EXHIBIT 10.4
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SUBSIDIARY GUARANTY
Dated as of March 31, 2003
RE: $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
of
Libbey Glass Inc.
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TABLE OF CONTENTS
(Not a part of the Agreement)
SECTION HEADING PAGE
Parties.......................................................................................................... 1
Recitals......................................................................................................... 1
SECTION 1. DEFINITIONS........................................................................... 2
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENT......................................... 2
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE................................................... 3
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY........................................... 3
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS...................................... 8
SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS...................................................... 9
SECTION 7. NOTICES............................................................................... 10
SECTION 8. MISCELLANEOUS......................................................................... 11
Signature........................................................................................................ 12
ATTACHMENTS TO SUBSIDIARY GUARANTY:
EXHIBIT A -- Guaranty Joinder
SUBSIDIARY GUARANTY
RE: $25,000,000 3.69% Senior Notes, Series 2003A-1, due March 31, 2008
$55,000,000 5.08% Senior Notes, Series 2003 A-2, due March 31, 2013
$20,000,000 Floating Rate Senior Notes, Series 2003B, due March 31, 2010
of
Libbey Glass Inc.
This SUBSIDIARY GUARANTY dated as of March 31, 2003 (the "Guaranty") is
entered into on a joint and several basis by each of the undersigned (which
parties are hereinafter referred to individually as a "Guarantor" and
collectively as the "Guarantors").
R E C I T A L S
A. Each Guarantor is presently a direct or indirect Subsidiary of
Libbey Glass Inc., a Delaware corporation (the "Company"). The Company is a
wholly-owned Subsidiary of Libbey Inc., a Delaware corporation (the "Parent
Guarantor").
B. In order to raise funds to refinance existing indebtedness and
for general corporate purposes, the Company has entered into the Note Purchase
Agreement dated as of March 31, 2003 (the "Note Purchase Agreement") between the
Company and each of the purchasers named on Schedule A attached to the Note
Purchase Agreement (the "Note Purchasers") providing for, among other things,
the issue and sale by the Company to the Note Purchasers of the Company's (i)
$25,000,000 3.69% Senior Notes, Series 2003A-1, due March 31, 2008 (the "Series
2003A-1 Notes"), (ii) $55,000,000 5.08% Senior Notes, Series 2003A-2, due March
31, 2013 (the "Series 2003A-2 Notes"), and (iii) $20,000,000 Floating Rate
Senior Notes, Series 2003B, due March 31, 2010 (the "2003B Notes" and,
collectively with the Series 2003A-1 Notes and the 2003A-2 Notes, the "Notes").
The Note Purchasers, together with their successors and assigns, are hereinafter
collectively referred to as the "Holders".
C. The Note Purchasers have required as a condition of their
purchase of the Notes that the Parent Guarantor enter into that certain Parent
Guaranty Agreement dated as of even date herewith (the "Parent Guaranty") for
the benefit of the Holders and that the Parent Guarantor and the Company cause
each of the undersigned to enter into this Guaranty and to cause any Subsidiary
(other than a Foreign Subsidiary which is a borrower under the Bank Credit
Agreement) which is required by the terms of the Bank Credit Agreement to become
a party to (as co-obligor with the Parent Guarantor), or otherwise guaranty Debt
outstanding under the Bank Credit Agreement to enter into a Guaranty Joinder in
substantially the form set forth as Exhibit A hereto (a "Guaranty Joinder"), in
each case as security for the Notes, and the Parent Guarantor and the Company
have agreed to cause each of the undersigned to execute this Guaranty and to
cause each such Subsidiary to execute a Guaranty Joinder, in each case in order
to induce the Note Purchasers to purchase the Notes and thereby benefit the
Parent Guarantor and its Subsidiaries by providing funds to be used for general
corporate purposes of the Parent
EXHIBIT A
(to Subsidiary Guaranty)
Libbey Glass Inc. Subsidiary
Guarantor and its Subsidiaries (including stock buybacks and acquisitions) and
to repay existing indebtedness of the Company.
D. Each Guarantor is desirous that the Note Purchasers enter into
the Securities Purchase Agreement and purchase the Notes, and by so doing the
Note Purchasers will be conferring substantial financial and other benefits on
the Guarantors.
NOW, THEREFORE, as required by the Note Purchase Agreement and in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency whereof are hereby acknowledged, each Guarantor does
hereby covenant and agree, jointly and severally, as follows:
SECTION 1. DEFINITIONS.
Capitalized terms used herein shall have the meanings set forth in the
Note Purchase Agreement or the Parent Guaranty, as the case may be, unless
herein defined or the context shall otherwise require.
SECTION 2. GUARANTY OF NOTES AND NOTE PURCHASE AGREEMENT.
(a) Each Guarantor jointly and severally does hereby irrevocably,
absolutely and unconditionally guarantee unto the Holders: (1) the full and
prompt payment of the principal of, Make-Whole Amount, if any, Series B Premium
Amount, if any, and LIBOR Breakage Amount, if any, and interest on the Notes
from time to time outstanding, as and when such payments shall become due and
payable, whether by lapse of time, upon redemption or prepayment, by extension
or by acceleration or declaration or otherwise (including (to the extent legally
enforceable) interest due on overdue payments of principal, Make-Whole Amount,
if any, Series B Premium Amount, if any, and LIBOR Breakage Amount, if any, and
interest) in Federal or other immediately available funds of the United States
of America which at the time of payment or demand therefor shall be legal tender
for the payment of public and private debts, (2) the full and prompt performance
and observance by the Company of each and all of the obligations, covenants and
agreements required to be performed or owed by the Company under the terms of
the Notes and the Note Purchase Agreement and (3) the full and prompt payment,
upon demand by any Holder, of all costs and expenses, legal or otherwise
(including reasonable attorneys' fees), if any, as shall have been expended or
incurred in the protection or enforcement of any rights, privileges or
liabilities in favor of the Holders under or in respect of the Notes, the Note
Purchase Agreement or under this Guaranty or in any action in connection
therewith or herewith and in each and every case irrespective of the validity,
regularity, or enforcement of any of the Notes or Note Purchase Agreement or any
of the terms thereof or any other like circumstance or circumstances.
(b) The liability of each Guarantor under this Guaranty shall not
exceed an amount equal to a maximum amount as will, after giving effect to such
maximum amount and all other liabilities of such Guarantor, contingent or
otherwise, result in the performance of the obligations of such Guarantor
hereunder not constituting a fraudulent transfer, obligation or conveyance.
Libbey Glass Inc. Subsidiary
SECTION 3. GUARANTY OF PAYMENT AND PERFORMANCE.
This is a guarantee of payment and performance and each Guarantor
hereby waives, to the fullest extent permitted by law, any right to require that
any action on or in respect of any Note or the Note Purchase Agreement be
brought against the Company or any other Person or that resort be had to any
direct or indirect security for the Notes or for this Guaranty or any other
remedy. Any Holder may, at its option, proceed hereunder against any Guarantor
in the first instance to collect monies when due, the payment of which is
guaranteed hereby, without first proceeding against the Company or any other
Person and without first resorting to any direct or indirect security for the
Notes or for this Guaranty or any other remedy. The liability of each Guarantor
hereunder shall in no way be affected or impaired by any acceptance by any
Holder of any direct or indirect security for, or other guaranties of, any Debt,
liability or obligation of the Company or any other Person to any Holder or by
any failure, delay, neglect or omission by any Holder to realize upon or protect
any such guarantees, Debt, liability or obligation or any notes or other
instruments evidencing the same or any direct or indirect security therefor or
by any approval, consent, waiver, or other action taken, or omitted to be taken
by any such Holder.
The covenants and agreements on the part of the Guarantors herein
contained shall be joint and several covenants and agreements, and references to
the Guarantors shall be deemed references to each of them and none of them shall
be released from liability hereunder by reason of the Guaranty ceasing to be
binding as a continuing security on any other of them.
SECTION 4. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each Guarantor hereby consents and agrees that any Holder or
Holders from time to time, with or without any further notice to or assent from
any other Guarantor may, without in any manner affecting the liability of any
Guarantor under this Guaranty, and upon such terms and conditions as any such
Holder or Holders may deem advisable:
(1) extend in whole or in part (by renewal or otherwise),
modify, increase, change, compromise, release or extend the duration of
the time for the performance or payment of any Debt, liability or
obligation of the Company or of any other Person secondarily or
otherwise liable for any Debt, liability or obligations of the Company
on the Notes, or waive any Default with respect thereto, or waive,
modify, amend or change any provision of any other agreement or this
Guaranty; or
(2) sell, release, surrender, modify, impair, exchange or
substitute any and all property, of any nature and from whomsoever
received, held by, or for the benefit of, any such Holder as direct or
indirect security for the payment or performance of any Debt, liability
or obligation of the Company or of any other Person secondarily or
otherwise liable for any Debt, liability or obligation of the Company
on the Notes; or
(3) settle, adjust or compromise any claim of the Company
against any other Person secondarily or otherwise liable for any Debt,
liability or obligation of the Company on the Notes.
Libbey Glass Inc. Subsidiary
Each Guarantor hereby ratifies and confirms any such extension,
renewal, change, sale, release, waiver, surrender, exchange, modification,
amendment, impairment, substitution, settlement, adjustment or compromise and
that the same shall be binding upon it, and hereby waives, to the fullest extent
permitted by law, any and all defenses, counterclaims or offsets which it might
or could have by reason thereof, it being understood that such Guarantor shall
at all times be bound by this Guaranty and remain liable hereunder.
(b) Each Guarantor hereby waives, to the fullest extent permitted
by law:
(1) notice of acceptance of this Guaranty by the Holders
or of the creation, renewal or accrual of any liability of the Company,
present or future, or of the reliance of such Holders upon this
Guaranty (it being understood that all Debt, liabilities and
obligations described in Section 2 hereof shall conclusively be
presumed to have been created, contracted or incurred in reliance upon
the execution of this Guaranty); and
(2) demand of payment by any Holder from the Company or
any other Person indebted in any manner on or for any of the Debt,
liabilities or obligations hereby guaranteed; and
(3) presentment for the payment by any Holder or any
other Person of the Notes or any other instrument, protest thereof and
notice of its dishonor to any party thereto and to such Guarantor.
The obligations of each Guarantor under this Guaranty and the rights of
any Holder to enforce such obligations by any proceedings, whether by action at
law, suit in equity or otherwise, shall not be subject to any reduction,
limitation, impairment or termination, whether by reason of any claim of any
character whatsoever or otherwise and shall not be subject to any defense,
set-off, counterclaim (other than any compulsory counterclaim), recoupment or
termination whatsoever.
(c) The obligations of each Guarantor hereunder shall be binding
upon such Guarantor and its successors and assigns, and shall remain in full
force and effect until the entire principal, interest, and Make-Whole Amount, if
any, Series Premium Amount, if any, and LIBOR Breakage Amount, if any, on the
Notes and all other sums due pursuant to Section 2 hereof shall have been paid
and such obligations shall not be affected, modified or impaired upon the
happening from time to time of any event, including, without limitation, any of
the following, whether or not with notice to or the consent of any Guarantor:
(1) the genuineness, validity, regularity or
enforceability of the Notes, the Note Purchase Agreement or any other
agreement or any of the terms of any thereof, the continuance of any
obligation on the part of the Company, any other Guarantor or any other
Person on or in respect of the Notes or under the Note Purchase
Agreement or any other agreement or the power or authority or the lack
of power or authority of the Company to issue the Notes or the Company
to execute and deliver the Note Purchase Agreement or any other
agreement or of any other Guarantor to execute and deliver this
Libbey Glass Inc. Subsidiary
Guaranty or to perform any of its obligations hereunder or the
existence or continuance of the Company, any other Guarantor or any
other Person as a legal entity; or
(2) any default, failure or delay, willful or otherwise,
in the performance by the Company, any other Guarantor or any other
Person of any obligations of any kind or character whatsoever under the
Notes, the Note Purchase Agreement, this Guaranty or any other
agreement; or
(3) any creditors' rights, bankruptcy, receivership or
other insolvency proceeding of the Company, any other Guarantor or any
other Person or in respect of the property of the Company, any other
Guarantor or any other Person or any merger, consolidation,
reorganization, dissolution, liquidation, the sale of all or
substantially all of the assets of or winding up of the Company, any
other Guarantor or any other Person; or
(4) impossibility or illegality of performance on the
part of the Company, any other Guarantor or any other Person of its
obligations under the Notes, the Note Purchase Agreement, this Guaranty
or any other agreements; or
(5) in respect of the Company, any other Guarantor or any
other Person, any change of circumstances, whether or not foreseen or
foreseeable, whether or not imputable to the Company, any other
Guarantor or any other Person, or other impossibility of performance
through fire, explosion, accident, labor disturbance, floods, droughts,
embargoes, wars (whether or not declared), civil commotion, acts of God
or the public enemy, delays or failure of suppliers or carriers,
inability to obtain materials, action of any federal or state
regulatory body or agency, change of law or any other causes affecting
performance, or any other force majeure, whether or not beyond the
control of the Company, any other Guarantor or any other Person and
whether or not of the kind hereinbefore specified; or
(6) any attachment, claim, demand, charge, Lien, order,
process, encumbrance or any other happening or event or reason, similar
or dissimilar to the foregoing, or any withholding or diminution at the
source, by reason of any taxes, assessments, expenses, Debt,
obligations or liabilities of any character, foreseen or unforeseen,
and whether or not valid, incurred by or against the Company, any
Guarantor or any other Person or any claims, demands, charges or Liens
of any nature, foreseen or unforeseen, incurred by any Person, or
against any sums payable in respect of the Notes or under the Note
Purchase Agreement or this Guaranty, so that such sums would be
rendered inadequate or would be unavailable to make the payments herein
provided; or
(7) any order, judgment, decree, ruling or regulation
(whether or not valid) of any court of any nation or of any political
subdivision thereof or any body, agency, department, official or
administrative or regulatory agency of any thereof or any other action,
happening, event or reason whatsoever which shall delay, interfere
with, hinder or prevent, or in any way adversely affect, the
performance by the Company, any Guarantor or any other Person of its
respective obligations under or in respect of the Notes, the Note
Purchase Agreement, this Guaranty or any other agreement; or
Libbey Glass Inc. Subsidiary
(8) the failure of any Guarantor to receive any benefit
from or as a result of its execution, delivery and performance of this
Guaranty; or
(9) any failure or lack of diligence in collection or
protection, failure in presentment or demand for payment, protest,
notice of protest, notice of default and of nonpayment, any failure to
give notice to any Guarantor of failure of the Company, any other
Guarantor or any other Person to keep and perform any obligation,
covenant or agreement under the terms of the Notes, the Note Purchase
Agreement, this Guaranty or any other agreement or failure to resort
for payment to the Company, any other Guarantor or to any other Person
or to any other guaranty or to any property, security, Liens or other
rights or remedies; or
(10) the acceptance of any additional security or other
guaranty, the advance of additional money to the Company or any other
Person, the renewal or extension of the Notes or amendments,
modifications, consents or waivers with respect to the Notes, the Note
Purchase Agreement or any other agreement, or the sale, release,
substitution or exchange of any security for the Notes; or
(11) any change in the ownership of any shares of the
Company, any Guarantor or any other Person; or
(12) any defense whatsoever that: (i) the Company or any
other Person might have to the payment of the Notes (principal,
Make-Whole Amount, if any, Series B Premium Amount, if any, LIBOR
Breakage Amount, if any, or interest), other than payment thereof in
Federal or other immediately available funds, or (ii) the Company or
any other Person might have to the performance or observance of any of
the provisions of the Notes, the Note Purchase Agreement or any other
agreement, whether through the satisfaction or purported satisfaction
by the Company, any other Guarantor or any other Person of its debts
due to any cause such as bankruptcy, insolvency, receivership, merger,
consolidation, reorganization, dissolution, liquidation, winding-up or
otherwise; or
(13) any act or failure to act with regard to the Notes,
the Note Purchase Agreement, this Guaranty or any other agreement or
anything which might vary the risk of any Guarantor or any other
Person; or
(14) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, any Guarantor or
any other Person in respect of the obligations of any Guarantor or
other Person under this Guaranty or any other agreement other than the
final and indefeasible payment in full of cash of the Notes;
provided that the specific enumeration of the above-mentioned acts, failures or
omissions shall not be deemed to exclude any other acts, failures or omissions,
though not specifically mentioned above, it being the purpose and intent of this
Guaranty that the obligations of each Guarantor shall be absolute, irrevocable
and unconditional and shall not be discharged, impaired or varied except by the
payment of the principal of, Make-Whole Amount, if any, Series B Premium Amount,
if any, LIBOR Breakage Amount, if and interest on the Notes in accordance with
their
Libbey Glass Inc. Subsidiary
respective terms whenever the same shall become due and payable as in the Notes
provided and all other sums due and payable under the Note Purchase Agreement,
at the place specified in and all in the manner and with the effect provided in
the Notes and the Note Purchase Agreement, as each may be amended or modified
from time to time. Without limiting the foregoing, it is understood that
repeated and successive demands may be made and recoveries may be had hereunder
as and when, from time to time, the Company shall default under or in respect of
the terms of the Notes or the Note Purchase Agreement and that notwithstanding
recovery hereunder for or in respect of any given default or defaults by the
Company under the Notes or the Note Purchase Agreement, this Guaranty shall
remain in full force and effect and shall apply to each and every subsequent
default.
(d) All rights of any Holder hereunder may be transferred or
assigned at any time and shall be considered to be transferred or assigned at
any time or from time to time upon the transfer of any Note whether with or
without the consent of or notice to the Guarantors under this Guaranty or to the
Company.
(e) To the extent of any payments made under this Guaranty, each
Guarantor shall be subrogated to the rights of the Holder upon whose Notes such
payment was made, but such Guarantor covenants and agrees that such right of
subrogation shall be subordinate in right of payment to the prior indefeasible
final payment in cash in full of all amounts due and owing by the Company with
respect to the Notes and the Note Purchase Agreement and by the Guarantors under
this Guaranty, and the Guarantors shall not take any action to enforce such
right of subrogation, and the Guarantors shall not accept any payment in respect
of such right of subrogation, until all amounts due and owing by the Company
under or in respect of the Notes and the Note Purchase Agreement and all amounts
due and owing by the Guarantors hereunder have indefeasibly been finally paid in
cash in full. If any amount shall be paid to any Guarantor in violation of the
preceding sentence at any time prior to the later of the indefeasible payment in
cash in full of the Notes and all other amounts payable under the Notes, the
Note Purchase Agreement and this Guaranty, such amount shall be held in trust
for the benefit of the Holders and shall forthwith be paid to the Holders to be
credited and applied to the amounts due or to become due with respect to the
Notes and all other amounts payable under the Note Purchase Agreement and this
Guaranty, whether matured or unmatured. Each Guarantor acknowledges that it has
received direct and indirect benefits from the financing arrangements
contemplated by the Note Purchase Agreement and that the waiver set forth in
this paragraph (e) is knowingly made as a result of the receipt of such
benefits.
(f) Each Guarantor agrees that to the extent the Company, any
other Guarantor or any other Person makes any payment on any Note, which payment
or any part thereof is subsequently invalidated, voided, declared to be
fraudulent or preferential, set aside, recovered, rescinded or is required to be
retained by or repaid to a trustee, receiver, or any other Person under any
bankruptcy code, common law, or equitable cause, then and to the extent of such
payment, the obligation or the part thereof intended to be satisfied shall be
revived and continued in full force and effect with respect to the Guarantors'
obligations hereunder, as if said payment had not been made. The liability of
the Guarantors hereunder shall not be reduced or discharged, in whole or in
part, by any payment to any Holder from any source that is thereafter paid,
returned or refunded in whole or in part by reason of the assertion of a claim
of any kind relating
Libbey Glass Inc. Subsidiary
thereto, including, but not limited to, any claim for breach of contract, breach
of warranty, preference, illegality, invalidity, or fraud asserted by any
account debtor or by any other Person.
(g) No Holder shall be under any obligation: (1) to ▇▇▇▇▇▇▇▇ any
assets in favor of the Guarantors or in payment of any or all of the liabilities
of the Company under or in respect of the Notes or the obligations of the
Guarantors hereunder or (2) to pursue any other remedy that the Guarantors may
or may not be able to pursue themselves and that may lighten the Guarantors'
burden, any right to which each Guarantor hereby expressly waives.
(h) The obligations of each Guarantor under this Guaranty rank
pari passu in right of payment with all other Debt of such Guarantor which is
not secured or which is not expressly subordinated in right of payment to any
other Debt of such Guarantor.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS.
Each Guarantor represents and warrants to each Holder that:
(a) Such Guarantor is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a foreign corporation or
other legal entity and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the
failure to be so qualified or in good standing could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on (1) the
ability of such Guarantor to perform its obligations under this Guaranty, or (2)
the validity or enforceability of this Guaranty (herein in this Section 5, a
"Material Adverse Effect"). Such Guarantor has the power and authority to own or
hold under lease the properties it purports to own or hold under lease, to
transact the business it transacts and proposes to transact, to execute and
deliver this Guaranty and to perform the provisions hereof.
(b) This Guaranty has been duly authorized by all necessary
corporate action on the part of such Guarantor, and this Guaranty constitutes a
legal, valid and binding obligation of such Guarantor enforceable against such
Guarantor in accordance with its terms, except as such enforceability may be
limited by (1) applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or conveyance or other similar laws affecting the
enforcement of creditors' rights generally and (2) general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) The execution, delivery and performance by such Guarantor of
this Guaranty will not (1) contravene, result in any breach of, or constitute a
default under, or result in the creation of any Lien in respect of any property
of such Guarantor or any of its Subsidiaries under its corporate charter or
by-laws, or other equivalent formation or governing document, or except for
contraventions, breaches or defaults which could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, under any
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
or any other agreement or instrument to which such Guarantor or any of its
subsidiaries is bound or by which such Guarantor or any of its subsidiaries or
any of their respective properties may be bound or affected, (2) conflict with
or
Libbey Glass Inc. Subsidiary
result in a breach of any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or Governmental Authority
applicable to such Guarantor or any of its subsidiaries or (3) violate any
provision of any statute or other rule or regulation of any Governmental
Authority applicable to the such Guarantor or any of its Subsidiaries.
(d) No consent, approval or authorization of, or registration,
filing or declaration with, any Governmental Authority is required in connection
with the execution, delivery or performance by such Guarantor of this Guaranty.
(e) Such Guarantor is solvent, has capital not unreasonably small
in relation to its business or any contemplated or undertaken transaction and
has assets having a value both at fair valuation and at present fair salable
value greater than the amount required to pay its debts as they become due and
greater than the amount that will be required to pay its probable liability on
its existing debts as they become absolute and matured. Such Guarantor does not
intend to incur, or believe that it will incur, debts beyond its ability to pay
such debts as they become due. Such Guarantor will not be rendered insolvent by
the execution and delivery of, and performance of its obligations under, this
Guaranty. Such Guarantor does not intend to hinder, delay or defraud its
creditors by or through the execution and delivery of, or performance of its
obligations under, this Guaranty.
SECTION 6. AMENDMENTS, WAIVERS AND CONSENTS.
(a) This Guaranty may be amended, and the observance of any term
hereof may be waived (either retroactively or prospectively), with (and only
with) the written consent of each Guarantor and the Required Holders, except
that (1) no amendment or waiver of any of the provisions of Section 2, 3 or 4,
or any defined term (as it is used therein), will be effective as to any Holder
unless consented to by such Holder in writing, (2) no such amendment or waiver
may, without the written consent of each Holder, (i) change the percentage of
the principal amount of the Notes the Holders of which are required to consent
to any such amendment or waiver, or (ii) amend this Section 6, and (3) this
Guaranty may be amended by the addition of additional Guarantors pursuant to a
Guaranty Joinder.
(b) The Guarantors will provide each Holder (irrespective of the
amount of Notes then owned by it) with sufficient information, sufficiently far
in advance of the date a decision is required, to enable such Holder to make an
informed decision with respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof. The Guarantors will deliver executed or
true and correct copies of each amendment, waiver or consent effected pursuant
to the provisions of this Section 6 to each Holder promptly following the date
on which it is executed and delivered by, or receives the consent or approval
of, the requisite Holders.
(c) Each Guarantor agrees it will not directly or indirectly pay
or cause to be paid any remuneration, whether by way of fee or otherwise, or
grant any security, to any Holder as consideration for or as an inducement to
the entering into by any Holder of any waiver or amendment of any of the terms
and provisions hereof unless such remuneration is concurrently paid, or security
is concurrently granted, on the same terms, ratably to each Holder even if such
Holder did not consent to such waiver or amendment.
Libbey Glass Inc. Subsidiary
(d) Any amendment or waiver consented to as provided in this
Section 6 applies equally to all Holders and is binding upon them and upon each
future holder and upon the Guarantors. No such amendment or waiver will extend
to or affect any obligation, covenant or agreement not expressly amended or
waived or impair any right consequent thereon. No course of dealing between the
Guarantors and any Holder nor any delay in exercising any rights hereunder shall
operate as a waiver of any rights of any Holder. As used herein, the term "this
Guaranty" and references thereto shall mean this Guaranty as it may from time to
time be amended or supplemented.
SECTION 7. NOTICES.
All notices and communications provided for hereunder shall be in
writing and sent (a) by telefacsimile if the sender on the same day sends a
confirming copy of such notice by a recognized overnight delivery service
(charges prepaid), or (b) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(1) if to a Note Purchaser, to such Note Purchaser at the
address specified for such communications on Schedule A to the Note
Purchase Agreement, or at such other address as such Note Purchaser
shall have specified to any Guarantor or the Company in writing,
(2) if to any other Holder, to such Holder at such
address as such Holder shall have specified to any Guarantor or the
Company in writing, or
(3) if to a Guarantor, to such Guarantor c/o the Parent
Guarantor at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-0060, to the
attention of the Chief Financial Officer, or at such other address as
such Guarantor shall have specified to the Holders in writing.
Notices under this Section 7 will be deemed given only when actually received.
SECTION 8. MISCELLANEOUS.
(a) No remedy herein conferred upon or reserved to any Holder is
intended to be exclusive of any other available remedy or remedies, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Guaranty now or hereafter existing at law or in equity.
No delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof but any such right or power
may be exercised from time to time and as often as may be deemed expedient. In
order to entitle any Holder to exercise any remedy reserved to it under the
Guaranty, it shall not be necessary for such Holder to physically produce its
Note in any proceedings instituted by it or to give any notice, other than such
notice as may be herein expressly required.
(b) The Guarantors will pay all sums becoming due under this
Guaranty by the method and at the address specified for such purpose in the Note
Purchase Agreement, or by such other
Libbey Glass Inc. Subsidiary
reasonable method or at such other address as any Holder shall have from time to
time specified to the Guarantors in writing for such purpose, without the
presentation or surrender of this Guaranty or any Note.
(c) Any provision of this Guaranty that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall (to the full extent permitted by law) not invalidate or
render unenforceable such provision in any other jurisdiction.
(d) If the whole or any part of this Guaranty shall be now or
hereafter become unenforceable against any one or more of the Guarantors for any
reason whatsoever or if it is not executed by any one or more of the Guarantors,
this Guaranty shall nevertheless be and remain fully binding upon and
enforceable against each other Guarantor as if it had been made and delivered
only by such other Guarantors.
(e) This Guaranty shall be binding upon each Guarantor and its
successors and assigns and shall inure to the benefit of each Holder and its
successors and assigns (including, without limitation, any subsequent holder of
a Note) whether so expressed or not, so long as its Notes remain outstanding and
unpaid.
(f) This Guaranty may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute
one instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(g) This Guaranty 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.
Libbey Glass Inc. Subsidiary
IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty to
be duly executed by an authorized representative as of date first written above.
THE ▇▇▇▇▇▇▇▇ GLASS COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
SYRACUSE CHINA COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
WORLD TABLEWARE INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
LGA3 CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
LGA4 CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Libbey Glass Inc. Subsidiary
LGFS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
LGAC LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
LGC CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
TRAEX COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer