FIRST AMENDMENT
---------------
THIS FIRST AMENDMENT dated as of December 7, 2005 (this "Amendment")
among the parties hereto amends the Third Amended and Restated Credit
Agreement dated as of December 23, 2004 (the "Credit Agreement") among The
Middleby Corporation (the "Parent"), Middleby Marshall Inc. (the "Company"),
various financial institutions (the "Lenders") and Bank of America, N.A., as
administrative agent (in such capacity, the "Administrative Agent") and
certain other Loan Documents. Capitalized terms defined in the Credit
Agreement are, unless otherwise defined herein or the context otherwise
requires, used herein as defined therein.
WHEREAS, the parties hereto desire to amend the Credit Agreement as
more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1 Amendments. Subject to the satisfaction of the conditions
precedent set forth in Section 3, the Credit Agreement is amended as set forth
below in this Section 1.
1.1 Addition of Definition. The following new definition is added to
Section 1.1 in proper alphabetical sequence:
Specified Percentage means, as of the date of any repurchase
or redemption by the Parent of its common stock (and/or related stock
options), the percentage corresponding to the Leverage Ratio
(calculated on a pro forma basis giving effect to such repurchase and
all other such repurchases during the then current Computation
Period) set forth below as of the last day of the Computation Period
most recently ended prior to such date:
Leverage Ratio Specified Percentage
-------------- --------------------
< 2.00 to 1.0 50%
= 2.25 to 1.0 but > 2.00 to 1.0 40%
= 2.50 to 1.0 but > 2.25 to 1.0 32.5%
= 3.00 to 1.0 but > 2.50 25%
> 3.00 to 1.0 0%
1.2 Increase of Letter of Credit Sublimit. Section 2.1.2 is amended
by replacing the reference to "$10,000,000" with "$15,000,000".
1.3 Additional Debt Basket. Section 10.7 is amended by replacing the
reference to "$5,000,000" in clause (j) thereof with "$18,500,000".
1.4 Restricted Payments. Section 10.9 is amended by (i) redesignating
clause "(x)" thereof as clause "(xi)" and (ii) inserting the following new
clause (x) in proper numerical sequence immediately before the word "and" at
the end of clause (ix) thereof: "(x) (A) so long as no Event of Default or
Unmatured Event of Default exists or will result therefrom, the Parent may
make other repurchases or redemptions of its common stock (and/or related
stock options); provided that no redemption or repurchase shall be made if, on
the date of such redemption or repurchase (and after giving effect to such
redemption or purchase), the aggregate amount of all repurchases and
redemptions permitted solely by this clause (x) during the 12-month period
ending on the date of such repurchase or redemption would exceed the Specified
Percentage of EBITDA for the Computation Period most recently ended prior to
such repurchase or redemption and (B) the Company may pay dividends or
distributions to the Parent to the extent necessary to enable the Parent to
make such repurchases and redemptions".
SECTION 2 Representations and Warranties. Each of the Parent and the
Company represents and warrants to the Administrative Agent and the Lenders
that, immediately after the effectiveness of the amendments set forth in
Section 1 above, (a) each warranty set forth in Section 9 of the Credit
Agreement shall be true and correct in all material respects as of the date of
the execution and delivery of this Amendment by the Parent and the Company,
with the same effect as if made on such date (except to the extent stated to
relate to an earlier date, in which case such representations and warranties
shall be true and correct in all material respects as of such earlier date),
and (b) no Event of Default or Unmatured Event of Default will exist.
SECTION 3 Effectiveness. The amendments set forth in Section 1 shall
become effective as of the date hereof when the Administrative Agent has
received:
(i) counterparts of this Amendment executed by the Parent, the
Company, each Subsidiary of the Company listed on the signature pages hereto
and each Lender;
(ii) a Confirmation, substantially in the form of Exhibit A, signed
by the Parent, the Company and each Subsidiary Guarantor; and
(iii) all amendment fees payable in connection with this Amendment as
separately agreed to in writing by the Company and the Administrative Agent.
SECTION 4 Increase in Revolving Commitment Amount. The parties hereto
agree that, upon the effectiveness of this Amendment, the Revolving Commitment
of each Revolving Lender shall increase by an amount equal to such Revolving
Lender's Revolving Percentage of $40,000,000, which increases shall be deemed
to have occurred pursuant to Section 6.2.2 of the Credit Agreement
notwithstanding the failure of the Company or any Lender to deliver any
document required to be delivered pursuant to such Section in connection with
such increases. Concurrently with such increases, Schedule 2.1 to the Credit
Agreement shall be replaced by Schedule 2.1 hereto.
SECTION 5 Miscellaneous.
5.1 Continuing Effectiveness, etc. As amended hereby, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the effectiveness of this Amendment, all
references in the Credit Agreement and the other Loan Documents to "Credit
Agreement" or similar terms shall refer to the Credit Agreement as amended
hereby.
5.2 Counterparts. This Amendment may be executed in any number of
counterparts and by the different parties on separate counterparts, (including
by facsimile) and each such counterpart shall be deemed to be an original but
all such counterparts shall together constitute one and the same Amendment.
5.3 Governing Law. This Amendment and the rights and obligations of
the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Illinois applicable to contracts
made and to be performed entirely within such State.
5.4 Successors and Assigns. This Amendment shall be binding upon the
Parent, the Company, the Lenders and the Administrative Agent and their
respective successors and assigns, and shall inure to the benefit of the
Parent, the Company, the Lenders and the Administrative Agent and the
respective successors and assigns of the Lenders and the Administrative Agent.
5.5 Addition of Guarantors; etc. The Company, the Parent, the
Required Lenders and the Subsidiaries of the Company party hereto agree that,
in addition to any procedure set forth in any Loan Document, (a) a Subsidiary
may be added as a party to the Guaranty, the Security Agreement and/or the
U.S. Pledge Agreement on or after the date hereof by executing and delivering
to the Administrative Agent a Joinder Agreement substantially in the form of
Exhibit B (a "Joinder Agreement"), (b) the Schedules to the Guaranty, the
Security Agreement and/or the U.S. Pledge Agreement, as applicable, may be
supplemented by the corresponding Schedules to the applicable Joinder
Agreement upon the execution and delivery of such Joinder Agreement, without
any further action by the Company, the Parent, any Subsidiary of the Company,
any Lender or the Administrative Agent, (c) Schedule I to the U.S. Pledge
Agreement may be amended with the consent of the Administrative Agent and the
Company to add shares of stock of a Subsidiary required to be pledged pursuant
to Section 10.12 of the Credit Agreement and to delete Collateral (as defined
in the U.S. Pledge Agreement) sold, transferred or otherwise disposed of in a
transaction permitted by the Credit Agreement and (d) the Guaranty, the
Security Agreement and the U.S. Pledge Agreement shall be deemed amended as
set forth above.
5.6 Alkar Acquisition. The Required Lenders consent to the delivery
by Alkar-RapidPak, Inc. (the "Operating Company") of the documents described
in Section 10.22 of the Credit Agreement with respect to the real property
owned by the Operating Company after the acquisition of the Operating Company
by the Borrower, so long as such documents are delivered to the Administrative
Agent not later than December 30, 2005.
Delivered as of the day and year first above written.
MIDDLEBY MARSHALL INC.
By: /s/ Xxxxxxx X. XxxxXxxxxx
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Title: Chief Financial Officer
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THE MIDDLEBY CORPORATION
By: /s/ Xxxxxxx X. XxxxXxxxxx
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
MIDDLEBY WORLDWIDE, INC.
XXXXXXXX HOLDINGS INC.
X.X. XXXXXXXX CORPORATION
PITCO FRIALATOR, INC.
MAGIKITCH'N INC.
CLOVERLEAF PROPERTIES, INC.
MIDDLEBY MARSHALL HOLDING LLC
By: /s/ Xxxxxxx X. XxxxXxxxxx
--------------------------------------
Title: Chief Financial Officer
-----------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Title: Assistant Vice President
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BANK OF AMERICA, N.A., as an Issuing
Lender, as Swing Line Lender and as
a Lender
By: /s/ Xxxxx X. XxXxxxx
---------------------------------------
Title: Senior Vice President
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LASALLE BANK NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender
By: /s/ Xxx Xxxxxxxx
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Title: Senior Vice President
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XXXXX FARGO BANK, N.A., as Documentation
Agent and as a Lender
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Title: Senior Vice President
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THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxx Xxxxx
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Title: Vice President
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FIFTH THIRD BANK (CHICAGO)
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Title: Vice President
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OAK BROOK BANK
By: /s/ Xxxxx Xxxxxx
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Title: Vice President
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COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK
B.A., "RABOBANK NEDERLAND", NEW YORK
BRANCH
By: /s/ Xxxx Xxxxxxxxx
---------------------------------------
Title: Vice President
------------------------------------
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Title: Executive Director
------------------------------------
EXHIBIT A
CONFIRMATION
Dated as of December 7, 2005
To: Bank of America, N.A., individually and as Administrative Agent, and
the other financial institutions party to the Credit Agreement
referred to below
Please refer to (a) the Third Amended and Restated Credit Agreement
dated as of December 23, 2004 (the "Credit Agreement") among The Middleby
Corporation, Middleby Marshall Inc., various financial institutions (the
"Lenders") and Bank of America, N.A., as administrative agent (in such
capacity, the "Administrative Agent") and (b) the First Amendment dated as of
the date hereof (the "Amendment") to the Credit Agreement.
Each of the undersigned confirms to the Administrative Agent and the
Lenders that, after giving effect to the Amendment and the transactions
contemplated thereby, each Loan Document (as defined in the Credit Agreement)
to which such undersigned is a party continues in full force and effect and is
the legal, valid and binding obligation of such undersigned, enforceable
against such undersigned in accordance with its terms, subject to bankruptcy,
insolvency, and similar laws affecting the enforceability of creditors' rights
generally and to general principles of equity.
THE MIDDLEBY CORPORATION
MIDDLEBY MARSHALL INC.
MIDDLEBY WORLDWIDE, INC.
XXXXXXXX HOLDINGS INC.
X.X. XXXXXXXX CORPORATION
PITCO FRIALATOR, INC.
MAGIKITCH'N INC.
CLOVERLEAF PROPERTIES, INC.
MIDDLEBY MARSHALL HOLDING LLC
By: ___________________________
Name Printed: _________________
Title: ________________________
EXHIBIT B
FORM OF JOINDER AGREEMENT
THIS JOINDER AGREEMENT (this "Agreement") dated as of
_____________, 200[__] is between _____________, a _______________ (the
"Subsidiary"), and Bank of America, N.A. in its capacity as Administrative
Agent under the Credit Agreement (as amended, modified, restated or
supplemented from time to time, the "Credit Agreement") dated as of December
23, 2004 among The Middleby Corporation, Middleby Marshall Inc., the Lenders
party thereto and Bank of America, N.A., as Administrative Agent. All of the
defined terms in the Credit Agreement are incorporated herein by reference.
Pursuant to the requirements of Section 10.12 of the Credit
Agreement, the Subsidiary hereby agrees with the Administrative Agent, for the
benefit of the Lender Parties (as defined in the Security Agreement referred
to below), as follows:
1. The Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, and notwithstanding any contrary
provision of the Subsidiary Guaranty or the Credit Agreement, the Subsidiary
will be a party to the Subsidiary Guaranty and shall have all of the rights
and obligations as an "undersigned" thereunder as if it had executed the
Subsidiary Guaranty. The Subsidiary hereby ratifies, as of the date hereof,
and agrees to be bound by, all of the terms, provisions and conditions
applicable to the "undersigned" contained in the Subsidiary Guaranty. Without
limiting the generality of the foregoing terms of this paragraph 1, the
Subsidiary hereby jointly and severally, unconditionally and irrevocably, as
primary obligor and not merely as surety, guarantees the full and prompt
payment when due, whether by acceleration or otherwise, and at all times
thereafter, of all Liabilities (as defined in the Subsidiary Guaranty)
strictly in accordance with the terms of the Subsidiary Guaranty; provided
that the liability of the Subsidiary under the Subsidiary Guaranty shall be
limited to the maximum amount of the Liabilities which the Subsidiary may
guaranty without rendering the Subsidiary Guaranty void or voidable with
respect to the Subsidiary under any fraudulent conveyance or fraudulent
transfer law.
2. The Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, and notwithstanding any contrary
provision of the Security Agreement, the Subsidiary will be a party to the
Security Agreement, and shall have all the rights and obligations of a
"Debtor" (as such term is defined in the Security Agreement) thereunder as if
it had executed the Security Agreement. The Subsidiary hereby ratifies, as of
the date hereof, and agrees to be bound by, all of the terms, provisions and
conditions applicable to the "Debtors" contained in the Security Agreement.
Without limiting the generality of the foregoing terms of this paragraph 2, as
security for the payment and performance of all Liabilities (as defined in the
Security Agreement), the Subsidiary hereby assigns, pledges and conveys to the
Administrative Agent for the benefit of the Lender Parties, and grants to the
Administrative Agent for the benefit of the Lender Parties a continuing
security interest in, all of the Subsidiary's right, title, and interest in
the Collateral (as defined in the Security Agreement) of the Subsidiary. The
Subsidiary hereby makes the representations and warranties set forth in
Section 3 of the Security Agreement, with respect to itself, to the
Administrative Agent as of the date hereof (and attached hereto are
supplements to Schedules I through IV to the Security Agreement setting forth
the relevant information with respect to the Subsidiary). The Subsidiary has
no commercial tort claims (as such term is defined in the UCC (as defined in
the Security Agreement)) as of the date hereof.
3. [The Subsidiary hereby acknowledges, agrees and confirms
that, by its execution of this Agreement, and notwithstanding any contrary
provision of the U.S. Pledge Agreement, the Subsidiary will be a party to the
U.S. Pledge Agreement, and shall have all the rights and obligations of a
"Pledgor" thereunder as if it had executed the U.S. Pledge Agreement. The
Subsidiary hereby ratifies, as of the date hereof, and agrees to be bound by,
all the terms, provisions and conditions applicable to the "Pledgors"
contained in the U.S. Pledge Agreement. Without limiting the generality of the
foregoing terms of this paragraph 3, as security for the payment of all
Liabilities (as defined in the U.S. Pledge Agreement), the Subsidiary hereby
pledges to the Administrative Agent for the benefit of the Lender Parties, and
grants to the Administrative Agent for the benefit of the Lender Parties a
continuing security interest in, all of the Collateral (as defined in the U.S.
Pledge Agreement) of the Subsidiary, including the shares listed on the
attached Schedule I relating to the U.S. Pledge Agreement.][IF APPLICABLE]
4. Unless otherwise notified to the Administrative Agent in
accordance with the terms of the Subsidiary Guaranty[or][,] the Security
Agreement[ or the U.S. Pledge Agreement], as applicable, the address of the
Subsidiary for purposes of all notices and other communications shall be the
address of the Subsidiary's chief executive office set forth on the attached
Schedule I relating to the Security Agreement.
5. The Subsidiary hereby waives acceptance by the
Administrative Agent and the Lender Parties of the guaranty by the Subsidiary
upon the execution of this Agreement by the Subsidiary.
6. This Agreement may be executed in two or more
counterparts (including by facsimile), each of which shall constitute an
original but all of which when taken together shall constitute one contract.
7. THIS AGREEMENT IS GOVERNED BY THE LAWS OF THE STATE OF
ILLINOIS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (EXCEPT 735 ILLINOIS
COMPILED STATUTE ss.105/5-5).
8. The information set forth in the attached Schedule I
relating to the Subsidiary Guaranty, the attached Schedules I through IV
relating to the Security Agreement [and the attached Schedule I relating to
the U.S. Pledge Agreement] shall be deemed to supplement the applicable
schedules to the Subsidiary Guaranty[,][and] the Security Agreement[ and the
U.S. Pledge Agreement], respectively.
IN WITNESS WHEREOF, the Subsidiary has caused this Joinder
Agreement to be duly executed by its authorized officers and the
Administrative Agent, for the ratable benefit of the Lender Parties, has
caused the same to be accepted by its authorized officer, as of the day and
year first above written.
[SUBSIDIARY]
By: ________________________
Name: ________________________
Title: ________________________
Acknowledged and accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By: ________________________
Name: ________________________
Title: ________________________
SCHEDULE 2.1
LENDERS AND COMMITMENTS AND PERCENTAGES
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
Lender Revolving Revolving Outstanding Principal Term Percentage Total Percentage
Commitment Percentage Amount of Term Loan as
of December 7, 2005
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
Bank of America, N.A. $27,625,000 21.250000000% $13,281,250.00 21.250000000% 21.250000000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
LaSalle Bank National $26,000,000 20.000000000% $12,500,000.00 20.000000000% 20.000000000%
Association
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
Xxxxx Fargo Bank, N.A. $24,375,000 18.750000000% $11,718,750.00 18.750000000% 18.750000000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
Rabobank Nederland $17,468,750 13.437500000% $8,398,437.50 13.437500000% 13.437500000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
Fifth Third Bank (Chicago) $17,468,750 13.437500000% $8,398,437.50 13.437500000% 13.437500000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
The Northern Trust Company $11,375,000 8.750000000% $5,468,750.00 8.750000000% 8.750000000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
Oak Brook Bank $5,687,500 4.375000000% $2,734,375.00 4.375000000% 4.375000000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
TOTALS $130,000,000 100.000000000% $62,500,000.00 100.000000000% 100.000000000%
-------------------------- ----------------- ---------------- ------------------------- -------------------- --------------------
