Exhibit 10.73
[EXECUTION VERSION]
WAIVER AGREEMENT
THIS WAIVER AGREEMENT (this "Agreement"), dated as of December 22, 2005,
makes reference to (i) that certain Credit Agreement dated as of April 2, 2004,
among VITROCRISA COMERCIAL, S. de R.L. de C.V., a corporation (sociedad de
responsabilidad limitada de capital variable) organized and existing under the
laws of the United Mexican States ("Comercial"), VITROCRISA, S. de R.L. de C.V.,
a corporation (sociedad de responsabilidad limitada de capital variable)
organized and existing under the laws of the United Mexican States
("Vitrocrisa"), various financial institutions and BANK OF MONTREAL, as
administrative agent ("Administrative Agent"), as amended by that certain First
Amendment to Credit Agreement dated as of June 30, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
and (ii) that certain Libbey and Libbey Glass Guaranty dated as of April 2, 2004
(the "Libbey Guaranty") executed by each of LIBBEY INC., a Delaware corporation
("Libbey"), and LIBBEY GLASS INC., a Delaware corporation ("Libbey Glass")
(each, a "Guarantor" and together, the "Guarantors"). Unless otherwise defined
herein, terms used in this Agreement that are defined in the Credit Agreement or
the Libbey Guaranty shall have the same meanings herein as in the Credit
Agreement or the Libbey Guaranty, as applicable.
WHEREAS, pursuant to the Libbey Guaranty, the Guarantors have guaranteed
certain of the Obligations of Vitrocrisa and/or Comercial to each of the Tranche
B Lenders and the Administrative Agent; and
WHEREAS, the Guarantors have requested a waiver by the Tranche B Lenders
and the Administrative Agent of the requirements of Section 4.4(b) of the Libbey
Guaranty; and
WHEREAS, the parties hereto are willing to provide such a waiver as
specifically set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Waiver. Upon satisfaction of the conditions precedent set forth in
Section 3 below, each of the parties hereto waives any Event of Default and any
rights to take action, in each case, arising from the failure of the Guarantors
to maintain a Consolidated Leverage Ratio (as defined in the Note Purchase
Guaranty Agreement) of less than or equal to 3.75 to 1.0 or 3.5 to 1.0, as
applicable, at any time from September 30, 2005 through (but not including)
January 2, 2007, provided that the Consolidated Leverage Ratio (as defined in
the Note Purchase Guaranty Agreement) of the Guarantors shall not exceed (a) 4.5
to 1.0 for the fiscal quarter of the Guarantors ending December 31, 2005, as
determined as of such date, (b) 4.85 to 1.0 for each of the fiscal quarters of
the Guarantors ending March 31, 2006, June 30, 2006 and September 30, 2006, as
determined as of such dates, respectively, and (c) 4.0 to 1.0 for the fiscal
quarter of the Guarantors ending December 31, 2006, as determined as of such
date.
2. Limited Waiver. Except as set forth in Section 1 above, the execution of
this Agreement and acceptance of any other documents related hereto shall not be
deemed to be a
waiver of any Event of Default under the Credit Agreement, any Guarantor Event
of Default under the Libbey Guaranty or any breach, default or event of default
under any other Transaction Document, whether or not known to the Administrative
Agent, any Collateral Agent or any Lender and whether or not existing on the
date of this Agreement.
3. Conditions Precedent. This Agreement shall be effective upon
satisfaction of the following conditions precedent:
(a) the Administrative Agent shall have received this Agreement, duly
executed by the Administrative Agent and the Lenders holding at least 66
2/3% of the sum of the then aggregate unpaid principal amount of the
Tranche B Loans and the unused Tranche B Total Commitment;
(b) the Guarantors shall have paid to the Administrative Agent for the
account of each Tranche B Lender that has delivered (by facsimile or
otherwise) an executed counterpart of this Agreement to the Administrative
Agent on or prior to noon (Eastern time) on December 22, 2005, a
non-refundable fee in an amount equal to 25 basis points (0.25%) of the
Tranche B Loans of such Tranche B Lender as of the date hereof; and
(c) the Guarantors shall have paid to the Administrative Agent all
amounts due and payable pursuant to that certain fee letter dated as of the
date hereof by and among Bank of Montreal and the Guarantors.
4. Governing Law. This Agreement shall be construed in accordance with and
be governed by the law of the State of New York without giving effect to the
principles thereof relating to conflicts of law (except Section 5-1401 of the
New York General Obligations Law).
5. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in a manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
6. Captions and Headings. The captions or section headings at various
places in this Agreement are intended for convenience only and do not constitute
and shall not be interpreted as part of this Agreement.
7. Counterparts; Telecopied Signatures. This Agreement may be executed in
any number of separate counterparts, each of which shall collectively and
separately constitute one and the same agreement. This Agreement may be
authenticated by manual signature, facsimile or, if approved in writing by the
Administrative Agent, electronic means, all of which shall be equally valid. A
facsimile copy of any such executed counterpart shall be deemed valid as an
original.
8. No Other Changes. Except as explicitly set forth herein, all of the
terms and conditions of the Credit Agreement, the Libbey Guaranty and each other
Transaction Document shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their officers thereunto duly authorized as of
the date first above written.
BANK OF MONTREAL,
as Administrative Agent
By: /s/ Aaron Lanski
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Name: Aaron Lanski
Title: Vice President
THE BANK OF NOVA SCOTIA,
as a Tranche B Lender
By:
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Name:
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Title:
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LASALLE BANK MIDWEST NATIONAL
ASSOCIATION (formerly known as Standard
Federal Bank, N.A.), as a Tranche B
Lender
By: /s/ Annette Gordon
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Name: Annette Gordon
Title: First Vice President
Waiver Agreement