Exhibit 10(n)(1)
AMENDMENT
TO
PURCHASE AND CONTRIBUTION AGREEMENT
AMENDMENT TO PURCHASE AND CONTRIBUTION AGREEMENT (this
"AMENDMENT") dated as of February 28, 2002 between Ferro Corporation, an Ohio
corporation, and Ferro Electronic Materials, Inc., a Delaware corporation
(collectively, the "SELLERS") and Ferro Finance Corporation, an Ohio corporation
(the "PURCHASER").
PRELIMINARY STATEMENTS.
(A) The Sellers and the Purchaser entered into a Purchase and
Contribution Agreement dated as of September 28, 2000, as amended by that
certain letter amendment dated as of July 31, 2001 (the "PCA"). Terms not
defined herein are used as defined in the PCA.
(B) The parties hereto desire to supplement and amend certain
provisions of the PCA.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. AMENDMENTS TO PCA. Upon effectiveness of this
Amendment, as provided in Section 2 below, the PCA is hereby amended as follows:
(a) The following new definitions are added in Section 1.01,
in proper alphabetical order:
"DAILY REPORT" means a report in form and substance satisfactory to the
Purchaser, furnished by the Collection Agent to the Purchaser pursuant
to the second sentence of Section 6.02(b).
"MONTHLY REPORT" means a report in form and substance satisfactory to
the Purchaser, furnished by the Collection Agent to the Purchaser
pursuant to the first sentence of Section 6.02(b).
"NON-INVESTMENT GRADE EVENT" means any of the long term public senior
unsecured non-credit-enhanced debt securities of Ferro Corporation are
rated below BBB- by S&P or Baa3 by Moody's, or if Ferro Corporation
does not have long term public senior unsecured non-credit-enhanced
debt ratings from both S&P and Moody's, Ferro Corporation is judged by
the Agent, in its sole discretion, to be of credit quality below (with
respect to each missing rating) BBB- by S&P or Baa3 by Moody's.
(b) The definition of "Seller Report" in Section 1.01 is
amended in its entirety to read as follows:
"SELLER REPORT" means a Monthly Report or a Daily Report.
(c) The definition of "Special Event" in Section 1.01 is
deleted.
(d) Section 3.02(b) is hereby deleted in its entirety and
replaced to read as follows:
(b) with respect to any such Purchase, on or prior to the date of such
Purchase, the Collection Agent shall have delivered to the Purchaser,
in form and substance satisfactory to the Purchaser, a completed
Monthly Report or Daily Report for the most recently ended reporting
period for which information is required pursuant to Section 6.02(b),
and containing such additional information as may reasonably be
requested by the Purchaser;
(e) The words "Seller Report" in Section 6.02(b) are replaced
with the words "Monthly Report".
(f) Section 6.02(c) is amended by deleting the term "Special
Event" in the first line thereof.
(g) Section 6.04(b) is amended by replacing the term "Special
Event" in the third line thereof with the term "Non-Investment Grade Event".
(h) A new sentence is added at the end of Section 6.02(b)
reading as follows:
If a Non-Investment Grade Event shall have occurred and be continuing,
by no later than 11:00 A.M. (New York City time) on each Business Day,
the Collection Agent shall prepare and forward to the Purchaser or its
designee a Daily Report which shall contain information relating to the
Receivables current as of the close of business on the immediately
prior Business Day.
(i) Section 7.01(a) is amended in its entirety to read as
follows:
(a) The Collection Agent (if Ferro Corporation or any of its
Affiliates) (i) shall fail to perform or observe any term, covenant or
agreement under this Agreement (other than as referred to in clauses
(ii), (iii) or (iv) of this subsection (a)) and such failure shall
remain unremedied for five Business Days, or (ii) shall fail to make
when due any payment or deposit to be made by it under this Agreement,
or (iii) shall fail to deliver any Monthly Report when due and such
failure shall remain unremedied for three Business Days, or (iv) shall
fail to deliver any Daily Report when due and such failure shall remain
unremedied for more than one Business Day, or shall fail to deliver
when due more than two Daily Reports in any calendar week; or
SECTION 2. EFFECTIVENESS. This Amendment shall become
effective at such time that executed counterparts of this Amendment have been
delivered by each party hereto to the other parties hereto and Citicorp North
America, Inc. has executed and delivered the consent on the signature page
hereto.
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SECTION 3. REPRESENTATIONS AND WARRANTIES. Each Seller makes,
as to itself, each of the representations and warranties contained in Section
4.01 of the PCA (after giving effect to this Amendment), and for the purpose of
making such representations and warranties, (i) each reference in Section 4.01
of the PCA to "the Agreement" shall include this Amendment, (ii) the reference
in Section 4.01(f) to Ferro Corporation and its subsidiaries' balance sheets and
related statements of income and retained earnings shall be deemed to refer to
Ferro Corporation and its subsidiaries' balance sheets and related statements of
income and retained earnings for the quarter ended September 30, 2001 and (iii)
the bring-down on no material adverse change in Section 4.01(f) shall run from
September 30, 2001.
SECTION 4. CONFIRMATION OF PCA. Each reference in the PCA to
"this Agreement" or "the Agreement" shall mean the PCA as amended by this
Amendment, and as hereafter amended or restated. Except as herein expressly
amended, the PCA is ratified and confirmed in all respects and shall remain in
full force and effect in accordance with its terms.
SECTION 5. EXECUTION IN COUNTERPARTS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement. Delivery of an executed counterpart of a signature page
to this Amendment by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 6. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK (WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the undersigned parties have caused this
Amendment to be duly executed by their authorized officers thereunto duly
authorized, as of the date first above written.
SELLER: FERRO CORPORATION
By: /s/ D. Thomas George
-----------------------------------
Name: D. Thomas George
Title: Treasurer
SELLER: FERRO ELECTRONIC MATERIALS, INC.
By: /s/ David G. Camopiano
--------------------------
Name: David G. Camopiano
Title: Vice President
PURCHASER: FERRO FINANCE CORPORATION
By: /s/ D. Thomas George
-----------------------------------
Name: D. Thomas George
Title: Treasurer
Pursuant to Section 5.01(m) of the Sale Agreement,
Citicorp North America, Inc., as Agent under the
Sale Agreement, consents to the foregoing
Amendment to Purchase and Contribution
Agreement.
CITICORP NORTH AMERICA, INC., as Agent
By: /s/ Marc B. Adelman
--------------------------------------------
Name: Marc B. Adelman
Title: Vice President
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CONFIRMATION OF UNDERTAKING AGREEMENT
February 28, 2002
The undersigned, as undertaking party under the Undertaking
Agreement, dated September 28, 2000, in favor of Ferro Finance Corporation,
hereby consents to the foregoing Amendment to Purchase and Contribution
Agreement dated as of February 28, 2002 (the "AMENDMENT AGREEMENT") to the
Purchase and Contribution dated as of September 28, 2000, as amended by that
certain letter amendment dated as of July 31, 2001 and hereby confirms and
agrees that, notwithstanding the effectiveness of such Amendment Agreement, the
Undertaking Agreement heretofore executed and delivered by it is, and shall
continue to be, in full force and effect and shall apply to the Purchase and
Contribution Agreement as amended by said Amendment Agreement, and the
Undertaking Agreement is hereby ratified and confirmed.
FERRO CORPORATION
By: /s/ D. Thomas George
----------------------------------------
Name: D. Thomas George
Title: Treasurer
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