EXHIBIT 4.10
EXECUTION COPY
CONSENT AGREEMENT
THIS CONSENT AGREEMENT (this "Consent") is entered into as of this 26th
day of February, 1999 (the "Consent Date") by and among XXXX COMMUNICATIONS
SYSTEMS, INC., a Georgia corporation (the "Borrower"), the BANKS (as defined in
the Loan Agreement defined below) and NATIONSBANK, N.A., as administrative agent
(the "Administrative Agent") on behalf of the Banks.
W I T N E S S E T H:
WHEREAS, the Borrower, the Banks, the Administrative Agent, the
Syndication Agent (as defined in the Loan Agreement) and the Documentation Agent
(as defined in the Loan Agreement) are parties to that certain Amended and
Restated Loan Agreement dated as of July 31, 1999, as amended by that certain
First Amendment to Amended and Restated Loan Agreement, dated as of November 13,
1998 (as amended, modified, restated and supplemented from time to time, the
"Loan Agreement"); and
WHEREAS, the Borrower has requested and, subject to the terms and
conditions hereof, the Banks have agreed, to consent to the Borrower's purchase
of the assets used in connection with the publishing of The Goshen News daily
newspaper business, The Goshen Extra and a commercial printing company
(collectively, the "Goshen Assets") from News Printing Company, Inc., an Indiana
corporation (the "Seller"), as more particularly set forth in that certain
letter agreement dated as of February 1, 1999 between the Borrower and the
Seller (the "Letter of Intent"); and
NOW, THEREFORE, in consideration of the premises set forth above, the
covenants and agreements hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree that all capitalized terms used and not defined
herein shall have the meanings ascribed thereto in the Loan Agreement, and
further hereby agree as follows:
A. Consent. The Borrower has informed the Banks that the Borrower intends to
purchase from the Seller the Goshen Assets (the "Goshen Asset Acquisition").
Effective upon the execution and delivery of this Consent by the Required Banks,
the Banks hereby consent to the Goshen Asset Acquisition; provided, however,
that on or prior to the consummation of the Goshen Asset Acquisition, the
Borrower shall provide to the Administrative Agent, in form and substance
satisfactory the Administrative Agent, (i) evidence reasonably satisfactory to
the Administrative Agent that the Borrower has pledged the Goshen Assets as
additional collateral securing the Obligations under the Loan Agreement, (ii)
certification to the Administrative Agent and the Banks of the Borrower's
compliance with Section 8.12 of the Loan Agreement and the Borrower's ability to
meet its
repayment obligations under the Loan Agreement through the Maturity Date after
giving effect to the Goshen Asset Acquisition, (iii) certification to the
Administrative Agent and the Banks that an Event of Default does not exist under
the Loan Agreement and will not be caused by the Goshen Asset Acquisition, and
(iv) evidence reasonably satisfactory to the Administrative Agent of
consummation of the Goshen Asset Acquisition on substantially the terms and
conditions set forth in the Letter of Intent
B. Miscellaneous.
1. No Other Consent or Waiver. Notwithstanding the agreement of
the Banks to the terms and provisions of this Consent, the Borrower
acknowledges and expressly agrees that this Consent is limited to the
extent expressly set forth herein and shall not constitute a
modification of the Loan Agreement or any other Loan Documents or a
course of dealing at variance with the terms of the Loan Agreement or
any other Loan Documents (other than as expressly set forth above) so as
to require further notice by the Administrative Agent or the Banks, or
any of them, of its or their intent to require strict adherence to the
terms of the Loan Agreement and the other Loan Documents in the future.
All of the terms, conditions, provisions and covenants of the Loan
Agreement and the other Loan Documents shall remain unaltered and in
full force and effect except as expressly modified by this Consent.
2. Representations and Warranties. The Borrower hereby represents
and warrants in favor of the Administrative Agent and each Bank as
follows:
(a) The Borrower has the power and authority (i) to enter
into this Consent and (ii) to do all other acts and things as are
required or contemplated hereunder to be done, observed and
performed by it.
(b) This Consent has been duly authorized and validly
executed and delivered by one or more Authorized Signatories of
the Borrower and constitutes the legal, valid and binding
obligation of the Borrower, enforceable against it in accordance
with its terms;
(c) The execution and delivery of this Consent and the
performance by the Borrower under the Loan Agreement and the
other Loan Documents to which it is a party, as amended hereby,
do not and will not require the consent or approval of any
regulatory authority or governmental authority or agency having
jurisdiction over the Borrower or any of its Subsidiaries which
has not already been obtained, nor is in contravention of or in
conflict with the articles of incorporation, by-laws or
partnership agreements of each of the Borrower or any of its
Subsidiaries, or any provision of any statute, judgment, order,
indenture, instrument, agreement, or undertaking to which the
Borrower or any
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of its Subsidiaries is a party or by which any of their
respective assets or properties is or may become bound; and
(d) The representations and warranties contained in
Section 5 of the Loan Agreement and contained in the other Loan
Documents remain true and correct as of the date hereof, both
before and after giving effect to this Consent, except to the
extent previously fulfilled in accordance with the terms of the
Loan Agreement or such other Loan Document, as applicable, or to
the extent relating specifically to the Agreement Date. No Event
of Default now exists or will be caused hereby.
3. Counterparts. This Consent may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all
such separate counterparts shall together constitute one and the same
instrument.
4. Loan Documents. Each reference in the Loan Agreement or any
other Loan Document to the term "Loan Agreement" shall hereafter mean
and refer to the Loan Agreement as amended hereby and as the same may
hereafter be amended.
5. Governing Law. This Consent shall be construed in accordance
with and governed by the internal laws of the State of Georgia,
applicable to agreements made and to be performed in the State of
Georgia.
6. Severability. Any provision of this Consent which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof in that jurisdiction or affecting the validity or
enforceability of such provision in any other jurisdiction.
7. Entire Agreement This Consent, together with the documents
referred to herein, constitute the entire agreement among the parties
with respect to the matters addressed herein, and may not be modified
except in writing.
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IN WITNESS WHEREOF, the parties hereto have executed this Consent or
caused it to be executed by their duly authorized officers, all as of the day
and year first above written.
BORROWER: XXXX COMMUNICATIONS SYSTEMS, INC., a
Georgia corporation
By: c/Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: Vice President-Chief Financial Officer
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ADMINISTRATIVE AGENT, NATIONSBANK, N.A., as Administrative Agent and
AND BANKS: Bank
By: c/Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
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Its: Senior Vice President
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KEY CORPORATE CAPITAL INC. (f/k/a KeyBank
National Association), as a Bank
By:
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Name:
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Its:
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CIBC INC., as a Bank
By: c/Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
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Its: Executive Director
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XXXX COMMUNICATIONS SYSTEMS, INC.
CONSENT AGREEMENT
Signature Page 1
THE BANK OF NEW YORK, as a Bank
By: c/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Its: Vice President
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FIRST UNION NATIONAL BANK
f/k/a CoreStates Bank, N.A.), as a Bank
By: c/Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Its: Senior Vice President
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SUNTRUST BANK, CENTAL FLORIDA, N.A.,
as an Assignee
By:
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Name:
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Its:
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By:
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THE BANK OF NOVA SCOTIA, as an Assignee
By: c/P.A. Xxxxxxxxxxxxx
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Name: P.A. Xxxxxxxxxxxxx
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Its: Authorized Signatory
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TORONTO DOMINION (TEXAS), INC.,
as an Assignee
By: c/Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Its: Vice President
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XXXX COMMUNICATIONS SYSTEMS, INC.
CONSENT AGREEMENT
Signature Page 2
WACHOVIA BANK, N.A., as an Assignee
By: c/Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Its: Vice President
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THE BANK OF TOKYO-MITSUBISHI TRUST
COMPANY, as an Assignee
By: c/Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Its: Assistant Vice President
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COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND",NEW YORK BRANCH, as an
Assignee
By: c/Xxxxx X. Tackling
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Name: Xxxxx X. Tackling
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Its: Vice President
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By: c/oJeff Vollack
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Name: Xxxx Xxxxxxx
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Its: Senior Vice President
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XXXX COMMUNICATIONS SYSTEMS, INC.
CONSENT AGREEMENT
Signature Page 3