THIRD AMENDMENT TO NOTE AGREEMENT
This Third Amendment dated as of August 15, 1996 (the or this "Amendment")
to the Note Agreement dated as of January 1, 1995, (as previously amended, the
"Note Agreement") between and among Middleby Marshall Inc., a Delaware
corporation ("MMI"), Asbury Associates, Inc., a Florida corporation, Victory
International Inc., a Delaware corporation, and Victory Refrigeration Company, a
Delaware corporation (each of the foregoing an "Obligor" and collectively the
"Obligors") and The Northwestern Mutual Life Insurance Company (the
"Noteholder").
RECITALS:
A. The Obligors and the Noteholder have heretofore entered into the Note
Agreement, pursuant to which the Company has issued the $10.99% Senior Note Due
2003 (the "Notes"). The Noteholder is the holder of 100% of the outstanding
principal amount of the Notes.
B. The Company and the Noteholder now desire to amend provisions of the
Note Agreement as of April 1, 1996 (the "Effective Date") in the respects, but
only in the respects, hereinafter set forth.
C. 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 the Amendment set forth in ss. 3.1 hereof, and
in consideration of good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, the Company and the Noteholder do hereby agree
as follows:
SECTION 1. AMENDMENTS.
1.1 Section 5.7 of the Note Agreement shall be and is hereby amended in its
entirety to read as follows:
5.7 Indebtedness Ratio. The Obligors shall not at any time permit the
ratio of Consolidated Funded Debt to Consolidated Total Capitalization to
exceed:
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RATIO OF CONSOLIDATED FUNDED
DEBT TO CONSOLIDATED TOTAL
DURING THE PERIOD: CAPITALIZATION:
Closing Date Through March 31, 1996 .90 to 1.00
April 1, 1996 through March 31, 1997 .80 to 1.00
April 1, 1997 through January 3, 1998 .70 to 1.00
January 4, 1998 through January 2, 1999 .60 to 1.00
January 3, 1999 and thereafter .50 to 1.00
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1 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 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;
(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
its certificate of incorporation or bylaws, (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 any material indenture, agreement or other instrument to which
it is a party or by which its properties or assets are or may be bound,
including, without limitation, the Finance Company Loan Agreement or the
Finance Company Security Documents, or (C) result in a breach or constitute
(alone or with due notice or lapse of time or both) a default under any
such indenture, agreement or other instrument; and
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(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 3. CONDITIONS PRECEDENT; MISCELLANEOUS.
3.1 This Amendment shall not become effective until each and every one of
the following conditions shall have been satisfied:
(a) executed counterparts of this Amendment, duly executed by all 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; and
(c) the Noteholder shall have received a certificate, in form
satisfactory to it, of an appropriate officer of MMI, on behalf of each
Obligor, to the effect that the representations and warranties of the
Obligors set forth in ss. 2 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
as of the Effective Date referred to in Paragraph B of the Recitals.
3.4. This Amendment shall be construed in connection with and as part of
the Note Agreement, and except as modified and expressly amended by this
Amendment, all terms, conditions and covenants contained in the Note Agreement
and the Notes are hereby ratified and shall be and remain in full force and
effect.
3.5 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.
3.6. This Amendment shall be governed by and construed in accordance with
Illinois law.
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3.7. This Amendment may be executed in any number of counterparts, each
executed counterpart constituting an original, but all together only one
agreement.
Middleby Marshall, Inc.
By:
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Its:
Asbury Associates, Inc.
By:
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Its:
Victory International, Inc.
By:
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Its:
Victory Refrigeration Company
By:
--------------------
Its:
Accepted and Agreed to
as of August 15, 1996
The Northwestern Mutual Life
Insurance Company
By:______________________________
Its: Vice President
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