Exhibit 10 (m)
RECEIVABLES PURCHASE AGREEMENT
Dated as of September 28, 2000
Among
FERRO FINANCE CORPORATION
AS THE SELLER
and
▇▇▇▇▇▇ ▇.▇.
AS THE INVESTOR
and
CITICORP NORTH AMERICA, INC.
AS THE AGENT
and
FERRO ELECTRONIC MATERIALS, INC.
AS AN ORIGINATOR
and
FERRO CORPORATION
AS COLLECTION AGENT AND AN ORIGINATOR
TABLE OF CONTENTS
PAGE
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PRELIMINARY STATEMENT............................................................................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms.............................................................................1
SECTION 1.02. Other Terms......................................................................................17
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Purchase Facility................................................................................17
SECTION 2.02. Making Purchases.................................................................................18
SECTION 2.03. Receivable Interest Computation..................................................................18
SECTION 2.04. Settlement Procedures............................................................................18
SECTION 2.05. Fees.............................................................................................20
SECTION 2.06. Payments and Computations, Etc...................................................................21
SECTION 2.07. Dividing or Combining Receivable Interests.......................................................21
SECTION 2.08. Increased Costs..................................................................................21
SECTION 2.09. Additional Yield on Receivable Interests Bearing a Eurodollar Rate...............................22
SECTION 2.10. Security Interest................................................................................22
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. Conditions Precedent to Initial Purchase.........................................................23
SECTION 3.02. Conditions Precedent to All Purchases and Reinvestments..........................................24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller.....................................................25
SECTION 4.02. Representations and Warranties of the Collection Agent...........................................27
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TABLE OF CONTENTS
(continued)
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ARTICLE V
COVENANTS
SECTION 5.01. Covenants of the Seller..........................................................................29
SECTION 5.02. Covenant of the Seller and the Originators.......................................................34
ARTICLE VI
ADMINISTRATION AND COLLECTION OF POOL RECEIVABLES
SECTION 6.01. Designation of Collection Agent..................................................................34
SECTION 6.02. Duties of Collection Agent.......................................................................34
SECTION 6.03. Certain Rights of the Agent......................................................................35
SECTION 6.04. Rights and Remedies..............................................................................36
SECTION 6.05. Further Actions Evidencing Purchases.............................................................36
SECTION 6.06. Covenants of the Collection Agent and the Originators............................................37
SECTION 6.07. Indemnities by the Collection Agent..............................................................37
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination............................................................................38
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action.........................................................................41
SECTION 8.02. Agent's Reliance, Etc............................................................................41
SECTION 8.03. CNAI and Affiliates..............................................................................41
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. Indemnities by the Seller........................................................................41
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TABLE OF CONTENTS
(continued)
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc.................................................................................43
SECTION 10.02. Notices, Etc....................................................................................43
SECTION 10.03. Assignability...................................................................................43
SECTION 10.04. Costs, Expenses and Taxes.......................................................................44
SECTION 10.05. No Proceedings..................................................................................45
SECTION 10.06. Confidentiality.................................................................................45
SECTION 10.07. GOVERNING LAW...................................................................................45
SECTION 10.08. Execution in Counterparts.......................................................................45
SECTION 10.09. Survival of Termination.........................................................................45
SECTION 10.10. Consent to Jurisdiction.........................................................................45
SECTION 10.11. WAIVER OF JURY TRIAL............................................................................46
SECTION 10.12. Judgment........................................................................................46
SCHEDULES
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SCHEDULE I - Lock-Box Banks
SCHEDULE II - Credit and Collection Policy
ANNEXES
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ANNEX A - Form of Seller Report
ANNEX B - Form of Lock-Box Agreement
ANNEX C - Form of Opinion of Counsel to the Seller
ANNEX D - Form of Drawdown Notice
ANNEX E - Form of Undertaking Agreement
ANNEX F - Agreed Upon Procedures
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RECEIVABLES
PURCHASE AGREEMENT
Dated as of September 28, 2000
FERRO FINANCE CORPORATION, an Ohio corporation (the "SELLER"),
▇▇▇▇▇▇ ▇.▇., a New York limited partnership, and CITICORP NORTH AMERICA, INC., a
Delaware corporation ("CNAI"), as agent (the "AGENT") for the Investors (as
defined herein), FERRO ELECTRONIC MATERIALS, INC., a Delaware corporation, as an
Originator, and FERRO CORPORATION, an Ohio corporation, as Collection Agent and
an Originator, agree as follows:
PRELIMINARY STATEMENT. The Seller has acquired, and may
continue to acquire Receivables from the Originators (as hereinafter defined),
either by purchase or by contribution to the capital of the Seller, as
determined from time to time by the Seller and each Originator. The Seller is
prepared to sell undivided fractional ownership interests (referred to herein as
"RECEIVABLE INTERESTS") in the Receivables. ▇▇▇▇▇▇ may, in its sole discretion,
purchase such Receivable Interests on the terms set forth herein. Accordingly,
the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"ADJUSTED EURODOLLAR RATE" means, for any Fixed Period, an
interest rate per annum equal to the rate per annum obtained by dividing (i) the
Eurodollar Rate for such Fixed Period by (ii) a percentage equal to 100% minus
the Eurodollar Rate Reserve Percentage for such Fixed Period.
"ADVERSE CLAIM" means a lien, security interest or other
charge or encumbrance, or any other type of preferential arrangement.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or officer of such Person.
"AFFILIATED OBLIGOR" means any Obligor that is an Affiliate of
another Obligor.
"AGENT'S ACCOUNT" means the special account (account number
3885-8248) of the Agent maintained at the office of Citibank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
"ALTERNATE BASE RATE" means a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be at all times
equal to the highest of:
(i) the rate of interest announced publicly by
Citibank in New York, New York, from time to time as
Citibank's base rate;
(ii) 1/2 of one percent above the latest three-week
moving average of secondary market morning offering rates in
the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving
average being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous Friday
by Citibank on the basis of such rates reported by certificate
of deposit dealers to and published by the Federal Reserve
Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received
by Citibank from three New York certificate of deposit dealers
of recognized standing selected by Citibank, in either case
adjusted to the nearest 1/4 of one percent or, if there is no
nearest 1/4 of one percent, to the next higher 1/4 of one
percent; or
(iii) the Federal Funds Rate.
"APC RECEIVABLE" means any receivable created or originated by
the Advance Polymer Compounding Division of Ferro Corporation.
"ASSET PURCHASE AGREEMENT" means the secondary market
agreement, asset purchase agreement or other similar liquidity agreement entered
into by Citibank or any other Eligible Assignee for the benefit of ▇▇▇▇▇▇, to
the extent relating to the sale or transfer of interests in Receivable
Interests.
"ASSIGNEE RATE" for any Fixed Period for any Receivable
Interest means an interest rate per annum equal to 1.0% per annum above the
Eurodollar Rate for such Fixed Period; PROVIDED, HOWEVER, that in case of:
(i) any Fixed Period on or prior to the first day of
which an Investor shall have notified the Agent that the
introduction of or any change in or in the interpretation of
any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful,
for such Investor to fund such Receivable Interest at the
Assignee Rate set forth above (and such Investor shall not
have subsequently notified the Agent that such circumstances
no longer exist),
(ii) any Fixed Period of one to (and including) 29
days,
(iii) any Fixed Period as to which the Agent does not
receive notice, by no later than 12:00 noon (New York City
time) on the third Business Day preceding the first day of
such Fixed Period, that the related Receivable Interest will
not be funded by issuance of commercial paper, or
(iv) any Fixed Period for a Receivable Interest the
Capital of which allocated to the Investors is less than
$500,000,
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the "ASSIGNEE RATE" for such Fixed Period shall be an interest rate per annum
equal to the Alternate Base Rate in effect on the first day of such Fixed
Period; PROVIDED FURTHER that the Agent and the Seller may agree in writing from
time to time upon a different "ASSIGNEE RATE".
"AVERAGE MATURITY" means at any time that period of days equal
to the average maturity of the Pool Receivables calculated by the Collection
Agent in the then most recent Seller Report; provided if the Agent shall
disagree with any such calculation, the Agent may recalculate such Average
Maturity.
"BUSINESS DAY" means any day on which (i) banks are not
authorized or required to close in New York, New York or Cleveland, Ohio, and
(ii) if this definition of "Business Day" is utilized in connection with the
Eurodollar Rate, dealings are carried out in the London interbank market.
"CAPITAL" of any Receivable Interest means the original amount
paid to the Seller for such Receivable Interest at the time of its purchase by
▇▇▇▇▇▇ pursuant to this Agreement, or such amount divided or combined in
accordance with Section 2.07, in each case reduced from time to time by
Collections distributed on account of such Capital pursuant to Section 2.04(d);
PROVIDED that if such Capital shall have been reduced by any distribution and
thereafter all or a portion of such distribution is rescinded or must otherwise
be returned for any reason, such Capital shall be increased by the amount of
such rescinded or returned distribution, as though it had not been made.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ ▇.▇. and any successor or assign of
▇▇▇▇▇▇ that is a receivables investment company which in the ordinary course of
its business issues commercial paper or other securities to fund its acquisition
and maintenance of receivables.
"CITIBANK" means Citibank, N.A., a national banking
association.
"COLLECTION AGENT" means at any time the Person then
authorized pursuant to Section 6.01 to administer and collect Pool Receivables.
"COLLECTION AGENT FEE" has the meaning specified in Section
2.05(a).
"COLLECTION DELAY PERIOD" means 10 days or such other number
of days as the Agent may select upon three Business Days' notice to the Seller.
"COLLECTIONS" means, with respect to any Receivable, all cash
collections and other cash proceeds of such Receivable, including, without
limitation, all cash proceeds of Related Security with respect to such
Receivable, and any Collection of such Receivable deemed to have been received
pursuant to Section 2.04.
"CONCENTRATION LIMIT" for any Obligor means at any time 3.0%,
or such other percentage ("SPECIAL CONCENTRATION LIMIT") for such Obligor
designated by the Agent in a writing delivered to the Seller; PROVIDED that in
the case of an Obligor with any Affiliated Obligor, the Concentration Limit
shall be calculated as if such Obligor and such Affiliated Obligor are one
Obligor; PROVIDED FURTHER that the Agent may cancel any Special Concentration
Limit upon three Business Days' notice to the Seller.
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"CP FIXED PERIOD DATE" means, for any Receivable Interest, the
date of purchase of such Receivable Interest and thereafter the tenth day of
each calendar month (or, if such day is not a Business Day, the immediately
succeeding Business Day) (provided that the first CP Fixed Period Date after the
initial purchase hereunder shall be November 10, 2000) or any other day as shall
have been agreed to in writing by the Agent and the Seller prior to the first
day of the preceding Fixed Period for such Receivable Interest or, if there is
no preceding Fixed Period, prior to the first day of such Fixed Period.
"CONTRACT" means an agreement between an Originator and an
Obligor, substantially in the form of one of the written contracts or (in the
case of any open account agreement) one of the invoices approved by the Agent,
pursuant to or under which such Obligor shall be obligated to pay for
merchandise, insurance or services from time to time.
"CREDIT AND COLLECTION POLICY" means those receivables credit
and collection policies and practices of the Seller in effect on the date of
this Agreement and described in Schedule II hereto, as modified in compliance
with this Agreement.
"DEBT" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar instruments,
(iii) obligations to pay the deferred purchase price of property or services,
(iv) obligations as lessee under leases which shall have been or should be, in
accordance with generally accepted accounting principles, recorded as capital
leases, and (v) obligations under direct or indirect guaranties in respect of,
and obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise to assure a creditor against loss in respect of, indebtedness or
obligations of others of the kinds referred to in clauses (i) through (iv)
above.
"DEFAULT RATIO" means the ratio (expressed as a percentage)
computed as of the last day of each calendar month by dividing (i) the aggregate
Outstanding Balance of all Originator Receivables that were Defaulted
Receivables on such day or that would have been Defaulted Receivables on such
day had they not been written off the books of the relevant Originator or the
Seller during such month by (ii) the aggregate Outstanding Balance of all
Originator Receivables on such day.
"DEFAULTED RECEIVABLE" means an Originator Receivable:
(i) as to which any payment, or part thereof, remains
unpaid for 90 or more days from the original due date for such
payment;
(ii) as to which the Obligor thereof or any other
Person obligated thereon or owning any Related Security in
respect thereof has taken any action, or suffered any event to
occur, of the type described in Section 7.01(g); or
(iii) which, consistent with the Credit and
Collection Policy, would be written off the relevant
Originator's or the Seller's books as uncollectible.
"DEFERRED PURCHASE PRICE" has the meaning specified in the
Originator Purchase Agreement.
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"DESIGNATED OBLIGOR" means, at any time, each Obligor;
PROVIDED, HOWEVER, that any Obligor shall cease to be a Designated Obligor upon
three Business Days' notice by the Agent to the Seller.
"DILUTED RECEIVABLE" means that portion (and only that
portion) of any Originator Receivable which is either (a) reduced or canceled as
a result of (i) any defective, rejected or returned merchandise or services or
any failure by the relevant Originator to deliver any merchandise or provide any
services or otherwise to perform under the underlying Contract or invoice, (ii)
any change in the terms of or cancellation of, a Contract or invoice or any cash
discount, discount for quick payment or other adjustment by the relevant
Originator which reduces the amount payable by the Obligor on the related
Originator Receivable (except any such change or cancellation resulting from or
relating to the financial inability to pay or insolvency of the Obligor of such
Originator Receivable) or (iii) any set-off by an Obligor in respect of any
claim by such Obligor as to amounts owed by it on the related Originator
Receivable (whether such claim arises out of the same or a related transaction
or an unrelated transaction) or (b) subject to any specific dispute, offset,
counterclaim or defense whatsoever (except the discharge in bankruptcy of the
Obligor thereof); PROVIDED that Diluted Receivables are calculated assuming that
all chargebacks are resolved in the Obligor's favor and do not include
contractual adjustments to the amount payable by an Obligor that are eliminated
from the Originator Receivables balance sold to the Seller through a reduction
in the purchase price for the related Originator Receivable.
"DILUTION HORIZON FACTOR" means, as of any date, a ratio
computed by dividing (i) the aggregate original Outstanding Balance of all
Originator Receivables created by the Originators during the two most recently
ended calendar months by (ii) the Outstanding Balance of Originator Receivables
(other than Defaulted Receivables) as at the last day of the most recently ended
calendar month.
"DILUTION PERCENTAGE" means, as of any date, (I) prior to the
existence of a Special Event, the product of (x) 1.2, multiplied by (y) the
highest three month average Default Ratio for each three-month period ending on
the last day of the twelve most recent calendar months, and (II) during the
existence of a Special Event, the product of (a) the sum of (i) the product of
(x) two, multiplied by (y) the average of the Dilution Ratios for each of the
twelve most recently ended calendar months, plus (ii) the Dilution Volatility
Ratio as at the last day of the most recently ended calendar month, multiplied
by (b) the Dilution Horizon Factor as of such date.
"DILUTION RATIO" means, as of any date, the ratio (expressed
as a percentage) computed for the most recently ended calendar month by dividing
(i) the aggregate amount of Originator Receivables which became Diluted
Receivables during such calendar month by (ii) the aggregate Outstanding Balance
(in each case, at the time of creation) of all Originator Receivables created
during the second calendar month immediately preceding such calendar month.
"DILUTION RESERVE" means, for any Receivable Interest on any
date, an amount equal to:
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DP x (C + YFR)
where:
DP = the Dilution Percentage for such Receivable Interest on such date.
C = the Capital of such Receivable Interest on such date.
YFR = the Yield and Fee Reserve for such Receivable Interest on such date.
"DILUTION VOLATILITY RATIO" means, as of any date, a ratio
(expressed as a percentage) equal to the product of (i) the highest of the
Dilution Ratios calculated for each of the twelve most recently ended calendar
months minus the average of the Dilution Ratios for each of the twelve most
recently ended calendar months, and (ii) a ratio calculated by dividing the
highest of the Dilution Ratios calculated for each of the twelve most recently
ended calendar months by the average of the Dilution Ratios for each of the
twelve most recently ended calendar months.
"DRAWDOWN NOTICE" means a letter in substantially the form of
Annex D hereto executed and delivered by the Seller to the Agent, as such form
may be amended or restated in accordance with the terms thereof.
"ELIGIBLE ASSIGNEE" means CNAI, any of its Affiliates, any
Person managed by Citibank, CNAI or any of their Affiliates, or any financial or
other institution acceptable to the Agent.
"ELIGIBLE RECEIVABLE" means, at any time, a Receivable:
(i) the Obligor of which is a resident of the United
States (including, without limitation, Puerto Rico) or Canada
(other than the Northwest Territories and Nunavit) or an Other
Approved Jurisdiction, provided that the aggregate Outstanding
Balance of all Eligible Receivables having Obligors which are
residents of Canada (other than the Northwest Territories and
Nunavit) may not exceed 5% of the then outstanding Capital of
all Receivable Interests and the aggregate Outstanding Balance
of all Eligible Receivables having Obligors which are
residents of Other Approved Jurisdictions may not exceed 10%
of the then outstanding Capital of all Receivable Interests;
(ii) the Obligor of which is not an Affiliate of any
of the parties hereto and is not a government or a
governmental subdivision or agency;
(iii) the Obligor of which, at the time of the
initial creation of an interest therein under this Agreement,
is a Designated Obligor and is not the Obligor of any
Defaulted Receivables which in the aggregate constitute 10% or
more of the aggregate Outstanding Balance of all Receivables
of such Obligor;
(iv) which at the time of the initial creation of an
interest therein under this Agreement is not a Defaulted
Receivable;
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(v) which, according to the Contract related thereto,
is required to be paid in full either (A) within 30 days of
the original billing date therefor or (B) within more than 30
but no more than 90 days of the original billing date therefor
if the aggregate Outstanding Balance of such Receivable and
all other Receivables having similar payment terms does not
exceed 25% of the then outstanding Capital of all Receivable
Interests;
(vi) which is an obligation representing all or part
of the sales price of merchandise, insurance or services
within the meaning of Section 3(c)(5) of the Investment
Company Act of 1940, as amended, and the nature of which is
such that its purchase with the proceeds of notes would
constitute a "current transaction" within the meaning of
Section 3(a)(3) of the Securities Act of 1933, as amended;
(vii) which is an "account" within the meaning of
Section 9-106 of the UCC of the applicable jurisdictions
governing the perfection of the interest created by a
Receivable Interest;
(viii) which is denominated and payable only in
United States dollars in the United States;
(ix) which arises under a Contract which, together
with such Receivable, is in full force and effect and
constitutes the legal, valid and binding obligation of the
Obligor of such Receivable and is not subject to any dispute,
offset, counterclaim or defense whatsoever (except the
potential discharge in bankruptcy of such Obligor);
(x) which, together with the Contract related
thereto, does not contravene in any material respect any laws,
rules or regulations applicable thereto (including, without
limitation, laws, rules and regulations relating to usury,
consumer protection, truth in lending, fair credit billing,
fair credit reporting, equal credit opportunity, fair debt
collection practices and privacy) and with respect to which
none of the Seller, the Originators or the Obligor is in
violation of any such law, rule or regulation in any material
respect;
(xi) which arises under a Contract which (A) does not
require the Obligor thereunder to consent to the transfer,
sale or assignment of the rights and duties of the Seller or
the relevant Originator thereunder and (B) does not contain a
confidentiality provision that purports to restrict the
ability of the Investors to exercise their rights under this
Agreement, including, without limitation, their right to
review the Contract;
(xii) which was generated in the ordinary course of
the relevant Originator's business;
(xiii) which, at the time of the initial creation of
an interest therein under this Agreement, has not been
extended, rewritten or otherwise modified from the original
terms thereof;
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(xiv) which (A) satisfies all applicable requirements
of the Credit and Collection Policy and (B) complies with such
other criteria and requirements (other than those relating to
the collectibility of such Receivable) as the Agent may from
time to time specify to the Seller upon 30 days' notice; and
(xv) as to which, at or prior to the time of the
initial creation of an interest therein under this Agreement,
the Agent has not notified the Seller that such Receivable (or
class of Receivables) is no longer acceptable for purchase by
▇▇▇▇▇▇ hereunder.
"E-MAIL SELLER REPORT" has the meaning specified in Section
6.02(g).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"EUROCURRENCY LIABILITIES" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
"EURODOLLAR RATE" means, for any Fixed Period, an interest
rate per annum equal to the rate per annum at which deposits in U.S. dollars are
offered by the principal office of Citibank in London, England to prime banks in
the London interbank market at 11:00 A.M. (London Time) two Business Days before
the first day of such Fixed Period in an amount substantially equal to the
Capital associated with such Fixed Period on such first day and for a period
equal to such Fixed Period.
"EURODOLLAR RATE RESERVE PERCENTAGE" of any Investor for any
Fixed Period in respect of which Yield is computed by reference to the
Eurodollar Rate means the reserve percentage applicable two Business Days before
the first day pf such Fixed Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) (or if
more than one such percentage shall be applicable, the daily average of such
percentages for those days in such Fixed Period during which any such percentage
shall be so applicable) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other marginal
reserve requirement) for such Investor with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to any
other category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Liabilities is determined) having a term equal to
such Fixed Period.
"EVENT OF TERMINATION" has the meaning specified in Section
7.01.
"FACILITY TERMINATION DATE" means the earliest of (i)
September 30, 2005 or (ii) the date determined pursuant to Section 7.01 or (iii)
the date the Purchase Limit reduces to zero pursuant to Section 2.01(b) or (iv)
the date the Asset Purchase Agreement expires without being renewed.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding
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Business Day) by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by the Agent from three Federal funds
brokers of recognized standing selected by it.
"FEE AGREEMENT" has the meaning specified in Section 2.05(b).
"FEES" has the meaning specified in Section 2.05(b).
"FIXED PERIOD" means, with respect to any Receivable Interest:
(a) in the case of any Fixed Period in respect of which Yield
is computed by reference to the Investor Rate, each successive period commencing
on each CP Fixed Period Date for such Receivable Interest and ending on the next
succeeding CP Fixed Period Date for such Receivable Interest; and
(b) in the case of any Fixed Period in respect of which Yield
is computed by reference to the Assignee Rate, each successive period of from
one to and including 29 days, or a period of one, two or three months, as the
Seller shall select and the Agent may approve on notice by the Seller received
by the Agent (including notice by telephone, confirmed in writing) not later
than 11:00 A.M. (New York City time) on (x) the day which occurs three Business
Days before the first day of such Fixed Period (in the case of Fixed Periods in
respect of which Yield is computed by reference to the Eurodollar Rate) or (y)
the first day of such Fixed Period (in the case of Fixed Periods in respect of
which Yield is computed by reference to the Alternate Base Rate), each such
Fixed Period for such Receivable Interest to commence on the last day of the
immediately preceding Fixed Period for such Receivable Interest (or, if there is
no such Fixed Period, on the date of purchase of such Receivable Interest),
EXCEPT that if the Agent shall not have received such notice, or the Agent and
the Seller shall not have so mutually agreed, before 11:00 A.M. (New York City
time) on such day, such Fixed Period shall be one day; PROVIDED, HOWEVER, that:
(i) any Fixed Period (other than of one day) which
would otherwise end on a day which is not a Business Day shall
be extended to the next succeeding Business Day (PROVIDED,
HOWEVER, if Yield in respect of such Fixed Period is computed
by reference to the Eurodollar Rate, and such Fixed Period
would otherwise end on a day which is not a Business Day, and
there is no subsequent Business Day in the same calendar month
as such day, such Fixed Period shall end on the next preceding
Business Day);
(ii) in the case of any Fixed Period of one day, (A)
if such Fixed Period is the initial Fixed Period for a
Receivable Interest, such Fixed Period shall be the day of the
purchase of such Receivable Interest; (B) any subsequently
occurring Fixed Period which is one day shall, if the
immediately preceding Fixed Period is more than one day, be
the last day of such immediately preceding Fixed Period and,
if the immediately preceding Fixed Period is one day, be the
day next following such immediately preceding Fixed Period;
and (C) if such Fixed Period occurs on a day immediately
preceding a day which is not a Business Day, such Fixed Period
shall be extended to the next succeeding Business Day; and
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(iii) in the case of any Fixed Period for any
Receivable Interest which commences before the Termination
Date for such Receivable Interest and would otherwise end on a
date occurring after such Termination Date, such Fixed Period
shall end on such Termination Date and the duration of each
Fixed Period which commences on or after the Termination Date
for such Receivable Interest shall be of such duration
(including, without limitation, one day) as shall be selected
by the Agent or, in the absence of any such selection, each
period of thirty days from the last day of the immediately
preceding Fixed Period.
"INCIPIENT EVENT OF TERMINATION" means an event that but for
notice or lapse of time or both would constitute an Event of Termination.
"INVESTOR" means ▇▇▇▇▇▇ and all other owners by assignment or
otherwise of a Receivable Interest originally purchased by ▇▇▇▇▇▇ and, to the
extent of the undivided interests so purchased, shall include any participants.
Without limiting the foregoing, the term "Investor" shall include Citibank or
any other purchaser under the Asset Purchase Agreement following a purchase by
such Person of a Receivable Interest or an interest therein pursuant to the
Asset Purchase Agreement.
"INVESTOR RATE" for any Fixed Period for any Receivable
Interest means the per annum rate equivalent to the weighted average of the per
annum rates paid or payable by ▇▇▇▇▇▇ from time to time as interest on or
otherwise (by means of interest rate ▇▇▇▇▇▇ or otherwise) in respect of those
promissory notes issued by ▇▇▇▇▇▇ that are allocated, in whole or in part, by
the Agent (on behalf of ▇▇▇▇▇▇) to fund the purchase or maintenance of such
Receivable Interest during such Fixed Period as determined by the Agent (on
behalf of ▇▇▇▇▇▇) and reported to the Seller and, if the Collection Agent is not
the Seller, the Collection Agent, which rates shall reflect and give effect to
the commissions of placement agents and dealers in respect of such promissory
notes, to the extent such commissions are allocated, in whole or in part, to
such promissory notes by the Agent (on behalf of ▇▇▇▇▇▇); PROVIDED, however,
that if any component of such rate is a discount rate, in calculating the
"INVESTOR RATE" for such Fixed Period the Agent shall for such component use the
rate resulting from converting such discount rate to an interest bearing
equivalent rate per annum.
"LIQUIDATION DAY" means, for any Receivable Interest, (i) each
day during a Fixed Period for such Receivable Interest on which the conditions
set forth in Section 3.02 are not satisfied, and (ii) each day which occurs on
or after the Termination Date for such Receivable Interest.
"LIQUIDATION FEE" means, for (i) any Fixed Period during which
a Liquidation Day occurs or (ii) any Fixed Period for which Yield is computed by
reference to the Investor Rate and a reduction of Capital is made for any reason
(x) in an amount greater than $25,000,000 on a Settlement Date or (y) in any
amount on any day other than a Settlement Date or (iii) any Fixed Period for
which Yield is computed by reference to the Eurodollar Rate and a reduction of
Capital is made for any reason on any day other than the last day of such Fixed
Period, the amount, if any, by which (A) the additional Yield (calculated
without taking into account any Liquidation Fee or any shortened duration of
such Fixed Period pursuant to clause (iii) of the definition thereof) which
would have accrued during such Fixed Period on the reductions of Capital of the
Receivable
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Interest relating to such Fixed Period had such reductions remained as Capital,
exceeds (B) the income, if any, received by the Investors which hold such
Receivable Interest from the investment of the proceeds of such reductions of
Capital.
"LOCK-BOX ACCOUNT" means an account maintained at a Lock-Box
Bank for the purpose of receiving Collections.
"LOCK-BOX AGREEMENT" means an agreement, in substantially the
form of Annex B.
"LOCK-BOX BANK" means any of the banks holding one or more
Lock-Box Accounts.
"LOSS HORIZON FACTOR" means, as of any date, a ratio computed
by dividing (i) the aggregate Outstanding Balance (in each case, at the time of
creation) of all Originator Receivables created by the Originators during the
four most recently ended calendar months by (ii) the Outstanding Balance of
Originator Receivables as at the last day of the most recently ended calendar
month.
"LOSS PERCENTAGE" means, as of any date, the greatest of (i)
the product of (A) two multiplied by (B) the Loss Horizon Factor as of the last
day of the most recently ended calendar month multiplied by (C) the highest of
the Loss Ratios for the twelve most recently ended calendar months, (ii) four
times the Concentration Limit and (iii) 10%.
"LOSS RATIO" means, as of any date, the average of the ratios
(each expressed as a percentage) for each of the three most recently ended
calendar months computed for each such month by dividing (i) the sum of the
aggregate Outstanding Balance of Originator Receivables which were 91-120 days
past due (or otherwise would have been classified during such month as Defaulted
Receivables in accordance with clause (ii) or (iii) of the definition of
"Defaulted Receivables") as at the last day of such month plus (without
duplication) write-offs during such month, by (ii) the aggregate Outstanding
Balance (in each case, at the time of creation) of Originator Receivables
created during the fourth preceding month.
"LOSS RESERVE" means, for any Receivable Interest on any date,
an amount equal to:
LP x (C + YFR)
where:
LP = the Loss Percentage for such Receivable Interest on such date.
C = the Capital of such Receivable Interest on such date.
YFR = the Yield and Fee Reserve for such Receivable Interest on such date.
"LOSS-TO-LIQUIDATION RATIO" means the ratio (expressed as a
percentage) computed as of the last day of each calendar month by dividing (i)
the aggregate Outstanding Balance of all
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Originator Receivables written off by the Originators or the Seller, or which
should have been written off by the Originators or the Seller in accordance with
the Credit and Collection Policy, during the twelve calendar month period ending
on such last day by (ii) the aggregate amount of Collections of Originator
Receivables actually received during such period.
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc.
"NET RECEIVABLES POOL BALANCE" means at any time the
Outstanding Balance of Eligible Receivables then in the Receivables Pool reduced
by the sum of (i) the Outstanding Balance of such Eligible Receivables that are
then Defaulted Receivables, (ii) the aggregate amount by which the Outstanding
Balance of Eligible Receivables (other than Defaulted Receivables) of each
Obligor then in the Receivables Pool exceeds the product of (A) the
Concentration Limit for such Obligor multiplied by (B) the aggregate outstanding
Capital of all Receivable Interests, (iii) the aggregate amount of Collections
on hand at such time for payment on account of any Eligible Receivables, the
Obligor of which has not been identified and (iv) the aggregate Outstanding
Balance of all Eligible Receivables in respect of which any credit memo issued
by an Originator or the Seller is outstanding at such time to the extent deemed
Collections have not been paid pursuant to Section 2.04(e).
"OBLIGOR" means a Person obligated to make payments pursuant
to a Contract.
"ORIGINATOR PURCHASE AGREEMENT" means the Purchase and
Contribution Agreement dated as of the date of this Agreement between the
Originators, as sellers, and the Seller, as purchaser, as the same may be
amended, modified or restated from time to time.
"ORIGINATOR RECEIVABLE" means the indebtedness of any Obligor
resulting from the provision or sale of merchandise, insurance or services by an
Originator under a Contract, and includes the right to payment of any interest
or finance charges and other obligations of such Obligor with respect thereto;
PROVIDED, HOWEVER, that "Originator Receivable" shall not include any APC
Receivable until such time as (i) the Seller has requested, and the Agent has
approved in writing, the inclusion of the APC Receivables in the Receivables
Pool and (ii) Ferro Corporation has directed all Obligors of APC Receivables to
make payments thereon to a Lock-Box or Lock-Box Account specified on Schedule I
as to which a Lock-Box Agreement is in effect.
"ORIGINATORS" means Ferro Corporation, an Ohio corporation,
and Ferro Electronic Materials, Inc. a Delaware corporation.
"OTHER APPROVED JURISDICTION" means a country (other than the
United States and Canada) (i) which is a member of the Organization of Economic
Cooperation and Development, (ii) which has a sovereign long-term debt rating of
at least AA- by S&P and Aa3 by Moody's, (iii) as to which the Outstanding
Balance of Receivables due from Obligors residing in such country was at least
$20,000 as of August 31, 2000, (iv) as to which the Agent has received such
opinions of counsel or other evidence satisfactory to it confirming that the
Agent (on behalf of the Investors) has acquired a valid and perfected first
priority interest and other rights with respect to Receivables due from Obligors
residing in such country which interest and rights are substantially as
protected and favorable as the Agent's rights under the UCC and (v) which the
Agent has approved in writing; provided, however, that during the period from
the initial purchase to and including
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October 31, 2000, (x) the preceding clause (iv) shall not be applicable (it
being understood that during such period the Agent and its counsel will review
the laws of the applicable countries to determine the requirements, if any,
needed to satisfy the conditions of such clause (iv)), and (y) each of the
following countries shall be considered to be an "Other Approved Jurisdiction":
Germany, United Kingdom, Japan, France, Italy, Ireland, Netherlands, Norway, New
Zealand, Spain, Belgium, Austria, Sweden and Denmark.
"OTHER COMPANIES" means the Originators and all of their
Subsidiaries except the Seller.
"OUTSTANDING BALANCE" of any Receivable at any time means the
then outstanding principal balance thereof.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock company,
trust, unincorporated association, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"POOL RECEIVABLE" means a Receivable in the Receivables Pool.
"PURCHASE LIMIT" means $100,000,000, as such amount may be
reduced pursuant to Section 2.01(b). References to the unused portion of the
Purchase Limit shall mean, at any time, the Purchase Limit, as then reduced
pursuant to Section 2.01(b), minus the then outstanding Capital of Receivable
Interests under this Agreement.
"RECEIVABLE" means any Originator Receivable which has been
acquired by the Seller from an Originator by purchase or by capital contribution
pursuant to the Originator Purchase Agreement.
"RECEIVABLE INTEREST" means, at any time, an undivided
percentage ownership interest in (i) all then outstanding Pool Receivables
arising prior to the time of the most recent computation or recomputation of
such undivided percentage interest pursuant to Section 2.03, (ii) all Related
Security with respect to such Pool Receivables, and (iii) all Collections with
respect to, and other proceeds of, such Pool Receivables. Such undivided
percentage interest shall be computed as
C + YFR + LR + DR
-----------------
NRPB
where:
C = the Capital of such Receivable Interest at the time of
computation.
YFR = the Yield and Fee Reserve of such Receivable Interest at the
time of computation.
LR = the Loss Reserve of such Receivable Interest at the time of
computation.
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DR = the Dilution Reserve of such Receivable Interest at the time
of computation.
NRPB = the Net Receivables Pool Balance at the time of computation.
Each Receivable Interest shall be determined from time to time pursuant to the
provisions of Section 2.03.
"RECEIVABLES POOL" means at any time the aggregation of each
then outstanding Receivable in respect of which the Obligor is a Designated
Obligor at such time or was a Designated Obligor on the date of the initial
creation of an interest in such Receivable under this Agreement.
"RELATED SECURITY" means with respect to any Receivable
(i) all of the Seller's interest in any merchandise
(including returned merchandise) relating to any sale giving
rise to such Receivable;
(ii) all security interests or liens and property
subject thereto from time to time purporting to secure payment
of such Receivable, whether pursuant to the Contract related
to such Receivable or otherwise, together with all financing
statements signed by an Obligor describing any collateral
securing such Receivable;
(iii) all guaranties, insurance and other agreements
or arrangements of whatever character from time to time
supporting or securing payment of such Receivable whether
pursuant to the Contract related to such Receivable or
otherwise; and
(iv) the Contract and all other books, records and
other information (including, without limitation, computer
programs, tapes, discs, punch cards, data processing software
and related property and rights) relating to such Receivable
and the related Obligor.
"S&P" means Standard & Poor's Rating Services, a division of
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"SELLER REPORT" means a report in substantially the form of
Annex A hereto and containing such additional information as the Agent may
reasonably request from time to time, furnished by the Collection Agent to the
Agent pursuant to Section 6.02(g).
"SETTLEMENT DATE" for any Receivable Interest means the last
day of each Fixed Period for such Receivable Interest; PROVIDED, HOWEVER, that
if Yield with respect to such Receivable Interest is computed by reference to
the Investor Rate and no Liquidation Day exists on the last day of a Fixed
Period for such Receivable Interest, the Settlement Date for such Receivable
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Interest for such Fixed Period shall be the second Business Day after the last
day of such Fixed Period.
"SPECIAL EVENT" means any of the long term public senior
unsecured debt securities of Ferro Corporation are rated below BBB by S&P or
Baa2 by Moody's, or if Ferro Corporation does not have long term public senior
unsecured debt ratings from both S&P and Moody's, ▇▇▇▇▇ Corporation is judged by
the Agent, in its sole discretion, to be of credit quality below (with respect
to each missing rating) BBB by S&P or Baa2 by Moody's.
"SUBSIDIARY" means any corporation or other entity of which
securities having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by the Seller or an Originator, as the case may be, or one
or more Subsidiaries, or by the Seller or an Originator, as the case may be, and
one or more Subsidiaries.
"TANGIBLE NET WORTH" means at any time the excess of (i) the
sum of (A) the product of (x) 100% minus the Discount (as such term is defined
in the Originator Purchase Agreement) multiplied by (y) the Outstanding Balance
of all Receivables other than Defaulted Receivables plus (B) cash and cash
equivalents of the Seller plus (C) the outstanding principal amount of Purchaser
Loans (as such term is defined in the Originator Purchase Agreement), minus (ii)
the sum of (A) Capital plus (B) the Deferred Purchase Price.
"TERMINATION DATE" for any Receivable Interest means the
earlier of (i) the Business Day which the Seller or the Agent so designates by
notice to the other at least one Business Day in advance for such Receivable
Interest and (ii) the Facility Termination Date.
"TRANSACTION DOCUMENT" means any of this Agreement, the
Originator Purchase Agreement, the Lock-Box Agreements and all other agreements
and documents delivered and/or related hereto or thereto.
"UCC" means the Uniform Commercial Code as from time to time
in effect in the specified jurisdiction.
"UNDERTAKING AGREEMENT" means the Undertaking Agreement dated
as of the date of this Agreement made by Ferro Corporation in favor of the
Seller, substantially in the form attached hereto as Annex E, as the same may be
amended, modified or restated from time to time.
"YIELD" means:
(i) for each Receivable Interest for any Fixed Period
to the extent ▇▇▇▇▇▇ will be funding such Receivable Interest
through the issuance of commercial paper or other promissory
notes,
IR x C x ED + LF
--
360
(ii) for each Receivable Interest for any Fixed
Period to the extent (x) the Investors will not be funding
such Receivable Interest through the issuance of
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commercial paper or other promissory notes, or (y) an Investor
other than ▇▇▇▇▇▇ will be funding such Receivable Interest,
IR x C x ED + LF
--
360
where:
AR = the Assignee Rate for such Receivable Interest for such
Fixed Period
C = the Capital of such Receivable Interest during such Fixed
Period
IR = the Investor Rate for such Receivable Interest for such
Fixed Period
ED = the actual number of days elapsed during such Fixed
Period
LF = the Liquidation Fee, if any, for such Receivable Interest
for such Fixed Period
PROVIDED that no provision of this Agreement shall require the payment or permit
the collection of Yield in excess of the maximum permitted by applicable law;
and PROVIDED FURTHER that Yield for any Receivable Interest shall not be
considered paid by any distribution to the extent that at any time all or a
portion of such distribution is rescinded or must otherwise be returned for any
reason.
"YIELD AND FEE RESERVE" means, for any Receivable Interest on
any date, an amount equal to
(C x YFRP) + AUYF
where:
C = the Capital of such Receivable Interest at the close of
business of the Collection Agent on such date.
YFRP = the Yield and Fee Reserve Percentage on such date.
AUYF = accrued and unpaid Yield, Collection Agent Fee, and Fees on
such date, in each case for such Receivable Interest.
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"YIELD AND FEE RESERVE PERCENTAGE" means, on any date, a
percentage equal to
[(AER X 1.5) + AM + PF + CAF1 X AVGM
360
where:
AER = the one-month Adjusted Eurodollar Rate in effect on such
date.
AM = the applicable spread or margin used in the calculation of
the Assignee Rate in effect on such date.
PF = the Program Fee (as defined in the Fee Agreement), in effect
on such date.
CAF = the percentage per annum used in the calculation of the
Collection Agent Fee in effect on such date.
AVGM = the Average Maturity on such date plus the Collection Delay
Period.
SECTION 1.02. 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 THE PURCHASES
SECTION 2.01. PURCHASE FACILITY. (a) On the terms and
conditions hereinafter set forth, ▇▇▇▇▇▇ may, in its sole discretion, purchase
Receivable Interests from the Seller from time to time during the period from
the date hereof to the Facility Termination Date. Under no circumstances shall
▇▇▇▇▇▇ make any such purchase if, after giving effect to such purchase, the
aggregate outstanding Capital of Receivable Interests would exceed the Purchase
Limit.
(b) The Seller may at any time after six months from the date
hereof, upon at least five Business Days' notice to the Agent, terminate the
facility provided for in this Agreement in whole or, from time to time, reduce
in part the unused portion of the Purchase Limit; PROVIDED that each partial
reduction shall be in the amount of at least $5,000,000 or an integral multiple
thereof.
(c) Until the Agent gives the Seller the notice provided in
Section 3.02(c) (iii), the Agent, on behalf of the Investors which own
Receivable Interests, may have the Collections attributable to such Receivable
Interests automatically reinvested pursuant to Section 2.04 in additional
undivided percentage interests in the Pool Receivables by making an appropriate
readjustment of such Receivable Interests.
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SECTION 2.02. MAKING PURCHASES. (a) Each purchase by ▇▇▇▇▇▇
shall be made on at least two Business Days' notice in the form of a Drawdown
Notice from the Seller to the Agent. Each such Drawdown Notice of a purchase
shall specify (i) the amount requested to be paid to the Seller (such amount,
which shall not be less than $2,000,000, being referred to herein as the initial
"Capital" of the Receivable Interest then being purchased) and (ii) the date of
such purchase (which shall be a Business Day). The Agent shall promptly
thereafter notify the Seller whether ▇▇▇▇▇▇ has determined to make a purchase
and, if so, whether all of the terms specified by the Seller are acceptable to
▇▇▇▇▇▇.
(b) On the date of each such purchase of a Receivable
Interest, ▇▇▇▇▇▇ shall, upon satisfaction of the applicable conditions set forth
in Article III, make available to the Seller in same day funds an amount equal
to the initial Capital of such Receivable Interest, at the account set forth in
the Drawdown Notice for such purchase.
(c) Effective on the date of each purchase pursuant to this
Section 2.02 and each reinvestment pursuant to Section 2.04, the Seller hereby
sells and assigns to the Agent, for the benefit of the parties making such
purchase, an undivided percentage ownership interest, to the extent of the
Receivable Interest then being purchased, in each Pool Receivable then existing
and in the Related Security and Collections with respect thereto.
SECTION 2.03. RECEIVABLE INTEREST COMPUTATION. Each Receivable
Interest shall be initially computed on its date of purchase. Thereafter until
the Termination Date for such Receivable Interest, such Receivable Interest
shall be automatically recomputed (or deemed to be recomputed) on each day other
than a Liquidation Day. Any Receivable Interest, as computed (or deemed
recomputed) as of the day immediately preceding the Termination Date for such
Receivable Interest, shall thereafter remain constant. Such Receivable Interest
shall become zero when Capital thereof and Yield thereon shall have been paid in
full, and all Fees and other amounts owed by the Seller hereunder to the
Investors or the Agent are paid and the Collection Agent shall have received the
accrued Collection Agent Fee thereon.
SECTION 2.04. SETTLEMENT PROCEDURES. (a) Collection of the
Pool Receivables shall be administered by a Collection Agent, in accordance with
the terms of Article VI of this Agreement. The Seller shall provide to the
Collection Agent (if other than the Seller) on a timely basis all information
needed for such administration, including notice of the occurrence of any
Liquidation Day and current computations of each Receivable Interest.
(b) The Collection Agent shall, on each day on which
Collections of Pool Receivables are received by it:
(i) with respect to each Receivable Interest, set aside
and hold in trust (and, at the request of the Agent,
segregate) for the Investors that hold such Receivable
Interest, out of the percentage of such Collections
represented by such Receivable Interest, an amount equal to
the Yield, Fees and Collection Agent Fee accrued through such
day for such Receivable Interest and not previously set aside;
(ii) with respect to each Receivable Interest, if such day
is not a Liquidation Day for such Receivable Interest,
reinvest with the Seller on behalf of
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the Investors that hold such Receivable Interest the
percentage of such Collections represented by such Receivable
Interest, to the extent representing a return of Capital, by
recomputation of such Receivable Interest pursuant to Section
2.03;
(iii) if such day is a Liquidation Day for any one or
more Receivable Interests, set aside and hold in trust (and,
at the request of the Agent, segregate) for the Investors that
hold such Receivable Interests all of the remaining
Collections (but not in excess of the Capital of such
Receivable Interests); PROVIDED that if amounts are set aside
and held in trust on any Liquidation Day occurring prior to
the Termination Date, and thereafter prior to the Settlement
Date for such Fixed Period the conditions set forth in Section
3.02 are satisfied or waived by the Agent, such previously set
aside amounts shall, to the extent representing a return of
Capital, be reinvested in accordance with the preceding
subsection (ii) on the day of such subsequent satisfaction or
waiver of conditions; and
(iv) during such times as amounts are required to be
reinvested in accordance with the foregoing subsection (ii) or
the proviso to subsection (iii), release to the Seller for its
own account any Collections in excess both of such amounts and
of the amounts that are required to be set aside pursuant to
subsection (i) above.
(c) The Collection Agent shall deposit into the Agent's
Account, on the Settlement Date for each Receivable Interest, Collections held
for the Investors that relate to such Receivable Interest pursuant to Section
2.04(b).
(d) Upon receipt of funds deposited into the Agent's
Account, the Agent shall distribute them as follows:
(i) if such distribution occurs on a day that is not
a Liquidation Day, first to the Investors that hold the
relevant Receivable Interest and to the Agent in payment in
full of all accrued Yield and Fees and then to the Collection
Agent in payment in full of all accrued Collection Agent Fee.
(ii) if such distribution occurs on a Liquidation
Day, first to the Investors that hold the relevant Receivable
Interest and to the Agent in payment in full of all accrued
Yield and Fees, second to such Investors in reduction to zero
of all Capital, third to such Investors or the Agent in
payment of any other amounts owed by the Seller hereunder, and
fourth to the Collection Agent in payment in full of all
accrued Collection Agent Fee.
After the Capital, Yield, Fees and Collection Agent Fee with
respect to a Receivable Interest, and any other amounts payable by the Seller to
the Investors or the Agent hereunder, have been paid in full, all additional
Collections with respect to such Receivable Interest shall be paid to the Seller
for its own account.
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(e) For the purposes of this Section 2.04:
(i) if on any day the Outstanding Balance of any Pool
Receivable is reduced or adjusted as a result of any
defective, rejected or returned merchandise or services, or
any cash discount, discount for quick payment or other
adjustment made by the Seller or an Originator, or any setoff,
the Seller shall be deemed to have received on such day a
Collection of such Pool Receivable in the amount of such
reduction or adjustment;
(ii) if on any day any of the representations or
warranties contained in Section 4.01(h) is no longer true with
respect to any Pool Receivable, the Seller shall be deemed to
have received on such day a Collection of such Pool Receivable
in full;
(iii) except as provided in subsection (i) or (ii) of this
Section 2.04(e), or as otherwise required by applicable law or
the relevant Contract, all Collections received from an
Obligor of any Receivables 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; and
(iv) if and to the extent the Agent or the Investors shall
be required for any reason to pay over to an Obligor any
amount received on its behalf hereunder, such amount shall be
deemed not to have been so received but rather to have been
retained by the Seller and, accordingly, the Agent or the
Investors, as the case may be, shall have a claim against the
Seller for such amount, payable when and to the extent that
any distribution from or on behalf of such Obligor is made in
respect thereof.
SECTION 2.05. FEES. (a) Each Investor shall pay to the
Collection Agent a fee (the "COLLECTION AGENT FEE") of 1/4 of 1% per annum on
the average daily Capital of each Receivable Interest owned by such Investor,
from the date of purchase of such Receivable Interest until the later of the
Termination Date for such Receivable Interest or the date on which such Capital
is reduced to zero, payable on the Settlement Date for such Receivable Interest.
Upon three Business Days' notice to the Agent, the Collection Agent (if not
Ferro Corporation, the Seller or its designee or an Affiliate of the Seller) may
elect to be paid, as such fee, another percentage per annum on the average daily
Capital of such Receivable Interest, but in no event in excess for all
Receivable Interests relating to a single Receivables Pool of 110% of the
reasonable costs and expenses of the Collection Agent in administering and
collecting the Receivables in such Receivables Pool. The Collection Agent Fee
shall be payable only from Collections pursuant to, and subject to the priority
of payment set forth in, Section 2.04. So long as Ferro Corporation is acting as
the Collection Agent hereunder, amounts paid as the Collection Agent Fee
pursuant to this Section 2.05(a) shall reduce, on a dollar-for-dollar basis, the
obligation of the Seller to pay the "Collection Agent Fee" pursuant to Section
6.03 of the Originator Purchase Agreement, provided that such obligation of the
Seller shall in no event be reduced below zero.
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(b) The Seller shall pay to the Agent certain fees
(collectively, the "Fees") in the amounts and on the dates set forth in a
separate fee agreement of even date between the Seller and the Agent, as the
same may be amended or restated from time to time (the "FEE AGREEMENT")
SECTION 2.06. 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 the Agent's Account.
(b) Each of the Seller and the Collection Agent shall, to the
extent permitted by law, pay interest on any amount not paid or deposited by it
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 under subsection (b) above
and all computations of Yield, fees, and other amounts hereunder shall be made
on the basis of a year of 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 2.07. DIVIDING OR COMBINING RECEIVABLE INTERESTS.
Either the Seller or the Agent may, upon notice to the other party received at
least three Business Days prior to the last day of any Fixed Period in the case
of the Seller giving notice, or up to the last day of such Fixed Period in the
case of the Agent giving notice, either (i) divide any Receivable Interest into
two or more Receivable Interests having aggregate Capital equal to the Capital
of such divided Receivable Interest, or (ii) combine any two or more Receivable
Interests originating on such last day or having Fixed Periods ending on such
last day into a single Receivable Interest having Capital equal to the aggregate
of the Capital of such Receivable Interests.
SECTION 2.08. INCREASED COSTS. (a) If CNAI, any Investor, any
entity which enters into a commitment to purchase Receivable Interests or
interests therein, or any of their respective Affiliates (each an "AFFECTED
PERSON") determines that compliance with any law or regulation or any guideline
or request from any central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of the capital
required or expected to be maintained by such Affected Person and such Affected
Person determines that the amount of such capital is increased by or based upon
the existence of any commitment to make purchases of or otherwise to maintain
the investment in Pool Receivables or interests therein related to this
Agreement or to the funding thereof and other commitments of the same type,
then, upon demand by such Affected Person (with a copy to the Agent), the Seller
shall immediately pay to the Agent for the account of such Affected Person (as a
third-party beneficiary), from time to time as specified by such Affected
Person, additional amounts sufficient to compensate such Affected Person in the
light of such circumstances, to the extent that such Affected Person reasonably
determines such increase in capital to be allocable to the existence of any of
such commitments. A certificate as to such amounts submitted to the Seller and
the Agent by such Affected Person shall be conclusive and binding for all
purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change
(other than any change by way of imposition or increase of reserve requirements
referred to in Section 2.09) in or in the
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interpretation of any law or regulation or (ii) compliance with any guideline or
request from any central bank or other governmental authority (whether or not
having the force of law), there shall be any increase in the cost to any
Investor of agreeing to purchase or purchasing, or maintaining the ownership of
Receivable Interests in respect of which Yield is computed by reference to the
Eurodollar Rate, then, upon demand by such Investor (with a copy to the Agent),
the Seller shall immediately pay to the Agent, for the account of such Investor
(as a third-party beneficiary), from time to time as specified by such Investor,
additional amounts sufficient to compensate such Investor for such increased
costs. A certificate as to such amounts submitted to the Seller and the Agent by
such Investor shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.09. ADDITIONAL YIELD ON RECEIVABLE INTERESTS BEARING
A EURODOLLAR RATE. The Seller shall pay to any Investor, so long as such
Investor shall be required under regulations of the Board of Governors of the
Federal Reserve System to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities, additional Yield on
the unpaid Capital of each Receivable Interest of such Investor during each
Fixed Period in respect of which Yield is computed by reference to the
Eurodollar Rate, for such Fixed Period, at a rate per annum equal at all times
during such Fixed Period to the remainder obtained by subtracting (i) the
Eurodollar Rate for such Fixed Period from (ii) the rate obtained by dividing
such Eurodollar Rate referred to in clause (i) above by that percentage equal to
100% minus the Eurodollar Rate Reserve Percentage of such Investor for such
Fixed Period, payable on each date on which Yield is payable on such Receivable
Interest. Such additional Yield shall be determined by such Investor and notice
thereof given to the Seller through the Agent within 30 days after any Yield
payment is made with respect to which such additional Yield is requested. A
certificate as to such additional Yield submitted to the Seller and the Agent by
such Investor shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.10. SECURITY INTEREST. As collateral security for
the performance by the Seller of all the terms, covenants and agreements on the
part of the Seller (whether as Seller or otherwise) to be performed under this
Agreement or any document delivered in connection with this Agreement in
accordance with the terms thereof, including the punctual payment when due of
all obligations of the Seller hereunder or thereunder, whether for
indemnification payments, fees, expenses or otherwise, the Seller hereby assigns
to the Agent for its benefit and the ratable benefit of the Investors, and
hereby grants to the Agent for its benefit and the ratable benefit of the
Investors, a security interest in, all of the Seller's right, title and interest
in and to (A) the Originator Purchase Agreement and the Undertaking Agreement,
including, without limitation, (i) all rights of the Seller to receive moneys
due or to become due under or pursuant to the Originator Purchase Agreement or
the Undertaking Agreement, (ii) all security interests and property subject
thereto from time to time purporting to secure payment of monies due or to
become due under or pursuant to the Originator Purchase Agreement or the
Undertaking Agreement, (iii) all rights of the Seller to receive proceeds of any
insurance, indemnity, warranty or guaranty with respect to the Originator
Purchase Agreement or the Undertaking Agreement, (iv) claims of the Seller for
damages arising out of or for breach of or default under the Originator Purchase
Agreement or the Undertaking Agreement, and (v) the right of the Seller to
compel performance and otherwise exercise all remedies thereunder, (B) all
Receivables, whether now owned and existing or hereafter acquired or arising,
the Related Security with respect thereto and the Collections and all other
assets, including, without limitation, accounts, chattel paper, instruments and
general intangibles (as those terms are defined in the UCC), including undivided
interests in any of the
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foregoing, owned by the Seller and not otherwise purchased under this Agreement,
and (C) to the extent not included in the foregoing, all proceeds of any and all
of the foregoing.
ARTICLE III
CONDITIONS OF PURCHASES
SECTION 3.01. CONDITIONS PRECEDENT TO INITIAL PURCHASE. The
initial purchase of a Receivable Interest under this Agreement is subject to the
conditions precedent that the Agent 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 Agent:
(a) Certified copies of the resolutions of the Board of
Directors of the Seller approving, and evidence that each Originator has taken
any necessary corporate action to authorize, this Agreement and the Originator
Purchase Agreement and certified copies of all documents evidencing other
necessary corporate action and governmental approvals, if any, with respect to
this Agreement and the Originator Purchase Agreement.
(b) A certificate of the Secretary or Assistant Secretary of
the Seller and each Originator certifying the names and true signatures of the
officers of the Seller and the Originators authorized to sign the Originator
Purchase Agreement and this Agreement and the other documents to be delivered by
it hereunder and thereunder.
(c) Acknowledgment copies or time stamped receipt copies of
proper financing statements, duly filed on or before the date of such initial
purchase under the UCC of all jurisdictions that the Agent may deem necessary or
desirable in order to perfect the ownership and security interests contemplated
by this Agreement and the Originator Purchase Agreement.
(d) 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 (i) the Receivables, Contracts or Related
Security previously granted by the Seller or the Originators and (ii) the
collateral security referred to in Section 2.10 previously granted by the
Seller.
(e) 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 (c) above that name the Seller or
an Originator as debtor, together with copies of such financing statements (none
of which shall cover any Receivables, Contracts, Related Security or the
collateral security referred to in Section 2.10).
(f) Executed copies of Lock-Box Agreements with each Lock-Box
Bank.
(g) A favorable opinion of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P.,
counsel for the Seller and the Originators, substantially in the form of Annex C
hereto and as to such other matters as the Agent may reasonably request.
(h) The Fee Agreement.
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(i) A Drawdown Notice.
(j) The Undertaking Agreement, duly executed by Ferro
Corporation.
(k) An executed copy of the Originator Purchase Agreement.
(l) A copy of the by-laws of the Seller, certified by the
Secretary or Assistant Secretary of the Seller. (m) A copy of the certificate or
articles of incorporation of the Seller, certified as of a recent date by the
Secretary of State or other appropriate official of the state of its
organization, and a certificate as to the good standing of the Seller from such
Secretary of State or other official, dated as of a recent date.
(n) A favorable opinion of ▇▇▇▇, Scholer, Fierman, ▇▇▇▇ &
Handler, LLP, counsel for the Agent, as to such matters as the Agent may
reasonably request.
SECTION 3.02. CONDITIONS PRECEDENT TO ALL PURCHASES AND
REINVESTMENTS. Each purchase (including the initial purchase) and each
reinvestment shall be subject to the further conditions precedent that (a) in
the case of each purchase, the Collection Agent shall have delivered to the
Agent at least one Business Day prior to such purchase, in form and substance
satisfactory to the Agent, a completed Seller Report containing information
covering the most recently ended reporting period for which information is
required pursuant to Section 6.02(g) and demonstrating that after giving effect
to such purchase no Event of Termination or Incipient Event of Termination under
Section 7.01(i) would occur, and, in the case of each purchase after the initial
purchase, the Seller shall have delivered to the Agent at least two Business
Days prior to such purchase, a completed Drawdown Notice, (b) in the case of
each reinvestment, the Collection Agent shall have delivered to the Agent on or
prior to the date of such reinvestment, in form and substance satisfactory to
the Agent, a completed Seller Report containing information covering the most
recently ended reporting period for which information is required pursuant to
Section 6.02(g), (c) on the date of such purchase or reinvestment the following
statements shall be true (and acceptance of the proceeds of such purchase or
reinvestment shall be deemed a representation and warranty by the Seller that
such statements are then true):
(i) The representations and warranties contained in
Section 4.01 are correct on and as of the date of such
purchase or reinvestment as though made on and as of such
date,
(ii) No event has occurred and is continuing, or
would result from such purchase or reinvestment, that
constitutes an Event of Termination or an Incipient Event of
Termination,
(iii) The Agent shall not have given the Seller at
least one Business Day's notice that the Investors have
terminated the reinvestment of Collections in Receivable
Interests, and
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(iv) The Originators shall have sold or contributed
to the Seller, pursuant to the Originator Purchase Agreement,
all Originator Receivables arising on or prior to such date,
and
(d) the Agent shall have received such other approvals, opinions or documents as
it may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE SELLER.
The Seller hereby represents and warrants as follows:
(a) The Seller is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Ohio, 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.
(b) The execution, delivery and performance by the Seller of
the Transaction Documents and the other documents to be delivered by it
hereunder, including the Seller's use of the proceeds of purchases and
reinvestments, (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
interest created pursuant to this Agreement). Each of the Transaction Documents
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 the
Transaction Documents or any other document to be delivered thereunder, except
for the filing of UCC financing statements which are referred to therein.
(d) Each of the Transaction Documents constitutes the legal,
valid and binding obligation of the Seller enforceable against the Seller in
accordance with its terms.
(e) The opening pro forma balance sheet of the Seller as at
September 28, 2000, giving effect to the initial purchase to be made under this
Agreement, a copy of which has been furnished to the Agent, fairly presents the
financial condition of the Seller as at such date, in accordance with generally
accepted accounting principles, and since September 28, 2000 there has been no
material adverse change in the business, operations, property or financial or
other condition of the Seller.
(f) There is no pending or threatened action or proceeding
affecting an Originator or any of its Subsidiaries before any court,
governmental agency or arbitrator which
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may materially adversely affect the financial condition or operations of such
Originator or any of its Subsidiaries or the ability of the Seller or such
Originator to perform their respective obligations under the Transaction
Documents, or which purports to affect the legality, validity or enforceability
of the Transaction Documents.
(g) No proceeds of any purchase or reinvestment 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.
(h) The Seller is the legal and beneficial owner of the Pool
Receivables and Related Security free and clear of any Adverse Claim; upon each
purchase or reinvestment, the Investors shall acquire a valid and perfected
first priority undivided percentage ownership interest to the extent of the
pertinent Receivable Interest in each Pool Receivable then existing or
thereafter arising and in the Related Security and Collections with respect
thereto. No effective financing statement or other instrument similar in effect
covering any Contract or any Pool Receivable or the Related Security or
Collections with respect thereto is on file in any recording office, except
those filed in favor of the Agent relating to this Agreement and those filed by
the Seller pursuant to the Originator Purchase Agreement.
(i) Each Seller Report (if prepared by the Seller or one of
its Affiliates, or to the extent that information contained therein is supplied
by the Seller or an Affiliate), information, exhibit, financial statement,
document, book, record or report furnished or to be furnished at any time by or
on behalf of the Seller to the Agent or the Investors 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 Agent or the Investors, as the case may
be, 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.
(j) The principal place of business and chief executive office
of the Seller and the office where the Seller keeps its records concerning the
Pool Receivables are located at the address or addresses referred to in Section
5.01(b).
(k) The names and addresses of all the Lock-Box Banks,
together with the account numbers of the Lock-Box Accounts of the Seller at such
Lock-Box Banks, are as specified in Schedule I hereto, as such Schedule I may be
updated from time to time pursuant to Section 5.01(g).
(l) Each purchase of a Receivable Interest and each
reinvestment of Collections in Pool Receivables will constitute (i) a "current
transaction" within the meaning of Section 3(a)(3) of the Securities Act of
1933, as amended, and (ii) a purchase or other acquisition of notes, drafts,
acceptances, open accounts receivable or other obligations representing part or
all of the sales price of merchandise, insurance or services within the meaning
of Section 3(c)(5) of the Investment Company Act of 1940, as amended.
(m) The Seller is not known by and does not use any trade name
or doing-business-as name.
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(n) The Seller was incorporated on September 26, 2000, and the
Seller did not engage in any business activities prior to the date of this
Agreement. The Seller has no Subsidiaries.
(o) (i) The fair value of the property of the Seller is
greater than the total amount of liabilities, including contingent liabilities,
of the Seller, (ii) the present fair salable value of the assets of the Seller
is not less than the amount that will be required to pay all probable
liabilities of the Seller on its debts as they become absolute and matured,
(iii) the Seller does not intend to, and does not believe that it will, incur
debts or liabilities beyond the Seller's abilities to pay such debts and
liabilities as they mature and (iv) the Seller is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which the Seller's property would constitute unreasonably small capital.
(p) With respect to each Pool Receivable, the Seller (i) shall
have received such Pool Receivable as a contribution to the capital of the
Seller by an Originator or (ii) shall have purchased such Pool Receivable from
an Originator in exchange for payment (made by the Seller to an Originator in
accordance with the provisions of the Originator Purchase Agreement) of cash,
Deferred Purchase Price, or a combination thereof in an amount which constitutes
fair consideration and reasonably equivalent value. Each such sale referred to
in clause (ii) of the preceding sentence shall not have been made for or on
account of an antecedent debt owed by an Originator to the Seller and no such
sale is or may be voidable or subject to avoidance under any section of the
Federal Bankruptcy Code.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE COLLECTION
AGENT. The Collection Agent hereby represents and warrants as follows:
(a) The Collection Agent is a corporation duly incorporated,
validly existing and in good standing under the laws of Ohio, 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
Investors hereunder, (ii) the collectibility of the Receivables Pool, or (iii)
the ability of the Collection Agent to perform its obligations hereunder.
(b) The execution, delivery and performance by the Collection
Agent of this Agreement and any other documents to be delivered by it hereunder
(i) are within the Collection Agent's corporate powers, (ii) have been duly
authorized by all necessary corporate action, (iii) do not contravene (1) the
Collection Agent's charter or by-laws, (2) any law, rule or regulation
applicable to the Collection Agent, (3) any contractual restriction binding on
or affecting the Collection Agent or its property or (4) any order, writ,
judgment, award, injunction or decree binding on or affecting the Collection
Agent 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. This Agreement has been duly executed and delivered by
the Collection Agent.
(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 Collection Agent
of this Agreement or any other document to be delivered by it hereunder.
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(d) This Agreement constitutes the legal, valid and binding
obligation of the Collection Agent enforceable against the Collection Agent in
accordance with its terms.
(e) The balance sheets of the Collection Agent and its
Subsidiaries as at December 31, 1999, and the related statements of income and
retained earnings of the Collection Agent and its Subsidiaries for the fiscal
year then ended, copies of which have been furnished to the Agent, fairly
present the financial condition of the Collection Agent and its Subsidiaries as
at such date and the results of the operations of the Collection Agent and its
Subsidiaries for the period ended on such date, all in accordance with generally
accepted accounting principles consistently applied, and since December 31, 1999
there has been no material adverse change in the business, operations, property
or financial or other condition of the Collection Agent.
(f) There is no pending or threatened action or proceeding
affecting the Collection Agent or any of its Subsidiaries before any court,
governmental agency or arbitrator which may materially adversely affect the
financial condition or operations of the Collection Agent or any of its
Subsidiaries or the ability of the Collection Agent to perform its obligations
under this Agreement, or which purports to affect the legality, validity or
enforceability of this Agreement.
(g) The Collection Agent has no office or place of business in
the province of Quebec, Canada.
ARTICLE V
COVENANTS
SECTION 5.01. COVENANTS OF THE SELLER. Until the latest of the
Facility Termination Date or the date on which no Capital of or Yield on any
Receivable Interest shall be outstanding or the date all other amounts owed by
the Seller hereunder to the Investors or the Agent are paid in full:
(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 Receivables Pool
or the ability of the Seller to perform its obligations under the Transaction
Documents.
(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 Pool Receivables at the address of the
Seller set forth under its name on the signature pages to this Agreement or,
upon 30 days' prior written notice to the Agent, at any other locations in
jurisdictions where all actions reasonably requested by the Agent to protect and
perfect the interest in the Pool Receivables have been taken and completed. The
Seller also will maintain and implement administrative and operating procedures
(including, without limitation, an ability to recreate records evidencing Pool
Receivables and related Contracts in the event of the destruction
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of the originals thereof), and keep and maintain all documents, books, records
and other information reasonably necessary or advisable for the collection of
all Pool Receivables (including, without limitation, records adequate to permit
the daily identification of each Pool Receivable and all Collections of and
adjustments to each existing Pool Receivable).
(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 Pool Receivables, and timely
and fully comply in all material respects with the Credit and Collection Policy
in regard to each Pool Receivable and the related Contract.
(d) SALES, LIENS, ETC. 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, the Seller's undivided interest
in any Pool Receivable, Related Security, related Contract or Collections, or
upon or with respect to any account to which any Collections of any Pool
Receivable are sent, or assign any right to receive income in respect thereof.
(e) EXTENSION OR AMENDMENT OF RECEIVABLES. Except as provided
in Section 6.02(c), the Seller will not extend, amend or otherwise modify the
terms of any Pool Receivable, or amend, modify or waive any term or condition of
any Contract related thereto.
(f) CHANGE IN BUSINESS OR CREDIT AND COLLECTION POLICY. The
Seller will not make any change in the character of its business or in the
Credit and Collection Policy that would, in either case, materially adversely
affect the collectibility of the Receivables Pool or the ability of the Seller
to perform its obligations under this Agreement.
(g) CHANGE IN PAYMENT INSTRUCTIONS TO OBLIGORS. The Seller
will not add or terminate any bank as a Lock-Box Bank from those listed in
Schedule I to this Agreement, or make any change in its instructions to Obligors
regarding payments to be made to the Seller or payments to be made to any
Lock-Box Bank, unless the Agent shall have received notice of such addition,
termination or change (including an updated Schedule I) and a fully executed
Lock-Box Agreement with each new Lock-Box Bank.
(h) DEPOSITS TO LOCK-BOX ACCOUNTS. The Seller will instruct
all Obligors to remit all their payments in respect of Receivables to Lock-Box
Accounts. If the Seller shall receive any Collections directly, it shall
immediately (and in any event within two Business Days) deposit the same to a
Lock-Box Account. The Seller will not deposit or otherwise credit, or cause or
permit to be so deposited or credited, to any Lock-Box Account cash or cash
proceeds other than Collections of Receivables.
(i) MARKING OF RECORDS. At its expense, the Seller will ▇▇▇▇
its master data processing records evidencing Pool Receivables and, at the
Agent's request following an Event of Termination, a Special Event or an
Incipient Event of Termination, related Contracts with a legend evidencing that
Receivable Interests related to such Pool Receivables and related Contracts have
been sold in accordance with this Agreement.
(j) FURTHER ASSURANCES. (i) 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
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actions, that may be necessary or desirable, or that the Agent may reasonably
request, to perfect, protect or more fully evidence the Receivable Interests
purchased under this Agreement, or to enable the Investors or the Agent to
exercise and enforce their respective rights and remedies under this Agreement.
Without limiting the foregoing, the Seller will, upon the request of the Agent,
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments and documents, that may be necessary or
desirable, or that the Agent may reasonably request, to perfect, protect or
evidence such Receivable Interests.
(ii) The Seller authorizes the Agent to file
financing or continuation statements, and amendments thereto
and assignments thereof, relating to the Pool Receivables and
the Related, Security, the related Contracts and the
Collections with respect thereto without the signature of the
Seller where permitted by law. A photocopy or other
reproduction of this Agreement shall be sufficient as a
financing statement where permitted by law.
(k) REPORTING REQUIREMENTS. The Seller will provide to the
Agent (in multiple copies, if requested by the Agent) the following:
(i) as soon as available and in any event within 60
days after the end of the first three quarters and within 120
days after the end of the fourth fiscal quarter of each fiscal
year of the Seller, a balance sheet of the Seller as of the
end of such quarter and a statement of income and retained
earnings of the Seller for the period commencing at the end of
the previous fiscal year and ending with the end of such
quarter, certified by the chief financial officer of the
Seller;
(ii) as soon as possible and in any event within five
days after the occurrence of each Event of Termination or
Incipient Event of Termination, a statement of the chief
financial 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;
(iii) 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 multi-employer
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 $5,000,000;
(iv) at least ten Business Days prior to any change
in the name of either Originator or the Seller, a notice
setting forth the new name and the effective date thereof;
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(v) promptly after the Seller obtains knowledge
thereof, notice of any "Event of Termination" or "Facility
Termination Date" under the Originator Purchase Agreement;
(vi) so long as any Capital shall be outstanding, as
soon as possible and in any event no later than the day of
occurrence thereof, notice that an Originator has stopped
selling or contributing to the Seller, pursuant to the
Originator Purchase Agreement, all newly arising Originator
Receivables;
(vii) as soon as available and in any event within 60
days after the end of the first three quarters of each fiscal
year of the Seller and within 120 days after the end of each
fiscal year of the Seller, a certificate of the chief
financial officer or the treasurer of the Seller to the effect
that, to the best of such officer's knowledge, no Event of
Termination has occurred and is continuing or, if any Event of
Termination has occurred and is continuing, specifying the
nature and extent thereof;
(viii) promptly after receipt thereof, copies of all
notices received by the Seller from the Originators under the
Originator Purchase Agreement; and
(ix) such other information respecting the
Receivables or the condition or operations, financial or
otherwise, of the Seller as the Agent may from time to time
reasonably request.
(l) CORPORATE SEPARATENESS. (i) The Seller shall 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 an Affiliate of the Seller or any Other Company, (y) is
not a current or former officer or employee of the Seller and (z) is not a
stockholder of any Other Company or any of their respective Affiliates.
(ii) The Seller shall not direct or participate in
the management of any of the Other Companies' operations.
(iii) The Seller shall conduct its business from an
office separate from that of the Other Companies (but which
may be located in the same facility as one or more of the
Other Companies). The Seller shall have stationery and other
business forms and a mailing address and a telephone number
separate from that of the Other Companies.
(iv) The Seller shall at all times be adequately
capitalized in light of its contemplated business.
(v) The Seller shall at all times provide for its own
operating expenses and liabilities from its own funds.
(vi) The Seller shall maintain its assets and
transactions separately from those of the Other Companies and
reflect such assets and transactions in financial statements
separate and distinct from those of the Other Companies and
evidence
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such assets and transactions by appropriate entries in books
and records separate and distinct from those of the Other
Companies. The Seller shall hold itself out to the public
under the Seller's own name as a legal entity separate and
distinct from the Other Companies. The Seller shall not hold
itself out as having agreed to pay, or as being liable,
primarily or secondarily, for, any obligations of the Other
Companies.
(vii) The Seller shall not maintain any joint account
with any Other Company or become liable as a guarantor or
otherwise with respect to any Debt or contractual obligation
of any Other Company.
(viii) The Seller shall not make any payment or
distribution of assets with respect to any obligation of any
Other Company or grant an Adverse Claim on any of its assets
to secure any obligation of any Other Company.
(ix) The Seller shall not make loans, advances or
otherwise extend credit to any of the Other Companies other
than Purchaser Loans on the terms and conditions set forth in
the Originator Purchase Agreement.
(x) The Seller shall hold regular duly noticed
meetings of its Board of Directors and make and retain minutes
of such meetings.
(xi) The Seller shall 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 Other Companies.
(xii) The Seller shall not engage in any transaction
with any of the Other Companies, except as permitted by this
Agreement and as contemplated by the Originator Purchase
Agreement.
(xiii) The Seller shall comply with (and cause to be
true and correct) each of the facts and assumptions contained
under the caption "Assumptions" on pages 3 - 5 of the opinion
of Squire, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. delivered pursuant to
Section 3.01(g) and designated as Annex C to this Agreement.
(m) ORIGINATOR PURCHASE AGREEMENT. The Seller will not amend,
waive or modify any provision of the Originator Purchase Agreement (provided
that the Seller may extend the "Facility Termination Date" thereunder) or waive
the occurrence of any "Event of Termination" under the Originator Purchase
Agreement, without in each case the prior written consent of the Agent. The
Seller will perform all of its obligations under the Originator Purchase
Agreement in all material respects and will enforce the Originator Purchase
Agreement in accordance with its terms in all material respects.
(n) NATURE OF BUSINESS. The Seller will not engage in any
business other than the purchase of Receivables, Related Security and
Collections from the Originators and the transactions contemplated by this
Agreement. The Seller will not create or form any Subsidiary.
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(o) MERGERS, ETC. The Seller will not merge with or into or
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions), all or
substantially all of its assets (whether now owned or hereafter acquired) to, or
acquire all or substantially all of the assets or capital stock or other
ownership interest of, or enter into any joint venture or partnership agreement
with, any Person, other than as contemplated by this Agreement and the
Originator Purchase Agreement.
(p) DISTRIBUTIONS, ETC. The Seller will not declare or make
any dividend payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of capital stock
of the Seller, or return any capital to its shareholders as such, or purchase,
retire, defease, redeem or otherwise acquire for value or make any payment in
respect of any shares of any class of capital stock of the Seller or any
warrants, rights or options to acquire any such shares, now or hereafter
outstanding; PROVIDED, HOWEVER, that the Seller may declare and pay cash
dividends on its capital stock to its shareholders so long as (i) no Event of
Termination shall then exist or would occur as a result thereof, (ii) such
dividends are in compliance with all applicable law including the corporate law
of the State of Ohio, and (iii) such dividends have been approved by all
necessary and appropriate corporate action of the Seller.
(q) DEBT. The Seller will not incur any Debt, other than any
Debt incurred pursuant to this Agreement and the Deferred Purchase Price.
(r) CERTIFICATE OF INCORPORATION. The Seller will not amend or
delete Article Third, Fifth or Sixth of its certificate of incorporation.
(s) TANGIBLE NET WORTH. The Seller will maintain Tangible Net
Worth at all times equal to at least 3% of the Outstanding Balance of the
Receivables at such time.
SECTION 5.02. COVENANT OF THE SELLER AND THE ORIGINATORS.
Until the latest of the Facility Termination Date or the date on which no
Capital of or Yield on any Receivable Interest shall be outstanding or the date
all other amounts owed by the Seller hereunder to the Investors or the Agent are
paid in full, each of the Seller and the Originators will, at their respective
expense, from time to time during regular business hours as requested by the
Agent, permit the Agent or its agents or representatives (including independent
public accountants, which may be the Seller's or an Originator's independent
public accountants), (i) to conduct periodic audits of the Receivables, the
Related Security and the related books and records and collections systems of
the Seller or either Originator, as the case may be, (ii) 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 or either Originator, as the case may be, relating to Pool
Receivables and the Related Security, including, without limitation, the
Contracts, and (iii) to visit the offices and properties of the Seller or either
Originator, as the case may be, for the purpose of examining such materials
described in clause (ii) above, and to discuss matters relating to Pool
Receivables and the Related Security or the Seller's or either Originator's
performance under the Transaction Documents or under the Contracts with any of
the officers or employees of the Seller or the Originators, as the case may be,
having knowledge of such matters. In addition, upon the Agent's request at least
once per year, the Seller will, at its expense, appoint independent public
accountants (which may, with the consent of the Agent, be the Seller's regular
independent public accountants), or utilize the Agent's representatives or
auditors, to prepare and deliver to the Agent
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a written report with respect to the Receivables and the Credit and Collection
Policy (including, in each case, the systems, procedures and records relating
thereto) on a scope and in a form substantially as described in Annex F hereto.
ARTICLE VI
ADMINISTRATION AND COLLECTION OF POOL RECEIVABLES
SECTION 6.01. DESIGNATION OF COLLECTION AGENT. The servicing,
administration and collection of the Pool Receivables shall be conducted by the
Collection Agent so designated hereunder from time to time. Until the Agent
gives notice to the Seller of the designation of a new Collection Agent, Ferro
Corporation is hereby designated as, and hereby agrees to perform the duties and
obligations of, the Collection Agent pursuant to the terms hereof. The Agent at
any time may designate as Collection Agent any Person (including itself) to
succeed Ferro Corporation or any successor Collection Agent, if such Person
shall consent and agree to the terms hereof. The Collection Agent may, with the
prior consent of the Agent, subcontract with any other Person for the servicing,
administration or collection of the Pool Receivables (and the Agent hereby
consents to the subcontracting to Ferro Electronic Materials, Inc. of the
servicing, administration and collection of Receivables originated by Ferro
Electronic Materials, Inc.). Any such subcontract shall not affect the
Collection Agent's liability for performance of its duties and obligations
pursuant to the terms hereof.
SECTION 6.02. DUTIES OF COLLECTION AGENT. (a) The Collection
Agent shall take or cause to be taken all such actions as may be necessary or
advisable to collect each Pool Receivable from time to time, all in accordance
with applicable laws, rules and regulations, with reasonable care and diligence,
and in accordance with the Credit and Collection Policy. The Seller and the
Agent hereby appoint the Collection Agent, from time to time designated pursuant
to Section 6.01, as agent for themselves and for the Investors to enforce their
respective rights and interests in the Pool Receivables, the Related Security
and the related Contracts. In performing its duties as Collection Agent, the
Collection Agent shall exercise the same care and apply the same policies as it
would exercise and apply if it owned such Receivables and shall act in the best
interests of the Seller and the Investors.
(b) The Collection Agent shall administer the Collections in
accordance with the procedures described in Section 2.04.
(c) If no Event of Termination, Special Event or Incipient
Event of Termination shall have occurred and be continuing, Ferro Corporation,
while it is the Collection Agent, may, in accordance with the Credit and
Collection Policy, extend the maturity or adjust the Outstanding Balance of any
Receivable as Ferro Corporation deems appropriate to maximize Collections
thereof, or otherwise amend or modify the terms of any Receivable, provided that
the classification of any such Receivable as a Defaulted Receivable shall not be
affected by any such extension.
(d) The Collection Agent shall hold in trust for the Seller
and each Investor, in accordance with their respective interests, all documents,
instruments and records (including, without limitation, computer tapes or disks)
which evidence or relate to Pool Receivables. The
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Collection Agent shall ▇▇▇▇ the Seller's master data processing records
evidencing Pool Receivables and, at the written request of the Agent following
the occurrence of an Event of Termination, a Special Event or an Incipient Event
of Termination, each invoice evidencing each Pool Receivable and the related
Contract with a legend, acceptable to the Agent, evidencing that Receivable
Interests therein have been sold.
(e) The Collection Agent shall, as soon as practicable
following receipt, turn over to the Seller any cash collections or other cash
proceeds received with respect to Receivables not constituting Pool Receivables.
(f) The Collection Agent shall, from time to time at the
request of the Agent, furnish to the Agent (promptly after any such request) a
calculation of the amounts set aside for the Investors pursuant to Section 2.04.
(g) Prior to the tenth Business Day of each month, the
Collection Agent shall prepare and forward to the Agent a Seller Report relating
to the Receivable Interests outstanding on the last day of the immediately
preceding month. At the request of the Agent, the Collection Agent shall prepare
and forward to the Agent reports relating to the Receivable Interests at more
frequent intervals.
The Collection Agent hereby elects to transmit Seller Reports
to the Agent by electronic mail (each, an "E-MAIL SELLER Report"), provided that
(i) the Collection Agent shall (A) make arrangements with VeriSign, Inc. (or
another authenticating organization acceptable to the Agent) to enable the
Collection Agent to generate digital signatures and (B) safeguard the keys,
access codes or other means of generating its digital signature, (ii) each
E-Mail Seller Report shall be (A) formatted as the Agent may designate from time
to time and shall be digitally signed and (B) sent to the Agent at an electronic
mail address designated by the Agent, and (iii) the Agent (A) shall be
authorized to rely upon such E-Mail Seller Report for purposes of this Agreement
to the same extent as if the contents thereof had been otherwise delivered to
the Agent in accordance with the terms of this Agreement and (B) may, upon
notice in writing to the Collection Agent and the Seller, terminate the right of
the Collection Agent to transmit E-Mail Seller Reports.
SECTION 6.03. CERTAIN RIGHTS OF THE AGENT. (a) The Agent is
authorized at any time to date, and to deliver to the Lock-Box Banks, the
Notices of Effectiveness attached to the Lock-Box Agreements. The Seller hereby
transfers to the Agent the exclusive ownership and control of the Lock-Box
Accounts to which the Obligors of Pool Receivables shall make payments. The
Agent may notify the Obligors of Pool Receivables, at any time and at the
Seller's expense, of the ownership of Receivable Interests under this Agreement.
(b) At any time following the designation of a Collection
Agent other than Ferro Corporation pursuant to Section 6.01 or following an
Event Termination, a Special Event or an Incipient Event of Termination:
(i) The Agent may direct the Obligors of Pool
Receivables that all payments thereunder be made directly to
the Agent or its designee.
(ii) At the Agent's request and at the Seller's
expense, the Seller shall notify each Obligor of Pool
Receivables of the ownership of Receivable Interests
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under this Agreement and direct that payments be made directly
to the Agent or its designee.
(iii) At the Agent'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 Pool Receivables and the related
Contracts and Related Security, or that are otherwise
necessary or desirable to collect the Pool Receivables, and
shall make the same available to the Agent at a place selected
by the Agent or its designee, and (B) segregate all cash,
checks and other instruments received by it from time to time
constituting Collections of Pool Receivables in a manner
acceptable to the Agent and, promptly upon receipt, remit all
such cash, checks and instruments, duly indorsed or with duly
executed instruments of transfer, to the Agent or its
designee.
(iv) The Seller authorizes the Agent 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
Agent, to collect amounts due under the Pool Receivables,
including, without limitation, endorsing the Seller's name on
checks and other instruments representing Collections of Pool
Receivables and enforcing the Pool Receivables and the Related
Security and related Contracts.
SECTION 6.04. RIGHTS AND REMEDIES. (a) If the Collection Agent
fails to perform any of its obligations under this Agreement, the Agent may (but
shall not be required to) itself perform, or cause performance of, such
obligation; and the Agent's costs and expenses incurred in connection therewith
shall be payable by the Collection Agent.
(b) The Seller and the Originators shall perform their
respective obligations under the Contracts related to the Pool Receivables to
the same extent as if Receivable Interests had not been sold and the exercise by
the Agent on behalf of the Investors of their rights under this Agreement shall
not release the Collection Agent or the Seller from any of their duties or
obligations with respect to any Pool Receivables or related Contracts. Neither
the Agent nor the Investors shall have any obligation or liability with respect
to any Pool Receivables or related Contracts, nor shall any of them be obligated
to perform the obligations of the Seller thereunder.
(c) In the event of any conflict between the provisions of
Article VI of this Agreement and Article VI of the Originator Purchase
Agreement, the provisions of this Agreement shall control.
SECTION 6.05. FURTHER ACTIONS EVIDENCING PURCHASES. Each
Originator agrees from time to time, at its expense, to promptly execute and
deliver all further instruments and documents, and to take all further actions,
that may be reasonably necessary or desirable, or that the Agent may reasonably
request, to perfect, protect or more fully evidence the Receivable Interests
purchased hereunder, or to enable the Investors or the Agent to exercise and
enforce their respective rights and remedies hereunder. Without limiting the
foregoing, each Originator will (i) upon the request of the Agent, execute and
file such financing or continuation statements, or amendments thereto, and such
other instruments and documents, that may be reasonably necessary
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or desirable, or that the Agent may reasonably request, to perfect, protect or
evidence such Receivable Interests; (ii) ▇▇▇▇ its master data processing records
evidencing the Pool Receivables with a legend, acceptable to the Agent,
evidencing that Receivable Interests therein have been sold; and (iii) upon the
request of the Agent following the occurrence of an Event of Termination, a
Special Event or an Incipient Event of Termination, ▇▇▇▇ conspicuously each
invoice evidencing each Pool Receivable with a legend, acceptable to the Agent,
evidencing that Receivable Interests therein have been sold.
SECTION 6.06. COVENANTS OF THE COLLECTION AGENT AND THE
ORIGINATORS. (a) AUDITS. The Collection Agent will, from time to time during
regular business hours as requested by the Agent, permit the Agent, or its
agents or representatives (including independent public accountants, which may
be the Collection Agent's independent public accountants), (i) to conduct
periodic audits of the Receivables, the Related Security and the related books
and records and collections systems of the Collection Agent, (ii) 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 Collection Agent relating to Pool Receivables and the Related
Security, including, without limitation, the Contracts, and (iii) to visit the
offices and properties of the Collection Agent for the purpose of examining such
materials described in clause (ii) above, and to discuss matters relating to
Pool Receivables and the Related Security or the Collection Agent's performance
hereunder with any of the officers or employees of the Collection Agent having
knowledge of such matters.
(b) CHANGE IN CREDIT AND COLLECTION POLICY. The Originators
will not make any change in their respective Credit and Collection Policy that
would impair the collectibility of any Pool Receivable or the ability of Ferro
Corporation (if it is acting as Collection Agent) to perform its obligations
under this Agreement.
SECTION 6.07. INDEMNITIES BY THE COLLECTION AGENT. Without
limiting any other rights that the Agent, any Investor or any of their
respective Affiliates (each, a "SPECIAL INDEMNIFIED PARTY") may have hereunder
or under applicable law, and in consideration of its appointment as Collection
Agent, the Collection Agent hereby agrees to indemnify each Special Indemnified
Party from and against any and all claims, losses and liabilities (including
reasonable attorneys' fees) (all of the foregoing being collectively referred to
as "SPECIAL INDEMNIFIED AMOUNTS") arising out of or resulting from any of the
following (excluding, however, (a) Special Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of such
Special Indemnified Party, (b) recourse for uncollectible Receivables or (c) any
income taxes or any other tax or fee measured by income incurred by such Special
Indemnified Party arising out of or as a result of this Agreement or the
ownership of Receivable Interests or in respect of any Receivable or any
Contract):
(i) any representation or warranty or statement made
or deemed made by the Collection Agent under or in connection
with this Agreement which shall have been incorrect in any
material respect when made;
(ii) the failure by the Collection Agent to comply
with any applicable law, rule or regulation with respect to
any Pool Receivable or Contract; or the
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failure of any Pool Receivable or Contract to conform to any
such applicable law, rule or regulation;
(iii) 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 Receivables in, or
purporting to be in, the Receivables Pool, the Contracts and
the Related Security and Collections in respect thereof,
whether at the time of any purchase or reinvestment or at any
subsequent time;
(iv) any failure of the Collection Agent to perform
its duties or obligations in accordance with the provisions of
this Agreement;
(v) the commingling of Collections of Pool
Receivables at any time by the Collection Agent with other
funds;
(vi) any action or omission by the Collection Agent
reducing or impairing the rights of the Investors with respect
to any Pool Receivable or the value of any Pool Receivable;
(vii) any Collection Agent Fees or other costs and
expenses payable to any replacement Collection Agent, to the
extent in excess of the Collection Agent Fees payable to the
Collection Agent hereunder; or
(viii) any claim brought by any Person other than a
Special Indemnified Party arising from any activity by the
Collection Agent or its Affiliates in servicing, administering
or collecting any Receivable.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. EVENTS OF TERMINATION. If any of the following
events ("EVENTS OF TERMINATION") shall occur and be continuing:
(a) The Collection Agent (if Ferro Corporation or any of its
Affiliates) (i) shall fail to perform or observe any term, covenant or agreement
under this Agreement (other than as referred to in clause (ii) or (iii) of this
subsection (a)) and such failure shall remain unremedied for five Business Days
or (ii) shall fail to deliver the monthly Seller Report when due and such
failure shall remain unremedied for three Business Days or (iii) shall fail to
make when due any payment or deposit to be made by it under this Agreement; or
(b) Ferro Corporation shall fail to transfer to the Agent when
requested any rights, pursuant to this Agreement, which Ferro Corporation then
has as Collection Agent, or the Seller or an Originator shall fail to make any
payment required under Section 2.04; or
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(c) Any representation or warranty made or deemed made by the
Seller or the Collection Agent (or any of their respective officers) under or in
connection with this Agreement or any other Transaction Document or any
information or report delivered by the Seller or the Collection Agent pursuant
to this Agreement or any other Transaction Document shall prove to have been
incorrect or untrue in any material respect when made or deemed made or
delivered; or
(d) The Seller or an Originator 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 10 days after written notice thereof shall have been given to the Seller by
the Agent; or
(e) The Seller or an Originator shall fail to pay any
principal of or premium or interest on any of its Debt which is outstanding in a
principal amount of at least $5,000,000 in the aggregate when the same becomes
due and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt and shall continue
after the applicable grace period, if any, specified in such agreement or
instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt; or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled required prepayment), redeemed, purchased or defeased, or an
offer to repay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; or
(f) Any purchase or any reinvestment pursuant to this
Agreement shall for any reason (other than pursuant to the terms hereof) cease
to create, or any Receivable Interest shall for any reason cease to be, a valid
and perfected first priority undivided percentage ownership interest to the
extent of the pertinent Receivable Interest in each applicable Pool Receivable
and the Related Security and Collections with respect thereto; or the security
interest created pursuant to Section 2.10 shall for any reason cease to be a
valid and perfected first priority security interest in the collateral security
referred to in that section; or
(g) The Seller or an Originator 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 an
Originator 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 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 an Originator
shall take any corporate action to authorize any of the actions set forth above
in this subsection (g); or
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(h) As of the last day of any calendar month, either (i) the
average of the Default Ratios for such month and the two immediately preceding
months shall exceed 6.0% or (ii) the average of the Dilution Ratios for such
month and the two immediately preceding months shall exceed 9.0% or (iii) the
Loss-to-Liquidation Ratio shall exceed 0.5%; or
(i) The sum of the Receivable Interests shall on any Business
Day be greater than 100%; or
(j) There shall have occurred any material adverse change in
the financial condition or operations of the Seller or an Originator since
December 31, 1999; or there shall have occurred any event which may materially
adversely affect the collectibility of the Receivables Pool or the ability of
the Seller or the Collection Agent to collect Pool Receivables or otherwise
perform its obligations under this Agreement; or
(k) An "Event of Termination" or "Facility Termination Date"
shall occur under the Originator Purchase Agreement, or the Originator Purchase
Agreement shall cease to be in full force and effect; or
(l) Any of the long term public senior unsecured debt
securities of Ferro Corporation are rated below BBB- by S&P or Baa3 by ▇▇▇▇▇'▇,
or, if Ferro Corporation does not have long term public senior unsecured debt
ratings from both S&P and ▇▇▇▇▇'▇, ▇▇▇▇▇ Corporation is judged by the Agent, in
its sole discretion, to be of credit quality below (with respect to each missing
rating) BBB by S&P or Baa3 by ▇▇▇▇▇'▇; or
(m) At least 80% of the outstanding capital stock of the
Seller and Ferro Electronic Materials, Inc. shall cease to be owned, directly or
indirectly, by Ferro Corporation; or
(n) The Undertaking Agreement shall cease to be in full force
and effect, or Ferro Corporation shall fail to perform or observe any term,
covenant or agreement contained in the Undertaking Agreement on its part to be
performed or observed and any such failure shall remain unremedied for fifteen
days after written notice thereof shall have been given by the Agent to the
Seller;
then, and in any such event, any or all of the following actions may be taken by
notice to the Seller: (x) the Investor or the Agent may 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, the Agent may designate another
Person to succeed Ferro Corporation as the 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 (g) of this
Section 7.01, the Facility Termination Date shall occur, Ferro Corporation (if
it is then serving as the Collection Agent) shall cease to be the Collection
Agent, and the Agent or its designee shall become the Collection Agent. Upon any
such declaration or designation or upon such automatic termination, the
Investors and the Agent shall have, in addition to the rights and remedies which
they may have under this Agreement, all other rights and, remedies provided
after default under the UCC and under other applicable law, which rights and
remedies shall be cumulative.
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ARTICLE VIII
THE AGENT
SECTION 8.01. AUTHORIZATION AND ACTION. Each Investor hereby
appoints and authorizes the Agent to take such action as agent on its behalf and
to exercise such powers under this Agreement as are delegated to the Agent by
the terms hereof, together with such powers as are reasonably incidental
thereto.
SECTION 8.02. AGENT'S RELIANCE, ETC. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them as Agent under or in connection with
this Agreement (including, without limitation, the Agent's servicing,
administering or collecting Pool Receivables as Collection Agent), except for
its or their own gross negligence or willful misconduct. Without limiting the
generality of the foregoing, the Agent: (a) may consult with legal counsel
(including counsel for the Seller and the Collection Agent), independent
certified public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (b) makes no
warranty or representation to any Investor (whether written or oral) and shall
not be responsible to any Investor for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (c) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Seller or the Collection Agent or to inspect the
property (including the books and records) of the Seller or the Collection
Agent; (d) shall not be responsible to any Investor for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other instrument or document furnished pursuant hereto; and (e)
shall incur no liability under or in respect of this Agreement by acting upon
any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by telecopier or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
SECTION 8.03. CNAI AND AFFILIATES. CNAI and any of its
Affiliates may generally engage in any kind of business with the Seller, the
Collection Agent or any Obligor, any of their respective Affiliates and any
Person who may do business with or own securities of the Seller, the Collection
Agent or any Obligor or any of their respective Affiliates, all as if CNAI were
not the Agent and without any duty to account therefor to the Investors.
ARTICLE IX
INDEMNIFICATION
SECTION 9.01. INDEMNITIES BY THE SELLER. Without limiting any
other rights that the Agent, the Investors or any of their respective Affiliates
(each, an "INDEMNIFIED PARTY") may have hereunder or under applicable law, the
Seller hereby agrees to indemnify each Indemnified Party from and against any
and all claims, losses and liabilities (including reasonable attorneys' fees)
(all of the foregoing being collectively referred to as "INDEMNIFIED AMOUNTS")
arising out of or resulting from this Agreement or the other Transaction
Documents or the use of proceeds of purchases or reinvestments or the ownership
of Receivable Interests or in respect of any
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Receivable or any Contract, excluding, however, (a) Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part of such
Indemnified Party, (b) recourse (except as otherwise specifically provided in
this Agreement) for uncollectible Receivables or (c) any income taxes incurred
by such Indemnified Party arising out of or as a result of this Agreement or the
ownership of Receivable Interests or in respect of any Receivable or any
Contract. Without limiting or being limited by the foregoing, the Seller shall
pay on demand to each Indemnified Party any and all amounts necessary to
indemnify such Indemnified Party from and against any and all Indemnified
Amounts relating to or resulting from any of the following:
(i) the creation of an undivided percentage ownership
interest in any Receivable which purports to be part of the
Net Receivables Pool Balance but which is not at the date of
the creation of such interest an Eligible Receivable or which
thereafter ceases to be an Eligible Receivable;
(ii) any representation or warranty or statement made
or deemed made by the Seller (or any of its officers) under or
in connection with this Agreement and the other Transaction
Documents which shall have been incorrect in any material
respect when made;
(iii) the failure by the Seller or an Originator to
comply with any applicable law, rule or regulation with
respect to any Pool Receivable or the related Contract; or the
failure of any Pool Receivable or the related Contract to
conform to any such applicable law, rule or regulation;
(iv) the failure to vest in the Investors (a) a
perfected undivided percentage ownership interest, to the
extent of each Receivable Interest, in the Receivables in, or
purporting to be in, the Receivables Pool and the Related
Security and Collections in respect thereof, or (b) a
perfected security interest as provided in Section 2.10, in
each case free and clear of any Adverse Claim;
(v) 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 Receivables in, or
purporting to be in, the Receivables Pool and the Related
Security and Collections in respect thereof, whether at the
time of any purchase or reinvestment or at any subsequent
time;
(vi) any dispute, claim, offset or defense (other
than discharge in bankruptcy of the Obligor) of the Obligor to
the payment of any Receivable in, or purporting to be in, the
Receivables Pool (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
services related to such Receivable or the furnishing or
failure to furnish such merchandise or services or relating to
collection activities with respect to such Receivable (if such
collection activities were performed by the Seller or any of
its Affiliates acting as Collection Agent);
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(vii) any failure of the Seller to perform its duties
or obligations in accordance with the provisions hereof or to
perform its duties or obligations under the Contracts;
(viii) any products liability or other claim arising
out of or in connection with merchandise, insurance or
services which are the subject of any Contract;
(ix) the commingling of Collections of Pool
Receivables at any time with other funds;
(x) any investigation, litigation or proceeding
related to this Agreement or the use of proceeds of purchases
or reinvestments or the ownership of Receivable Interests or
in respect of any Receivable or Related Security or Contract;
(xi) any failure of the Seller to comply with its
covenants contained in this Agreement or any other Transaction
Document; or
(xii) any claim brought by any Person other than an
Indemnified Party arising from any activity by the Seller or
any Affiliate of the Seller in servicing, administering or
collecting any Receivable.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. 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 Agent, as agent for the
Investors (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; PROVIDED, HOWEVER, that
no amendment, waiver or consent shall, unless in writing and signed by the
Collection Agent in addition to the Agent, affect the rights or duties of the
Collection Agent under this Agreement. No failure on the part of the Investors
or the Agent 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.
SECTION 10.02. NOTICES, ETC. All notices and other
communications hereunder shall, unless otherwise stated herein, be in writing
(which shall include facsimile communication) and 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 10.03. ASSIGNABILITY. (a) This Agreement and the
Investors' rights and obligations herein (including ownership of each Receivable
Interest) shall be assignable by the
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Investors and their successors and assigns. Each assignor of a Receivable
Interest or any interest therein shall notify the Agent and the Seller of any
such assignment. Each assignor of a Receivable Interest or any interest therein
may, in connection with the assignment or participation, disclose to the
assignee or participant any information relating to the Seller or an Originator,
including the Receivables, furnished to such assignor by or on behalf of the
Seller or by the Agent.
(b) This Agreement and the rights and obligations of the Agent
herein shall be assignable by the Agent and its successors and assigns.
(c) The Seller may not assign its rights or obligations
hereunder or any interest herein without the prior written consent of the Agent.
SECTION 10.04. COSTS, EXPENSES AND TAXES. (a) In addition to
the rights of indemnification granted under Section 9.01 hereof, the Seller
agrees to pay on demand all costs and expenses in connection with the
preparation, execution, delivery and administration (including periodic auditing
and the other activities contemplated in Section 5.02) of this Agreement, any
Asset Purchase 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 Agent, CNAI, ▇▇▇▇▇▇ and their respective Affiliates
with respect thereto and with respect to advising the Agent, CNAI, ▇▇▇▇▇▇ and
their respective Affiliates as to their rights and remedies under this
Agreement, and all reasonable costs and expenses, if any (including reasonable
counsel fees and expenses), of the Agent, CNAI, the Investors and their
respective Affiliates, in connection with the enforcement of this Agreement and
the other documents and agreements to be delivered hereunder.
(b) In addition, the Seller shall pay (i) to the extent not
included in the calculation of Yield, any and all commissions of placement
agents and dealers in respect of commercial paper notes issued to fund the
purchase or maintenance of any Receivable Interest, (ii) any and all reasonable
costs and expenses of any issuing and paying agent or other Person responsible
for the administration of ▇▇▇▇▇▇'▇ commercial paper program in connection with
the preparation, completion, issuance, delivery or payment of commercial paper
notes issued to fund the purchase or maintenance of any Receivable Interest, and
(iii) 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 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.
(c) The Seller also shall pay on demand all other costs,
expenses and taxes (excluding the cost of auditing ▇▇▇▇▇▇'▇ books by certified
public accountants, the cost of rating ▇▇▇▇▇▇'▇ commercial paper by independent
financial rating agencies, and income taxes) incurred by ▇▇▇▇▇▇ or any partner
of ▇▇▇▇▇▇ ("OTHER Costs"), including the taxes (excluding income taxes)
resulting from ▇▇▇▇▇▇'▇ operations, and the reasonable fees and out-of-pocket
expenses of counsel for any partner of ▇▇▇▇▇▇ with respect to advising as to
rights and remedies under this Agreement, the enforcement of this Agreement or
advising as to matters relating to ▇▇▇▇▇▇'▇ operations; PROVIDED that the Seller
and any other Persons who from time to time sell receivables or interests
therein to ▇▇▇▇▇▇ ("OTHER SELLERS") each shall be liable for such Other Costs
ratably in accordance with the usage under their respective facilities; and
PROVIDED FURTHER that if such Other
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Costs are attributable to the Seller and not attributable to any Other Seller,
the Seller shall be solely liable for such Other Costs.
SECTION 10.05. NO PROCEEDINGS. Each of the Seller, the Agent,
the Collection Agent, each Investor, each assignee of a Receivable Interest or
any interest therein and each entity which enters into a commitment to purchase
Receivable Interests or interests therein hereby agrees that it will not
institute against ▇▇▇▇▇▇ any proceeding of the type referred to in Section
7.01(g) so long as any commercial paper or other senior indebtedness issued by
▇▇▇▇▇▇ shall be outstanding or there shall not have elapsed one year plus one
day since the last day on which any such commercial paper or other senior
indebtedness shall have been outstanding.
SECTION 10.06. CONFIDENTIALITY. The Seller, each Originator
and the Collection Agent each agrees to maintain the confidentiality of this
Agreement in communications with third parties and otherwise; PROVIDED that this
Agreement may be disclosed (i) to third parties to the extent such disclosure is
made pursuant to a written agreement of confidentiality in form and substance
reasonably satisfactory to the Agent, (ii) to the legal counsel and auditors of
the Seller, the Originators and the Collection Agent if they agree to hold it
confidential and (iii) to the extent required by applicable law or regulation or
by any court, regulatory body or agency having jurisdiction over the Seller, the
Originators or the Collection Agent (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.
SECTION 10.07. GOVERNING LAW. THIS AGREEMENT SHALL, IN
ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW 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 INTERESTS OF THE INVESTORS IN
THE RECEIVABLES, THE ORIGINATOR PURCHASE AGREEMENT AND THE UNDERTAKING AGREEMENT
ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
SECTION 10.08. 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 10.09. SURVIVAL OF TERMINATION. The provisions of
Sections 2.08, 2.09, 6.07, 9.01, 10.04, 10.05 and 10.06 shall survive any
termination of this Agreement.
SECTION 10.10. CONSENT TO JURISDICTION. (a) Each party hereto
hereby irrevocably submits to the non-exclusive jurisdiction of any New York
State or Federal court sitting in New York City in any action or proceeding
arising out of or relating to this Agreement,
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and each party hereto hereby irrevocably agrees that all claims in respect of
such action or proceeding may be heard and determined in such New York State
court or, to the extent permitted by law, in such Federal court. The parties
hereto hereby irrevocably waive, to the fullest extent they may effectively do
so, the defense of an inconvenient forum to the maintenance of such action or
proceeding. The parties hereto agree that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
(b) Each of the Seller, the Collection Agent and the
Originators consents to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to it at its address
specified in Section 10.02. Nothing in this Section 10.10 shall affect the right
of the Investors or the Agent to serve legal process in any other manner
permitted by law.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY
JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS AGREEMENT OR ANY DOCUMENT EXECUTED OR DELIVERED PURSUANT
HERETO.
SECTION 10.12. 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 Agent or the Investors
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 Agent or the Investors 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 Agent or the Investors (as the
case may be) of any sum adjudged to be so due in such other currency the Agent
or the Investors (as the case may be) 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 Agent or the Investors
(as the case may be) in U.S. Dollars, the Seller agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify the Agent or the
Investors (as the case may be) against such loss, and if the U.S. Dollars so
purchased exceed the sum originally due to the Agent or the Investors (as the
case may be) in U.S. Dollars, the Agent or the Investors (as the case may be)
shall remit to the Seller such excess.
[Remainder of page intentionally left blank]
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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 FINANCE CORPORATION
By:
----------------------------------------------
Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile No. (▇▇▇)▇▇▇-▇▇▇▇
INVESTOR: ▇▇▇▇▇▇ ▇.▇.
By: Citicorp North America,
Inc., as Attorney-in-Fact
By:
-------------------------------------
Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Global Securitization
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
AGENT: CITICORP NORTH AMERICA, INC.,
as Agent
By:
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Vice President
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Global Securitization
Facsimile No. ▇▇▇-▇▇▇-▇▇▇▇
ORIGINATOR: FERRO ELECTRONIC MATERIALS, INC.
By:
----------------------------------------------
Treasurer
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇)▇▇▇-▇▇▇▇
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ORIGINATOR AND FERRO CORPORATION
COLLECTION AGENT:
By:
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Treasurer
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
Facsimile No. (▇▇▇)▇▇▇-▇▇▇▇
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