EXHIBIT 10.4
FIRST AMENDMENT TO
NOTE PURCHASE AGREEMENT
This First Amendment to Note Purchase Agreement is dated as of
November 6, 2001 (this "FIRST AMENDMENT") and amends the Note Purchase
Agreement, dated as of May 14, 2001 (the "NOTE PURCHASE AGREEMENT"), by and
between VGR Holding Inc. (formerly known as BGLS Inc.), a Delaware corporation
(the "COMPANY"), and the other signatories hereto who collectively are the
Majority Holders as defined in the Note Purchase Agreement.
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 8.9. Section 8.9 of the Note Purchase Agreement is
hereby amended by deleting the third, fourth, fifth and sixth
paragraphs therein in their entirety.
b. SCHEDULE B. Schedule B to the Note Purchase Agreement is
hereby amended by deleting the definition of "TAX SHARING ATTRIBUTES"
in its entirety.
c. EXHIBIT 8.9. Exhibit 8.9 to the Note Purchase Agreement is
hereby deleted in its entirety.
2. CONDITIONS TO EFFECTIVENESS. This First Amendment shall
become effective on the date (the "EFFECTIVE Date") on which each of the Company
and the Majority Holders shall have executed and delivered this First Amendment.
3. REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants that as of the Effective Date the representations and
warranties made by it in the Note Documents to which it is a party are true and
correct in all material respects on and as of the Effective Date as if made on
and as of the Effective Date.
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
First Amendment.
5. LIMITED EFFECT. Except as expressly amended and modified by
this First Amendment, the Note Purchase Agreement shall continue to be, and
shall remain, in full force and effect in accordance with its terms.
6. AFFIRMATION OF PLEDGE AGREEMENTS. Each of Brooke Holding
and NV Holdings hereby consents to the execution and delivery of this First
Amendment and reaffirms its obligations under the Brooke Holding Pledge
Agreement and the NV Holdings Pledge Agreement, respectively.
7. SUCCESSORS. All agreements of the parties to this First
Amendment shall bind their respective successors.
8. COUNTERPARTS. This First 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 First Amendment by facsimile or
electronic mail transmission shall be effective as delivery of a manually
executed counterpart of this First Amendment.
9. GOVERNING LAW. THIS FIRST AMENDMENT AND ALL ISSUES
HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF NEW YORK.
10. SEVERABILITY. In case any one or more of the provisions in
this First 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.
11. HEADINGS. The headings of the Sections of this First
Amendment have been inserted for convenience of reference only, are not to be
considered a part of this First Amendment and shall in no way modify or restrict
any of the term or provisions of this First Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment 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
BROOKE GROUP HOLDING INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
NEW VALLEY HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd.
as its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
4
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/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: TCW Investment Management Company
as Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
5
TCW LINC III CBO LTD.
By: TCW Investment Management Company
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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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/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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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/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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CAPTIVA II FINANCE LTD.
By: TCW Advisors, Inc.
Its Financial Manager
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Managing Director
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