1
EXHIBIT 4.10
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, each of the undersigned (collectively, the
"Guarantors") is one of the Subsidiary Guarantors;
WHEREAS, each 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 such 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:
Each 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
2
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
Guarantors, under the Substitute Guarantees are joint and several obligations.
The obligations of each 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) each Guarantor shall be released from any
and all liability under the Original Note Guarantee.
This is a continuing guarantee and shall remain in full force
and effect and shall be binding upon each 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.
This Substitute Note Guarantee may be executed in two or more
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute one and the same instrument.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS SUBSTITUTE NOTE GUARANTEE.
[Signatures on following page]
3
XXXX INDUSTRIES, LLC XXXX PLASTICS, LLC
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxx X. Xxxxx
------------------------- -------------------------
Authorized Signatory Authorized Signatory
Dated: June 26, 1998
