Exhibit 4.2 October 23, 2003 $5,000,000 RESTATED AND SUBSTITUTED SUBORDINATED PROMISSORY NOTE FOR VALUE RECEIVED, The Middleby Corporation, a Delaware corporation (the “Company”), promises to pay to the order of Maytag Corporation (together with its successors, endorsees and assigns, “Maytag”) on or prior to December 15, 2006 the principal amount of Five Million Dollars ($5,000,000), as such amount may be changed as described herein. The Company further agrees to pay interest on the principal amount of this Note from time to time outstanding at 12% per annum. Interest shall be computed for the actual number of days elapsed for a year consisting of 365 or, if applicable, 366 days. Such interest shall be payable on the last business day of June and December of each year, beginning on December 31, 2003, and at maturity. The principal amount of this Note may be decreased as the result of any offset by the Company permitted by Section 2 of the Subordination Agreement referred to below against amounts payable to the Company by Maytag. All payments of principal hereof and interest hereon shall be payable in lawful currency of the United States of America;provided that if and to the extent that any interest scheduled to be paid on any date thereafter may not be paid without violating the terms of the Subordination Agreement, such interest shall be paid by the issuance of an Additional Subordinated Note in a principal amount equal to such interest. As used herein, “Senior Subordinated Debt” means Senior Debt (as defined in the Subordination Agreement) that is subordinated to other Senior Debt. Maytag, and each other holder hereof by its acceptance hereof, covenants and agrees that all payments of principal and interest on this Note are subordinated in right of payment to the prior payment in full in cash of all Senior Debt pursuant to, and to the extent provided in, the Subordination Agreement dated as of December 21, 2001 (as amended, restated or otherwise modified from time to time, the “Subordination Agreement”) issued by Maytag in favor (a) Bank of America, N.A., as administrative agent (in such capacity, together with any successor or assign in such capacity the “Administrative Agent”) for certain lenders (the “Lenders”) under a Credit Agreement dated as of the date hereof among the Company, Middleby Marshall Inc. (“MMI”), the Administrative Agent and the Lenders (as amended, restated replaced, refinanced, extended or renewed from time to time, the “Credit Agreement”), (b) American Capital Financial Services, Inc., as administrative agent (the “Agent”) for certain securities purchasers (the “Purchasers”) under a Note and Equity Purchase Agreement dated as of the date hereof among MMI, the Company, the Agent and the Purchasers (as amended, restated, replaced, refinanced, extended or renewed from time to time, the “Note Agreement”) and (c) any other holders of Senior Debt.
If any Senior Debt is accelerated as a result of any event of the type described in Section 12.1.3 of the Credit Agreement in effect on December 21, 2001, then the unpaid principal amount of this Note shall become immediately due and payable. In addition, Maytag may, by notice to the Company, the Administrative Agent and the Agent, declare the unpaid principal amount of this Note, together with interest thereon, to be immediately due and payable upon the global occurrence of any of the following events: |
