1
EXHIBIT 4(c)
May 2, 1995
BGLS Inc.
100 S.E. Second Street
Miami, FL 33131
Ladies and Gentlemen:
The undersigned is the holder of $10,243,000 principal amount of
your 13.75% Series 1 Senior Secured Notes due 1995 (the "Notes") (the
"Beneficial Owner"). On April 3, 1995, you gave notice of redemption of the
Notes (the "Redemption Notice") on May 3, 1995 pursuant to the Indenture dated
as of September 30, 1994 between you and Shawmut Bank, N.A., trustee (the
"Indenture", terms defined therein having the same meanings when used herein).
You hereby represent that you deposited with the Trustee an amount (the
"Deposit Amount") sufficient to effect the redemption of all the Securities on
that date (which Deposit Amount shall remain on deposit until the Notes are
redeemed). You represent that letter agreements substantially identical to
this letter agreement ("Other Letter Agreements") are being entered into
between you and all holders of Securities and that true and correct copies of
the Other Letter Agreements are attached hereto.
We hereby waive our right to have the Notes redeemed on May 3,
1995 pursuant to the Redemption Notice and thereafter until a date (not earlier
than May 9, 1995), designated by written notice (a "Notice") (delivered by hand
or by telecopy) of two Business Days from us to you or from you to us, in
either case with a contemporaneous copy to the Trustee, such notice to be in
place of any notice required under Section 3.03 of the Indenture. If you
receive such a notice from any Person other than the undersigned, you agree to
promptly deliver a copy of such notice to the undersigned, with a copy to the
Beneficial Owner and its counsel for such purpose (if known to you). The Notes
subject to this letter agreement and the Other Letter
2
2
Agreements shall become due and payable and shall be redeemed at 100% of the
principal amount thereof plus (notwithstanding anything to the contrary in the
Redemption Notice or the Indenture) interest accrued until redemption, upon the
earliest to occur of (i) two Business Days after the sending of such Notice
under this letter agreement or any Other Letter Agreement, (ii) the Maturity
Date, (iii) any date on which the maturity of the Securities is accelerated and
(iv) any amendment or modification of any Other Letter Agreement. Without
limiting our rights to receive such price, we acknowledge that the portion of
the Deposit Amount applied towards redemption of the Notes (the "Proportionate
Deposit Amount") will be limited to an amount proportional to the amount of
Securities held by us. Unless actually utilized to retire the Notes
beneficially owned by the undersigned, the Trustee shall retain the
Proportionate Deposit Amount exclusively for such purpose. We shall have no
liability to you, and no holder of Securities that enters into an Other Letter
Agreement shall have any liability to us, based on the delivery of any such
notice or the consequences thereof. The foregoing exculpation shall also inure
to the benefit of any Beneficial Owners and any direct or indirect pledgee of
the Notes. For purposes of the second paragraph of Section 3.05 of the
Indenture, the definition of "Redemption Date" set forth in Section 1.01 shall
be deemed amended to read as follows:
"'Redemption Date,' when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to
this Indenture and the letter agreements dated May 2, 1995 among
the Company, the Trustee and the Holders amending this Indenture."
We also waive, as holders of Securities and Series 2 Notes, any
default that may have arisen under the Indenture or the Series 2 Note Indenture
solely as a result of the application of Payments from NV Holdings not in
excess of $5,552,048 to pay interest on April 1, 1995 on the Series 2 Notes;
provided, however, that the foregoing waiver is based upon your representation
and warranty, which you hereby make, that Exhibit A hereto accurately describes
the amount, source and flow of such Payments and shall in any event expire on
the day following the day fixed for redemption pursuant to clauses (i) - (iv)
of the preceding paragraph. Except as specifically provided in the immediately
preceding sentence, nothing in this letter agreement shall limit our rights
with respect to any Default or Event of Default. You represent that as of the
date hereof there is no other Default or Event of Default continuing.
Between the date hereof and the date of imposition of the legend
referred to in the next sentence, we agree not to transfer any of the Notes
unless the transferee agrees in writing
3
3
to be bound by the terms of this letter agreement. We agree to surrender the
Notes to the Trustee promptly after the date hereof so that they can be
legended to reflect the contents of this letter agreement, provided that the
arrangements for such legending are reasonably satisfactory to us and to the
Beneficial Owner.
Please indicate that the foregoing represents our agreement by
signing and returning the enclosed copy of this letter. This letter agreement
shall represent a supplement to the Indenture. Except as supplemented hereby,
the Indenture remains and shall remain in full force and effect. The Trustee
shall have no liability to any Person with respect to its action or inaction
pursuant to this letter agreement taken absent negligence or bad faith.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
This letter agreement shall not be effective until each of the
following conditions has occurred: (i) this letter agreement shall have been
duly executed and delivered by you and the Trustee, (ii) each Other Letter
Agreement shall have been duly executed and delivered by all the parties
thereto and (iii) the undersigned shall have received the executed legal
opinion of Milbank, Tweed, Hadley & McCloy, substantially in the form of
Exhibit B hereto.
Very truly yours,
TORTOISE CORP.
By______________________
Name: Robert Mitchell
Title: Vice President
and Assistant
Secretary
4
4
Accepted and agreed:
BGLS INC.
By_______________________
Name:
Title:
Acknowledged and agreed:
SHAWMUT BANK, N.A., Trustee
By_______________________
Name:
Title:
5
5
EXHIBIT A
Dividends received from New Valley Holdings $31,040,941
Deposit Amount 23,874,179
Interest on Securities 1,614,714
Applied to interest on
Series 2 Notes $ 5,552,048
6
May 2, 1995
AIF II, L.P.
Artemis America LLC
Mainstay High Yield Corporate
Bond Fund
Tortoise & Co.
Ladies and Gentlemen:
We have acted as special New York counsel to BGLS Inc. in
connection with letter agreements dated as of the date hereof among each of you
(or your nominee), the Company and Shawmut Bank, N.A., trustee under an
Indenture (the "Indenture") dated as of September 30, 1994 relating to 13.75%
Series 1 Senior Secured Notes due 1995 (the "Letter Agreements"). Terms
defined in the Indenture are used herein as defined therein.
In rendering the opinion expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Indenture;
(b) the Pledge Agreement;
(c) the Letter Agreements; and
(d) such other documents as we have deemed necessary as a basis
for the opinion expressed below.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that to the extent the Pledge Agreement
created a security interest in the Collateral securing the Securities, that
security interest was not affected by the call of the Securities
7
7
for redemption on May 3, 1995, the deposit of the Redemption Price with the
Trustee or the postponement of the redemption pursuant to the Letter
Agreements.
The foregoing opinion is limited to matters involving the law of
the State of New York, and we do not express any opinion as to the laws of any
other jurisdiction.
This opinion letter is provided to you by us in our capacity as
special New York counsel to the Company and may not be relied upon by any
person or for any purpose other than in connection with the transactions
contemplated by the Letter Agreements without, in each instance, our prior
written consent.
Very truly yours,
MLW:MMI
8
May 2, 1995
BGLS Inc.
100 S.E. Second Street
Miami, FL 33131
Ladies and Gentlemen:
The undersigned is the holder of $5,644,000 principal amount of
your 13.75% Series 1 Senior Secured Notes due 1995 (the "Notes") as nominee for
Artemis America LLC as beneficial owner (the "Beneficial Owner"). On April 3,
1995, you gave notice of redemption of the Notes (the "Redemption Notice") on
May 3, 1995 pursuant to the Indenture dated as of September 30, 1994 between
you and Shawmut Bank, N.A., trustee (the "Indenture", terms defined therein
having the same meanings when used herein). You hereby represent that you
deposited with the Trustee an amount (the "Deposit Amount") sufficient to
effect the redemption of all the Securities on that date (which Deposit Amount
shall remain on deposit until the Notes are redeemed). You represent that
letter agreements substantially identical to this letter agreement ("Other
Letter Agreements") are being entered into between you and all holders of
Securities and that true and correct copies of the Other Letter Agreements are
attached hereto.
We hereby waive our right to have the Notes redeemed on May 3,
1995 pursuant to the Redemption Notice and thereafter until a date (not earlier
than May 9, 1995), designated by written notice (a "Notice") (delivered by hand
or by telecopy) of two Business Days from us to you or from you to us, in
either case with a contemporaneous copy to the Trustee, such notice to be in
place of any notice required under Section 3.03 of the Indenture. If you
receive such a notice from any Person other than the undersigned, you agree to
promptly deliver a copy of such notice to the undersigned, with a copy to the
Beneficial Owner and its counsel for such purpose (if known to you). The Notes
subject to this letter agreement and the Other Letter Agreements shall become
due and payable and shall be redeemed at
9
2
100% of the principal amount thereof plus (notwithstanding anything to the
contrary in the Redemption Notice or the Indenture) interest accrued until
redemption, upon the earliest to occur of (i) two Business Days after the
sending of such Notice under this letter agreement or any Other Letter
Agreement, (ii) the Maturity Date, (iii) any date on which the maturity of the
Securities is accelerated and (iv) any amendment or modification of any Other
Letter Agreement. Without limiting our rights to receive such price, we
acknowledge that the portion of the Deposit Amount applied towards redemption
of the Notes (the "Proportionate Deposit Amount") will be limited to an amount
proportional to the amount of Securities held by us. Unless actually utilized
to retire the Notes beneficially owned by the undersigned, the Trustee shall
retain the Proportionate Deposit Amount exclusively for such purpose. We shall
have no liability to you, and no holder of Securities that enters into an Other
Letter Agreement shall have any liability to us, based on the delivery of any
such notice or the consequences thereof. The foregoing exculpation shall also
inure to the benefit of any Beneficial Owners and any direct or indirect
pledgee of the Notes. For purposes of the second paragraph of Section 3.05 of
the Indenture, the definition of "Redemption Date" set forth in Section 1.01
shall be deemed amended to read as follows:
"'Redemption Date,' when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to
this Indenture and the letter agreements dated May 2, 1995 among
the Company, the Trustee and the Holders amending this Indenture."
We also waive, as holders of Securities and Series 2 Notes, any
default that may have arisen under the Indenture or the Series 2 Note Indenture
solely as a result of the application of Payments from NV Holdings not in
excess of $5,552,048 to pay interest on April 1, 1995 on the Series 2 Notes;
provided, however, that the foregoing waiver is based upon your representation
and warranty, which you hereby make, that Exhibit A hereto accurately describes
the amount, source and flow of such Payments and shall in any event expire on
the day following the day fixed for redemption pursuant to clauses (i) - (iv)
of the preceding paragraph. Except as specifically provided in the immediately
preceding sentence, nothing in this letter agreement shall limit our rights
with respect to any Default or Event of Default. You represent that as of the
date hereof there is no other Default or Event of Default continuing.
Between the date hereof and the date of imposition of the legend
referred to in the next sentence, we agree not to transfer any of the Notes
unless the transferee agrees in writing to be bound by the terms of this letter
agreement. We agree to
10
3
surrender the Notes to the Trustee promptly after the date hereof so that they
can be legended to reflect the contents of this letter agreement, provided that
the arrangements for such legending are reasonably satisfactory to us and to
the Beneficial Owner.
Please indicate that the foregoing represents our agreement by
signing and returning the enclosed copy of this letter. This letter agreement
shall represent a supplement to the Indenture. Except as supplemented hereby,
the Indenture remains and shall remain in full force and effect. The Trustee
shall have no liability to any Person with respect to its action or inaction
pursuant to this letter agreement taken absent negligence or bad faith.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
This letter agreement shall not be effective until each of the
following conditions has occurred: (i) this letter agreement shall have been
duly executed and delivered by you and the Trustee, (ii) each Other Letter
Agreement shall have been duly executed and delivered by all the parties
thereto and (iii) the undersigned shall have received the executed legal
opinion of Milbank, Tweed, Hadley & McCloy, substantially in the form of
Exhibit B hereto.
Very truly yours,
THE BANK OF NEW YORK
(in its nominee name
Hare & Co.), as custodian
for Artemis America LLC
By___________________________
Name:
Title:
11
4
Accepted and agreed:
BGLS INC.
By_______________________
Name:
Title:
Acknowledged and agreed:
SHAWMUT BANK, N.A., Trustee
By_______________________
Name:
Title:
12
5
EXHIBIT A
Dividends received from New Valley Holdings $31,040,941
Deposit Amount 23,874,179
Interest on Securities 1,614,714
Applied to interest on
Series 2 Notes $ 5,552,048
13
May 2, 1995
AIF II, L.P.
Artemis America LLC
Mainstay High Yield Corporate
Bond Fund
Tortoise & Co.
Ladies and Gentlemen:
We have acted as special New York counsel to BGLS Inc. in
connection with letter agreements dated as of the date hereof among each of you
(or your nominee), the Company and Shawmut Bank, N.A., trustee under an
Indenture (the "Indenture") dated as of September 30, 1994 relating to 13.75%
Series 1 Senior Secured Notes due 1995 (the "Letter Agreements"). Terms
defined in the Indenture are used herein as defined therein.
In rendering the opinion expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Indenture;
(b) the Pledge Agreement;
(c) the Letter Agreements; and
(d) such other documents as we have deemed necessary as a basis
for the opinion expressed below.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that to the extent the Pledge Agreement
created a security interest in the Collateral securing the Securities, that
security interest was not affected by the call of the Securities
14
7
for redemption on May 3, 1995, the deposit of the Redemption Price with the
Trustee or the postponement of the redemption pursuant to the Letter
Agreements.
The foregoing opinion is limited to matters involving the law of
the State of New York, and we do not express any opinion as to the laws of any
other jurisdiction.
This opinion letter is provided to you by us in our capacity as
special New York counsel to the Company and may not be relied upon by any
person or for any purpose other than in connection with the transactions
contemplated by the Letter Agreements without, in each instance, our prior
written consent.
Very truly yours,
MLW:MMI
15
May 2, 1995
BGLS Inc.
100 S.E. Second Street
Miami, FL 33131
Ladies and Gentlemen:
The undersigned is the holder of $7,330,000 principal amount of
your 13.75% Series 1 Senior Secured Notes due 1995 (the "Notes") as nominee for
AIF II, L.P. as beneficial owner (the "Beneficial Owner"). On April 3, 1995,
you gave notice of redemption of the Notes (the "Redemption Notice") on May 3,
1995 pursuant to the Indenture dated as of September 30, 1994 between you and
Shawmut Bank, N.A., trustee (the "Indenture", terms defined therein having the
same meanings when used herein). You hereby represent that you deposited with
the Trustee an amount (the "Deposit Amount") sufficient to effect the
redemption of all the Securities on that date (which Deposit Amount shall
remain on deposit until the Notes are redeemed). You represent that letter
agreements substantially identical to this letter agreement ("Other Letter
Agreements") are being entered into between you and all holders of Securities
and that true and correct copies of the Other Letter Agreements are attached
hereto.
We hereby waive our right to have the Notes redeemed on May 3,
1995 pursuant to the Redemption Notice and thereafter until a date (not earlier
than May 9, 1995), designated by written notice (a "Notice") (delivered by hand
or by telecopy) of two Business Days from us to you or from you to us, in
either case with a contemporaneous copy to the Trustee, such notice to be in
place of any notice required under Section 3.03 of the Indenture. If you
receive such a notice from any Person other than the undersigned, you agree to
promptly deliver a copy of such notice to the undersigned, with a copy to the
Beneficial Owner and its counsel for such purpose (if known to you). The Notes
subject to this letter agreement and the Other Letter Agreements shall become
due and payable and shall be redeemed at
16
2
100% of the principal amount thereof plus (notwithstanding anything to the
contrary in the Redemption Notice or the Indenture) interest accrued until
redemption, upon the earliest to occur of (i) two Business Days after the
sending of such Notice under this letter agreement or any Other Letter
Agreement, (ii) the Maturity Date, (iii) any date on which the maturity of the
Securities is accelerated and (iv) any amendment or modification of any Other
Letter Agreement. Without limiting our rights to receive such price, we
acknowledge that the portion of the Deposit Amount applied towards redemption
of the Notes (the "Proportionate Deposit Amount") will be limited to an amount
proportional to the amount of Securities held by us. Unless actually utilized
to retire the Notes beneficially owned by the undersigned, the Trustee shall
retain the Proportionate Deposit Amount exclusively for such purpose. We shall
have no liability to you, and no holder of Securities that enters into an Other
Letter Agreement shall have any liability to us, based on the delivery of any
such notice or the consequences thereof. The foregoing exculpation shall also
inure to the benefit of any Beneficial Owners and any direct or indirect
pledgee of the Notes. For purposes of the second paragraph of Section 3.05 of
the Indenture, the definition of "Redemption Date" set forth in Section 1.01
shall be deemed amended to read as follows:
"'Redemption Date,' when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to
this Indenture and the letter agreements dated May 2, 1995 among
the Company, the Trustee and the Holders amending this Indenture."
We also waive, as holders of Securities and Series 2 Notes, any
default that may have arisen under the Indenture or the Series 2 Note Indenture
solely as a result of the application of Payments from NV Holdings not in
excess of $5,552,048 to pay interest on April 1, 1995 on the Series 2 Notes;
provided, however, that the foregoing waiver is based upon your representation
and warranty, which you hereby make, that Exhibit A hereto accurately describes
the amount, source and flow of such Payments and shall in any event expire on
the day following the day fixed for redemption pursuant to clauses (i) - (iv)
of the preceding paragraph. Except as specifically provided in the immediately
preceding sentence, nothing in this letter agreement shall limit our rights
with respect to any Default or Event of Default. You represent that as of the
date hereof there is no other Default or Event of Default continuing.
Between the date hereof and the date of imposition of the legend
referred to in the next sentence, we agree not to transfer any of the Notes
unless the transferee agrees in writing to be bound by the terms of this letter
agreement. We agree to
17
3
surrender the Notes to the Trustee promptly after the date hereof so that they
can be legended to reflect the contents of this letter agreement, provided that
the arrangements for such legending are reasonably satisfactory to us and to
the Beneficial Owner.
Please indicate that the foregoing represents our agreement by
signing and returning the enclosed copy of this letter. This letter agreement
shall represent a supplement to the Indenture. Except as supplemented hereby,
the Indenture remains and shall remain in full force and effect. The Trustee
shall have no liability to any Person with respect to its action or inaction
pursuant to this letter agreement taken absent negligence or bad faith.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
This letter agreement shall not be effective until each of the
following conditions has occurred: (i) this letter agreement shall have been
duly executed and delivered by you and the Trustee, (ii) each Other Letter
Agreement shall have been duly executed and delivered by all the parties
thereto and (iii) the undersigned shall have received the executed legal
opinion of Milbank, Tweed, Hadley & McCloy, substantially in the form of
Exhibit B hereto.
Very truly yours,
UNITED STATES TRUST COMPANY
OF NEW YORK (in its nominee
name Atwell & Co.), as
custodian for AIF II, L.P.
By___________________________
Name:
Title:
18
4
Accepted and agreed:
BGLS INC.
By_______________________
Name:
Title:
Acknowledged and agreed:
SHAWMUT BANK, N.A., Trustee
By_______________________
Name:
Title:
19
5
EXHIBIT A
Dividends received from New Valley Holdings $31,040,941
Deposit Amount 23,874,179
Interest on Securities 1,614,714
Applied to interest on
Series 2 Notes $ 5,552,048
20
May 2, 1995
AIF II, L.P.
Artemis America LLC
Mainstay High Yield Corporate
Bond Fund
Tortoise & Co.
Ladies and Gentlemen:
We have acted as special New York counsel to BGLS Inc. in
connection with letter agreements dated as of the date hereof among each of you
(or your nominee), the Company and Shawmut Bank, N.A., trustee under an
Indenture (the "Indenture") dated as of September 30, 1994 relating to 13.75%
Series 1 Senior Secured Notes due 1995 (the "Letter Agreements"). Terms
defined in the Indenture are used herein as defined therein.
In rendering the opinion expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Indenture;
(b) the Pledge Agreement;
(c) the Letter Agreements; and
(d) such other documents as we have deemed necessary as a basis
for the opinion expressed below.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that to the extent the Pledge Agreement
created a security interest in the Collateral securing the Securities, that
security interest was not affected by the call of the Securities
21
7
for redemption on May 3, 1995, the deposit of the Redemption Price with the
Trustee or the postponement of the redemption pursuant to the Letter
Agreements.
The foregoing opinion is limited to matters involving the law of
the State of New York, and we do not express any opinion as to the laws of any
other jurisdiction.
This opinion letter is provided to you by us in our capacity as
special New York counsel to the Company and may not be relied upon by any
person or for any purpose other than in connection with the transactions
contemplated by the Letter Agreements without, in each instance, our prior
written consent.
Very truly yours,
MLW:MMI
22
May 2, 1995
BGLS Inc.
100 S.E. Second Street
Miami, FL 33131
Ladies and Gentlemen:
The undersigned is the holder of $377,000 principal amount of your
13.75% Series 1 Senior Secured Notes due 1995 (the "Notes") as nominee for
Mainstay High Yield Corporate Bond Fund as beneficial owner (the "Beneficial
Owner"). On April 3, 1995, you gave notice of redemption of the Notes (the
"Redemption Notice") on May 3, 1995 pursuant to the Indenture dated as of
September 30, 1994 between you and Shawmut Bank, N.A., trustee (the
"Indenture", terms defined therein having the same meanings when used herein).
You hereby represent that you deposited with the Trustee an amount (the
"Deposit Amount") sufficient to effect the redemption of all the Securities on
that date (which Deposit Amount shall remain on deposit until the Notes are
redeemed). You represent that letter agreements substantially identical to
this letter agreement ("Other Letter Agreements") are being entered into
between you and all holders of Securities and that true and correct copies of
the Other Letter Agreements are attached hereto.
We hereby waive our right to have the Notes redeemed on May 3,
1995 pursuant to the Redemption Notice and thereafter until a date (not earlier
than May 9, 1995), designated by written notice (a "Notice") (delivered by hand
or by telecopy) of two Business Days from us to you or from you to us, in
either case with a copy to the Trustee, such notice to be in place of any
notice required under Section 3.03 of the Indenture. If you receive such a
notice from any Person other than the undersigned, you agree to promptly
deliver a copy of such notice to the undersigned, with a contemporaneous copy
to the Beneficial Owner and its counsel for such purpose (if known to you).
The Notes subject to this letter agreement and the Other Letter Agreements
23
2
shall become due and payable and shall be redeemed at 100% of the principal
amount thereof plus (notwithstanding anything to the contrary in the Redemption
Notice or the Indenture) interest accrued until redemption, upon the earliest
to occur of (i) two Business Days after the sending of such Notice under this
letter agreement or any Other Letter Agreement, (ii) the Maturity Date, (iii)
any date on which the maturity of the Securities is accelerated and (iv) any
amendment or modification of any Other Letter Agreement. Without limiting our
rights to receive such price, we acknowledge that the portion of the Deposit
Amount applied towards redemption of the Notes (the "Proportionate Deposit
Amount") will be limited to an amount proportional to the amount of Securities
held by us. Unless actually utilized to retire the Notes beneficially owned by
the undersigned, the Trustee shall retain the Proportionate Deposit Amount
exclusively for such purpose. We shall have no liability to you, and no holder
of Securities that enters into an Other Letter Agreement shall have any
liability to us, based on the delivery of any such notice or the consequences
thereof. The foregoing exculpation shall also inure to the benefit of any
Beneficial Owners and any direct or indirect pledgee of the Notes. For
purposes of the second paragraph of Section 3.05 of the Indenture, the
definition of "Redemption Date" set forth in Section 1.01 shall be deemed
amended to read as follows:
"'Redemption Date,' when used with respect to any Security to be
redeemed, means the date fixed for such redemption pursuant to
this Indenture and the letter agreements dated May 2, 1995 among
the Company, the Trustee and the Holders amending this Indenture."
We also waive, as holders of Securities and Series 2 Notes, any
default that may have arisen under the Indenture or the Series 2 Note Indenture
solely as a result of the application of Payments from NV Holdings not in
excess of $5,552,048 to pay interest on April 1, 1995 on the Series 2 Notes;
provided, however, that the foregoing waiver is based upon your representation
and warranty, which you hereby make, that Exhibit A hereto accurately describes
the amount, source and flow of such Payments and shall in any event expire on
the day following the day fixed for redemption pursuant to clauses (i) - (iv)
of the preceding paragraph. Except as specifically provided in the immediately
preceding sentence, nothing in this letter agreement shall limit our rights
with respect to any Default or Event of Default. You represent that as of the
date hereof there is no other Default or Event of Default continuing.
Between the date hereof and the date of imposition of the legend
referred to in the next sentence, we agree not to transfer any of the Notes
unless the transferee agrees in writing
24
3
to be bound by the terms of this letter agreement. We agree to surrender the
Notes to the Trustee promptly after the date hereof so that they can be
legended to reflect the contents of this letter agreement, provided that the
arrangements for such legending are reasonably satisfactory to us and to the
Beneficial Owner.
Please indicate that the foregoing represents our agreement by
signing and returning the enclosed copy of this letter. This letter agreement
shall represent a supplement to the Indenture. Except as supplemented hereby,
the Indenture remains and shall remain in full force and effect. The Trustee
shall have no liability to any Person with respect to its action or inaction
pursuant to this letter agreement taken absent negligence or bad faith.
This letter agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
This letter agreement shall not be effective until each of the
following conditions has occurred: (i) this letter agreement shall have been
duly executed and delivered by you and the Trustee, (ii) each Other Letter
Agreement shall have been duly executed and delivered by all the parties
thereto and (iii) the undersigned shall have received the executed legal
opinion of Milbank, Tweed, Hadley & McCloy, substantially in the form of
Exhibit B hereto.
Very truly yours,
DAFFODIL & CO.
By___________________________
Name:
Title:
25
4
Accepted and agreed:
BGLS INC.
By_______________________
Name:
Title:
Acknowledged and agreed:
SHAWMUT BANK, N.A., Trustee
By_______________________
Name:
Title:
26
5
EXHIBIT A
Dividends received from New Valley Holdings $31,040,941
Deposit Amount 23,874,179
Interest on Securities 1,614,714
Applied to interest on
Series 2 Notes $ 5,552,048
27
May 2, 1995
AIF II, L.P.
Artemis America LLC
Mainstay High Yield Corporate
Bond Fund
Tortoise & Co.
Ladies and Gentlemen:
We have acted as special New York counsel to BGLS Inc. in
connection with letter agreements dated as of the date hereof among each of you
(or your nominee), the Company and Shawmut Bank, N.A., trustee under an
Indenture (the "Indenture") dated as of September 30, 1994 relating to 13.75%
Series 1 Senior Secured Notes due 1995 (the "Letter Agreements"). Terms
defined in the Indenture are used herein as defined therein.
In rendering the opinion expressed below, we have examined the
following agreements, instruments and other documents:
(a) the Indenture;
(b) the Pledge Agreement;
(c) the Letter Agreements; and
(d) such other documents as we have deemed necessary as a basis
for the opinion expressed below.
Based upon and subject to the foregoing and subject also to the
comments and qualifications set forth below, and having considered such
questions of law as we have deemed necessary as a basis for the opinion
expressed below, we are of the opinion that to the extent the Pledge Agreement
created a security interest in the Collateral securing the Securities, that
security interest was not affected by the call of the Securities
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for redemption on May 3, 1995, the deposit of the Redemption Price with the
Trustee or the postponement of the redemption pursuant to the Letter
Agreements.
The foregoing opinion is limited to matters involving the law of
the State of New York, and we do not express any opinion as to the laws of any
other jurisdiction.
This opinion letter is provided to you by us in our capacity as
special New York counsel to the Company and may not be relied upon by any
person or for any purpose other than in connection with the transactions
contemplated by the Letter Agreements without, in each instance, our prior
written consent.
Very truly yours,
MLW:MMI