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, N.A.
Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of January [ ], 2002
------------------------------
$120,000,000
11% SERIES B SENIOR SUBORDINATED NOTES DUE 2003
THIS FIFTH SUPPLEMENTAL INDENTURE (the "Fifth
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 (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.
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: _____________________________
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, N.A.
By: _____________________________
Name:
Title:
