EXHIBIT 4.1
SIXTH AMENDMENT TO NOTE PURCHASE AGREEMENT
This Sixth Amendment to Note Purchase Agreement, dated as of July 29,
2004 (this "SIXTH AMENDMENT"), amends the Note Purchase Agreement, dated as of
May 14, 2001, as amended as of November 6, 2001, April 30, 2002, September 30,
2002, March 31, 2003 and October 1, 2003 (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 but not otherwise defined in this Sixth Amendment shall have the meanings
ascribed to such terms in the Note Purchase Agreement as amended by this Sixth
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. AMENDMENT TO SCHEDULE B. Schedule B of the Note Purchase Agreement
is hereby amended as follows:
(a) The defined term "Consolidated Net Income" is hereby
amended in its entirety to read as follows:
"CONSOLIDATED NET INCOME" of the Company means, without
duplication, for any period, the after-tax net income (loss) of the Company and
its Restricted Subsidiaries for such period on a consolidated basis as
determined in accordance with GAAP, adjusted by excluding therefrom (a) net
extraordinary gains or net extraordinary losses, as the case may be, of the
Company and its Restricted Subsidiaries during such period, (b) net gains or
losses (less all fees and expenses relating thereto) in respect of dispositions
of assets (other than in the ordinary course of business) by the Company and its
Restricted Subsidiaries during such period, (c) the income (or loss) of any
other Person (other than a Restricted Subsidiary) in which the Company or any
Restricted Subsidiary has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid to such Person or its
subsidiaries by such other Person during such period, (d) net income of any
other Person combined with the Company or any Restricted Subsidiary on a
"pooling of interests" basis attributable to any period prior the date of
combination, (e) the net income of any Restricted Subsidiary during such period
to the extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the time
permitted, directly or indirectly, by operation of the terms of its charter or
any agreement (including any shareholder agreement), instrument, judgment,
decree, order, statute, rule or governmental regulations applicable to that
Restricted Subsidiary (except to the extent of the amount of cash dividends or
distributions to the Company or other Restricted Subsidiaries (subject, in the
case of a dividend to another Restricted Subsidiary, to the limitation contained
in this clause (e)) from such Restricted Subsidiary during such period); (f) the
amount of any Shadow Dividends (but only to the extent such Shadow Dividends are
counted as an expense); (g) the Note Prepayment Amount during such period; and
(h) for any period including the second quarter of fiscal year 2004, the Quest
Charge Amount;
PROVIDED, HOWEVER, that (1) the amount of any Tobacco Litigation Bond of the
Company or any Restricted Subsidiary deemed non-refundable or forfeited shall be
expensed against Consolidated Net Income on the date that such amount is deemed
non-refundable or forfeited; (2) to the extent that the amount of an appealable
judgment for which a Tobacco Litigation Bond has been posted is counted as a
charge against net income of the Company or a Restricted Subsidiary in
accordance with GAAP, the amount of such charge shall be added back when
calculating Consolidated Net Income; (3) to the extent that the present value of
any Tobacco Claim Obligation not immediately due and payable is counted as a
charge against net income in accordance with GAAP, the amount of such charge
shall be added back when calculating Consolidated Net Income; and (4) any
payment in respect of a Tobacco Claim Obligation shall be expensed against
Consolidated Net Income on the date that such payment is made, except that the
forfeiture of a Tobacco Litigation Bond in satisfaction of all or a portion a
Tobacco Claim Obligation shall be expensed in the amount forfeited in accordance
with clause (1) of this proviso rather than this clause (4)."
(b) A new defined term "Note Prepayment Amount" is hereby
added to Schedule B in the appropriate alphabetical order, which defined term
shall read as follows:
"NOTE PREPAYMENT AMOUNT" means the losses on early
extinguishment of debt incurred by the Company in connection with the repurchase
by the Company of Notes in an amount not to exceed (i) $1,318,960 for fiscal
year 2002, (ii) $1,721,299 for fiscal year 2003, and (iii) $730,000 for fiscal
year 2004."
(c) A new defined term "Quest Charge Amount" is hereby added
to Schedule B in the appropriate alphabetical order, which defined term shall
read as follows:
"QUEST CHARGE AMOUNT" means the non-cash charge taken by the
Company in the second fiscal quarter of 2004 in an amount not to exceed
$37,000,000 in connection with the write-down of the carrying value of the Quest
leaf tobacco inventory.' "
2. REPRESENTATIONS AND WARRANTIES. To induce the Majority Holders to
enter into this Sixth 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 Sixth 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 giving effect to the amendments
contained herein, the Leverage Ratio is less than 2.50 to 1.
2
(c) No Material Adverse Effect. Other than the Quest Charge
Amount, during the period from March 31, 2004 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 Sixth 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 Sixth Amendment.
3. REPURCHASE OF NOTES. The effectiveness of this Sixth Amendment shall
be conditioned upon the repurchase by the Company pro rata from the Majority
Holders of $7,000,000 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 Sixth Amendment.
5. LIMITED EFFECT. Except as expressly amended and modified by this
Sixth Amendment, the Note Purchase Agreement shall continue to be, and shall
remain, in full force and effect in accordance with its terms. Except as
expressly set forth herein, any conditions of the Note Purchase Agreement and
the other Note Documents shall remain unamended and unwaived.
6. SUCCESSORS. All agreements of the parties to this Sixth Amendment
shall bind their respective successors.
7. COUNTERPARTS. This Sixth 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 Sixth Amendment by facsimile or
electronic mail transmission shall be effective as delivery of a manually
executed counterpart of this Sixth Amendment.
8. GOVERNING LAW. THIS SIXTH 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
Sixth 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.
3
10. HEADINGS. The headings of the Sections of this Sixth Amendment have
been inserted for convenience of reference only, are not to be considered a part
of this Sixth Amendment and shall in no way modify or restrict any of the terms
or provisions of this Sixth Amendment.
IN WITNESS WHEREOF, the parties hereto have caused this Sixth 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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Executive Vice President
----------------------------------
4
TCW HIGH INCOME PARTNERS, LTD.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
5
TCW HIGH INCOME PARTNERS II, LTD.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
6
PIONEER HIGH YIELD CAYMAN UNIT TRUST
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
7
TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
----------------------------------
8
TCW LEVERAGED INCOME TRUST IV, L.P.
By: TCW Asset Management Company,
as its Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
AND
By: TCW Asset Management Company, as its
Managing Member of TCW (▇▇▇▇ ▇▇)
L.L.C., the General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
----------------------------------
9
TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as its
General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
----------------------------------
10
TCW LEVERAGED INCOME TRUST II, L.P.
By: TCW (▇▇▇▇ ▇▇), L.P., as its General
Partner
By: TCW Advisers (Bermuda), Ltd.,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Title: Senior Vice President
----------------------------------
11
TCW LINC III CBO LTD.
By: TCW Investment Management Company,
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Managing Director
----------------------------------
12
AIMCO CDO, SERIES 2000-A
By: Allstate Investment Management
Company, its Collateral Manager
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
----------------------------------
Title: Managing Director
----------------------------------
By: /s/ C. ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: C. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Title: Managing Director
----------------------------------
13
TCW SHARED OPPORTUNITY FUND II, L.P.
By: TCW Investment Management Company,
its Investment Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Tell, Jr.
-----------------------------------
Title: Managing Director
----------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Senior Vice President
----------------------------------
14