Exhibit 10.72
[EXECUTION COPY]
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LIBBEY INC.
WAIVER AND THIRD AMENDMENT TO PARENT GUARANTY AGREEMENT
and
AMENDMENT TO NOTE PURCHASE AGREEMENT
DATED AS OF DECEMBER 29, 2005
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
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LIBBEY INC.
WAIVER AND THIRD AMENDMENT TO PARENT GUARANTY AGREEMENT
and
AMENDMENT TO NOTE PURCHASE AGREEMENT
DATED AS OF DECEMBER 29, 2005
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, as amended to date (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 Company and the Guarantor hereby agree with you in this Waiver and
Third Amendment to Parent Guaranty Agreement and Amendment to Note Purchase
Agreement (this or the "Agreement") as follows:
ARTICLE 1
WAIVER
Section 1.1. Waiver of Section 5.1(a) (Limitation on Debt). Compliance by
the Guarantor with Section 5.1(a) of the Guaranty Agreement is hereby waived
for the period beginning September 30, 2005 and ending December 31, 2005,
provided that the Consolidated Leverage Ratio for the period ending December
31, 2005 shall not exceed 4.5 to 1.00.
Section 1.2. Limited Waiver; Reservation of Rights. The Guarantor
acknowledges and agrees that the waiver granted in Section 1.1 is valid only for
the specific purpose for which it is being given and shall not in any way
obligate any Noteholder to agree to any additional waivers of the provisions of
the Guaranty Agreement or the Note Purchase Agreement, and, except as so waived,
shall not constitute or operate as a waiver of any Noteholder's rights under the
Note Purchase Agreement to exercise remedies resulting from any Default or Event
of Default which may now exist or which may occur in the future.
ARTICLE 2
AMENDMENT OF NOTE PURCHASE AGREEMENT
Section 2.1. Amendment of Notes (Form of Notes). From and after the date of
this Agreement, automatically, and without further action on the part of either
the Noteholders or the Company, the Notes shall be amended and restated in their
entirety to read as set forth in Exhibits 1(a), 1(b) and 1(c) hereto. Accrued
and unpaid interest outstanding in respect of any of the Notes as of the
effective date shall be due and payable on the next succeeding interest payment
date applicable to such amended and restated Notes. The term "Notes" as used
herein and in the Note Purchase Agreement shall include each such amended and
restated Note and any such notes issued in substitution therefore pursuant to
Section 13 of the Note Purchase Agreement.
Section 2.2. Amendment of Section 8 (Prepayment of Notes). Section 8 of the
Note Purchase Agreement shall be and is hereby amended by the addition thereto
of a new Section 8.5 which shall read as follows:
"Section 8.5. Additional Fee; Pro Rata Prepayments. (a) In the
event the Notes shall not have been prepaid in full on or prior to May
31, 2006, on June 1, 2006, the Company shall pay to each Noteholder an
amount equal to 25 basis points on the unpaid principal amount of each
Note held by such Noteholder which shall remain outstanding on such
date.
(b) Notwithstanding anything to the contrary set forth in this
Section 8, neither the Company nor any Note Party shall prepay any
Note (other than at the stated maturity of such Note)
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unless such prepayment is made pro rata among all Notes then
outstanding."
Section 2.3. Amendment of Section 11(c) (Events of Default). Section 11(c)
of the Note Purchase Agreement shall be and is hereby amended in its entirety to
read as follows:
"(c) the Company defaults in the performance of or compliance
with any term contained in Sections 8.5 or 10.1 or the Parent
Guarantor defaults in the performance of or compliance with any term
contained in Sections 4.9, 4.10, 5.1, 5.2, 5.3, 5.4, 5.5 or 5.10 of
the Parent Guaranty Agreement; or"
Section 2.4. Amendment of Section 11(d) (Events of Default). Section 11(d)
of the Note Purchase Agreement shall be and is hereby amended in its entirety to
read as follows:
"(d) the Company defaults in the performance of or compliance
with any term contained herein or any other Note Party defaults in the
performance of or compliance with any term contained in any Note
Document executed by such Note Party (other than those referred to in
paragraphs (a), (b) and (c) of this Section 11) and such default is
not remedied within thirty (30) days after the earlier of (i) a Senior
Financial Officer obtaining actual knowledge of such default and (ii)
the Company or the Parent Guarantor receiving written notice of such
default from any holder of a Note (any such written notice to be
identified as a "notice of default" and to refer specifically to this
paragraph (d) of Section 11); or"
Section 2.5. Amendment of Section 11(g) (Events of Default). Section 11(g)
of the Note Purchase Agreement shall be and is hereby amended by the addition
thereto of a new clause (iv) immediately following clause (iii) which shall read
as follows:
", (iv) any Event of Default shall exist under the Bank Credit Agreement;
or (v) any "Guarantor Event of Default" shall exist under the Guaranty executed
by the Guarantor and the Company in connection with the Vitrocrisa Credit
Agreement; or"
Section 2.6. Amendment of Section 15.1 (Expenses). Section 15.1 of the Note
Purchase Agreement shall be and is hereby amended by the addition of new
paragraph which shall read as follows:
"Without limiting the foregoing, the Company agrees to pay all
reasonable fees of the Collateral Agent in connection with the
preparation, execution and delivery of the Intercreditor Agreement and
the Security Documents and the transactions contemplated thereby,
including but not limited to reasonable attorneys fees and to pay to
the Collateral Agent from time to time
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all reasonable fees, and expenses and such indemnities and other
amounts as shall be required to be paid by the Company to the
Collateral Agent in accordance with the terms of the Intercreditor
Agreement and the Security Documents. The Company shall also pay the
reasonable fees and expenses of Chapman and Cutler LLP in connection
with the negotiation and review of the Security Documents and
Intercreditor Agreement on behalf of the holders of the Notes and (ii)
the reasonable out of pocket expenses of the Noteholders incurred in
the course of negotiating the Intercreditor Agreement and the Security
Documents."
Section 2.7. Amendment of Schedule B (Definitions). Schedule B of the Note
Purchase Agreement shall be and is hereby amended by amending the definitions
hereinafter set forth in their entirety to read as follows:
"Adjusted LIBOR Rate" for each Interest Period shall be a rate
per annum equal to LIBOR for such Interest Period plus (i) 1.05%
during the portion of any Interest Period ending on or prior to
December 29, 2005, and (ii) 1.55% during all or any portion of any
Interest Period after December 29, 2005; provided that such addition
to LIBOR shall be 2.05% if the Consolidated Leverage Ratio was greater
than 4.25 to 1 as of the last day of the most recently ended fiscal
quarter (beginning with the fiscal quarter ending December 31, 2005)
provided further that such addition to LIBOR shall be decreased to
1.55% if the Leverage Ratio is equal to or less than 4.25 to 1 as of
the last day of any subsequent fiscal quarter. Any increase or
decrease in the addition to LIBOR shall be in effect from and
including the fifth Business Day following the date on which the
Compliance Certificate is delivered to the Noteholders for the
immediately preceding fiscal quarter of the Guarantor and based upon
the Leverage Ratio as set forth in such Compliance Certificate. In the
event no Compliance Certificate shall be delivered on or prior to the
date such Compliance Certificate is required to be delivered to the
Noteholders in accordance with Section 3.2(a) of the Guaranty
Agreement then until such time as the applicable Compliance
Certificate is delivered, the addition to LIBOR shall be 2.05% from
the fifth Business Day after any holder gives notice to the Guarantor
that it has not received such Compliance Certificate by the due date.
Except for adjustments in the addition to LIBOR in respect of any
fiscal quarter as provided in the preceding sentence, after December
29, 2005, the addition to LIBOR shall be 1.55%.
"Default Rate" means with respect to the Notes of any Series,
that rate of interest that is the greater of (i) 2% per annum above
the applicable rate of interest required to be paid in
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accordance with clause (a) of the first paragraph of the Notes of such
Series or (ii) 2% over the rate of interest publicly announced by Bank
of America, N.A. in New York, New York as its "base" or "prime" rate."
Section 2.8. Amendment of Schedule B (Definitions). Schedule B of the Note
Purchase Agreement shall be and is hereby amended by the addition thereto of the
following definitions which shall read as follows:
"Compliance Certificate" means the certificate required to be
delivered to the holders of the Notes by a Senior Financial Officer
pursuant to Section 3.2(a) of the Parent Guaranty Agreement.
"Series 2003 A-1 Applicable Rate" means the rate per annum equal
to (i) 3.69% on or prior to December 29, 2005, and (ii) 4.19% after
December 29, 2005; provided that the Series 2003 A-1 Applicable Rate
shall be 4.69% if the Consolidated Leverage Ratio was greater than
4.25 to 1 as of the last day of the most recently ended fiscal quarter
(beginning with the fiscal quarter ending December 31, 2005) provided
further that such Series 2003 A-1 Applicable Rate shall be decreased
to 4.19% if the Leverage Ratio is equal to or less than 4.25 to 1 as
of the last day of any subsequent fiscal quarter. Any increase or
decrease in the Series 2003 A-1 Applicable Rate shall be in effect
from and including the fifth Business Day following the date on which
the Compliance Certificate is delivered to the Noteholders for the
immediately preceding fiscal quarter of the Guarantor and based upon
the Leverage Ratio as set forth in such Compliance Certificate. In the
event no Compliance Certificate shall be delivered on or prior to the
date such Compliance Certificate is required to be delivered to the
Noteholders in accordance with Section 3.2(a) of the Guaranty
Agreement then until such time as the applicable Compliance
Certificate is delivered the Series 2003 A-1 Notes shall bear interest
at the rate of 4.69% from the fifth Business Day after any holder
gives notice to the Guarantor that it has not received such Compliance
Certificate by the due date. Except for adjustments in the interest
rate for the Series 2003 A-1 Notes in respect of any fiscal quarter as
provided in the preceding sentence, after December 29, 2005, the
interest rate borne by the Series 2003 A-1 Notes shall be 4.19% per
annum.
"Series 2003 A-2 Applicable Rate" means the rate per annum equal
to (i) 5.08% on or prior to December 29, 2005, and (ii) 5.58% after
December 29, 2005; provided that the Series 2003 A-2 Applicable Rate
shall be 6.08% if the Consolidated
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Leverage Ratio was greater than 4.25 to 1 as of the last day of any
fiscal quarter (beginning with the fiscal quarter ending December 31,
2005) provided further that such Series 2003A-2 Applicable Rate shall
be 5.58% if the Leverage Ratio is less than or equal to 4.25 to 1 as
of the last day of any subsequent fiscal quarter. Any increase or
decrease in the Series 2003A-2 Applicable Rate shall be in effect from
and including the fifth Business Day following the date on which the
Compliance Certificate is delivered to the Noteholders for the
immediately preceding fiscal quarter of the Guarantor and based upon
the Leverage Ratio as set forth in such Compliance Certificate. In the
event no Compliance Certificate shall be delivered on or prior to the
date such Compliance Certificate is required to be delivered to the
Noteholders in accordance with Section 3.2(a) of the Guaranty
Agreement then until such time as the applicable Compliance
Certificate is delivered the Series 2003A-2 Notes shall bear interest
at the rate of 6.08% from the fifth Business Day after any holder
gives notice to the Guarantor that it has not received such Compliance
Certificate by the due date. Except for adjustments in the interest
rate for the Series 2003 A-2 Notes in respect of any fiscal quarter as
provided in the preceding sentence, after December 29, 2005, the
interest rate borne by the Series 2003 A-2 Notes shall be 5.58% per
annum.
"Third Amendment Agreement" means that certain Waiver and Third
Amendment to Guaranty Agreement and Amendment to Note Purchase
Agreement dated as of December 29, 2005 between the Guarantor, the
Company and the Purchasers, in respect of this Agreement."
ARTICLE 3
AMENDMENT OF GUARANTY AGREEMENT
Section 3.1. Amendment of Section 3 (Information as to Guarantor). Section
3 of the Guaranty Agreement shall be and is hereby amended by the addition of
new Sections 3.4, 3.5, 3.6, 3.7, and 3.8 which shall read as follows:
"Section 3.4. Cash Flow Forecasts. After May 31, 2006, the
Guarantor shall deliver to each Institutional Investor on the second
Business Day of each week a 13-week rolling cash flow forecast in form
reasonably acceptable to the Required Holders; and
Section 3.5. Intercreditor Agreement. (i) Concurrently with the
delivery to the Collateral Agent, the Guarantor shall deliver to each
Institutional Investor copies of all notices,
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schedules, certificates and reports delivered to the Collateral Agent
pursuant to or in connection with any Security Document or with
respect to the Collateral, (ii) not less than 5 Business Days prior to
execution thereof, a copy of (x) each proposed amendment to the
Security Documents, (y) each document or agreement which, if executed
and delivered would become an additional Security Document, (iii)
promptly following execution thereof, one copy of each of the
documents referred to in the preceding clause (ii), and (iv) such
other items pertaining to the Collateral as may be required in
accordance with the terms of the Security Documents.
Section 3.6. Bank Credit Agreement. Concurrently with the
delivery to the Administrative Agent, the Guarantor shall deliver to
each Institutional Investor (i) copies of all financial and other
information and certificates (including Compliance Certificates (as
defined in the Bank Credit Agreement)) and reports delivered to the
Administrative Agent pursuant to the Bank Credit Agreement or with
respect to the Collateral, (ii) a summary of the material terms of any
proposed amendment to the Bank Credit Agreement not later than the
date a copy of such proposed amendment is delivered to the Lenders
under the Bank Credit Agreement, and (iii) promptly following
execution thereof, one copy of each of the documents referred to in
the preceding clause (ii).
Section 3.7. Status of Refinancing. During the last week of each
month (beginning January, 2006) the Guarantor will hold a conference
call during normal business hours with Noteholders which are
Institutional Investors to discuss the status of the Guarantor's
efforts to refinance the Notes.
Section 3.8. Financial Advisor. In the event that the Notes have
not been prepaid in full on or prior to May 31, 2006, the Noteholders
shall engage Conway, Del Genio, Gries & Co. LLC, or another financial
advisor selected by the Required Holders, to perform, inter alia, a
detailed review of the Guarantor's business plan, financial
statements, projections and strategies, such review to commence no
later than June 9, 2006. No later than August 9, 2006 such financial
advisor shall provide to the Noteholders a written report satisfactory
in scope and detail to the Noteholders 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 Note Parties and their Subsidiaries as shall be
requested by the Noteholders and agreed between the Noteholders and
such financial advisor. During the engagement of such financial
advisor the Guarantor
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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 Guarantor) regarding
the Guarantor, its Subsidiaries, affiliates and investments as shall
be reasonably requested by the financial advisor, including reasonable
access to the books and records of the Guarantor, its Subsidiaries,
affiliates and investments 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 Guarantor that
only summaries created in consultation with the Company of such
information shall be distributed to the Noteholders, (ii) no such
financial and other information or access to books and records shall
be furnished for stockholders of the Guarantor, 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 Company 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 Required
Holders shall deem appropriate, the Noteholders shall request the
financial advisor to use its best efforts to coordinate its work with
the work of any financial advisor retained by the Banks under the Bank
Credit Agreement to avoid redundant work product. All fees (in an
amount not to exceed $150,000 per month) and reasonable out of pocket
expenses of the financial advisor retained pursuant to this Section
3.8 shall be paid by the Guarantor or the Company."
Section 3.2. Amendment of Section 4.6 (Designation of Subsidiaries).
Section 4.6 of the Guaranty Agreement shall be and is hereby amended by the
addition of a new paragraph which shall read as follows:
"Notwithstanding the foregoing, no direct or indirect Subsidiary
of the Guarantor shall be designated or considered an Unrestricted
Subsidiary without the consent of the Required Holders other than
Unrestricted Subsidiaries as of December 29, 2005 (which Unrestricted
Subsidiaries are Libbey Asia Limited and Libbey Glassware (China) Co.,
Ltd.)."
Section 3.3. Amendment of Section 4 (Additional Covenants). Section 4 of
the Guaranty Agreement shall be and is hereby amended by the addition of new
Sections 4.9 and 4.10 to read as follows:
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"Section 4.9. Collateral. To secure full and complete payment and
performance of the Notes, the Guarantor shall execute and deliver or
cause to be executed and delivered the documents described below
covering the property and collateral described in this Section 4.9
(which, together with any other property and collateral which may now
or hereafter secure the Notes or any part thereof, is sometimes herein
called the "Collateral") as follows:
(a) On or before January 31, 2006, the Guarantor will, and will
cause each of the Company and the Subsidiary 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 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 Required Holders.
(b) On or before January 31, 2006, the Guarantor will, and will
cause the Company and each Subsidiary 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 and as may be required by Section 4.2 of this Agreement (to
the extent available) and the Security Documents.
(c) On or before January 31, 2006, the Guarantor will, and will
cause the Company and each Subsidiary Guarantor, to deliver to the
Administrative Agent counterparts of the Intercreditor Agreement
executed by the Note Parties, each of the Secured Parties and the
Collateral Agent.
(d) On or before March 31, 2006, the Guarantor will, and will
cause the Company and each Subsidiary Guarantor to, grant to
Collateral Agent, for the benefit of the Secured Parties, a
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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 Required
Holders.
(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 Guarantor will, and will cause the
Company and any applicable Subsidiary Guarantor, to grant a lien in
such real property in the manner contemplated by Section 4.9(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 Note Party, all in form and substance
reasonably satisfactory to the Required Holders, 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 the Note Documents to which such Note Party is a
party.
(g) On January 31, 2006, the Guarantor shall cause special
counsel to the Guarantor to deliver to the Noteholders 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,
2005 together with such board resolutions, officer's certificates,
corporate and other documents and opinions of counsel relative to such
Security Documents as the Required Holders 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 Guarantor shall deliver to the Noteholders an
opinion of counsel in the applicable foreign jurisdiction (which shall
be in customary form) with respect to Security Documents executed and
delivered on or prior to such date which pertain to the Pledged
Foreign Subsidiaries.
(h) The Guarantor will, and will cause each of the Company and
the Subsidiary Guarantors to execute and deliver and cause to be
executed and delivered such further documents and instruments as the
Required Holders reasonably deem necessary or desirable to evidence
and perfect their Liens in the Collateral as set forth in the Security
Documents.
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Section 4.10. 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 Section 5.9 of this Agreement
or otherwise, (i) if such Domestic Subsidiary is a Restricted Material
Subsidiary, it shall become a party to the Security Agreement to
secure obligations held by the Secured Parties, pursuant to joinder
agreements in form and substance satisfactory to the Required Holders,
(ii) 100% of such Subsidiary's Equity Interests shall be pledged to
secure the obligations held by the Secured Parties under the Security
Documents, and (iii) the Noteholders shall receive such board
resolutions, officer's certificates, corporate and other documents and
opinions of counsel as the Required Holders 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 Section 5.9 of this Agreement
or otherwise, 65% of such Subsidiary's Equity Interests shall be
pledged to secure the obligations held by the Secured Parties under
the Security Documents. Subject to the limitations set forth in
Section 4.9(g), the opinions and certificates required by Section
4.9(g) shall also be furnished to the Noteholders concurrently with
such pledge."
Section 3.4. Amendment of 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. (a) The Company will not at
anytime permit the Leverage Ratio, to exceed the ratio set forth below
opposite the applicable period:
FISCAL QUARTER ENDING RATIO
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December 31, 2005 4.50 to 1.00
January 1, 2006 to and including 4.85 to 1.00
September 30, 2006
October 1, 2006 to and including 4.00 to 1.00
December 31, 2006
January 1, 2007 and at all times 3.25 to 1.00
thereafter
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(b) From and after the date of the Third Amendment Agreement, the
Guarantor and its Restricted Subsidiaries shall not incur any Debt
(including Debt incurred or assumed in connection with any
Acquisition) other than (i) Debt incurred under the Bank Credit
Agreement not to exceed at any time $195,000,000 in an aggregate
principal amount outstanding; provided that no more than $105,000,000
in aggregate principal amount shall be borrowed under the Bank Credit
Agreement by Libbey Europe B.V., (ii) Debt of Libbey Europe B.V. and
Royal Leerdam B.V. incurred pursuant to a Euro working capital
facility not to exceed at any time 10,000,000 Euros in an aggregate
principal amount outstanding, (iii) Debt of the Company incurred
pursuant to a working capital facility not to exceed at any time
$10,000,000 in an aggregate principal amount outstanding, (iv) a
Guaranty of Debt of Libbey Glassware (China) Co., Ltd. relating to a
construction facility not to exceed at any time $35,000,000 (or the
equivalent amount in foreign currency) in an aggregate principal
amount outstanding, (v) Intercompany Indebtedness; provided, that in
the case of Intercompany Indebtedness consisting of a loan or advance
to a Note Party, each such loan or advance shall be unsecured and
shall be subordinated to the indefeasible payment in full of all of
such Note Party's obligations pursuant to this Agreement and the other
Note Documents, (vi) other Debt not to exceed at any time $1,000,000
in an aggregate amount outstanding and (vii) debt in respect of
capital leases, Synthetic Lease Obligations and purchase money
obligations for fixed or capital assets in an aggregate principal
amount at any one time outstanding not to exceed $10,000,000."
Section 3.5. Amendment of Section 5.2 (Consolidated Interest Coverage
Ratio). Section 5.2 of the Guaranty Agreement shall be and is hereby amended in
its entirety to read as follows:
"Section 5.2. Consolidated Interest Coverage Ratio. The Guarantor
will not permit the Consolidated Interest Coverage Ratio to be less
than 3.00 to 1.00 as of the end of the most recently ended fiscal
quarter."
Section 3.6. Amendment to Section 5.3 of Guaranty Agreement. Section 5.3 of
the Guaranty Agreement shall be amended by (i) amending subparagraph (h) to add
the parenthetical "(including the Liens of Capitalized Leases and Synthetic
Lease Obligations)" immediately following the word "Lien" in the first line of
such subparagraph (h), and (ii) adding the following proviso at the end of
subparagraph (m) thereof and a new subparagraph (n) immediately following
subparagraph (m):
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"provided, further, that (i) no Liens shall be created, incurred or
assumed under this Section 5.3(m) if, at such time or after giving
effect thereto, any Default or Event of Default shall have occurred
and be continuing, and (ii) from the date of the Third Amendment, the
Guarantor will not and will not permit any of its Restricted
Subsidiaries to create, incur or assume any Liens under this
subsection (m) securing Debt in excess of $1,000,000; and
(n) the Liens of the Security Documents so long as the Notes
shall be equally and ratably secured thereby and the Intercreditor
Agreement shall be in full force and effect."
Section 3.7. Amendment of Section 5.4 (Sale of Assets). Section 5.4 of the
Guaranty Agreement shall be and is hereby amended in its entirety to read as
follows:
"Section 5.4. Sales of Assets. The Guarantor will not, and will
not permit any Restricted Subsidiary to, make any Disposition or enter
into any agreement to make any Disposition (other than agreements
making the applicable Disposition subject to the prior payment in full
of the Notes, together with the Make-Whole Amount, if any, or to being
consented to by the Required Holders), except:
(a) Dispositions of obsolete or worn out property, whether now
owned or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that
such property is exchanged for credit against the purchase price of
similar replacement property owned by the Guarantor or a Restricted
Subsidiary;
(d) Dispositions by the Guarantor and its Restricted Subsidiaries
of property pursuant to sale-leaseback transactions; provided that (i)
the aggregate Net Proceeds from all such sale and leaseback
transactions shall not exceed $10,000,000 in any fiscal year, and (ii)
to the extent that any such Net Proceeds shall be applied to reduce
amounts outstanding under the Bank Credit Agreement, such amounts
shall be shared with the Noteholders in the manner provided in the
Intercreditor Agreement;
(e) Dispositions permitted by Section 5.5 of this Agreement;
-13-
(f) Dispositions by any Note Party to the Company or any
Guarantor;
(g) Dispositions of property from Restricted Subsidiaries that
are not Note Parties to Restricted Subsidiaries which are not
Guarantors and Dispositions of property by Restricted Subsidiaries
which are not Guarantors to any Note Party;
(h) Dispositions that are Investments or dividends or
distributions which in each case are (i) in the ordinary course of
business, (ii) consistent with past practice, and (iii) not prohibited
by this Agreement;
(i) Dispositions of the business presently conducted by the Traex
Company; provided that to the extent that any such Net Proceeds shall
be applied to reduce amounts outstanding under the Bank Credit
Agreement, such amounts shall be shared with the Noteholders in the
manner provided in the Intercreditor Agreement;
(j) Dispositions of equipment by the Guarantor and its Restricted
Subsidiaries to Libbey Glassware (China) Co., Ltd. in which no Net
Proceeds are received by the Company or any Restricted Subsidiary; and
(k) other Dispositions of property not otherwise permitted
hereunder; provided that (i) the consideration received for such
assets shall have a value at least equal to the fair market value of
such assets, in each case as determined in good faith by the Guarantor
or the applicable Restricted Subsidiary; and (ii) if either (x) the
amounts of the Net Proceeds of such Dispositions in any fiscal year of
the Guarantor exceeds $5,000,000 or (y) the sum of (A) Net Proceeds
received pursuant to Dispositions permitted by clause (i) of this
Section 5.4, (B) the fair market value of equipment transferred
pursuant to clause (j) of this Section 504 and (C) the Net Proceeds
received in any fiscal year pursuant to this clause (k) exceeds
$40,000,000, then in the case of either (x) or (y), the Aggregate
Commitments under the Bank Credit Agreement and the aggregate
principal amount of the Notes shall be reduced as provided in the
Intercreditor Agreement.
Notwithstanding the foregoing, neither the Guarantor nor any
Subsidiary will sell any Accounts Receivable, except for any such
Accounts Receivable in respect of which the debtor is involved in
insolvency proceedings, (or transfer or otherwise dispose of
-14-
Accounts Receivable except in the ordinary course of business) or
create any Receivables Subsidiary."
Section 3.8. Amendment of Section 5 (Additional Covenants). Section 5 of
the Guaranty Agreement shall be and is hereby amended by the addition of a new
Sections 5.9 and 5.10 to read as follows:
"Section 5.9. Acquisitions. The Company will not, nor will it
suffer or permit any of its Subsidiaries to, make any Acquisition
unless, after giving effect to such Acquisition (the "subject
Acquisition"), all of the following requirements are satisfied: (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 Guarantor provides the Noteholders
with a certificate at least five days prior to the consummation of
such Acquisition evidencing that, after giving effect to such
Acquisition, the Guarantor is in compliance with Section 5.1 and 5.2
(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 Guarantor and its Restricted Subsidiaries remain in
compliance with Section 5.7, and (v) such Investments (not including
the Acquisition of Crisal-Cristalaria Automatica, S.A. and Vitrocrisa
Holding S. de R.L. de C.V.) shall not exceed $5,000,000 in the
aggregate over the term of this Agreement.
Section 5.1O. Bank Credit Agreement. The Guarantor will cause the
Company to at all times keep in full force and effect the Bank Credit
Agreement and cause the outstanding Commitments thereunder to
aggregate $195,000,000 less any reductions in such Commitments
resulting from the application of proceeds of Collateral in accordance
with the Intercreditor Agreement."
Section 3.9. Amendment of Exhibit A (Definitions). Exhibit A of the
Guaranty Agreement shall be and is hereby amended by the addition thereto of the
following definitions which shall read as follows:
"Accounts Receivable" means presently existing and hereafter
arising or acquired accounts receivable, general intangibles, choses
in action and other forms of obligations and receivables relating in
any way to Inventory or arising from the sale of Inventory or the
rendering of services or howsoever otherwise arising, and, with
respect to any of the foregoing receivables or obligations, (a) all of
the interest of the Guarantor or any of its Subsidiaries in the goods
(including returned goods) the sale of which gave rise to such
receivable or obligation after the
-15-
passage of title thereto to any obligor, (b) all other Liens and
property subject thereto from time to time purporting to secure
payment of such receivables or obligations, (c) all guarantees,
insurance, letters of credit and other agreements or arrangements of
whatever character from time to time supporting or securing payment of
any such receivables or obligations, and (d) all records relating to
any of the foregoing and all proceeds and products of any of the
foregoing.
"Acquisition" means any transaction or series of related
transactions for the purpose of or resulting, directly or indirectly,
in (a) the acquisition by the Guarantor or a Subsidiary of all or
substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition by the Guarantor or a
Subsidiary of in excess of 50% of the capital stock, partnership
interests, membership interests or equity of any Person (other than a
Person already a Subsidiary), or otherwise causing any Person to
become a Subsidiary, or (c) a merger or consolidation or any other
combination by the Company or a Subsidiary with another Person (other
than a Person that is the Guarantor or a Subsidiary), provided that
the Company or such Subsidiary is the surviving entity.
"Administrative Agent" means Bank of America; N.A. in its
capacity as administrative agent under any of the Loan Documents, (as
defined in the Bank Credit Agreement) or any permitted successor
administrative agent.
"Attributable Indebtedness" means, on any date, (a) in respect of
any capital lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such
date in accordance with GAAP, and (b) in respect of any Synthetic
Lease Obligation, the capitalized amount of the remaining lease
payments under the relevant lease that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP if
such lease were accounted for as a capital lease.
"Cash Management Obligations" means, with respect to any Lender,
any obligations owed to such Lender by the Company 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 Company or any such Subsidiary, including without
limitation all of the obligations of the Company or any of its
Subsidiaries to such Lender for overdrafts, for returned checks and
other returned items and for
-16-
credit extended under, or as a result of, cash management, treasury
and deposit agreements.
"Collateral" has the meaning specified in Section 4.9 of this
Agreement.
"Collateral Agent" means Bank of America, N.A. in its capacity as
collateral agent for the Secured Parties, or any permitted successor
collateral agent.
"Commitment" or "Aggregate Commitments" shall have the meaning
set forth in the Bank Credit Agreement as in effect on the date
hereof.
"Disposition" or "Dispose" means the sale, assignment, exclusive
(in all jurisdictions) licensing or other transfer (including any sale
and leaseback transaction but excluding any ordinary course licensing
arrangement and excluding the sale of environmental credits to the
extent the amount of proceeds therefrom does not exceed $3,000,000 in
the aggregate in any fiscal year of the Guarantor) of any property by
any Person, including any sale, assignment or other transfer, with or
without recourse, of any notes or accounts receivable or any rights
and claims associated therewith.
"Domestic Subsidiary" means a Subsidiary of the Guarantor which
is organized under the laws of the United States or any political
subdivision thereof.
"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.
"Foreign Subsidiary" means a Restricted Subsidiary of the
Guarantor which is not a Domestic Subsidiary.
-17-
"Indebtedness" means, as to any Person at a particular time, all
of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and
all obligations of such Person evidenced by bonds, debentures,
notes, loan agreements or other similar instruments;
(b) all direct or contingent obligations of such Person
arising under letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, surety bonds
and similar instruments;
(c) all obligations of such Person to pay the deferred
purchase price of property or services payable more than six
months after incurrence of the obligation (other than trade
accounts payable in the ordinary course of business and
contingent earn-outs payable with respect to Acquisitions
otherwise permitted hereunder);
(d) indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or
other title retention agreements), whether or not such
indebtedness shall have been assumed by such Person or is limited
in recourse;
(e) capital leases to the extent classified as a liability
on the balance sheet in accordance with GAAP and Synthetic Lease
Obligations; and
(f) all Guaranties of such Person in respect of any of the
foregoing.
For all purposes hereof, the Indebtedness of any Person shall
include the Indebtedness of any partnership or Joint Venture
(other than a Joint Venture that is itself a corporation or
limited liability company) in which such Person is a general
partner or a joint venturer, unless such Indebtedness is
expressly made non-recourse to such Person (subject only to
customary exceptions) but only to the extent such Person is
liable therefor. The amount of any capital lease or Synthetic
Lease Obligation as of any date shall be deemed to be the amount
of Attributable Indebtedness in respect thereof as of such date.
-18-
"Intercompany Indebtedness" means Indebtedness of (i) any Note
Party to any other Note Party, (ii) any Note Party to a Foreign
Subsidiary (other than Libbey Canada); and (iii) any Foreign
Restricted Subsidiary to another Foreign Restricted Subsidiary (other
than Libbey Canada).
"Intercreditor Agreement" means that certain Intercreditor and
Collateral Agency Agreement to be executed among the Administrative
Agent, the Lenders, the Collateral Agent, the Noteholders, and the
Victrocrisa Lenders and consented and agreed by the Guarantor and the
other Note Parties, as the same may be amended, modified, restated,
supplemented or replaced from time to time which agreement shall among
other things provide limitations on the obligations secured by the
Collateral and for the sharing of proceeds from the sale or
disposition of the assets of the Guarantor and its Restricted
Subsidiaries (whether or not at the time subject to the Lien of the
Security Documents) in a manner reasonably acceptable to the
Noteholders.
"Investment" means, as to any Person, any acquisition or
investment by such Person, whether by means of (a) the purchase or
other acquisition of capital stock or other securities of another
Person, (b) a loan, advance or capital contribution to, guaranty of
debt of, or purchase or other acquisition of any other debt or equity
participation or interest in, another Person, including any
partnership or Joint Venture interest in such other Person, or (c) the
purchase or other acquisition (in one transaction or a series of
related transactions) of assets of another Person that constitute a
business unit. For purposes of covenant compliance, the amount of any
Investment shall be the amount actually invested by a Person minus
cash dividends, other cash returns and the fair market value of other
distributions received by such Person on or with respect to such
Investment net of taxes associated with such dividends and returns
without adjustment for subsequent increases or decreases in the value
of such Investment.
"Joint Venture" means a corporation, partnership, limited
liability company, joint venture or other similar legal arrangement
(whether created by contract or conducted through a separate legal
entity) which is not a Subsidiary and which is now existing or
hereafter formed by the Guarantor or any of its Subsidiaries with
another Person in order to conduct a common venture or enterprise with
such Person.
"Mortgage" means any mortgage, deed of trust, deed to secure, or
similar instrument under which a Lien may be granted
-19-
against real property, duly executed by the Guarantor, the Company or
one of the Subsidiary Guarantors covering the Real Property,
appropriately conformed to the particular requirements of each
applicable jurisdiction where such Real Property is located and in
form and substance reasonably satisfactory to the Required Holders.
"Net Proceeds" means, as to any Disposition by a Person, proceeds
in cash, checks or other cash equivalent financial instruments as and
when received by such Person, net of: (a) the direct costs relating to
such Disposition excluding amounts payable to such Person or any
Affiliate of such Person, (b) sale, use or other transaction taxes
paid or payable by such Person as a direct result thereof, and (c)
amounts required to be applied to repay principal, interest and
prepayment premiums and penalties on Indebtedness secured by a Lien on
the asset which is the subject of such Disposition.
"Note Documents" means this Agreement, the Note Purchase
Agreement, the Security Documents (once entered into), each Note, each
Compliance Certificate and the Subsidiary Guaranties, including all
amendments, restatements, replacements, modifications, increases,
extensions, ratifications, joinders, and supplements to the foregoing.
"Noteholders" means, collectively, each of the purchasers party
to the Note Purchase Agreement, including their permitted successors
and assigns.
"Note Parties" means, collectively, the Company and each
Guarantor.
"Permitted Cost Savings" means, with respect to the determination
of Consolidated Net Income on a Pro Forma Basis, such cost savings as
would be permitted pursuant to Rule 11.02 of Regulation S-X, based on
the Guarantor's management's good faith estimate and as reviewed by
certified public accountants.
"Pledged Foreign Subsidiary" means each, and "Pledged Foreign
Subsidiaries" means all, Subsidiaries of the Company that are owned
directly by the Company or the Guarantor or a Subsidiary Guarantor
which are organized under the laws of a jurisdiction other than the
United States of America or any state or commonwealth thereof.
-20-
"Pro Forma Basis" means, (a) with respect to the preparation of
pro forma financial statements for the purpose of the adjustment to
Consolidated EBITDA relating to any Acquisition and for any other
purpose related to any Acquisition, a pro forma on the basis that (i)
any Indebtedness incurred or assumed in connection with such
Acquisition was incurred or assumed on the first day of the applicable
period, (ii) if such Indebtedness bears a floating interest rate, such
interest shall be paid over the pro forma period either at the rate in
effect on the date of such Acquisition or the applicable rate
experienced over the period, and (iii) all income and expense
associated with the assets or entity acquired in connection with such
Acquisition for the most recently ended four fiscal quarter period for
which such income and expense amounts are available shall be treated
as being earned or incurred by Guarantor and its Restricted
Subsidiaries on a pro forma basis for the portion of the applicable
period occurring prior to the date such Acquisition has occurred
without giving effect to any cost savings other than Permitted Cost
Savings; provided, however, that with respect to the amount of any
Permitted Cost Savings, 100% of such amount may be used in the first
fiscal quarter ending after the date the applicable Acquisition was
consummated, 75% of such amount may be used in the second fiscal
quarter ending after the date the applicable Acquisition was
consummated, 50% of such amount may be used in the third fiscal
quarter ending after the date the applicable Acquisition was
consummated, and 25% of such amount may be used in the fourth fiscal
quarter ending after the date the applicable Acquisition was
consummated; and (b) with respect to the preparation of pro forma
financial statements for purpose of the permitted adjustment to
Consolidated EBITDA relating to any Disposition and for any other
purpose related to any Disposition, a pro forma on the basis that (i)
any Indebtedness prepaid out of the proceeds of such Disposition shall
be deemed to have been prepaid as of the first day of the applicable
period, and (ii) all income and expense (other than such expenses as
the Guarantor, in good faith, estimates will not be reduced or
eliminated as a consequence of such Disposition) associated with the
assets or entity disposed of in connection with such Disposition shall
be deemed to have been eliminated as of the first day of the
applicable period.
"Real Property" means the real property located in the United
States and owned by the Guarantor, the Company or the Subsidiary
Guarantors as described in Schedule 1 to the Third Amendment
Agreement.
-21-
"Restricted Material Subsidiary" means (a) any Domestic
Subsidiary and (b) any Foreign Subsidiary, in each case, whose (i)
assets have a book value of at least $2,000,000 or (ii) annual
revenues exceed $10,000,000 for the most recently completed four
fiscal quarters of the Guarantor and which are not Unrestricted
Subsidiaries as of December 29, 2005.
"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 Company or
any Subsidiary, provided such Lender was a party to the Bank Credit
Agreement at the time such Cash Management Obligations were incurred
or such Swap Contract was entered into, (e) the Swing Line Lender (as
defined in the Bank Credit Agreement), (f) the Noteholders, (g) the
Vitrocrisa 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 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 the Guarantor, the Company and the Subsidiary Guarantors in favor
of Collateral Agent for the benefit of the Secured Parties, and in
form and substance reasonably acceptable to the Required Holders, 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.
"Swap Contract" means (a) any and all rate swap transactions,
basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward
-22-
bond or forward bond price or forward bond index transactions,
interest rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency swap
transactions, cross-currency rate swap transactions, currency options,
spot contracts, or any other similar transactions or any combination
of any of the foregoing (including any options to enter into any of
the foregoing), whether or not any such transaction is governed by or
subject to any master agreement, and (b) any and all transactions of
any kind, and the related confirmations, which are subject to the
terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement (any such master agreement, together with any
related schedules, a "Master Agreement"), including any such
obligations or liabilities under any Master Agreement.
"Synthetic Lease Obligation" means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of
property creating obligations that do not appear on the balance sheet
of such Person but which, upon the insolvency or bankruptcy of such
Person, would be characterized as the indebtedness of such Person
(without regard to accounting treatment).
"Third Amendment Agreement" means that certain Waiver and Third
Amendment to Parent Guaranty Agreement and Amendment to Note Purchase
Agreement dated as of December 29, 2005 between the Company and the
Purchasers, in respect of this Agreement.
"Vitrocrisa Credit Agreement" means that certain Credit Agreement
dated as of April 2, 2004, by and among Vitrocrisa Comercial, S. de
R.L. de C.V., a corporation organized and existing under the laws of
Mexico, Vitrocrisa, 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.
"Vitrocrisa Lenders" means, collectively, each of the Tranche B
Lenders (as defined on the Vitrocrisa Credit Agreement) party to the
Vitrocrisa Credit Agreement, including their permitted successors and
assigns."
-23-
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Guarantor and the Company severally and jointly represent and warrant
that as of the date hereof and after giving effect hereto:
(a) The execution and delivery of this Agreement by the Guarantor and
the Company and compliance by the Guarantor and the Company with all of the
provisions of the Guaranty Agreement, the Note Purchase Agreement and the
Notes as amended by this Agreement --
(i) are within the corporate power and authority of the Guarantor
and the Company; 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 the Company, or any
indenture or other material agreement or instrument to which the
Guarantor or the Company is party or by which the Guarantor or the
Company may be bound or (other than Liens created by the Security
Documents) result in the imposition of any Liens or encumbrances on
any property of the Guarantor or the Company.
(b) The execution and delivery of this Agreement has been duly
authorized by all necessary corporate action on the part of the Guarantor
and the Company; and this Agreement has been duly executed and delivered by
the Guarantor and the Company, and the Guaranty Agreement, the Note
Purchase Agreement and the Notes, in each case as amended by this
Agreement, constitute the legal, valid and binding obligations, contracts
and agreements of the Guarantor and the Company, as the case may be,
enforceable in accordance with their respective 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 Agreement and that certain
Amendment No. 3 and Waiver to Credit Agreement, dated as of December 29,
2005 (the "Credit Agreement Waiver"), in respect of the Credit Agreement
dated as of June 24, 2004 (as amended, modified or waived as of the date
hereof, 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 or remuneration to any Lender (as defined in the Bank Credit
Agreement),
-24-
in its capacity as such, or to any Noteholder, in its capacity as such, in
connection with the execution and delivery of the Credit Agreement Waiver
or this Agreement except (i) a fee equal to .25% of the commitment amount
of each Lender party to the Credit Agreement Waiver, and (ii) the fee
referenced in Section 5.4 of this Agreement.
ARTICLE 5
MISCELLANEOUS
Section 5.1. References to Agreements. 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 or
the Note Purchase Agreement shall be deemed to be references to the Guaranty
Agreement and Note Purchase Agreement as heretofore and hereby amended without
making specific reference to this Agreement.
Section 5.2. Effect of Waiver; Reaffirmation of Agreements. (a) Except as
expressly set forth herein, 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.
(b) Except as expressly set forth herein, the Company agrees that the Note
Purchase Agreement and all other documents and agreements executed by the
Company in connection with the Note Purchase 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 5.3. Successors and Assigns. This Agreement shall be binding upon
the Guarantor and the Company and their respective 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 5.4. 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, the Company and the Required Holders shall have
executed this Agreement;
(b) the Subsidiary Guarantors shall have executed and delivered an
Acknowledgment and Consent in respect of this Agreement, in the form
attached hereto as Exhibit A;
(c) the Company shall have executed and delivered the Credit Agreement
Amendment and such Credit Agreement Amendment shall be in all respects in
form and substance satisfactory to the Noteholders;
-25-
(d) the Guarantor, Company and the Subsidiary Guarantors shall have
executed and delivered to the Noteholders a release of the Noteholders
substantially in the form attached hereto as Exhibit B;
(e) the Company shall have paid a fee to each Noteholder in an amount
equal to 25 basis points on the principal amount of the Notes held by such
Noteholder;
(f) the Company shall have paid the reasonable fees, expenses and
disbursements of Chapman and Cutler LLP which are reflected in statements
of such counsel rendered on or prior to the date of this Agreement; and
(g) the Company shall have paid all reasonable out-of-pocket expenses
incurred by each Conway, Del Genio, Gries & Co., LLC in connection with the
consummation of the transactions contemplated by this Amendment which are
reflected in statements of the financial advisor rendered on or prior to
the date of this Amendment and the Company shall have executed and
delivered the Financial Advisor Fee, Indemnification and Confidentiality
Letter.
Section 5.5. Counterparts. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one agreement.
Section 5.6. Governing Law. This Agreement 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
-26-
IN WITNESS WHEREOF, the Company and the Guarantor have executed the
foregoing Agreement as of the day and year first above written.
LIBBEY GLASS INC.
By /s/ Kenneth A. Boerger
-------------------------------------
Its VP and Treasurer
LIBBEY INC.
By /s/ Kenneth A. Boerger
-------------------------------------
Its VP and Treasurer
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
The foregoing Agreement is accepted and agreed to as of the day and year
first above written.
METROPOLITAN LIFE INSURANCE COMPANY
By /s/ Michael J. Kroeger
-------------------------------------
Name: Michael J. Kroeger
Title: Managing Director
GENERAL AMERICAN LIFE INSURANCE COMPANY
By: Metropolitan Life Insurance Company,
as Investment Manager
By /s/ Michael J. Kroeger
-------------------------------------
Name: Michael J. Kroeger
Title: Managing Director
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
This Waiver and Third Amendment to Parent Guaranty Agreement is accepted
and agreed to as of the day and year first above written.
THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
AIG LIFE INSURANCE COMPANY
SUNAMERICA LIFE INSURANCE COMPANY
By: AIG Global Investment Corp.,
investment adviser
By /s/ Gerald F. Herman
-------------------------------------
Name: Gerald F. Herman
Title: Vice President
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
The foregoing Agreement is accepted and agreed to as of the day and year
first above written.
BANC OF AMERICA SECURITIES LLC
By /s/ John J. DeCoursey
-------------------------------------
Name: John J. DeCoursey
Title: Principal
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
The foregoing Agreement is accepted and agreed to as of the day and year
first above written.
MASSACHUSETTS MUTUAL LIFE INSURANCE
COMPANY
By: Babson Capital Management LLC, as
Investment Adviser
By /s/ Elisabeth A. Perenick
-------------------------------------
Name: Elisabeth A. Perenick
Title: Managing Director
C.M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, as
Investment Sub-Adviser
By /s/ Elisabeth A. Perenick
-------------------------------------
Name: Elisabeth A. Perenick
Title: Managing Director
MASSMUTUAL ASIA LIMITED
By: Babson Capital Management LLC, as
Investment Adviser
BY /s/ Elisabeth A. Perenick
-------------------------------------
Name: Elisabeth A. Perenick
Title: Managing Director
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
The foregoing Agreement is accepted and agreed to as of the day and year
first above written.
NATIONWIDE LIFE INSURANCE COMPANY
NATIONWIDE LIFE AND ANNUITY INSURANCE
COMPANY
NATIONWIDE MUTUAL FIRE INSURANCE
COMPANY
By /s/ Tom Leggett
-------------------------------------
Name: Tom Leggett
Title: AVP
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
The foregoing Agreement is accepted and agreed to as of the day and year
first above written.
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY
By: /s/ Eve Hampton
------------------------------------
Name: Eve Hampton
Title: Vice President, Investments
By: /s/ J. G. Lowery
------------------------------------
Name: J. G. Lowery
Title: Assistant Vice President,
Investments
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
The foregoing Agreement is accepted and agreed to as of the day and year
first above written.
MONUMENTAL LIFE INSURANCE COMPANY
By /s/ Bill Henricksen
-------------------------------------
Name: Bill Henricksen
Title: Vice President
Libbey Inc.
Waiver and Third Amendment to Parent Guaranty Agreement
NOTEHOLDERS
SERIES OF OUTSTANDING
NAMES OF NOTEHOLDERS NOTES 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
HARE & CO. (as Nominee for Banc of America A-2 $ 5,000,000
Securities LLC)
$ 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
GREAT WEST LIFE & ANNUITY INSURANCE 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 Third Amendment to Parent Guaranty Agreement)
FORM OF SERIES 2003A-1 NOTE
LIBBEY GLASS INC.
Senior Notes, Series 2003A-1, due March 31, 2008
No. [________] March 31, 2003
$[___________] PPN 52989# AB 8
FOR VALUE RECEIVED, the undersigned, LIBBEY GLASS INC. (herein called the
"Company"), a Delaware corporation, hereby promises to pay to [______________],
or registered assigns, the principal sum of [______________] DOLLARS on March
31, 2008, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the Series 2003A-1
Applicable Rate from the date hereof, payable semiannually, on the last day of
each March and September in each year, commencing September 30, 2003, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) 2% over the Series 2003A-1 Applicable Rate or (ii) 2% over the rate of
interest publicly announced by Bank of America, N.A. from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A. in New York, New York
or at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement, dated as of March 31, 2003 (as
from time to time amended, the "Note Purchase Agreement"), between the Company
and the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i)
to have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreement and (ii) to have made the representations set forth in
Section 6 of the Note Purchase Agreement, provided that such holder may (in
reliance upon information provided by the Company, which shall not be
unreasonably withheld) make a representation to the effect that the purchase by
such holder of any Note will not constitute a non-exempt prohibited transaction
under section 406(a) of ERISA.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
EXHIBIT 1(a)
(to Note Purchase Agreement)
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
Pursuant to Guaranty Agreements dated as of March 31, 2003, Libbey Inc., a
Delaware corporation, and certain of its subsidiaries have absolutely and
unconditionally guaranteed payment in full of the principal of, Make-Whole
Amount if any, and interest on this Note and the performance by the Company of
all its obligations contained in the Note Purchase Agreement all as more fully
set forth in said Guaranty Agreements.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Purchase Agreement,
but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note 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.
LIBBEY GLASS INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1(a)-2
FORM OF SERIES 2003A-2 NOTE
LIBBEY GLASS INC.
Senior Notes, Series 2003A-2, due March 31, 2013
No. [___________________] March 31, 2003
$[______________________] PPN 52989# AC 6
FOR VALUE RECEIVED, the undersigned, LIBBEY GLASS INC. (herein called the
"Company"), a Delaware corporation, hereby promises to pay to [_______________],
or registered assigns, the principal sum of [_______________] DOLLARS on March
31, 2013, with interest (computed on the basis of a 360-day year of twelve
30-day months) (a) on the unpaid balance thereof at the Series 2003-A-2
Applicable Rate from the date hereof, payable semiannually, on the last day of
each March and September in each year, commencing September 30, 2003, until the
principal hereof shall have become due and payable, and (b) to the extent
permitted by law on any overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue payment of any
Make-Whole Amount (as defined in the Note Purchase Agreement referred to below),
payable semiannually as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the greater
of (i) Series 2003A-2 Applicable Rate plus 2% or (ii) 2% over the rate of
interest publicly announced by Bank of America, N.A. from time to time in New
York, New York as its "base" or "prime" rate.
Payments of principal of, interest on and any Make-Whole Amount with
respect to this Note are to be made in lawful money of the United States of
America at the principal office of Bank of America, N.A. in New York, New York
or at such other place as the Company shall have designated by written notice to
the holder of this Note as provided in the Note Purchase Agreement referred to
below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement, dated as of March 31, 2003 (as
from time to time amended, the "Note Purchase Agreement"), between the Company
and the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i)
to have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreement and (ii) to have made the representations set forth in
Section 6 of the Note Purchase Agreement, provided that such holder may (in
reliance upon information provided by the Company, which shall not be
unreasonably withheld) make a representation to the effect that the purchase by
such holder of any Note will not constitute a non-exempt prohibited transaction
under section 406(a) of ERISA.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
EXHIBIT 1(b)
(to Note Purchase Agreement)
LIBBEY GLASS INC. Note Purchase Agreement
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
Pursuant to Guaranty Agreements dated as of March 31, 2003, Libbey Inc., a
Delaware corporation, and certain of its subsidiaries have absolutely and
unconditionally guaranteed payment in full of the principal of, Make-Whole
Amount if any, and interest on this Note and the performance by the Company of
all its obligations contained in the Note Purchase Agreement all as more fully
set forth in said Guaranty Agreements.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Purchase Agreement,
but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Note 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.
LIBBEY GLASS INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-1(b)-2
FORM OF SERIES 2003B NOTE
LIBBEY GLASS INC.
Floating Rate Senior Notes, Series 2003B, due March 31, 2010
No. [___________] March 31, 2003
U.S. $[_______________] PPN 52989# AD 4
FOR VALUE RECEIVED, the undersigned, LIBBEY GLASS INC. (herein called the
"Company"), a Delaware corporation, hereby promises to pay to [____________],
or registered assigns, the principal sum of [__________] DOLLARS on March 31,
2010, with interest (computed on the basis of a 360 day year and actual days
elapsed) (a) on the principal amount from time to time remaining unpaid hereon
at a floating rate equal to the Adjusted LIBOR Rate (as defined in the Note
Purchase Agreement referred to below) from the date thereof until maturity,
payable quarterly on the last day of each March, June, September and December in
each year commencing on June 30, 2003, until the principal hereof shall have
become due and payable, and (b) to the extent permitted by law on any overdue
payment (including any overdue prepayment) of principal, any overdue payment of
interest and any overdue payment of any Series B Premium Amount and LIBOR
Breakage Amount (as defined in the Note Purchase Agreement referred to below),
payable quarterly as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time equal to the Series B
Default Rate (as defined in the Note Purchase Agreement).
Payments of principal of, interest on and any Series B Premium Amount and
any LIBOR Breakage Amount with respect to this Note are to be made in lawful
money of the United States of America at the principal office of Bank of
America, N.A. in New York, New York or at such other place as the Company shall
have designated by written notice to the holder of this Note as provided in the
Note Purchase Agreement referred to below.
This Note is one of a series of Senior Notes (herein called the "Notes")
issued pursuant to the Note Purchase Agreement, dated as of March 31, 2003 (as
from time to time amended, the "Note Purchase Agreement"), between the Company
and the respective Purchasers named therein and is entitled to the benefits
thereof. Each holder of this Note will be deemed, by its acceptance hereof, (i)
to have agreed to the confidentiality provisions set forth in Section 20 of the
Note Purchase Agreement and (ii) to have made the representations set forth in
Section 6 of the Note Purchase Agreement, provided that such holder may (in
reliance upon information provided by the Company, which shall not be
unreasonably withheld) make a representation to the effect that the purchase by
such holder of any Note will not constitute a non-exempt prohibited transaction
under section 406(a) of ERISA.
This Note is a registered Note and, as provided in the Note Purchase
Agreement, upon surrender of this Note for registration of transfer, duly
endorsed, or accompanied by a written instrument of transfer duly executed, by
the registered holder hereof or such holder's attorney duly authorized in
writing, a new Note for a like principal amount will be issued to, and
EXHIBIT 1(c)
(to Note Purchase Agreement)
LIBBEY GLASS INC. Note Purchase Agreement
registered in the name of, the transferee. Prior to due presentment for
registration of transfer, the Company may treat the person in whose name this
Note is registered as the owner hereof for the purpose of receiving payment and
for all other purposes, and the Company will not be affected by any notice to
the contrary.
Pursuant to Guaranty Agreements dated as of March 31, 2003, Libbey Inc., a
Delaware corporation, and certain of its subsidiaries have absolutely and
unconditionally guaranteed payment in full of the principal of, Series B Premium
Amount and LIBOR Breakage Amount, if any, and interest on this Note and the
performance by the Company of all its obligations contained in the Note Purchase
Agreement all as more fully set forth in said Guaranty Agreements.
This Note is subject to optional prepayment, in whole or from time to time
in part, at the times and on the terms specified in the Note Purchase Agreement,
but not otherwise.
If an Event of Default, as defined in the Note Purchase Agreement, occurs
and is continuing, the principal of this Note may be declared or otherwise
become due and payable in the manner, at the price (including any applicable
Series B Premium Amount and LIBOR Breakage Amount) and with the effect provided
in the Note Purchase Agreement.
This Note 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.
LIBBEY GLASS INC.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-l(c)-2
ACKNOWLEDGMENT AND CONSENT
To the institutional investors named in
Schedule I to the Amendments (as hereinafter described)
This Acknowledgment and Consent (this "Acknowledgment and Consent"), dated
as of December 29, 2005, 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 this Waiver and Third Amendment to Parent Guaranty
Agreement and Amendment to Note Purchase Agreement, effective as of even date
herewith (the "Guaranty Amendment"), between Libbey Inc., a Delaware corporation
(the "Guarantor"), the Company and the institutional investors party thereto, in
respect of the original Parent Guaranty Agreement dated as of March 31, 2003 (as
amended, modified or waived prior to the date hereof, the "Guaranty Agreement")
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 this Agreement.
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 Guaranty Amendment and the Note Agreement Amended;
(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 A
(to Third Amendment to Parent Guaranty Agreement)
LIBBEY GLASS INC. Note Purchase 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
-------------------------------------
Its:
-----------------------------------
A-2
RELEASE
THIS RELEASE, dated as of December 29,2005 (the "Release"), is made and
delivered in favor of the Noteholders (as defined in the hereinafter described
Amendment) pursuant to Section 5.4 of that certain Waiver and Third Amendment to
Parent Guaranty Agreement and Amendment to Note Purchase Agreement, effective as
of even date herewith (the "Amendment"), in respect of the Note Purchase
Agreement dated as of March 31, 2003 (as amended, the "Note Purchase Agreement")
between Libbey Glass, Inc., a Delaware corporation (the "Company"), and Libbey
Inc., (the "Guarantor") and the institutional investors named therein and party
thereto. Capitalized terms defined in the Note Purchase Agreement, as amended by
the Amendment, and not otherwise defined herein are used herein with the
meanings so defined.
In consideration of the agreements by the Noteholders, and for other
valuable consideration, the receipt and sufficiency of which are acknowledged,
each of the Company, the Guarantor and the Subsidiary Guarantors on behalf of
itself and its successors, assigns and other legal representatives, hereby
jointly and severally fully, unconditionally and irrevocably releases,
discharges and covenants not to sue any of the Noteholders, or any of their
respective past and present Affiliates, directors, officers, employees,
shareholders, agents, representatives, accountants, attorneys, consultants,
financial consultants, subsidiaries, their respective successors and assigns and
each Person, if any, that controls any of them, from and with respect to any
claims, counterclaims, damages, losses, liabilities, actions and suits of every
nature, whether in law, at equity or otherwise, whether known or unknown or with
respect to which the facts are known (or should have been known) or suspected
(individually a "Claim" and collectively, the "Claims"), arising from, based
upon or relating to the Amendment, the Note Purchase Agreement or the other Note
Documents or any event which happened or action taken or omitted to be taken
which arises from or relates to the Note Documents, but only to the extent such
Claim arises from or is based upon or relates to events or actions taken or
omitted to be taken on or prior to the date hereof.
Each of the Company, the Guarantor and the Subsidiary Guarantor represents
and warrants to each Noteholder that it has not made and will not purport to
make, by operation of law or otherwise, any assignment or transfer of any Claim
or any portion thereof.
Each of the Company, the Guarantor and the Subsidiary Guarantor
understands, acknowledges and agrees that the release set forth above may be
pleaded as a full and complete defense and may be used as a basis for an
injunction against any action, suit or other proceeding which may be instituted,
prosecuted or attempted in breach of the provisions of such release.
EACH OF THE COMPANY, THE GUARANTOR AND THE SUBSIDIARY GUARANTOR EXPLICITLY
WAIVES ALL RIGHTS UNDER AND ANY BENEFITS OF ANY COMMON LAW OR STATUTORY RULE OR
PRINCIPLE WITH RESPECT TO THE RELEASE OF SUCH CLAIM.
This instrument is a Note Document.
EXHIBIT B
(to Third Amendment to Parent Guaranty Agreement)
LIBBEY GLASS INC. Note Purchase Agreement
Each of the undersigned has caused this Release to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
LIBBEY GLASS INC.
By
-------------------------------------
Its:
-----------------------------------
LIBBEY INC.
By
-------------------------------------
Its:
-----------------------------------
THE DRUMMOND GLASS COMPANY
SYRACUSE CHINA COMPANY
WORLD TABLEWARE INC.
LGA3 CORP.
LGA4 CORP.
LGFS INC.
LGAC LLC
LGC CORP.
TRAEX COMPANY
By
-------------------------------------
Its:
-----------------------------------
B-2
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, Warehouse and
Syracuse, NY 13208 Distribution Center
SCHEDULE 1
(to Third Amendment to Parent Guaranty Agreement)