Exhibit 2.17
INSTRUMENT OF RESIGNATION, APPOINTMENT AND ACCEPTANCE, dated as of
February 5, 2003 (this "Instrument"), among CORPORACION DURANGO, S.A. DE C.V.
(f/k/a Grupo Industrial Durango, S.A. de C.V.), a variable capital company
organized under the laws of the United Mexican States, having its principal
office at Torre Corporativo Durango, Potasio 150, Ciudad Industrial, Durango,
Durango, United Mexican States 34208 (the "Company"), JPMORGAN CHASE BANK
(formerly, The Chase Manhattan Bank), a banking corporation duly organized and
existing under the laws of the State of New York, having its corporate trust
office at Four Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the
"Resigning Trustee"), and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association duly organized and existing under the laws of the
United States, having its principal corporate trust office at MAC N9303-120,
Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx 00000, as successor Trustee (the
"Successor Trustee").
RECITALS
There are presently outstanding:
(i) $18,230,000 in aggregate principal amount of the Company's 12 5/8%
Notes due 2003 (the "12 5/8% Notes")under the Indenture, dated as of July 25,
1996, between the Company and the Resigning Trustee, as supplemented by the
First Supplemental Indenture, dated as of August 27, 2001, between the Company
and the Resigning Trustee;
(ii) $301,743,000 in aggregate principal amount of the Company's 13
1/8% Senior Notes Due 2006 (the "13 1/8% Notes") under the Indenture, dated as
of February 5, 2001, between the Company and the Resigning Trustee, as
supplemented by the First Supplemental Indenture, dated as of October 8, 2001,
among the Company, Grupo Industrial Durango, S.A. de C.V. and the Resigning
Trustee, and as further supplemented by the Second Supplemental Indenture, dated
as of June 24, 2002, among the Company, 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. and the Resigning Trustee;
(iii) $10,363,000 in aggregate principal amount of the Company's 13
1/2% Senior Notes Due 2008 (the "13 1/2% Notes") under the Indenture, dated as
of September 13, 2001, between the Company and the Resigning Trustee, as
supplemented by the First Supplemental Indenture, dated as of October 8, 2001,
among the Company, Grupo Industrial Durango, S.A. de C.V. and the Resigning
Trustee, and as further supplemented by the Second Supplemental Indenture, dated
as of June 24, 2002, among the Company, 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. and the Resigning Trustee; and
(iv) $175,000,000 in aggregate principal amount of the Company's 13
3/4% Senior Notes due 2009 (the "13 3/4% Notes") under the Indenture, dated as
of June 24, 2002, between the Company and the Resigning Trustee, as supplemented
by the First Supplemental Indenture, dated as of June 24, 2002, among the
Company, 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. and the Resigning Trustee (the Notes described
in clauses (i)
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through (iv) above are hereinafter referred to as the "Securities", and the
Indentures described in clauses (i) through (iv) above are hereinafter referred
to as the "Indentures").
The Resigning Trustee wishes to resign as Trustee under each of the
Indentures; the Company wishes to appoint the Successor Trustee to succeed the
Resigning Trustee as Trustee under each of the Indentures; and the Successor
Trustee wishes to accept appointment as Trustee under each of the Indentures.
NOW, THEREFORE, in consideration of the mutual covenants and promises
herein, the receipt and sufficiency of which are hereby acknowledged, the
Company, the Resigning Trustee and the Successor Trustee agree as follows:
ARTICLE ONE
THE RESIGNING TRUSTEE
Section 101. Pursuant to Section 610(b) of each of the Indentures, the
Resigning Trustee hereby notifies the Company that the Resigning Trustee is
hereby resigning as Trustee under each of the Indentures.
Section 102. The Resigning Trustee hereby represents and warrants to
the Successor Trustee and the Company that:
(a) No covenant or condition contained in any of the Indentures
has been waived by the Resigning Trustee.
(b) There is no action, suit or proceeding pending or, to the
best of the knowledge of the responsible officers of the Resigning
Trustee assigned to its corporate trust department, threatened against
the Resigning Trustee before any court or governmental authority
arising out of any action or omission by the Resigning Trustee as
Trustee under each of the Indentures.
(c) This Instrument has been duly authorized, executed and
delivered on behalf of the Resigning Trustee.
(d) To the best of the knowledge of the responsible officers of
the Resigning Trustee assigned to its corporate trust department,
except for (i) the default in the payment of the installment of
interest which was due and payable January 15, 2003 with respect to
the Company's 13 3/4% Notes and (ii) the default in the payment of the
installment of interest which was due and payable January 31, 2003
with respect to the Company's 12 5/8% Notes, 13 1/8% Notes and 13 1/2%
Notes, no Event of Default and no other event which, after notice or
lapse of time or both, would become an Event of Default, has occurred
and is continuing under each of the Indentures.
(e) To the best of the knowledge of the responsible officers of
the Resigning Trustee assigned to its corporate trust department,
except as provided herein, the Indentures have not been amended or
modified and are in full force and effect.
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(f) (i) $18,230,000 in aggregate principal amount of the 12 5/8%
Notes, (ii) 301,743,000 in aggregate principal amount of the 13 1/8%
Notes, (iii) $10,363,000 in aggregate principal amount of the 13 1/2%
Notes, and (iv) $175,000,000 in aggregate principal amount of the 13
3/4% Notes are outstanding.
(g) (i) Interest on the 12 5/8% Notes has been paid through
August 1, 2002, (ii) interest on the 13 1/8% Notes has been paid
through August 1, 2002, (iii) interest on the 13 1/2% Notes has been
paid through August 1, 2002, and (iv) no interest on the 13 3/4% Notes
has been paid.
(h) The Resigning Trustee has made, or promptly will make,
available to the Successor Trustee originals, if available, or copies
in its possession, of all documents relating to the trust created by
the Indenture (the "Trust") and all information in the possession of
its corporate trust department relating to the administration and
status of the Trust.
Section 103. The Resigning Trustee hereby assigns, transfers, delivers
and confirms to the Successor Trustee all right, title and interest of the
Resigning Trustee in and to the trust under each of the Indentures, all the
rights, powers, trusts and duties of the Resigning Trustee under each of the
Indentures and all property and money held by such Resigning Trustee under each
of the Indentures, with like effect as if the Successor Trustee was originally
named as Trustee under each of the Indentures. The Resigning Trustee shall
execute and deliver such further instruments and shall do such other things as
the Successor Trustee may reasonably require so as to more fully and certainly
vest and confirm in the Successor Trustee all the rights, powers, trusts and
duties hereby assigned, transferred, delivered and confirmed to the Successor
Trustee.
Section 104. The Resigning Trustee agrees to pay or indemnify the
Successor Trustee and save the Successor Trustee harmless from and against any
and all costs, claims, liabilities, losses or damages whatsoever (including the
reasonable fees, expenses and disbursements of the Successor Trustee's counsel
and other advisors), that the Successor Trustee suffers or incurs without gross
negligence or bad faith on its part arising out of actions or omissions of the
Resigning Trustee. The Successor Trustee will furnish to the Resigning Trustee,
promptly after receipt, all papers with respect to any action the outcome of
which would make operative the indemnity provided for in this Section. The
Successor Trustee shall notify the Resigning Trustee promptly in writing (and,
in any event, within no later than 10 days) of any claim for which it may seek
indemnity. The Resigning Trustee shall have the option to defend the claim and
the Successor Trustee shall cooperate fully in the defense. If the Resigning
Trustee shall assume the defense, then the Resigning Trustee shall not pay for
separate counsel of the Successor Trustee. The Resigning Trustee shall not be
obligated to pay for any settlement made without its consent.
ARTICLE TWO
THE COMPANY
Section 201. The Company hereby certifies that Exhibit A annexed
hereto is a copy of the resolutions which were duly adopted by the Board of
Directors of the Company,
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which are in full force and effect on the date hereof, and which authorize
certain officers of the Company to: (a) accept the Resigning Trustee's
resignation as Trustee under each of the Indentures; (b) appoint the Successor
Trustee as Trustee under each of the Indentures; and (c) execute and deliver
such agreements and other instruments as may be necessary or desirable to
effectuate the succession of the Successor Trustee as Trustee under each of the
Indentures.
Section 202. Pursuant to Section 610(f) of each of the Indentures, the
Company hereby appoints the Successor Trustee as Trustee under each of the
Indentures and confirms to the Successor Trustee all the rights, powers, trusts
and duties of the Resigning Trustee under each of the Indentures and with
respect to all property and money held or to be held under each of the
Indentures, with like effect as if the Successor Trustee was originally named as
Trustee under each of the Indentures. The Company shall execute and deliver such
further instruments and shall do such other things as the Successor Trustee may
reasonably require so as to more fully and certainly vest and confirm in the
Successor Trustee all the rights, powers, trusts and duties hereby assigned,
transferred, delivered and confirmed to the Successor Trustee.
Section 203. The Company hereby represents and warrants to the
Successor Trustee and the Resigning Trustee that:
(a) The Securities are validly issued securities of the Company.
(b) The Company is a variable capital company validly existing
under the laws of the United Mexican States.
(c) This Instrument has been duly authorized, executed and
delivered on behalf of the Company and constitutes its legal, valid
and binding obligation, subject to bankruptcy, insolvency,
reorganization or other similar laws affecting the rights of creditors
generally and general principles of equity (whether applied by a court
of law or equity).
(d) All conditions precedent relating to the appointment of the
Successor Trustee as successor Trustee under each of the Indentures
have been complied with by the Company.
ARTICLE THREE
THE SUCCESSOR TRUSTEE
Section 301. The Successor Trustee hereby represents and warrants to
the Resigning Trustee and the Company that:
(a) The Successor Trustee is qualified and eligible under the
provisions of Sections 608 and 609 of each of the Indentures to act as
Trustee under each of the Indentures.
(b) This Instrument has been duly authorized, executed and
delivered on behalf of the Successor Trustee.
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Section 302. Pursuant to Section 611 of each of the Indentures, the
Successor Trustee hereby accepts its appointment as Trustee under each of the
Indentures and shall hereby be vested with all the rights, powers, trusts and
duties of the Resigning Trustee under each of the Indentures and with respect to
all property and money held or to be held under each of the Indentures, with
like effect as if the Successor Trustee was originally named as Trustee under
each of the Indentures.
Section 303. Promptly after the execution and delivery of this
Instrument, the Successor Trustee, on behalf of the Company, shall cause
notices, forms of which is annexed hereto marked Exhibit B to E, to be sent to
each Holder.
ARTICLE FOUR
MISCELLANEOUS
Section 401. Except as otherwise expressly provided or unless the
context otherwise requires, all capitalized terms used herein which are defined
in each of the Indentures shall have the meanings assigned to them in each of
the Indentures.
Section 402. This Instrument and the resignation, appointment and
acceptance effected hereby shall be effective as of the close of business on the
date first above written, upon the execution and delivery hereof by each of the
parties hereto.
Section 403. Notwithstanding the resignation of the Resigning Trustee
effected hereby, the parties hereto hereby agree that the Resigning Trustee
shall continue to be entitled to payment of its fees and expenses and
indemnification under Section 607 of each of the Indentures in connection with
its prior trusteeship under each of the Indentures. The Company also
acknowledges and reaffirms its obligations to the Successor Trustee as set forth
in Section 607 of each of the Indentures, which obligations shall survive the
execution hereof.
Section 404. Notwithstanding the resignation of the Resigning Trustee
effected hereby, JPMorgan Chase Bank (formerly, The Chase Manhattan Bank) will
continue to act as Security Registrar and Paying Agent.
Section 405. This Instrument shall be governed by and construed in
accordance with the laws of the State of New York.
Section 406. This Instrument may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
Section 407. All notices, whether faxed or mailed, will be deemed
received when sent pursuant to the following instructions:
TO THE RESIGNING TRUSTEE:
Xx. Xxxxx Xxxxx
Vice President
JPMorgan Chase Bank
Institutional Trust Services
5
Four New York Plaza, 15th Floor
New York, New York 10004
Fax: (000) 000-0000
Tel: (000) 000-0000
TO THE SUCCESSOR TRUSTEE:
Mr. Xxxxx Xxxxxxxxx
Vice President
Corporate Trust Services
Xxxxx Fargo Bank Minnesota, National Association
MAC N9303-120
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Fax: (000) 000-0000
Tel.: (000) 000-0000
TO THE COMPANY:
Xxxxxx Xxxxxx xx Xxxxxxx
Chief Financial Officer
Corporacion Durango, S.A. de X.X.
Xxxxx Corporativo Durango
Potasio 000, Xxxxxx Xxxxxxxxxx
Xxxxxxx, Xxxxxxx
Xxxxxx Xxxxxxx Xxxxxx 00000
Fax: 000-00-000-0000
Tel.: 000-00-000-0000
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IN WITNESS WHEREOF, the parties hereto have caused this Instrument of
Resignation, Appointment and Acceptance to be duly executed as of the day and
year first above written.
CORPORACION DURANGO, S.A. DE C.V.
By /s/ Xxxxxx Xxxxxx xx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxx xx Xxxxxxx
Title: Chief Financial Officer
JPMORGAN CHASE BANK, as Resigning Trustee
By /s/ J.R. Xxxxx
-------------------------------------------
Name: J.R. Xxxxx
Title: Vice President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as Successor Trustee
By /s/ X. Xxxxxxxxx
-------------------------------------------
Name: X. Xxxxxxxxx
Title: V. President
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EXHIBIT A
CERTIFIED COPY OF RESOLUTIONS
OF THE BOARD OF DIRECTORS OF
CORPORACION DURANGO, S.A. DE C.V.
The undersigned, Xxxxxxx xxxxxxxx Xxxxxxx, hereby certifies that s/he
is the duly appointed, qualified and acting Secretary of Corporation Durango,
S.A. de C.V., a variable capital company organized under the laws of the United
Mexican States (the "Company"), and further certifies that the following is a
true and correct copy of certain resolutions duly adopted by the Board of
Directors by Unanimous Written Consent of said Company dated February 5, 2003
and that said resolutions have not been amended, modified or rescinded:
"RESOLVED, that the Company appoint Xxxxx Fargo Bank Minnesota,
National Association (the "Successor Trustee") as successor Trustee
under (i) the Indenture, dated as of July 25, 1996, between the
Company and JPMorgan Chase Bank (the "Resigning Trustee"), as
supplemented by the First Supplemental Indenture, dated as of August
27, 2001, between the Company and the Resigning Trustee, (ii) the
Indenture, dated as of February 5, 2001, between the Company and the
Resigning Trustee, as supplemented by the First Supplemental
Indenture, dated as of October 8, 2001, among the Company, Grupo
Industrial Durango, S.A. de C.V. and the Resigning Trustee, and as
further supplemented by the Second Supplemental Indenture, dated as of
June 24, 2002, among the Company, 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.
and the Resigning Trustee, (iii) the Indenture, dated as of September
13, 2001, between the Company and the Resigning Trustee, as
supplemented by the First Supplemental Indenture, dated as of October
8, 2001, among the Company, Grupo Industrial Durango, S.A. de C.V. and
the Resigning Trustee, and as further supplemented by the Second
Supplemental Indenture, dated as of June 24, 2002, among the Company,
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. and the Resigning Trustee and
(iv) the Indenture, dated as of June 24, 2002, between the Company and
the Resigning Trustee, as supplemented by the First Supplemental
Indenture, dated as of June 24, 2002, among the Company, 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. and the Resigning Trustee (the Indentures
described in clauses (i) through (iv) above are hereinafter referred
to as the "Indentures"); and that the Company accepts the resignation
of the Resigning Trustee as Trustee under each of the Indentures, such
resignation
to be effective upon the execution and delivery by the Successor
Trustee to the Company of an instrument or instruments accepting such
appointment as successor Trustee under each of the Indentures; and it
is further
RESOLVED, that the Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary of the Company be, and each of them hereby is,
authorized, empowered and directed to execute and deliver in the name
and on behalf of the Company an instrument or instruments appointing
the Successor Trustee as the successor Trustee and accepting the
resignation of the Resigning Trustee; and it is further
RESOLVED, that the proper officers of the Company are hereby
authorized, empowered and directed to do or cause to be done all such
acts or things, and to execute and deliver, or cause to be executed or
delivered, any and all such other agreements, amendments, instruments,
certificates, documents or papers (including, without limitation, any
and all notices and certificates required or permitted to be given or
made on behalf of the Company to the Successor Trustee or to the
Resigning Trustee), under the terms of any of the executed instruments
in connection with the resignation of the Resigning Trustee, and the
appointment of the Successor Trustee, in the name and on behalf of the
Company as any of such officers, in his/her discretion, may deem
necessary or advisable to effectuate or carry out the purposes and
intent of the foregoing resolutions; and to exercise any of the
Company's obligations under the instruments and agreements executed on
behalf of the Company in connection with the resignation of the
Resigning Trustee and the appointment of the Successor Trustee."
IN WITNESS WHEREOF, I have hereunto set my hand as Secretary and have
affixed the seal of the Company this 5th day of February, 2003.
By: ______________________________
Name: Xxxxxxx Xxxxxxxx Xxxxxxx
Title: Secretary
[SEAL]
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EXHIBIT B
Notice to Holders of Corporation Durango, S.A. de C.V.'s (f/k/a Grupo Industrial
Durango, S.A. de C.V.) (the "Company") 12 5/8% Notes due 2003 (the
"Securities"):
We hereby notify you of the resignation of JPMorgan Chase Bank
(formerly, The Chase Manhattan Bank) as Trustee under the Indenture, dated as of
July 25, 1996 (the "Indenture"), pursuant to which your Securities were issued
and are outstanding.
The Issuer has appointed Xxxxx Fargo Bank Minnesota, National
Association, whose Corporate Trust Office is located at MAC N9303-120, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, as successor Trustee under the
Indenture, which appointment has been accepted and has become effective.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as successor
Trustee
Date: ___________________________, 2003
EXHIBIT C
Notice to Holders of Corporation Durango, S.A. de C.V.'s (the "Company") 13 1/8%
Senior Notes Due 2006 (the "Securities"):
We hereby notify you of the resignation of JPMorgan Chase Bank
(formerly, The Chase Manhattan Bank) as Trustee under the Indenture, dated as of
February 5, 2001 (the "Indenture"), pursuant to which your Securities were
issued and are outstanding.
The Issuer has appointed Xxxxx Fargo Bank Minnesota, National
Association, whose Corporate Trust Office is located at MAC N9303-120, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, as successor Trustee under the
Indenture, which appointment has been accepted and has become effective.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as successor
Trustee
Date: ___________________________, 2003
EXHIBIT D
Notice to Holders of Corporation Durango, S.A. de C.V.'s (the "Company") 13 1/2%
Senior Notes Due 2008 (the "Securities"):
We hereby notify you of the resignation of JPMorgan Chase Bank
(formerly, The Chase Manhattan Bank) as Trustee under the Indenture, dated as of
September 13, 2001 (the "Indenture"), pursuant to which your Securities were
issued and are outstanding.
The Issuer has appointed Xxxxx Fargo Bank Minnesota, National
Association, whose Corporate Trust Office is located at MAC N9303-120, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, as successor Trustee under the
Indenture, which appointment has been accepted and has become effective.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as successor
Trustee
Date: ___________________________, 2003
EXHIBIT E
Notice to Holders of Corporation Durango, S.A. de C.V.'s (the "Company") 13 3/4%
Senior Notes Due 2009 (the "Securities"):
We hereby notify you of the resignation of JPMorgan Chase Bank as
Trustee under the Indenture, dated as of June 24, 2002 (the "Indenture"),
pursuant to which your Securities were issued and are outstanding.
The Issuer has appointed Xxxxx Fargo Bank Minnesota, National
Association, whose Corporate Trust Office is located at MAC N9303-120, Sixth and
Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, as successor Trustee under the
Indenture, which appointment has been accepted and has become effective.
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION, as successor
Trustee
Date: ___________________________, 2003
