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EXHIBIT (b)(6)
FOURTH AMENDMENT AND WAIVER
DATED AS OF OCTOBER 16, 2000 TO
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MARCH 18, 1998
THIS FOURTH AMENDMENT AND WAIVER, dated as of October 16, 2000
(this "WAIVER") 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, N.A. (formerly known as Bank of America National Trust and
Savings Association), a national banking association (the "BANK").
RECITALS:
A. The Borrowers and the Bank have entered into a
Multicurrency Credit Agreement dated as of March 18, 1998, as amended by that
certain First Amendment dated as of July 4, 1998, that certain Second Amendment
and Waiver dated as of March 31, 1999 and that certain Third Amendment dated as
of March 31, 2000 (as amended, modified or supplemented, 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 have requested, and the Bank has agreed, that
the Bank shall waive any Default or Event of Default arising out of Middleby's
redemption of its capital stock.
C. The Borrowers and the Bank wish to amend the Agreement as
hereinafter set forth.
D. Therefore, the parties hereto agree as follows:
1. AMENDMENT TO THE AGREEMENT.
1.1 SECTION 7.13(a) MINIMUM TANGIBLE NET WORTH. Section
7.13(a) of the Agreement is hereby amended as of the date hereof by deleting it
in its entirety and inserting the following in lieu thereof:
"(a) MINIMUM TANGIBLE NET WORTH. Middleby and its
Subsidiaries on a consolidated basis shall maintain at
all times Tangible Net Worth equal to or greater than
the sum of (a) an amount equal to 90% of Tangible Net
Worth as of September 30, 2000 MINUS (b) the dollar
value of capital stock of Middleby redeemed by Middleby
between September 30, 2000 and December 31, 2000, which
shall not exceed $12,000,000, PLUS (c) an amount equal
to 50% of Net Income earned during each of its fiscal
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quarters beginning with its fiscal quarter commencing
October 1, 2000 (without reduction for net losses, if
any)."
2. CONSENT AND WAIVER. The Bank hereby consents to, and waives
any Default or Event of Default and notice requirement occurring or arising
under the Agreement or any Loan Document upon the occurrence of or as a result
of, redemption of the common stock of Middleby so long as the aggregate
redemption price to be paid by Middleby in connection with redemption of its
common stock shall not exceed $12,000,000.
3. WARRANTIES. To induce the Bank to enter into this
Amendment, the Borrowers warrant that:
3.1 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.
3.2 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.
3.3 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.
4. CONDITIONS PRECEDENT. This Amendment shall be effective as
of the date first written above upon the satisfaction of each of the following
conditions precedent:
4.1 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.
4.2 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.
4.3 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 3 of this Amendment shall be true and correct as though made on
such date, except for such changes as are specifically permitted under the
Amendment.
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5. GENERAL.
5.1 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.
5.2 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.
5.3 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.
5.4 CONFIRMATION OF THE AGREEMENT. Except as modified hereby,
the Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
5.5 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 modified hereby.
5.6 COUNTERPARTS. This Amendment may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.
5.7 REAFFIRMATION OF GUARANTY. Middleby and Middleby
Worldwide, Inc. (formerly known as Asbury 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.
[signature page follows]
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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.
MIDDLEBY MARSHALL INC., as Borrower
and Guarantor
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY PHILIPPINES CORPORATION,
as Borrower
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY JAPAN CORPORATION, as
Borrower
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY TAIWAN CORPORATION
(f/k/a Asbury Worldwide (Taiwan) Co., Ltd.), as
Borrower
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY WORLDWIDE, INC. (f/k/a Asbury
Associates, Inc.), as Borrower and Guarantor
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY KOREA CORPORATION (f/k/a
Asbury Worldwide Korea Co., Ltd.), as Borrower
By: /s/ David B. Baker
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Name: David B. Baker
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Title: Vice President & CFO
INTERNATIONAL CATERING EQUIPMENT
AND SUPPLIES, INC., as Borrower
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY MEXICO, S.A. DE C.V. (f/k/a
Asbury Mexico, S.A. DE C.V.), as Borrower
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
MIDDLEBY WORLDWIDE SPAIN, S.L. (f/k/a
Asbury, S.L.), as Borrower
By: /s/ David B. Baker
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Name: David B. Baker
Title: Vice President & CFO
BANK OF AMERICA, N.A. (successor to Bank
of America National Trust and Savings
Association), as Bank
By:___________________________________
Name:
Title:
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