SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Execution Version
SECOND AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
This Second Amendment dated as of June 15, 2012 to Third Amended and Restated Credit Agreement (this “Amendment”) is entered into by and among Ferro Corporation, an Ohio corporation (the “Company”), the Subsidiaries of the Company listed on the signature pages hereto, the several banks and other financial institutions or entities listed on the signature pages hereto as Lenders, and PNC Bank, National Association, as administrative agent (in such capacity, the “Administrative Agent”) and collateral agent (in such capacity, the “Collateral Agent”). Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement, the Security Agreement and the Guaranty, as applicable.
W I T N E S S E TH:
WHEREAS, the Company, the Lenders from time to time party thereto, the Administrative Agent, the Collateral Agent, the Issuer and the Syndication Agents have entered into the Third Amended and Restated Credit Agreement, dated as of August 24, 2010 (as amended, restated, supplemented, waived or otherwise modified prior to the date hereof, the “Credit Agreement”);
WHEREAS, the Company has requested that the Credit Agreement be amended as more fully set forth herein; and
WHEREAS, the Lenders signing below, constituting at least the Required Lenders, are willing to amend the Credit Agreement on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree and covenant as follows:
SECTION 1. Amendments.
(a) Section 1.1 of the Credit Agreement shall be amended by amending and restating the definition of “Capital Expenditures” in its entirety as follows:
“Capital Expenditures” means, for any period, the aggregate amount of all expenditures of the Company and its Subsidiaries for fixed or capital assets made during such period which, in accordance with GAAP, would be classified as capital expenditures on the Company’s Consolidated Statement of Cash Flows; provided, that up to $10,000,000 in the aggregate of such expenditures attributable to the Company’s Polymer Additives Division after the Second Amendment Effective Date shall be excluded from the calculation of Capital Expenditures.
(b) Section 1.1 of the Credit Agreement shall be amended by amending and restating the definition of “EBITDA” in its entirety as follows:
“EBITDA” means, for any applicable period, the sum of (a) Net Income, plus (b) to the extent deducted in determining Net Income, and without duplication, the sum of (i) amortization expense, (ii) income tax expense, (iii) Interest Expense, (iv) depreciation expense, (v) restructuring expenses attributable to the Company’s restructuring (x) in the 2010 Fiscal Year in an aggregate amount not to exceed $19,000,000 for the period commencing July 1, 2010 and (y) in the 2012 Fiscal Year, the 2013 Fiscal Year and the 2014 Fiscal Year in an amount not to exceed $10,000,000 in any such Fiscal Year and $20,000,000 in the aggregate, (vi) non-recurring fees, non-cash charges, cash charges and other cash expenses paid in connection with the preparation, negotiation, approval, execution and delivery this Agreement and the other Loan Documents and the Senior Note Documents, including, in each case, amendments, waivers and other modifications thereto, (vii) non-cash expenses incurred in connection with asset write-offs, including, but not limited to, goodwill impairments, (viii) if applicable, any swap or hedge breakage costs relating to interest rate swaps or xxxxxx in effect on the Closing Date, in each case to the extent any such costs do not constitute Interest Expense, (ix) non-cash losses resulting from xxxx-to-market accounting treatment of interest rate hedging agreements, (x) non-cash losses resulting from xxxx-to-market accounting treatment of metals owned by the Company as of the date of determination and recorded as assets on the consolidated balance sheet of the Company and its Subsidiaries, (xi) all charges and associated expenses in connection with the refinancing, retirement or extinguishment of any Indebtedness, including initial issuance costs, prepayment penalties, swap breakage fees and write-off of deferred issuance fees, (xii) non-recurring one-time charges and expenses in an aggregate amount in any Fiscal Year not to exceed $10,000,000, (xiii) non-recurring charges related to pension settlement or curtailment in an aggregate amount not to exceed $20,000,000 over the term of this Agreement and (xiv) expenses paid in connection with the implementation of the Ferro Business Systems Initiative not to exceed $15,000,000 in the aggregate over the term of this Agreement, minus (c) to the extent added in determining Net Income, the sum of (i) non-cash gains resulting from xxxx-to-market accounting treatment of interest rate hedging agreements and (ii) non-cash gains resulting from xxxx-to-market accounting treatment of metals owned by the Company as of the date of determination and recorded as assets on the consolidated balance sheet of the Company and its Subsidiaries. Notwithstanding the foregoing, EBITDA for the Fiscal Quarters ending December 31, 2009, March 31, 2010 and June 30, 2010 shall be deemed to be $54,530,000, $57,815,000, and $70,813,000, respectively.
(c) Section 1.1 of the Credit Agreement shall be amended by deleting the definition of “Fixed Charge Coverage Ratio” in its entirety.
(d) Section 1.1 of the Credit Agreement shall be amended by adding therein the following definitions in appropriate alphabetical order:
“Ferro Business Systems Initiative” means the initiative to standardize and simplify the Company’s global business processes and to upgrade the Company’s internal management SAP ERP based systems.
“Interest Coverage Ratio” means, as of the close of any Fiscal Quarter, the ratio computed for the period consisting of such Fiscal Quarter and each of the three immediately preceding Fiscal Quarters of (a) EBITDA (for all such Fiscal Quarters) to (b) the sum of (i) Interest Expense actually paid in cash during such Fiscal Quarters (excluding (A) initial issuance costs paid in connection with Indebtedness incurred in respect of the Obligations and Indebtedness under the Senior Note Documents, (B) any make-whole premium or Interest Expense payable in connection with the prepayment of Indebtedness under the Existing Credit Agreement and the Existing Notes and (C) if applicable, any swap or hedge breakage costs relating to interest rate swaps or xxxxxx in effect on the Closing Date (including any such costs incurred in connection with a prepayment of the term loans under the Existing Credit Agreement)) and (ii) finance expenses actually paid in connection with the Permitted Receivables Program during such Fiscal Quarters; provided, that non-recurring fees, non-cash charges, cash charges and other cash expenses paid in connection with or related to the preparation, negotiation, approval, execution and delivery of the amendment and restatement of this Agreement and the other Loan Documents and the Senior Note Documents, including, in each case, amendments, waivers and other modifications thereto, shall be excluded from clause (b) above.
“Second Amendment” means that certain Second Amendment dated as of June 15, 2012 to Third Amended and Restated Credit Agreement by and among the Company, the Subsidiaries of the Company listed on the signature pages thereto, the Required Lenders, the Administrative Agent and the Collateral Agent.
“Second Amendment Effective Date” is defined in the Second Amendment.
(e) Section 1.4(b) of the Credit Agreement shall be amended by replacing “Fixed Charge Coverage Ratio” appearing therein with “Interest Coverage Ratio”.
(f) Section 7.2.2(h) of the Credit Agreement shall be amended and restated in its entirety as follows:
“(h) Indebtedness of Foreign Subsidiaries in connection with local lines of credit in an aggregate amount not to exceed $50,000,000, and Contingent Liabilities of the Company in respect of the foregoing.”
(g) Section 7.2.4 of the Credit Agreement shall be amended and restated in its entirety as follows:
“Section 7.2.4. Financial Condition and Operations. The Company will not permit any of the events set forth below to occur.
(a) The Company will not permit the Leverage Ratio as of the last day of any Fiscal Quarter set forth below to be greater than the ratio set forth opposite such period.
| Fiscal Quarter Ending | Leverage Ratio | |
June 30, 2012
|
3.50:1.00 | |
September 30, 2012
|
4.25:1.00 | |
December 31, 2012
|
4.25:1.00 | |
March 31, 2013 and each Fiscal Quarter thereafter
|
3.50:1.00 | |
(b) The Company will not permit the Interest Coverage Ratio as of the last day of any Fiscal Quarter set forth below to be less than the ratio set forth opposite such period.
| Fiscal Quarter Ending | Interest Coverage Ratio | |
June 30, 2012
|
2.50:1.00 | |
September 30, 2012
|
2.50:1.00 | |
December 31, 2012
|
2.75:1.00 | |
March 31, 2013 and each Fiscal Quarter thereafter
|
3.00:1.00 | |
(h) Section 7.2 of the Credit Agreement shall be amended by adding a new Section 7.2.13 thereto as follows:
“Section 7.2.13. Capital Expenditures. The Company will not permit the aggregate amount of Capital Expenditures made by the Company and its Subsidiaries in any period set forth below to exceed the amount set forth below for such period:
| Period | Maximum Capital Expenditures | |||
Three months ending June 30, 2012 |
$ | 20,000,000 | ||
Six months ending September 30, 2012 |
$ | 35,000,000 | ||
Nine months ending December 31, 2012 |
$ | 50,000,000 | ||
Twelve months ending March 31, 2013 |
$ | 65,000,000 | ||
2013 Fiscal Year and each Fiscal Year thereafter |
$ | 65,000,000 | ||
The amount of permitted Capital Expenditures set forth above in respect of any Fiscal Year commencing with the 2014 Fiscal Year shall be increased by the amount of unused permitted Capital Expenditures for the immediately preceding Fiscal Year, provided, that unused permitted Capital Expenditures may not be carried forward for more than one Fiscal Year, with any Capital Expenditures being carried forward being deemed to be the first Capital Expenditures in any Fiscal Year.
(i) Exhibit E (Form of Compliance Certificate) to the Credit Agreement shall be amended and restated in its entirety by Exhibit E attached hereto.
SECTION 2. Conditions to Effectiveness. The effectiveness of this Amendment is subject to the satisfaction of the following conditions (the date on which such conditions are satisfied, the “Second Amendment Effective Date”):
(a) The Administrative Agent shall have received duly executed and delivered counterparts of this Amendment that, when taken together, bear the signatures of (i) the Company, (ii) the Grantors, (iii) the Guarantors, (iv) the Administrative Agent, (v) the Collateral Agent and (vi) the Required Lenders.
(b) The Company shall have paid to the Administrative Agent all outstanding fees, costs and expenses owing to the Administrative Agent and its Affiliates as of such date, except that the Company shall pay the reasonable fees, disbursements and other charges of Xxxxxx & Xxxxxxx LLP, counsel for the Administrative Agent, within seven days following receipt of an invoice therefor and such payment shall not constitute a condition to the occurrence of the Second Amendment Effective Date.
(c) The Administrative Agent shall have received a certificate, dated as of the Second Amendment Effective Date, duly executed and delivered by an Authorized Officer of the Company, as to the matters described in Section 3(a)(ii) and Section 3(a)(iii) of this Amendment.
(d) The Company shall have paid to the Administrative Agent for the account of each Lender that has executed and delivered a signature page approving this Amendment on or before 5 p.m. (New York City time) on Wednesday, June 13, 2012, a fee in an amount equal to 0.05% of the aggregate amount of such Lender’s Revolving Loan Commitment (whether used or unused).
SECTION 3. Miscellaneous.
(a) Representations and Warranties. To induce the other parties hereto to enter into this Amendment, the Company, the Grantors and the Guarantors represent and warrant to each of the Lenders, the Administrative Agent and the Collateral Agent that, as of the Second Amendment Effective Date:
(i) This Amendment has been duly authorized, executed and delivered by the Company, the Grantors and the Guarantors, and this Amendment and the Credit Agreement (after giving effect to this Amendment) constitute the Company’s, each Grantor’s and each Guarantor’s, as applicable, legal, valid and binding obligation, enforceable against it in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law;
(ii) The representations and warranties set forth in the Credit Agreement and each other Loan Document are, in each case after giving effect to this Amendment, true and correct in all material respects on and as of the Second Amendment Effective Date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they were true and correct in all material respects as of such earlier date;
(iii) No Default has occurred and is continuing; and
(iv) The execution, delivery and performance by the Company, each Grantor and each Guarantor of this Amendment do not (x) contravene any (A) such Person’s Organic Documents, (B) court decree or order binding on or affecting any such Person or (C) law or governmental regulation binding on or affecting any such Person or (y) result in (A) or require the creation or imposition of, any Lien on any such Person’s properties (except as permitted by the Credit Agreement) or (B) a default under any contractual restriction binding on or affecting any such Person.
(b) Affirmation and Consent. Each of the Company, each Grantor and each Guarantor hereby reaffirms, as of the Second Amendment Effective Date, (i) the covenants and agreements made by such Person contained in each Loan Document to which it is a party, (ii) with respect to each Guarantor, its guarantee of payment of the Guaranteed Obligations pursuant to the Guaranty, and (iii) with respect to each Grantor party to the Security Agreement or a Mortgage, its pledges and other grants of Liens in respect of the Secured Obligations pursuant to any such Loan Document, in each case, as such covenants, agreements and other provisions may be modified by this Amendment.
(c) Cross-References. References in this Amendment to any Article or Section are, unless otherwise specified, to such Article or Section of this Amendment.
(d) Loan Document Pursuant to Credit Agreement. This Amendment is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with all of the terms and provisions of the Credit Agreement, as amended hereby, including Article X thereof.
(e) Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(f) Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which when executed and delivered shall be an original and all of which shall constitute together but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile (or pdf or other electronic transmission) shall be effective as delivery of a manually executed counterpart of this Amendment.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(h) Full Force and Effect; Limited Amendment.
(i) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of or otherwise affect the rights and remedies of the Lenders, the Administrative Agents or the Collateral Agent under the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other provision of the Credit Agreement or of any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle the Company, the Grantors and the Guarantors to a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances.
(ii) The parties hereto acknowledge and agree that (i) this Amendment and any other Loan Documents executed and delivered in connection herewith do not constitute a novation, or termination of the “Obligations” (as defined in the Loan Documents) under the Credit Agreement as in effect prior to the Second Amendment Effective Date; (ii) such “Obligations” are in all respects continuing (as amended hereby) with only the terms thereof being modified to the extent provided in this Amendment; and (iii) the Liens and security interests as granted under the Loan Documents securing payment of such “Obligations” are in all such respects continuing in full force and effect and secure the payments of the “Obligations”.
(i) Headings. The headings of this Amendment are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective officers as of the day and year first above written.
FERRO CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
FERRO ELECTRONIC MATERIALS INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
FERRO PFANSTIEHL LABORATORIES, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
FERRO INTERNATIONAL SERVICES INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
FERRO CHINA HOLDINGS INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
OHIO-MISSISSIPPI CORPORATION
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
CATAPHOTE CONTRACTING COMPANY
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
THE FERRO ENAMEL SUPPLY COMPANY
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
FERRO FAR EAST, INC.
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Treasurer
PNC BANK, NATIONAL ASSOCIATION, as Administrative
Agent, Collateral Agent and a Lender
By: /s/ Xxxxxxxxx X. Xxxxx
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President
Name of Lender:
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxx
Name: Xxxxx X. Xxx
Title: Vice President
Name of Lender:
RBS Citizens, N.A.
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: Vice President
Name of Lender:
US BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. XxXxxx
Name: Xxxxxxx X. XxXxxx
Title: Vice President
Name of Lender:
Citibank, N.A.
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxx
Title: Vice President
Name of Lender:
FIRSTMERIT BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
Name of Lender:
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH
By: /s/ Xxxx X’Xxxx
Name: Xxxx X’Xxxx
Title: Director
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Associate
Name of Lender:
THE PRIVATE BANK AND TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
Name of Lender:
First Commonwealth Bank
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Name of Lender:
Bank of America
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Senior Vice President
Name of Lender:
XX Xxxxxx Chase Bank, N.A.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Managing Director
Name of Lender:
Fifth Third Bank
By: /s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Vice President
EXHIBIT E
[FORM OF] COMPLIANCE CERTIFICATE
FERRO CORPORATION
This Compliance Certificate is delivered pursuant to Section 7.1.1 Third Amended and Restated Credit Agreement, dated as of August 24, 2010 (as amended, supplemented, amended and restated or otherwise modified from time to time, the “Credit Agreement”), among Ferro Corporation, an Ohio corporation (the “Company”), as a borrower, the Designated Borrowers from time to time party thereto, the various financial institutions and other Persons from time to time parties thereto, PNC Bank, National Association, as the Administrative Agent and as the Collateral Agent for the Secured Parties, and XX Xxxxxx Xxxxx Bank, N.A. and Bank of America, N.A., as Syndication Agents. Terms used herein, unless otherwise defined herein, have the meanings provided in the Credit Agreement.
The Company hereby certifies, represents and warrants that, as of , 20 (the “Computation Date”), no Default had occurred and was continuing.1 The Company hereby further represents and warrants that as of the Computation Date:
1. Financial Covenants:
(a) The maximum Leverage Ratio permitted pursuant to clause (a) of Section 7.2.4 of the Credit Agreement on the Computation Date is to 1.00. The actual Leverage Ratio was to 1.00, as computed on Attachment I hereto, and, accordingly, the covenant [has][has not] been complied with.
(b) The minimum Interest Coverage Ratio permitted pursuant to clause (b) of Section 7.2.4 of the Credit Agreement on the Computation Date is to 1.00. The actual Interest Coverage Ratio was to 1.00, as computed on Attachment II hereto, and, accordingly, the covenant [has][has not] been complied with.
(c) The maximum Capital Expenditures permitted pursuant to Section 7.2.13 of the Credit Agreement for the period ending on the Computation Date, including unused permitted Capital Expenditures carried forward from the immediately preceding Fiscal Year, are $ as computed on Attachment III hereto. The actual Capital Expenditures for the period ending on the Computation Date were $ , and, accordingly the covenant [has][has not] been complied with.
2. Subsidiaries: No Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate.2
IN WITNESS WHEREOF, the Company has caused this Compliance Certificate to be executed and delivered, and the certifications and warranties contained herein to be made on behalf of the Company, by the chief financial or accounting Authorized Officer of the Company as of , 20 .
FERRO CORPORATION
By
Name:
Title:
LEVERAGE RATIO
as of the last day of the Fiscal Quarter ending on or
immediately preceding the Computation Date
1. Total Debt: the outstanding principal amount of the
following types of Indebtedness of the Company and its
Subsidiaries as of the last day of the Fiscal Quarter ending
on or immediately preceding the Computation Date (exclusive of
intercompany Indebtedness between the Company and its
Subsidiaries): |
||||
(a) all obligations of such Person for borrowed
money or advances and all obligations of such
Person evidenced by bonds, debentures, notes or
similar instruments (which, in the case of the
Loans, shall be deemed to equal the Dollar
Equivalent (determined as of the most recent
Revaluation Date) for any Loans denominated in an
Alternate Currency) |
$ | |||
(b) all obligations, contingent or otherwise,
relative to the face amount of all letters of
credit, whether or not drawn, and banker’s
acceptances issued for the account of such Person
(which, in the ease of Letter of Credit
Outstandings, shall be deemed to equal the Dollar
Equivalent (determined as of the most recent
Revaluation Date) for any Letter of Credit
Outstandings denominated in an Alternate Currency). |
$ | |||
(c) all monetary obligations of such Person and
its Subsidiaries under any leasing or similar
arrangement which have been (or, in accordance
with GAAP, should be) classified as capitalized
leases, and for purposes of each Loan Document the
amount of such obligations shall be the
capitalized amount thereof, determined in
accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of
rent or any other amount due under such lease
prior to the first date upon which such lease may
be terminated by the lessee without payment of a
premium or a penalty (“Capitalized Lease
Liabilities”) |
$ | |||
(d) obligations arising under any lease (including
leases that may be terminated by the lessee at any
time) of any property (whether real, personal or
mixed) (i) that is not a capital lease in
accordance with GAAP and (ii) in respect of which
the lessee retains or obtains ownership of the
property so leased for federal income tax
purposes, other than any such lease under which
that Person is the lessor (synthetic leases) |
$ | |||
(e) all obligations (other than intercompany
obligations) of such Person pursuant to any
Permitted Receivables Program |
$ | |||
(f) the stated value, or liquidation value if
higher, of all Redeemable Stock of such Person |
$ | |||
(g) (without duplication) any Contingent Liability
in respect of any of the foregoing |
$ | |||
(h) The sum of Items 1(a) through 1(g) |
$ | |||
2. EBITDA as of the last day of the Fiscal Quarter ending on
or immediately preceding the Computation Date and each of the
three immediately preceding Fiscal Quarters: |
||||
(a) Net Income |
$ | |||
plus, to the extent deducted in determining Net Income: |
||||
(b) amortization expense |
$ | |||
(c) income tax expense |
$ | |||
(d) Interest Expense |
$ | |||
(e) depreciation expense |
$ | |||
(f) restructuring expenses attributable to the
Company’s restructuring (i) in 2010 in an
aggregate amount not to exceed $19,000,000 for the
period commencing July 1, 2010 and (ii) in the
2012 Fiscal Year, the 2013 Fiscal Year and the
2014 Fiscal Year in an amount not to exceed
$10,000,000 in any such Fiscal Year and
$20,000,000 in the aggregate |
$ | |||
(g) non-recurring fees, non-cash charges, cash
charges and other cash expenses paid in connection
with the preparation, negotiation, approval,
execution and delivery of the Credit Agreement and
the other Loan Documents and the Senior Note
Documents (each as defined therein), including, in
each case, amendments, waivers and other
modifications thereto |
$ | |||
(h) non-cash expenses incurred in connection with
asset write-offs, including, but not limited to,
goodwill impairments |
$ | |||
(i) if applicable, any swap or hedge breakage
costs relating to interest rate swaps or xxxxxx in
effect on the Closing Date, in each case to the
extent any such costs do not constitute Interest
Expense |
$ | |||
(j) non-cash losses resulting from xxxx-to-market
accounting treatment of interest rate hedging
agreements |
$ | |||
(k) non-cash losses resulting from xxxx-to-market
accounting treatment of metals owned by the
Company as of the date of determination and
recorded as assets on the consolidated balance
sheet of the Company and its Subsidiaries |
$ | |||
(l) all charges and associated expenses in
connection with the refinancing, retirement or
extinguishment of any Indebtedness, including
initial issuance costs, prepayment penalties, swap
breakage fees and write-off of deferred issuance
fees |
$ | |||
(m) non-recurring one-time charges and expenses in
an aggregate amount in any Fiscal Year not to
exceed $10,000,000 |
$ | |||
(n) non-recurring charges related to pension
settlement or curtailment in an aggregate amount
not to exceed $20,000,000 over the term of the
Credit Agreement |
$ | |||
(o) expenses paid in connection with the
implementation of the Ferro Business Systems
Initiative not to exceed $15,000,000 in the
aggregate over the term of the Credit Agreement |
$ | |||
minus, to the extent added in determining Net Income: |
||||
(p) non-cash gains resulting from xxxx-to-market
accounting treatment of interest rate hedging
agreements |
$ | |||
(q) non-cash gains resulting from xxxx-to-market
accounting treatment of metals owned by the
Company as of the date of determination and
recorded as assets on the consolidated balance
sheet of the Company and its Subsidiaries |
$ | |||
(r) The sum of Items 2(a) through 2(o) minus the
sum of Items 2(p) and (q) |
$ | 3 | ||
3. LEVERAGE RATIO: ratio of Item 1(h) to Item 2(r) |
___: 1.00 | |||
INTEREST COVERAGE RATIO
as of the last day of the Fiscal Quarter ending on or
immediately preceding the Computation Date
1. EBITDA (see Item 2(r) of Attachment I) |
$ | — | ||
2. The sum (for the period consisting of the Fiscal Quarter ending
on or immediately preceding the Computation Date and each of the
three immediately preceding Fiscal Quarters) of |
$ | — | ||
(a) Interest Expense actually paid in cash during such
Fiscal Quarters4 |
$ | — | ||
(b) finance expenses actually paid in connection with the
Permitted Receivables Program during such Fiscal Quarters. |
$ | — | ||
3. INTEREST COVERAGE RATIO: the ratio of Item 1 to Item 2 |
____: 1.00 | |||
CAPITAL EXPENDITURES
for the ___ month period ending on the Computation Date
(a) Maximum Capital Expenditures for the period ending on
the Computation Date pursuant to Section 7.2.13 of the
Credit Agreement (excluding carry forwards): |
$ | — | ||
(b) Permitted unused Capital Expenditures carried forward
from the immediately preceding Fiscal Year |
$ | — | ||
(c) Maximum allowed Capital Expenditures for the period
ending on the Computation Date (a+b) |
$ | — | ||
(d) Actual Capital Expenditures for the period ending on the
Computation Date |
$ | — | ||
| 1 | If a Default has occurred, specify the details of such Default and the action that the Company or an Obligor has taken or proposes to take with respect thereto. |
| 2 | If a Subsidiary has been formed or acquired since the delivery of the last Compliance Certificate, the Company must certify that such Subsidiary has complied with Section 7.1.8 of the Credit Agreement. |
| 3 | EBITDA for the Fiscal Quarters ending December 31, 2009, March 31, 2010 and June 30, 2010 shall be deemed to be $54,530,000, $57,815,000, and $70,813,000, respectively. |
| 4 | Excluding (A) initial issuance costs paid in connection with Indebtedness incurred in respect of the Obligations and Indebtedness under the Senior Note Documents, (B) any make-whole premium or Interest Expense payable in connection with the prepayment of Indebtedness under the Existing Credit Agreement and the Existing Notes and (C) if applicable, any swap or hedge breakage costs relating to interest rate swaps or xxxxxx in effect on the Closing Date (including any such costs incurred in connection with a prepayment of the term loans under the Existing Credit Agreement)); provided, that non-recurring fees, non-cash charges, cash charges and other cash expenses paid in connection with or related to the preparation, negotiation, approval, execution and delivery of the amendment and restatement of this Agreement and the other Loan Documents and the Senior Note Documents, including, in each case, amendments, waivers and other modifications thereto, shall also be excluded. |
