EXHIBIT 10.74
LIBBEY INC.
FIRST AMENDMENT TO PARENT GUARANTY AGREEMENT
Dated as of December 21, 2004
Re: Parent Guaranty Agreement dated as of March 31, 2003,
Note Purchase Agreement dated as of March 31, 2003
and
$25,000,000 3.69% Senior Notes, Series 2003A-1, due March 31, 2008
$55,000,000 5.08% Senior Notes, Series 2003A-2, due March 31, 2013
$20,000,000 Floating Rate Senior Notes, Series 2003B, due March 31, 2010
LIBBEY INC.
FIRST AMENDMENT TO PARENT GUARANTY AGREEMENT
Dated as of December 21, 2004
Re: Parent Guaranty Agreement dated as of March 31, 2003,
Note Purchase Agreement dated as of March 31, 2003
and
$25,000,000 3.69% Senior Notes, Series 2003A-1, due March 31, 2008
$55,000,000 5.08% Senior Notes, Series 2003A-2, due March 31, 2013
$20,000,000 Floating Rate Senior Notes, Series 2003B, due March 31, 2010
To the institutional investors (the "Noteholders")
Named in Schedule I attached hereto
Ladies and Gentlemen:
Reference is made to the Parent Guaranty Agreement dated as of March 31,
2003 (the "Guaranty Agreement") between Libbey Inc., a Delaware corporation (the
"Guarantor"), and each of the institutional investors party thereto, pursuant to
which the Guarantor has guaranteed the obligations of Libbey Glass Inc., a
Delaware corporation (the "Company"), under the Note Purchase Agreement dated as
of March 31, 2003 (the "Note Purchase Agreement") between the Company and the
institutional investors party thereto, under and pursuant to which the Company
originally issued and sold its 3.69% Senior Notes, Series 2003A-1, due March 31,
2008 in an aggregate principal amount of $25,000,000 (the "Series A-1 Notes"),
5.08% Senior Notes, Series 2003A-2, due March 31, 2013 in an aggregate principal
amount of $55,000,000 (the "Series A-2 Notes"), and Floating Rate Senior Notes,
Series 2003B, due March 31, 2010 in an aggregate principal amount of $20,000,000
(the "Series 2003B Notes," and together with the Series A-1 Notes and the Series
A-2 Notes, the "Notes"). Terms used but not otherwise defined herein shall have
the same meaning as ascribed to such terms in the Guaranty Agreement.
The Guarantor hereby agrees with you in this First Amendment to Parent
Guaranty Agreement (this or the "Amendment") as follows:
ARTICLE 1.
AMENDMENT OF GUARANTY AGREEMENT.
Section 1.1. Amendment to Section 5.1 (Limitation on Debt). Section 5.1 of
the Guaranty Agreement shall be and is hereby amended in its entirety to read as
follows:
"Section 5.1. Limitation on Debt. The Guarantor will not at any time
permit:
(a) the Consolidated Leverage Ratio to exceed (i) from October
1, 2004 through and including June 29, 2005, 3.75 to 1.00, and (ii)
from June 30, 2005 and at all times thereafter, 3.50 to 1.00; and
(b) Priority Debt to exceed 20% of Consolidated Total
Capitalization as of the end of the most recently completed fiscal
quarter."
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES.
The Guarantor represents and warrants that as of the date hereof and after
giving effect hereto:
(a) The execution and delivery of the Amendment by the Guarantor and
compliance by the Guarantor with all of the provisions of the Guaranty
Agreement, as amended by the Amendment --
(i) are within the corporate power and authority of the
Guarantor; and
(ii) will not violate any provisions of any law or any order
of any court or governmental authority or agency and will not
conflict with or result in any breach of any of the terms,
conditions or provisions of, or constitute a default under the
certificate of incorporation or by-laws of the Guarantor, or any
indenture or other agreement or instrument to which the Guarantor is
party or by which the Guarantor may be bound or result in the
imposition of any Liens or encumbrances on any property of the
Guarantor.
(b) The execution and delivery of the Amendment has been duly
authorized by all necessary corporate action on the part of the Guarantor;
and the Amendment has been duly executed and delivered by the Guarantor,
and the Guaranty Agreement, as amended by the Amendment, constitutes the
legal, valid and binding obligation, contract and agreement of the
Guarantor enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and similar
laws affecting creditors' rights generally, and general principles of
equity (regardless of whether the application of such principles is
considered in a proceeding in equity or at law).
(c) Upon the effectiveness of this Amendment and that certain
Amendment No. 1 and Waiver to Credit Agreement, dated as of December 21,
2004 (the "Credit Agreement Amendment"), in respect of the Credit
Agreement dated as of June 24, 2004
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(the "Bank Credit Agreement") by and among the Company, Libbey Europe B.V.
and the banks and financial institutions named therein, no Default or
Event of Default exists or shall be continuing under the Guaranty
Agreement or the Note Purchase Agreement.
(d) Neither the Guarantor nor any Subsidiary has paid any fee or
other consideration to any Lender (as defined in the Bank Credit
Agreement) or to any Noteholder in connection with the execution and
delivery of the Credit Agreement Amendment or this Amendment except (i) an
amendment fee equal to .05% of the commitment amount of each Lender party
to the Credit Agreement Amendment, (ii) the fee referenced in Section 3.4
of this Amendment, and (iii) routine fees of counsel.
ARTICLE 3.
MISCELLANEOUS.
Section 3.1. References to Guaranty Agreement. References in the Guaranty
Agreement or the Note Purchase Agreement or in any Note, certificate, instrument
or other document delivered in connection with or in respect of the Guaranty
Agreement to the Guaranty Agreement shall be deemed to be references to the
Guaranty Agreement as amended hereby and as further amended from time to time
without making specific reference to this Amendment or any such other amendment.
Section 3.2. Effect of Amendment; Reaffirmation of Guaranty Agreement.
Except as expressly amended hereby, the Guarantor agrees that the Guaranty
Agreement and all other documents and agreements executed by the Guarantor in
connection with the Guaranty Agreement in favor of the Noteholders are ratified
and confirmed in all respects and continue unimpaired and shall remain in full
force and effect.
Section 3.3. Successors and Assigns. This Amendment shall be binding upon
the Guarantor and its successors and assigns and shall inure to the benefit of
the Noteholders and to the benefit of the Noteholders' successors and assigns,
including each successive holder or holders of any Notes.
Section 3.4. Requisite Approval; Expenses. This Amendment shall be
effective as of the date first written above upon the satisfaction of the
following conditions precedent: (a) the Guarantor and the Required Holders shall
have executed this Amendment, (b) the Company shall have executed and delivered
the Acknowledgment and Consent in respect of the Note Purchase Agreement and
this Amendment in the form attached hereto as Exhibit A, (c) each of the
Subsidiary Guarantors shall have executed and delivered the Acknowledgment and
Consent in respect of the Subsidiary Guaranty Agreement and this Amendment in
the form attached hereto as Exhibit B, (d) a copy of the executed Credit
Agreement Amendment shall have been delivered to the Noteholders, (e) the
Guarantor and the Company shall have paid a fee to each Noteholder in an amount
equal to 0.05% of the principal amount of the Notes held by such Noteholder, and
(f) the Guarantor and the Company shall have paid all reasonable fees and
disbursements of Chapman and Cutler LLP which are reflected in statements of
such counsel rendered on or prior to the date of this Amendment.
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Section 3.5. Counterparts. This Amendment to Guaranty Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together only one agreement.
Section 3.6. Governing Law. This Amendment shall be construed and enforced
in accordance with, and the rights of the parties shall be governed by, the law
of the State of New York excluding choice-of-law principles of the law of such
State that would require the application of the laws of a jurisdiction other
than such State.
Remainder of Page Intentionally Left Blank
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IN WITNESS WHEREOF, the Guarantor has executed this First Amendment to
Parent Guaranty Agreement as of the day and year first above written.
LIBBEY INC.
By /s/ Kenneth A. Boerger
---------------------------------------------
Name: Kenneth A. Boerger
Title: Vice President & Treasurer
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This Amendment is accepted and agreed to as of the day and year first
above written.
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Timothy L. Powell
---------------------------------------------
Name: Timothy L. Powell
Its Director
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: Metropolitan Life Insurance Company,
as Investment Manager
By /s/ Timothy L. Powell
---------------------------------------------
Name: Timothy L. Powell
Title Director
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
AIG LIFE INSURANCE COMPANY
SUNAMERICA LIFE INSURANCE COMPANY
By AIG Global Investment Corp., investment
advisor
By /s/ Gerald F. Herman
---------------------------------------------
Name: Gerald F. Herman
Its Vice President
ALL STATE LIFE INSURANCE COMPANY
By /s/ Jeffrey J. Cannon
---------------------------------------------
Name: Jeffrey J. Cannon
By /s/ Dorothy E. Even
---------------------------------------------
Name: Dorothy E. Even
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
C.M. LIFE INSURANCE COMPANY
MASSMUTUAL ASIA LIMITED
By Babson Capital Management LLC as
Investment Advisor
By /s/ Elisabeth A. Perenick
---------------------------------------------
Name: Elisabeth A. Perenick
Its Managing Director
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NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY
By /s/ Mark W. Poeppelman
---------------------------------------------
Name: Mark W. Poeppelman
Its --------------------------------------------
THE CANDA LIFE ASSURANCE COMPANY
By /s/ Eve Hampton
---------------------------------------------
Name: Eve Hampton
Its V.P., Investments, U.S. Operations
By /s/ J.G. Lowery
---------------------------------------------
Name: J.G. Lowery
Its A.V.P., Investments, U.S. Operations
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NOTEHOLDERS
NAMES OF NOTEHOLDERS SERIES OF NOTES OUTSTANDING PRINCIPAL AMOUNT
METROPOLITAN LIFE INSURANCE COMPANY A-1 $ 25,000,000
GENERAL AMERICAN LIFE INSURANCE COMPANY A-2 $ 4,000,000
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY A-2 $ 7,000,000
AIG LIFE INSURANCE COMPANY A-2 $ 6,000,000
ALLSTATE LIFE INSURANCE COMPANY A-2 $ 5,000,000
$ 5,000,000
$ 5,000,000
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY A-2 $ 3,550,000
$ 2,200,000
$ 1,250,000
$ 750,000
$ 350,000
C.M. LIFE INSURANCE COMPANY A-2 $ 1,450,000
MASSMUTUAL ASIA LIMITED A-2 $ 450,000
NATIONWIDE LIFE INSURANCE COMPANY A-2 $ 4,000,000
NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY A-2 $ 3,000,000
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY A-2 $ 2,000,000
THE CANADA LIFE ASSURANCE COMPANY A-2 $ 4,000,000
SUNAMERICA LIFE INSURANCE COMPANY B $ 7,000,000
MONUMENTAL LIFE INSURANCE COMPANY B $ 13,000,000
TOTAL $100,000,000
SCHEDULE I
(to First Amendment to Parent Guaranty Agreement)
ACKNOWLEDGMENT AND CONSENT
To the institutional investors named in
Schedule I to the Amendment (as hereinafter described)
This Acknowledgment and Consent (this "Acknowledgment and Consent"), dated
as of December 21, 2004, is being delivered by the undersigned, Libbey Glass
Inc., a Delaware corporation (the "Company"), in respect of that certain Note
Purchase Agreement dated as of March 31, 2003 (the "Note Purchase Agreement")
between the Company and the institutional investors party thereto and in
connection with the transactions contemplated by the First Amendment to Parent
Guaranty Agreement, effective as of even date herewith (the "Amendment"),
between Libbey Inc., a Delaware corporation (the "Guarantor"), and the
institutional investors party thereto, in respect of the original Parent
Guaranty Agreement dated as of March 31, 2003 (the "Amendment") between the
Guarantor and the institutional investors party thereto relating to the Note
Purchase Agreement. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Amendment.
By executing this Acknowledgment and Consent as of the date hereof,
the Company:
(i) acknowledges receipt of a copy of, and hereby consents to the
terms of, the Amendment;
(ii) ratifies and confirms the Note Purchase Agreement and the Notes
thereunder; and
(iii) confirms that the Note Purchase Agreement and the Notes
thereunder continue unimpaired and in full force effect.
[Signature Pages for Acknowledgment and Consent Follow]
EXHIBIT A
(to First Amendment to Parent Guaranty Agreement)
This Acknowledgment and Consent may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to this
Acknowledgment and Consent may be given by facsimile or other electronic
transmission, and such signatures shall be fully binding on the party sending
the same.
IN WITNESS WHEREOF, the Company has caused this Acknowledgment and Consent
to be executed as of the day and year first above written.
LIBBEY GLASS INC.
By /s/ Kenneth A. Boerger
---------------------------------------
Name: Kenneth A. Boerger
Title: Vice President & Treasurer
A-2
ACKNOWLEDGMENT AND CONSENT
To the institutional investors named in
Schedule I to the Amendment (as hereinafter described)
This Acknowledgment and Consent (this "Acknowledgment and Consent"), dated
as of December 21, 2004, is being delivered by each of the undersigned (each, a
"Subsidiary Guarantor"), in respect of that certain Subsidiary Guaranty dated as
of March 31, 2003 (the "Subsidiary Guaranty"), given in favor of the
institutional investors referred to therein, and in connection with the
transactions contemplated by the First Amendment to Parent Guaranty Agreement,
effective as of even date herewith (the "Amendment"), between Libbey Inc., a
Delaware corporation (the "Guarantor"), and the institutional investors party
thereto, in respect of the original Parent Guaranty Agreement dated as of March
31, 2003 (the "Amendment") between the Guarantor and the institutional investors
party thereto relating to the original Note Purchase Agreement, dated as of
March 31, 2003 between Libbey Glass Inc. and the institutional investors party
thereto. Capitalized terms used but not otherwise defined herein shall have the
meanings ascribed to such terms in the Amendment.
By executing this Acknowledgment and Consent as of the date hereof, each
Subsidiary Guarantor:
(i) acknowledges receipt of a copy of, and hereby consents to the
terms of, the Amendment;
(ii) ratifies and confirms the Subsidiary Guaranty; and
(iii) confirms that the Subsidiary Guaranty continues unimpaired and
in full force effect.
[Signature Pages for Acknowledgment and Consent Follow]
EXHIBIT B
(to First Amendment to Parent Guaranty Agreement)
This Acknowledgment and Consent may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Signatures to this
Acknowledgment and Consent may be given by facsimile or other electronic
transmission, and such signatures shall be fully binding on the party sending
the same.
IN WITNESS WHEREOF, each Subsidiary Guarantor has caused this
Acknowledgment and Consent to be executed as of the day and year first above
written.
THE DRUMMOND GLASS COMPANY
SYRACUSE CHINA COMPANY
WORLD TABLEWARE INC.
LGA3 CORP.
LGA4 CORP.
LGFS INC.
LGAC LLC
LGC CORP.
TRAEX COMPANY
By /s/ Kenneth A. Boerger
----------------------------------------
Name: Kenneth A. Boerger
Title: Vice President & Treasurer
B-2