Exhibit 99.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 27, 2002
(this "AMENDMENT"), to the Existing Credit Agreement (as defined below) is made
by FERRO CORPORATION, an Ohio corporation (the "BORROWER"), and certain of the
Lenders (such capitalized term and other capitalized terms used in this preamble
and the recitals below to have the meanings set forth in, or are defined by
reference in, ARTICLE I below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower, the Lenders, National City Bank, as
Administrative Agent, and Credit Suisse First Boston, as Syndication Agent, are
parties to the Credit Agreement, dated as of August 31, 2001 (as amended or
otherwise modified prior to the date hereof, the "EXISTING CREDIT AGREEMENT",
and as amended by this Amendment and as the same may be further amended,
supplemented, amended and restated or otherwise modified from time to time, the
"CREDIT AGREEMENT");
WHEREAS, the Borrower has requested that the Lenders amend certain
provisions of the Existing Credit Agreement and the Lenders are willing, on the
terms and subject to the conditions hereinafter set forth, to modify the
Existing Credit Agreement as set forth below;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN DEFINITIONS. The following terms when used in this
Amendment shall have the following meanings (such meanings to be equally
applicable to the singular and plural forms thereof):
"AMENDMENT" is defined in the PREAMBLE.
"FIRST AMENDMENT EFFECTIVE DATE" is defined in ARTICLE III.
"BORROWER" is defined in the PREAMBLE.
"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"EXISTING CREDIT AGREEMENT" is defined in the FIRST RECITAL.
SECTION 1.2. OTHER DEFINITIONS. Terms for which meanings are provided
in the Credit Agreement are, unless otherwise defined herein or the context
otherwise requires, used in this Amendment with such meanings.
ARTICLE II
AMENDMENT TO CREDIT AGREEMENT
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the provisions of the Existing Credit Agreement referred to
below are hereby amended in accordance with this ARTICLE II. Except as expressly
so amended, the Existing Credit Agreement shall continue in full force and
effect in accordance with its terms.
SECTION 2.1. AMENDMENT TO SECTION 1. Section 1 of the Existing Credit
Agreement is hereby amended as follows:
SECTION 2.1.1. AMENDMENT TO SECTION 1.1. Section 1.1 of the Existing
Credit Agreement is hereby amended by:
(a) inserting the following definitions in such Section in the
appropriate alphabetical sequence:
"FIRST AMENDMENT" means the First Amendment to
Credit Agreement, dated as of December 27, 2002, among the
Borrower and the Lenders party thereto.
"FIRST AMENDMENT EFFECTIVE DATE" means December 27,
2002.
(b) amending the definition of "Consolidated EBITDA" contained
therein by inserting "and (vii) non-recurring, non-DMC2 related
restructuring charges in an aggregate not to exceed $10,000,000"
immediately following clause (vi) contained in clause (A) thereof.
(c) amending the definition of "Fixed Charge Coverage Ratio"
contained therein by (i) inserting the parenthetical "(except capital
expenditures to the extent reimbursed by or on behalf of OMG pursuant
to the terms of the Purchase Agreement)" after the word "GAAP"
appearing in clause (a) thereof, and (ii) inserting the following
proviso at the end thereof:
"PROVIDED that the items included in clauses (a) and (b) above
for any Testing Period shall, to the extent not already so
adjusted, (x) include the appropriate financial items for any
person or business unit which has been acquired by the
Borrower for the portion of such Testing Period prior to the
date of acquisition,
and (y) exclude the appropriate financial items for any person
or business unit which has been disposed of by the Borrower
for the portion of such Testing Period prior to the date of
disposition"
SECTION 2.2. AMENDMENT TO SECTION 9. Section 9 of the Existing Credit
Agreement is hereby amended as follows:
SECTION 2.2.1. AMENDMENT TO SECTION 9.2. Section 9.2 of the Existing
Credit Agreement is hereby amended by deleting the amount "$140,000,000"
contained in clause (c)(ii) thereof and inserting the amount "$150,000,000" in
replacement therefor.
SECTION 2.2.2. AMENDMENT TO SECTION 9.3. Section 9.3 of the Existing
Credit Agreement is hereby amended and restated in its entirety to read as
follows:
9.3. RESTRICTIONS ON ACQUISITIONS. The Borrower will not, and
will not permit any Subsidiary to, consummate Acquisitions for an
aggregate consideration in excess of $100,000,000 in any fiscal year;
PROVIDED that the aggregate amount of all Acquisitions consummated
during the term of this Agreement shall not exceed $300,000,000.
Without limitation of the foregoing, the Borrower will not directly or
indirectly use any proceeds of a Credit Event hereunder to finance an
Acquisition which is actively opposed by the Board of Directors (or
similar governing body) of the selling person or the person whose
equity interests are to be acquired, UNLESS all of the Lenders
specifically approve or consent to such Acquisition in writing.
SECTION 2.2.3. AMENDMENT TO SECTION 9.6. Section 9.6 of the Existing
Credit Agreement is hereby amended by deleting the grid appearing therein and
substituting the following grid in replacement therefor:
PERIOD LEVERAGE RATIO
12/31/01 to 06/29/02 4.75:1
06/30/02 to 09/29/02 4.50:1
09/30/02 to 12/30/02 4.00:1
12/31/02 to 06/29/03 3.75:1
06/30/03 to 12/30/03 3.50:1
12/31/03 to 09/29/04 3.25:1
09/30/04 and thereafter 3.00:1
SECTION 2.2.4. AMENDMENT TO SECTION 9.7. Section 9.7 of the Existing
Credit Agreement is hereby amended by deleting the grid appearing therein and
substituting the following grid in replacement therefor:
FIXED CHARGE
DATE COVERAGE RATIO
12/31/01 1.25:1
03/31/02 1.35:1
06/30/02 1.50:1
09/30/02 1.75:1
12/31/02 1.50:1
03/31/03 1.50:1
06/30/03 1.65:1
09/30/03 1.65:1
12/31/03 1.75:1
03/31/04 1.75:1
06/30/04 1.75:1
09/30/04 2.00:1
12/31/04 2.00:1
03/31/05 2.25:1
and thereafter
ARTICLE III
CONDITIONS TO EFFECTIVENESS
This Amendment and the amendments contained herein shall become
effective on the date (the "FIRST AMENDMENT EFFECTIVE DATE") when each of the
conditions set forth in this ARTICLE III shall have been fulfilled to the
satisfaction of the Administrative Agent.
SECTION 3.1. COUNTERPARTS. The Administrative Agent shall have received
counterparts hereof executed on behalf of the Borrower and the Required Lenders.
SECTION 3.2. AMENDMENT FEE. The Administrative Agent shall have
received for the account of each Lender that has delivered its signature page in
a manner and before the time specified by the Administrative Agent, an amendment
fee in an amount equal to 0.15% of the amount of such Lender's outstanding
Commitment.
SECTION 3.3. COSTS AND EXPENSES, ETC. The Administrative Agent shall
have received for the account of each Lender, all fees, costs and expenses due
and payable pursuant to Section 12.1 of the Credit Agreement, if then invoiced.
SECTION 3.4. SATISFACTORY LEGAL FORM. The Administrative Agent and its
counsel shall have received all information, and such counterpart originals or
such certified or other copies of such materials, as the Administrative Agent or
its counsel may reasonably request, and all legal matters incident to the
effectiveness of this Amendment shall be satisfactory to the Administrative
Agent and its counsel. All documents executed or submitted pursuant hereto or in
connection herewith shall be reasonably satisfactory in form and substance to
the Administrative Agent and its counsel.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. CROSS-REFERENCES. References in this Amendment to any
Article or Section are, unless otherwise specified, to such Article or Section
of this Amendment.
SECTION 4.2. CREDIT DOCUMENT PURSUANT TO EXISTING CREDIT AGREEMENT.
This Amendment is a Credit Document executed pursuant to the Existing 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 Existing Credit Agreement, as amended hereby, including Section 12 thereof.
SECTION 4.3. SUCCESSORS AND ASSIGNS. This Amendment shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
SECTION 4.4. 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 shall be effective as delivery of a manually
executed counterpart of this Amendment.
SECTION 4.5. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SECTION 4.6. FULL FORCE AND EFFECT; LIMITED AMENDMENT. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants, conditions and other provisions of the Existing Credit Agreement and
the Credit Documents shall remain unchanged and shall continue to be, and shall
remain, in full force and effect in accordance with their respective terms. The
amendments set forth herein shall be limited precisely as provided for herein to
the provisions expressly amended herein and shall not be deemed to be an
amendment to, waiver of, consent to or modification of any other term or
provision of the Existing Credit Agreement or any other Credit Document or of
any transaction or further or future action on the part of any Credit Party
which would require the consent of the Lenders under the Existing Credit
Agreement or any of the Credit Documents.
SECTION 4.7. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders to execute and deliver this Amendment, the Borrower hereby represents
and warrants to the Lenders, on the First Amendment Effective Date, after giving
effect to this Amendment, all statements set forth in clause (b) of Section 6.2
of the Existing Credit Agreement are true and correct as of such date, except to
the extent that any such statement expressly relates to an earlier date (in
which case such statement was true and correct on and as of such earlier date).
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
FERRO CORPORATION
/s/ D. Xxxxxx Xxxxxx
----------------------------------
D. Xxxxxx Xxxxxx
Treasurer
CREDIT SUISSE FIRST BOSTON,
as a Lender
By:________________________
Title:
By:________________________
Title:
NATIONAL CITY BANK,
as a Lender
By:________________________
Title:
BANCA NAZIONALE DEL LAVORO
S.P.A., NEW YORK BRANCH,
as a Lender
By:________________________
Title:
By:________________________
Title:
BANK HAPOALIM B.M.,
as a Lender
By:________________________
Title:
THE BANK OF NEW YORK,
as a Lender
By:________________________
Title:
THE BANK OF TOKYO-MITSUBISHI,
LTD. CHICAGO BRANCH,
as a Lender
By:________________________
Title:
CITICORP USA, INC.,
as a Lender
By:________________________
Title:
FIFTH THIRD BANK,
as a Lender
By:________________________
Title:
BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK
BRANCH,
as a Lender
By:________________________
Title:
By:________________________
Title:
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By:________________________
Title:
MELLON BANK, N.A.,
as a Lender
By:________________________
Title:
NATIONAL AUSTRALIA BANK
LIMITED, A.C.N. 004044937,
as a Lender
By:________________________
Title:
THE NORINCHUKIN BANK,
as a Lender
By:________________________
Title:
THE NORTHERN TRUST COMPANY,
as a Lender
By:________________________
Title:
SUNTRUST BANK,
as a Lender
By:________________________
Title:
