Exhibit 4.1
FIRST
SUPPLEMENTAL INDENTURE
dated
as of July 15, 2008
to
that certain
INDENTURE dated as of August 16, 2007
Among
VECTOR GROUP LTD.,
THE GUARANTOR PARTIES THERETO
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee and Collateral Agent
THIS FIRST SUPPLEMENTAL INDENTURE,
dated as of July 15, 2008 (this “ Supplement
”), is entered into between VECTOR GROUP LTD., a Delaware
corporation (the “ Company ”), and U.S. Bank
National Association, as Trustee (the “ Trustee
”) and as Collateral Agent (the “ Collateral
Agent ”).
WITNESSETH
WHEREAS , the Company and the
Guarantors party thereto, the Trustee, and the Collateral Agent
have entered into that certain Indenture dated as of
August 16, 2007 (the “ Indenture ”)
pursuant to which the Company has issued 11% Senior Secured Notes
due 2015 (capitalized terms used but not defined herein shall have
the meanings assigned to such terms in the Indenture);
WHEREAS , Section 10.3
of the Indenture regarding Asset Sales excludes from its
restrictions “the sale, lease, sublease, license, sublicense,
conveyance or other disposition of products, services, inventory,
or accounts receivable and related assets (including participations
therein) in the ordinary course of business, including leases with
respect to facilities that are temporarily not in use or pending
their disposition, and any sale or other disposition of damaged,
worn-out or obsolete assets in the ordinary course of business or
any other property that is uneconomic or no longer useful to the
conduct of the business of the Company or the Guarantors, from the
provisions restricting Assets Sales in the Indenture” (the
“Ordinary Course and Non-Material Transactions”) as a
result of the Ordinary Course and Non-Material Transactions being
excluded from the definition of the term Asset Sale pursuant to
clause (4) of such definition;
WHEREAS , the Collateral
Documents provide that the Ordinary Course and Non-Material
Transactions must be expressly permitted by the Indenture (rather
than not being precluded) to allow the Company and the Guarantors
to enter into the Ordinary Course and Non-Material Transactions and
cause the release of any Liens on Collateral upon the occurrence of
any Ordinary Course and Non-Material Transaction;
WHEREAS the Company has
requested the Trustee, pursuant to this Supplement, to amend the
Indenture to expressly permit the Ordinary Course and Non-Material
Transactions and permit the automatic release of the Lien on any
Collateral in connection therewith to eliminate the inconsistency
between the Indenture and the Collateral Documents;
WHEREAS , subject to the
satisfaction of the conditions set forth in Article 2 hereof,
the Trustee and Collateral Agent is willing to consent to so
supplement the Indenture on the terms hereinafter set forth.
NOW, THEREFORE , for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company, the Trustee and the Collateral
Agent agree for the benefit of each other and for the equal and
ratable benefit of the Holders as follows:
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