Exhibit 10.40
CONSENT
-------
CONSENT (this "Consent"), dated as of March 12, 1998, among
NORTH ATLANTIC TRADING COMPANY, INC. (the "Borrower"), the institutions party to
the Credit Agreement referred to below (the "Lenders") and NATIONAL WESTMINSTER
BANK PLC, as Administrative Agent (the "Administrative Agent"). All capitalized
terms used herein and not otherwise defined shall have the respective meanings
provided such terms in the Credit Agreement.
W I T N E S S E T H :
-------------------
WHEREAS, the Borrower, the Lenders and the Administrative
Agent are parties to a Credit Agreement dated as of June 25, 1997 (as currently
in effect, the "Credit Agreement");
WHEREAS, the Borrower has requested a consent to be provided
under the Credit Agreement as herein provided;
NOW, THEREFORE, it is agreed:
1. No prepayment will be required under Section 4.02(e) of the
Credit Agreement as a result of the proposed transaction whereby the Borrower
will repurchase 10,100 shares of its common stock from a retiring officer for
$40 a share (which repurchase is permitted under Section 8.09) and the
contemporaneous sale of such repurchased shares to other employees, officers and
directors of the Borrower.
2. In order to induce the Lenders to enter into this
Amendment, the Borrower (x) represents and warrants that no Default or Event of
Default exists on the Effective Date referred to below after giving effect to
this Consent, and (y) makes each of the representations, warranties and
agreements contained in the Credit Agreement on the Effective Date after giving
effect to this Consent (it being understood that any representation or warranty
which by its terms is made as of a specified date shall be required to be true
and correct in all material respects as of such date).
3. This Consent is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
4. This Consent may be executed in any number of counterparts
and by the different parties hereto on separate counterparts, each of which
counterparts when
executed and delivered shall be an original, but all of which shall together
constitute one and the same instrument. A complete set of counterparts shall be
lodged with the Borrower and the Administrative Agent.
5. This Consent and the rights and obligations of the parties
hereunder shall be construed in accordance with and governed by the law of the
State of New York.
6. This Consent shall become effective on the date (the
"Effective Date") on which each of the Borrower and the Required Lenders shall
have signed a copy hereof (whether the same or different copies) and shall have
delivered (including by way of telecopier) the same to the Administrative Agent
at its Notice Office.
7. At all times on and after the Effective Date, all
references in the Credit Agreement and each of the Credit Documents to the
Credit Agreement shall be deemed to be references to such Credit Agreement after
giving effect to this Consent.
* * *
-2-
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Consent to be duly executed and delivered as of the date
first above written.
NORTH ATLANTIC TRADING COMPANY, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx
Title: Executive Vice President &
Chief Financial Officer
NATIONAL WESTMINSTER BANK PLC,
Individually and as Administrative Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
BANK ONE KENTUCKY, NA
By: /s/ X.X. Xxxxxxx
---------------------------------------
Name: X.X. Xxxxxxx
Title: Senior Vice President
XXXXXXX XXXXX CREDIT PARTNERS, L.P.
By: /s/ Xxxxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Authorized Signatory
XXXXXX COMMERCIAL PAPER INC.
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
-3-
HARCH CAPITAL MANAGEMENT
By:
---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING II, LTD.
By:
---------------------------------------
Name:
Title:
TCW LEVERAGED INCOME TRUST
By:
---------------------------------------
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By:
---------------------------------------
Name:
Title:
PAMCO CAYMAN LTD.
By: /s/ Xxxx X. Xxxxx CFA
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President
Executive Asset Management
Company
-4-
COMMERCIAL LOAN FUNDING TRUST I
By Xxxxxx Commercial Paper Inc. not in its
individual capacity but soley as
administrative agent
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Authorized Signatory
SANWA BUSINESS CREDIT CORP.
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TEXAS COMMERCE BANK/ALLIANCE INVESTMENTS
LIMITED
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Signatory
-5-
NYFS11...:\90\64590\0003\2475\CON4308W.110
