EX-10.2






PURCHASE AND CONTRIBUTION AGREEMENT




Dated as of June 2, 2009




Between




FERRO CORPORATION




as Seller




and




FERRO FINANCE CORPORATION




as Purchaser










EXHIBITS




	 	 	 
	EXHIBIT A

EXHIBIT B

	 	Lock-Box Banks

Seller UCC Information







	 	 	 	EXHIBIT C Form of Choice of Law Provision in the Seller’s Orders and other Agreements





	 	 	 
	EXHIBIT D

EXHIBIT E

EXHIBIT F

	 	Form of Deferred Purchase Price Note

[Intentionally Omitted]

Trade Names or Doing-Business-As Names






PURCHASE AND CONTRIBUTION AGREEMENT

Dated as of June 2, 2009




FERRO CORPORATION, an Ohio corporation (“Ferro Corporation” or “Seller”), and
FERRO FINANCE CORPORATION, an Ohio corporation (the “Purchaser”), agree as follows:



PRELIMINARY STATEMENTS. (1) Certain terms which are capitalized and used throughout this
Agreement (in addition to those defined above) are defined in Article I of this Agreement.



(2) The Seller is a party to that certain Purchase Agreement dated as of June 2, 2009 among
Ferro Color & Glass, Inc. and Ferro Pfanstiehl Laboratories, Inc.



(3) The Seller has Receivables that it wishes to sell to the Purchaser, and the Purchaser is
prepared to purchase such Receivables on the terms set forth herein:



ARTICLE I.

DEFINITIONS




SECTION 1.01 Certain Defined Terms. As used in this Agreement and the Exhibits hereto
and not otherwise defined elsewhere herein, the following terms shall have the meanings set forth
in this Section 1.01 (such meanings to be equally applicable to both the singular and plural forms
thereof):




“Contributed Receivable” has the meaning specified in Section 2.06.




“Deferred Purchase Price” means the portion of the Purchase Price of Purchased
Receivables purchased on any Purchase Date exceeding the amount of the Purchase Price under
Section 2.02 to be paid in cash. The obligations of the Purchaser in respect of the
Deferred Purchase Price shall be evidenced by the Purchaser’s Deferred Purchase Price Note.




“Deferred Purchase Price Note” means the deferred purchase price note to be
issued by Purchaser in the form of Exhibit D hereto.




“Discount” means, in respect of each Purchase, 1% of the Outstanding Balance of
the Receivables that are the subject of such Purchase; provided, however,
the foregoing Discount may be revised prospectively by request of the Seller or the
Purchaser to reflect changes in recent experience with respect to write-offs, timing and
cost of Collections and cost of funds, provided that such revision is consented to by both
of such parties (it being understood that each party agrees to duly consider such request
and that such consent shall not be unreasonably withheld).




“Event of Termination” has the meaning specified in Section 7.01.




“Existing Agreement” means that certain Purchase Agreement (as amended,
restated, supplemented or otherwise modified from time to time), dated as of April 1, 2008,
between the Originators, as sellers, and Ferro, as purchaser.




“FPL” means Ferro Pfanstiehl Laboratories, Inc., a Delaware corporation.




“Facility” means the willingness of the Purchaser to consider making Purchases
of Receivables from the Seller from time to time pursuant to the terms of this Agreement.




“Facility Termination Date” means the earliest of (i) the “Facility Termination
Date” (as such term is defined in the Receivables Purchase Agreement), (ii) the date of
termination of the Facility pursuant to Section 7.01 and (iii) the date which the Seller
designates by at least two (2) Business Days’ notice to the Purchaser and its assignees
(including the Agent).




“Ferro Color” means Ferro Color & Glass Corporation, a Pennsylvania
corporation.




“First-Step Agreement” means the Purchase Agreement dated as of June 2, 2009
among Ferro Color and FPL, as sellers, and the Seller, as purchaser, as the same may be
amended, restated, supplemented or otherwise modified from time to time.




“General Trial Balance” of the Seller on any date means the Seller’s accounts
receivable trial balance (whether in the form of a computer printout, magnetic tape or
diskette) on such date, listing Obligors and the Receivables respectively owed by such
Obligors on such date together with the aged Outstanding Balances of such Receivables, in
form and substance satisfactory to the Purchaser.




“Incipient Event of Termination” means an event that but for notice or lapse of
time or both would constitute an Event of Termination.




“Indemnified Amounts” has the meaning specified in Section 8.01.




“Purchase” means a purchase by the Purchaser of Receivables from the Seller
pursuant to Article II.




“Purchase Date” means each day on which a Purchase is made pursuant to
Article II.




“Purchased Receivable” means any Receivable which is purchased by the Purchaser
pursuant to Section 2.02.




“Purchase Price” for any Purchase means (x) in respect of any Purchase of
Receivables originated by FPL or Ferro Color, an amount equal to the “Purchase Price” paid
by the Seller pursuant to the First-Step Agreement for the Receivables that are the subject
of such Purchase, and (y)  in respect of any other Purchase, an amount equal to the
Outstanding Balance of the Receivables that are the subject of such Purchase as set forth in
the Seller’s General Trial Balance, minus the Discount for such Purchase.




“Purchase Price Credit” has the meaning specified in Section 2.04.




“Receivables Purchase Agreement” means that certain Receivables Purchase
Agreement, dated as of June 2, 2009, among the Purchaser, as seller, Wachovia Bank, National
Association, as agent, the purchasers party thereto and Ferro Corporation, as servicer and
an originator, as amended, restated, supplemented or otherwise modified from time to time.



“Related Security” means, with respect to any Receivable:




(i) all right, title and interest (if any) in the goods, the sale of which gave rise
to such Receivable, and any and all insurance contracts with respect thereto,




(ii) all other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether pursuant to
the invoice related to such Receivable or otherwise, together with all financing
statements and security agreements describing any collateral securing such
Receivable,




(iii) all guaranties, insurance and other supporting obligations, agreements or
arrangements of whatever character from time to time supporting or securing payment
of such Receivable whether pursuant to the invoice related to such Receivable or
otherwise,




(iv) all Records related to such Receivables,




(v) all right, title and interest (if any) to the Existing Agreement and to any
Receivable or other property of the type described in clauses (i), (ii), (iii), (iv)
and (vi) of this definition sold and transferred thereunder, and




(vi) all proceeds of any of the foregoing.




When used in this Agreement, the term “Related Security” shall also include all of
Purchaser’s right, title and interest in, to and under the Purchase Agreement and the
proceeds thereof.




“RPA Final Payment Date” means the later of the Facility Termination Date and
the date on which all Capital, Yield, Fees and other obligations under the Receivables
Purchase Agreement are paid in full.




“RPA Purchaser” means the “Purchasers” as such term is defined in the
Receivables Purchase Agreement.




“Seller Report” means a Monthly Report or a Daily Report.




“Transferred Receivable” means a Purchased Receivable or a Contributed
Receivable.



SECTION 1.02 Certain Terms Defined in Receivables Purchase Agreement. If a capitalized
term is used in this Agreement, or any Exhibit hereto, and not otherwise defined herein, such term
shall have the meaning assigned thereto in the Receivables Purchase Agreement. Among the
capitalized terms used in this Agreement which are defined in the Receivables Purchase Agreement
are the following:



	 
	Adverse Claim

	Affiliate

	Agent

	Alternate Base Rate

	Amortization Event

	Business Day

	Capital

	Collection Agent

	Collections

	Contract

	Credit and Collection Policy

	Daily Report

	Defaulted Receivable

	Deemed Collections

	Dilution

	Eligible Receivable

	ERISA

	Federal Funds Rate

	Fees

	Incremental Purchase

	Indebtedness

	Investment Excess

	Lock-Box Account

	Lock-Box Agreement

	Lock-Box Banks

	Material Adverse Effect

	Monthly Payment Date

	Monthly Report

	Obligor

	Organic Document

	Originator(s)

	Outstanding Balance

	Person

	Receivable

	Required Capital Condition

	Senior Credit Agreement

	Transaction Document(s)

	UCC

	Yield







SECTION 1.03 Other Terms. All accounting terms not specifically defined herein shall
be construed in accordance with generally accepted accounting principles. All terms used in
Article 9 of the UCC in the State of New York, and not specifically defined herein, are used herein
as defined in such Article 9.



ARTICLE II.

AMOUNTS AND TERMS OF PURCHASES AND CONTRIBUTIONS




SECTION 2.01 Facility. On the terms and conditions hereinafter set forth and without
recourse to the Seller (except to the extent specifically provided herein), the Seller may at its
option sell or contribute to the Purchaser all Receivables originated by it (or originated by FPL
or Ferro Color and acquired by the Seller pursuant to the First-Step Agreement) from time to time
and the Purchaser may at its option purchase or accept as a contribution from the Seller all
Receivables originated or acquired by the Seller from time to time, in each case during the period
from the date hereof to the Facility Termination Date.



SECTION 2.02 Making Purchases. (a) Initial Purchase. The Seller shall give
the Purchaser at least one (1) Business Day’s notice of its request for the initial Purchase
hereunder, which request shall specify the date of such Purchase (which shall be a Business Day)
and the proposed Purchase Price for such Purchase. The Purchaser shall promptly notify the Seller
whether it has determined to make such Purchase. On the date of such Purchase, the Purchaser
shall, upon satisfaction of the applicable conditions set forth in Article III, pay the Purchase
Price for such Purchase in the manner provided in Section 2.02(c).



(b) Subsequent Purchases. On each Business Day following the initial Purchase, unless
the Purchaser shall notify the other party to the contrary, the Seller shall sell to the Purchaser
and the Purchaser shall purchase from the Seller, upon satisfaction of the applicable conditions
set forth in Article III, all Receivables originated by the Seller (or originated by FPL or Ferro
Color and acquired by the Seller pursuant to the First-Step Agreement) which have not previously
been sold or contributed to the Purchaser; provided, however, that the Seller may,
at its option on any Purchase Date, contribute all or any of such Receivables to the Purchaser
pursuant to Section 2.06, instead of selling such Receivables to the Purchaser pursuant to this
Section 2.02(b). On or within one (1) month after the date of each such Purchase, the Purchaser
shall pay the Purchase Price for such Purchase in the manner provided in Section 2.02(c).



(c) Payment of Purchase Price. The Purchase Price for each Purchase shall be paid on
or within one (1) month after the Purchase Date therefor by means of any one or a combination of
the following: (i) a deposit in same day funds to the Seller’s account designated by the Seller or
(ii) an increase in the Deferred Purchase Price (subject at all times to the limitations contained
in the definition thereof). The allocation of the Purchase Price as among such methods of payment
shall be subject in each instance to the approval of the Purchaser and the Seller;
provided, however, that the Deferred Purchase Price may not be increased to the
extent that, after giving effect to such increase, the Required Capital Condition is not
maintained.



(d) Ownership of Receivables and Related Security. On each Purchase Date, after
giving effect to the Purchase (and any contribution of Receivables) on such date, the Purchaser
shall own all Receivables originated by the Seller (or originated by FPL or Ferro Color and
acquired by the Seller) as of such date (including Receivables which have been previously sold or
contributed to the Purchaser hereunder). The Purchase or contribution of any Receivable shall
include all Related Security with respect to such Receivable.



(e) Assignment of Receivables relating to Obligors located in Germany. In addition to
the transfer of ownership of Receivables stipulated above the Seller, subject to the satisfaction
of the conditions precedent set out in this Agreement hereby assigns by way of a German law
assignment (Abtretung) within the meaning of Section 398 German Civil Code (Bárgerliches
Gesetzbuch) to the Purchaser all Receivables (whether now existing or hereafter arising) owed to
the Seller by an Obligor located in Germany (the “German Obligor Receivables”). The
Purchaser accepts such assignment. The assignment of the German Obligor Receivables shall include
all ancillary rights, priority rights as well as all other rights attached to the German Obligor
Receivables.



SECTION 2.03 Collections. (a) Unless otherwise agreed in the Receivables Purchase
Agreement, the Collection Agent shall, on each Business Day, deposit into an account of the
Purchaser or the Purchaser’s assignee all Collections of Transferred Receivables then held by the
Collection Agent.



(b) In the event that the Seller believes that Collections which are not Collections of
Transferred Receivables have been deposited into an account of the Purchaser or the Purchaser’s
assignee, the Seller shall so advise the Purchaser and, on the Business Day following such
identification, the Purchaser shall remit, or shall cause to be remitted, all Collections so
deposited which are identified, to the Purchaser’s satisfaction, to be Collections of Receivables
which are not Transferred Receivables to the Seller.



(c) On each Monthly Payment Date, the Purchaser shall pay to the Seller accrued interest on
the Deferred Purchase Price and the Purchaser may, at its option, prepay in whole or in part the
principal amount of the Deferred Purchase Price; provided that each such payment shall be made
solely from (i) Collections of Transferred Receivables after all other amounts then due from the
Purchaser under the Receivables Purchase Agreement have been paid in full and all amounts then
required to be set aside by the Purchaser or the Collection Agent under the Receivables Purchase
Agreement have been so set aside or (ii) excess cash flow from operations of the Purchaser which is
not required to be applied to the payment of other obligations of the Purchaser; and provided
further, that no such payment shall be made at any time when an Event of Termination shall have
occurred and be continuing. At such time following the Facility Termination Date when all Capital,
Yield, Fees and other amounts owed by the Purchaser under the Receivables Purchase Agreement shall
have been paid in full, the Purchaser shall apply, on each Business Day, all Collections of
Transferred Receivables received by the Purchaser pursuant to Section 2.03(a) (and not previously
distributed) first to the payment of accrued interest on the Deferred Purchase Price, and then to
the reduction of the principal amount of the Deferred Purchase Price.



SECTION 2.04 Settlement Procedures. (a) Seller shall be deemed to have received a
Deemed Collection with respect to a Receivable sold by it to Purchaser hereunder upon the
occurrence of any Dilution with respect to such Receivable. Upon the Seller receipt of a Deemed
Collection, Purchaser shall be entitled to a credit (each, a “Purchase Price Credit”)
against the Purchase Price otherwise payable to the Seller hereunder in an amount equal to such
Deemed Collection. If such Purchase Price Credit exceeds the original Outstanding Balance of the
Receivables originated by the Seller on such day, and an Investment Excess exists or would result
from such Deemed Collection, upon demand by Purchaser (or the Agent following the Facility
Termination Date), then the Seller shall pay to Purchaser the remaining amount of such Purchase
Price Credit in cash on such day; provided, that if no such Investment Excess exists or
would result therefrom and the Facility Termination Date has not occurred, the Seller shall be
allowed to deduct the remaining amount of such Purchase Price Credit from any indebtedness owed to
it under its Deferred Purchase Price Note to be issued by Purchaser in the form of Exhibit D
hereto.



(b) Except as stated in subsection (a) of this Section 2.04 or as otherwise required by law or
the underlying Contract, all Collections from an Obligor of any Purchased Receivable shall be
applied to the Receivables of such Obligor in the order of the age of such Receivables, starting
with the oldest such Receivable, unless such Obligor designates its payment for application to
specific Receivables.



SECTION 2.05 Payments and Computations, Etc.. (a) All amounts to be paid or
deposited by the Seller or the Collection Agent hereunder shall be paid or deposited no later than
11:00 A.M. (New York City time) on the day when due in same day funds to an account or accounts
designated by the Purchaser from time to time, which accounts, during the existence of the
Receivables Purchase Agreement, shall be those set forth in the Receivables Purchase Agreement.



(b) The Seller shall, to the extent permitted by law, pay to the Purchaser interest on any
amount not paid or deposited by the Seller (whether as Collection Agent or otherwise) when due
hereunder at an interest rate per annum equal to 2.0% per annum above the Alternate Base Rate,
payable on demand.



(c) All computations of interest and all computations of fees hereunder shall be made on the
basis of a year of three hundred sixty (360) days for the actual number of days (including the
first but excluding the last day) elapsed. Whenever any payment or deposit to be made hereunder
shall be due on a day other than a Business Day, such payment or deposit shall be made on the next
succeeding Business Day and such extension of time shall be included in the computation of such
payment or deposit.



SECTION 2.06 Contributions. The Seller may from time to time at its option, by notice
to the Purchaser on or prior to the date of the proposed contribution, identify Receivables which
it proposes to contribute to the Purchaser as a capital contribution. On the date of each such
contribution and after giving effect thereto, the Purchaser shall own in fee simple the Receivables
so identified and contributed (collectively, the “Contributed Receivables”) and all Related
Security with respect thereto. The foregoing notwithstanding, on the date of the initial Purchase
hereunder the Seller agrees to contribute to the Purchaser all Receivables which are not included
in such initial Purchase.



ARTICLE III.

CONDITIONS OF PURCHASES




SECTION 3.01 Conditions Precedent to Initial Purchase from the Seller. The initial
Purchase of Receivables from the Seller hereunder is subject to the conditions precedent that (a)
all of the conditions to the initial purchase under the Receivables Purchase Agreement have been
satisfied or waived in accordance with the terms thereof, and (b) the Purchaser shall have received
on or before the date of such Purchase the following, each (unless otherwise indicated) dated such
date, in form and substance satisfactory to the Purchaser:




(i) Evidence that the Seller and each other Originator has taken any necessary
corporate action to authorize this Agreement and the First-Step Agreement and certified
copies of all documents evidencing other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and the First-Step Agreement.




(ii) A certificate of the Secretary or Assistant Secretary of the Seller and each other
Originator certifying the names and true signatures of the officers of the Seller and each
other Originator authorized to sign this Agreement and the other documents to be delivered
by it hereunder.




(iii) Acknowledgment copies or time stamped receipt copies of proper financing
statements, duly filed on or before the date of the initial Purchase, naming each Originator
as the seller/debtor and the Purchaser as the purchaser/secured party, or other similar
instruments or documents, as the Purchaser may deem necessary or desirable under the UCC of
all appropriate jurisdictions or other applicable law to perfect the Purchaser’s ownership
of and security interest in the Transferred Receivables and Related Security and Collections
with respect thereto.




(iv) Acknowledgment copies or time stamped receipt copies of proper financing
statements, if any, necessary to release all security interests and other rights of any
Person in the Transferred Receivables, Contracts or Related Security previously granted by
the Seller and each other Originator.




(v) Completed requests for information, dated on or before the date of such initial
Purchase, listing all effective financing statements filed in the jurisdictions referred to
in subsection (iii) above that name the Seller or any other Originator as debtor, together
with copies of such other financing statements (none of which shall cover any Transferred
Receivables, Contracts or Related Security).




(vi) The First-Step Agreement, duly executed by each of the parties thereto.



SECTION 3.02 Conditions Precedent to All Purchases. Each Purchase (including the
initial Purchase) hereunder shall be subject to the further conditions precedent that no Event of
Termination under subsections 7.01(e), (f) or (g) shall have occurred and be continuing.



ARTICLE IV.

REPRESENTATIONS AND WARRANTIES




SECTION 4.01 Representations and Warranties of the Seller. The Seller represents and
warrants as follows:



(a) The Seller is a corporation duly incorporated, validly existing and in good standing,
under the laws of the applicable jurisdiction set forth in Exhibit B hereto (as such Exhibit B may
be amended from time to time pursuant to Section 5.01(b)) and is duly qualified to do business, and
is in good standing, in every jurisdiction where the nature of its business requires it to be so
qualified, unless the failure to so qualify would not have a material adverse effect on (i) the
interests of the Purchaser hereunder, (ii) the collectibility of the Transferred Receivables, or
(iii) the ability of the Seller or the Collection Agent to perform their respective obligations
hereunder.



(b) The execution, delivery and performance by the Seller of this Agreement and the other
documents to be delivered by it hereunder, including the Seller’s sale and contribution of
Receivables hereunder and the Seller’s use of the proceeds of Purchases, (i) are within the
Seller’s corporate powers, (ii) have been duly authorized by all necessary corporate action,
(iii) do not contravene (1) the Seller’s charter or by-laws, (2) any law, rule or regulation
applicable to the Seller, (3) any contractual restriction binding on or affecting the Seller or its
property or (4) any order, writ, judgment, award, injunction or decree binding on or affecting the
Seller or its property, and (iv) do not result in or require the creation of any lien, security
interest or other charge or encumbrance upon or with respect to any of its properties (except for
the transfer of the Seller’s interest in the Transferred Receivables pursuant to this Agreement).
This Agreement has been duly executed and delivered by the Seller.



(c) No authorization or approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for the due execution, delivery and
performance by the Seller of this Agreement or any other document to be delivered by it hereunder.



(d) This Agreement constitutes the legal, valid and binding obligation of the Seller
enforceable against the Seller in accordance with its terms except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors’ rights generally and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).



(e) Sales and contributions made pursuant to this Agreement will constitute a valid sale,
transfer, and assignment of the Transferred Receivables to Purchaser, enforceable against creditors
of, and purchasers from, the Seller. The Seller shall have no remaining property interest in any
Transferred Receivable.



(f) The balance sheets of the Seller and its subsidiaries as at December 31, 2008, and the
related statements of income and retained earnings of the Seller and its subsidiaries for the
fiscal year then ended, copies of which have been furnished to the Purchaser, fairly present the
financial condition of the Seller and its subsidiaries as at such date and the results of the
operations of the Seller and its subsidiaries for the period ended on such date, all in accordance
with generally accepted accounting principles consistently applied. Since December 31, 2008 no
event has occurred that would have a Material Adverse Effect.



(g) There is no pending or, to the Seller’s knowledge, threatened action, investigation or
proceeding affecting the Seller or any of its subsidiaries before any court, governmental agency or
arbitrator which may materially adversely affect the financial condition or operations of the
Seller and its consolidated subsidiaries, when taken as a whole, or the ability of the Seller to
perform its obligations under this Agreement or any other document to be delivered by it hereunder,
or which purports to affect the legality, validity or enforceability of this Agreement or any other
document to be delivered by it hereunder.



(h) No proceeds of any Purchase will be used to acquire any equity security of a class which
is registered pursuant to Section 12 of the Securities Exchange Act of 1934, provided that this
Section 4.01(h) shall not prohibit the Seller from purchasing equity securities of Ferro, Ferro
Color or FPL in accordance with applicable law.



(i) No transaction contemplated hereby requires compliance with any bulk sales act or similar
law.



(j) Each Receivable included in the Net Pool Balance on a Monthly Report as an Eligible
Receivable was an Eligible Receivable as of the last day of the month covered by such Monthly
Report. Each Transferred Receivable, together with the Related Security, is owned (prior to its
sale or contribution hereunder) by the Seller free and clear of any Adverse Claim (other than any
Adverse Claim arising solely as the result of any action taken by the Purchaser). When Purchaser
makes a Purchase it shall acquire valid and perfected first priority ownership of each Purchased
Receivable and the Related Security and Collections with respect thereto free and clear of any
Adverse Claim (other than any Adverse Claim arising solely as the result of any action taken by the
Purchaser), and no effective financing statement or other instrument similar in effect covering any
Transferred Receivable, any interest therein, the Related Security or Collections with respect
thereto is on file in any recording office except such as may be filed in favor of Purchaser in
accordance with this Agreement, in favor of the Seller in accordance with the First-Step Agreement
or in connection with any Adverse Claim arising solely as the result of any action taken by the
Purchaser.



(k) Each Seller Report (if prepared by the Seller, or to the extent that information contained
therein is supplied by the Seller), information, exhibit, financial statement, document, book,
record or report furnished or to be furnished at any time by the Seller to the Purchaser in
connection with this Agreement is or will be accurate in all material respects as of its date or
(except as otherwise disclosed to the Purchaser at such time) as of the date so furnished, and no
such document contains or will contain any untrue statement of a material fact or omits or will
omit to state a material fact necessary in order to make the statements contained therein, in the
light of the circumstances under which they were made, not misleading.



(l) The principal place of business and chief executive office of the Seller and the office
where the Seller keeps its records concerning the Transferred Receivables are located at the
address referred to in Section 5.01(b). The Seller is located in the jurisdiction of organization
set forth in Exhibit B hereto for purposes of Section 9-307 of the UCC as in effect in the State of
New York; and the office in the jurisdiction of organization of the Seller in which a UCC financing
statement is required to be filed in order to perfect the security interest granted by the Seller
hereunder is set forth in Exhibit B hereto (in each case as such Exhibit B may be amended from time
to time pursuant to Section 5.01(b)).



(m) The names and addresses of all the Lock-Box Banks, together with the account numbers of
the Lock-Box Accounts at such Lock-Box Banks, are specified in Exhibit A (as the same may be
updated from time to time pursuant to Section 5.01(h)).



(n) The Seller is not known by and does not use any tradename or doing-business-as name, other
than, as set forth in Exhibit F hereto, as such Exhibit F may be amended from time to time to
remove any tradenames or doing-business-as names upon request of the Seller with the prior written
approval of the Purchaser.



(o) With respect to any programs used by the Seller in the servicing of the Receivables, such
Seller shall pay any necessary fees associated with any sublicensing agreements necessary in
connection with the designation of a new Collection Agent so that such new Collection Agent shall
have the benefit of such programs (it being understood that,
however, the Collection Agent, if other than the Seller, shall be required to be bound by a
confidentiality agreement reasonably acceptable to the Seller, Ferro Color and FPL).



(p) The transfers of Transferred Receivables by the Seller to the Purchaser pursuant to this
Agreement, and all other transactions between the Seller and the Purchaser, have been and will be
made in good faith and without intent to hinder, delay or defraud creditors of the Seller.



(q) The Seller has (i) timely filed all federal tax returns required to be filed, (ii) timely
filed all other material state and local tax returns (other than with respect to such state and
local tax returns for the tax year 2005, which have been filed prior to the date hereof) and
(iii) paid or made adequate provision for the payment of all taxes, assessments and other
governmental charges (other than any tax, assessment or governmental charge which is being
contested in good faith and by proper proceedings, and with respect to which the obligation to pay
such amount is adequately reserved against in accordance with generally accepted accounting
principles). The Seller will also pay when due any taxes payable in connection with the
Receivables transferred by it, exclusive of taxes on or measured by income or gross receipts of
Purchaser and its assigns.



(r) The Seller is not an “investment company” within the meaning of the Investment Company Act
of 1940, as amended, or any successor statute.



(s) The Seller has complied in all respects with all applicable laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which it may be subject, except where
the failure to so comply could not reasonably be expected to have a Material Adverse Effect. Each
Receivable originated by the Seller, together with the Contract related thereto, does not
contravene any laws, rules or regulations applicable thereto (including, without limitation, laws,
rules and regulations relating to truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and privacy), and no part of such Contract
is in violation of any such law, rule or regulation, except where such contravention or violation
could not reasonably be expected to have a Material Adverse Effect.



(t) With respect to each Receivable transferred hereunder by the Seller to Purchaser, the
Purchase Price received by the Seller constitutes reasonably equivalent value in consideration
therefor and such transfer was not made for or on account of an antecedent debt. No transfer by
the Seller of any Receivable hereunder is or may be voidable under any section of the Bankruptcy
Reform Act of 1978 (11 U.S.C. §§ 101 et seq.), as amended.



(u) Each Contract with respect to each Receivable originated by the Seller is effective to
create, and has created, a legal, valid and binding obligation of the related Obligor to pay the
Outstanding Balance of the Receivable created thereunder and any accrued interest thereon,
enforceable against the Obligor in accordance with its terms, except as such enforcement may be
limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or
limiting creditors’ rights generally and by general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).



(v) Each Receivable originated by the Seller is an “account” under and as defined in the UCC
of all applicable jurisdictions.



(w) The manner in which the Seller accounts for the transactions contemplated by this
Agreement does not jeopardize the true sale analysis.



ARTICLE V.

COVENANTS




SECTION 5.01 Covenants of the Seller. From the date hereof until the first day
following the Facility Termination Date on which all of the Transferred Receivables are either
collected in full or become Defaulted Receivables:



(a) Compliance with Laws, Etc. The Seller will comply in all material respects with
all applicable laws, rules, regulations and orders and preserve and maintain its corporate
existence, rights, franchises, qualifications and privileges except to the extent that the failure
so to comply with such laws, rules and regulations or the failure so to preserve and maintain such
existence, rights, franchises, qualifications, and privileges would not materially adversely affect
the collectibility of the Transferred Receivables or the ability of the Seller to perform its
obligations under this Agreement.



(b) Offices, Records and Books of Account. The Seller will keep its principal place
of business and chief executive office and the office where it keeps its records concerning the
Transferred Receivables at the address or addresses of the Seller set forth on Exhibit B hereto,
or, upon thirty (30) days’ prior written notice to the Purchaser, at any other locations within the
United States. The Seller will not change its name or its state of organization, unless (i) the
Seller shall have provided the Purchaser with at least thirty (30) days’ prior written notice
thereof, together with an updated Exhibit B, and (ii) no later than the effective date of such
change, all actions required by Section 5.01(j) shall have been taken and completed. Upon
confirmation by the Purchaser’s assignee during the existence of the Receivables Purchase Agreement
or, thereafter, the Purchaser of receipt of any such notice (together with an updated Exhibit B)
and the completion, as aforesaid, of all actions required by Section 5.01(j), Exhibit B to this
Agreement shall, without further action by any party, be deemed to be amended and replaced by the
updated Exhibit B accompanying such notice. The Seller also will maintain and implement
administrative and operating procedures (including, without limitation, an ability to recreate
records evidencing Transferred Receivables and related Contracts in the event of the destruction of
the originals thereof), and keep and maintain all documents, books, records and other information
reasonably necessary or advisable for the collection of all Transferred Receivables (including,
without limitation, records adequate to permit the daily identification of each new Transferred
Receivable and all Collections of and adjustments to each existing Transferred Receivable). The
Seller shall (i) make a notation in its books and records, to indicate which Receivables have been
sold or contributed to the Purchaser hereunder and (ii) upon the request of Purchaser or the Agent
following the occurrence and during continuation of an Amortization Event under the Receivables
Purchase Agreement: (x) mark each Contract with a legend describing Purchaser’s ownership interests
in such Receivables and further describing the interests of the Agent (on behalf of the Purchasers)
and (y) deliver to Purchaser (or, upon request, to the Agent) all Contracts (including, without
limitation, all multiple originals of any such Contract that constitutes an instrument, a
certificated security or chattel paper under the UCC) relating to such Receivables.



(c) Performance and Compliance with Contracts and Credit and Collection Policy. The
Seller will, at its expense, timely and fully perform and comply with all material provisions,
covenants and other promises required to be observed by it under the Contracts related to the
Transferred Receivables, and timely and fully comply in all material respects with the applicable
Credit and Collection Policy in regard to each Transferred Receivable and the related Contract.



(d) Sales, Liens, Etc. Except for the sales and contributions of Receivables
contemplated herein, the Seller will not sell, assign (by operation of law or otherwise) or
otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any
Transferred Receivable, Related Security, related Contract or Collections, or upon or with respect
to any account to which any Collections of any Transferred Receivable are sent, or assign any right
to receive income in respect thereof.



(e) Extension or Amendment of Transferred Receivables. Except as otherwise provided
in the Receivables Purchase Agreement, the Seller will not extend, amend or otherwise modify the
terms of any Transferred Receivable, or any terms of any Contract related to such Transferred
Receivable in any material respect other than in accordance with the Credit and Collection Policy.



(f) Change in Business or Credit and Collection Policy. Except as otherwise provided
in the Receivables Purchase Agreement, the Seller will not make any change to the Credit and
Collection Policy that could reasonably be expected to decrease the credit quality of any newly
created Transferred Receivables or materially adversely affect the collectibility of the
Transferred Receivables.



(g) Audits. The Seller will, from time to time during regular business hours as
requested at least one (1) Business Day in advance by the Purchaser or its assigns, permit the
Purchaser, or its agents, representatives or assigns, (i) to examine and make copies of and
abstracts from all books, records and documents (including, without limitation, computer tapes and
disks) in the possession or under the control of the Seller relating to Transferred Receivables and
the Related Security, including, without limitation, the related Contracts, and (ii) to visit the
offices and properties of the Seller for the purpose of examining such materials described in
clause (i) above, and to discuss matters relating to Transferred Receivables and the Related
Security or the Seller’s performance hereunder or under the Contracts with any of the officers or
employees of the Seller having knowledge of such matters. After completion of a post-closing field
exam, it is anticipated that field exam frequency will be bi-annual, but the Purchaser may request
more frequent exams.



(h) Change in Payment Instructions to Obligors. No Seller will add or terminate any
bank or bank account as a Lock-Box Bank or Lock-Box Account from those listed in Exhibit A to this
Agreement, or make any change in its instructions to Obligors regarding payments to be made to any
Lock-Box Bank unless the Purchaser shall have received notice of such addition, termination or
change (including an updated Exhibit A) and executed copies of Lock-Box Agreements with each new
Lock-Box Bank or with respect to each new Lock-Box Account. Upon confirmation by the Agent, as the
Purchaser’s assignee, of receipt of such notice and the related documents, Exhibit A hereto shall,
without further action by any party be deemed to be amended and restated by the updated Exhibit A
accompanying such notice.



(i) Deposits to Lock-Box Accounts. The Seller will instruct (or will cause each other
Originator to instruct) all Obligors to remit all their payments in respect of Transferred
Receivables into Lock-Box Accounts. If the Seller shall receive any Collections directly, it shall
immediately (and in any event within two (2) Business Days) deposit the same to a Lock-Box Account.
The Seller will not deposit or otherwise credit or cause and will use commercially reasonable
efforts not to allow to be so deposited or credited, to any Lock-Box Account cash or cash proceeds
other than Collections of Transferred Receivables.



(j) Further Assurances. The Seller agrees from time to time, at its expense, promptly
to execute and deliver all further instruments and documents, and to take all further actions, that
may be necessary or desirable, or that the Purchaser or its assignee may reasonably request, to
perfect, protect or more fully evidence the sale and contribution of Receivables under this
Agreement, or to enable the Purchaser or its assignee to exercise and enforce its respective rights
and remedies under this Agreement. Without limiting the foregoing, the Seller will, upon the
request of the Purchaser or its assignee, execute and file such financing or continuation
statements, or amendments thereto, and such other instruments and documents, that may be necessary
or desirable to perfect, protect or evidence such Transferred Receivables and any security interest
in other assets of the Seller granted hereunder.




(i) The Seller authorizes the Purchaser or its assignee to file financing or
continuation statements, and amendments thereto and assignments thereof, relating to the
Transferred Receivables and the Related Security, the related Contracts and the Collections
with respect thereto and any other assets of the Seller in which a security interest is
granted hereunder.




(ii) The Seller shall perform its obligations under the Contracts related to the
Transferred Receivables to the same extent as if the Transferred Receivables had not been
sold or transferred.



(k) Reporting Requirements. The Seller will provide to the Purchaser (and its
assignees) the following:




(i) as soon as possible and in any event within five (5) days after the occurrence of
each Event of Termination or Incipient Event of Termination, a statement of an Authorized
Officer of the Seller setting forth details of such Event of Termination or Incipient Event
of Termination and the action that the Seller has taken and proposes to take with respect
thereto;




(ii) promptly after the filing or receiving thereof, copies of all reports and notices
that the Seller or any Affiliate files under ERISA with the Internal Revenue Service or the
Pension Benefit Guaranty Corporation or the U.S. Department of Labor or that the Seller or
any Affiliate receives from any of the foregoing or from any multiemployer plan (within the
meaning of Section 4001(a)(3) of ERISA) to which the Seller or any Affiliate is or was,
within the preceding five years, a contributing employer, in each case in respect of the
assessment of withdrawal liability or an event or condition which could, in the aggregate,
result in the imposition of liability on the Seller and/or any such Affiliate in excess of
$7,500,000;




(iii) at least thirty (30) days prior to any change in the Seller’s name or
jurisdiction of incorporation, a notice setting forth the new name or jurisdiction of
incorporation and the effective date thereof;




(iv) such other information respecting the Transferred Receivables or the condition or
operations, financial or otherwise, of the Seller as the Purchaser (or its assignees) may
from time to time reasonably request; and




(v) any reports, notices, filings, financial information and any other information or
correspondence delivered to the Seller pursuant to the First-Step Agreement.



(l) Prohibition on Additional Negative Pledges. The Seller will not (and will not
authorize any Subsidiary to) enter into or assume any agreement (other than this Agreement and the
other Transaction Documents) prohibiting the creation or assumption of any Adverse Claim upon the
Receivables, Collections or Related Security except as contemplated by the Transaction Documents,
or otherwise prohibiting or restricting any transaction contemplated hereby or by the other
Transaction Documents.



(m) Foreign Offices. The Seller agrees that it will not take any action to open a
place of business in either the United Kingdom or Ireland without (i) providing the Purchaser and
its assignee with at least ten (10) Business Days’ prior written notice, and (ii) taking all
actions that the Purchaser or its assignee may reasonably request pursuant to Section 5.01(j) with
respect to the laws of the United Kingdom or Ireland, as applicable.



(n) Invoices. The Seller agrees that all invoices regarding Receivables sent by the
Seller will include a choice of law provision substantially in the form attached hereto as Exhibit
C identifying the law of a State or the District of Columbia as the governing law.



(o) Corporate Separateness. The Seller (its Affiliates and Subsidiaries, other than
the Purchaser, the “Ferro Group”) will take all reasonable steps, including, without
limitation, all steps that any Agent or the Purchaser under the Receivables Purchase Agreement may
from time to time reasonably request, to maintain the Purchaser’s identity as a separate legal
entity and will manifest to third parties that the Purchaser is an entity with assets and
liabilities distinct from those of the members of the Ferro Group and not just a division thereof.
Without limiting the generality of the foregoing and in addition to the other covenants herein,
except as herein specifically otherwise provided, the members of Ferro Group will use reasonable
efforts to cause the Purchaser to:




(i) At all times maintain at least one Independent Director who (x) is not currently
and has not been during the five years preceding the date of this Agreement an officer,
director or employee of any member of the Ferro Group, (y) is not a current or former
officer or employee of the Purchaser and (z) is not a stockholder of any member of the Ferro
Group;




(ii) refrain from participating, directly or indirectly, in the management of
operations of any member of the Ferro Group;




(iii) conduct its business from an office separate from that of the members of the
Ferro Group (but which may be located in the same facility as one or more of the members of
the Ferro Group), and have stationery and other business forms and a mailing address and a
telephone number separate from that of the members of the Ferro Group;




(iv) at all times be adequately capitalized in light of its contemplated business;




(v) at all times provide for its own operating expenses and liabilities from its own
funds;




(vi) maintain its assets and transactions separately from those of the members of the
Ferro Group and reflect such assets and transactions in financial statements separate and
distinct from those of the members of the Ferro Group and evidence such assets and
transactions by appropriate entries in books and records separate and distinct from those of
the members of the Ferro Group;




(vii) hold itself out to the public under the Purchaser’s own name as a legal entity
separate and distinct from the members of the Ferro Group, and refrain from holding itself
out as having agreed to pay, or as being liable, primarily or secondarily, for, any
obligations of the members of the Ferro Group;




(viii) refrain from maintaining any joint account with any member of the Ferro Group or
becoming liable as a guarantor or otherwise with respect to any Indebtedness or contractual
obligation of any member of the Ferro Group;




(ix) refrain from making any payment or distribution of assets with respect to any
obligation of any member of the Ferro Group or granting an Adverse Claim on any of its
assets to secure any obligation of any member of the Ferro Group;




(x) refrain from making loans, advances o r otherwise extending credit to any of the
members of the Ferro Group other than as permitted under this Agreement;




(xi) hold regular duly noticed meetings of its Board of Directors and make
and retain minutes of such meetings;




(xii) have bills of sale (or similar instruments of assignment) and, if appropriate,
UCC-1 financing statements, with respect to all assets purchased from any of the members of
the Ferro Group;




(xiii) refrain from engaging in any transaction with any of the members of the Ferro
Group, except as permitted by this Agreement and as contemplated by the Receivables Purchase
Agreement;




(xiv) maintain at all times the Required Capital Condition and refrain from making any
dividend, distribution, redemption of capital stock or payment of any subordinated
indebtedness which would cause such Required Capital Condition to cease to be so
maintained; and




(xv) take such other actions as are necessary on its part to ensure that the facts and
assumptions set forth in the opinion issued by Baker & Hostetler LLP, as counsel for the
Purchaser, in connection with the closing or initial Incremental Purchase under the
Receivables Purchase Agreement and relating to substantive consolidation issues, and in the
certificates accompanying such opinion, remain true and correct in all material respects at
all times.



(p) First-Step Agreement. The Seller will not amend, waive or modify any provision of
the First-Step Agreement (provided that the Seller may extend the “Facility Termination
Date” thereunder) or waive the occurrence of any “Event of Termination” under the First-Step
Agreement (other than any Event of Termination arising under Section 7.01(f) of the First-Step
Agreement), without in each case the prior written consent of the Purchaser and the Agent. The
Seller will perform all of its obligations under the First-Step Agreement in all material respects
and will enforce the First-Step Agreement in accordance with its terms in all material respects.
The Seller will give the Purchaser at least three (3) Business Days’ prior notice of any revision
to the calculation of “Discount” (as defined in the First-Step Agreement), together with an
explanation of the basis for such revision.



SECTION 5.02 Grant of Security Interest. To secure all obligations of the Seller
arising in connection with this Agreement, and each other agreement entered into in connection with
this Agreement, whether now or hereafter existing, due or to become due, direct or indirect, or
absolute or contingent, including, without limitation, Indemnified Amounts, payments on account of
Collections received or deemed to be received, and any other amounts due the Purchaser hereunder,
the Seller hereby assigns and grants to Purchaser a security interest in all of the Seller’s right,
title and interest now or hereafter existing in, to and under (i) all Receivables which constitute
Transferred Receivables, the Related Security and all Collections with regard thereto, and (ii) to
the extent not covered above, all rights of the Seller to receive monies due or to become due under
the First-Step Agreement.



SECTION 5.03 Covenant of the Seller and the Purchaser. The Seller and the Purchaser
have structured this Agreement with the intention that each Purchase of Receivables hereunder be
treated as a sale of such Receivables by the Seller to the Purchaser for all purposes and each
contribution of Receivables hereunder shall be treated as an absolute transfer of such Receivables
by the Seller to the Purchaser for all purposes. The Seller and the Purchaser shall record each
Purchase and contribution as a sale or purchase or capital contribution, as the case may be, on its
books and records, and reflect each Purchase and contribution in its financial statements and tax
returns as a sale or purchase or capital contribution, as the case may be. In the event that,
contrary to the mutual intent of the Seller and the Purchaser, any Purchase or contribution of
Receivables hereunder is not characterized as a sale or absolute transfer, the Seller shall,
effective as of the date hereof, be deemed to have granted (and the Seller hereby does grant) to
the Purchaser a first priority security interest in and to any and all Receivables, the Related
Security and the proceeds thereof to secure the repayment of all amounts advanced to the Seller
hereunder with accrued interest thereon, and this Agreement shall be deemed to be a security
agreement.



ARTICLE VI.

ADMINISTRATION AND COLLECTION




SECTION 6.01 Certain Rights of the Purchaser. (a) The Purchaser may, at any time,
give notice of ownership and/or direct the Obligors of Transferred Receivables and any Person
obligated on any Related Security, or any of them, that payment of all amounts payable under any
Transferred Receivable shall be made directly to the Purchaser or its designee. The Seller hereby
confirms that exclusive ownership and control of each Lock-Box Account maintained by the Seller for
the purpose of receiving Collections has been transferred to the Purchaser (and its assignee).



(b) At any time following the designation of a Collection Agent other than the Seller pursuant
to Article VIII of the Receivables Purchase Agreement or following the occurrence and during
continuation of an Event of Termination or an Incipient Event of Termination:




(i) The Seller shall, upon the Purchaser’s request and at the Seller’s expense, give
notice of the Purchaser’s ownership to each Obligor of Transferred Receivables and direct
that payments of all amounts payable under such Transferred Receivables be made directly to
the Purchaser or its designees or assignees.




(ii) At the Purchaser’s request and at the Seller’s expense, the Seller and the
Collection Agent shall (A) assemble all of the documents, instruments and other records
(including, without limitation, computer tapes and disks) that evidence or relate to the
Transferred Receivables, and the related Contracts and Related Security, or that are
otherwise necessary or desirable to collect the Transferred Receivables, and shall make the
same available to the Purchaser at a place selected by the Purchaser or its designees or
assignees, and (B) segregate all cash, checks and other instruments received by it from time
to time constituting Collections of Transferred Receivables in a manner acceptable to the
Purchaser and, promptly upon receipt, remit all such cash, checks and instruments, duly
indorsed or with duly executed instruments of transfer, to the Purchaser or its designee or
assignee. The Purchaser shall also have the right to make copies of all such documents,
instruments and other records at any time.




(iii) The Seller authorizes the Purchaser to take any and all steps in the Seller’s
name and on behalf of the Seller that are necessary or desirable, in the determination of
the Purchaser, to collect amounts due under the Transferred Receivables, including, without
limitation, endorsing the Seller’s name on checks and other instruments representing
Collections of Transferred Receivables and enforcing the Transferred Receivables and the
Related Security and related Contracts.



SECTION 6.02 Rights and Remedies. (a) If the Seller or the Collection Agent fails to
perform any of its obligations under this Agreement, the Purchaser or its assignees may (but shall
not be required to) itself perform, or cause performance of, such obligation, and, if the Seller
(as Collection Agent or otherwise) fails to so perform, the costs and expenses of the Purchaser
incurred in connection therewith shall be payable by the Seller as provided in Section 8.01 or
Section 9.04 as applicable.



(b) The Seller shall perform all of its obligations under the Contracts related to the
Transferred Receivables to the same extent as if the Seller had not sold or contributed Receivables
hereunder and the exercise by the Purchaser of its rights hereunder shall not relieve the Seller
from such obligations or its obligations with respect to the Transferred Receivables. The
Purchaser shall not have any obligation or liability with respect to any Transferred Receivables or
related Contracts, nor shall the Purchaser be obligated to perform any of the obligations of the
Seller thereunder.



(c) The Seller shall cooperate with the Collection Agent in collecting amounts due from
Obligors in respect of the Transferred Receivables.



(d) The Seller hereby grants to Collection Agent an irrevocable power of attorney, with full
power of substitution, coupled with an interest, to take in the name of the Seller all steps
necessary or advisable to endorse, negotiate or otherwise realize on any writing or other right of
any kind held or transmitted by the Seller or transmitted or received by Purchaser (whether or not
from the Seller) in connection with any Transferred Receivable.



SECTION 6.03 Transfer of Records to Purchaser. Each Purchase and contribution of
Receivables hereunder shall include the transfer to the Purchaser of all of the Seller’s right and
title to and interest in the records relating to such Receivables and shall include an irrevocable
non-exclusive license to the use of the Seller’s computer software system to access and create such
records. Such license shall be without royalty or payment of any kind, is coupled with an
interest, and shall be irrevocable until all of the Transferred Receivables are either collected in
full or become Defaulted Receivables.



The Seller shall take such action requested by the Purchaser, from time to time hereafter,
that may be necessary or appropriate to ensure that the Purchaser has an enforceable ownership
interest in the records relating to the Transferred Receivables and rights (whether by ownership,
license or sublicense) to the use of the Seller’s computer software system to access and create
such records.



In recognition of the Seller’s need to have access to the records transferred to the Purchaser
hereunder, the Purchaser hereby grants to the Seller an irrevocable license to access such records
in connection with any activity arising in the ordinary course of the Seller’s business or in
performance of its duties as Collection Agent, provided that (i) the Seller shall not disrupt or
otherwise interfere with the Purchaser’s use of and access to such records during such license
period and (ii) the Seller consents to the assignment and delivery of the records (including any
information contained therein relating to the Seller or its operations) to any assignees or
transferees of the Purchaser provided they agree to hold such records confidential.



SECTION 6.04 Receivables Information and Reporting(a) . (a) Upon the Collection
Agent’s request, the Seller shall deliver to the Collection Agent, and the Collection Agent shall
hold in trust for the Seller and the Purchaser in accordance with their respective interests, all
documents, instruments and records (including, without limitation, computer tapes or disks) which
evidence or relate to Purchased Receivables.



(b) The Seller shall furnish such information and provide such access to its books and records
to the Collection Agent as Collection Agent may reasonably request to permit the Collection Agent
to timely prepare and deliver all Daily Reports, Monthly Reports and such other reports and/or
information as may be required pursuant to the Receivables Purchase Agreement and/or any other
Transaction Document.



ARTICLE VII.

EVENTS OF TERMINATION




SECTION 7.01 Events of Termination If any of the following events (collectively,
“Events of Termination” and individually, an “Event of Termination”) shall occur
and be continuing:



(a) The Seller shall fail to transfer to the Purchaser when requested any rights, pursuant to
this Agreement, which the Seller then has as Collection Agent, or the Seller shall fail to make any
payment required under this Agreement; or



(b) Any representation or warranty made or deemed made by the Seller (or any of its officers)
under or in connection with this Agreement or any information or report delivered by the Seller
pursuant to this Agreement shall prove to have been incorrect or untrue in any material respect
when made or deemed made or delivered (other than in respect of any breach of the representations
or warranties in Section 4.01(j) with respect to any Receivable to the extent that a Purchase Price
Credit under Section 2.04 is provided) and is not cured within five (5) Business Days following the
earlier to occur of (i) notice from Purchaser or Agent of such inaccuracy, or (ii) the date on
which an Authorized Officer of such Seller otherwise becomes aware of such inaccuracy;
provided, that the materiality threshold in this subsection shall not be applicable with
respect to any representation or warranty which itself contains a materiality threshold; or



(c) The Seller shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement on its part to be performed or observed and any such failure shall
remain unremedied for ten (10) days after written notice thereof shall have been given to the
Seller by the Purchaser; or



(d) [Intentionally Omitted]; or



(e) Any Purchase or contribution of Receivables hereunder, the Related Security and the
Collections with respect thereto shall for any reason cease to constitute valid and perfected
ownership of such Receivables, Related Security and Collections free and clear of any Adverse
Claim; or



(f) The Seller or any of the other Originators shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding shall be instituted by or
against the Seller or any of the other Originators seeking to adjudicate it a bankrupt or
insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or for any substantial part of
its property and, in the case of any such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or unstayed for a period of thirty (30) days,
or any of the actions sought in such proceeding (including, without limitation, the entry of an
order for relief against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or the Seller or any of
its subsidiaries shall take any corporate action to authorize any of the actions set forth above in
this subsection (f); or



(g) (i) the “Facility Termination Date” under and as defined in the Receivables Purchase
Agreement shall have occurred; or



(h) an “Event of Termination” under and as defined in the First-Step Agreement shall have
occurred; or



(i) any Originator shall for any reason cease to transfer, or cease to have the legal capacity
to transfer, or otherwise be incapable of transferring Receivables to the Seller under the
First-Step Agreement or the Seller shall for any reason cease to transfer, or cease to have the
legal capacity to transfer, or otherwise be incapable of transferring Receivables to the Purchaser
under this Agreement, other than, in the case of any Originator which is a Subsidiary of the
Seller, as a result of a liquidation, dissolution, consolidation or merger permitted by Section
5.04 of the First-Step Agreement;



then, and in any such event, the Purchaser or its assignees may, by notice to the Seller, take
either or both of the following actions: (x) declare the Facility Termination Date to have
occurred (in which case the Facility Termination Date shall be deemed to have occurred) and
(y) without limiting any right under this Agreement to replace the Collection Agent (but subject,
prior to the RPA Final Payment Date, to the designation made under the Receivables Purchase
Agreement), designate another Person to succeed the Seller as Collection Agent; provided,
that, automatically upon the occurrence of any event (without any requirement for the passage of
time or the giving of notice) described in paragraph (f) of this Section 7.01, the Facility
Termination Date shall occur, the Seller (if it is then serving as the Collection Agent) shall
cease to be the Collection Agent, and the Purchaser (or its assigns or designees) shall become the
Collection Agent. Upon any such declaration or designation or upon such automatic termination, the
Purchaser or its assignees shall have, in addition to the rights and remedies under this Agreement,
all other rights and remedies with respect to the Receivables provided after default under the UCC
and under other applicable law, which rights and remedies shall be cumulative.



ARTICLE VIII.

INDEMNIFICATION




SECTION 8.01 Indemnities by the Seller. Without limiting any other rights that the
Purchaser may have hereunder or under applicable law, Seller hereby agrees to indemnify (and pay
upon demand to) the Purchaser and its respective assigns, officers, directors, agents and employees
(each an “Indemnified Party”) from and against any and all damages, losses, claims, taxes,
liabilities, costs, expenses and for all other amounts payable, including reasonable attorneys’
fees (which attorneys may be employees of the Purchaser) and disbursements (all of the foregoing
being collectively referred to as “Indemnified Amounts”) awarded against or incurred by any
of them arising out of or as a result of this Agreement or the acquisition by Purchaser of the
Receivables including, without limitation, Indemnified Amounts (including, without limitation,
losses in respect of uncollectible receivables, regardless of whether reimbursement therefor would
constitute recourse to such Seller) relating to or resulting from:




(i) any representation or warranty made by Seller (or any officers of such Person)
under or in connection with this Agreement, any other Transaction Document or any other
information or report required to be delivered by any such Person pursuant hereto or
thereto, which shall have been false or incorrect when made or deemed made;




(ii) the failure by Seller to comply with any applicable law, rule or regulation with
respect to any Receivable or Contract related thereto, or the nonconformity of any
Receivable or Contract included therein with any such applicable law, rule or regulation or
any failure of any Originator to keep or perform any of its obligations, express or implied,
with respect to any Contract;




(iii) any failure of Seller to perform its duties, covenants or other obligations in
accordance with the provisions of this Agreement or any other Transaction Document;




(iv) any environmental liability, products liability, personal injury or damage suit,
or other similar claim arising out of or in connection with merchandise, insurance or
services that are the subject of any Contract or any Receivable;




(v) any dispute, claim, offset or defense (other than discharge in bankruptcy of the
Obligor) of the Obligor to the payment of any Receivable (including, without limitation, a
defense based on such Receivable or the related Contract not being a legal, valid and
binding obligation of such Obligor enforceable against it in accordance with its terms), or
any other claim resulting from the sale of the merchandise or service related to such
Receivable or the furnishing or failure to furnish such merchandise or services;




(vi) the commingling of Collections of Receivables at any time with other funds;




(vii) any investigation, litigation or proceeding related to or arising from this
Agreement or any other Transaction Document, the transactions contemplated hereby, the use
of the proceeds of any Receivable purchased hereunder, the ownership of the Receivables or
any other investigation, litigation or proceeding relating to Seller in which any
Indemnified Party becomes involved as a result of any of the transactions contemplated
hereby;




(viii) any inability to litigate any claim against any Obligor in respect of any
Receivable as a result of such Obligor being immune from civil and commercial law and suit
on the grounds of sovereignty or otherwise from any legal action, suit or proceeding;




(ix) any Event of Termination described in Section 7.01(f) or Section
7.01(h) of this Agreement;




(x) any failure of Seller to acquire and maintain legal and equitable title to, and
ownership of any Receivable and the Related Security and Collections, free and clear of any
Adverse Claim (other than as created hereunder); or any failure of Purchaser to give
reasonably equivalent value to Seller hereunder in consideration of the transfer by Seller
of any Receivable, or any attempt by any Person to void such transfer under statutory
provisions or common law or equitable action;




(xi) any failure to vest and maintain vested in the Purchaser (or its assignees), or to
transfer to the Purchaser (or its assignees), legal and equitable title to, and ownership
of, the Receivables, the Related Security and the Collections, free and clear of any Adverse
Claim (except as created by the Transaction Documents);




(xii) the failure to have filed, or any delay in filing, financing statements or other
similar instruments or documents under the UCC of any applicable jurisdiction or other
applicable laws with respect to any Receivable, the Related Security and Collections with
respect thereto, and the proceeds of any thereof, whether at closing or at any subsequent
time;




(xiii) any action or omission by Seller which reduces or impairs the rights of the
Purchaser with respect to any Receivable of such Seller or reduces the Outstanding Balance
of any Receivable;




(xiv) any attempt by any Person to void any transfer of Receivables hereunder under
statutory provisions or common law or equitable action;




(xv) the failure of any Receivable transferred hereunder and identified as an Eligible
Receivable to be an Eligible Receivable at the time so included and identified; and




(xvi) any Dilution with respect to any Transferred Receivable.



Notwithstanding the foregoing, it is expressly agreed and understood by the parties hereto (i) that
the foregoing indemnification is not intended to, and shall not, constitute a guarantee of the
collectibility or payment of the Transferred Receivables and (ii) that nothing in this Section 8.01
shall require the Seller to indemnify any Person (A) for Receivables which are not collected, not
paid or uncollectible on account of the insolvency, bankruptcy, lack of creditworthiness or
financial inability or unwillingness to pay of the applicable Obligor, (B) for damages, losses,
claims or liabilities or related costs or expenses to the extent found in a final non-appealable
judgment of a court of competent jurisdiction to have resulted from an Indemnified Party’s gross
negligence or willful misconduct, or (C) for any income taxes or franchise taxes incurred by such
Person arising out of or as a result of this Agreement or in respect of any Transferred Receivable
or any Contract.



ARTICLE IX.

MISCELLANEOUS




SECTION 9.01 Amendments, Etc. No amendment or waiver of any provision of this
Agreement or consent to any departure by the Seller therefrom shall be effective unless in a
writing signed by the Purchaser and the Agent and, in the case of any amendment, also signed by the
Seller, and then such amendment, waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given. No failure on the part of the Purchaser to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further exercise thereof or
the exercise of any other right. Notwithstanding any other provision of this Section 9.01,
Exhibit B hereto may be amended in accordance with the procedures set forth in
Section 5.01(b).



SECTION 9.02 Notices, Etc. All notices and other communications hereunder shall,
unless otherwise stated herein, be in writing (which shall include facsimile communication) and be
faxed or delivered, to each party hereto, at its address set forth under its name on the signature
pages hereof or at such other address as shall be designated by such party in a written notice to
the other parties hereto. Notices and communications by facsimile shall be effective when sent
(and shall be followed by hard copy sent by regular mail), and notices and communications sent by
other means shall be effective when received.



SECTION 9.03 Binding Effect; Assignability. (a) This Agreement shall be binding upon
and inure to the benefit of the Seller, the Purchaser and their respective successors and assigns;
provided, however, that the Seller may not assign its rights or obligations
hereunder or any interest herein without the prior written consent of the Purchaser and Agent. In
connection with any sale or assignment by the Purchaser of all or a portion of the Transferred
Receivables, the buyer or assignee, as the case may be, shall, to the extent of its purchase or
assignment, have all rights of the Purchaser under this Agreement (as if such buyer or assignee, as
the case may be, were the Purchaser hereunder) except to the extent specifically provided in the
agreement between the Purchaser and such buyer or assignee, as the case may be.



(b) This Agreement shall create and constitute the continuing obligations of the parties
hereto in accordance with its terms, and shall remain in full force and effect until such time,
after the Facility Termination Date, when all of the Transferred Receivables are either collected
in full or become Defaulted Receivables; provided, however, that rights and
remedies with respect to any breach of any representation and warranty made by the Seller pursuant
to Article IV and the provisions of Article VIII and Sections 9.04, 9.05 and 9.06 shall be
continuing and shall survive any termination of this Agreement.



SECTION 9.04 Costs, Expenses and Taxes. (a) In addition to the rights of
indemnification granted to the Purchaser pursuant to Article VIII hereof, the Seller agrees to pay
on demand all costs and expenses in connection with the preparation, execution and delivery of this
Agreement and the other documents and agreements to be delivered hereunder, including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the Purchaser with
respect thereto and with respect to advising the Purchaser as to its rights and remedies under this
Agreement, and the Seller agrees to pay all costs and expenses, if any (including reasonable
counsel fees and expenses), in connection with the enforcement of this Agreement and the other
documents to be delivered hereunder excluding, however, any costs of enforcement or
collection of Transferred Receivables which are not paid on account of the insolvency, bankruptcy
or financial inability to pay of the applicable Obligor.



(b) In addition, the Seller agrees to pay any and all stamp and other taxes and fees payable
in connection with the execution, delivery, filing and recording of this Agreement or the other
documents or agreements to be delivered hereunder, and the Seller agrees to save each Indemnified
Party harmless from and against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.



SECTION 9.05 No Proceedings. The Seller hereby agrees that it will not institute
against the Purchaser any proceeding of the type referred to in Section 7.01(f) so long as there
shall not have elapsed one year plus one (1) day since the later of (i) the Facility Termination
Date and (ii) the date on which all of the Transferred Receivables are either collected in full or
become Defaulted Receivables.



SECTION 9.06 Confidentiality. (a) Each of the parties hereto shall maintain and shall
cause each of its employees and officers to maintain the confidentiality of the Fee Letter and the
other confidential or proprietary information with respect to the Originators, the Agent, the RPA
Purchasers and their respective businesses obtained by it or them in connection with the
structuring, negotiating and execution of the transactions contemplated herein, except that such
party and its directors, officers and employees may disclose such information (i) to such party’s
external accountants, attorneys, investors, potential investors and credit enhancers and the agents
or advisors of such Persons and (ii) as required by any applicable law or regulation or by any
court, regulatory body or agency having jurisdiction over such party (including, without
limitation, the filing of this Agreement with the SEC as an exhibit to an annual or quarterly
report under the Securities Exchange Act of 1934); and provided, further, that such
party shall have no obligation of confidentiality in respect of any information which may be
generally available to the public or becomes available to the public through no fault of such
party.



(b) Anything herein to the contrary notwithstanding, the Seller hereby consents to the
disclosure of any nonpublic information with respect to it (i) to the Agent and each of the RPA
Purchasers, (ii) to any prospective or actual assignee or participant of the Agent or any of the
RPA Purchasers, and (iii) to any rating agency, and to any officers, directors, employees, outside
accountants, advisors and attorneys of any of the foregoing, provided each such Person is advised
of the confidential nature of such information and, in the case of a Person described in clause
(ii) above, agrees to be bound by the provisions of this Section 9.06. In addition, the
Agent and the RPA Purchasers may disclose any such nonpublic information pursuant to any law, rule,
regulation, direction, request or order of any judicial, administrative or regulatory authority or
proceedings (whether or not having the force or effect of law) although each of them shall use
commercially reasonable efforts to ensure, to the extent permitted given the circumstances, that
any such information which is so disclosed is kept confidential.



SECTION 9.07 GOVERNING LAW. THIS AGREEMENT, IN ACCORDANCE WITH SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF
THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION, EXCEPT TO THE EXTENT
THAT, PURSUANT TO THE UCC OF THE STATE OF NEW YORK, THE PERFECTION AND THE EFFECT OF PERFECTION OR
NON-PERFECTION OF THE PURCHASER’S OWNERSHIP OF OR SECURITY INTEREST IN THE RECEIVABLES ARE GOVERNED
BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK; PROVIDED, HOWEVER, THAT
SECTION 2.02(e) SHALL BE GOVERNED BY THE LAWS OF THE FEDERAL REPUBLIC OF GERMANY.



SECTION 9.08 Third Party Beneficiary. Each of the parties hereto hereby acknowledges
that the Purchaser may assign all or any portion of its rights under this Agreement and that such
assignees may (except as otherwise agreed to by such assignees) further assign their rights under
this Agreement, and the Seller hereby consents to any such assignments. All such assignees,
including parties to the Receivables Purchase Agreement in the case of assignment to such parties,
shall be third party beneficiaries of, and shall be entitled to enforce the Purchaser’s rights and
remedies under, this Agreement to the same extent as if they were parties thereto, except to the
extent specifically limited under the terms of their assignment.



SECTION 9.09 Execution in Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.



SECTION 9.10 Judgment. (a) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in U.S. Dollars into another currency, the parties
hereto agree, to the fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Purchaser could purchase
U.S. Dollars with such other currency at New York, New York on the Business Day preceding that on
which final judgment is given.



(b) The obligation of the Seller in respect of any sum due from it to the Purchaser hereunder
shall, notwithstanding any judgment in a currency other than U.S. Dollars, be discharged only to
the extent that on the Business Day following receipt by the Purchaser of any sum adjudged to be so
due in such other currency the Purchaser may in accordance with normal banking procedures purchase
U.S. Dollars with such other currency; if the U.S. Dollars so purchased are less than the sum
originally due to the Purchaser in U.S. Dollars, the Seller agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Purchaser against such loss, and if the U.S.
Dollars so purchased exceed the sum originally due to the Purchaser in U.S. Dollars, the Purchaser
shall remit to the Seller such excess.



[Remainder of page intentionally left blank]




IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	SELLER:	 	FERRO CORPORATION

	 	 	By: /s/ John T. Bingle

	 	 	 

	 	 	Name: John T. Bingle

	 	 	Title:

	 	Treasurer






	 	 	 	 	 
	 	 	1000 Lakeside Avenue
	 	 	Cleveland, OH 44114
	 	 	Attention:	 	 	Treasurer
	 	 	Facsimile No.:	(216) 875-7237
	 	 	PURCHASER: FERRO FINANCE CORPORATION
	 	 	By: /s/ Robert Gage
	 	 	Name: Robert Gage	 
	 	 	 	 	 	Title: Assistant Treasurer






1789 Transelco Drive, Suite A


Penn Yan, NY 14527




Attention: Secretary


Facsimile No.: (315) 536-3826



EXHIBIT B




SELLER UCC INFORMATION




Name: Ferro Corporation



Jurisdiction of Organization: Ohio



UCC Filing Office: Ohio Secretary of State



Principal Place of Business Address: 1000 Lakeside Avenue, Cleveland, OH 44114



Location of its Records Concerning the Purchased Receivables: 1000 Lakeside Avenue, Cleveland, OH
44114



EXHIBIT C

FORM OF CHOICE OF LAW PROVISION IN SELLER’S ORDERS

AND OTHER AGREEMENTS




“Governing Law. This contract shall be governed and construed in accordance with the
laws of the [insert one of the fifty states of the United States or the District of Columbia],
without application of its choice of law rules.”



EXHIBIT E

[Intentionally Omitted]EXHIBIT F

TRADENAMES OR DOING-BUSINESS-AS NAMES

Ferro Ceramics Inc. (Texas)




SOLICITORS, 003554, 000059, 102811586.1, Ferro — Wachovia Purchase and Contribution Agreement
w/ Conformed Sigs (Step 2)