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
------------------------------
$120,000,000
11% SERIES B SENIOR SUBORDINATED NOTES DUE 2003
THIS FOURTH SUPPLEMENTAL INDENTURE (the "Fourth
Supplemental Indenture"), dated as of January [ ], 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 XXXXXX-XXXXXXXX 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:
- - - - - - - - - -
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: _____________________________
Name:
Title:
CONSOLTEX (USA) INC.
By: _____________________________
Name:
Title:
CONSOLTEX HOLDINGS, INC.
By: _____________________________
Name:
Title:
CONSOLTEX INTERNATIONAL INC.
By: _____________________________
Name:
Title:
RAFYTEK, S.A. DE C.V.
By: _____________________________
Name:
Title:
CONSOLTEX MEXICO, S.A. DE C.V.
By: _____________________________
Name:
Title:
LINQ INDUSTRIAL FABRICS II, INC.
By: _____________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION
By: _____________________________
Name:
Title:
