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EXHIBIT 4.8
ANCHOR ADVANCED PRODUCTS, INC.
ISSUER
ANCHOR HOLDINGS, INC.
GUARANTOR
AND
STATE STREET BANK AND TRUST COMPANY
(SUCCESSOR TO FLEET NATIONAL BANK)
TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 18, 1998
TO
THE INDENTURE DATED AS OF APRIL 2, 1997
BETWEEN ANCHOR ADVANCED PRODUCTS, INC., ANCHOR HOLDINGS, INC. AND
STATE STREET BANK AND TRUST COMPANY
(AS SUCCESSOR TO FLEET NATIONAL BANK), AS TRUSTEE,
RELATING TO $100 MILLION AGGREGATE PRINCIPAL AMOUNT OF
11 3/4% SERIES B SENIOR NOTES DUE 2004
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SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (the "Supplemental Indenture") is
made as of the 18th day of March, 1998, between Anchor Advanced Products, Inc.
(the "Issuer"), Anchor Holdings, Inc. ("Holdings") and State Street Bank and
Trust Company (as successor to Fleet National Bank), as trustee (the "Trustee").
WHEREAS, the Issuer, Holdings and the Trustee heretofore executed and
delivered an Indenture, dated as of April 2, 1997 (the "Indenture"); and
WHEREAS, pursuant to the Indenture, the Issuer issued and the Trustee
authenticated and delivered $100 million aggregate principal amount of the
Issuer's 113/4% Senior Notes due 2004 (the "Initial Notes"); and
WHEREAS, pursuant to an exchange offer registered with the Securities
and Exchange Commission on a Registration Statement No. 333-26943 on Form S-4,
the Issuer offered to, and did, exchange $100 million in aggregate principal
amount of its 11 3/4% Series B Senior Notes due 2004 (the "Exchange Notes" and,
together with the Initial Notes, the "Notes") for $100 million in aggregate
principal amount of the Initial Notes; and
WHEREAS, the Initial Notes were, and the Exchange Notes are,
unconditionally guaranteed on a senior basis by Holdings; and
WHEREAS, Section 9.02 of the Indenture provides that the Issuer, when
authorized by Board Resolution, and the Trustee, with the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes outstanding, may amend the Indenture, subject to certain exceptions (none
of which is applicable to the amendments (the "Amendments") and waiver (the
"Waiver") contained in Sections 2.01 and 2.02, respectively, of this
Supplemental Indenture) specified in Section 9.02 of the Indenture; and
WHEREAS, Anchor Acquisition Co., a Delaware corporation, proposes to
acquire all the capital stock of Holdings (the "Acquisition"); and
WHEREAS, pursuant to its Consent Solicitation Statement, dated March 3,
1998 (the "Initial Consent Solicitation Statement"), as amended and supplemented
by Supplement No. 1 thereto, dated March 17, 1998 (the "Supplement" and,
together with the Initial Consent Solicitation Statement, the "Consent
Solicitation
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Statement"), the Issuer solicited consents of the Holders to the Amendments and
the Waiver, which if adopted would (i) waive the rights of the Holders to
require the Issuer to offer to repurchase the Notes pursuant to Section 4.14 of
the Indenture (a "Repurchase Offer") upon a "Change of Control," as such term is
defined in Section 1.01 of the Indenture, which would occur upon the
consummation of the Acquisition, (ii) to add the definition of "Xxxx Entity" to
Section 1.01 of the Indenture and (iii) to amend the definition of "Change of
Control" in Section 1.01 of the Indenture to provide that the occurrence of
certain transactions would not constitute a "Change of Control"; and
WHEREAS, the Holders of not less than a majority in aggregate principal
amount of the outstanding Notes have duly consented to the Amendments and the
Waiver set forth in this Supplemental Indenture in accordance with Section 9.02
of the Indenture; and
WHEREAS, the Issuer has heretofore delivered or is delivering
contemporaneously herewith to the Trustee (i) a copy of Board Resolutions
authorizing the execution, delivery and performance of this Supplemental
Indenture, (ii) evidence of the written consent of the Holders set forth in the
immediately preceding paragraph and (iii) an Opinion of Counsel in compliance
with and to the effect set forth in Sections 1.01, 9.02 and 9.06 of the
Indenture; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this Supplemental Indenture and to make this Supplemental Indenture
valid and binding have been complied with or have been done or performed;
NOW, THEREFORE, in consideration of the foregoing and notwithstanding
any provision of the Indenture which, absent this Supplemental Indenture, might
operate to limit such action, the Issuer, Holdings and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. For all purposes of the Indenture and this
Supplemental Indenture, except as otherwise expressly provided or unless the
context otherwise requires:
(a) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to the Indenture and this Supplemental Indenture as a
whole and not to any particular Article, Section or subdivision; and
(b) capitalized terms used but not defined herein shall have the
meanings assigned to them in the Indenture.
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ARTICLE II
AMENDMENTS AND WAIVER
SECTION 2.01. AMENDMENTS. Subject to Section 3.01 hereof, the
Indenture is hereby amended in the following respects:
(a) The following definition of "Xxxx Entity" is hereby added to
Section 1.01 of the Indenture:
"Xxxx Entity" means Xxxx PlastiCrafters Limited Partnership or
any direct or indirect Subsidiary of Xxxx PlastiCrafters Limited
Partnership or any successor thereof, other than Holdings or any direct
or indirect Subsidiary of Holdings or any successor thereof.
(b) The definition of Change of Control" in Section 1.01 of the
Indenture is hereby amended and restated in its entirety as follows:
"Change of Control" means the occurrence of any of the
following: (i) (a) any transaction (including a merger or
consolidation) the result of which is that any "person" or "group"
(each within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act), other than the Principals, becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of more than 50% of the total voting power of all Capital Stock of the
Issuer, the Guarantor or a successor entity normally entitled to vote
in the election of directors, managers or trustees, as applicable,
calculated on a fully diluted basis, and (b) as a result of the
consummation of such transaction, any "person" or "group" (each as
defined above) becomes the "beneficial owner" (as defined above),
directly or indirectly, of more of the voting stock of the Issuer or
the Guarantor than is at the time "beneficially owned" (as defined
above) by the Principals, or (ii) the first day on which a majority of
the members of the Board of Directors are not Continuing Directors, or
(iii) the sale, lease, transfer, conveyance or other disposition (other
than by way of merger or consolidation), a series of related
transactions, of all or substantially all of the assets of the Issuer
and its Subsidiaries taken as a whole or the Guarantor and its
Subsidiaries taken as a whole, in each case, to any "person" (as such
term is used in Section 13(d)(3) of the Exchange Act) other than the
Principals or their Related Parties. For purposes of this definition,
any transfer of an Equity Interest of
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an entity that was formed for the purpose of acquiring voting stock of
the Issuer or the Guarantor shall be deemed to be a transfer of such
percentage of such voting stock as corresponds to the percentage of the
equity of such entity that has been so transferred.
Notwithstanding the foregoing, the occurrence of any of the
following shall not constitute a "Change of Control":
(i) any transfer of the capital stock of Holdings or
Anchor Acquisition, Co. to any Xxxx Entity as a
result of which Holdings becomes a Subsidiary of such
Xxxx Entity, provided that, upon giving effect to
such transfer Holdings and its Subsidiaries will not
be subject to any covenant contained in any debt or
other similar instrument of any Xxxx Entity; or
(ii) any merger or consolidation of Holdings into or with,
or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of
Holdings' properties or assets in one or more related
transactions to, any Xxxx Entity, provided that,
immediately after giving effect to such transaction
or transactions, as the case may be, the entity or
Person formed by or surviving any such merger or
consolidation, or to which such sale, assignment,
transfer, lease, conveyance or other disposition
shall have been made, would have a Fixed Charge
Coverage Ratio of at least 2.5 to 1, determined on a
pro forma basis; or
(iii) any merger or consolidation of any Xxxx Entity into
or with, or any sale, assignment, transfer, lease,
conveyance or other disposition of all or
substantially all of the properties or assets of any
Xxxx Entity, in one or more related transactions to,
any other Xxxx Entity;
provided, that, upon the occurrence of, and after giving
effect to, any of the transactions set forth in
clauses (i), (ii) or (iii) of this paragraph, the
Indenture shall continue to remain in full force and
effect. Any transfer of the capital stock of Holdings
or Anchor Acquisition, Co. to any Xxxx Entity which
does not comply with clause (i) of this paragraph or
any merger or consolidation of Holdings into or with,
or any sale, assignment, transfer, lease, conveyance
or other disposition of all or substantially all of
Holdings' properties or assets in one or more related
transactions to, any Xxxx Entity, which does
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not comply with clause (ii) of this paragraph shall
constitute a "Change of Control".
SECTION 2.02. WAIVER. Subject to Section 3.01 hereof, the Holders of a
majority in aggregate principal amount of the Notes outstanding hereby
permanently waive their right to require the Issuer to make any Repurchase Offer
in connection with, or upon the consummation of, the Acquisition.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. EFFECTIVENESS. This Supplemental Indenture shall become
effective upon its execution and delivery by the Issuer, Holdings and the
Trustee. Notwithstanding the execution and delivery of the Supplemental
Indenture by the Issuer, Holdings and the Trustee, the Amendments and the Waiver
shall become effective only concurrently with the consummation of the
Acquisition and the making of the Consent Payment (as defined in the Consent
Solicitation Statement). The Consent Payment will be deemed to have been paid
when made by deposit with the Depositary (as defined in the Consent Solicitation
Statement), which will act as the agent for the Holders and transmit such
payment to such Holders. The Indenture will remain in effect without giving
effect to the Amendments and the Waiver until the Acquisition is consummated and
the Consent Payment is made. Upon the execution and delivery of this
Supplemental Indenture by the Issuer, Holdings and the Trustee the Indenture
shall be supplemented in accordance herewith, and this Supplemental Indenture
shall form a part of the Indenture for all purposes, and every Holder of Notes
heretofore or hereafter authenticated and delivered under the Indenture shall be
bound thereby. Notwithstanding the foregoing provisions of this Section 3.01, if
the Acquisition is not consummated and the Consent Payment is not made on or
prior to April 30, 1998, the Amendments and the Waiver will not become effective
and this Supplemental Indenture will become null and void.
SECTION 3.02. INDENTURE REMAINS IN FULL FORCE AND EFFECT. Except as
supplemented hereby, all provisions in the Indenture shall remain in full force
and effect.
SECTION 3.03. INDENTURE AND SUPPLEMENTAL INDENTURE CONSTRUED TOGETHER.
This Supplemental Indenture is an indenture supplemental to and in
implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this Supplemental Indenture is in all respects
confirmed and preserved.
SECTION 3.05. CONFLICT WITH TRUST INDENTURE ACT. If any provision of
this
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Supplemental Indenture limits, qualifies or conflicts with any provision of the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), that is
required under the Trust Indenture Act to be part of and govern any provision of
this Supplemental Indenture, the provision of the Trust Indenture Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of the Trust Indenture Act shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture, as
the case may be.
SECTION 3.06. 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.
SECTION 3.07. HEADINGS. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are
not to be considered a part of this Supplemental Indenture and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 3.08. BENEFITS OF SUPPLEMENTAL INDENTURE, ETC. Nothing in this
Supplemental Indenture or the Notes, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder
and thereunder and the Holders of the Notes, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Notes.
SECTION 3.09. SUCCESSORS. All agreements of the Issuer and Holdings
in this Supplemental Indenture shall bind their respective successors. All
agreements of the Trustee in this Supplemental Indenture shall bind its
successors.
SECTION 3.10. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals
contained herein shall be taken as the statements of the Issuer and Holdings,
and the Trustee assumes no responsibility for their correctness. The Trustee
shall not be liable or responsible for the validity or sufficiency of this
Supplemental Indenture.
SECTION 3.11. CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability or affording protection to the Trustee, whether or not elsewhere
herein so provided.
SECTION 3.12. GOVERNING LAW. The internal law of the State of New
York shall govern and be used to construe this Supplemental Indenture.
SECTION 3.13. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date and year first
above written.
ANCHOR ADVANCED PRODUCTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
(SEAL)
Attest: /s/ Xxxxxxx Best
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Name: Xxxxxxx Best
Title: Senior Vice President Finance
ANCHOR HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: President
(SEAL)
Attest: /s/ Xxxxxxx Best
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Name: Xxxxxxx Best
Title: Senior Vice President Finance
STATE STREET BANK AND TRUST
COMPANY, AS TRUSTEE
By: /s/ Xxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
(SEAL)
