EXHIBIT 10.1
NINTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS NINTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN AGREEMENT (this
"Amendment") is dated September 25, 2009, and entered into between TOR Minerals
International, Inc., a Delaware corporation ("Borrower"), and BANK OF AMERICA,
N.A., a national banking association ("Lender").
Capitalized terms used but not
defined in this Amendment have the meaning given them in the Loan Agreement
(defined below).
RECITALS
A.
Borrower and Lender entered into that certain Second Amended and
Restated Loan Agreement dated as of December 21, 2004 (as amended by First
Amendment dated December 13, 2005, Second Amendment dated November 29, 2006,
Third Amendment dated February 15, 2007, Fourth Amendment dated May 7, 2007,
Fifth Amendment dated March 19, 2008, Waiver and Sixth Amendment dated August
14, 2008, Waiver and Seventh Amendment dated November 14, 2008, Eighth Amendment
dated April 30, 2009, and as further amended, restated or supplemented the "Loan
Agreement").
B.
On or about September 25, 2009, Borrower intends to issue an
aggregate principal amount of $500,000 of its 6% Convertible Subordinated
Debentures due 2016 as unsecured obligations (the "Additional Debentures") to
X-L Investments, a Texas general partnership, Five Star Investments, a Texas
general partnership, Thomas Pauken, Ida Pauken, William Solemene and Stanley F.
Bedell.
C.
Borrower and Lender have agreed to amend the Loan Agreement, subject
to the terms and conditions of this Amendment.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the undersigned hereby agree as follows:
1.
AMENDMENTS TO LOAN AGREEMENT.
(A)
SECTION 1.U OF THE LOAN AGREEMENT IS AMENDED TO DELETE THE DEFINITION OF
REVOLVING COMMITTED AMOUNT IN ITS ENTIRETY AND TO REPLACE IT WITH THE FOLLOWING:
"REVOLVING COMMITTED AMOUNT MEANS $2,250,000."
(B)
THE LOAN AGREEMENT IS AMENDED TO EXTEND THE MATURITY DATE OF REVOLVING
NOTE TO FEBRUARY 15, 2010, BY DELETING THE FIRST SENTENCE OF SECTION 2.A AND
REPLACING IT WITH THE FOLLOWING:
"LENDER AGREES TO ESTABLISH A REVOLVING LINE OF CREDIT FOR LOANS TO BE MADE TO
BORROWER, WHICH SHALL BE EVIDENCED BY THE PROMISSORY NOTE MATURING FEBRUARY 15,
2010 (OR EARLIER IF LENDER'S COMMITMENT TO MAKE LOANS UNDER THE REVOLVING NOTE
IS OTHERWISE CANCELLED OR TERMINATED IN ACCORDANCE WITH SECTION 7 OF THIS
AGREEMENT OR OTHERWISE), WHICH IS SUBSTANTIALLY IN THE FORM ATTACHED AS EXHIBIT
A-1, TO WHICH REFERENCE IS MADE FOR ALL PURPOSES (THE "REVOLVING NOTE").
2.
MANDATORY PREPAYMENT AND CONSENT.
IN ACCORDANCE WITH SECTION 2
OF THE EIGHTH AMENDMENT TO THE LOAN AGREEMENT DATED APRIL 30, 2009, ALL PROCEEDS
RECEIVED BY THE BORROWER FROM THE ISSUANCE OF THE ADDITIONAL DEBENTURES SHALL BE
IMMEDIATELY REMITTED TO LENDER.
BORROWER COVENANTS AND AGREES THAT THE
ADDITIONAL DEBENTURES SHALL NOT BE ISSUED UNLESS AND UNTIL A SUBORDINATION
AGREEMENT IS EXECUTED AMONG BORROWER, THE HOLDERS OF THE ADDITIONAL DEBENTURES,
AND LENDER, IN FORM AND SUBSTANCE SATISFACTORY TO LENDER, IN ITS SOLE
DISCRETION, AND LENDER APPROVES OF THE TERMS AND CONDITIONS OF THE DEFINITIVE
ADDITIONAL DEBENTURES AND THE RELATED SUBORDINATED DEBT DOCUMENTS, IN