Exhibit 4.5.1
CONSOLTEX INC.
CONSOLTEX (USA) INC.
Issuers
CONSOLTEX HOLDINGS, INC.
CONSOLTEX INTERNATIONAL INC.
RAFYTEK, S.A. DE C.V.
CONSOLTEX MEXICO, S.A. DE C.V.
LINQ INDUSTRIAL FABRICS II, INC.
Guarantors
and
U.S. BANK TRUST NATIONAL ASSOCIATION
Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of January 9, 2002
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$120,000,000
11% SERIES B SENIOR SUBORDINATED NOTES DUE 2003
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Fourth Supplemental
Indenture"), dated as of January 9, 2002, is made by and among CONSOLTEX
INC., a New Brunswick, Canada corporation (successor after the amalgamation
with AIP/CGI NB Acquisition Corp.) ("Consoltex Group"), CONSOLTEX (USA)
INC., a New York corporation, ("Consoltex USA," and, together with
Consoltex Inc., the "Issuers"), CONSOLTEX HOLDINGS, INC., CONSOLTEX
INTERNATIONAL INC. (F/K/A THE BALSON-ERLANGER GROUP LTD.), RAFYTEK, S.A. DE
C.V. and CONSOLTEX MEXICO, S.A. DE C.V. (collectively, the "Existing
Guarantors"), LINQ INDUSTRIAL FABRICS II, INC. ("New LINQ") and U.S. BANK
TRUST NATIONAL ASSOCIATION (formerly known as FIRST TRUST NATIONAL
ASSOCIATION), as Trustee (the "Trustee"), under the Indenture dated as of
September 30, 1993 (the "Original Indenture"), as amended and supplemented
by a Supplemental Indenture dated as of August 18, 1994 (the "First
Supplemental Indenture"), a Second Supplemental Indenture dated as of
September 29, 2000 (the "Second Supplemental Indenture") and a Third
Supplemental Indenture dated as of April 12, 2001 (the "Third Supplemental
Indenture" and, the Original Indenture as so amended and supplemented by
the First Supplemental Indenture, the Second Supplemental Indenture and the
Third Supplemental Indenture, the "Indenture"). Capitalized terms used
herein and not otherwise defined shall have the meaning assigned to them in
the Indenture.
W I T N E S S E T H:
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WHEREAS, the Issuers, the Existing Guarantors, LINQ
Industrial Fabrics, Inc. ("Old LINQ") and the Trustee are parties to the
Indenture, pursuant to which the Issuers have issued their 11% Series B
Senior Subordinated Notes Due 2003 (the "Notes") and the Existing
Guarantors and Old LINQ have guaranteed all of the obligations of the
Issuers with respect to the Notes on a senior subordinated basis;
WHEREAS, Consoltex USA and Consoltex Mexico have entered into an
agreement pursuant to which Consoltex USA has disposed of all of the
Capital Stock of Old LINQ and certain other assets to a person that is not
an Affiliate of Consoltex Group (the "Old LINQ Disposition");
WHEREAS, Section 10.04 of the Indenture provides that upon a sale
or other disposition of all of the Capital Stock of a Guarantor to any
person that is not an Affiliate of Consoltex Group, such Guarantor shall be
released and relieved of its obligations under its Guarantee; provided
that: (i) such sale or disposition is in compliance with Section 4.10 of
the Indenture and (ii) the Net Proceeds of any such sale or disposition are
applied in accordance with the applicable provisions of the Indenture;
WHEREAS, on the date hereof, the Issuers have delivered to the
Trustee an Officers' Certificate to the effect that the Old LINQ
Disposition was in compliance with Section 4.10 of the Indenture and that
the Net Proceeds of the Old LINQ Disposition have been applied in
accordance with the applicable provisions of the Indenture;
WHEREAS, in connection with the Old LINQ Disposition, Old LINQ
transferred certain assets to New LINQ (the "New LINQ Capitalization");
WHEREAS, upon consummation of the New LINQ Capitalization and the
Old LINQ Disposition, New LINQ is a Significant Subsidiary of Consoltex USA
under the Indenture;
WHEREAS, Section 4.13 of the Indenture provides that neither
Issuer nor any of their respective Subsidiaries shall acquire or form a
Significant Subsidiary, unless the Issuers (a) designate such Significant
Subsidiary as a Unrestricted Subsidiary pursuant to the terms of the
Indenture or (b) cause such Significant Subsidiary to execute and deliver
to the Trustee a supplemental indenture pursuant to which such Significant
Subsidiary shall guarantee all of the obligations of the Issuers with
respect to the Notes on a senior subordinated basis;
WHEREAS, New LINQ is duly authorized to execute and deliver this
Fourth Supplemental Indenture and to guarantee all of the obligations of
the Issuers with respect to the Notes on a senior subordinated basis;
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Fourth Supplemental Indenture and to make this Fourth
Supplemental Indenture valid and binding have been complied with or have
been done or performed; and
NOW, THEREFORE, in consideration of the foregoing, the parties
hereto agree as follows:
SECTION 1.01. Release of Old LINQ Guarantee. Effective as of the
date of the Old LINQ Disposition, Old LINQ shall be released and relieved
of its obligations under its Guarantee.
SECTION 1.02. New LINQ Guarantee. New LINQ hereby guarantees all
of the obligations of the Issuers with respect to the Notes on a senior
subordinated basis as provided in Sections 4.13 and 10.01 of the Indenture.
References in the Indenture to the term "Guarantor" or "Guarantors" shall
be deemed to include New LINQ.
SECTION 1.03. Consent to Jurisdiction. New LINQ irrevocably:
(a) submits to the jurisdiction of any New York State or Federal
court sitting in New York City and any appellate court therefrom in any
action or proceeding arising out of or relating to this Supplemental
Indenture;
(b) agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State court or in
such Federal court;
(c) waives, to the fullest extent it may effectively do so, the
defense of an inconvenient forum to the maintenance of such action or
proceeding;
(d) consents to the service of any and all process in any action
or proceeding by the mailing of copies of such process to New LINQ, at its
address maintained in the records of the Issuers; and
(e) 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 law.
Nothing in this Section 1.03 shall affect the right of
any party hereto or any Holder to serve legal process in any other manner
permitted by law or affect the right of any party hereto to bring any
action or proceeding against the Issuers or any Guarantor or their
respective property in the courts of other jurisdictions.
SECTION 1.04. Effectiveness. This Fourth Supplemental Indenture
shall become effective on and as of the date the counterparts hereto shall
have been executed and delivered by each of the parties hereto.
SECTION 1.05. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW
YORK, INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW, SHALL GOVERN AND BE USED TO CONSTRUE THIS FOURTH
SUPPLEMENTAL INDENTURE.
SECTION 1.06. Counterparts. This Fourth Supplemental Indenture may
be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall constitute but one and the same
instrument.
SECTION 1.07. Severability. In case any provision of this Fourth
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 1.08. Ratification. Except as expressly waived, amended or
supplemented hereby, all of the terms of the Indenture shall remain and
continue in full force and effect and are hereby confirmed in all respects
and, as expressly waived, amended, or supplemented hereby, the Indenture is
in all respects agreed to, ratified and confirmed by each of the Issuers,
the Guarantors and the Trustee.
SECTION 1.09. Trustee. The Trustee accepts the trusts created by
the Indenture, as supplemented by this Fourth Supplemental Indenture, and
agrees to perform the same upon the terms and conditions of the Indenture,
as amended and supplemented by this Fourth Supplemental Indenture.
SECTION 1.10. No Representations by Trustee. The recitals
contained herein shall be taken as the statement of the Issuers and
Guarantors, and the Trustee assumes no responsibility whatsoever for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Fourth Supplemental Indenture or for the due execution
hereof by the Issuers and the Guarantors.
SECTION 1.11. Reaffirmation. The parties hereto make and reaffirm
as of the date of execution of this Fourth Supplemental Indenture all of
their respective representations, covenants and agreements set forth in the
Indenture.
SECTION 1.12. Assignment. All covenants and agreements of the
Issuers, the Guarantors, and the Trustee in this Fourth Supplemental
Indenture shall bind each of their respective successors and assigns,
whether so expressed or not.
SECTION 1.13. Third-Party Beneficiaries. Nothing in this Fourth
Supplemental Indenture, express or implied, shall give to any Person, other
than the parties hereto and their successors under the Indenture and the
Holders of the Notes, any benefit or any legal or equitable right, remedy
or claim under the Indenture or this Fourth Supplemental Indenture.
SECTION 1.14. Trust Indenture Act. If any provisions hereof limit,
quality or conflict with a provision of the Trust Indenture Act of 1939, as
amended from time to time (the "TIA"), required under the TIA to be a part
of and govern this Fourth Supplemental Indenture, the provisions of the TIA
shall control. If any provision hereof modifies or excludes any provision
of the TIA that may be so modified or excluded, the latter provisions shall
be deemed to apply to this Fourth Supplemental Indenture as so modified or
excluded, as the case may be.
SECTION 1.15. Unity. All provisions of this Fourth Supplemental
Indenture shall be deemed to be incorporated in, and made a part of, the
Indenture. The Indenture, as amended and supplemented by this Fourth
Supplemental Indenture, shall be read, taken and construed as one and the
same instrument.
(signature pages follow)
IN WITNESS WHEREOF, the parties hereto have caused this
Fourth Supplemental Indenture to be duly executed all as of the date and
year first above written.
CONSOLTEX INC.
By: /s/ Alex Di Palma
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Name: Alex Di Palma
Title: Executive Vice-President,
Finance and Taxation
CONSOLTEX (USA) INC.
By: /s/ Alex Di Palma
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Name: Alex Di Palma
Title: Executive Vice-President,
Finance and Taxation
CONSOLTEX HOLDINGS, INC.
By: /s/ Alex Di Palma
--------------------------------------------
Name: Alex Di Palma
Title: Executive Vice-President,
Finance and Taxation
CONSOLTEX INTERNATIONAL INC.
By: /s/ Alex Di Palma
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Name: Alex Di Palma
Title: Vice-President, Taxation
RAFYTEK, S.A. DE C.V.
By: /s/ C. Suzanne Crawford
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Name: C. Suzanne Crawford
Title: Attorney-in-fact
CONSOLTEX MEXICO, S.A. DE C.V.
By: /s/ C. Suzanne Crawford
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Name: C. Suzanne Crawford
Title: Attorney-in-fact
LINQ INDUSTRIAL FABRICS II, INC.
By: /s/ C. Suzanne Crawford
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Name: C. Suzanne Crawford
Title: Vice-President, Legal Affairs
and Corporate Secretary
U.S. BANK NATIONAL ASSOCIATION
By: /s/ T.J. Sandell
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Name: T. J. Sandell
Title: Vice-President