EXHIBIT 4.10
[CONFORMED AS EXECUTED]
ACKNOWLEDGMENT, CONSENT AND AMENDMENT
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Section 1.01. Each of the undersigned hereby:
(a) acknowledge and consent to the execution, delivery and
performance of (i) the Amended and Restated Credit Agreement, dated as of March
3, 1993, amended and restated as of March 24, 1998 (as the same may be amended,
modified, restated, supplemented, extended, renewed or refinanced from time to
time, the "Amended and Restated Credit Agreement"), among Xxxxx X. Xxxxxxxxx
Holding Company, Inc. ("Holding"), Xxxxx X. Xxxxxxxxx Company (the "Borrower"),
the institutions from time to time party thereto (the "Lenders"), and BT
Commercial Corporation, as Agent (in such capacity, the "Agent"), amending and
restating the Credit Agreement, dated as of March 3, 1993 (as the same may have
been amended, modified, or supplemented from time to time prior to the Amended
and Restated Credit Agreement, the "Existing Credit Agreement"), among Holding,
the Borrower, the Lenders and BT Commercial Corporation and Chemical Bank, as
Agents, and (ii) all of the documents and transactions contemplated by the
Amended and Restated Credit Agreement; and
(b) except as set forth herein, agrees that such execution,
delivery and performance shall not in any way affect such entity's obligations
under any Credit Document (as defined in the Existing Credit Agreement) other
than the Existing Credit Agreement, or any other document executed in connection
therewith other than the Existing Credit Agreement, to which such entity is a
party, including, without limitation, each such entity's respective obligations
(if any) under the Security Agreement (attached hereto as Annex A), which, along
with each other document executed in connection therewith, other than the Credit
Agreement (the "Credit Documents"), are hereby assumed under and made a part by
reference of the Amended and Restated Credit Agreement which obligations on the
date hereof remain absolute and unconditional and are not subject to any
defense, set-off or counterclaim; provided that, in the case of each of the
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Credit Documents, the undersigned hereby acknowledge and agree that the
"Obligations" (as defined therein) include all of the Obligations under and as
defined in the Amended and Restated Credit Agreement after giving effect to the
Restatement Effective Date and any increase in the amounts owing to the Lenders
or the Agent (as defined in the Amended and Restated Credit Agreement). Unless
otherwise defined herein, capitalized terms used in this Acknowledgment, Consent
and Amendment shall have the meanings set forth in the Amended and Restated
Credit Agreement.
Section 1.02. The Security Agreement is hereby further amended by (i) inserting
the text ", amended and restated as of March 24, 1998" immediately after the
reference to "1993" in the first "WHEREAS" clause thereof, (ii) deleting the
text "and Chemical Bank" immediately after the name "BT Commercial Corporation"
in the first "WHEREAS" clause thereof, (iii) deleting the word "Agents" each
time it appears in the first "WHEREAS" clause thereof and inserting the word
"Agent" in lieu thereof, (iv) inserting the text ", extended, renewed"
immediately after the reference to "supplemented" in the first "WHEREAS" clause
thereof, (v) inserting the text "(including books, records, writings, data
bases, information and other property relating to, used or useful in connection
with, evidencing, embodying, incorporating or referring to such items)"
immediately after the reference to "Section 2" in Section 2(d) thereof and (vi)
inserting the text "Notwithstanding anything to the foregoing, Collateral shall
not include Term Collateral (as defined in the Intercreditor Agreement)." as a
new paragraph at the end of Section 2 thereof.
Dated as of March 24, 1998
XXXXX X. XXXXXXXXX COMPANY
By /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief Financial
Officer
Accepted and Agreed to:
BT COMMERCIAL CORPORATION
as Agent for the Lenders
By /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
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