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EXHIBIT 4.12
SUBSTITUTE NOTE GUARANTEE
WHEREAS, on June 26, 1998, Xxxxxx X. Xxxxx executed, on behalf of
certain subsidiaries (collectively, the "Subsidiary Guarantors") of Xxxx
Industries, Inc. (formerly known as Anchor Advanced Products, Inc.), a Delaware
corporation (the "Issuer"), the Note Guarantee (the "Note Guarantee") pursuant
to Section 4.16 of the Indenture (as defined below); and
WHEREAS, the undersigned (the "Guarantor") is one of the Subsidiary
Guarantors;
WHEREAS, the Guarantor wishes to execute this guarantee (the
"Substitute Note Guarantee") in substitution for the Note Guarantee to the
extent the Note Guarantee was executed on behalf of the Guarantor (the "Original
Note Guarantee"), in the manner contemplated by the Note Guarantee; and
WHEREAS, concurrently with the execution of this Substitute Note
Guarantee, each of the other Subsidiary Guarantors is executing a guarantee in
substitution for the Note Guarantee to the extent the Note Guarantee was
executed on behalf of such Subsidiary Guarantor (such guarantees, together with
this Substitute Note Guarantee, are hereinafter collectively referred to as the
"Substitute Guarantees"), in the manner contemplated by the Note Guarantee.
Capitalized terms used but not defined herein shall have the meanings
given them in the Indenture.
IN WITNESS WHEREOF:
The Guarantor set forth below, which in accordance with Section 4.16 of
the Indenture, dated as of April 2, 1997, as supplemented by the First
Supplemental Indenture, dated as of March 18, 1998 (as so supplemented, the
"Indenture"), by and among the Issuer, Anchor Holdings, Inc., a Delaware
corporation and State Street Bank and Trust Company (as successor to Fleet
National Bank), as trustee, is required to guarantee the obligations of the
Issuer under the 11 3/4% Senior Notes due 2004 (the "Notes") hereby
unconditionally guarantees, to the fullest extent permitted by law, (i) the due
and punctual payment of the principal of, interest and Liquidated Damages, if
any, on the Notes, whether at the maturity or interest payment date, by
acceleration, call for redemption or otherwise, and of interest on the overdue
principal of, interest and Liquidated Damages, if any, on the Notes and all
other obligations of the Issuer to the Holders or the Trustee under the
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Indenture or the Notes and (ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at maturity, by acceleration or otherwise. The
obligations of the Subsidiary Guarantors, including without limitation, the
Guarantor, under the Substitute Guarantees are joint and several obligations.
The obligations of the Guarantor to the Holders and to the Trustee
pursuant to this Substitute Note Guarantee and the Indenture are as expressly
set forth in Article 10 of the Indenture and in such other provisions of the
Indenture as are applicable to Guarantors (as defined in the Indenture), and
reference is hereby made to such Indenture for the precise terms of this
Substitute Note Guarantee. The terms of Article 10 of the Indenture (including,
without limitation, Section 10.04 of the Indenture) and such other provisions of
the Indenture as are applicable to Guarantors (as defined in the Indenture) are
incorporated herein by reference.
This Substitute Note Guarantee is being executed in substitution for
the Original Note Guarantee, and upon the execution hereof (i) this Substitute
Note Guarantee shall be effective from and after the date of the Original Note
Guarantee as if it had been in effect from the date of the Original Note
Guarantee, and (ii) the Original Note Guarantee shall terminate and be of no
force or effect and (iii) the Guarantor shall be released from any and all
liability under the Original Note Gurarantee.
This is a continuing guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its successors and assigns
until full and final payment of all of the Issuer's obligations under the Notes
and the Indenture and shall inure to the benefit of the successors and assigns
of the Trustee and the Holders and, in the event of any transfer or assignment
of rights by any Holder or the Trustee, the rights and privileges herein
conferred upon that party shall automatically extend to and be vested in such
transferee or assignee, all subject to the terms and conditions hereof. This is
a guarantee of payment and not a guarantee of collection.
In case any provision in this Substitute Note Guarantee 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.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS SUBSTITUTE NOTE GUARANTEE.
[Signature on following page]
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XXXX INDUSTRIES U.K. LIMITED
By: /s/ Xxxxxx X. Xxxxx
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Authorized Signatory
Dated: June 26, 1998
