EXHIBIT 10.1
AMENDMENT NO. 2 TO LOAN AGREEMENT
AMENDMENT NO. 2 dated as of August 31, 2001 to Loan Agreement,
dated as of February 8, 2001, as amended, between LADENBURG XXXXXXXX FINANCIAL
SERVICES INC. (f/k/a GBI CAPITAL MANAGEMENT CORP.) and FROST-NEVADA, LIMITED
PARTNERSHIP ("Loan Agreement").
WHEREAS, the Borrower entered into a Stock Purchase Agreement
("Stock Purchase Agreement"), dated February 8, 2001, as amended, 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 entered into the Loan
Agreement, dated as of February 8, 2001, as amended, pursuant to which the
Lender provided certain funds to the Borrower that were used in the Stock
Purchase Agreement by the Borrower; and
WHEREAS, the Borrower has entered into an Amendment No. 2 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 and Lender Note 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. 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, $1.5390594. The Conversion Price shall be decreased
("Conversion Price Adjustment") from time to time as set forth in the Stock
Purchase Agreement, as amended, by the amount obtained by taking the product of
$1.5390594 and the Final 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."
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. 2 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. 2 shall be or
become illegal or unenforceable under any law, the other provisions shall remain
in full force and effect.
4. This Amendment No. 2 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. 2 by telecopier shall be
effective as delivery of a manually executed counterpart of this Amendment No.
2.
IN WITNESS WHEREOF, the parties have executed this Amendment No. 2 as
of the date first above written.
LADENBURG XXXXXXXX FINANCIAL SERVICES INC.
(f/k/a GBI CAPITAL MANAGEMENT CORP.)
/s/ Xxxxxx X. Xxxxx
By:
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Name: Xxxxxx X. Xxxxx
Title: President and Chief Executive Officer
Telecopier No.: 000-000-0000
FROST-NEVADA, LIMITED PARTNERSHIP
By: Frost-Nevada Corporation, General Partner
/s/ Xxxxx Xxxxxxxxx
By:
-------------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
Telecopier No.: 000-000-0000
