EXHIBIT 10.3
SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT (as amended, revised, modified,
supplemented or amended and restated from time to time, this "Guaranty") is
entered into as of June 24, 2004 by EACH OF THE UNDERSIGNED AND EACH OTHER
PERSON WHO SHALL BECOME A PARTY HERETO BY EXECUTION OF A GUARANTY JOINDER
AGREEMENT (each, a "Guarantor" and, collectively, the "Guarantors"), in favor of
BANK OF AMERICA, N.A., in its capacity as administrative agent for the Lenders
(as hereinafter defined), and the GUARANTEED CREDITORS (as defined on Exhibit B
attached hereto). All capitalized terms used but not otherwise defined herein
shall have the meaning ascribed to such term by the Credit Agreement (as defined
below).
WITNESSETH:
WHEREAS, Libbey Glass Inc., a Delaware corporation (the "US Borrower"),
Libbey Europe B.V., a company organized and existing under the laws of the
Netherlands (the "Dutch Borrower", and together with the US Borrower,
collectively the "Borrowers"), the financial institutions named therein (the
"Lenders"), The Bank of New York, as syndication agent, and Bank of America,
N.A., as administrative agent (the "Administrative Agent"), have entered into a
certain Credit Agreement dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement");
and
WHEREAS, the US Borrower owns, directly or indirectly, a majority of the
issued and outstanding capital stock of each Guarantor and, as such, each
Guarantor will receive substantial and direct benefits from the extensions of
credit contemplated by the Credit Agreement and is entering into this Guaranty
to induce the Administrative Agent and the Lenders to enter into the Credit
Agreement and extend credit to the Borrowers thereunder and to induce the other
Guaranteed Creditors (as defined on Exhibit B attached hereto) to extend Related
Credit Arrangements (as defined on Exhibit B attached hereto) to the Borrowers
or any other Loan Party; and
WHEREAS, the execution and delivery of this Guaranty is a condition
precedent to the obligation of the Lenders to extend credit to the Borrowers
pursuant to the Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration contained herein, the Guarantor hereby agrees as follows:
1. THE GUARANTY.
(a) Each Guarantor hereby absolutely, continually, irrevocably and
unconditionally guarantees prompt, full and complete payment when due, whether
at stated maturity, upon acceleration or otherwise, and at all times thereafter,
of (i)(x) the principal of and interest on the Loans made by the Lenders to, and
any Notes held by the Lenders of, the Borrowers, or either of them as
applicable, and (y) all other amounts from time to time owing to the Lenders,
the Administrative Agent or any indemnified party by any Loan Party under the
Credit Agreement, the Notes or the other Loan Documents, including without
limitation all "Obligations" (as defined in the Credit Agreement), and (ii)
principal, interest, fees, settlement or termination values, and all other
amounts from time to time owing to any Guaranteed Creditor in respect of any
Related Credit Arrangements, in each case, whether direct or indirect, absolute
or contingent, now existing or hereafter arising (collectively, the "Guaranteed
Debt") (collectively, the "Guaranteed Debt"). Each Guarantor's obligations under
this Guaranty are collectively referred individually as the "Guarantor's
Obligations" and collectively as the "Guarantors' Obligations". This is a
guaranty of payment, not a guaranty of collection. Notwithstanding the
foregoing, the liability of each Guarantor individually with respect to its
obligations under this Guaranty shall be limited to an aggregate amount equal to
the largest amount that would not render its obligations hereunder subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and
primarily liable for the Guaranteed Debt.
(b) If there shall occur a default in payment or performance of any
of the Guaranteed Debt, whether principal, interest, premium, fee (including,
but not limited to, loan fees and attorney costs), settlement or termination
value, or otherwise, when and as the same shall become due, and after expiration
of any applicable grace period, whether according to the terms of the Credit
Agreement or any Related Credit Arrangement, by acceleration, termination or
otherwise, or upon the occurrence and during the continuance of any Event of
Default under the Credit Agreement, then the Guarantor will, upon demand thereof
by the Administrative Agent or, subject to Section 1(m) hereof, any other
Guaranteed Creditor, fully pay to the Administrative Agent, for the benefit of
the Lenders, or such Guaranteed Creditor, as applicable and subject to any
restriction on each Guarantor's Obligations set forth in Section 1 hereof, an
amount equal to all the applicable Guaranteed Debt then due and owing.
(c) All payments by each Guarantor hereunder shall be paid in full,
without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes other
than Excluded Taxes (as defined in the Credit Agreement). In the event that any
Guarantor or any Guaranteed Creditor is required by law to make any such
non-excluded deduction or withholding (as a result of any change after the date
hereof in any requirement for a deduction or withholding), such Guarantor agrees
to pay on behalf of such Guaranteed Creditor such amount directly to the
appropriate person or entity, or if any Guarantor cannot legally comply with the
foregoing, such Guarantor shall pay to such Guaranteed Creditor such additional
amounts as will result in the receipt by such Person of the full amount payable
hereunder. Each Guarantor shall be entitled to refunds of amounts paid pursuant
hereto to the extent permitted by Section 3.01(e) of the Credit Agreement. Each
Guarantor shall promptly provide such Guaranteed Creditor with evidence of
payment of any such amount made on such Person's behalf.
(d) Each Guarantor waives notice of the acceptance of this Guaranty
and of the extension or incurrence of the Guaranteed Debt or any part thereof.
Each Guarantor further waives all setoffs and counterclaims and presentment,
protest, notice (other than notices specifically required in the Loan
Documents), filing of claims with a court in the event of receivership,
bankruptcy or reorganization of the Borrowers, or either of them as applicable,
demand or action on delinquency in respect of the Guaranteed Debt or any part
thereof, including any right to require any Guaranteed Creditor to xxx the
Borrowers, or either of them as applicable, any other guarantor or any other
Person obligated with respect to the Guaranteed Debt or any part thereof, or
otherwise to enforce payment thereof against any collateral securing the
Guaranteed Debt or any part thereof.
Each Guarantor hereby guarantees that such Guarantor's Obligations will be
paid in Dollars (except to the extent that any Obligation is required to be paid
in euro, such Guarantor shall pay such Obligation in euro) in same day funds at
the Administrative Agent's Office, on behalf of the applicable Guaranteed
Creditor, or with respect to demands permitted to be made directly by any
Guaranteed Creditor hereunder, at the applicable office of such Guaranteed
Creditor, as the case may be, regardless of any law, regulation or decree now or
hereafter in effect that might in any manner affect the Guaranteed Debt, or the
rights of the Guaranteed Creditors with respect thereto as against any Loan
Party, or cause or permit to be invoked any alteration in the time, amount or
manner of payment by any Loan Party of any or all of the Guaranteed Debt.
Payment obligations under this Guaranty shall not be discharged by an amount
paid in any currency other than Dollars or euro, as the case may be, whether
pursuant to judgment or otherwise. To the extent that a judgment is given in
respect of any amount due hereunder in currency other than the currency in which
the obligation subject to the judgment was originally denominated, the
provisions of Section 8.04 of the Credit Agreement shall apply.
(e) Subject to Section 1(a) above, each Guarantor hereby agrees
that, to the fullest extent permitted by law, its obligations hereunder shall be
continuing, absolute and unconditional under any and all circumstances and not
subject to any reduction, limitation, impairment, termination, defense (other
than irrevocable payment in full of the Guaranteed Debt), setoff, counterclaim
or recoupment whatsoever (all of which are hereby expressly waived by it to the
fullest extent permitted by law), whether by reason of any claim of any
character whatsoever, including, without limitation, any claim of waiver,
release, surrender, alteration or compromise. The validity and enforceability of
this Guaranty shall not be impaired or affected by any of the following to the
extent permitted by law: (i) any extension, amendment, modification or renewal
of, or indulgence with respect to, or substitution for, the Guaranteed Debt or
any part thereof or any agreement relating thereto at any time; (ii) any failure
or omission to perfect or maintain any lien on, or preserve rights to, any
security or collateral or to enforce any right, power or remedy with respect to
the Guaranteed Debt or any part thereof or any agreement relating thereto, or
any collateral securing the Guaranteed Debt or any part thereof; (iii) any
waiver of any right, power or remedy or of any default with respect to the
Guaranteed Debt or any part thereof or any agreement relating thereto or with
respect to any collateral securing the Guaranteed Debt or any part thereof; (iv)
any release, surrender, compromise, settlement, waiver, subordination or
modification, with or without consideration, of any collateral securing the
Guaranteed Debt or any part thereof, any other guaranties with respect to the
Guaranteed Debt or any part thereof, or any other obligations of any person or
entity with respect to the Guaranteed Debt or any part thereof; (v) the
enforceability or validity of the Guaranteed Debt or any part thereof or the
genuineness, enforceability or validity of any agreement relating thereto or
with respect to any collateral securing the Guaranteed Debt or any part thereof;
(vi) the application of payments received from any source (other than any
Guarantor) to the payment of indebtedness other than the Guaranteed Debt, any
part thereof or amounts that are not covered by this Guaranty even though the
Guaranteed Creditors might
lawfully have elected to apply such payments to any part or all of the
Guaranteed Debt or to amounts that are not covered by this Guaranty; (vii) any
change of ownership of any Loan Party or the insolvency, bankruptcy or any other
change in the legal status of any Loan Party; (viii) any change in, or the
imposition of, any law, decree, regulation or other governmental act which does
or might impair, delay or in any way affect the validity, enforceability or the
payment when due of the Guaranteed Debt; (ix) the failure of any Loan Party to
maintain in full force, validity or effect or to obtain or renew when required
all governmental and other approvals, licenses or consents required in
connection with the Guaranteed Debt or this Guaranty, or to take any other
action required in connection with the performance of all obligations pursuant
to the Guaranteed Debt or this Guaranty; (x) the existence of any claim, setoff
or other rights which any Guarantor may have at any time against any Loan Party,
any other guarantor in connection herewith or with any unrelated transaction or
any other Person in connection herewith; (xi) the Guaranteed Creditors'
election, in any case or proceeding instituted under chapter 11 of the United
States Bankruptcy Code, of the application of Section 1111(b)(2) of the United
States Bankruptcy Code or any comparable provision applicable to the Dutch
Borrower or its assets or operations under any applicable Debtor Relief Laws;
(xii) any borrowing, use of cash collateral, or grant of a security interest by
any Loan Party as debtor in possession, under Section 363 or 364 of the United
States Bankruptcy Code or any comparable provision applicable to the Dutch
Borrower or its assets or operations under any applicable Debtor Relief Laws;
(xiii) the disallowance of all or any portion of any of the Guaranteed
Creditors' claims for repayment of the Guaranteed Debt under Section 502 or 506
of the United States Bankruptcy Code or any comparable provision applicable to
the Dutch Borrower or its assets or operations under any applicable Debtor
Relief Laws; or (xiv) any other fact or circumstance which might otherwise
constitute grounds at law or equity for the discharge or release of any
Guarantor from its obligations hereunder (other than irrevocable payment in full
of the Guaranteed Debt), in each case above, all whether or not such Guarantor
shall have had notice or knowledge of any act or omission referred to in the
foregoing clauses (i) through (xiv) of this paragraph. It is agreed that each
Guarantor's liability hereunder is independent of any other guaranties or other
similar obligations at any time in effect with respect to the Guaranteed Debt or
any part thereof and that each Guarantor's liability hereunder may be enforced
regardless of the existence, validity, enforcement or non enforcement of any
such other guaranties or other obligations or any provision of any applicable
law or regulation purporting to prohibit payment by any Loan Party of the
Guaranteed Debt in the manner agreed upon by the Guaranteed Creditors and such
Loan Party.
(f) Credit may be granted or continued from time to time by the
Guaranteed Creditors to the Borrowers, or either of them as applicable, without
notice to or authorization from any Guarantor regardless of any Loan Party's
financial or other condition at the time of any such grant or continuation. No
Guaranteed Creditor shall have an obligation to disclose or discuss with any
Guarantor its assessment of the financial condition of any Loan Party.
(g) Until (but only upon) the irrevocable payment in full of the
Guaranteed Debt and the termination of all commitments of the Lenders to make
Credit Extensions and all commitments of any other Guaranteed Creditors to make
Related Credit Arrangements which could give rise to any Guaranteed Debt, (i) no
Guarantor shall have the right of subrogation, contribution or similar rights
with respect to the Guaranteed Debt, (ii) each Guarantor hereby waives any right
to enforce any remedy which any Guaranteed Creditor now has or may hereafter
have against the Borrowers, or either of them as applicable, any endorser or any
other
guarantor of all or any part of the Guaranteed Debt, and (iii) each Guarantor
hereby waives any benefit of, and any right to participate in, any security or
collateral given to any Guaranteed Creditor to secure payment of the Guaranteed
Debt or any part thereof or any other liability of the Borrowers, or either of
them as applicable, to any Guaranteed Creditor. If any amounts are paid to any
Guarantor in violation of the foregoing limitation, then such amounts shall be
held in trust for the benefit of the Lenders or such other Guaranteed Creditor,
as applicable, and shall forthwith be paid by the Guarantor to the
Administrative Agent for the benefit of the Lenders or such other Guaranteed
Creditor, as applicable, for application to the Guaranteed Debt, if any, then
due and owing.
(h) Except as specifically otherwise provided in the Loan Documents,
each Guarantor authorizes each Guaranteed Creditor to take any action or
exercise any remedy in good faith with respect to any collateral from time to
time securing the Guaranteed Debt, which the Guaranteed Creditors in their sole
discretion shall determine, without notice to any Guarantor.
(i) In the event that any Guaranteed Creditor in its sole discretion
elects to give notice of any action with respect to any collateral securing the
Guaranteed Debt or any part thereof, ten days' written notice mailed to the
applicable Guarantor by ordinary mail at its address referred to in Section 5
shall be deemed reasonable notice of any matters contained in such notice. Each
Guarantor consents and agrees that no Guaranteed Creditor shall be under any
obligation to marshal any assets in favor of any Guarantor or against or in
payment of any or all of the Guaranteed Debt.
(j) In the event that acceleration of the time for payment of any of
the Guaranteed Debt is stayed upon the insolvency, bankruptcy or reorganization
of any Loan Party, all such amounts shall nonetheless be payable to the
Guaranteed Creditors by the Guarantors during the continuance of an Event of
Default forthwith upon demand by the Administrative Agent. Each Guarantor
further agrees that, to the extent that any Loan Party makes a payment or
payments to any of the Guaranteed Creditors on the Guaranteed Debt or any
Guaranteed Creditor receives any proceeds of collateral or any other guaranty
securing the Guaranteed Debt, which payment or receipt of proceeds or any part
thereof is subsequently invalidated, declared to be fraudulent or preferential,
set aside or required to be returned or repaid to any Loan Party, its estate,
trustee, receiver, debtor in possession or any other party, including, without
limitation, any Guarantor, under any insolvency or bankruptcy law, state or
federal law, common law or equitable cause, then to the extent of such payment,
return or repayment, the Guaranteed Debt or part thereof which has been paid,
reduced or satisfied by such amount shall be reinstated and continued in full
force and effect as of the date when such initial payment, reduction or
satisfaction occurred as if such payment, reduction or satisfaction had never
occurred.
(k) No delay on the part of any Guaranteed Creditor in the exercise
of any right, power or remedy shall operate as a waiver thereof, and no single
or partial exercise by any Guaranteed Creditor of any right, power or remedy
shall preclude any further exercise thereof; nor shall any amendment,
supplement, modification or waiver of any of the terms or provisions of this
Guaranty be binding upon the Guaranteed Creditors, except as set forth in
Section 10.01 of the Credit Agreement or as otherwise expressly set forth in a
writing duly signed and delivered on the Lenders' behalf by the Administrative
Agent with the consent of the Required
Lenders or all of the Lenders, as the case may be, in each case as required by
Section 10.01 of the Credit Agreement; provided, however, no consent of the
Guaranteed Creditors shall be required in connection with the release of any
Guarantor from its obligations hereunder to the extent that such Guarantor is
disposed of pursuant to a transaction permitted by Section 7.04 or 7.05 of the
Credit Agreement. The failure by the Guaranteed Creditors at any time or times
hereafter to require strict performance by any Loan Party of any of the
provisions, warranties, terms and conditions contained in any promissory note,
pledge agreement, security agreement, agreement, guaranty, instrument or
document now or at any time or times hereafter executed pursuant to the terms
of, or in connection with, any Guaranteed Debt by any Loan Party or the
Guarantors and delivered to any Guaranteed Creditor shall not waive, affect or
diminish any right of any Guaranteed Creditor at any time or times hereafter to
demand strict performance thereof, and such right shall not be deemed to have
been waived by any act or knowledge of any Guaranteed Creditor, its agents,
officers or employees, unless such waiver is contained in an instrument in
writing duly signed and delivered (x) with respect to the Guaranteed Debt
described in Section 1(a)(i) hereof, on the Required Lenders' behalf by the
Administrative Agent and (y) with respect to the Guaranteed Debt described in
Section 1(a)(ii) hereof, by the Guaranteed Creditor party to such Related Credit
Arrangements. No waiver by any Guaranteed Creditor of any default shall operate
as a waiver of any other default or the same default on a future occasion, and
no action by any Guaranteed Creditor permitted hereunder shall in any way affect
or impair such Guaranteed Creditor's rights or powers, or the obligations of any
Guarantor under this Guaranty. The remedies herein are cumulative and not
exclusive of any other remedies available to the Guaranteed Creditors at law or
in equity. Any determination by a court of competent jurisdiction of the amount
of any Guaranteed Debt owing by the Borrowers, or either of them as applicable,
to the Guaranteed Creditors shall be conclusive and binding on each Guarantor
irrespective of whether such Guarantor was a party to the suit or action in
which such determination was made.
(l) Notwithstanding any reference herein to any collateral securing
any of the Guaranteed Debt, it is acknowledged that, on the date hereof, neither
the Guarantor nor any other Loan Party has granted, or has any obligation to
grant, any security interest in or other lien on any of its property as security
for the Guaranteed Debt other than such obligations as the US Borrower may have
to "Cash Collateralize" L/C Obligations as and to the extent expressly provided
in the Credit Agreement.
(m) Notwithstanding any other provision contained in this Guaranty,
(i) until the Facility Termination Date, from and after the occurrence and
during the continuance of any Event of Default, no Guaranteed Creditor shall be
entitled, except as expressly provided in the Credit Agreement, to institute any
action to enforce any right, power or remedy hereunder against any Guarantor in
respect of Guaranteed Debt arising under the Loan Documents, except by virtue of
the enforcement of the provisions hereof by the Administrative Agent on behalf
of such Guaranteed Creditors as provided herein and in the Credit Agreement and
otherwise available under applicable Laws, (ii) each Guaranteed Creditor, by its
execution of the Credit Agreement (or an Assignment and Assumption Agreement),
or by its acceptance (whether or not as a Lender) of any benefits hereunder
(including entering into any Related Credit Arrangements in reliance on the
terms hereof) (x) agrees (1) that it shall not have, prior to the Facility
Termination Date, any right to notice of any action or to consent to, direct or
object to any action hereunder or under any other Loan Document or otherwise in
respect of any Guarantor's
Obligations relating to Guaranteed Debt described in Section (1)(a)(i) hereof
(including the release or modification of any Guarantor's Obligations or
security therefor) other than in any capacity it may have as a Lender and only
to the extent expressly provided in the Loan Documents, and (2) that any action
it may take or fail to take as a Guaranteed Creditor in respect of Guaranteed
Debt described in Section 1(a)(ii) hereof shall not impair or otherwise affect
the rights, powers and privileges of the Administrative Agent or any other
Guaranteed Creditor to enforce the terms hereof and of the other Loan Documents
in respect of all other Guaranteed Debt, and (y) acknowledges and accepts the
appointment of the Administrative Agent pursuant to the terms of the Credit
Agreement, and that with respect to the actions and omissions of the
Administrative Agent hereunder or otherwise relating hereto that do or may
affect such Guaranteed Creditor (including without limitation at all times after
the occurrence of the Facility Termination Date if at any such time it then
remains a Guaranteed Creditor), the Administrative Agent and its Related Parties
shall be entitled to all the rights, benefits and immunities conferred under
Article IX of the Credit Agreement, and (iii) following the occurrence of the
Facility Termination Date, the provisions of this Guaranty shall be deemed to
run severally to and for the benefit of each remaining Guaranteed Creditor, with
the effect and to the same extent as if each Guarantor had entered into this
Guaranty separately with each such remaining Guaranteed Creditor, such that (x)
the terms hereof may be modified by and between any such Guarantor and any such
Guaranteed Creditor without affecting the terms hereof as may then be in effect
as between any such Guarantor and any other Guaranteed Creditor, (y) no action,
omission or other event or circumstance arising between or affecting the
relative rights and duties of the Guarantor and any such Guaranteed Creditor
shall affect the relative rights and duties of any Guarantor and any other
Guaranteed Creditor, and (z) each remaining Guaranteed Creditor shall have the
right, power and authority to enforce the terms hereof for its benefit in its
own name in such manner as may be permitted by the terms hereof or otherwise by
applicable Laws. For purposes hereof, "Facility Termination Date" means the date
as of which all of the following shall have occurred: (A) the Borrowers shall
have permanently terminated the credit facilities under the Loan Documents by
final payment in full of all Outstanding Amounts, together with all accrued and
unpaid interest and fees thereon, other than (i) the undrawn portion of Letters
of Credit and (ii) all letter of credit fees relating thereto accruing after
such date (which fees shall be payable solely for the account of the L/C Issuer
and shall be computed (based on interest rates and the Applicable Rate then in
effect) on such undrawn amounts to the respective expiry dates of the Letters of
Credit), in each case as have been fully Cash Collateralized or as to which
other arrangements with respect thereto satisfactory to the Administrative Agent
and the L/C Issuer shall have been made; (B) all Commitments shall have
terminated or expired; and (C) the Borrowers and each other Loan Party shall
have fully, finally and irrevocably paid and satisfied in full all of their
respective obligations and liabilities arising under the Loan Documents (except
for future obligations consisting of continuing indemnities and other contingent
Obligations of the Borrowers or any Loan Party that may be owing to any Person
pursuant to the Loan Documents and expressly survive termination of the Credit
Agreement or any other Loan Document). Each Guarantor acknowledges and agrees to
the forgoing provisions of this Section 1(m).
2. REPRESENTATIONS AND WARRANTIES.
Each Guarantor hereby represents and warrants to the Administrative
Agent, each Lender and the other Guaranteed Creditors that:
(a) Existence, Qualification and Power; Compliance with Laws. Such
Guarantor (i) is a corporation or a limited liability company, as applicable,
duly organized, validly existing and in good standing under the Laws (as defined
in the Credit Agreement) of the jurisdiction of its organization, (ii) has all
requisite power and authority and all governmental licenses, authorizations,
consents and approvals to own its assets, carry on its business and to execute,
deliver, and perform its obligations under this Guaranty, (iii) is duly
qualified and is licensed and in good standing under the Laws of each
jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification or license, and (iv) is in
compliance with all Laws, except in each case referred to in clause (ii), clause
(iii) or this clause (iv), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
(b) Authorization: No Contravention. The execution, delivery and
performance by such Guarantor of this Guaranty has been duly authorized by all
necessary corporate or other organizational action, and do not and will not (i)
contravene the terms of any of such Guarantor's Organization Documents, (ii)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, any material Contractual Obligation to which such Guarantor is a
party or any order, injunction, writ or decree of any Governmental Authority to
which such Guarantor or its property is subject, except as would not have a
Material Adverse Effect, or (iii) violate any Law, except as would not have a
Material Adverse Effect.
(c) Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, such Guarantor of
this Guaranty except for any of such foregoing as may be required in connection
with the exercise of remedies under the Loan Documents.
(d) Binding Effect. This Guaranty has been duly executed and
delivered by such Guarantor. This Guaranty constitutes a legal, valid and
binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with its terms except as may be limited by any applicable bankruptcy,
insolvency, reorganization, moratorium, or similar laws affecting the
enforcement of creditors' rights generally which may be in effect and to general
principles of equity.
(e) Other. Each Guarantor represents and warrants that all
representations and warranties relating to such Guarantor contained in Article V
of the Credit Agreement are true and correct insofar as they relate to such
Guarantor.
Each Guarantor agrees that all of the foregoing representations and
warranties in paragraphs (a) through (e) above and the preceding sentence shall
be deemed to have been made by such Guarantor on the date hereof and, except to
the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct as of such earlier
date, on the date of each Credit Extension on and as of the date of such Credit
Extension.
3. COVENANTS. Each Guarantor hereby agrees that until all Guaranteed
Debt described in Section 1(a)(i) has been paid in full and any and all
documents relating thereto have been terminated, it shall comply with all
covenants relating to it contained in Articles VI and VII of the Credit
Agreement (except Sections 6.12 and 6.15(b) and (c)).
4. JOINDER. Each Person who shall at any time execute and deliver to
the Administrative Agent a Guaranty Joinder Agreement substantially in the form
attached as Exhibit A hereto or otherwise agreed to by the Administrative Agent
shall thereupon irrevocably, absolutely and unconditionally become a party
hereto and obligated hereunder as a Guarantor, and all references herein and in
the other Loan Documents to the Guarantors or to the parties to this Guaranty
shall be deemed to include such Person as a Guarantor hereunder.
5. MISCELLANEOUS.
(a) Subject to the provisions of Sections 1(j) and 1(k), this
Guaranty shall continue in effect (i) as to the Administrative Agent and the
Lenders, until the Credit Agreement and all other commitments of the Lenders to
make Credit Extensions which could give rise to Guaranteed Debt described in
Section 1(a)(i) have terminated and such Guaranteed Debt and all other amounts
payable hereunder have been paid in full and (ii) as to any other Guaranteed
Creditors, until all Related Credit Arrangements which could give rise to
Guaranteed Debt have been fully or finally satisfied or other arrangements
satisfactory to the respective parties to each such Related Credit Arrangement
have been made in lieu of the continuation of this Guaranty.
(b) Each Guarantor confirms and ratifies Section 10.08 of the Credit
Agreement and agrees that the Lenders shall have, relative to each Guarantor,
the set-off rights provided therein. In addition to any rights and remedies of
the Administrative Agent and the Lenders provided by law, upon the occurrence
and during the continuance of any Event of Default, the Administrative Agent and
each Lender is authorized at any time and from time to time, without prior
notice to any Guarantor, any such notice being waived by each Guarantor to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final (but not trust
accounts)) at any time held by, and other indebtedness at any time owing by,
such Lender to or for the credit or the account of any Guarantor against any and
all Guaranteed Debt then due and owing to such Lender, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such Lender
shall have made demand under this Guaranty or any other Loan Document. Each
Lender agrees promptly to notify the applicable Guarantor and the Administrative
Agent after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
(c) Each Guarantor agrees to pay all reasonable costs, fees and out
of pocket expenses (including reasonable attorney costs of the Administrative
Agent, any Lender or any other Guaranteed Creditor) incurred by the
Administrative Agent, any Lender or any other Guaranteed Creditor in collecting
or enforcing the obligations of any Guarantor under this Guaranty.
(d) This Guaranty shall bind each Guarantor and its respective
successors and assigns and shall inure to the benefit of the Guaranteed
Creditors and its successors and assigns
permitted pursuant to Section 10.06 of the Credit Agreement. All references
herein to the Borrowers, or either of them as applicable, shall be deemed to
include its successors and assigns including, without limitation, a receiver,
trustee or debtor in possession of or for the Borrowers, or either of them as
applicable.
(e) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT EACH GUARANTEED CREDITOR AND
EACH GUARANTOR SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(f) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY MAY
BE BROUGHT IN THE, COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK OR OF THE
UNITED STATES FOR THE SOUTHERN DISTRICT OF SUCH STATE, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH GUARANTOR CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
GUARANTOR IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS GUARANTY. EACH GUARANTOR WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
(g) EACH GUARANTOR HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING HEREUNDER OR IN ANY
WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF EACH GUARANTOR,
THE ADMINISTRATIVE AGENT OR THE LENDERS OR ANY OF THEM WITH RESPECT TO ANY LOAN
DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING
OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT THE
ADMINISTRATIVE AGENT OR ANY LENDER MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH GUARANTOR
TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
(h) Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such 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 Guaranty.
(i) Except as otherwise expressly provided herein, any notice
required or desired to be served, given or delivered to any party hereto under
this Guaranty shall be given, in the manner and with the effect set forth in
Section 10.02(a) of the Credit Agreement. The notice address for each Guarantor
shall be its address indicated on the signature pages hereto, or to such other
address as such Guarantor designates from time to time to the Administrative
Agent in writing.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, each of the undersigned has entered into this Guaranty
as of the day and year first written above.
GUARANTORS:
Address: 000 Xxxxxxx Xxxxxx THE XXXXXXXX GLASS COMPANY
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx XXXXXXXX XXXXX COMPANY
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx WORLD TABLEWARE INC.
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 300 Madison Avenue LGA3 CORP.
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Libbey Glass Inc.
Signature Page 1 to Guaranty Agreement
Address: 300 Madison Avenue LGA4 CORP.
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx LGFS INC.
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx LGAC LLC
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx TRAEX COMPANY
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Address: 000 Xxxxxxx Xxxxxx XXX XXXX.
Xxxxxx, XX 00000
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Libbey Glass Inc.
Signature Page 2 to Guaranty Agreement
EXHIBIT A TO GUARANTY AGREEMENT
FORM OF GUARANTY JOINDER AGREEMENT
GUARANTY JOINDER AGREEMENT
THIS GUARANTY JOINDER AGREEMENT (the "Guaranty Joinder Agreement"), dated
as of _____________, 20__ is made by _______________________________, a
________________ (the "Joining Guarantor"), delivered to BANK OF AMERICA, N.A.,
in its capacity as Administrative Agent (the "Administrative Agent") under that
certain Credit Agreement (as amended, revised, modified, supplemented or amended
and restated from time to time, the "Credit Agreement"), dated as of June __,
2004, by and among Libbey Glass Inc., a Delaware corporation (the "US
Borrower"), Libbey Europe B.V., a company organized and existing under the laws
of the Netherlands (the "Dutch Borrower", and together with the US Borrower,
collectively the "Borrowers"), the financial institutions named therein (the
"Lenders"), The Bank of New York, as syndication agent, and the Administrative
Agent, and the GUARANTEED CREDITORS (as defined in the Credit Agreement). All
capitalized terms not otherwise defined herein shall have the meanings given to
such terms in the Credit Agreement.
WHEREAS, the Joining Guarantor is becoming a "Guarantor" under the Credit
Agreement and will be joined as a party to this Guaranty; and
WHEREAS, the Joining Guarantor will materially benefit directly and
indirectly from the credit facilities made available and to be made available to
the Borrowers by the Lenders under the Credit Agreement; and
NOW, THEREFORE, the Joining Guarantor hereby agrees as follows with the
Administrative Agent, for the benefit of the Lenders, and the other Guaranteed
Creditors:
1. Joinder. The Joining Guarantor hereby irrevocably, absolutely and
unconditionally becomes a party to the Guaranty as a Guarantor and is bound by
all the terms, conditions, obligations, liabilities and undertakings of each
Guarantor or to which each Guarantor is subject thereunder, including without
limitation the joint and several, unconditional, absolute, continuing and
irrevocable guarantee to the Administrative Agent for the benefit of the Lenders
and the other Guaranteed Creditors of the payment and performance in full of the
Guaranteed Debt (as defined in the Guaranty) whether now existing or hereafter
arising, all with the same force and effect as if the Joining Guarantor were a
signatory to the Guaranty.
2. Affirmations. The Joining Guarantor hereby acknowledges and reaffirms
as of the date hereof with respect to itself, its properties and its affairs
each of the waivers, representations, warranties, acknowledgements and
certifications applicable to any Guarantor contained in the Guaranty.
3. Severability. The provisions of this Guaranty Joinder Agreement are
independent of and separable from each other. If any provision hereof shall for
any reason be held invalid or
unenforceable, such invalidity or unenforceability shall not affect the validity
or enforceability of any other provision hereof, but this Guaranty Joinder
Agreement shall be construed as if such invalid or unenforceable provision had
never been contained herein.
4. Counterparts. This Guaranty Joinder Agreement may be executed in any
number of counterparts each of which when so executed and delivered shall be
deemed an original, and it shall not be necessary in making proof of this
Guaranty Joinder Agreement to produce or account for more than one such
counterpart executed by the Joining Guarantor. Without limiting the foregoing
provisions of this Section 4, the provisions of Section 10.02 of the Credit
Agreement shall be applicable to this Guaranty Joinder Agreement.
5. Delivery. Joining Guarantor hereby irrevocably waives notice of
acceptance of this Guaranty Joinder Agreement and acknowledges that the
Guaranteed Debt is and shall be deemed to be incurred, and credit extensions
under the Loan Documents and the Related Credit Arrangements made and
maintained, in reliance on this Guaranty Joinder Agreement and the Guarantor's
joinder as a party to the Guaranty as herein provided.
6. Governing Law; Venue; Waiver of Jury Trial. The provisions of Section 5
of the Guaranty are hereby incorporated by reference as if fully set forth
herein.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the Joining Guarantor has duly executed and delivered
this Guaranty Joinder Agreement as of the day and year first written above.
JOINING GUARANTOR:
________________________________________
By: ____________________________________
Name: __________________________________
Title: _________________________________
Address for Notices:
________________________________________
________________________________________
________________________________________
Telefacsimile: (___) ___-____
EXHIBIT B TO GUARANTY AGREEMENT
CERTAIN DEFINITIONS
As used in the foregoing Guaranty, the following terms shall have the
meanings set forth opposite each such term (capitalized terms used but not
defined in this Exhibit B shall have the respective meanings therefor provided
in the Credit Agreement):
"Guaranteed Creditors" means and includes (a) the Administrative Agent and the
Lenders and (b) each Related Creditor.
"Related Credit Arrangements" means, collectively, all Related Swap Contracts.
"Related Creditor" means any Lender or Affiliate of any Lender which, in any
case, is or becomes a party to any Related Credit Arrangement (even if such
Lender ceases to be a Lender under the Credit Agreement for any reason after the
date of such Related Credit Arrangement) and, in each case of the foregoing,
their subsequent permitted assigns, but excluding in all cases Holdings and any
of its Subsidiaries.
"Related Swap Contracts" means all Swap Contracts which are entered into or
maintained by the US Borrower or any Guarantor with any Related Creditor and
which are not prohibited by the terms of the Loan Documents.
