EXHIBIT 10.4
AMENDMENT TO PLEDGE
AND SECURITY AGREEMENT
This Amendment to Pledge and Security Agreement is dated as of April
30, 2002 (this "Amendment") and amends the Pledge and Security Agreement, dated
as of May 14, 2001 (as amended, supplement or modified from time to time, the
"NV Pledge and Security Agreement"), between New Valley Holdings, Inc., a
Delaware corporation ("NV Holdings"), and The Bank of New York, as successor in
interest to United States Trust Company of New York, a New York banking
corporation, as Collateral Agent on behalf of the Holders of the 10% Senior
Secured Notes due March 31, 2006 (the "Notes"). Capitalized terms not otherwise
defined herein shall have the meanings ascribed to such terms in the NV Pledge
and Security Agreement.
WHEREAS, pursuant to the Second Amendment to Note Purchase Agreement
and New Note Purchase Agreement (the "New Note Purchase Agreement"), dated as
of the date hereof, by and among the Company and the other signatories thereto,
the Company and the Majority Holders have approved the issuance of an
additional $30,000,000 in Notes and desire to amend the NV Pledge and Security
Agreement as set forth herein; and
WHEREAS, each of NV Holdings and the Company will realize direct and
indirect benefits as a result of the New Note Purchase Agreement and the other
Note Documents and the transactions described therein.
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 NV PLEDGE AND SECURITY AGREEMENT.
(a) The definition of "Commercial Tort Claim" in Section 1 of the
NV Pledge and Security Agreement is hereby amended by deleting the definition
of "Commercial Tort Claim" in its entirety and inserting in lieu thereof the
following:
"'Commercial Tort Claim' has the meaning ascribed thereto in the
Uniform Commercial Code."
(b) The definition of "Secured Obligations" in Section 1 of the
NV Pledge and Security Agreement is hereby amended by deleting the definition
of "Secured Obligations" in its entirety and inserting in lieu thereof the
following:
"'Secured Obligations' means, collectively, all obligations and
liabilities of any kind or nature, present or future, absolute or contingent,
of (i) the Company arising under the Note Documents, (ii) NV Holdings arising
under this Agreement or any other undertaking or agreement delivered by NV
Holdings in connection with any other Note Document, (iii) VTUSA arising under
any undertaking or agreement delivered by VTUSA in connection with any Note
Document, (iv) Brooke Overseas arising under any undertaking or agreement
delivered by Brooke Overseas in connection with any Note Document, (v) New
Valley arising under any undertaking or agreement delivered by New Valley in
connection with any Note Document, (vi) Brooke Holding arising under the Brooke
Holding Pledge Agreement or any other
undertaking or agreement delivered by Brooke Holding in connection with any
Note Document, (vii) Research arising under any undertaking, or agreement
delivered by Research in connection with any Note Document, (viii) Vector
arising under the Vector Pledge Agreement or any other undertaking or agreement
delivered by Vector in connection with any other Note Document in connection
with any Note Document, (ix) Xxxxxxx arising under the Xxxxxxx Guarantee, the
Xxxxxxx Subordination Agreement or any undertaking or agreement delivered by
Xxxxxxx in connection with any Note Document and (x) Brands arising under any
undertaking or agreement delivered by Brands in connection with any Note
Document."
(c) The definition of "VTUSA" in Section 1 of the NV Pledge and
Security Agreement is hereby amended by deleting the definition of "VTUSA" in
its entirety and inserting in lieu thereof the following:
"'VTUSA' shall mean Vector Tobacco Inc., a Virginia corporation, and
any successor thereto."
(d) Section 2(k) of the NV Pledge and Security Agreement is
hereby amended by deleting Section 2(k) in its entirety and inserting in lieu
thereof the following:
"(k) as of the date hereof: (i) there are 22,881,406 shares of New
Valley Common Stock issued and outstanding and such shares are the only issued
and outstanding Equity Interests of New Valley and (ii) there are no issued and
outstanding New Valley Convertible Securities, and New Valley is not subject to
any obligation, contingent or otherwise, to issue in the future any additional
Equity Interests or any such New Valley Convertible Securities except:
(1) warrants exercisable for 17,867,499 shares of New
Valley Common Stock; and
(2) options to purchase 65,333 shares of New Valley
Common Stock and options to purchase warrants
exercisable for 584,000 shares of New Valley Common
Stock."
(e) Section 4.23. Article 4 of the NV Pledge and Security
Agreement is hereby amended by adding Section 4.23 as follows:
"4.23 Commercial Tort Claims. NV Holdings shall
promptly notify the Collateral Agent of any Commercial Tort Claims it possesses
promptly upon obtaining actual knowledge that it possesses such Commercial Tort
Claim and shall upon the request of the Collateral Agent or the Majority
Holders execute and deliver all agreements, instruments, financing statements
and other documents necessary for the Collateral Agent to perfect a security
interest in such Commercial Tort Claim."
2. CONFIRMATION OF LIEN. NV Holdings hereby confirms that
pursuant to the NV Pledge and Security Agreement, as amended by this Amendment,
NV Holdings has granted a lien on and a security interest in the Collateral as
collateral security for the prompt payment in full when due (whether at stated
maturity, by acceleration or otherwise) and performance of the Secured
Obligations.
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3. REPRESENTATIONS AND WARRANTIES. NV Holdings hereby represents
and warrants that the representations and warranties in Section 2 of the NV
Pledge and Security Agreement, are true and correct in all material respects as
of the date hereof (except to the extent that any such representations or
warranties apply to conditions existing at a particular date).
4. LIMITED EFFECT. Except as expressly amended and modified by
this Amendment, the NV Pledge and Security Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
5. REFERENCE TO NV PLEDGE AND SECURITY AGREEMENT. Each reference
in the NV Pledge and Security Agreement to "this Agreement", "hereunder",
"hereof", "herein", or words of like import referring to the NV Pledge and
Security Agreement, and each reference in the Note Documents and all ancillary
documents thereto to the "NV Holdings Pledge Agreement," "thereunder",
"thereof", or words of like import shall mean and be a reference to such NV
Pledge and Security Agreement as amended by this Amendment.
6. SUCCESSORS. All agreements of the parties to this Amendment
and Purchase Agreement shall bind their respective successors.
7. COUNTERPARTS. This 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 Amendment by facsimile or electronic
mail transmission shall be effective as delivery of a manually executed
counterpart of this Amendment.
8. GOVERNING LAW. THIS 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 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 Amendment have
been inserted for convenience of reference only, are not to be considered a
part of this Amendment and shall in no way modify or restrict any of the term
or provisions of this Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
NEW VALLEY HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
THE BANK OF NEW YORK, as Collateral Agent
By: /s/ Xxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxx Xxxxxxxxx
Title: Authorized Signatory
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