EXHIBIT 10.1
FOURTH AMENDMENT TO NOTE PURCHASE AGREEMENT
This Fourth Amendment to Note Purchase Agreement is dated as
of March 31, 2003 (this "Fourth Amendment") and amends the Note Purchase
Agreement, dated as of May 14, 2001, as amended as of November 6, 2001, April
30, 2002 and September 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 but
not otherwise defined in this Fourth Amendment shall have the meanings ascribed
to such terms in the Note Purchase Agreement as amended by this Fourth
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 December 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 (i) if the
Leverage Ratio is not less than 2.50 to 1 as of June 30, 2003, on June
30, 2003 the Company shall repurchase from the Majority Holders
$4,000,000 in aggregate principal amount of Notes at 100% of the
principal amount thereof, plus accrued and unpaid interest thereon,
(ii) if the Leverage Ratio is not less than 2.50 to 1 as of September
30, 2003, on or before September 30, 2003 the Company shall repurchase
from the Majority Holders $4,000,000 in aggregate principal amount of
Notes at 100% of the principal amount thereof, plus accrued and unpaid
interest thereon and (iii) on January 1, 2004 either (x) the Leverage
Ratio shall be less than 2.50 to 1 or (y) 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 so that the defined term "Permitted Amount" is amended
in its entirety to read as follows:
"`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, (iii) $100,000,000 during the period
commencing on December 31, 2002 and ending on March 31, 2003, (iv)
$115,000,000 during the period commencing on April 1, 2003 and ending
on June 29, 2003, (v) $100,000,000 during the period commencing on June
30, 2003 and ending on September 29, 2003 and (vi) $50,000,000 during
the period commencing on September 30, 2003 and ending on December 31,
2003. Notwithstanding the foregoing, the Permitted Amount shall be $0
on the earlier of (i) the date VTUSA is designated as a Designated
Subsidiary, (ii) June 30, 2003, if the Leverage Ratio is less than 2.50
to 1 as of June 30, 2003 and the Company shall not have repurchased the
$4,000,000 of the Notes as contemplated by Section 8.4(f)(i) by June
30, 2003, and (iii) September 30, 2003, if the Leverage Ratio is less
than 2.5 to 1 as of September 30, 2003 and the Company shall not have
repurchased the $4,000,000 of Notes contemplated by Section 8.4(f)(ii)
by September 30, 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 Fourth 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 Fourth 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
September 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 Fourth
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.
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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 Fourth
Amendment.
3. REPURCHASE OF NOTES. The effectiveness of this Fourth
Amendment shall be conditioned upon the repurchase by the Company from the
Majority Holders, on or before April 7, 2003, of $4,000,000 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
Fourth Amendment.
5. LIMITED EFFECT. Except as expressly amended and modified by
this Fourth 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 Fourth
Amendment shall bind their respective successors.
7. COUNTERPARTS. This Fourth 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 Fourth Amendment by facsimile
or electronic mail transmission shall be effective as delivery of a manually
executed counterpart of this Fourth Amendment.
8. GOVERNING LAW. THIS FOURTH 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 Fourth 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 Fourth
Amendment have been inserted for convenience of reference only, are not to be
considered a part of this Fourth Amendment and shall in no way modify or
restrict any of the terms or provisions of this Fourth Amendment.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
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/ RICHARD J. LAMPEN
------------------------------------
Name: Richard J. Lampen
Title: Executive Vice President
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TCW HIGH INCOME PARTNERS, LTD.
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ C. SHAWN BOOKIN
--------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
5
TCW HIGH INCOME PARTNERS II, LTD.
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
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. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
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/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
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. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
AND
By: TCW Asset Management Company, as its
Managing Member of TCW (LINC IV)
L.L.C., the General Partner
By: /s/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as its
General Partner
By: /s/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
10
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/ MARK L. ATTANASIO
---------------------------------------
Name: March L. Attanasio
Title: Group Managing Director
By: TCW Investment Management Company,
as Investment Adviser
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
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TCW LINC III CBO LTD.
By: TCW Investment Management Company,
as Collateral Manager
By: /s/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
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/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
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CAPTIVA II FINANCE LTD.
By: TCW Advisors, Inc., its Financial Manager
By: /s/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
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/ MARK L. ATTANASIO
---------------------------------------
Name: Mark L. Attanasio
Title: Group Managing Director
By: /s/ C. SHAWN BOOKIN
---------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
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