EX-10.4 4 g72757ex10-4.txt FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT 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] 2 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/ Richard J. Lampen ----------------------------------- Name: Richard J. Lampen Title: Executive Vice President BROOKE GROUP HOLDING INC. By: /s/ Richard J. Lampen ----------------------------------- Name: Richard J. Lampen Title: Executive Vice President NEW VALLEY HOLDINGS, INC. By: /s/ Richard J. Lampen ----------------------------------- Name: Richard J. Lampen Title: Executive Vice President 3 TCW LEVERAGED INCOME TRUST, L.P. By: TCW Advisers (Bermuda), Ltd. as its General Partner By: /s/ Darryl L. Schall ------------------------------- Name: Darryl L. Schall Title: Managing Director By: TCW Investment Management Company as Investment Adviser By: /s/ James M. Hassett ------------------------------ Name: James M. Hassett Title: Managing Director 4 TCW LEVERAGED INCOME TRUST II, L.P. By: TCW (LINC II), L.P. as its General Partner By: TCW Advisers (Bermuda), Ltd. its General Partner By: /s/ Darryl L. Schall ------------------------------ Name: Darryl L. Schall Title: Managing Director By: TCW Investment Management Company as Investment Adviser By: /s/ James M. Hassett ------------------------------- Name: James M. Hassett Title: Managing Director 5 TCW LINC III CBO LTD. By: TCW Investment Management Company as Collateral Manager By: /s/ Darryl L. Schall ------------------------------ Name: Darryl L. Schall Title: Managing Director By: /s/ James M. Hassett ------------------------------ Name: James M. Hassett Title: Managing Director 6 AIMCO CDO, SERIES 2000-A By: Allstate Investment Management Company Its Collateral Manager By: TCW Asset Management Company Its Investment Advisor By: /s/ Darryl L. Schall ------------------------------- Name: Darryl L. Schall Title: Managing Director By: /s/ James M. Hassett ------------------------------ Name: James M. Hassett Title: Managing Director 7 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/ Darryl L. Schall ------------------------------ Name: Darryl L. Schall Title: Managing Director By: /s/ James M. Hassett ------------------------------ Name: James M. Hassett Title: Managing Director 8 CAPTIVA II FINANCE LTD. By: TCW Advisors, Inc. Its Financial Manager By: /s/ Darryl L. Schall ------------------------------ Name: Darryl L. Schall Title: Managing Director By: /s/ James M. Hassett ------------------------------ Name: James M. Hassett Title: Managing Director 9