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AMENDMENT AGREEMENT NO. 2
to
INTERCREDITOR AGREEMENT
Dated as of March 1, 1996
Among
SANWA BUSINESS CREDIT CORPORATION,
as Agent
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY,
the Senior Noteholder
and
FIRST SECURITY BANK OF UTAH, NATIONAL ASSOCIATION,
as Collateral Agent
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Middleby Marshall Inc.
Amendment Agreement No. 2
to Intercreditor Agreement
AMENDMENT AGREEMENT NO. 2
TO INTERCREDITOR AGREEMENT
Reference is made to that certain Intercreditor Agreement dated as of
January 10, 1995 as amended by that certain Amendment Agreement dated as of
March 1, 1995 (as so amended, the "ORIGINAL INTERCREDITOR AGREEMENT"), among
Sanwa Business Credit Corporation, a Delaware corporation, acting in its
capacity as agent (in such capacity, the "AGENT") for and on behalf of the
various financial institutions (collectively, the "LENDERS") which are, or may
from time to time hereafter become, parties to the Loan Agreement, The
Northwestern Mutual Life Insurance Company (the "SENIOR NOTEHOLDER") and First
Security Bank of Utah, National Association, acting in its individual capacity
for purposes of clause (a) of Section 3 of the Intercreditor Agreement and
otherwise in its capacity as intercreditor collateral agent for the Senior
Creditors (together with its successors and assigns, the "COLLATERAL AGENT") and
First Security Bank of Utah, National Association, in its capacity as security
trustee under the Noteholder Security Documents (the "SECURITY TRUSTEE").
Unless otherwise defined herein, capitalized terms shall have the meanings set
forth in the Original Intercreditor Agreement.
The Agent and the Senior Noteholder desire to amend certain provisions of
the Original Intercreditor Agreement and, upon the execution and delivery of
this Amendment Agreement No. 2 to Intercreditor Agreement by the Agent, the
Senior Noteholder and the Collateral Agent, the following provisions of the
Original Intercreditor Agreement shall be amended as of the date hereof as
follows:
SECTION 1. AMENDMENT.
SECTION 1.1. AMENDMENT OF SECTION 1(a). The following definitions in
Section 1(a) of the Original Intercreditor Agreement
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are hereby amended in their entirety so that the same shall henceforth read as
follows:
"BORROWERS" shall mean MMI, AAI, Victory and Victory International.
"JAPANESE SUBSIDIARY" shall mean a Subsidiary yet to be created which
will be a corporation duly organized under the laws of Japan, and any
Person who succeeds to all, or substantially all, of the assets of such
Subsidiary.
"MPC" shall mean Middleby Philippines Corporation, a Republic of the
Philippines corporation, and any Person who succeeds to all, or
substantially all, of the assets and business of Middleby Philippines
Corporation.
"NOTEHOLDER'S SENIOR COLLATERAL" shall mean the collateral described
in Exhibit A attached hereto and made a part hereof, together with all
accounts, equipment, general intangibles, monies, litigation proceeds,
additions, records, proceeds and products relating to such Intellectual
Property Collateral, all as described in the Patent and Trademark Security
Agreements.
"PLEDGE AGREEMENTS" shall mean the Pledge Agreement dated as of
January 9, 1995 from MMI to the Collateral Agent relating to the capital
stock of AAI owned by MMI, the Pledge Agreement dated as of March 1, 1996
from Victory International to the Collateral Agent relating to the capital
stock of Victory owned by Victory International, and a Pledge Agreement
dated as of March 1, 1996 from MMI to the Collateral Agent relating to the
capital stock of Victory International owned by MMI, a Pledge Agreement to
be dated as of March 1, 1996 from MMI to the Collateral Agent relating to
the capital stock of MPC owned by MMI, a Pledge Agreement to be dated as of
the date of execution and delivery thereof from MMI to the
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Collateral Agent relating to the capital stock of the Taiwanese
Subsidiary owned by MMI, a Pledge Agreement to be dated as of the date of
execution and delivery thereof from MMI to the Collateral Agent relating to
the capital stock of the Japanese Subsidiary owned by MMI, and any other
agreement delivered by MMI or any Subsidiary thereof delivered subsequent
to the date hereof pursuant to the terms of the Financing Documents.
"TAIWANESE SUBSIDIARY" shall mean a Subsidiary yet to be created which
will be a corporation duly organized under the laws of Taiwan, and any
Person who succeeds to all, or substantially all, of the assets and
business of such Subsidiary.
"VICTORY" shall mean Victory Refrigeration Company, a Delaware
corporation, and any Person who succeeds to all, or substantially all, of
the assets and business of Victory Refrigeration Company.
"VICTORY INTERNATIONAL" shall mean Victory International, Inc., a
Delaware corporation and parent corporation of Victory, and any Person who
succeeds to all, or substantially all, of the assets and business of
Victory International Inc.
SECTION 2. MISCELLANEOUS.
SECTION 2.1. EXECUTION IN COUNTERPARTS. Two or more duplicate originals
of this Amendment Agreement No. 2 to Intercreditor Agreement may be signed by
the parties hereto, each of which shall be an original but all of which together
shall constitute one and the same instrument. This Amendment Agreement No. 2 to
Intercreditor Agreement may be executed in one or more counterparts and will be
effective (as of the effective date set forth below), when at least one
counterpart has been executed by the Agent, the Senior Noteholder and the
Collateral Agent, and each set of
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counterparts which, collectively, show execution by each such party shall
constitute one duplicate original.
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SECTION 2.2. GOVERNING LAW. This Amendment Agreement No. 2 to
Intercreditor Agreement shall be governed by and construed in accordance with
Illinois law.
SECTION 2.3. CAPTIONS. The descriptive headings of the various Sections
or parts of this Amendment Agreement No. 2 to Intercreditor Agreement are for
convenience only and shall not affect the meaning or construction of any of the
provisions hereof.
SECTION 2.4. RATIFICATION OF INTERCREDITOR AGREEMENT. Except as herein
expressly amended, all other terms and provisions of the Original Intercreditor
Agreement shall remain unchanged and are in all respects ratified, confirmed and
approved. If and to the extent that any of the terms or provisions of the
Original Intercreditor Agreement are in conflict or inconsistent with any of the
terms or provisions of this Amendment Agreement No. 2 to Intercreditor
Agreement, this Amendment Agreement No. 2 to Intercreditor Agreement shall
govern.
This Amendment Agreement No. 2 to Intercreditor Agreement shall be
effective as of March 28, 1996.
Signature SANWA BUSINESS CREDIT CORPORATION,
as Agent
By
Its
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY, as Senior
Noteholder
By
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Its
FIRST SECURITY BANK OF UTAH,
NATIONAL ASSOCIATION, as
Collateral Agent and
Security Trustee
By
Its
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Accepted and Acknowledged by:
MIDDLEBY MARSHALL INC.
By
Its
ASBURY ASSOCIATES, INC.
By
Its
VICTORY REFRIGERATION COMPANY
By
Its
VICTORY INTERNATIONAL, INC.
By
Its
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