Exhibit 10.1
AMENDMENT NO. 1 TO LOAN AGREEMENT
AMENDMENT NO. 1 dated as of April 25, 2001 to Loan Agreement, dated as
of February 8, 2001, between GBI CAPITAL MANAGEMENT CORP. and FROST-NEVADA,
LIMITED PARTNERSHIP ("Loan Agreement").
WHEREAS, the Borrower had entered into a Stock Purchase Agreement
("Stock Purchase Agreement"), dated February 8, 2001, among the Borrower, New
Valley Corporation ("New Valley"), Ladenburg, Xxxxxxxx Group Inc. ("LTGI"),
Berliner Effektengesellschaft AG ("Berliner") and Ladenburg, Xxxxxxxx & Co. Inc.
("Ladenburg"); and
WHEREAS, the Borrower and Lender had entered into the Loan Agreement,
dated as of February 8, 2001, pursuant to which the Lender was to provide
certain funds to the Borrower to be used in the Stock Purchase Agreement by the
Borrower; and
WHEREAS, the Borrower has entered into an amendment to the Stock
Purchase Agreement, dated as of the date hereof, among the Borrower, New Valley,
LTGI, Berliner and Ladenburg; and
WHEREAS, the Borrower and Lender desire to similarly amend the Loan
Agreement in certain respects as set forth herein (capitalized terms used herein
that are defined in the Loan Agreement or Lender Note shall have the same
meanings herein as in the Loan Agreement and Lender Note);
IT IS AGREED:
1. Section 1.1 of the Loan Agreement is hereby amended in its entirety
to read as follows:
"1.1 Commitment and Loan. (a) Subject to the terms and conditions of
this Agreement, at the request of Borrower, Lender agrees to lend to Borrower
the aggregate sum of Ten Million Dollars ($10,000,000) (the "Commitment").
Lender shall advance the funds due under the Commitment to Borrower (the "Loan")
concurrently with, and subject to, the closing ("Closing") of the transactions
contemplated by that certain Stock Purchase Agreement dated February 8, 2001, as
amended, among Borrower, New Valley Corporation, Ladenburg, Xxxxxxxx Group Inc.
("LTGI"), Ladenburg, Xxxxxxxx & Co. Inc. ("Ladenburg") and Berliner (the "Stock
Purchase Agreement")."
2. The first paragraph of Section 1 of the Lender Note is hereby
amended in its entirety to read as follows:
"1. Conversion of Note
The principal of and accrued interest on this Note shall be
convertible, in whole or in part, at any time, at the election of the Holder,
into that number of fully paid and non-assessable shares of the Maker's common
stock, par value $0.0001 per share ("Common Stock"), determined by dividing the
amount of principal and interest to be so converted by the "Conversion Price"
(as hereinafter defined) in effect at the time notice of conversion is given to
the Maker as set forth below. As used herein, "Conversion Price" means,
initially, $2.00. Promptly following the Closing of the Stock Purchase
Agreement, the Conversion Price shall be decreased ("Conversion Price
Adjustment") by the amount obtained by taking the product of $2.00 and the
Purchase Price Adjustment Percentage (as such term is defined in the Stock
Purchase Agreement, as amended). Notwithstanding the foregoing, if the
Conversion Price, after adjustment as set forth in the previous sentence, would
not yield a number of shares of Common Stock equal to at least the sum of (x)
5,000,000 shares of Common Stock and (y) 20% of the sum of (i) the additional
shares issuable to Lender as a result of the Conversion Price Adjustment and
(ii) all other shares of Common Stock to be issued and issuable to LTGI and
Berliner pursuant to Section 2.4 of the Stock Purchase Agreement, the Conversion
Price will be further adjusted such that Lender, upon conversion of this Note,
will receive such sum of 5,000,000 shares of Common Stock and 20% of the total
number of additional shares issuable as a result of the Conversion Price
Adjustment and Section 2.4 of the Stock Purchase Agreement.
If, at any time after the date hereof, there occurs, with respect
to the Common Stock, a reclassification, stock split, stock dividend, spin-off
or distribution, share combination or other similar change affecting the Common
Stock as a whole and all holders thereof or if the Maker shall consolidate with,
or merge with or into, any other entity, sell or transfer all or substantially
all its assets or engage in any reorganization, reclassification or
recapitalization which is effected in such a manner that the holders of Common
Stock are entitled to receive stock, securities, cash or other assets with
respect to or in exchange for Common Stock (each, an "Adjustment Event"), the
Conversion Price and the kind and amount of stock, securities, cash or other
assets issuable upon conversion of this Note in effect at the time of the record
date for such dividend or distribution or of the effective date of such share
combination, split, consolidation, merger, sale, transfer, reorganization,
reclassification or recapitalization shall be appropriately adjusted so that the
conversion of the Note after such time shall entitle the Holder to receive the
aggregate number of shares of Common Stock or securities, cash and other assets
which, if this Note had been converted immediately prior to such time, the
Holder would have owned upon such conversion and been entitled to receive by
virtue of such Adjustment Event, provided that if the kind or amount of
securities, cash and other property is not the same for each share of Common
Stock held immediately prior to such reclassification, change, consolidation,
merger, sale, transfer, or conveyance, any Holder who fails to exercise any
right of election shall receive per share the kind and amount of securities,
cash or other property received per share by a plurality of such shares."
3. As amended hereby, the Loan Agreement shall continue in full force
and effect. All references to the "Agreement" shall hereafter mean as amended
hereby. This Amendment No. 1 and the rights and obligations of the parties
hereunder shall be governed by, and construed and interpreted in accordance
with, the law of the State of New York. BORROWER, IN ANY LITIGATION IN WHICH
LENDER SHALL BE AN ADVERSE PARTY, WAIVES TRIAL BY JURY, WAIVES THE RIGHT TO
CLAIM THAT A FORUM SPECIFIED HEREIN IS AN INCONVENIENT FORUM AND WAIVES THE
RIGHT TO INTERPOSE ANY SETOFF, DEDUCTION OR COUNTERCLAIM OF ANY NATURE OR
DESCRIPTION AND CONSENTS TO THE JURISDICTION OF THE COURTS (CITY, STATE AND
FEDERAL) LOCATED IN XXX XXXX, XXXXXX XXX XXXXX XX XXX XXXX AND TO SERVICE OF
PROCESS BY REGISTERED MAIL ADDRESSED TO BORROWER AT THE ADDRESS SET FORTH ABOVE
OR SUCH OTHER ADDRESS AS BORROWER SHALL NOTIFY LENDER IN WRITING IS TO BE USED
FOR SUCH PURPOSE. If any of the provisions of this Amendment No. 1 shall be or
become illegal or unenforceable under any law, the other provisions shall remain
in full force and effect.
4. This Amendment No. 1 may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto were upon the same instrument. Delivery of an executed counterpart of a
signature page of this Amendment No. 1 by telecopier shall be effective as
delivery of a manually executed counterpart of this Amendment No. 1.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1 as
of the date first above written.
GBI CAPITAL MANAGEMENT CORP.
By: /s/ Xxxxxxx Xxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxx
Title: President
Telecopier No.: 000-000-0000
FROST-NEVADA, LIMITED PARTNERSHIP
By: Frost-Nevada Corporation, General Partner
By: /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President
Telecopier No.: 000-000-0000
