exv10w1






EXHIBIT 10.1




EXECUTION COPY




FIRST AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT,

AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT AND AMENDED AND

RESTATED SUBSIDIARY GUARANTY (DOMESTIC)




This FIRST AMENDMENT, dated as of April 4, 2011 TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT, AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT AND AMENDED AND RESTATED SUBSIDIARY
GUARANTY (DOMESTIC) (this “Amendment”), is entered into by and among FERRO CORPORATION, an
Ohio corporation (the “Company”), the Subsidiaries of the Company listed on the signature
pages hereto, the several banks and other financial institutions or entities listed on the
signature pages hereto as Lenders, and PNC BANK, NATIONAL ASSOCIATION, as administrative agent (in
such capacity, the “Administrative Agent”) and collateral agent (in such capacity, the
“Collateral Agent”). Capitalized terms used but not defined herein shall have the meanings
assigned to such terms in the Credit Agreement, the Security Agreement and the Guaranty (each as
defined below), as applicable.



WITNESSETH:




WHEREAS, the Company, the Lenders from time to time party thereto, the Administrative Agent,
the Collateral Agent, the Issuer and the Syndication Agents have entered into the Third Amended and
Restated Credit Agreement, dated as of August 24, 2010 (as amended, restated, supplemented, waived
or otherwise modified prior to the date hereof, the “Credit Agreement”);



WHEREAS, the Grantors and the Collateral Agent have entered into the Amended and Restated
Pledge and Security Agreement, dated as of August 24, 2010 (as amended, restated, supplemented,
waived or otherwise modified prior to the date hereof, the “Security Agreement”);



WHEREAS, the Guarantors and the Collateral Agent have entered into the Amended and Restated
Subsidiary Guaranty (Domestic) dated as of August 24, 2010 (as amended, restated, supplemented,
waived or otherwise modified prior to the date hereof, the “Guaranty”);



WHEREAS, the Company has requested that the Credit Agreement, the Security Agreement and the
Guaranty be amended as more fully set forth herein; and



WHEREAS, the Lenders signing below, constituting at least the Required Lenders, are willing to
amend the Credit Agreement and to authorize and direct the Administrative Agent and the Collateral
Agent to amend the Security Agreement and the Guaranty on the terms and subject to the conditions
set forth herein.


 


 









 





NOW, THEREFORE, the parties hereto hereby agree and covenant as follows:



SECTION 1. Amendments.



(a) Section 1.1 of the Credit Agreement shall be amended by amending and restating the
definition of “Cash Management Obligations” as follows:




“Cash Management Obligations” means (a) obligations owed by the Company or
any Subsidiary to any Cash Management Bank in respect of or in connection with
any Cash Management Services and which has been designated by such Cash
Management Bank and the Company, by notice to the Administrative Agent and the
Collateral Agent not later than 90 days after such Cash Management Bank begins
providing such Cash Management Services, as Cash Management Obligations or (b)
obligations in respect of Indebtedness of the type described in Section 7.2.2(h)
owed to any Person that at the time such Indebtedness was entered into was the
Administrative Agent, the Collateral Agent, a Joint Lead Arranger, a Joint
Bookrunner, a Lender or any Affiliate of any of the foregoing, and which has
been designated by such Person and the Company, by notice to the Administrative
Agent and the Collateral Agent not later than 90 days after the execution and
delivery of the agreement evidencing such Indebtedness, as Cash Management
Obligations; provided that in the case of both clauses (a) and (b) hereof, the
designation of any obligations as Cash Management Obligations shall not create
in favor of any Cash Management Bank or such Person described in clause (b) any
rights in connection with the management or release of any Collateral or of the
obligations of any Guarantor under this Agreement or any other Loan Document.
Notwithstanding any failure by the applicable Person and the Company to deliver
notice to the Administrative Agent and the Collateral, as of the First Amendment
Effective Date (as defined in the First Amendment dated as of April 4, 2011 to
this Agreement), (i) the Persons set forth on Schedule A to such First Amendment
shall be deemed to be Cash Management Banks providing Cash Management Services
constituting “Cash Management Obligations” and (ii) the obligations in respect
of the agreements set forth on Schedule B to such First Amendment shall be
deemed to constitute “Cash Management Obligations”.



(b) Section 1.1 of each of the Security Agreement and the Guaranty shall be amended by:
amending and restating the definition of “Cash Management Obligations” as follows:




“Cash Management Obligations” means (a) obligations owed by the Company or
any Subsidiary to any Cash Management Bank in respect of or in connection with
any Cash Management Services and which has been designated by such Cash
Management Bank and the Company, by notice to the Administrative Agent and the
Collateral Agent not later than 90 days after such Cash Management Bank begins
providing such Cash Management Services, as Cash Management Obligations or (b)
obligations in respect of Indebtedness of the type described in Section 7.2.2(h)
of the Credit Agreement owed to any Person that at the time such Indebtedness
was entered into was the Administrative Agent, the Collateral Agent, a Joint
Lead Arranger, a Joint Bookrunner, a Lender or any Affiliate of any of the
foregoing, and which has been designated by such Person and the Company, by
notice to the Administrative Agent and the Collateral Agent not later than 90
days after the execution and delivery of the agreement evidencing such
Indebtedness, as Cash Management Obligations; provided that in the case of both
clauses (a) and (b) hereof, the designation of any obligations as Cash
Management Obligations shall not create in favor of any Cash Management Bank or
such Person described in clause (b) any rights in connection with the management
or release of any Collateral or of the obligations of any Guarantor under this
Agreement or any other Loan Document. Notwithstanding any failure by the
applicable Person and the Company to deliver notice to the Administrative Agent
and the Collateral, as of the First Amendment Effective Date (as defined in the
First Amendment dated as of April 4, 2011 to the Credit Agreement), (i) the
Persons set forth on Schedule A to such First Amendment shall be deemed to be
Cash Management Banks providing Cash Management Services constituting “Cash
Management Obligations” and (ii) the obligations in respect of the agreements
set forth
on Schedule B to such First Amendment shall be deemed to constitute “Cash Management
Obligations”.


 


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SECTION 2. Conditions to Effectiveness. The effectiveness of this Amendment is
subject to the satisfaction of the following conditions (the date on which such conditions are
satisfied, the “First Amendment Effective Date”):



(a) The Administrative Agent shall have received duly executed and delivered counterparts of
this Amendment that, when taken together, bear the signatures of (i) the Company, (ii) the
Grantors, (iii) the Guarantors, (iv) the Administrative Agent, (v) the Collateral Agent and (vi)
the Required Lenders.



(b) The Company shall have paid to the Administrative Agent all outstanding fees, costs and
expenses owing to the Administrative Agent and its Affiliates as of such date, except that the
Company shall pay the reasonable fees, disbursements and other charges of Latham & Watkins LLP,
counsel for the Administrative Agent, within seven days following receipt of an invoice therefor
and such payment shall not constitute a condition to the occurrence of the First Amendment
Effective Date.



(c) The Administrative Agent shall have received a certificate, dated as of the First
Amendment Effective Date, duly executed and delivered by an Authorized Officer of the Company, as
to the matters described in Section 3(a)(ii) and Section 3(a)(iii) of this Amendment.



SECTION 3. Miscellaneous.



(a) Representations and Warranties. To induce the other parties hereto to enter into
this Amendment, the Company, the Grantors and the Guarantors represent and warrant to each of the
Lenders, the Administrative Agent and the Collateral Agent that, as of the First Amendment
Effective Date:




(i) This Amendment has been duly authorized, executed and delivered by the
Company, the Grantors and the Guarantors, and this Amendment, the Credit Agreement, the
Security Agreement and the Guaranty (in each case after giving effect to this Amendment)
constitute the Company’s, each Grantor’s and each Guarantor’s, as applicable, legal, valid
and binding obligation, enforceable against it in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law;




(ii) The representations and warranties set forth in the Credit Agreement and
each other Loan Document are, in each case after giving effect to this Amendment, true and
correct in all material respects on and as of the First Amendment Effective Date, except to
the extent such representations and warranties expressly relate to an earlier date, in which
case they were true and correct in all material respects as of such earlier date;




(iii) No Default has occurred and is continuing; and




(iv) The execution, delivery and performance by the Company, each Grantor and
each Guarantor of this Amendment do not (x) contravene any (A) such Person’s Organic
Documents, (B) court decree or order binding on or affecting any such Person or (C) law or
governmental regulation binding on or affecting any such Person or (y) result in (A) or
require the creation or imposition of, any Lien on any such Person’s properties (except as
permitted by the Credit Agreement) or (B) a default under any contractual restriction
binding on or affecting any such Person.


 


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(b) Affirmation and Consent. The Company, each Grantor and each Guarantor hereby
reaffirms, as of the First Amendment Effective Date, (i) the covenants and agreements made by such
Person contained in each Loan Document to which it is a party, (ii) with respect to each Guarantor,
its guarantee of payment of the Guaranteed Obligations pursuant to the Guaranty, and (iii) with
respect to each Grantor party to the Security Agreement or a Mortgage, its pledges and other grants
of Liens in respect of the Secured Obligations pursuant to any such Loan Document, in each case, as
such covenants, agreements and other provisions may be modified by this Amendment.



(c) Cross-References. References in this Amendment to any Article or Section are,
unless otherwise specified, to such Article or Section of this Amendment.



(d) Loan Document Pursuant to Credit Agreement. This Amendment is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated therein)
be construed, administered and applied in accordance with all of the terms and provisions of the
Credit Agreement, as amended hereby, including Article X thereof.



(e) Successors and Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.



(f) Counterparts. This Amendment may be executed by the parties hereto in several
counterparts, each of which when executed and delivered shall be an original and all of which shall
constitute together but one and the same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by facsimile (or pdf or other electronic transmission) shall be
effective as delivery of a manually executed counterpart of this Amendment.



(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.



(h) Full Force and Effect; Limited Amendment.




(i) Except as expressly set forth herein, this Amendment shall not by
implication or otherwise limit, impair, constitute a waiver of or otherwise affect the
rights and remedies of the Lenders, the Administrative Agents or the Collateral Agent under
the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or agreements contained
in the Credit Agreement or any other provision of the Credit Agreement or of any other Loan
Document, all of which are ratified and affirmed in all respects and shall continue in full
force and effect. Nothing herein shall be deemed to entitle the Company, the Grantors and
the Guarantors to a consent to, or a waiver, amendment, modification or other change of, any
of the terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances.




(ii) The parties hereto acknowledge and agree that (i) this Amendment and any
other Loan Documents executed and delivered in connection herewith do not constitute a
novation, or termination of the “Obligations” (as defined in the Loan Documents) under the
Credit Agreement as in effect prior to the First Amendment Effective Date; (ii) such
“Obligations” are in all respects continuing (as amended hereby) with only the terms thereof
being modified to the extent provided in this Amendment; and (iii) the Liens and security
interests as granted under the Loan Documents securing payment of such “Obligations” are in
all such respects continuing in full force and effect and secure the payments of the
“Obligations”.



(i) Headings. The headings of this Amendment are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof.



(j) Post-Closing Obligations. The Company shall complete and deliver Schedule A and
Schedule B to this Amendment to the Administrative Agent and the Collateral Agent within 30 days
after the First Amendment Effective Date.



[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]




 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective officers as of the day and year first above written.




	 	 	 	 	 
	 	FERRO CORPORATION

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	FERRO ELECTRONIC MATERIALS INC.

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	FERRO PFANSTIEHL LABORATORIES, INC.

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	FERRO INTERNATIONAL SERVICES INC.

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	FERRO CHINA HOLDINGS INC.

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	OHIO-MISSISSIPPI CORPORATION

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 



[Signature
Page to Ferro Corporation First Amendment]





 


 









 







	 	 	 	 	 
	 	CATAPHOTE CONTRACTING COMPANY

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	THE FERRO ENAMEL SUPPLY COMPANY

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 
	 
	 	FERRO FAR EAST, INC.

 	 
	 	By:  	/s/  John T. Bingle
 	 
	 	 	Name:  	John T. Bingle 	 
	 	 	Title:  	Treasurer 	 



[Signature Page to Ferro Corporation First Amendment]




 


 









 





	 	 	 	 	 
	 	PNC BANK, NATIONAL ASSOCIATION, as 

Administrative Agent, Collateral Agent and a Lender

 	 
	 	By:  	/s/  Christian S. Brown
 	 
	 	 	Name:  	Christian S. Brown 	 
	 	 	Title:  	Senior Vice President 	 



[Signature
Page to Ferro Corporation First Amendment]






 


 









 





Lender signature pages on file with Administrative Agent



[Signature
Page to Ferro Corporation First Amendment]



 


 








 








SCHEDULE A




Cash Management Banks Providing Cash Management Services




PNC Bank




Citibank




RBS Citizens



 


 









 





SCHEDULE B





Credit Lines for Indebtedness of Foreign Subsidiaries in connection with local lines of credit:
7.2.2 (h)



	 	 	 	 	 	 	 	 	 
	Bank	 	Facility/Purpose	 	Ferro Entity	 	Amount	 
	 
	 	 	 	 	 	 	 	 
	Citibank

	 	Standby Letter of Credit
	 	Ferro B.V.
	 	€	32,117	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Documentary Letters of Credit
	 	Ferro Performance Materials (Suzhou)
	 	$	500,000	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Omnibus Line
	 	Ferro Co. Ltd. (Thailand)
	 	$	419,175	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Omnibus Line
	 	PT Ferro Mas Dinamika (Indonesia)
	 	$	1,500,000	 
	 
	 	 	 	 	 	 	 	 
	 

	 	Standby Letter of Credit
	 	Ferro Taiwan Ltd.
	 	$	250,000