EXHIBIT 10.75
AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT
THIS AMENDMENT NO. 1 AND WAIVER TO CREDIT AGREEMENT (this "Amendment
Agreement") is made and entered into as of December 21, 2004, by and among
LIBBEY GLASS INC., a Delaware corporation (the "US Borrower"), LIBBEY EUROPE
B.V., a company organized and existing under the laws of the Netherlands (the
"Dutch Borrower", and together with the US Borrower, the "Borrowers"), EACH
LENDER SIGNATORY HERETO, and BANK OF AMERICA, N.A., as the administrative agent
for the Lenders (in such capacity, the "Administrative Agent"), Swing Line
Lender and an L/C Issuer.
W1TNESSETH:
WHEREAS, the Administrative Agent, the lenders party thereto
(collectively, the "Lenders" and individually, a "Lender") and the Borrowers
have entered into that certain Credit Agreement dated as of June 24, 2004 (as
hereby and from time to time amended, restated, supplemented, modified or
replaced, the "Credit Agreement"; capitalized terms used herein but not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement), pursuant to which the Lenders have agreed to make and have
made available to the Borrowers a revolving credit facility in an aggregate
principal amount of $250,000,000; and
WHEREAS, the Borrowers have requested that certain terms of the Credit
Agreement be amended in the manner set forth herein, and that certain covenants
under the Credit Agreement be waived, and the Administrative Agent and the
Lenders, subject to the terms and conditions contained herein, have agreed to
such amendment, to be effective as of the date hereof; and
WHEREAS, the Borrowers, the Administrative Agent and the Lenders
acknowledge that the terms of this Amendment Agreement constitute an amendment
and modification of, and not a novation of, the Credit Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and the
fulfillment of the conditions set forth herein, the parties hereby agree as
follows:
1. Definitions. The term "Credit Agreement" or "Agreement" (as the case
may be) as used herein, in the Credit Agreement and in the other Loan Documents
shall mean the Credit Agreement as hereby amended and modified, and as further
amended, modified replaced or supplemented from time to time as permitted
thereby.
2. Amendments to and Restatements of Terms of the Credit Agreement.
Subject to the conditions hereof and upon satisfaction of the terms set forth in
Section 6, the Credit Agreement is hereby amended, effective as of the date
hereof, as follows:
(a) THE DEFINITION OF "OFFSHORE CURRENCY SUBLIMIT" IN SECTION 1.01
OF THE CREDIT AGREEMENT IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS
FOLLOWS:
"Offshore Currency Sublimit" means an amount equal to the
lesser of (a) the combined Revolving Loan Commitments and (b)
$125,000,000. The Offshore Currency Sublimit is a part of, and not
in addition to, the Revolving Loan Commitments.
(b) THE FINANCIAL COVENANT IN SECTION 7.14(A) OF THE CREDIT
AGREEMENT IS HEREBY AMENDED AND RESTATED IN ITS ENTIRETY AS FOLLOWS:
(a) Leverage Ratio. Permit the Leverage Ratio at any time to
be greater than (i) from the Effective Date through and including
September 30, 2004, 3.50 to 1.00; (ii) from October 1, 2004 through
and including June 29 2005, 3.75 to 1.00; (iii) from June 30, 2005
through and including March 30, 2006, 3.50 to 1.00; and (iv) from
March 31, 2006 and continuing thereafter, 3.25 to 1.00.
3. Waiver. Effective as of the date hereof, the Administrative Agent and
the Lenders hereby waive, solely in connection with the Acquisition of
Crisal-Cristalaria Automatica, S.A., the requirement pursuant to Section
7.02(i)(iii) of the Credit Agreement that the US Borrower provide the
Administrative Agent and the Lenders with a certificate at least five days prior
to the consummation of such Acquisition evidencing that, after giving effect to
such Acquisition, the US Borrower is in compliance with Section 7.14(a) and (b)
(as determined on a Pro Forma Basis as of the last day of the preceding fiscal
quarter). This waiver shall be a one-time waiver and shall in no way serve to
waive any obligations of the Borrowers other than as expressly set forth above.
4. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, each Borrower hereby acknowledges and agrees
that the Credit Agreement and all of the other Loan Documents are hereby
confirmed and ratified in all respects and shall remain in full force and effect
according to their respective terms.
5. Representations and Warranties. The US Borrower hereby certifies that
after giving effect to this Amendment Agreement:
(a) The representations and warranties of the US Borrower contained
in Article V of the Credit Agreement, or which are contained in any
document furnished at any time under or in connection with the Credit
Agreement, that are qualified by materiality are true and correct on and
as of the date hereof, and each of the representations and warranties of
the US Borrower contained in Article V of the Credit Agreement, or which
are contained in any document furnished at any time under or in connection
with the Credit Agreement, that are not qualified by materiality are true
and correct in all material respects on and as of the date hereof, except
to the extent that such representations and warranties specifically refer
to an earlier date, in which case they are true and correct, or true and
correct in all material respects, as the case may be, as of such earlier
date;
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(b) Each Borrower has the power and authority to execute and perform
this Amendment Agreement and has taken all action required for the lawful
execution, delivery and performance thereof; and
(c) No Default or Event of Default exists.
6. Conditions to Effectiveness. This Amendment Agreement shall not be
effective until the Administrative Agent has received to its reasonable
satisfaction each of the following:
(a) four (4) counterparts of this Amendment Agreement executed by
the Borrowers, the Administrative Agent and the Required Lenders;
(b) payment of (i) all reasonable out of pocket fees and expenses of
counsel to the Administrative Agent incurred in connection with the
execution and delivery of this Amendment Agreement to the extent invoiced
prior to the date hereof; (ii) an upfront fee to each Lender executing
this Amendment by 5:00 p.m. (New York, New York time) on December 17,
2004, such upfront fee for each such Lender's own account, equal to five
basis points (5 "bps") multiplied by each such Lender's pro-rata portion
of the Commitments immediately prior to the effective date of this
Amendment Agreement; and (iii) all other fees agreed to be paid;
(c) an executed copy of an amendment to the US Borrower's note
purchase agreement and the related guaranty agreement by Libbey Inc., each
dated as of March 31, 2003 and entered into with institutional investors
covering the issuance of the US Borrower's senior notes maturing on March
31, 2008, March 31, 2010 and March 31, 2013, in form and substance
satisfactory to the Administrative Agent; and
(d) such other documents, instruments and certificates as reasonably
requested by the Agent.
Upon the satisfaction of the conditions set forth in this Section 6, the
Amendment Agreement shall be effective as of the date hereof.
7. Counterparts. This Amendment Agreement 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.
8. Governing Law. This Agreement shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York.
9. Enforceability. Should any one or more of the provisions of this
Amendment Agreement be determined to be illegal or unenforceable as to one or
more of the parties hereto, all other provisions nevertheless shall remain
effective and binding on the parties hereto.
10. No Novation. This Amendment Agreement is given as an amendment and
modification of, and not as a payment of, the Obligations of each Borrower under
the Credit Agreement and is not intended to constitute a novation of the Credit
Agreement. All of the
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indebtedness, liabilities and obligations owing by each Borrower under the
Credit Agreement shall continue.
11. Successors and Assigns. This Amendment Agreement shall be binding upon
and inure to the benefit of each of the Borrowers, the Lenders and the
Administrative Agent and their respective successors, assigns and legal
representatives; provided, however, that the Borrowers, without the prior
consent of the Administrative Agent, may not assign any rights, powers, duties
or obligations hereunder.
12. Expenses. Without limiting the provisions of Section 10.04 of the
Credit Agreement, the Borrowers agree to pay all reasonable out of pocket costs
and expenses (including without limitation reasonable legal fees and expenses)
incurred before or after the date hereof by the Administrative Agent and its
Affiliates in connection with the preparation, negotiation, execution, delivery
and administration of this Amendment Agreement.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
and Waiver to Credit Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
BORROWERS:
LIBBEY GLASS INC.
By: /s/ Kenneth A. Boerger
------------------------
Name: Kenneth A. Boerger
Title: Vice President and Treasurer
LIBBEY EUROPE B.V.
By: /s/ Kenneth G. Wilkes
------------------------
Name: Kenneth G. Wilkes
Title: Director
By : ________________________
Name: _______________________
Title: ______________________
Signature Page
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1
and Waiver to Credit Agreement to be duly executed by their duly authorized
officers, all as of the day and year first above written.
BORROWERS:
LIBBEY GLASS INC.
By: ___________________________
Name: _________________________
Title: ________________________
LIBBEY EUROPE B.V.
By: ___________________________
Name: _________________________
Title: ________________________
By : /s/ P. T. Buch
--------------------------
Name: P. T. BUCH
Title: Managing Director
Signature Page
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BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Cayce McCain
----------------
Name: Cayce McCain
Title: Assistant Vice President
Signature Page
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BANK OF AMERICA, N.A., as a Lender, Swing
Line Lender and an L/C Issuer
By: /s/ Thomas R. Durham
--------------------
Name: Thomas R. Durham
Title: Senior Vice President
Signature Page
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THE BANK OF NEW YORK, as a Lender
By: /s/ Kenneth R. McDonnell
------------------------
Name: Kenneth R. McDonnell
Title: Vice President.
Signature Page
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THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, AS A LENDER
By: /s/ Shinichiro Munechika
------------------------
Name: Shinichiro Munechika
Title: Deputy General Manager
Signature Page
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PNC BANK NATIONAL ASSOCIATION, as a
Lender
By: /s/ Louis K. McLinden
---------------------
Name: Louis K. McLinden
Title: Vice President
Signature Page
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THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ N. Bell
-----------------------
Name: N. BELL.
Title: Senior Manager
Signature Page
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CITIZENS BANK OF PENNSYLVANIA, as a
Lender
By: /s/ Clifford A. Mull
--------------------
Name: Clifford A. Mull
Title: Vice President
Signature Page
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CREDIT INDUSTRIEL ET COMMERCIAL, as
a Lender
By: /s/ Eric Dulot
--------------
Name: Eric Dulot
Title: Vice President
BY: /s/ Albert M. Calo
------------------
Name: Albert M. Calo
Title: Vice President
Signature Page
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CALYON NEW YORK BRANCH, as a Lender
By: /s/ LEE E. Greve
----------------
Name: LEE E. GREVE
TITLE: MANAGING DIRECTOR
By: /s/ Joseph A. Philbin
---------------------
Name: JOSEPH A. PHILBIN
Title: Director
Signature Page
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FIFTH THIRD BANK, as a Lender
By: /s/ Michael R. Miller
---------------------
Name: Michael R. Miller
Title: Executive Vice President
Signature Page
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JPMORGAN CHASE BANK, as a Lender
By: /s/ Steven P. Sullivan
----------------------
Name: Steven P. Sullivan
Title: Director
Signature Page
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NATIONAL CITY BANK, as a Lender
By: /s/ Thomas E. Redmond
---------------------
Name: Thomas E. Redmond
Title: Senior Vice President
Signature Page
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THE NORTHERN TRUST COMPANY, as a
Lender
By: /s/ Ashish S. Bhagwat
---------------------
Name: Ashish S. Bhagwat
Title: Vice-President
Signature Page
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STANDARD FEDERAL BANK N.A., as a
Lender
By: /s/ Chris Thomson
-----------------
Name: Chris Thomson
Title: V.P.
Signature Page
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