Amend to Amended & Restated Loan Security Agrmt



 






Exhibit 4.1




LIGGETT GROUP INC.

100 Maple Lane

Mebane, North Carolina 27302




December 13, 2005




Wachovia Bank, N.A.

1133 Avenue of the Americas

New York, New York 10036





			
	          Re:	 	Amendment to Amended and Restated Loan and Security Agreement








Ladies and Gentlemen:




          Reference is made to that certain Amended and Restated Loan and Security Agreement dated as of
April 14, 2004 by and among Wachovia Bank, N.A., as successor by merger to Congress Financial
Corporation (“Lender”), Liggett Group Inc., a Delaware corporation (“Borrower”),
100 Maple LLC, a Delaware limited liability company (“Maple”) and Epic Holdings Inc., a
Delaware corporation (as amended, supplemented, renewed, extended or replaced prior to the date of
this Amendment, the “Loan Agreement”). Capitalized terms used herein shall have the
meanings assigned thereto in the Loan Agreement, unless otherwise defined herein.



          In consideration of the mutual agreements and covenants contained herein and other good and
valuable consideration, the parties hereto agree, effective as of the date hereof, as follows:



          1. All references to “Liggett Group Inc., a Delaware corporation” in the Loan Agreement are
hereby deleted and replaced by references to “Liggett Group LLC, a Delaware limited liability
company.”



          2. All references to “VGR Holding, Inc. (formerly BGLS Inc.)” and “VGR Holding, Inc.” are
hereby deleted and replaced by references to “VGR Holding LLC.”



          3. The first sentence of Section 6.3(c) of the Loan Agreement shall be and is hereby amended
in its entirety and the following is inserted in its stead:



          “(c) Borrower and all of its affiliates, subsidiaries, shareholders, directors, members,
managers, employees or agents shall, acting as trustee for Lender, receive, as the property of
Lender, any monies, checks, notes, drafts or any other payment relating to and/or proceeds of
Accounts or other Collateral which come into their possession or under their control and
immediately upon receipt thereof, shall deposit or cause the same to be deposited in the Blocked
Accounts, or remit the same or cause the same to be remitted, in kind, to Lender.”



          4. Section 8.1 of the Loan Agreement shall be and is hereby amended in its entirety and the
following is inserted in its stead:



 









 





          “Borrower is a limited liability company duly organized and in good standing under the laws of
its state of organization and is duly qualified as a foreign limited liability company and in good
standing in all states or other jurisdictions where the nature and extent of the business
transacted by it or the ownership of assets makes such qualification necessary, except for those
jurisdictions in which the failure to so qualify would not have a material adverse effect on
Borrower’s financial condition, results of operation or business or the rights of Lender in or to
any of the Collateral. The execution, delivery and performance of this Agreement, the other
Financing Agreements and the transactions contemplated hereunder and thereunder (i) are all within
Borrower’s limited liability company powers, (ii) have been duly authorized, (iii) are not in
contravention of law or the terms of Borrower’s certificate of formation, limited liability company
agreement, or other organizational documentation, or any indenture, agreement or undertaking to
which Borrower is a party or by which Borrower or its property are bound and (iv) will not result
in the creation or imposition of, or require or give rise to any obligation to grant, any lien,
security interest, charge or other encumbrance upon any property of Borrower, except as created or
otherwise permitted by this Agreement. This Agreement and the other Financing Agreements
constitute legal, valid and binding obligations of Borrower enforceable in accordance with their
respective terms, except to the extent that enforcement of certain rights and remedies may be
limited by the provisions of the United States Bankruptcy Code, as amended from time to time, or
other laws affecting the rights of creditors generally.”



          5. Section 8.2(a) of the Loan Agreement shall be and is hereby amended in its entirety and the
following is inserted in its stead:



          “The exact legal name of Borrower is as set forth in the Information Certificate. Borrower
has not, during the five years immediately prior to the date of this Agreement, been known by or
used any other name, other than Liggett Group Inc., or been a party to any merger or consolidation,
or acquired all or substantially all of the assets of any Person, or acquired any of its property
or assets out of the ordinary course of business, except as set forth in the Information
Certificate.”



          6. Section 8.12(c) of the Loan Agreement shall be and is hereby amended in its entirety and
the following is inserted in its stead:



          “The ownership interests in Borrower are directly and beneficially owned and held by the
Persons listed on Schedule 8.12 in the Information Certificate, and in each case all of such
interests have been duly authorized and are fully paid and non-assessable, free and clear of all
claims, liens, pledges and encumbrances of any kind, except as disclosed in writing to Lender prior
to the date hereof.”



          7. Sections 9.1(a) and (b) of the Loan Agreement shall be and are hereby amended in their
entirety and the following is inserted in its stead:



          “(a) Borrower shall at all times preserve, renew and keep in full force and effect its
existence and rights and franchises with respect thereto and maintain in full force and effect all
permits, licenses, trademarks, tradenames, approvals, authorizations, leases and



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contracts necessary to carry on the business as presently or proposed to be conducted;
provided, however, that Borrower shall not be required to preserve, renew or keep
in full force and effect any such right, franchise, permit, license, trademark, tradename, approval
authorization, lease or contract, or the existence of any Subsidiary (other than an Obligor), if in
the judgment of the managers of Borrower, (i) such preservation or existence is not desirable in
the conduct of business of Borrower and the Subsidiaries taken as a whole and (ii) the loss thereof
or the dissolution of such Subsidiary is not adverse in any material respect to Lender or the
Collateral.



          (b) Borrower shall not change its name unless each of the following conditions is satisfied:
(i) Lender shall have received not less than thirty (30) days prior written notice from Borrower of
such proposed change in its name, which notice shall accurately set forth the new name; and (ii)
Lender shall have received a copy of the amendment to the Certificate of Formation of Borrower
providing for the name change certified by the Secretary of State of the jurisdiction of
organization of Borrower as soon as it is available. Any change made pursuant to this Section
9.1(b) shall be deemed an amendment to the Information Certificate.”



          8. Section 9.6 of the Loan Agreement shall be and is hereby amended by striking references to
“shareholders’ equity” throughout and replacing the same with references to “members’ equity.”



          9. Section 9.11 of the Loan Agreement shall be and is hereby amended in its entirety and the
following is inserted in its stead:



          “Section 9.11. Distributions. Borrower may distribute amounts to VGR Holding LLC on account
of any member interests of Borrower provided that (i) Excess Availability for each of the
immediately preceding thirty (30) consecutive days shall have been not less than $5,000,000, (ii)
as of the date of such payment and after giving effect thereto, Excess Availability shall not be
less than $5,000,000 and (iii) as of the date of such payment and after giving effect thereto, no
Event of Default, or act, condition or event which with notice or passage of time or both would
constitute an Event of Default shall exist or have occurred.”



          10. Section 9.17(a) of the Loan Agreement shall be and is hereby amended in its entirety and
the following is inserted in its stead:



          “(a) Borrower may make distributions to VGR Holding LLC to the extent permitted under Section
9.11 or Section 9.17(d) hereof;”



          11. Section 9.17(d) of the Loan Agreement shall be and is hereby amended by striking
references to “dividends” throughout.



          12. The Information Certificate of Liggett Group Inc. delivered in connection with the Loan
Agreement shall be and is hereby amended as follows:



          (a) All references to “Liggett Group Inc.” in the Information Certificate are hereby deleted
and replaced by references to “Liggett Group LLC.”



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          (b) Paragraph 3 of the Information Certificate is hereby amended to change “corporation” to
“limited liability company.”



          (c) Section B of Schedule 8.12 to the Information Certificate is hereby amended to change
“Shareholder” to “Member” and to replace “Brooke Group Holding Inc.” with “VGR Holding LLC.”



          13. Consent and Waiver.



          (a) Lender hereby consents to the conversion of Borrower from a corporation to a limited
liability company.



          (b) Lender hereby acknowledges and agrees that Borrower’s change of name from Liggett Group
Inc. to Liggett Group LLC in connection with the conversion of Borrower from a corporation to a
limited liability company shall not be considered a breach of Section 9.1(b) of the Loan Agreement,
regardless of when notice of such proposed name change is given by Borrower to Lender. Lender
hereby waives any Event of Default that may occur as a result of Borrower providing less than
thirty (30) days prior written notice of such proposed name change.



          (c) Lender hereby acknowledges and agrees that a change in the indirect ownership of Borrower
will result from the offer to exchange 0.54 of a share of Vector Group Ltd. common stock for each
outstanding common share of New Valley Corporation and that such change does not constitute a
change in the controlling ownership of Borrower for the purposes of Section 10.1(j) of the Loan
Agreement.



          14. Representations, Warranties and Covenants. In addition to the continuing
representations, warranties and covenants heretofore or hereafter made by Borrower to Lender
pursuant to the Financing Agreements, Borrower hereby represents, warrants and covenants with and
to Lender as follows (which representations, warranties and covenants are continuing and shall
survive the execution and delivery hereof and shall be incorporated into and made a part of the
Financing Agreements):



          (a) No Event of Default exists or has occurred and is continuing on the date hereof, after
giving effect to the terms of this Amendment.



          (b) This Amendment has been duly executed and delivered by Borrower and is in full force and
effect as of the date hereof, and the agreements and obligations of Borrower contained herein
constitute the legal, valid and binding obligations of Borrower enforceable against Borrower in
accordance with its terms, except to the extent that enforcement of certain rights and remedies may
be limited by the provisions of the United States Bankruptcy Code, as amended from time to time, or
other laws affecting the rights of creditors generally.



          15. Effect of this Amendment. This Amendment shall be effective upon execution by
Lender and Borrower and contains the entire agreement of the parties with respect to the subject
matter hereof and supersedes all correspondence, memoranda, communications, discussions and
negotiations with respect thereto. Except as otherwise set forth in this



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Agreement, no existing defaults or Events of Default and no rights or remedies of Lender have
been or are being waived hereby and no changes or modifications to the Financing Agreements have
been or are being made or are intended hereby, except as expressly set forth herein, and in all
other respects the Financing Agreements are hereby specifically ratified, restated and confirmed by
all parties hereto as of the date hereof. In the event that any term or provision of this
Amendment conflicts with any term or provision of the Financing Agreements, the term or provision
of this Amendment shall control.



          16. Counterparts. This Amendment may be executed and delivered in counterparts.



	 	 	 	 	 
	 	Very truly yours,





LIGGETT GROUP INC.

 	 
	 	By:  	/s/ John R. Long
 	 
	 	 	Name:  	John R. Long 	 
	 	 	Title:  	Vice President & General Counsel 	 
	 



	 	 	 	 	 
	 	AGREED AND ACCEPTED:





WACHOVIA BANK, N.A.

 	 
	 	By:  	/s/ John Williammee, Jr.
 	 
	 	 	Name:  	John Williammee, Jr. 	 
	 	 	Title:  	Vice President 	 
	 



	 	 	 	 	 
	ACKNOWLEDGED AND AGREED:





100 MAPLE LLC

 	 
	By:  	/s/ Ronald J. Bernstein
 	 
	 	Name:  	Ronald J. Bernstein 	 
	 	Title:  	Manager 	 
	 
	EPIC HOLDINGS INC.

 	 
	By:  	/s/ Bennett P. Borko
 	 
	 	Name:  	Bennett P. Borko 	 
	 	Title:  	Vice President 	 
	 




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