:
Credit Agreement $ 5,100,000.00
Credit Agreement $75,335,634.36
Total $80,435,634.36
Address for Notices Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000 By: /s/ Xxxxx Xxxxxx
Attn: Xxxxx X. Xxxxxx ------------------------------------
Fax : (212)Existing Name: Xxxxx Xxxxxx
Title: Managing Director
Bank Debt:
Credit Agreement $2,000,000.00
Address for Notices
Xxxxxxx X. Xxxxx Bank of America, N.A.
Xxxxx xx xx Xxxxxxx 000
Xxxx 00 Xxxxxx City, D.F. By: /s/ Xxxxxxx Xxxxx
CP 00000 Xxxxxx ------------------------------------
Fax: 5255 0000 0000 Name: Xxxxxxx Xxxxx
xxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx Title: Managing Director
Xxxxxx Xxxxxx
Xxxxx xx xx Xxxxxxx 000
Xxxx 00Xxxxxx Xxxx,XX 00000
D.F. Mexico
Fax: 5255 0000 0000
xxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
Xxxxx del Rio
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
Email: xxxxx.xxx_xxx@xxxxxxxxxxxxx.xxx
Existing Bank Debt
Durango Georgia $17,000,000
Credit Agreement $2,000,000
Total $19,000,000
Address for Notices JPMorgan Chase Bank
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 By: Xxxx Xxxxxxx
Attn: Xxxxxxx Xxxxxx -----------------------------------
Name: Xxxx Xxxxxxx
Title: Xxxx Xxxxxxx
Existing Bank Debt
Letter of Credit $4,985,268
Credit Agreement $5,000,000
Total $9,985,268
Address for Notices California Commerce Bank
0000 Xxxxxxx Xxxx Xxxx
00xx Xxxxx Xxx Xxxxxxx, By: /s/ Xxxxx X. Xxxxxxxx
Xxxxxxxxxx 00000 ----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: Executive Vice President
Existing Bank Debt
Credit Agreement $12,500,000
Credit Agreement $11,680,000Total
Total $24,180,000
Exhibit A to the Transferee Signature Page
Plan Support Agreement
Exhibit B to the Transferee Signature Page
Term Sheet
Exhibit C to the Transferee Signature Page
Financial Reporting Side Letter
Schedule 1 to the Plan Support Agreement
Transferee Signature Page
By signing in the space provided below and returning a copy of this
Transferee Signature Page to the Company and to the other notice
parties listed in Section 18 of the Plan Support Agreement, the
undersigned, as Transferee, (a) represents and warrants that it has
received (1) the Plan Support Agreement (attached as Exhibit A), (ii)
the Term Sheet (attached hereto as Exhibit B), and (iii) that certain
side letter, dated August __, 2004, (the "Financial Reporting Side
Letter"attached hereto as Exhibit C); (b) indicates its agreement to
be bound by (i) the Plan Support Agreement, (ii) the Term Sheet, and
(iii) the Financial Reporting Side Letter, with respect to the Holdings
being transferred (but not any Claims against the Company previously
owned by the Transferee or thereafter acquired by the Transferee).
Capitalized terms used in this Transferee Signature Page and not
defined herein shall have the meanings ascribed to them in the Plan
Support Agreement including by reference therein.
It is a precondition to any transfer of Holdings that an executed
Transferee Signature Page be delivered to the Company. Delivery of
an executed Transferee Signature Page by facsimile to the Company
shall be effective for such delivery. Upon receipt by the Company
of an executed Transferee Signature Page, the undersigned Transferee
shall thereupon be deemed to be a Supporting Creditor with respect
to the amount of such transferred Holdings for purposes of the Plan
Support Agreement, and the undersigned transferor shall no longer be
a Supporting Creditor with respect to such transferred Holdings.
ACCEPTED AND AGREED
[NAME OF TRANSFEREE]
By:______________________
Name:
Title:
ACCEPTED AND AGREED
[NAME OF TRANSFEROR]
By:_______________________
Name:
Title:
Schedule 2 to the Plan Support Agreement
The Note Guarantors
Empaques de Carton Titan, S.A. de C.V.
Compania Papelera de Atenquique, S.A. de C.V.
Ponderosa Industrial de Mexico, S.A. de C.V.
Industrias Centauro, S.A. de C.V.
Envases y Empaques de Mexico, S.A. de C.V.
Cartonpack, S.A. de C.V.
Porteadores de Durango, S.A. de C.V.
Reciclajes Centauro, S.A. de C.V.
Durango International, Inc.
Durango International, S.A. de C.V.
Administracion Corporativa de Durango, S.A. de C.V.
Compania Norteamericana de Inversiones en Celulosa y Papel,
S.A. de C.V.
Schedule 3 to the Plan Support Agreement
The Intercompany Creditors
Grupo Pipsamex, S.A. de C.V.
Durango XxXxxxxx Paper Company
Porteadores de Durango, S.A. de C.V.
Durango International, Inc.
Compania Papelera de Atenquique, S.A. de C.V.
Administracion Corporativa de Durango, S.A. de C.V.
Envases y Empaques de Mexico, S.A. de C.V.
Empaques de Carton Titan, S.A. de C.V.
Schedule 4 to the Plan Support Agreement
The Individual Signatories
Xxxxxx Xxxxxx Xxxxxxxxx
Xxxx Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxx xx Xxxxxxx
Exhibit A to the Plan Support Agreement
Term Sheet
