Exhibit 4.1


 


 


AEP INDUSTRIES INC.


 


as Issuer


 


and


 


THE BANK OF NEW YORK


 


as Trustee


 










 


FIRST SUPPLEMENTAL
INDENTURE


 


Dated as of March 8,
2005


 


to


 


INDENTURE


 


Dated as of November 19, 1997


 










 


$200,000,000
9.875% Senior Subordinated Notes due 2007


 





















 


FIRST SUPPLEMENTAL INDENTURE (“First Supplemental
Indenture”), dated as of March 8, 2005, between AEP Industries Inc. (the “Issuer”)
and The Bank of New York, as Trustee (the “Trustee”). All capitalized terms not
otherwise defined herein shall have the meaning assigned to them in the
Indenture (as defined herein).


 


WHEREAS the Issuer named therein has heretofore
executed and delivered to the Trustee an Indenture, dated as of November 19,
1997, (as such may be amended and supplemented from time to time, the “Indenture”),
providing for the issuance of $200,000,000 principal amount of 9.875% Senior Subordinated
Notes due 2007 issued by the Issuer (the “Notes”);


 


WHEREAS, the Issuer desires to amend certain
provisions of the Indenture as set forth herein;


 


WHEREAS, pursuant to Section 10.02
of the Indenture, the Issuer and the Trustee may amend or supplement the
Indenture with the written consent of the Holders of at least a majority in
principal amount of the outstanding Notes;


 


WHEREAS, pursuant to the
Offer to Purchase and Consent Solicitation Statement dated February 17,
2005 (the “Offer to Purchase and Consent Solicitation Statement”) of the
Issuer, the Issuer has solicited consents of the Holders to authorize the
amendment of the Indenture;


 


WHEREAS, in connection the
amendment of the Indenture, the Issuer has obtained the written consent of the
Holders of at least a majority in aggregate principal amount of the outstanding
Notes to certain amendments (the “Amendments”) to the Indenture as set forth in
this Supplemental Indenture;


 


WHEREAS, the Issuer and the
Trustee desire and have agreed to execute and deliver this Supplemental
Indenture as herein provided and all conditions precedent and requirements
necessary to make this Supplemental Indenture a valid and legally binding instrument
in accordance with its terms have been complied with, performed and fulfilled
and the execution and delivery hereof have been in all respects duly authorized
by all necessary parties.


 


NOW,
THEREFORE, for and in consideration of the premises contained herein, it is
mutually covenanted and agreed for the benefit of all Holders of the Notes as
follows:


 


SECTION 1.           Amendments.


 


SECTION 1.01
Removal of Certain Provisions, Defined Terms and Cross-References. The
texts of Sections 4.03 through 4.06, 4.10, 4.12, 4.14 through 4.18, 6.01(e),
6.01(f), and 6.01(g) of the Indenture and the corresponding provisions of
the Notes are hereby deleted in their entireties and are replaced in each case
with the phrase “Intentionally Omitted.” 
The definitions of any and all terms that are defined in Section 1.01
of the Indenture but used only in one or more of the Sections referenced in the
immediately preceding sentence and cross-references to one or more of the
Sections references in the immediately preceding sentence are deleted in their
entireties.


 





















 


SECTION 1.02 Amendment of Section 5.01.


 


Section 5.01 of the Indenture is hereby
amended by deleting the language in Section 5.01 in its entirety and
replacing it with the following:


 


The
Company will not consolidate or merge with or into any Person, or sell, assign,
lease, convey or otherwise dispose of (or cause or permit any Restricted
Subsidiary to consolidate or merge with or into any Person or sell, assign,
lease, convey or otherwise dispose of) all or substantially all of the Company’s
assets (determined on a consolidated basis for the Company and the Restricted
Subsidiaries), whether as an entirety or substantially an entirety in one
transaction or a series of related transactions, including by way of
liquidation or dissolution, to any Person unless, in each such case: (i) the
entity formed by or surviving any such consolidation or merger (if other than
the Company or such Restricted Subsidiary, as the case may be), or to which
such sale, assignment, lease, conveyance or other disposition shall have been
made (the “Surviving Entity”), is a corporation organized and existing under
the laws of the United States, any state thereof or the District of Columbia;
and (ii) the Surviving Entity assumes by supplemental indenture all of the
obligations of the Company on the Securities and under the Indenture.  The provisions of this paragraph shall not
apply to any merger of a Restricted Subsidiary with or into the Company or a
Wholly Owned Subsidiary or the release of any Guarantor in accordance with the
terms of the Guarantee and the Indenture in connection with any transaction
complying with the provisions of Section 4.05.


 


SECTION 1.02  Amendment of Article Six.


 


(a) Section 6.01(h) of the
Indenture is hereby amended by deleting the language in Section 6.01(h) in
its entirety and replacing it with the following:


 


the Company pursuant to or within
the meaning of any Bankruptcy Law:


 


(1) 
commences a voluntary case or proceeding,


 


(2) 
consents to the entry of an order for relief against it in an involuntary case
or proceeding,


 


(3) 
consents to the appointment of a Custodian of it or for all or substantially
all of its property, or


 


(4) 
makes a general assignment for the benefit of its creditors;


 


(b) 
Section 6.01(i) of the Indenture is hereby amended by deleting the
language in Section 6.01(i) in its entirety and replacing it with the
following:


 


a
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that:


 





















 


(1) 
is for relief against the Company in an involuntary case or proceeding,


 


(2) 
appoints a Custodian of the Company or for all or substantially all of its
property, or


 


(3) 
orders the liquidation of the Company,


 


and in each case the order or decree
remains unstayed and in effect for 60 days; provided, however, that if the
entry of such order or decree is appealed and dismissed on appeal then the
Event of Default hereunder by reason of the entry of such order or decree shall
be deemed to have been cured; or


 


(c) The
definition of the term “Material Subsidiary” in Section 1.01 of the
Indenture is deleted in its entirety.


 


SECTION 2.           Operation of Amendments.  Upon
the execution and delivery of this Supplemental Indenture by the parties
hereto, the Supplemental Indenture will become effective but the Amendments
will not become operative until a majority in outstanding principal amount of
the Notes are validly tendered and accepted pursuant to and in accordance with
the terms and conditions of the offer to purchase as set forth in the Offer to
Purchase and Consent Solicitation of the Issuer, as the same may be amended,
modified or supplemented from time to time in accordance therewith.


 


SECTION 3.           Miscellaneous.


 


SECTION 3.01 
Incorporation of the Indenture. 
All the provisions of this Supplemental Indenture shall be deemed to be
incorporated in, and made a part of, the Indenture; and the Indenture, as
supplemented and amended by this Supplemental Indenture, shall be read, taken
and construed as one and the same instrument.


 


SECTION 3.02 
Application of First Supplemental Indenture. The provisions and
benefit of this First Supplemental Indenture shall be effective with respect to
the Notes.


 


SECTION 3.03 
Counterpart Originals. The parties may sign any number of copies
of this Supplemental Indenture.  Each
signed copy shall be an original, but all of them together represent the same
agreement.


 


SECTION 3.04  Successors. All agreements of the Issuer in this Supplemental Indenture shall bind its successor.  All agreements of the Trustee in this Supplemental Indenture shall bind its successor.
 
SECTION 3.05  Severability. In case any provision in this 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, and a Holder shall have no claim therefor against any party hereto.


 





















 


SECTION 3.06 
Benefits of First Supplemental Indenture. Nothing in this First
Supplemental Indenture, express or implied, shall give to any person, other
than the parties hereto and their successors hereunder and the Holders, any
benefit or any legal or equitable right, remedy or claim under this
Supplemental Indenture.


 


SECTION 3.07 
Regarding the Trustee. The Trustee shall not be responsible for
the correctness of the recitals herein, and makes no representation as to the
validity or the sufficiency of this Supplemental Indenture. The Trustee shall,
in connection with this Supplemental Indenture, be entitled to all of the
benefits of all of the rights, privileges, immunities and indemnities of the
Trustee provided for in the Indenture.


 


SECTION 3.08 
GOVERNING LAW.  THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
THIS SUPPLEMENTAL INDENTURE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.


 


SECTION 3.09. 
Effect of Headings.  The Section headings
herein are for convenience only and shall not affect the construction hereof.


 


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SIGNATURES
 
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first written above.
 


	 
	AEP INDUSTRIES INC.

	 
	 

	 
	 

	 
	By:
	/s/ Jim Rafferty
	 

	 
	 
	Name: Jim Rafferty

	 
	 
	Title: Vice President and Treasurer

	 
	 

	 
	 

	 
	THE BANK OF NEW YORK, as Trustee

	 
	 

	 
	 

	 
	By:
	/s/Robert A. Massimillo
	 

	 
	 
	Name: Robert A. Massimillo

	 
	 
	Title:   Vice President