SECOND AMENDMENT TO NOTE AGREEMENT AND CONSENT
THIS SECOND AMENDMENT TO NOTE AGREEMENT AND CONSENT dated as of May 31,
1996 (the or this "Amendment") to the Note Agreement dated as of January 1,
1995 (the "Original Note Agreement"), as amended, between and among Middleby
Marshall Inc., a Delaware corporation ("MMI"), Asbury Associates, Inc., a
Florida corporation ("Asbury"), Victory International Inc., a Delaware
corporation, ("Victory International"); and Victory Refrigeration Company, a
Delaware Corporation ("Victory"); (Victory, Victory International, Asbury and
MMI each hereinafter sometime individually referred to as an "Obligor" and
collectively as the "Obligors"), and The Northwestern Mutual Life Insurance
Company ("the Noteholder"), under and pursuant to which $15,000,000 aggregate
principal amount of Senior Notes Due January 10, 2003 (the "Notes") were
originally issued.
RECITALS:
A. The Obligors and the Noteholder now desire to amend and/or waive
certain provisions of the Note Agreement as of the date hereof (the "Effective
Date") in the respects, but only in the respects, hereinafter set forth.
B. Capitalized terms used herein shall have the respective meanings
ascribed thereto in the Note Agreement unless herein defined or the context
shall otherwise require.
NOW, THEREFORE, upon the full and complete satisfaction of the conditions
precedent to the effectiveness of this Amendment set forth in Section 3.1
hereof, and in consideration of good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Obligors and the Noteholder do
hereby agree as follows:
Section 1 REPRESENTATIONS AND WARRANTIES.
1.1. To induce the Noteholder to execute and deliver this Amendment, each
Obligor represents and warrants to the Noteholder (which representations shall
survive the execution and delivery of this Amendment) that:
(a) this Amendment has been duly authorized, executed and
delivered by it and this Amendment constitutes the legal, valid and
binding obligation, contract and agreement of such Obligor enforceable
against it in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights
generally;
(b) the Note Agreement, as amended by this Amendment, constitutes
the legal, valid and binding obligations, contracts and agreements of such
Obligor enforceable against it in accordance with their respective terms,
except as enforcement may be limited by bankruptcy, insolvency,
reorganization,
moratorium or similar laws or equitable principles relating to or limiting
creditors' rights generally;
(c) the execution, delivery and performance by such Obligor of
this Amendment (i) have been duly authorized by all requisite corporate
action and, if required, shareholder action, (ii) do not require the
consent or approval of any governmental or regulatory body or agency, and
(iii) will not (A) violate (1) any provision of law, statute, rule or
regulation or certificate of incorporation or bylaws of any Obligor, (2)
any order of any court or any rule, regulation or order of any other
agency or government binding upon it, (B) violate or require any consent
under or with respect to any provision of the Finance Company Loan
Agreement or the Finance Company Security Documents or any other material
indenture, agreement or instrument to which it is a party or by which its
properties or assets are or may be bound, or (C) result in a breach or
constitute (alone or with due notice or lapse of time or both) a default
under such Agreements or Documents, or other such material indentures,
agreements or instruments; and
(d) as of the date hereof and after giving effect to this
Amendment, no Default or Event of Default has occurred which is
continuing.
SECTION 2. AMENDMENTS.
2.1. Section 5.9 the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
The Obligors will at all time keep and maintain the ratio of the
Consolidated Net Income Available for Fixed Charges for the
immediately preceding four fiscal quarter period to Consolidated
Fixed Charges for such four fiscal quarter period at not less than:
DURING THE PERIOD MINIMUM LEVEL
1995 and 1996 Fiscal Years 1.75 to 1.00
1997 Fiscal Year and each 2.00 to 1.00
Fiscal Year thereafter
2.2 The definition of "Consolidated Net Income Available for Fixed
Charges" is hereby amended by inserting at the end of such definition, and
before the period, the following:
PROVIDED, HOWEVER, that for the four consecutive fiscal quarters
commencing January 1, 1996, Consolidated Net Income Available for
Fixed Charges shall include (to the extent deducted in determining
Consolidated Net Income) an amount up to $900,000 reflected on the
audited consolidated financial statements of the Obligors for the
fiscal year ending December 30, 1995, under the line item
"Provision for Product Line Discontinuance".
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SECTION 3. MISCELLANEOUS.
3.1. This Amendment shall not become effective until, and shall become
effective when, each and every one of the following conditions shall have been
satisfied:
(a) executed counterparts of this Amendment, duly executed by the
Obligors shall have been delivered to the Noteholder;
(b) the Noteholder shall have received a written consent to this
Amendment for purposes of the Finance Company Loan Agreement and Finance
Company Security Documents, duly executed by the Agent and the Lenders,
which consent shall be in form and substance satisfactory to the
Noteholder:
(c) the Noteholder shall have received evidence satisfactory to it
that the Finance Company Loan Agreement has been amended substantially as
provided herein;
(d) the representations and warranties of the Company set forth in
Section 1 hereof are true and correct on and with respect to the date
hereof.
Upon receipt of all of the foregoing, this Amendment shall become
effective.
3.2. As of the date of this Amendment, the Noteholder consents to the
May, 1996 amendment to the by-laws of MMI to increase the maximum number of
directors of MMI to eleven, and agrees that such amendment does not constitute
an Event of Default under Section 5.19(b) of the Note Agreement.
3.3. This Amendment shall be construed in connection with and as part of
the Note Agreement, and except as expressly modified and amended by this
Amendment, all terms, conditions and covenants contained in the Note Agreement
and the Note are hereby ratified and shall be and remain in full force and
effect.
3.4. Any and all notices, requests, certificates and other instruments
executed and delivered after the execution and delivery of this Amendment may
refer to the Note Agreement without making specific reference to this Amendment
but nevertheless all such references shall include this Amendment unless the
context otherwise requires.
3.5. This Amendment shall be governed by and construed in accordance with
Illinois law.
MIDDLEBY MARSHALL INC.
By /s/ John J. Hastings
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Its Executive Vice President
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ASBURY ASSOCIATES, INC.
By /s/ John J. Hastings
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Its Vice President
VICTORY REFRIGERATION COMPANY
By /s/ John J. Hastings
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Its Vice President
VICTORY INTERNATIONAL INC.
By /s/ John J. Hastings
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Its Vice President
Accepted as of May 31, 1996
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By
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Its Vice President
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