EXHIBIT 10.1
THIRD AMENDMENT TO NOTE PURCHASE AGREEMENT
This Third Amendment to Note Purchase Agreement is dated as of
September 30, 2002 (this "Third Amendment") and amends the Note Purchase
Agreement, dated as of May 14, 2001 and amended as of November 6, 2001 and April
30, 2002 (the "Note Purchase Agreement"), by and among (i) VGR Holding Inc.
(formerly known as BGLS Inc.), a Delaware corporation (the "Company") and (ii)
the signatories hereto who collectively are the Majority Holders as defined in
the Note Purchase Agreement. Capitalized terms used in this Third Amendment and
not defined in this Third Amendment shall have the meanings ascribed thereto in
the Note Purchase Agreement as amended by this Third Amendment.
WHEREAS, the Company and the Majority Holders desire to amend the
Note Purchase Agreement as set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. AMENDMENTS TO NOTE PURCHASE AGREEMENT.
a. Section 8.4. Section 8.4 of the Note Purchase Agreement
is hereby amended by deleting paragraph (f) in its entirety and
inserting in lieu thereof the following:
"(f) During the period commencing on April 1, 2002 and
ending on March 31, 2003, Section 8.4(a) shall not prohibit the Company
and its Restricted Subsidiaries from incurring Indebtedness in an
aggregate amount not exceeding the Permitted Amount at any one time
outstanding (in addition to Indebtedness otherwise permitted to be
incurred under this Agreement); provided, however, that on April 1, 2003
either (i) the Leverage Ratio shall be less than 2.50 to 1 or (ii)
Indebtedness equal to the amount incurred pursuant to this Section
8.4(f) shall have been repaid, extinguished or otherwise retired."
b. Schedule B. Schedule B of the Note Purchase Agreement is
hereby amended by adding the following definition:
" 'PERMITTED AMOUNT' means (i) $75,000,000 during the
period commencing on April 1, 2002 and ending on September 29, 2002,
(ii) $115,000,000 during the period commencing on September 30, 2002 and
ending on December 30, 2002 and (iii) $100,000,000 during the period
commencing on December 31, 2002 and ending on March 31, 2003."
c. Disclosure Schedules. Certain portions of Schedule 5.4,
Schedule 5.5, Schedule 5.8, Schedule 5.15 and Schedule 5.23 to the Note
Purchase Agreement are hereby amended as set forth on Exhibit A attached
to this Third Amendment.
2. REPRESENTATIONS AND WARRANTIES. To induce the Majority
Holders to enter into this Third Amendment, the Company hereby represents and
warrants to each other signatory hereto that as of the date hereof:
A. Continuation of Representations and Warranties in
Note Purchase Agreement. The representations and warranties made
by it in the Note Purchase Agreement are true and correct in all
material respects after giving effect to the transactions
contemplated in this Third Amendment (it being understood and
agreed 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 only as of such specified
date).
B. Leverage Ratio. After reducing the amount of
outstanding Indebtedness by the Permitted Amount, the Leverage
Ratio shall be less than 2.50 to 1.
C. No Material Adverse Effect. During the period from
April 30, 2002 through the date hereof, there will have been no
development or event which could reasonably be expected to have
a Material Adverse Effect.
D. Legal, Valid and Binding Obligation. This Third
Amendment constitutes the legal, valid and binding obligation of
the Company, enforceable against it in accordance with its terms,
except as such enforcement may be limited by bankruptcy,
insolvency, fraudulent conveyances, reorganization, moratorium or
similar laws affecting creditor's rights.
E. No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the transactions contemplated in this Third Amendment.
3. REPURCHASE OF NOTES. The effectiveness of this Third
Amendment shall be conditioned upon the repurchase by the Company from the
Majority Holders of $8,000,000 in aggregate principal amount of the Notes at
100% of the principal amount thereof, plus accrued and unpaid interest thereon.
4. REFERENCE TO THE NOTE PURCHASE AGREEMENT. Each reference
in the Note Purchase Agreement to "this Agreement," "hereunder," "hereof,"
"herein," or words of like import referring to the Note Purchase Agreement,
shall mean and be a reference to such Note Purchase Agreement as amended by this
Third Amendment.
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5. LIMITED EFFECT. Except as expressly amended and modified
by this Third Amendment, the Note Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
6. SUCCESSORS. All agreements of the parties to this Third
Amendment shall bind their respective successors.
7. COUNTERPARTS. This Third Amendment may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. Delivery of an
executed counterpart of a signature page of this Third Amendment by facsimile or
electronic mail transmission shall be effective as delivery of a manually
executed counterpart of this Third Amendment.
8. GOVERNING LAW. THIS THIRD AMENDMENT AND ALL ISSUES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
9. SEVERABILITY. In case any one or more of the provisions in
this Third Amendment shall be held invalid, illegal or unenforceable, in any
respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions shall not in
any way be affected or impaired thereby, it being intended that all of the
provisions hereof shall be enforceable to the full extent permitted by law.
10. HEADINGS. The headings of the Sections of this Third
Amendment have been inserted for convenience of reference only, are not to be
considered a part of this Third Amendment and shall in no way modify or restrict
any of the terms or provisions of this Third Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment and to be duly executed and delivered by their respective proper and
duly authorized officers as of the day and year first above written.
VGR HOLDING INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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TCW HIGH INCOME PARTNERS, LTD.
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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TCW HIGH INCOME PARTNERS II, LTD.
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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PIONEER HIGH YIELD CAYMAN UNIT TRUST
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company, as its
Investment Advisor
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
AND
By: TCW Asset Management Company, as its
Managing Member of TCW (XXXX XX)
L.L.C., the General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as its
General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
10
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (XXXX XX), L.P., as its General
Partner
By: TCW Advisers (Bermuda), Ltd., its General
Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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TCW LINC III CBO LTD.
By: TCW Investment Management Company,
as Collateral Manager
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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AIMCO CDO, SERIES 2000-A
By: Allstate Investment Management Company, its
Collateral Manager
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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POWRs 1997-2 (Participating Obligations with
Residuals 1997-2)
By: Citibank Global Asset Management, its
Investment Advisor
By: TCW Asset Management Company, its
Portfolio Manager
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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CAPTIVA II FINANCE LTD.
By: TCW Advisors, Inc., its Financial Manager
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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TCW Shared Opportunity Fund II, L.P.
By: TCW Investment Management Company,
its Investment Manager
By: /s/ Xxxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Director
By: /s/ C. Xxxxx Xxxxxx
--------------------------------------
Name: C. Xxxxx Xxxxxx
Title: Senior Vice President
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