Exhibit 10.21(d)
AMENDMENT (this "Amendment"), dated
as of September 1, 2001, to the CREDIT
AGREEMENT dated as of March 17, 1999 by and
among MINERAL HOLDINGS INC. ("Holdings"),
WORLD MINERALS INC. (the "Borrower"), THE
BANKS listed on the signature pages attached
hereto (the "Banks"), and THE CHASE
MANHATTAN BANK, as Administrative Agent and
Collateral Agent for the Banks and as an
Issuing Bank ("Chase").
WHEREAS, Holdings, the Borrower, the Banks and Chase are parties to
that certain Credit Agreement dated as of March 17, 1999 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement");
WHEREAS, Holdings and the Borrower desire to adopt the World
Minerals Inc. 2001 Stock Option Plan, which will provide for the issuance to
employees of the Borrower and its Subsidiaries of options to purchase an
aggregate of up to 5% of the number of outstanding shares of common stock of
Holdings (the "2001 Stock Option Plan");
WHEREAS, Holdings and the Borrower have requested that the Banks
agree to amend the Credit Agreement as set forth herein to permit the
implementation of the 2001 Stock Option Plan by the Borrower and Holdings;
WHEREAS, the Banks are willing to grant such amendments as requested
by the Borrower, but only to the extent provided in this Amendment.
ACCORDINGLY, in consideration of the premises and the mutual
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Section 1. Defined Terms.
Capitalized terms used and not otherwise defined in this Amendment
shall have the meanings given to them in the Credit Agreement.
Section 2. Amendments.
(a) Section 1.1 is hereby amended by adding the following new
defined terms in proper alphabetical sequence:
""Holdings Recapitalization" means the recapitalization of Holdings
to provide for an increase in the authorized number of shares of common stock of
Holdings from 200,000 shares to 2,000,000 shares, the reduction in the par value
of each share of common stock of Holdings from $1.00 to $.10, and the related
conversion of each share of common stock of Holdings outstanding immediately
prior to the recapitalization into 10 shares of common stock of Holdings."
""Holdings Recapitalization Date" means the effective date of the
Holdings Recapitalization."
""2001 Stock Option Plan" means World Minerals Inc. 2001 Stock
Option Plan, which will provide for the issuance to employees of the Borrower
and its Subsidiaries of options to purchase an aggregate of up to 5% of the
number of outstanding shares of common stock of Holdings."
(b) The definition of "Asset Sale" in Section 1.1 of the Credit
Agreement is hereby amended by deleting the word "or" at the end of clause (ii)
and inserting the following immediately before the end of the definition:
", (iv) the issuance or sale by Holdings to the Borrower of shares
of common stock of Holdings to the extent required in order for the Borrower to
be able to deliver shares of common stock of Holdings upon exercise of options
granted under the 2001 Stock Option Plan, or (v) the issuance or sale by the
Borrower of shares of common stock of Holdings upon exercise of options granted
under the 2001 Stock Option Plan."
(c) The definition of "Lien" in Section 1.1 of the Credit Agreement
is hereby amended by amending and restating clause (c) thereof to read in its
entirety as follows:
"(c) in the case of securities, any purchase option, call,
appreciation right or similar right of a third party with respect to such
securities, other than purchase options held by persons granted options to
purchase shares of common stock of Holdings under the 2001 Stock Option Plan."
(d) The definition of "Permitted Investments" in Section 1.1 of the
Credit Agreement is hereby amended by deleting the word "and" at the end of
clause (iv) and inserting the following immediately before the end of the
definition:
" and (vi) investments made by the Borrower in shares of common
stock of Holdings to the extent required in order for the Borrower to be able to
deliver shares of common stock of Holdings upon exercise of options granted
under the 2001 Stock Option Plan."
(e) Section 4.20 of the Credit Agreement is hereby amended by
amending and restating clause (a) thereof to read in its entirety as follows:
"(a) Prior to the Holdings Recapitalization Date, the authorized
capital stock of Holdings consists of 200,000 shares of common stock, $1.00 par
value, and 1,700 shares of preferred stock, $1.00 par value, of which 101,568
shares of common stock are validly issued, fully paid and nonassessable and are
outstanding and owned beneficially and of record as follows: 96,601 shares --
Alleghany Corporation; 4,967 shares -- Xxxxxxx X. Xxxxx, Xx. From and after the
Holdings Recapitalization Date, the authorized capital stock of Holdings
consists of 2,000,000 shares of common stock, $.10 par value, and 1,700 shares
of preferred stock, $1.00 par value, of which 1,015,680 shares of common stock
are validly issued, fully paid and nonassessable and are outstanding and owned
beneficially and of record as follows: 966,010 shares -- Alleghany Corporation;
49,670 shares -- Xxxxxxx X. Xxxxx, Xx. Except for the options held by Xxxxxxx X.
Xxxxx, Xx. and except for options granted under the 2001 Stock Option Plan, no
Person holds any option, warrant, stock subscription or other right to acquire
any capital stock of Holdings and no securities convertible into or exchangeable
for any capital stock of Holdings have been authorized or issued."
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(f) Section 7.3 of the Credit Agreement is hereby amended by
deleting the word "and" at the end of clause (ii) and inserting the following
immediately after clause (iii):
", (iv) the Borrower shall be authorized to purchase shares of
common stock of Holdings acquired by employees of the Borrower or its
Subsidiaries upon exercise of options granted under the 2001 Stock Option Plan,
provided that such purchases are made in accordance with the terms of the 2001
Stock Option Plan and the related award agreements, and
(v) the Borrower shall be authorized to purchase from Holdings
shares of common stock of Holdings to the extent required in order for the
Borrower to be able to deliver shares of common stock of Holdings upon exercise
of options granted under the 2001 Stock Option Plan."
Section 3. Effectiveness.
Upon execution and delivery of this Amendment by Holdings, the
Borrower and the Majority Banks, this Amendment shall be deemed to be effective
as of September 1, 2001 (the "Effective Date").
Section 4. Representations and Warranties.
In order to induce the Banks to enter into this Amendment, Holdings
and the Borrower each hereby represents, warrants and certifies to each Bank
that, after giving effect to this Amendment:
(a) Each Loan Party is in compliance with the terms and provisions
of the Credit Agreement and each other Loan Document to which it is a party.
(b) No Default or Event or Default has occurred and is continuing or
would result from the consummation of any of the transactions contemplated
hereby.
(c) The representations and warranties made by each of Holdings and
the Borrower in the Credit Agreement are true and correct on and as of the date
hereof with the same force and effect as if made on and as of such date (or, if
any such representation or warranty is expressly stated to have been made as of
a specific date, as of such specific date).
Section 5. Miscellaneous.
(a) Amendment as Loan Document, Etc. The parties hereby agree that
this Amendment shall be a Loan Document for all purposes under the Credit
Agreement. From and after the Effective Date, all references in the Credit
Agreement and each of the other Loan Documents to the Credit Agreement shall be
deemed to be references to the Credit Agreement as amended hereby.
(b) No Other Amendments. Except as expressly set forth herein, the
Credit Agreement remains in full force and effect in accordance with its terms
and nothing contained herein shall be deemed (i) to be a waiver, amendment,
modification or other change of any term, condition or provision of the Credit
Agreement or any other Loan Document (or a consent to any such waiver,
amendment, modification or other change), (ii) to be a consent to any
transaction, (iii) to prejudice any right or rights which any Lender Party may
have under the Credit
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Agreement and/or any of the other Loan Documents, or (iv) to entitle the Lender
Parties (or any of them) to a waiver, amendment, modification or other change of
any term, condition or provision of the Credit Agreement or any other Loan
Document (or a consent to any such waiver, amendment, modification or other
change), or to a consent, in the future in similar or different circumstances.
(c) Further Assurances. Holdings and the Borrower agree to do such
further acts and things, and to execute and deliver such additional conveyances,
assignments, agreements and instruments, as the Administrative Agent may at any
time reasonably request in connection with the administration and enforcement of
this Amendment or in order to better assure and confirm unto each of the Lender
Parties its rights and remedies hereunder and to permit the exercise thereof in
compliance with Applicable Law (including upon an Event of Default).
(d) Payment of Expenses. The Borrower hereby confirms its agreement
under Section 11.4 of the Credit Agreement to pay all fees and expenses of
X'Xxxxxxxx LLP incurred by the Administrative Agent in connection with or
relating to the preparation, execution or delivery of this Amendment.
(e) Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall constitute an original instrument, but all of
which when taken together shall constitute but one Amendment.
(f) Governing Law. This Amendment shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New York
(without giving effect to principles of conflicts of law), as provided in
Section 11.6 of the Credit Agreement.
(g) Notices. All notices, demands and requests of any kind to be
delivered to any party hereto in connection with this Amendment shall be
delivered in accordance with the notice provisions contained in the Credit
Agreement.
(h) Headings. The headings used herein are for convenience of
reference only and shall not affect the construction of, nor shall they be taken
into consideration in interpreting, this Amendment.
* * * * *
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the
day and year first above written.
MINERALS HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WORLD MINERALS INC.
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent and
Collateral Agent
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Managing Director
BANK OF AMERICA NATIONAL TRUST &
SAVINGS ASSOCIATION
By:
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Name:
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ R. Xxxx Xxxxxxxx
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Name: R. Xxxx Xxxxxxxx
Title: CBO
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
UNITED CALIFORNIA BANK
By:
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Name:
Title:
BNP PARIBOS
By: /s/ Xxxx Xxxxxx
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Name: Xxxx Xxxxxx
Title: Managing Director
By: /s/ Tjetling Torpstra
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Name: Tjetling Torpstra
Title: Director
BANK OF MONTREAL
By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
Title: Director
MELLON BANK, N.A.
By:
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Name:
Title:
INTESABCI, New York Branch
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ X. Xxxxxxxxx
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Name: X. Xxxxxxxxx
Title: VP
BANK LEUMI USA
By:
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Name:
Title:
