- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
MIDDLEBY MARSHALL INC.
AND
ASBURY ASSOCIATES, INC.
AND
VICTORY REFRIGERATION COMPANY
AND
VICTORY INTERNATIONAL, INC.
FOURTH AMENDMENT TO NOTE AGREEMENT
Dated as of January 15, 1997
Re: Note Agreement Dated as of January 1, 1995
and
$15,000,000 10.99% Senior Secured Notes
Due January 10, 2003
and
Warrant to Purchase Common Stock
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
TABLE OF CONTENTS
SECTION HEADING PAGE
SECTION 1 AMENDMENTS TO THE ORIGINAL NOTE AGREEMENT............... 2
Section 1.1 Amendment to Section 5.9 of the Original Note
Agreement............................................... 2
Section 1.2 Amendment to Section 5.11 of the Original Note
Agreement............................................... 3
Section 1.3 Amendment to Section 5.14 of the Original Note
Agreement............................................... 3
Section 1.4 Amendment to Section 5.15 of the Original Note
Agreement............................................... 4
Section 1.5 Amendment to Section 8 of the Original Note
Agreement............................................... 6
SECTION 2 WAIVER AND CONSENTS..................................... 8
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.......... 8
SECTION 4 CONDITIONS PRECEDENT.................................... 9
SECTION 5 MISCELLANEOUS........................................... 10
Section 5.1 Effective Date; Ratification............................ 10
Section 5.2 Successors and Assigns.................................. 11
Section 5.3 Counterparts............................................ 11
Section 5.4 Fees and Expenses....................................... 11
Section 5.5 No Legend Required...................................... 11
Section 5.6 Governing Law........................................... 11
Exhibit A -- Second Amendment to Loan and Security Agreement
Exhibit B -- Third Amendment to Loan and Security Agreement
Exhibit C -- Form of Parent Support Letter
-i-
MIDDLEBY MARSHALL INC.
AND
ASBURY ASSOCIATES, INC.
AND
VICTORY REFRIGERATION COMPANY
AND
VICTORY INTERNATIONAL, INC.
SECOND AMENDMENT TO NOTE AGREEMENT
Re: Note Agreement Dated as of January 1, 1995
and
$15,000,000 10.99% Senior Secured Notes
Due January 10, 2003
and
Warrant to Purchase Common Stock
Dated as of
January 15, l997
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Ladies and Gentlemen:
Reference is made to the Note Agreement dated as of January 1, 1995 (the
"1995 Note Agreement"), between and among Middleby Marshall Inc., a Delaware
corporation ("MMI"), Asbury Associates, Inc., a Florida corporation ("Asbury";
Asbury and MMI each hereinafter sometimes individually referred to as an
"Obligor" and collectively as the "Original Obligors"), and you (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.
Reference is further made to the First Amendment to Note Agreement dated as
of March 1, 1996 (the "First Amendment"; the 1995 Note Agreement as amended by
the First Amendment is hereinafter referred to as the "Original Note
Agreement"), between and among the Original Obligors, Victory International,
Inc. ("Victory International"), a Wholly-owned Subsidiary of MMI, and Victory
Refrigeration Company ("Victory"), a Delaware corporation and a Wholly-owned
Subsidiary of Victory International (each of Victory and Victory International
being hereinafter sometimes individually also referred to as an "Obligor" and
collectively with the Original Obligors as the "Obligors") and the Noteholder,
under and pursuant to which the 1995 Note Agreement was amended. Capitalized
terms not otherwise defined herein shall have the respective meanings assigned
thereto in the Original Note Agreement.
The Obligors desire to undertake the following, namely, (i) the series of
sales covering all of the assets of Victory (the "Victory Sales") and (ii) the
amending of the terms of the Original Note Agreement and the Finance Company
Loan Agreement as would be necessary in order to permit the Victory Sales and to
permit certain investments in, and guarantees of the obligations of, the
Philippine subsidiary of MMI. The Victory Sales and such amending of the
Original Note Agreement and the Finance Company Loan Agreement are hereinafter
collectively referred to as the "1997 Changes."
Pursuant to Section 7 of the Original Note Agreement, the holders of at
least 51% in aggregate principal amount of the outstanding Notes must consent to
any amendments of the Original Note Agreement or the Security Documents in
connection with the Obligors' accomplishing the 1997 Changes. Since the
Noteholder is the holder of 100% in aggregate principal amount of the
outstanding Notes, the Obligors hereby request that it accept the amendments set
forth below. On the Effective Date (as hereinafter defined) this instrument
shall constitute an agreement which amends the Original Note Agreement in the
respects hereinafter set forth.
SECTION 1. AMENDMENTS TO THE ORIGINAL NOTE AGREEMENT.
Section 1.1. Amendment to Section 5.9 of the Original Note Agreement.
Section 5.9 of the Original Note Agreement shall be, and is hereby, amended in
its entirety to read as follows:
"Section 5.9. Fixed Charges Coverage Ratio. The Obligors will at all
times keep and maintain the ratio of 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 Fiscal Year 1.75 to 1.00
December 31, 1995 through
June 29, 1996 2.00 to 1.00
June 30, 1996 through
March 29, 1997 1.55 to 1.00
March 30, 1997 through 1.75 to 1.00
January 3, 1998
1998 Fiscal Year and each 2.00 to 1.00"
Fiscal Year thereafter
-2-
Section 1.2. Amendment to Section 5.11 of the Original Note Agreement. (a)
Section 5.11(a) of the Original Note Agreement shall be, and is hereby, amended
by amending in its entirety clause (10) thereof to read as follows:
"(10) Indebtedness of MPC, FAB-Asia, the Japanese Subsidiary or
the Taiwanese Subsidiary provided that (i) FAB-Asia shall have no
Indebtedness except mortgage Indebtedness in an amount not to
exceed $500,000 outstanding on the Effective Date, (ii) no such
Indebtedness shall be secured by any Lien upon property or assets
of any Obligor or any other Subsidiary, and (iii) no Obligor or
other Subsidiary shall be liable with respect to such
Indebtedness except to the extent that any Guaranty by the
Obligors of obligations incurred by, together with the Investment
of the Obligors or any other Subsidiary in and to, (x) FAB-Asia
or MPC shall not exceed $6,400,000 in the aggregate in U.S.
dollars at any time, (y) the Japanese Subsidiary shall not exceed
$600,000 in U.S. dollars at any time or (z) the Taiwanese
Subsidiary shall not exceed $200,000 in U.S. dollars at any time;
and"
(b) Section 5.11(a) of the Original Note Agreement shall be, and is hereby,
further amended by adding a clause (11) thereto to read as follows:
"(11) Indebtedness of MMI evidenced by a Guaranty of the
obligations of MPC under the MPC Revolving Credit Facility;
provided that the obligations of MMI under such Guaranty shall
not exceed $3,700,000."
Section 1.3. Amendment to Section 5.14 of the Original Note Agreement.
Section 5.14 of the Original Note Agreement shall be, and is hereby, amended by
amending in its entirety clause (a) thereof to read as follows:
"(a) Investment by the Obligors and their respective Subsidiaries in
and to Subsidiaries, including any Investment in a corporation which, after
giving effect to such Investment, will become a Subsidiary of an Obligor or
one of its Wholly-owned Subsidiaries; provided that in no event shall the
Investment of the Obligors in and to, together with any Guaranty by the
Obligors of obligations incurred by, (i)FAB-Asia
-3-
or MPC exceed $6,400,000 in the aggregate in U.S. dollars at any time, or
(ii) the Japanese Subsidiary exceed $600,000 in U.S. dollars at any time,
or (iii) the Taiwanese Subsidiary exceed $200,000 in U.S. dollars at any
time; provided further, that in each case the Investments described in
clause (i), (ii) and (iii) above shall be limited to the amounts set forth
above without regard to whether the Obligors would otherwise be permitted
to make a greater Investment in FAB-Asia, MPC, the Japanese Subsidiary or
the Taiwanese Subsidiary within the limitations of clause (k) of this
Section 5.14;"
Section 1.4. Amendment to Section 5.15 of the Original Note Agreement.
Section 5.15 of the Original Note Agreement shall be, and is hereby, amended by
amending in its entirety clause (b) thereof to read as follows:
"(b) The Obligors will not, and will not permit any of their
respective Subsidiaries to, sell, lease, transfer, abandon or otherwise
dispose of assets (except assets sold in the ordinary course of business
for fair market value); provided that the foregoing restrictions do not
apply to:
(1) the sale, lease, transfer or other disposition of assets of a
Subsidiary of MMI to MMI or a Wholly-owned Subsidiary of MMI; or
(2) the sale or transfer of assets of an Obligor or any of its
respective Subsidiaries whenever it is determined in the good faith
judgment of the Board of Directors of MMI in the event the fair market
value of such assets being disposed of equals or exceeds $1,000,000 or
a Responsible Officer of MMI in the event that the fair market value
of such assets being disposed of is less than $1,000,000 that such
assets are obsolete, worn-out or without economic value to such
Obligor or such Subsidiary; or
(3) the exchange in an arms-length transaction of assets,
provided that (i) the assets acquired by an Obligor or any of its
respective Subsidiaries in connection with such exchange shall have a
fair market value (as determined in good faith by the Board of
Directors of MMI in the event the fair market value of such assets
being disposed of equals or exceeds $1,000,000 or a Responsible
Officer of MMI in the event that the fair market value of such assets
being disposed of is less than $1,000,000) equal to or greater than
the fair market value of the assets disposed of by such Obligor or
such Subsidiary in connection with such exchange, (ii) the assets
acquired by such Obligor or such Subsidiary in connection with such
exchange shall be similar in nature to the assets sold or otherwise
disposed of in connection with such exchange, and (iii) the assets so
acquired are free and clear of any Lien and are useful and are
intended to be used in the business of the Obligors and their
respective Subsidiaries as described in Section 5.5; or
(4) the sale of the Victory Real Assets pursuant to the Victory
Real Assets Sale Agreement; provided, however, that the net proceeds
from the sale of the Victory Real Assets shall be applied towards the
payment of the obligations of the Obligors under the Finance Company
Loan Agreement; or
(5) the sale of the Victory Operating Assets pursuant to the
Victory Operating Assets Sale Agreement; provided, however, that the
net proceeds from the sale of the Victory Operating Assets shall be
applied towards the payment of the obligations of the Obligors under
the Finance Company Loan Agreement; or
-4-
(6) the sale of assets for cash or other property to a Person or
Persons other than an Affiliate if all of the following conditions are
met:
(i) such assets (valued at net book value) do not, together
with all other assets of the Obligors and their respective
Subsidiaries previously disposed of during the same Fiscal Year
(other than in the ordinary course of business), exceed 10% of
Consolidated Total Assets determined as of the end of the
immediately preceding fiscal quarter;
(ii) in the opinion of the Board of Directors of MMI in the
event the fair market value of such assets being disposed of
equals or exceeds $1,000,000 or a Responsible Officer of MMI in
the event that the fair market value of such assets being
disposed of is less than $1,000,000, the sale is for fair value
and is in the best interests of the Obligors; and
(iii) immediately after the consummation of the transaction
and after giving effect thereto, no Default or Event of Default
would exist;
provided, however, that for purposes of the foregoing calculation,
there shall not be included (x) the Victory Real Assets sold
pursuant to the Victory Real Assets Sale Agreement or (y) the
Victory Operating Assets sold pursuant to the Victory Operating
Assets Sale Agreement or (z) any assets the proceeds of which were
or are (A) immediately after the consummation of such sale
deposited in an escrow account with a depository institution or
trust company of the character described in clause (g) of Section
5.14 acting as escrow agent, (B) invested in Investments of the
character described in clauses (e), (f) or (g) of said Section
5.14, and (C) applied within twelve months of the date of sale of
such assets to either (1) the acquisition of assets useful and
intended to be used in the operation of the business of the
Obligors and their respective Subsidiaries as described in Section
5.5 and having a fair market value (as determined in good faith by
the Board of Directors of MMI in the event the fair market value of
such assets being disposed of equals or exceeds $1,000,000 or a
Responsible Officer of MMI in the event that the fair market value
of such assets being disposed of is less than $1,000,000) at least
equal to that of the assets so disposed of or (2) offered on a pro
rata basis towards the prepayment at any applicable prepayment
premium of Senior Indebtedness (including, without limitation, the
Notes) of MMI ranking pari passu with the Notes. It is understood
and agreed by the Obligors and each holder of the Notes by its
acceptance thereof that any such holder may decline any such offer
of prepayment, that the failure of any such holder to accept or
decline any such offer of prepayment shall be deemed to be an
election by such holder to decline such prepayment, and that if any
such offer is so accepted, the proceeds so offered towards the
prepayment of the Notes and accepted shall be prepaid as and to
the extent provided in Section 2.2.
Computations pursuant to this Section 5.15(b) shall include
dispositions made pursuant to Section 5.15(c) and computations
pursuant to Section 5.15(c) shall include dispositions made pursuant to
this Section 5.15(b)."
-5-
Section 1.5. Amendment to Section 8 of the Original Note Agreement;. (a)
Section 8.1 of the Original Note Agreement shall be, and is hereby, amended by
deleting the definition of "Consolidated Net Income" and replacing it with the
following:
""Consolidated Net Income" for any period shall mean the gross
revenues of MMI and its Subsidiaries for such period less all expenses and
other proper charges (including taxes on income and all Corporate Overhead
Expense paid or payable during such period), determined on a consolidated
basis after eliminating earnings or losses attributable to outstanding
Minority Interests, but excluding in any event:
(a) any gains or losses on the sale or other disposition of
Investments or fixed or capital assets, and any taxes on such excluded
gains and any tax deductions or credits on account of any such
excluded losses;
(b) the proceeds of any life insurance policy;
(c) net earnings and losses of any Subsidiary of MMI accrued
prior to the date it became a Subsidiary of MMI;
(d) net earnings and losses of any corporation (other than a
Subsidiary of MMI), substantially all the assets of which have been
acquired in any manner by MMI and its Subsidiaries or any Subsidiary
of MMI, realized by such corporation prior to the date of such
acquisition;
(e) net earnings and losses of any corporation (other than a
Subsidiary) with which MMI or any of its Subsidiaries shall have
consolidated or which shall have merged into or with MMI or any of its
Subsidiaries prior to the date of such consolidation or merger;
(f) net earnings of any business entity (other than a Subsidiary)
in which MMI or any of its Subsidiaries has an ownership interest
unless such net earnings shall have actually been received by MMI or
such Subsidiary in the form of cash distributions;
(g) any portion of the net earnings of any Subsidiary of MMI
which for any reason is unavailable for payment of dividends to MMI or
any of its other Subsidiaries;
(h) earnings resulting from any reappraisal, revaluation or
write-up of assets;
(i) any deferred or other credit representing any excess of the
equity in any Subsidiary of MMI at the date of acquisition thereof
over the amount invested in such Subsidiary;
-6-
(j) any gain arising from the acquisition of any Securities of
MMI or any of its Subsidiaries;
(k) any reversal of any contingency reserve, except to the extent
that provision for such contingency reserve shall have been made from
income arising during such period; and
(l) any other extraordinary gain.
Notwithstanding the foregoing, for purposes of the calculation
of "Consolidated Net Income" in determining compliance with Section
5.9, for the fiscal quarter ending September 28, 1996 "Consolidated
Net Income" shall not be reduced by the one time charge of $1,371,000
resulting from the discontinued operations of Victory."
(b) Section 8.1 of the Original Note Agreement shall be, and is hereby,
further amended by deleting the definition of "Finance Company Loan Agreement"
and replacing it with the following:
""Finance Company Loan Agreement" shall mean that certain Loan and
Security Agreement dated as of January 9, 1995 as amended March 28, 1996,
December 26, 1996 and January 22, 1997 among the Obligors, Sanwa
Business Credit Corporation, as agent and lender, and the Finance Company
Lenders named therein."
(c) Section 8.1 of the Original Note Agreement shall be, and is hereby,
further amended by deleting the definition of "Taiwanese Subsidiary" and
replacing it with the following:
""Taiwanese Subsidiary" shall mean Asbury Worldwide (Taiwan) Company
Ltd., and any Person who succeeds to all, or substantially all, of the
assets and business of Asbury Worldwide (Taiwan) Company Ltd."
(d) Section 8.1 of the Original Note Agreement shall be, and is hereby,
further amended by adding thereto the following definitions:
""MPC Revolving Credit Facility" shall mean PCI Bank omnibus
credit-line."
""Victory Operating Assets" shall mean all of the assets of Victory
other than the Victory Real Assets."
""Victory Operating Assets Sale Agreement" shall mean that certain
Agreement of Purchase and Sale dated December 27, 1996 between Victory
Acquisition Group, LLC, a Delaware limited liability company, and Victory."
""Victory Real Assets" shall mean the real property of Victory."
-7-
""Victory Real Assets Sale Agreement" shall mean that certain
Agreement of Purchase and Sale dated October 28, 1996 between Vineland
Construction Co. and Victory."
SECTION 2. WAIVER AND CONSENTS.
Section 2.1. Upon and by virtue of this Second Amendment becoming
effective as herein contemplated, the execution, delivery and performance
of the Second Amendment to Loan and Security Agreement in the form attached
hereto as Exhibit A and the execution, delivery and performance of the Third
Amendment to Loan and Security Agreement in the form attached hereto as
Exhibit B are hereby consented to and approved by the Noteholder. Any
failure of the Obligors to comply with the provisions of Section 5.19, which
failure constitutes an Event of Default under the Original Note
Agreement, as a result of the execution, delivery or performance such
Second Amendment to Loan and Security Agreement or Third Amendment to
the Loan and Security Agreement shall be deemed to have been waived by the
Noteholder.
Section 2.2. The Company understands and agrees that the waivers
contained in this Section 2 pertain only to the matters and to the extent
herein described and not to any other actions of the Obligors under, or
matters arising in connection with, the Original Note Agreement or to any
rights which you have arising by virtue of any such other actions or matters.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE OBLIGORS.
Section 3.1. To induce the Noteholder to execute and deliver this Second
Amendment to Note Agreement, each of the Obligors represents and warrants to
Noteholder (which representations shall survive the execution and delivery of
this Second Amendment to Note Agreement) that:
(a) this Second Amendment to Note Agreement has been duly authorized,
executed and delivered by it and this Second Amendment to Note Agreement
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 Original Note Agreement, as amended by this Second Amendment
to Note Agreement, constitutes the legal, valid and binding obligations,
contracts and agreements 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
Second Amendment to Note Agreement (i) has been duly authorized by all
requisite corporate action and, if required, shareholder action, (ii) does
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, or (3) 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, or (B) result in a breach or
constitute (alone or with due notice or lapse of time or both) a default
under any indenture, agreement or other instrument referred to in clause
(iii)(A)(3) of this Section 3.1(c);
-8-
(d) as of the date hereof and after giving effect to this Second
Amendment to Note Agreement, no Default or Event of Default has occurred
which is continuing;
(e) the representations and warranties set forth in Exhibit B to the
First Amendment are true and correct on and as of the Effective Date as if
made on such date; and
(f) since September 30, 1996 there has been no material adverse change
in the business, financial or other conditions of any Obligor, or in the
collateral securing of the Notes or in the prospects of any Obligor, other
than the one-time charge of $1,371,000 from the discontinued operations of
Victory.
SECTION 4. CONDITIONS PRECEDENT.
The effectiveness and validity of this Second Amendment to the Note
Agreement is subject to the satisfaction of the following conditions precedent:
(a) The Noteholder of the shall have received the following, all of which
must be satisfactory in form and substance to such Noteholder:
(i) this Second Amendment to Note Agreement, duly executed by the
Obligors;
(ii) an opinion of D'Ancona & Pflaum, special counsel to the Obligors,
to the effect that: (A) this Second Amendment to Note Agreement has been
duly authorized by all necessary corporate action on the part of the
Obligors, has been duly executed and delivered by the Obligors and
constitutes the legal, valid and binding contract of the Obligors
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally, and general principles of equity (regardless of whether
the application of such principles is considered in a proceeding in equity
or at law); (B) no approval, consent or withholding of objection on the
part of, or filing or registration or qualification with, any governmental
body, Federal, state or local, is necessary in connection with the
execution, delivery and performance of this Second Amendment to Note
Agreement or any other agreements being delivered by the Obligors in
connection with 1997 Changes; (C) the execution, delivery and performance
by the Obligors of this Second
-9-
Amendment to Note Agreement, or any other agreement being delivered in
connection with 1997 Changes do not conflict with or result in the breach
of any of the provisions of, or constitute a default under or result in the
creation or imposition of any Lien upon any property of the Obligors
pursuant to the Articles of Incorporation or By-laws of the Obligors or any
agreement, license or other instrument known to such counsel to which
either of the Obligors is a party or by which either of such Obligors may
be bound; and such opinion shall cover such other matters relating to this
Second Amendment to Note Agreement as the Noteholder may reasonably
request.
(b) This Second Amendment to Note Agreement shall have been executed
and delivered by the Noteholder.
(c) The Obligors shall have entered into amendments to the Finance
Company Loan Agreement in connection with the 1997 Changes satisfactory in
form and substance to the Noteholder.
(d) The Parent Corporation shall have delivered its consent to the
1997 Changes and reaffirmed its obligations under the Support Agreement, by
its execution and delivery of the Parent Support Letter in the form of
Exhibit C hereto.
(e) The Noteholder shall have received copies, certified as being
true, correct and complete, of the Victory Sale Agreement and evidence
satisfactory in form and substance to it that the transactions contemplated
therein have been consummated.
(f) The representations and warranties of the Obligors contained in
Section 3 of this Second Amendment to Note Agreement shall be true and
correct as of the Effective Date.
(g) The Noteholder shall have received, pursuant to Section 5.22 of
the Original Note Agreement, the executed Subsidiary Guaranty for the
Taiwanese Subsidiary and pursuant to Section 6 of the First Amendment a
stock pledge agreement between MMI and the Security Trustee regarding
the capital stock of the Taiwanese subsidiary together with the shares
of such capital stock duly endorsed in blank.
SECTION 5. MISCELLANEOUS.
Section 5.1. Effective Date; Ratification. The amendments contemplated by
this Second Amendment to Note Agreement shall be effective as of the date (the
"Effective Date") upon which (a) all conditions set forth in Section 4 hereof
have been satisfied, (b) the Noteholder shall have received a copy of the
agreements entered into by the Obligors with the Finance Company Lenders with
respect to the 1997 Changes, and (c) the fees and expenses of Chapman and Cutler
shall have been paid by the Obligors. Except as amended herein, the terms and
provisions of the Original Note Agreement are hereby ratified, confirmed and
approved in all respects.
-10-
Section 5.2. Successors and Assigns;. This Second Amendment to Note
Agreement shall be binding upon the Obligors and their respective successors and
assigns and shall inure to the benefit of the Holders and to the benefit of
their successors and assigns, including each successive holder or holders of any
Notes.
Section 5.3. Counterparts;. This Second Amendment to Note Agreement may be
executed in any number of counterparts, each executed counterpart constituting
an original but all together one and the same instrument.
Section 5.4. Fees and Expenses;. Whether or not the Effective Date occurs,
the Company agrees to pay all reasonable fees and expenses of the Holders and
special counsel to the holders in connection with the preparation of this Second
Amendment to Note Agreement.
Section 5.5. No Legend Required;. Any and all notices, requests,
certificates and other instruments may refer to the Original Note Agreement or
the Note Agreement dated as of January 1, 1995 without making specific reference
to this Second Amendment to Note Agreement, but nevertheless all such references
shall be deemed to include this Second Amendment to Note Agreement unless the
context shall otherwise require.
Section 5.6. Governing Law;. This Second Amendment to Note Agreement shall
be deemed contracts and instruments made under the laws of the State of
Illinois.
-11-
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment
to Note Agreement as of the day and year first above written.
MIDDLEBY MARSHALL INC.
By
----------------------
Its Executive Vice President
ASBURY ASSOCIATES, INC.
By
----------------------
Its Vice President
VICTORY REFRIGERATION COMPANY
By
----------------------
Its Vice President
VICTORY INTERNATIONAL, INC.
By
----------------------
Its Vice President
Accepted as of January 22, 1996.
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By
----------------------
Its
-12-