Exhibit 4.5.2
CONSOLTEX INC.
CONSOLTEX (USA) INC.
Issuers
CONSOLTEX HOLDINGS, INC.
CONSOLTEX INTERNATIONAL INC.
XXXXXXX, S.A. DE C.V.
CONSOLTEX MEXICO, S.A. DE C.V.
LINQ INDUSTRIAL FABRICS II, INC.
Guarantors
and
U.S. BANK, N.A.
Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of January 30, 2002
$120,000,000
11% SERIES B SENIOR SUBORDINATED NOTES DUE 2003
THIS FIFTH SUPPLEMENTAL INDENTURE (the "Fifth Supplemental
Indenture"), dated as of January 30, 2002, is made by and among CONSOLTEX
INC., a New Brunswick, Canada corporation (successor after the amalgamation
with AIP/CGI NB Acquisition Corp.), CONSOLTEX (USA) INC., a New York
corporation, (together with Consoltex Inc., the "Issuers"), CONSOLTEX
HOLDINGS, INC., CONSOLTEX INTERNATIONAL INC. (formerly known as THE
BALSON-HERCULES GROUP LTD.), RAFYTEK, S.A. DE C.V., CONSOLTEX MEXICO, S.A.
DE C.V. and LINQ INDUSTRIAL FABRICS II, INC. (collectively, the
"Guarantors") and U.S. BANK, N.A. (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"), a Third
Supplemental Indenture dated as of April 12, 2001 (the "Third Supplemental
Indenture") and a Fourth Supplemental Indenture dated as of January 9, 2002
(the "Fourth Supplemental Indenture" and, the Original Indenture as so
amended and supplemented by the First Supplemental Indenture, the Second
Supplemental Indenture, the Third Supplemental Indenture and the Fourth
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:
WHEREAS, the Issuers have issued their 11% Series B Senior
Subordinated Notes Due 2003 (the "Notes") pursuant to the Indenture;
WHEREAS, the Issuers have offered (the "Exchange Offer") to
exchange the Notes for new Guaranteed Subordinated Notes of the Issuers due
2009 and have solicited (the "Consent Solicitation") the consents of the
Holders of the Notes to certain amendments to the provisions of the
Indenture and waivers of certain Defaults and Events of Defaults, pursuant
to that certain Confidential Offering Circular and Consent Solicitation
Statement, dated January 10, 2002;
WHEREAS, in connection with the Consent Solicitation, the Issuers
have obtained the consents of certain Holders of the Notes (the "Consenting
Noteholders"; Holders which have not so consented are referred to as
"Non-Consenting Noteholders") to such amendments of certain provisions of
the Indenture and the Notes and waivers of certain Defaults and Events of
Default;
WHEREAS, Section 9.02 of the Indenture provides that with the
consent of the Holders of at least a majority in principal amount of the
Notes then outstanding, the Issuers, any Guarantor, and the Trustee may
amend or supplement the Indenture and the Notes and waive certain existing
Defaults or Events of Default, subject to specified exceptions;
WHEREAS, the Holders of a majority of the principal amount of the
Notes outstanding have duly consented to the proposed amendments set forth
in this Fifth Supplemental Indenture in accordance with Section 9.02 of the
Indenture;
WHEREAS, the Issuers have heretofore delivered or are delivering
contemporaneously herewith to the Trustee (i) a copy of resolutions of the
Board of Directors of each Issuer, certified by the Secretary or an
Assistant Secretary of each Issuer, authorizing the execution, delivery and
performance of this Fifth Supplemental Indenture, (ii) evidence of the
written consent of the Holders set forth in the immediately preceding
paragraph (iii) an Officers' Certificate and an Opinion of Counsel with and
to the effect set forth in Section 11.04 of the Indenture;
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Fifth Supplemental Indenture and to make this Fifth
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.
ARTICLE ONE
AMENDMENTS
SECTION 1.01. Amendments. Subject to Section 3.01 hereof, the
Indenture is hereby amended by (A) deleting in their entireties Sections
4.04, 4.05, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.15, 6.01 (c), (d),
(e), (f), (g), (h) and (i), 10.01 (with respect to payments not yet due),
10.02, 10.03, 10.04 and Article 5 of the Indenture, (B) deleting in its
entirety Section 4.03 of the Indenture and replacing it with the following:
" The Issuers and any Guarantor shall comply with the provisions of TIA
314(a).", and (C) deleting the corresponding provisions of the Notes.
Effective as of the date hereof, none of the Issuers, Guarantors, Trustee
or other parties to or beneficiaries of the Indenture or the Notes shall
have any rights, obligations or liabilities under such deleted Sections or
Articles and such Sections or Articles shall not be considered in
determining whether a Default or Event of Default has occurred or whether
either Issuer or any of the Guarantors has observed, performed or complied
with the provisions of the Indenture.
SECTION 1.02. Amendment of Definitions. Subject to Section 3.01
hereof, the Indenture is hereby amended by deleting any definitions from
the Indenture with respect to which references would be eliminated as a
result of the amendment of the Indenture pursuant to Section 1.01 hereof.
ARTICLE TWO
WAIVERS
SECTION 2.01. Waiver of Defaults. Effective as of the date hereof,
to the fullest extent permitted by the Indenture, any and all Defaults and
Events of Default existing as of the date hereof including, without
limitation, but only with respect to Consenting Noteholders, all Defaults
and Events of Default in the payment of interest on the Notes, are hereby
waived. Notwithstanding anything to the contrary in this Fifth Supplemental
Indenture, no existing Defaults or Events of Default in the payment of
principal of or premium, if any, or interest on the Notes, are waived with
respect to Non-Consenting Noteholders.
ARTICLE THREE
MISCELLANEOUS
SECTION 3.01. Effectiveness. This Fifth 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. On the date
the Exchange Offer is consummated, simultaneously with the consummation of
the Exchange Offer, this Fifth Supplemental Indenture will become operative
as of the date hereof.
SECTION 3.02. 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 FIFTH
SUPPLEMENTAL INDENTURE.
SECTION 3.03. Counterparts. This Fifth 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 3.04. Severability. In case any provision of this Fifth
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 3.05. 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 3.06. Trustee. The Trustee accepts the trusts created by
the Indenture, as supplemented by this Fifth Supplemental Indenture, and
agrees to perform the same upon the terms and conditions of the Indenture,
as amended and supplemented by this Fifth Supplemental Indenture.
SECTION 3.07. 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 Fifth Supplemental Indenture or for the due execution
hereof by the Issuers and the Guarantors.
SECTION 3.08. Reaffirmation. The parties hereto make and reaffirm
as of the date of execution of this Fifth Supplemental Indenture all of
their respective representations, covenants and agreements set forth in the
Indenture, as amended by this Fifth Supplemental Indenture.
SECTION 3.09. Assignment. All covenants and agreements of the
Issuers, the Guarantors, and the Trustee in the Indenture, as amended by
this Fifth Supplemental Indenture, shall bind each of their respective
successors and assigns, whether so expressed or not.
SECTION 3.10. Third-Party Beneficiaries. Nothing in this Fifth
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 Fifth Supplemental Indenture.
SECTION 3.11. 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 Fifth 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 Fifth Supplemental Indenture as so modified or
excluded, as the case may be.
SECTION 3.12. Unity. All provisions of this Fifth Supplemental
Indenture shall be deemed to be incorporated in, and made a part of, the
Indenture. The Indenture, as amended and supplemented by this Fifth
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
Fifth Supplemental Indenture to be duly executed all as of the date and
year first above written.
CONSOLTEX INC.
By: /s/ Xxxx Xx Xxxxx
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Name: Xxxx Xx Xxxxx
Title: Executive Vice-President,
Finance and Taxation
CONSOLTEX (USA) INC.
By: /s/ Xxxx Xx Xxxxx
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Name: Xxxx Xx Xxxxx
Title: Executive Vice-President,
Finance and Taxation
CONSOLTEX HOLDINGS, INC.
By: /s/ Xxxx Xx Xxxxx
----------------------------------------
Name: Xxxx Xx Xxxxx
Title: Executive Vice-President,
Finance and Taxation
CONSOLTEX INTERNATIONAL INC.
By: /s/ Xxxx Xx Xxxxx
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Name: Xxxx Xx Xxxxx
Title: Vice-President, Taxation
XXXXXXX, S.A. DE C.V.
By: /s/ X. Xxxxxxx Xxxxxxxx
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Name: X. Xxxxxxx Xxxxxxxx
Title: Attorney-in-fact
CONSOLTEX MEXICO, S.A. DE C.V.
By: /s/ X. Xxxxxxx Xxxxxxxx
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Name: X. Xxxxxxx Xxxxxxxx
Title: Attorney-in-fact
LINQ INDUSTRIAL FABRICS II, INC.
By: /s/ X. Xxxxxxx Xxxxxxxx
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Name: X. Xxxxxxx Xxxxxxxx
Title: Vice-President, Legal Affairs
and Corporate Secretary
U.S. BANK, N.A.
By: /s/ X.X. Xxxxxxx
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Name: X. X. Xxxxxxx
Title: Vice-President
