EXHIBIT 4.7
FIFTH AMENDMENT TO NOTE PURCHASE AGREEMENT AND CONSENT
This Fifth Amendment to Note Purchase Agreement and Consent,
dated as of October 1, 2003 (this "FIFTH AMENDMENT AND CONSENT"), amends the
Note Purchase Agreement, dated as of May 14, 2001, as amended as of November 6,
2001, April 30, 2002, September 30, 2002 and March 31, 2003 (the "NOTE PURCHASE
AGREEMENT"), by and among (i) VGR Holding Inc. (formerly known as BGLS Inc.), a
Delaware corporation (the "COMPANY"), (ii) Vector Group Ltd., a Delaware
corporation ("VECTOR"), and (iii) the signatories hereto who, collectively, are
the Majority Holders (as defined in the Note Purchase Agreement) and provides
the consent of the Majority Holders to the sale of an aircraft by VT Aviation
LLC, a Delaware limited liability company, a Restricted Subsidiary ("VT
AVIATION"). Capitalized terms used but not otherwise defined in this Fifth
Amendment and Consent shall have the meanings ascribed to such terms in the Note
Purchase Agreement as amended by this Fifth Amendment and Consent.
WHEREAS, the Company and the Majority Holders desire to amend the Note
Purchase Agreement as set forth herein; and
WHEREAS, the Company has requested that the Majority Holders consent to
the sale by VT Aviation to VGR Aviation LLC, a newly formed Delaware limited
liability company whose sole member and manager is Vector ("VGR AVIATION"), of
the Lear aircraft purchased by VT Aviation in 2002 (the "AIRCRAFT").
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:
The defined terms "Note Documents" and "Required Cash Holdings" are
hereby amended in their entirety to read as follows:
"Note Documents" means this Agreement, the Security Agreements, the
Notes and all amendments, restatements, supplements, modifications, consents and
waivers relating to any of this Agreement, the Security Agreements and the
Notes.
"Required Cash Holdings" means the lesser of (i) $75,000,000 in Cash
and (ii) the aggregate outstanding principal amount of the Notes on any date of
determination.
2. CONSENT. Notwithstanding anything in the Note Purchase Agreement to
the contrary including, without limitation, Section 8.5(f) thereof, the Majority
Holders hereby consent to the sale of the Aircraft by VT Aviation to VGR
Aviation conditioned upon (i) VGR Aviation's assumption and Vector's guarantee
of all outstanding indebtedness secured by the Aircraft (the "AIRCRAFT DEBT")
and the release of VT Aviation's obligations with respect to the Aircraft Debt,
(ii) Vector's agreement herein that upon any subsequent sale of the Aircraft,
Vector shall contribute as capital to the Company any Net Available Proceeds of
the sale of the Aircraft in excess of the amount of the Aircraft Debt
outstanding on the date of the sale of the Aircraft by VT Aviation to VGR
Aviation and (iii) VGR Aviation's agreement to take or cause to be taken all
such actions as may be necessary for Vector to implement the provisions of the
foregoing clause (ii) and not to take any action inconsistent therewith or with
any other provision of this Fifth Amendment and Consent. For the purposes of
calculating "Net Available Proceeds" in the foregoing sentence, (i) the sale of
the Aircraft by VGR Aviation shall be deemed a Company Asset Sale with the
provisions in the definition of "Net Available Proceeds" applicable to the
Company in the event of a Company Asset Sale to be applicable to each of VGR
Aviation, Vector and the Company and (ii) any consulting, professional or other
payments made to any Affiliate of Vector (other than the Company or any
Restricted Subsidiary), Associate of Vector (other than the Company or any
Restricted Subsidiary), Vector Expanded Affiliate or Group Executive in
connection with the sale of the Aircraft by VGR Aviation shall not be deducted
from the amount of "all consideration received" in calculating Net Available
Proceeds. Within five (5) Business Days of the release of VT Aviation's
obligations with respect to the Aircraft Debt, the Company shall deliver to the
Majority Holders, copies of all material documents relating to such release of
the Aircraft Debt, accompanied by an Officer's Certificate to the effect that
such documents are true and complete copies thereof, as amended, modified and
supplemented through the date of such Officer's Certificate. Within five (5)
Business Days of the closing of the Aircraft sale described in clause (ii) of
the second preceding sentence, the Company shall deliver to the Majority
Holders: (x) copies of all material documents relating to such Aircraft sale,
including, without limitation, documentation setting forth the sale price,
accompanied by an Officer's Certificate to the effect that such documents are
true and complete copies thereof, as amended, modified and supplemented through
the date of such Officer's Certificate and (y) an Officer's Certificate setting
forth in reasonable detail the calculations necessary to demonstrate the amount
of Net Available Proceeds generated by such Aircraft sale.
3. REPRESENTATIONS AND WARRANTIES. To induce the Majority Holders to
enter into this Fifth Amendment and Consent, 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 Fifth Amendment and Consent (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 is less than 2.50 to 1.
C. No Material Adverse Effect. During the period from June 30, 2003
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 Fifth Amendment and
Consent constitutes the legal, valid and binding obligation of each of the
Company, Vector and VGR Aviation, 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 Fifth Amendment and Consent.
F. Vector. Vector is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation. This Fifth
Amendment and Consent has been duly authorized by all necessary corporate action
on the part of Vector. Vector has the corporate power to execute and deliver
this Fifth Amendment and Consent and perform its obligations hereunder.
G. VGR Aviation. VGR Aviation is a limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of its formation. This Fifth Amendment and Consent has been duly
authorized by all necessary organizational action on the part of VGR Aviation.
VGR Aviation has the organizational power to execute and deliver this Fifth
Amendment and Consent and perform its obligations hereunder.
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 Fifth Amendment
and Consent.
5. LIMITED EFFECT. Except as expressly amended and modified by this
Fifth Amendment and Consent, 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. The consent of the
Majority Holders given in this Fifth Amendment and Consent shall be limited
precisely as provided for herein to the provisions expressly referred to herein
and shall not (i) be deemed to be a waiver of, amendment of, consent to or
modification of any other term or provision of any other document or of any
other transaction or further action on the part of the Company, Vector or any
Subsidiary of the Company which would require the consent of the Majority
Holders under the Note Purchase Agreement or any other Note Document or (ii)
create a course of conduct or dealing.
6. SUCCESSORS. All agreements of the parties to this Fifth Amendment
and Consent shall bind their respective successors.
7. COUNTERPARTS. This Fifth Amendment and Consent 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 Fifth Amendment and Consent by
facsimile or electronic mail transmission shall be effective as delivery of a
manually executed counterpart of this Fifth Amendment and Consent.
8. GOVERNING LAW. THIS FIFTH AMENDMENT AND CONSENT 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
Fifth Amendment and Consent shall be held invalid, illegal or unenforceable, in
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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 Fifth Amendment have
been inserted for convenience of reference only, are not to be considered a part
of this Fifth Amendment and Consent and shall in no way modify or restrict any
of the terms or provisions of this Fifth Amendment and Consent.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment
and Consent 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
ACKNOWLEDGED, AGREED
AND CONSENTED TO WITH
RESPECT TO SECTIONS 2, 3D and 3F HEREOF:
VECTOR GROUP LTD.
By: /s/ Richard J. Lampen
-----------------------------------------
Name: Richard J. Lampen
Title: Executive Vice President
ACKNOWLEDGED, AGREED
AND CONSENTED TO WITH
RESPECT TO SECTIONS 2, 3D and 3G HEREOF:
VGR AVIATION LLC
By: Vector Group Ltd., Sole Manager
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/ Nicholas W. Tell, Jr.
-----------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
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TCW HIGH INCOME PARTNERS II, LTD.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-----------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
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PIONEER HIGH YIELD CAYMAN UNIT TRUST
By: TCW Asset Management Company, its
Investment Advisor
By: /s/ Nicholas W. Tell, JR.
---------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
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TCW SHARED OPPORTUNITY FUND III, L.P.
By: TCW Asset Management Company,
its Investment Advisor
By: /s/ Nicholas W. Tell, Jr.
-----------------------------------
Name: Nicholas W. Tell, Jr.
Title: 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/ Nicholas W. Tell, Jr.
------------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
AND
By: TCW Asset Management Company, as its
Managing Member of TCW (LINC IV)
L.L.C., the General Partner
By: /s/ C. Shawn Bookin
------------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
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TCW LEVERAGED INCOME TRUST, L.P.
By: TCW Advisers (Bermuda), Ltd., as its
General Partner
By: /s/ Nicholas W. Tell, Jr.
-----------------------------------------
Name: Nicholas W. Tell, Jr.
Title: 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 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/ Nicholas W. Tell, Jr.
--------------------------------------
Name: Nicholas W. Tell, Jr.
Title: 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/ Nicholas W. Tell, JR.
-------------------------------------
Name: Nicholas W. Tell, Jr.
Title: 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/ Nicholas W. Tell, Jr.
------------------------------------------
Name: Nicholas W. Tell, Jr.
Title: 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/ Nicholas W. Tell, Jr.
-------------------------------------------
Name: Nicholas W. Tell, Jr.
Title: 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/ Nicholas W. Tell, Jr.
--------------------------------------
Name: Nicholas W. Tell, Jr.
Title: Managing Director
By: /s/ C. Shawn Bookin
--------------------------------------
Name: C. Shawn Bookin
Title: Senior Vice President
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