Exhibit 4.6
CONSOLTEX INTERNATIONAL INC.
as
Guarantor
and
U.S. BANK, N.A.
as,
Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of August 28, 2002
11% SENIOR SUBORDINATED PAY-IN-KIND NOTES DUE 2009
THIS FIRST SUPPLEMENTAL INDENTURE (this "First Supplemental
Indenture"), dated as of August 28, 2002, is made by and among CONSOLTEX
INTERNATIONAL INC., a Delaware Corporation ("New International ") and U.S.
BANK, N.A., as Trustee (the "Trustee"), under the Indenture dated as of
February 12, 2002 by and among Consoltex Inc., a New Brunswick, Canada
corporation, Consoltex (USA) Inc., a New York corporation (together the
"Issuers"), the Guarantors party thereto and the Trustee (the "Original
Indenture," and, as amended by this First 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 Guarantors, and the Trustee are parties
to the Indenture, pursuant to which the Issuers have issued their 11%
Senior Subordinated Pay-In-Kind Notes Due 2009 (the "Notes") and the
Guarantors have guaranteed all of the obligations of the Issuers with
respect to the Notes on a senior subordinated basis;
WHEREAS, Consoltex International Inc, a Rhode Island corporation
("Old International ") was a Guarantor;
WHEREAS, on March 1, 2002, Old International merged with and into
New International, with New International surviving (the "Merger");
WHEREAS, as a result of the Merger, New International assumed Old
International's obligations under Old International's Guarantee of the Notes;
WHEREAS, Section 10.03 of the Indenture provides that a Guarantor
may amalgamate, consolidate with or merger with or into any other Guarantor;
WHEREAS, New International wishes to guarantee all of the Issuers'
obligations with respect to the Notes on a senior subordinated basis,
effective as of immediately prior to the consummation of the Merger (the
"Effective Time");
WHEREAS, New International is duly authorized to execute and
deliver this First 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 First Supplemental Indenture and to make this First
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. New International Guarantee. New International
hereby guarantees all of the obligations of the Issuers with respect to the
Notes on a senior subordinated basis as provided in 10.01 of the Indenture,
effective as of the Effective Time. References in the Indenture to the term
"Guarantor" or "Guarantors" shall be deemed to include New International.
SECTION 1.02. Consent to Jurisdiction. New International 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 First Supplemental
Indenture;
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(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
International, 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 1.02 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 1.03. Effectiveness. This First Supplemental Indenture
shall become effective on the date the counterparts hereto shall have been
executed and delivered by each of the parties hereto and shall be effective
as of the Effective Time.
SECTION 1.04. 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 FIRST
SUPPLEMENTAL INDENTURE.
SECTION 1.05. Counterparts. This First 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 1.06. Severability. In case any provision of this First
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 1.07. Trustee. The Trustee accepts the trusts created by
the Indenture, as supplemented by this First Supplemental Indenture, and
agrees to perform the same upon the terms and conditions of the Indenture,
as amended and supplemented by this First Supplemental Indenture.
SECTION 1.08. No Representations by Trustee. The recitals contained
herein shall be taken as the statement of New International, and the Trustee
assumes no responsibility whatsoever for their correctness. The Trustee makes
no representations as to the validity or sufficiency of this First
Supplemental Indenture or for the due execution hereof by New International.
SECTION 1.09. Assignment. All covenants and agreements of the New
International, as Guarantor, and the Trustee in this First Supplemental
Indenture shall bind each of their respective successors and assigns,
whether so expressed or not.
SECTION 1.10. Third-Party Beneficiaries. Nothing in this First
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 First Supplemental Indenture.
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SECTION 1.11. 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 First 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 First Supplemental Indenture as so modified or
excluded, as the case may be.
SECTION 1.12. Unity. All provisions of this First Supplemental
Indenture shall be deemed to be incorporated in, and made a part of, the
Indenture. The Indenture, as amended and supplemented by this First
Supplemental Indenture, shall be read, taken and construed as one and the
same instrument.
(signature pages follow)
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed all as of the date and year
first above written.
CONSOLTEX INTERNATIONAL INC.
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: V.P. Strategic Planning
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U.S. BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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