FIRST AMENDMENT TO
THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this Amendment), dated as of May 31,
2011, is entered into between FERRO PFANSTIEHL LABORATORIES, INC. (the Seller) and FERRO
CORPORATION (the Purchaser).
1. The Purchaser and the Seller are parties to the Purchase Agreement, dated as of June 2,
2009 (as amended, supplemented or otherwise modified through the date hereof, the Purchase
2. Each of the parties hereto desires to amend the Purchase Agreement as hereinafter set
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Certain Defined Terms. Capitalized terms that are used herein without definition
shall have the meanings set forth in the Purchase Agreement or in the Receivables Purchase
Agreement (as defined in the Purchase Agreement).
2. Amendments to the Purchase Agreement. The Purchase Agreement is hereby amended as
(a) Section 4.01(g) of the Purchase Agreement is hereby amended to delete the word
may and insert the phrase could reasonably be expected to in replacement thereof.
(b) Section 4.01(q) of the Purchase Agreement is hereby amended and restated in its
entirety as follows:
(q) 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 (A) 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 or (B) where the failure to so file or pay could
not reasonably be expected to have a Material Adverse Effect. Seller will also pay when due
any taxes payable in connection with the Receivables originated by it, exclusive of taxes on
or measured by income or gross receipts of Purchaser and its assigns.
(c) The following new Section to the Purchase Agreement is added immediately following
Section 4.01 thereof:
SECTION 4.02. Ordinary Course. Each of the Seller and Purchaser represents
and warrants as to itself that each remittance of Collections by the Seller to the Purchaser
under this Agreement will have been (i) in payment of a debt incurred by the Seller in the
ordinary course of business or financial affairs of the Seller and the Purchaser and (ii)
made in the ordinary course of business or financial affairs of the Seller and the
(d) The second sentence of Section 5.01(i) of the Purchase Agreement is hereby amended
to delete the word immediately and insert the word promptly in replacement thereof.
3. Representations and Warranties. Each of the Seller and the Purchaser represents
and warrants that:
(a) Representations and Warranties. Immediately after giving effect to this
Amendment, each representation and warranty made by it in the Purchase Agreement and in the
other Transaction Documents is true and correct as of the date hereof (unless stated to
relate solely to an earlier date, in which case such representation or warranty was true and
correct as of such earlier date).
(b) Enforceability. The execution and delivery by such Person of this
Amendment, and the performance of each of its obligations under this Amendment and the
Purchase Agreement, as amended hereby, are within each of its corporate powers and have been
duly authorized by all necessary corporate action on its part. This Amendment and the
Purchase Agreement, as amended hereby, are such Persons valid and legally binding
obligations, enforceable in accordance with its terms.
(c) No Default. Immediately after giving effect to this Amendment, no Event of
Termination or Incipient Event of Termination has occurred and is continuing.
In addition, each party hereto acknowledges that, on or about April 30, 2010, Ferro Color
merged with and into the Purchaser and that the Seller is the only Seller for purposes of the
4. Effect of Amendment. All provisions of the Purchase Agreement, as expressly
amended and modified by this Amendment, shall remain in full force and effect. After this
Amendment becomes effective, all references in the Purchase Agreement (or in any other Transaction
Document) to the Purchase Agreement, or to hereof, herein or words of similar effect
referring to the Purchase Agreement, shall be deemed to be references to the Purchase Agreement as
amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to
waive, amend or supplement any provision of the Purchase Agreement other than as set forth herein.
5. Conditions Precedent to Effectiveness. This Amendment shall become effective as
of the date hereof upon receipt by the Agent of each of the following, each in form and substance
satisfactory to the Agent:
(a) counterparts of that certain Amended and Restated Receivables Purchase Agreement,
dated as of the date hereof, by and among the parties thereto, together with evidence that
each of the conditions precedent to effectiveness set forth therein have been satisfied;
(b) counterparts of this Amendment duly executed by each of the parties hereto; and
(c) such other documents, agreements, instruments, and opinions as the Administrator
may request in connection with this Amendment.
6. Counterparts. This Amendment may be executed in any number of counterparts and by
different parties on separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute but one and the same instrument.
Delivery by facsimile or email of an executed signature page of this Amendment shall be effective
as delivery of an executed counterpart hereof.
7. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York (without regard to any otherwise applicable
principles of conflicts of law).
8. Section Headings. The various headings of this Amendment are included for
convenience only and shall not affect the meaning or interpretation of this Amendment, the Purchase
Agreement, any other Transaction Document or any provision hereof or thereof.
[Signature pages follow.]
IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written
FERRO PFANSTIEHL LABORATORIES, INC.,
By: /s/ John T. Bingle
Name: John T. Bingle
By: /s/ John T. Bingle
Name: John T. Bingle
|ACKNOWLEDGED AND AGREED:
|as Collection Agent
||/s/ John T. Bingle