EXHIBIT (b)(2)
FIRST AMENDMENT
DATED AS OF JULY 4, 1998 TO
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MARCH 18, 1998
THIS FIRST AMENDMENT, dated as of July 4, 1998 (this "AMENDMENT") is
entered into among MIDDLEBY MARSHALL, INC., a Delaware corporation
("MIDDLEBY"), the existing Subsidiaries of Middleby (together with Middleby,
individually, a "BORROWER" and collectively, the "BORROWERS"), and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, a national banking
association, having its principal office at 000 Xxxxx XxXxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "BANK").
RECITALS:
A. The Borrowers and the Bank have entered into a Multicurrency Credit
Agreement dated as of March 18, 1998 (the "AGREEMENT"; the terms defined in
the Agreement and not otherwise defined herein shall be used herein as
defined in the Agreement).
B. The Borrowers and the Bank wish to amend the Agreement as hereinafter
set forth.
C. Therefore, the parties hereto agree as follows:
1. AMENDMENT TO THE AGREEMENT.
1.1 SECTION 7.9 OF THE AGREEMENT. SECTION 7.9, RESTRICTED PAYMENTS, of
the Agreement is hereby amended as of the date hereof by deleting it in its
entirety and inserting the following in lieu thereof:
"7.9 RESTRICTED PAYMENTS. Middleby shall not, and shall not suffer
or permit any of its Subsidiaries to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its
capital stock, or purchase, redeem or otherwise acquire for value any
shares of its capital stock or any warrants, rights or options to acquire
such shares, now or hereafter outstanding, except:
(a) in the case of Middleby, dividends to pay Corporate Overhead
Expense in an amount not to exceed $1,000,000 in any fiscal year,
unless before or after giving effect thereto (on a pro forma basis) a
Default or Event of Default has occurred and is continuing;
(b) in the case of Middleby, dividends in an amount not to exceed
an amount equal to 50% of Net Income earned during the four
(4) most recently completed fiscal quarters determined in accordance with
GAAP, unless before or after giving effect thereto (on a proforma basis)
a Default or Event of Default has occurred and is continuing; for purposes
of calculating dividends, permitted under this paragraph (b), dividends
permitted under paragraph (a) above shall not be included;
(c) Middleby may purchase, redeem or otherwise acquire or retire any
class of its stock, if before and after giving effect thereto (on a
proforma basis) no Default or Event of Default has occurred or is
continuing; and
(d) in the case of the Subsidiaries of Middleby, any such payment,
distribution, purchase, redemption or other acquisition, if before and
after giving effect thereto (on a pro forma basis) no Default or Event
of Default has occurred and is continuing."
2. WARRANTIES. To induce the Bank to enter into this Amendment, the
Borrowers warrant that:
2.1 AUTHORIZATION. The Borrowers are duly authorized to execute and
deliver this Amendment, and are and will continue to be duly authorized to
borrow monies under the Agreement, as amended hereby, and to perform their
obligations under the Agreement, as amended hereby.
2.2 NO CONFLICTS. The execution and delivery of this Amendment, and the
performance by the Borrowers of their respective obligations under the
Agreement, as amended hereby, do not and will not conflict with any provision
of law or of the charter or by-laws of each Borrower or of any agreement
binding upon each Borrower.
2.3 VALIDITY AND BINDING EFFECT. The Agreement, as amended hereby, is a
legal, valid and binding obligation of the Borrowers, enforceable against the
Borrowers in accordance with its respective terms, except as enforceability
may be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
3. CONDITIONS PRECEDENT. This Amendment shall be effective as of the
date first written above upon the satisfaction of each of the following
conditions precedent:
3.1 DOCUMENTATION. The Borrowers shall have delivered to the Bank this
Amendment duly executed and dated the date hereof, in form and substance
satisfactory to the Bank.
3.2 NO DEFAULT. As of the date hereof, after giving effect to this
Amendment, no Event of Default or Default shall have occurred and be
continuing.
3.3 WARRANTIES. As of the date hereof, after giving effect to this
Amendment, the representations and warranties in ARTICLE V of the Agreement
and in SECTION 2 of this
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Amendment shall be true and correct as though made on such date, except for
such changes as are specifically permitted under the Agreement.
4. GENERAL.
4.1 EXPENSES. The Borrowers agree to pay the Bank upon demand for all
reasonable expenses, including reasonable attorneys' and legal assistants'
fees (which attorneys and legal assistants may be employees of the Bank),
incurred by the Bank in connection with the preparation, negotiation and
execution of this Amendment.
4.2 LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED THAT THE BANK SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
4.3 SUCCESSORS. This Amendment shall be binding upon the Borrowers and
the Bank and their respective successors and assigns, and shall inure to the
benefit of the Borrowers and the Bank and the successors and assigns of the
Bank.
4.4 CONFIRMATION OF THE AGREEMENT. Except as amended hereby, the
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
4.5 REFERENCES TO THE AGREEMENT. Each reference in the Agreement to
"this Agreement," "hereunder," "hereof," or words of like import, and each
reference to the Agreement in any and all instruments or documents provided
for in the Agreement or delivered or to be delivered thereunder or in
connection therewith, shall, except where the context otherwise requires, be
deemed a reference to the Agreement as amended hereby.
4.6 COUNTERPARTS. This Amendment may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
5. REAFFIRMATION OF GUARANTY. Middleby and Xxxxxx Associates, Inc., as
guarantors (the "GUARANTORS") pursuant to that certain Continuing Guaranty
(Multicurrency) dated as of March 18, 1998 (the "GUARANTY") executed by the
Guarantors in favor of the Bank hereby acknowledge and affirm to the Bank
that notwithstanding the execution and delivery of this Amendment, the
Guarantors hereby re-confirm the Guaranty and are and continue to be
primarily liable for the Liabilities, as defined in the Guaranty.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed at Chicago, Illinois by their respective officers thereunto duly
authorized as of the date first written above.
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XXXXXXXX MARSHALL INC., as Borrower and Guarantor
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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MIDDLEBY PHILIPPINES CORPORATION, as
Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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MIDDLEBY JAPAN CORPORATION, as
Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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XXXXXX WORLDWIDE (TAIWAN) CO., LTD.,
as Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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XXXXXX ASSOCIATES, INC., as Borrower and Guarantor
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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XXXXXX WORLDWIDE KOREA CO., LTD., as Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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INTERNATIONAL CATERING EQUIPMENT
AND SUPPLIES, INC., as Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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XXXXXX MEXICO, S.A. DE C.V., as
Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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XXXXXX, X.X., as Borrower
By: /s/ Xxxx Xxxxxxxx
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Title: Executive Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Bank
By: /s/
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Title: Senior Vice President
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