Exhibit 10.71
AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT
THIS AMENDMENT NO. 3 AND WAIVER TO CREDIT AGREEMENT (this "Amendment
Agreement") is made and entered into as of December 29, 2005, 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.
WITNESSETH:
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 amended by Amendment
No. 1 and Waiver to Credit Agreement dated as of December 21, 2004 and by
Amendment No. 2 and Waiver to Credit Agreement dated as of September 30, 2005
("Amendment No. 2"), and 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 US Borrower would have been in default of the financial
covenant set forth in Section 7.14(a) of the Credit Agreement commencing as of
September 30, 2005 which default was waived by Amendment No. 2; and
WHEREAS, the Borrowers have requested that certain terms of the Credit
Agreement be amended in the manner set forth herein, that the Aggregate
Commitments be reduced to $195,000,000, and that the financial covenant default
described above continue to be waived effective as of the date hereof, and for a
period from the date hereof through and including January 2, 2007, and the
Administrative Agent and the Lenders, subject to the terms and conditions
contained herein, have agreed to such amendment and waiver, 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, restated,
modified, replaced or supplemented from time to time as permitted thereby.
2. Amendments to, Additions of, and Restatements of Terms of the Credit
Agreement. Subject to the conditions hereof and upon satisfaction of the terms
set forth in Section 7, the Credit Agreement is hereby amended, effective as of
the date hereof, as follows:
(A) SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED BY ADDING
THE FOLLOWING DEFINITIONS, IN ALPHABETICAL ORDER, TO READ AS FOLLOWS:
"Cash Management Obligations" means, with respect to any Lender,
any obligations owed to such Lender by the US Borrower or any of its
Subsidiaries which arise as a direct result of the deposit, collection
and other cash management, treasury or deposit services provided by
such Lender to the US Borrower or any such Subsidiary, including
without limitation all of the obligations of the US Borrower or any of
its Subsidiaries to such Lender for overdrafts, for returned checks
and other returned items and for credit extended under, or as a result
of, cash management, treasury and deposit agreements.
"Collateral" has the meaning specified in Section 6.16 of this
Agreement.
"Collateral Agent" means Bank of America, in its capacity as
collateral agent for the Secured Parties, or any permitted successor
collateral agent.
"Equity Interests" means, with respect to any Person, all of the
shares of capital stock of (or other ownership or profit interests in)
such Person, all of the warrants, options or other rights for the
purchase or acquisition from such Person of shares of capital stock of
(or other ownership or profit interests in) such Person, all of the
securities convertible into or exchangeable for shares of capital
stock of (or other ownership or profit interests in) such Person or
warrants, rights or options for the purchase or acquisition from such
Person of such shares (or such other interests), and all of the other
ownership or profit interests in such Person (including partnership,
member or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other
interests are outstanding on any date of determination.
"Intercreditor Agreement" means that certain Intercreditor and
Collateral Agency Agreement to be executed among the Administrative
Agent, the Lenders party hereto, the Collateral Agent, the
Noteholders, and the Victrocrisa Lenders and consented and agreed by
each Borrower and the other Loan Parties, as the same may be amended,
modified, restated, supplemented or replaced from time to time.
"Mortgage" means any mortgage, deed of trust, deed to secure, or
similar instrument under which a Lien may be granted against real
property, duly executed by Holdings, the US Borrower or one of the
Guarantors covering the Real Property, appropriately conformed to the
particular requirements of each
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applicable jurisdiction where such Real Property is located and in
form and substance reasonably satisfactory to the Administrative
Agent.
"Note Purchase Agreement" means that certain Note Purchase
Agreement dated as of March 31, 2003, by and among the US Borrower and
the Noteholders, pursuant to which the Noteholders purchased the
Senior Secured Notes, as may be amended, restated, supplemented,
modified, or replaced from time to time.
"Noteholders" means, collectively, each of the purchasers party
to the Note Purchase Agreement, including their permitted successors
and assigns.
"Pledged Foreign Subsidiary" means each, and "Pledged Foreign
Subsidiaries" means all, Subsidiaries of the US Borrower that are
owned directly by the US Borrower or a Guarantor which are organized
under the laws of a jurisdiction other than the United States of
America or any state or commonwealth thereof.
"Real Property" means the real property located in the United
States and owned by Holdings, the US Borrower or the Guarantors, as
described on Schedule 1.01 (a).
"Secured Obligations" means all advances to, and debts,
liabilities, obligations, covenants and duties of, any Loan Party
arising under any Loan Document or otherwise with respect to (a) the
Obligations, (b) any Revolving Loan or Letter of Credit, (c) any Swap
Contract of the US Borrower or any Subsidiary to which a Lender or an
Affiliate of a Lender is a party, provided such Lender was a party to
this Agreement at the time such Swap Contract was entered into or (d)
Cash Management Obligations, in each case whether direct or indirect
(including those acquired by assumption), absolute or contingent, due
or to become due, now existing or hereafter arising and including
interest and fees that accrue with respect to the foregoing after the
commencement by or against any Loan Party or any Affiliate thereof of
any proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding; provided, however, that
the maximum amount of the Swap Contracts under clause (c) and Cash
Management Obligations under clause (d) that are considered "Secured
Obligations" shall be governed by the Intercreditor Agreement.
"Secured Party" means each of, and "Secured Parties" means all
of, (a) the Collateral Agent, (b) the Administrative Agent, (c) the
Lenders, (d) any Affiliate of a Lender that has Cash Management
Obligations or that is a party to a Swap Contract with the US Borrower
or any Subsidiary, provided such Lender was a party to this Agreement
at the time such Cash Management Obligations were incurred or such
Swap Contract was entered into, (e) the Swing Line Lender, (f) the
Noteholders, (g) the Victrocrisa Lenders, and (h) each financial
institution or other entity that hereafter becomes a "Secured Party"
for purposes of the Intercreditor Agreement; provided that each party
shall be a Secured Party only to
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the extent set forth in and subject to the limitations set forth in
the Intercreditor Agreement.
"Security Agreement" means the Security Agreement to be executed
by Holdings, the US Borrower and the Guarantors in favor of Collateral
Agent for the benefit of the Secured Parties, in form and substance
reasonably acceptable to the Administrative Agent, as the same may be
amended, supplemented, restated, replaced, or modified from time to
time.
"Security Documents" means, collectively, any security agreement,
including without limitation the Security Agreement, any pledge
agreement, any mortgage or deed of trust including without limitation
the Mortgages, any assignment and endorsement of insurance, or any
other agreement, joinder, ratification, or document, together with all
related financing statements and stock powers, executed and delivered
in connection with this Agreement to create a Lien on any real or
personal property in favor of Collateral Agent for the benefit of the
Secured Parties, as the same may be amended, supplemented, replaced,
modified and restated from time to time.
"Senior Secured Notes" means, collectively, (a) $25,000,000 in
3.69% Senior Notes, Series 2003A-1, due on March 31, 2008, (b)
$55,000,000 in 5.08% Senior Notes, Series 2003A-2, due on March 31,
2013, and (c) $20,000,000 Floating Rate Senior Notes, Series 2003B,
due on March 31, 2010.
"Victrocrisa Credit Agreement" means that certain Credit
Agreement dated as of April 2, 2004, by and among Victrocrisa
Comercial, S. de R.L. de C.V., a corporation organized and existing
under the laws of Mexico, Victrocrisa, S. de R.L. de C.V., a
corporation organized and existing under the laws of Mexico, the
lenders and agents party thereto, as may be amended, restated,
supplemented, modified or replaced from time to time.
"Victrocrisa Lenders" means, collectively, each of the Tranche B
Lenders (as defined on the Victrocrisa Credit Agreement) party to the
Victrocrisa Credit Agreement, including their permitted successors and
assigns.
(B) SECTION 1.01 OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO RESTATE
EACH OF THE FOLLOWING IN THEIR ENTIRETY TO READ AS FOLLOWS:
"Applicable Rate" means the following basis points per annum,
based upon the Leverage Ratio as set forth in the most recent
Compliance Certificate received by the Administrative Agent pursuant
to Section 6.02(b):
Applicable Rate
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APPLICABLE RATE FOR
EURODOLLAR RATE LOANS, APPLICABLE APPLICABLE
OFFSHORE CURRENCY RATE FOR RATE FOR
PRICING LEVERAGE FACILITY RATE LOANS AND LETTER BASE RATE SWINGLINE
LEVEL RATIO FEE OF CREDIT FEE LOANS LOANS IN EURO
- ------- ------------- -------- ---------------------- ---------- -------------
1 Less than or 15.0 60.0 -40.0 110.0
equal to 1.75
to 1.00
2 Less than or 20.0 80.0 -20.0 130.0
equal to 2.25
to 1.00 but
greater than
1.75 to 1.00
3 Less than or 25.0 100.0 0.0 150.0
equal to 2.75
to 1.00 but
greater than
2.25 to 1.00
4 Less than or 30.0 120.0 20.0 170.0
equal to 3.25
to 1.00 but
greater than
2.75 to 1.00
5 Less than or 40.0 135.0 35.0 185.0
equal to 3.75
to 1.00 but
greater than
3.25 to 1.00
6 Less than or 50.0 175.0 75.0 225.0
equal to 4.25
to 1.00 but
greater than
3.75 to 1.00
7 Greater than 50.0 225.0 125.0 275.0
4.25 to 1.00
Any increase or decrease in the Applicable Rate resulting from a
change in the Leverage Ratio shall become effective as of the fifth
Business Day immediately following the date a Compliance Certificate
is delivered pursuant to Section 6.02(b); provided, however, that if
no Compliance Certificate is delivered with respect to a fiscal
quarter on or prior to the date when due in accordance with such
Section, then, until such time as the applicable Compliance
Certificate is delivered, with respect to the Facility Fee, Revolving
Loans and Offshore Currency Loans, Pricing Level 7 as set forth in the
table above shall apply as of the fifth Business Day after the
Administrative Agent gives the US Borrower
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notice that it has not received such certificate by the due date.
Until adjusted as provided above, the Applicable Rate shall be at the
Pricing Level 6.
"Available Amount" means an amount equal to the lesser of (a)
$195,000,000 and (b) the Aggregate Commitments.
"Loan Documents" means this Agreement, the Security Documents
(once entered into), the Intercreditor Agreement (once entered into),
each Note, the Fee Letter, each Request for Credit Extension, each
Compliance Certificate and the Guaranties, including all amendments,
restatements, replacements, modifications, increases, extensions,
ratifications, joinders, and supplements to the foregoing.
"Maximum Non-Loan Party Investment Amount" means an aggregate
amount not to exceed (a) $40,000,000 or (b) $125,000,000 if at the
time of such Investment or Disposition, the Leverage Ratio is less
than 2.25 to 1.00 (it being understood that Investments permitted by
this clause (b) shall not cease to be allowed by virtue of changes in
the Leverage Ratio subsequent to the time of such Investment or
Disposition), plus, in the case of either clause (a) or (b), an amount
(the "Incremental Amount") equal to any cash dividends, other cash
returns and the fair market value of other distributions received
after the date hereof with respect to the Investment described in
Section 7.02(n) (such Incremental Amount not to exceed the initial
amount of such Investment).
(C) SECTION 2.10(C) IS HEREBY ADDED TO THE CREDIT AGREEMENT TO READ AS
FOLLOWS:
(c) Additional Fee. To the extent the Obligations shall not have
been paid in full on or prior to May 31, 2006, on June 1, 2006, the US
Borrower shall pay to each Lender an amount equal to 25 basis points
on the amount of the Aggregate Commitments held by such Lender on such
date.
(D) SECTIONS 6.16 THROUGH 6.20 ARE HEREBY ADDED TO THE CREDIT
AGREEMENT TO READ AS FOLLOWS:
6.16 Collateral. To secure full and complete payment and
performance of the Secured Obligations, execute and deliver or cause
to be executed and delivered the documents described below covering
the property and collateral described in this Section 6.16 (which,
together with any other property and collateral which may now or
hereafter secure the Secured Obligations or any part thereof, is
sometimes herein called the "Collateral") as follows:
(a) On or before January 31, 2006, the US Borrower will, and
will cause each of the Guarantors to, grant to Collateral Agent,
for the benefit of the Secured Parties, a first priority security
interest in substantially all of its personal property, including
but not limited to, accounts, chattel paper, instruments,
documents, books, records, inventory, machinery, equipment,
trademarks, patents, copyrights, other
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intellectual property, payment intangibles, other general
intangibles, commercial tort claims, Equity Interests in its
Subsidiaries (provided that not more than 65% of the Equity
Interests of any Pledged Foreign Subsidiary shall be required to
be subject to such security interest except as otherwise provided
in the Security Agreement), other investment property and other
personal property described in the Security Agreement, whether
now owned or hereafter acquired, and all products and cash and
noncash proceeds thereof, pursuant to the Security Agreement and
the Security Documents, which shall be in form and substance
reasonably satisfactory to the Administrative Agent.
(b) On or before January 31, 2006, the US Borrower will, and
will cause each Guarantor to deliver to the Administrative Agent
certificates of insurance and endorsements to insurance policies
naming the Collateral Agent as loss payee/mortgagee and/or
additional insured, as applicable, with respect to all Collateral
or if otherwise available, and as may be required by Section 6.07
and the Security Documents.
(c) On or before January 31, 2006, the US Borrower will, and
will cause each Guarantor, to deliver to the Administrative Agent
counterparts of a fully executed Intercreditor Agreement.
(d) On or before March 31, 2006, the US Borrower will, and
will cause each Guarantor to, grant to Collateral Agent, for the
benefit of the Secured Parties, a first priority security
interest in all of its Real Property pursuant to the Mortgages
and other Security Documents related to the Mortgages and the
Real Property, to include, without limitation, loan or mortgagee
title commitments, flood certificates, and tax affidavits,
together with payment of all related taxes and fees, all of which
shall be in form and substance reasonably satisfactory to the
Administrative Agent.
(e) To the extent that the real property located at Dane,
Wisconsin, owned in connection with Traex Company has not been
sold on or before June 30, 2006, the US Borrower will, and will
cause any applicable Guarantor, to grant a lien in such real
property in the manner contemplated by Section 6.16(d) on or
prior to July 15, 2006.
(f) On or before January 31, 2006, certificates of
resolutions or other action, incumbency certificates and/or other
certificates of Responsible Officers of each Loan Party, all in
form and substance reasonably satisfactory to the Administrative
Agent, which establish the identity and verify the authority and
capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Amendment Agreement
and the other Loan Documents to which such Loan Party is a party.
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(g) On January 31, 2006, the US Borrower shall cause special
counsel to the US Borrower to deliver to the Administrative Agent
an opinion of counsel (which shall be in customary form) with
respect to the Security Documents executed and delivered on or
prior to January 31, 2006, together with such board resolutions,
officer's certificates, corporate and other documents and
opinions of counsel relative to such Security Documents as the
Administrative Agent shall reasonably request. Upon the earlier
of (x) May 31, 2006 or (y) as soon as practicable (but in no
event more than thirty days) after the occurrence of an Event of
Default, the US Borrower shall deliver to the Administrative
Agent an opinion of counsel in the applicable foreign
jurisdiction (which shall be in customary form) with respect to
the Security Documents executed and delivered on or prior to such
date which pertain to the Pledged Foreign Subsidiaries.
(h) The US Borrower will, and will cause each of the
Guarantors to execute and deliver and cause to be executed and
delivered such further documents and instruments as
Administrative Agent reasonably deems necessary or desirable to
evidence and perfect its Liens in the Collateral as set forth in
the Security Agreement.
6.17 Additional Subsidiaries.
(a) At any time following January 31, 2006, within ten days
after the time that any Person becomes a Domestic Subsidiary as a
result of the creation of such Subsidiary, an Acquisition
permitted by Article VII or otherwise, (i) if such Domestic
Subsidiary is a Restricted Material Subsidiary, it shall become a
party to the Security Agreement to secure the Secured
Obligations, pursuant to joinder agreements in form and substance
satisfactory to the Administrative Agent, (ii) 100% of such
Subsidiary's Equity Interests shall be pledged to secure the
Secured Obligations, and (iii) the Lenders shall receive such
board resolutions, officer's certificates, corporate and other
documents and opinions of counsel as the Administrative Agent
shall reasonably request in connection with the actions described
in clauses (i) and (ii) above.
(b) Within thirty days after the time that any Person
becomes a Pledged Foreign Subsidiary as a result of the creation
of such Subsidiary, an Acquisition permitted by Article VII or
otherwise, (i) 65% of such Subsidiary's Equity Interests shall be
pledged to secure the Secured Obligations. Subject to the
limitations set forth in Section 6.16(g), the opinions and
certificates required by Section 6.16(g) shall also be furnished
to the Administrative Agent concurrently with such pledge.
6.18 Cash Flow Forecasts. After May 31, 2006, the US Borrower
shall deliver to the Administrative Agent on the second Business Day
of each week a 13-week rolling cash flow forecast in form reasonably
acceptable to the Administrative Agent.
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6.19 Status of Refinancing. During the last week of each month
(beginning January, 2006) the US Borrower will hold a conference call
during normal business hours with the Lenders to discuss the status of
the US Borrower's efforts to refinance the Obligations.
6.20 Financial Advisor. In the event that the Obligations have
not been paid in full on or prior to May 31, 2006, counsel to the
Administrative Agent shall engage a financial advisor selected by the
Administrative Agent to perform a detailed review of the US Borrower's
business plan, financial statements, projections and strategies, with
such review to commence no later than June 9, 2006. No later than
August 9, 2006, such financial advisor shall provide to the Lenders a
written report setting forth the results of such review. Such
financial advisor shall also provide such other financial advisory
services relating to the business and financial condition of the Loan
Parties and their Subsidiaries as shall be requested by the
Administrative Agent and agreed between the Administrative Agent and
such financial advisor. During the engagement of such financial
advisor, the US Borrower shall provide the financial advisor with such
financial and other information (to the extent that such information
is reasonably available or can be reasonably obtained by the Loan
Parties) regarding the US Borrower, its Subsidiaries and other Loan
Parties, and investments as shall be reasonably requested by the
financial advisor, including reasonable access to the books and
records of the US Borrower, its Subsidiaries and the Loan Parties
during normal business hours; provided that (i) in the case of
commercially sensitive information (e.g. customer lists and channel of
distribution information), no such information shall be furnished to
the financial advisor unless the financial advisor shall have first
agreed in writing with the US Borrower that only summaries created in
consultation with the US Borrower of such information shall be
distributed to the Lenders, (ii) no such financial and other
information or access to books and records shall be furnished for
stockholders of Holdings and (iii) such financial information and
access to the books and records of other affiliates and investments
shall be furnished only to the extent permitted by any such affiliate
or the terms of any instrument pursuant to which any such investment
has been made; provided further, that in the case of this clause (iii)
the US Borrower shall use commercially reasonable efforts to ensure
that such information can be furnished to the financial advisor.
During the engagement of such financial advisor, which shall continue
for so long as the Administrative Agent shall deem appropriate, the
Administrative Agent shall request the financial advisor to use its
best efforts to coordinate its work with the work of any financial
advisor retained by the Noteholders under the Note Purchase Agreement
to avoid redundant work product. All fees (in an amount not to exceed
$150,000 per month) and expenses of the financial advisor retained
pursuant to this Section 6.20 shall be paid by the US Borrower or
other Loan Parties.
(E) ARTICLE VII OF THE CREDIT AGREEMENT IS HEREBY AMENDED TO RESTATE
THE INTRODUCTORY PARAGRAPH THERETO IN ITS ENTIRETY TO READ AS FOLLOWS:
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Commencing on the Effective Date, so long as any Lender shall have any
Commitment hereunder, any Loan or other Obligation shall remain unpaid
or unsatisfied, or any Letter of Credit shall remain outstanding, the
US Borrower shall not, nor shall it permit any Restricted Subsidiary
to, directly or indirectly, provided, however, that, notwithstanding
anything permitted pursuant to this Article VII:
(A) during the period from September 30, 2005 through and
including January 2, 2007, the US Borrower shall not, nor shall
it permit any Restricted Subsidiary to directly or indirectly
create, incur or assume (i) additional Liens under Section
7.01(j) or (ii) additional Liens under Section 7.01(q) hereof
securing obligations in excess of $1,000,000; and provided
further that no Liens shall be created, incurred or assumed under
Section 7.01(q) if, at such time or after giving effect thereto,
any Default or Event of Default shall have occurred and be
continuing;
(B) during the period from December 29, 2005 through and
including January 2, 2007, the US Borrower shall not, nor shall
it permit any Restricted Subsidiary to make any Investments under
Section 7.02(c)(i) in excess of the aggregate amount of
$3,000,000 at any time outstanding;
(C) during the period from December 29, 2005 through and
including January 2, 2007, the US Borrower shall not, nor shall
it permit any Restricted Subsidiary to create, incur assume or
permit additional Indebtedness (i) under Section 7.03(j) (ii)
under Section 7.03(d) in excess of $10,000,000 in the aggregate
at any one time outstanding or (iii) under Section 7.03(m) in
excess of $1,000,000 in the aggregate at any one time
outstanding;
(D) during the period from December 29, 2005 through and
including January 2, 2007, the US Borrower shall not, nor shall
it permit any Restricted Subsidiary to (i) make any Dispositions
under Section 7.05(d) in excess of $10,000,000 or (ii) make any
additional Dispositions under Sections 7.05(f); and
(E) during the period from December 29, 2005 through and
including January 2, 2007, the US Borrower shall not, nor shall
it permit any Restricted Subsidiary to create, incur, assume or
permit any Contingent Obligations under Section 7.13(e) in excess
of $25,000,000 at any time.
(F) SECTION 7.01 (A) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
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(a) Liens pursuant to any Loan Document or created pursuant
to any Security Document.
(G) SECTION 7.02(I) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(i) Investments incurred in order to consummate Acquisitions not
otherwise prohibited herein, including the Investment incurred in
order to consummate and finalize the Acquisition of Crisal-Cristalaria
Automatica, S.A. and Vitrocrisa Holding S. de R.L. de C.V.; provided
that (i) such Acquisitions are undertaken in accordance with all
applicable Laws, (ii) the prior, effective written consent or approval
to such Acquisition of the board of directors or equivalent governing
body of the acquiree is obtained, (iii) the US Borrower provides 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), (iv) after
giving effect to such Acquisition, the US Borrower and its Restricted
Subsidiaries remain in compliance with Section 7.09. and (v) such
Investments (not including the Acquisition of Crisal-Cristalaria
Automatica, S.A. and Victrocrisa Holding S. de R.L. de C.V.) shall not
exceed $5,000,000 in the aggregate over the term of this Agreement.
(H) SECTION 7.03(E) IS HEREBY AMENDED TO DELETE THE REFERENCE TO THE
DATE "DECEMBER 23, 2005" AND TO REPLACE IT WITH A REFERENCE TO THE DATE
"JANUARY 2, 2007."
(I) SECTION 7.03(H) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(h) Intercompany Indebtedness to the extent permitted by Section
7.02; provided, however, that in the event of any subsequent issuance
or transfer of any capital stock which results in the holder of such
Indebtedness ceasing to be a Restricted Subsidiary or any subsequent
transfer of such Indebtedness (other than to the US Borrower or any of
its Restricted Subsidiaries) such Indebtedness shall be required to be
permitted under another clause of this Section 7.03; provided further,
however, that in the case of Intercompany Indebtedness consisting of a
loan or advance to either Borrower, each such loan or advance shall be
unsecured and shall be subordinated to the indefeasible payment in
full of all of such Borrower's obligations pursuant to this Agreement
and the other Loan Documents;
(J) SECTION 7.05(M) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(m) other Dispositions of property not otherwise permitted
hereunder; provided that (i) the consideration received for such
assets shall have a value at
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least equal to the fair market value of such assets, in each case as
determined in good faith by the US Borrower or the applicable
Restricted Subsidiary; and (ii) if either (x) the amount of the Net
Proceeds of such Dispositions in any fiscal year of the US Borrower
exceeds $5,000,000 or (y) the sum of (A) Net Proceeds of Dispositions
received pursuant to Dispositions permitted by clause (n) of this
Section 7.05, (B) the fair market value of equipment transferred to
Libbey Glassware Ltd. (China) pursuant to clause (j) of this Section
7.05 and (C) the Net Proceeds received in any fiscal year pursuant to
this clause (m) exceeds $40,000,000, then in the case of either (x) or
(y), such excess amount shall be applied by the Borrower to prepay the
Indebtedness covered by the Secured Obligations as set forth in the
Intercreditor Agreement, and the Aggregate Commitments and the
Available Amount shall be permanently reduced by the amount of the
payment applied thereto (and the US Borrower shall make the
prepayment, if any, required in connection with such commitment
reduction pursuant to Section 2.08(b)), all as permitted under the
Intercreditor Agreement. Notwithstanding the foregoing, neither the US
Borrower nor any Loan Party will sell, transfer or dispose of any
Accounts Receivable (unless the debtor with respect thereto shall be
involved in an insolvency proceeding) except in the ordinary course of
business or create any Receivables Subsidiary; and
(K) SECTION 7.05(N) IS HEREBY ADDED TO THE CREDIT AGREEMENT TO READ AS
FOLLOWS:
(n) Dispositions of the business presently conducted by Traex
Company, provided that to the extent Net Proceeds thereof are used to
prepay the Obligations, such Net Proceeds shall be applied as set
forth in the Intercreditor Agreement.
(L) SECTION 7.07(A) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(a) each Restricted Subsidiary may make Restricted Payments to
the US Borrower and to any wholly-owned Restricted Subsidiary (and, in
the case of a Restricted Payment by a non-wholly-owned Restricted
Subsidiary, to the US Borrower and any Restricted Subsidiary and to
each other owner of capital stock of such Subsidiary on a pro rata
basis based on their relative ownership interests); provided that
Restricted Subsidiaries that are Guarantors may only make such
Restricted Payments to the US Borrower or to Restricted Subsidiaries
that are Guarantors;
(M) SECTION 7.13(D) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(d) Contingent Obligations with respect to Surety Instruments
(including financial standby letters of credit (other than any Letter
of Credit) in which either Borrower or any Restricted Subsidiaries has
any actual or contingent
-12-
reimbursement obligations) in an aggregate amount not to exceed
$15,000,000 at any time;
(N) SECTION 7.14(A) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(a) Leverage Ratio. Without limiting the provisions of Section
7.14(c), permit the Leverage Ratio at any time below 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 September 29, 2005, 3.50 to 1.00; (iv) as of December 31,
2005, 4.50 to 1.00; (v) from January 1, 2006 through and including
September 30, 2006, 4.85 to 1.00; (vi) from October 1, 2006 through
and including December 31, 2006, 4.00 to 1.00, and (vii) from January
1, 2007 and continuing thereafter, 3.25 to 1.00.
(O) SECTION 8.01(B) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(b) Specific Covenants. The US Borrower fails to perform or
observe any term, covenant or agreement contained in any of Section
6.03(a), 6.05(a), 6.12, 6.16, 6.17 or Article VII.
(P) SECTION 8.01(E) IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY
TO READ AS FOLLOWS:
(e) Cross-Default. (i) Any Loan Party or any of its Restricted
Subsidiaries (A) fails to make any payment when due (after giving
effect to any applicable grace periods and whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) in
respect of (x) any Indebtedness (other than Indebtedness hereunder)
having an aggregate principal amount (including amounts owing to all
creditors under any combined or syndicated credit arrangement) of more
than the Threshold Amount, (y) any Indebtedness under the Note
Purchase Agreement, or (z) any Indebtedness under the guaranty
agreement executed by the US Borrower and Holdings in connection with
the Victrocrisa Credit Agreement, or (B) fails to observe or perform
any other agreement or condition relating to any such Indebtedness
described in clause (A) above or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
occurs, the effect of which default or other event is to cause, or to
permit the holder or holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause, with the giving
of notice if required, such Indebtedness to be demanded or to become
due or to be repurchased or redeemed (automatically or otherwise)
prior to its stated maturity; or (ii) there occurs under any Swap
Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to
which the US Borrower or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (B) any Termination
-13-
Event (as so defined) under such Swap Contract as to which the US
Borrower or any Subsidiary is an Affected Party (as so defined) and,
in either event, the Swap Termination Value owed by the US Borrower or
such Subsidiary as a result thereof is greater than the Threshold
Amount; or
(Q) SECTION 8.03 IS HEREBY AMENDED TO BE RESTATED IN ITS ENTIRETY TO
READ AS FOLLOWS:
8.03 Application of Funds. Subject to the Intercreditor
Agreement, after the exercise of remedies provided for in Section 8.02
(or after the Loans have automatically become immediately due and
payable and the L/C Obligations have automatically been required to be
Cash Collateralized as set forth in the proviso to Section 8.02), any
amounts received on account of the Secured Obligations shall be
applied by the Administrative Agent in the following order:
First, to payment of that portion of the Secured Obligations
constituting fees, indemnities, expenses and other amounts (including
fees, charges and disbursements of counsel to the Administrative Agent
and amounts payable under Article III) payable to the Administrative
Agent in its capacity as such;
Second, to payment of that portion of the Secured Obligations
constituting fees, indemnities and other amounts (other than principal
and interest) payable to the Lenders and each L/C Issuer (including
fees, charges and disbursements of counsel to the respective Lenders
and each L/C Issuer and amounts payable under Article III), ratably
among them in proportion to the amounts described in this clause
Second payable to them;
Third, to payment of that portion of the Secured Obligations
constituting accrued and unpaid interest on the Loans, L/C Borrowings
and other Obligations, ratably among the Lenders and each L/C Issuer
in proportion to the respective amounts described in this clause Third
payable to them;
Fourth, ratably among the following parties in proportion to
their respective amounts described in this clause Fourth payable to
them: (A) to payment of that portion of the Secured Obligations
constituting unpaid principal of the Loans, L/C Borrowings, Cash
Management Obligations and the Termination Value of Swap Contracts,
ratably among the Lenders and each L/C Issuer in proportion to the
respective amounts described in this clause Fourth held by them; and
(B) to the Administrative Agent for the account of each L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the
aggregate undrawn amount of Letters of Credit;
Fifth, to payment of remaining portion of the Secured
Obligations, ratably among the Lenders in proportion to the respective
amounts described in this clause Fifth payable to them;
-14-
Last, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrowers or as otherwise required
by Law.
Subject to Section 2.04(c), amounts used to Cash Collateralize
the aggregate undrawn amount of Letters of Credit pursuant to clause
Fourth above shall be applied to satisfy drawings under such Letters
of Credit as they occur. If any amount remains on deposit as cash
collateral after all Letters of Credit have either been fully drawn or
expired, such remaining amount shall be applied to the other
Obligations, if any, in the order set forth above.
(R) SECTION 9.10 AND SECTION 9.11 ARE HEREBY ADDED TO THE CREDIT
AGREEMENT TO AS FOLLOWS:
9.10 Administrative Agent May File Proofs of Claim. Each of the
Lenders, the Administrative Agent and the L/C Issuer agree that in
case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to any Loan Party, the
Administrative Agent (irrespective of whether the principal of any
Revolving Loan or L/C Obligation shall then be due and payable as
herein expressed or by declaration or otherwise and irrespective of
whether the Administrative Agent shall have made any demand on the
Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the
Revolving Loans, L/C Obligations and all other Secured
Obligations that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the
claims of the Lenders, the L/C Issuer and the Administrative
Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C
Issuer and the Administrative Agent and their respective agents
and counsel and all other amounts due the Lenders, the L/C Issuer
and the Administrative Agent under Sections 2.04(i) and (j), 2.10
and 10.04) allowed in such judicial proceeding;
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the
same;
(c) and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such
judicial proceeding is hereby authorized by each Lender and the
L/C Issuer to make such payments to the Administrative Agent and,
in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the L/C
Issuer, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of
the Administrative Agent and its agents
- 15-
and counsel, and any other amounts due the Administrative Agent
under Sections 2.10 and 10.04; and
(d) nothing contained herein shall be deemed to authorize
the Administrative Agent to authorize or consent to or accept or
adopt on behalf of any Lender or the L/C Issuer any plan of
reorganization, arrangement, adjustment or composition affecting
the Secured Obligations or the rights of any Lender or to
authorize the Administrative Agent to vote in respect of the
claim of any Lender in any such proceeding.
9.11 Collateral Matters. The Lenders and the L/C Issuer
irrevocably authorize the Collateral Agent, at its option and in its
discretion, subject to Intercreditor Agreement,
(a) to release any Lien on any property granted to or held
by the Collateral Agent under any Loan Document (i) upon
termination of the Aggregate Commitments and payment in full of
all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of
Credit, (ii) that is sold or to be sold as part of or in
connection with any Disposition permitted hereunder or under any
other Loan Document, or (iii) subject to Section 10.01, if
approved, authorized or ratified in writing by the Required
Lenders;
(b) to subordinate any Lien on any property granted to or
held by the Collateral Agent under any Loan Document to the
holder of any Lien on such property that is permitted by Section
7.01; and
(c) upon request by the Collateral Agent at any time, the
Required Lenders will confirm in writing the Collateral Agent's
authority to release or subordinate its interest in particular
types of items of property pursuant to this Section 9.11.
(S) SECTION 10.19(D) IS HEREBY ADDED TO THE CREDIT AGREEMENT TO READ
AS FOLLOWS:
(c) During the period from December 29, 2005 through and
including January 2, 2007, no direct or indirect Subsidiary of
Holdings, the US Borrower or the Dutch Borrower shall be formed
or acquired and be designated or considered an Unrestricted
Subsidiary without the consent of the Administrative Agent other
than Unrestricted Subsidiaries as of December 29, 2005.
(T) ADDITION OF SCHEDULE 1.01(A) TO THE CREDIT AGREEMENT. Schedule
1.01(a) is added to the Credit Agreement in numerical order and all
references in the Credit Agreement to "Schedule 1.01(a)" shall be deemed
to refer to the "Schedule 1.01(a)" attached hereto.
-16-
(U) SUBSTITUTION OF SCHEDULE 2.01(A) TO THE CREDIT AGREEMENT. A
revised Schedule 2.01 is added to the Credit Agreement in numerical order
and all references in the Credit Agreement to "Schedule 2.01" shall be
deemed to refer to the "Schedule 2.01" attached hereto. Such revised
Schedule 2.01(a) shall reflect the reduction in the Aggregate Commitments
to $195,000,000 pursuant to Section 2.07.
(V) ADDITION OF REFERENCE TO SCHEDULE 1.01(A) TO THE CREDIT AGREEMENT.
A reference to "Schedule 1.01(a) - Real Property" is added to the index of
schedules in sequential order.
3. Waiver. Effective as of the date hereof and for a period from the date
hereof through and including January 2, 2007 (the "Waiver Period"), the
Administrative Agent and the undersigned Lenders hereby waive the Event of
Default caused by the failure to comply with the provisions of Section 7.14(a)
of the Credit Agreement for the fiscal quarter ending September 30, 2005 (the
"Section 7.14(a) Leverage Ratio"), at all times during the Waiver Period. Upon
the expiration of the Waiver Period, any Event of Default that would have
occurred during the Waiver Period for a failure to comply with the Section
7.14(a) Leverage Ratio but for the waiver set forth in this Section 3 shall be
deemed to be no longer subject to an effective waiver to the same extent as if
the waiver requested herein had never been in effect; provided, that the
Borrowers shall not pay interest at the Default Rate pursuant to Section 2.09(b)
of the Credit Agreement for any Event of Default declared upon the expiration of
the Waiver Period for failure to comply with the Section 7.14(a) Leverage Ratio
during the Waiver Period. The waiver set forth in this Section 3 is limited to
the extent specifically set forth above and shall in no way serve to waive
compliance with Section 7.14(a) of the Credit Agreement for any period other
than the Waiver Period or as at any other date or to waive any other terms,
covenants or provisions of the Credit Agreement or any other Loan Document, or
any obligations of any Borrower, other than as expressly set forth above.
4. Consent of the Guarantors. Each Guarantor hereby consents, acknowledges
and agrees to the amendments set forth herein and hereby confirms, reaffirms and
ratifies in all respects the Guaranties to which such Guarantor is a party
(including without limitation the continuation of such Guarantor's payment and
performance obligations thereunder upon and after the effectiveness of this
Amendment Agreement and the amendments contemplated hereby) and the
enforceability of such Guaranty against such Guarantor in accordance with its
terms.
5. 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.
6. 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
-17-
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;
(b) The Persons appearing as Guarantors on the signature pages to this
Amendment Agreement constitute all Persons who are required to be
Guarantors pursuant to the terms of the Credit Agreement and the other Loan
Documents, including without limitation all Persons who became Subsidiaries
or were otherwise required to become Guarantors after the Effective Date,
and each of such Persons has become and remains a party to a Guaranty as a
Guarantor;
(c) This Amendment Agreement has been duly authorized, executed and
delivered by each Borrower and each Guarantor party hereto and constitutes
a legal, valid and binding obligation of such parties, except as may be
limited by general principles of equity or by the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium or similar law affecting
creditors' rights generally; and
(d) After giving effect to this Amendment Agreement, no Default or
Event of Default exists.
7. 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 Agreement by 5:00 p.m. (New York, New York time) on December 23,
2005, such upfront fee for each such Lender's own account in an amount as
shall have been separately agreed upon in writing; and (iii) all other fees
agreed to be paid;
(c) an executed copy of an amendment to the guaranty agreement
executed by Libbey Inc. guaranteeing the US Borrower's obligations under
the Note Purchase Agreement, 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 7, this
Amendment Agreement shall be effective as of the date hereof.
-18-
8. Counterparts. This Amendment Agreement may be executed in one or more
counterparts, each of which shall be deemed an original (including electronic
copies) but all of which together shall constitute one and the same instrument.
9. Governing Law. This Amendment Agreement shall in all respects be
governed by, and construed in accordance with, the laws of the State of New
York.
10. 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.
11. 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 indebtedness, liabilities and obligations owing by each
Borrower under the Credit Agreement shall continue.
12. 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.
13. 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 and the additional Loan Documents
contemplated hereby.
14. Release. In consideration of the Administrative Agent and the Required
Lenders entering into this Amendment Agreement on behalf of the Lenders, the
Loan Parties hereby release the Administrative Agent, the Swing Line Lender, the
L/C Issuer, each of the Lenders, and the Administrative Agent's, the Swing Line
Lender's, the L/C Issuer's and each of the Lenders' respective officers,
employees, representatives, agents, counsel and directors from any and all
actions, causes of action, claims, demands, damages and liabilities of whatever
kind or nature, in law or in equity, now known or unknown, suspected or
unsuspected to the extent that any of the foregoing arises from any action or
failure to act solely in connection with the Loan Documents on or prior to the
date hereof.
[SIGNATURE PAGES FOLLOW.]
-19-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 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: VP and Treasurer
LIBBEY EUROPE B.V.
By: /s/ Kenneth A. Wilkes
------------------------------------
Name: Kenneth A. Wilkes
Title: Director
By: /s/ P.T. Buch
------------------------------------
Name: P.T. Buch
Title: Managing Director
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
REAFFIRMATION OF GUARANTIES
Each of the undersigned hereby (i) consents to the execution and delivery
of the Amendment Agreement by the parties hereto, (ii) agrees that the Amendment
Agreement shall not limit or diminish the obligations of each of the undersigned
under its respective Guaranty, (iii) reaffirms its obligations under its
respective Guaranty, (iv) agrees that it shall comply with the covenants set
forth in Section 6.15(a) and (b), 6.16, and 6.17 of the Credit Agreement as if
it were the US Borrower, and (v) agrees that its Guaranty remains in full force
and effect, and is hereby ratified and confirmed.
GUARANTORS:
LIBBEY GLASS INC.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: VP and Treasurer
LIBBEY INC.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: VP and Treasurer
THE DRUMMOND GLASS COMPANY
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
SYRACUSE CHINA COMPANY
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
WORLD TABLEWARE INC.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
LGA3 CORP.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
LGA4 CORP.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
LGFS INC.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
LGAC LLC
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
TRAEX COMPANY
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
LGC CORP.
By: /s/ Kenneth A. Boerger
------------------------------------
Name: Kenneth A. Boerger
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
ADMINISTRATIVE AGENT:
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Jay T. Wampler
------------------------------------
Name: Jay T. Wampler
Title: Managing Director
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
BANK OF AMERICA, N.A., as a Lender,
Swing Line Lender and an L/C Issuer
By: /s/ Jay T. Wampler
------------------------------------
Name: Jay T. Wampler
Title: Managing Director
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
BANK LEUMI USA, as a Lender
By: /s/ Joung Hee Hong
------------------------------------
Name: Joung Hee Hong
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
THE BANK OF NEW YORK, as a Lender
By: /s/ John M. Lokay, Jr.
------------------------------------
Name: John M. Lokay, Jr.
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By: /s/ Mr. Tsuguyuki Umene
------------------------------------
Name: Mr. Tsuguyuki Umene
Title: Deputy General Manager
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
CALYON NEW YORK BRANCH, as a Lender
By: /s/ Joseph A. Philbin
------------------------------------
Name: Joseph A. Philbin
Title: Director
By: /s/ Lee E. Greve
------------------------------------
Name: Lee E. Greve
Title: Managing Director
Deputy Manager
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
CITIZENS BANK OF PENNSYLVANIA,
as a Leader
By: /s/ Debra L. McAllonis
------------------------------------
Name: Debra L. McAllonis
Title: SVP
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
CREDIT INDUSTRIEL ET COMMERCIAL,
as a Lender
By: /s/ Eric Longuet
------------------------------------
Name: Eric Longuet
Title: Vice President
By: /s/ Nicolas Courtaigne
------------------------------------
Name: Nicolas Courtaigne
Title: Assistant Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
FIFTH THIRD BANK, as a Lender
By: /s/ Michael R. Miller
------------------------------------
Name: Michael R. Miller
Title: Executive Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
JPMORGAN CHASE BANK, N.A., as a Lender
By: /s/ Steven P. Sullivan
------------------------------------
Name: Steven P. Sullivan
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
LASALLE BANK MIDWEST NATIONAL
ASSOCIATION, as a Lender
By: /s/ Annette Gordon
------------------------------------
Name: Annette Gordon
Title: First Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
NATIONAL CITY BANK, as a Lender
By: /s/ Thomas E. Redmond
------------------------------------
Name: Thomas E. Redmond
Title: Senior Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
THE NORTHERN TRUST COMPANY, as a Lender
By: /s/ Preeti Sullivan
------------------------------------
Name: Preeti Sullivan
Title: Vice President
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
PNC BANK, NATIONAL ASSOCIATION, as a
Lender
By: /s/ Joseph G. Moran
------------------------------------
Name: Joseph G. Moran
Title: Managing Director
Signature Page to Amendment No. 3 and Waiver to Credit Agreement
SCHEDULE 1.01(A)
REAL PROPERTY
SCHEDULE OF REAL PROPERTY
LOCATION DESCRIPTION
-------- -----------
940 Ash Street Glass Manufacturing Facility, Warehouse and
Toledo, OH 43611 Distribution Center
4302 Jewella Road Glass Manufacturing Facility, Warehouse and
Shreveport, LA 71109 Distribution Center
2801 Court Street Ceramic Dinnerware Manufacturing Plant,
Syracuse, NY 13208 Warehouse and Distribution Center
Schedule 2.01
Revolving Loan Commitments and Pro Rata Shares
REVOLVING LOAN
NAME OF LENDER COMMITMENT PRO RATA SHARE
- -------------- -------------- --------------
BANK LEUMI $ 5,850,000 3.000000000
BANK OF AMERICA $ 21,450,000 11.000000000
BANK OF NEW YORK $ 13,650,000 7.000000000
BANK OF NOVA SCOTIA $ 17,550,000 9.000000000
BANK OF TOKYO-MITSUBISHI LTD $ 19,500,000 10.000000000
CALYON NEW YORK $ 13,650,000 7.000000000
CITIZENS BANK OF PENNSYLVANIA $ 15,600,000 8.000000000
CREDIT INDUSTRIEL ET COMMERCIAL $ 13,650,000 7.000000000
FIFTH THIRD BANK $ 11,700,000 6.000000000
JPMORGAN CHASE BANK $ 11,700,000 6.000000000
NATIONAL CITY BANK $ 11,700,000 6.000000000
NORTHERN TRUST COMPANY $ 11,700,000 6.000000000
PNC BANK NA $ 15,600,000 8.000000000
STANDARD FEDERAL BANK NA (ABN AMRO) $ 11,700,000 6.000000000
------------ -------------
TOTAL $195,000,000 100.000000000
============ =============