SECURITIES AND EXCHANGE COMMISSIONWashington, D.C. 20549FORM 8-KCURRENT REPORTPursuant to Section 13
or 15(d) of the Date of Report (Date of earliest event reported): December 21, 2001 THE MIDDLEBY CORPORATION Commission File No. 1-9973 |
Delaware (State or Other Jurisdiction of Incorporation or Organization) |
36-3352497 (I.R.S. Employer Identification No.) |
1400 Toastmaster Drive, Elgin, Illinois (Address of Principal Executive Offices) |
60120 (Zip Code) |
Registrants Telephone No., including Area Code | (847) 741-3300 |
Item 2. Acquisition or Disposition of AssetsOn December 21, 2001 (the Closing Date), The Middleby Corporation (Middleby) completed the acquisition of substantially all of the assets of the Blodgett commercial cooking products business (the Acquisition) of Maytag Corporation, a Delaware corporation (Maytag). Blodgett manufactures products under the Blodgett, Pitco Frialator, Magikitchn and Blodgett Combi brands. The Acquisition was effected in accordance with the terms of a Stock Purchase Agreement by and between Middleby and Maytag, dated as of August 30, 2001, as amended by Amendment No. 1, dated December 21, 2001 (the Purchase Agreement). As consideration for the Acquisition, Middleby delivered to Maytag: (i) $74,000,000 in cash; and (ii) $21,000,000 in subordinated notes. The amount of consideration was determined by arms-length negotiation, and there was no material relationship between Maytag and Middleby or any of its affiliates, any of its directors or officers, or any associate of any such director or officer. The Amendment to the Purchase Agreement is filed herewith as Exhibit 2.2. The description of the transaction contained herein is qualified in its entirety by reference to the Purchase Agreement, which is incorporated herein by reference as Exhibit 2.1, and the Amendment thereto. Financing for the Acquisition included a $68 million senior bank facility led by Bank of America (Exhibit 4.3 filed herewith) and secured by substantially all of the assets of Middleby and its direct and indirect subsidiaries, including the Blodgett companies acquired in the Acquisition. Additional financing included $25 million of senior subordinated note financing from American Capital Strategies as well as $21 million in subordinated notes due to Maytag (Exhibits 4.1 and 4.2 filed herewith). The senior bank facility loan amortizes over four years at an interest rate that initially starts at an average spread of approximately 3.3% over the floating Eurodollar interest rate. That spread may decrease over time based upon certain prescribed leverage performance ratios. See Exhibit 4.3 for more details. The $25 million of senior subordinated note financing is scheduled to be repaid in 4.75 years and carries a fixed interest rate of 13.5% cash interest and 2% interest payable in additional notes. In addition, these notes will require the issuance of warrant rights to the noteholder to purchase Middleby common stock at $4.67 per share. The aggregate of the warrants to be issued equal up to a maximum of 8.25% of the outstanding common stock of Middleby as of the Closing Date. The number of warrants that may be exercised may be decreased based upon certain prescribed rates of return earned by the noteholder on this financing transaction. The $21 million of subordinated notes due to Maytag are scheduled to be repaid in five years and carry fixed interest rates of 12% to 13.5%. The Acquisition purchase price and the associated amount of subordinated notes due to Maytag may be adjusted after the Closing Date based upon the change in adjusted working capital of the acquired assets. See Exhibits 2.1, 2.2, 4.1 and 4.2 for more details. -1- |
The financing documents, including the documents ancillary thereto, between Middleby and American Capital Strategies (which include a Note and Equity Purchase Agreement, Warrant Agreement and Conditional Warrant Agreement) have not been completely finalized and therefore have not been filed as exhibits to this Form 8-K. These documents will be filed by amendment as soon as final copies have been executed. Item 7. Financial Statements, Pro Forma Financial Information and Exhibits |
(a) | Financial statements of business acquired. |
Not filed herewith; to be filed by amendment. Pursuant to Item 7(a)(4) of Form 8-K, the Registrant hereby undertakes to file such information as soon as it is available but no later than March 8, 2002. |
(b) | Pro forma financial information. |
Not filed herewith; to be filed by amendment. Pursuant to Item 7(a)(4) of Form 8-K, the Registrant hereby undertakes to file such information as soon as it is available but no later than March 8, 2002. |
(c) | Exhibits. |
2.1 | Stock Purchase Agreement, dated August 30, 2001, between The Middleby Corporation and Maytag Corporation, incorporated by reference to Middlebys Form 10-Q Exhibit 2.1, for the fiscal period ended September 29, 2001, filed on November 13, 2001. |
2.2 | Amendment No. 1 to Stock Purchase Agreement, dated December 21, 2001, between The Middleby Corporation and Maytag Corporation. |
4.1 | Subordinated Promissory Note Agreement, dated December 21, 2001, between The Middleby Corporation and Maytag Corporation. |
4.2 | Subordinated Promissory Note Agreement, dated December 21, 2001, between The Middleby Corporation and Maytag Corporation. |
-2- |
4.3 | Credit Agreement, dated December 21, 2001, between The Middleby Corporation, Middleby Marshall Inc., Fleet National Bank and Bank of America. |
4.4 | Deed of Charge and Memorandum of Deposit, dated December 21, 2001, between G.S. Blodgett Corporation and Bank of America. |
4.5 | Subsidiary Guaranty, dated December 21, 2001, between The Middleby Corporation, Middleby Marshall Inc. and Bank of America. |
4.6 | Security Agreement, dated December 21, 2001, between The Middleby Corporation, Middleby Marshall Inc. and its subsidiaries and Bank of America. |
4.7 | U.S. Pledge Agreement, dated December 21, 2001, between The Middleby Corporation, Middleby Marshall Inc. and its subsidiaries and Bank of America. |
SIGNATUREPursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. |
Date January 7, 2002 |
THE MIDDLEBY CORPORATION (Registrant) By: /s/ David B. Baker David B. Baker Vice President, Chief Financial Officer and Secretary |
Exhibit 2.2 AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENTReference is made to the Stock Purchase Agreement dated as of August 30, 2001 (the Stock Purchase Agreement) between Maytag Corporation, a Delaware corporation (Seller), and The Middleby Corporation, a Delaware corporation (Buyer). Capitalized terms used but not defined herein have the meanings set forth in the Stock Purchase Agreement. WHEREAS, Seller and Buyer desire to amend the Stock Purchase Agreement and set forth certain other agreements and understandings and desire that, except as set forth herein, the Stock Purchase Agreement shall remain in full force and effect. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agree to amend the Stock Purchase Agreement as follows: 1. Article I is hereby amended by adding the following terms: Note has the meaning specified in Section 3.1(b)(ii). Second Note has the meaning specified in Section 3.1(b)(iii). 2. Section 3.1(b) is amended and restated to read as follows: |
(b) Subject to fulfillment or waiver (where permissible) of the conditions set forth in Article IX, |
(i) Buyer will deliver to Seller at the Closing: |
(i) $74,000,000 to be paid in cash by wire transfer of immediately available funds to the bank account or accounts specified by Seller by written notice delivered to Buyer by Seller at least two business days before the Closing Date, |
(ii) $15,000,000 to be paid in the form of a subordinated note substantially in the form of Exhibit B-1 attached hereto (the Note); and |
(iii) $6,000,000 to be paid in the form of a subordinated note substantially in the form of Exhibit B-2 attached hereto (the Second Note). |
3. Section 3.2 (d) is hereby amended by changing the second word from Seller to Buyer. |
4. Section 8.3(f) is hereby amended and restated to read as follows: |
(f) Retiree Benefits. On or after the Closing Date, Seller shall have the liability and obligation for, and neither Buyer nor any of its Affiliates shall have any liability or obligation for, providing retiree medical benefits in accordance with Sellers retiree medical policy in effect from time to time to former employees of the Company or any of the Subsidiaries who as of the Closing Date have retired from the Company or any of the Subsidiaries, or who are eligible to retire from the Company or any of the Subsidiaries on December 31, 2001 and who retire from the Company or any of the Subsidiaries on or prior to January 31, 2002. Nothing in this Agreement shall cause Buyer, the Company or any of their Affiliates to have any liability for providing retiree medical or life insurance benefits after the Closing. |
5. Section 11.1 is hereby amended by adding the following as Section 11.1(d): |
(d) Seller may, at its option and upon written notice to Buyer, satisfy up to 6.3% of any amount owed to any Buyer Group Member under this Section 11.1(a)(i)or 11.1(a)(ii) by offsetting such amount (i) first, against the interest owed by Buyer under the Second Note and (ii) second, against the principal amount owed by Buyer under the Second Note. Upon receipt by Buyer of any such notice, both the amount owed under the Second Note and the amount owed by Seller under this Section 11.1(a)(i) or 11.1(a)(ii), as the case may be, shall be automatically reduced by the amount offset pursuant to this Section 11.1(d). The rights set forth in Section 11.1(c) and this Section 11.1(d) may be exercised independently or together, at Sellers discretion. |
6. Exhibit B is hereby replaced by the forms of note attached as Exhibit B-1 and B-2 hereto. 7. Exhibit C is hereby replaced with the form of Subordination Agreement attached as Exhibit C hereto. 8. Schedules 5.3, 5.4, 5.6, 5.7, 5.9, 5.11(a), 5.11(c), 5.11(d), 5.11(f), 5.13, 5.14, 5.16(a), 5.16(b), 5.16(c), 5.16(d), 5.17, 5.18, 5.26(a) and 7.6 are amended and restated to read as set forth in Annex I hereto. This Amendment No. 1 may be executed in counterparts, all of which shall be considered one and the same agreement. * * * * * 2 |
IN WITNESS WHEREOF, this Amendment No. 1 has been executed and delivered by or on behalf of the parties as of this 21st day of December, 2001. |
MAYTAG CORPORATION By: /s/ Roger K. Scholten Roger K. Scholten Senior Vice President and General Counsel |
THE MIDDLEBY CORPORATION Name: /s/ Selim Bassoul Selim Bassoul Chief Executive Officer and President |
Exhibit 4.1 |
$15,000,000 | December 21, 2001 |
SUBORDINATED PROMISSORY NOTE FOR VALUE RECEIVED, The Middleby Corporation, a Delaware corporation (the Company), promises to pay to the order of Maytag Corporation (together with its successors, endorsees and assigns, Maytag) on or prior to December 15, 2006 the principal amount of Fifteen Million and 00/100 Dollars ($15,000,000), as such amount may be changed as described herein. The Company further agrees to pay interest on the principal amount of this Note from time to time outstanding at 12% per annum. Interest shall be computed for the actual number of days elapsed for a year consisting of 365 or, if applicable, 366 days. Such interest shall be payable on the last business day of June and December of each year, beginning on June 28, 2002, and at maturity. The principal amount of this Note may be (a) changed as provided in Section 3.3 of the Stock Purchase Agreement (as defined in the Subordination Agreement referred to below) or (b) decreased as the result of any offset by the Company permitted by Section 2 of the Subordination Agreement against amounts payable to the Company by Maytag. All payments of principal hereof and interest hereon shall be payable in lawful currency of the United States of America; provided that (a) interest payable on June 28, 2002 and December 31, 2002 shall be paid by the issuance of additional subordinated promissory notes in substantially the form hereof (Additional Subordinated Notes); and (b) if and to the extent that any interest scheduled to be paid on any date thereafter may not be paid without violating the terms of the Subordination Agreement, such interest shall be paid by the issuance of an Additional Subordinated Note in a principal amount equal to such interest. As used herein, Senior Subordinated Debt means Senior Debt (as defined in the Subordination Agreement) that is subordinated to other Senior Debt. Maytag, and each other holder hereof by its acceptance hereof, covenants and agrees that all payments of principal and interest on this Note are subordinated in right of payment to the prior payment in full in cash of all Senior Debt pursuant to, and to the extent provided in, the Subordination Agreement dated as of December __, 2001 (as amended, restated or otherwise modified from time to time, the Subordination Agreement) issued by Maytag in favor (a) Bank of America, N.A., as administrative agent (in such capacity, together with any successor or assign in such capacity the Administrative Agent) for certain lenders (the Lenders) under a Credit Agreement dated as of the date hereof among the Company, Middleby Marshall Inc. (MMI), the Administrative Agent and the Lenders (as amended, restated replaced, refinanced, extended or renewed from time to time, the Credit Agreement), (b) American Capital Financial Services, Inc., as administrative agent (the Agent) for certain securities purchasers (the Purchasers) under a Note and Equity Purchase Agreement dated as of the date hereof among MMI, the Company, the Agent and the Purchasers (as amended, restated, replaced, refinanced, extended or renewed from time to time, the Note Agreement) and (c) any other holders of Senior Debt. |
If any Senior Debt is accelerated as a result of any event of the type described in Section 12.1.3 of the Credit Agreement in effect on the date of this Note, then the unpaid principal amount of this Note shall become immediately due and payable. In addition, Maytag may, by notice to the Company, the Administrative Agent and the Agent, declare the unpaid principal amount of this Note, together with interest thereon, to be immediately due and payable upon the occurrence of any of the following events: |
(a) Any Change in Control (as defined in the Credit Agreement in effect on the date of this Note). |
(b) The sale (except for the sale of inventory in the ordinary course of business) of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole. |
(c) Any Senior Debt shall be accelerated or the Company shall fail to pay within five days after becoming due (whether at maturity, by acceleration or otherwise) any Senior Debt in an aggregate principal amount of $1,000,000 or more. |
(d) The Company or any subsidiary shall make any payment which is prohibited under Section 10.9 of the Credit Agreement in effect on the date of this Note. |
(e) The Company or any subsidiary shall make any Acquisition (as defined in the Credit Agreement as of the date of this Note) without the prior written consent of Maytag if, after giving effect to such Acquisition, the aggregate principal amount of all Senior Debt (including unfunded commitments with respect thereto) exceeds $100,000,000. |
(f) The Company or any subsidiary shall create or permit to exist any lien or other encumbrance on its assets, other than (i) liens and encumbrances permitted by the Credit Agreement as of the date of this Note and (ii) liens or other encumbrances securing obligations and liabilities under the Credit Agreement or the Note Agreement (including, without limitation, in connection with replacements, refinancings, extensions or renewals of the Credit Agreement and/or the Note Agreement). |
(g) The Company or any subsidiary shall issue any Debt (as defined in the Credit Agreement as of the date of this Note) other than, without duplication, (i) Debt permitted by the Credit Agreement as of the date of this Note, (ii) Debt issued under the Credit Agreement, the Note Agreement and any replacement, refinancing, extension or renewal of either of the foregoing and (iii) Debt that is subordinated to the indebtedness hereunder on terms reasonably satisfactory to Maytag. |
Subject to the terms of the Subordination Agreement, the Company shall have the right to prepay all or any part of the unpaid principal amount hereof at any time without premium or penalty; provided that interest shall be paid on the amount prepaid to and including the date of prepayment. Subject to the terms of the Subordination Agreement, this Note may be amended or otherwise modified, or any provision hereof may be waived, from time to time, but only pursuant to a written instrument signed by the Company and Maytag. The Company agrees to pay all reasonable costs and expenses (including reasonable attorneys fees and court costs) of Maytag in connection with the enforcement of this Note and the collection of amounts due hereunder. Subject to the execution of a reasonably acceptable confidentiality agreement between the Company and each party seeking access to the Companys information hereunder, the Company further agrees to provide (i) Maytag (and its prospective transferees and assigns) reasonable access during normal business hours, upon reasonable advance notice, to the Companys books, records, personnel and facilities on the same basis as provided to the holders of the Senior Debt and, upon the reasonable request from Maytag, shall provide copies of all reports and other notices delivered from time to time to the holders of the Senior Debt and (ii) to the extent available and in existence on the date of request, such additional information and reports on the Companys business condition (financial or otherwise), operations, performance, properties and prospects as may be reasonably requested by Maytag (or any of its prospective transferees and assigns) in connection with a proposed assignment or transfer of this Note. The parties agree and acknowledge that the foregoing will not obligate or require the Company to prepare or compile any information or reports that the Company does not otherwise prepare in the ordinary course of its business and operations. THIS NOTE IS GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (EXCEPT 735 ILLINOIS COMPILED STATUTE §105/5-5). [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
This Note shall be binding upon and inure to the benefit of the Company and Maytag and their respective successors and assigns; provided that the Company may not assign any of its rights or obligations hereunder without the prior written consent of Maytag. |
THE MIDDLEBY CORPORATION By: /s/ David B. Baker Its: Vice President Address: 1400 Toastmaster Drive Elgin, Illinois 60120 |
Exhibit 4.2 |
$6,000,000 | December 21, 2001 |
SUBORDINATED PROMISSORY NOTE FOR VALUE RECEIVED, The Middleby Corporation, a Delaware corporation (the Company), promises to pay to the order of Maytag Corporation (together with its successors, endorsees and assigns, Maytag) on or prior to December 15, 2006 the principal amount of Six Million and 00/100 Dollars ($6,000,000), as such amount may be changed as described herein. The Company further agrees to pay interest on the principal amount of this Note from time to time outstanding at a rate per annum equal to (a) 13.5% from the date hereof through December 31, 2004 and (b) 12% thereafter, subject to the provisions set forth below. Interest shall be computed for the actual number of days elapsed for a year consisting of 365 or, if applicable, 366 days. Such interest shall be payable on the last business day of June and December of each year (each, an Interest Payment Date), beginning on June 28, 2002, and at maturity. The principal amount of this Note may be decreased as the result of any offset by the Company permitted by Section 2 of the Subordination Agreement against amounts payable to the Company by Maytag. All payments of principal hereof and interest hereon shall be payable in lawful currency of the United States of America; provided that (a) interest payable on any Interest Payment Date on or prior to December 31, 2004 shall be paid by the issuance of additional subordinated promissory notes in substantially the form hereof (Additional Subordinated Notes); and (b) if and to the extent that any interest scheduled to be paid on any date thereafter may not be paid without violating the terms of the Subordination Agreement, such interest shall be paid at a rate per annum equal to 13.5% by the issuance of an Additional Subordinated Note. As used herein, Senior Subordinated Debt means Senior Debt (as defined in the Subordination Agreement) that is subordinated to other Senior Debt. Maytag, and each other holder hereof by its acceptance hereof, covenants and agrees that all payments of principal and interest on this Note are subordinated in right of payment to the prior payment in full in cash of all Senior Debt pursuant to, and to the extent provided in, the Subordination Agreement dated as of December __, 2001 (as amended, restated or otherwise modified from time to time, the Subordination Agreement) issued by Maytag in favor (a) Bank of America, N.A., as administrative agent (in such capacity, together with any successor or assign in such capacity the Administrative Agent) for certain lenders (the Lenders) under a Credit Agreement dated as of the date hereof among the Company, Middleby Marshall Inc. (MMI), the Administrative Agent and the Lenders (as amended, restated, replaced, refinanced, extended or renewed from time to time, the Credit Agreement), (b) American Capital Financial Services, Inc., as administrative agent (the Agent) for certain securities purchasers (the Purchasers) under a Note and Equity Purchase Agreement dated as of the date hereof among MMI, the Company, the Agent and the Purchasers (as amended, restated, replaced, refinanced, extended or renewed from time to time, the Note Agreement) and (c) any other holders of Senior Debt. |
If any Senior Debt is accelerated as a result of any event of the type described in Section 12.1.3 of the Credit Agreement in effect on the date of this Note, then the unpaid principal amount of this Note shall become immediately due and payable. In addition, Maytag may, by notice to the Company, the Administrative Agent and the Agent, declare the unpaid principal amount of this Note, together with interest thereon, to be immediately due and payable upon the occurrence of any of the following events: |
(a) Any Change in Control (as defined in the Credit Agreement in effect on the date of this Note). |
(b) The sale (except for the sale of inventory in the ordinary course of business) of all or substantially all of the assets of the Company and its Subsidiaries, taken as a whole. |
(c) Any Senior Debt shall be accelerated or the Company shall fail to pay within five days after becoming due (whether at maturity, by acceleration or otherwise) any Senior Debt in an aggregate principal amount of $1,000,000 or more. |
(d) The Company or any subsidiary shall make any payment which is prohibited under Section 10.9 of the Credit Agreement in effect on the date of this Note. |
(e) The Company or any subsidiary shall make any Acquisition (as defined in the Credit Agreement as of the date of this Note) without the prior written consent of Maytag if, after giving effect to such Acquisition, the aggregate principal amount of all Senior Debt (including unfunded commitments with respect thereto) exceeds $100,000,000. |
(f) The Company or any subsidiary shall create or permit to exist any lien or other encumbrance on its assets, other than (i) liens and encumbrances permitted by the Credit Agreement as of the date of this Note and (ii) liens or other encumbrances securing obligations and liabilities under the Credit Agreement or the Note Agreement (including, without limitation, in connection with replacements, refinancings, extensions or renewals of the Credit Agreement and/or the Note Agreement). |
(g) The Company or any subsidiary shall issue any Debt (as defined in the Credit Agreement as of the date of this Note) other than, without duplication, (i) Debt permitted by the Credit Agreement as of the date of this Note, (ii) Debt issued under the Credit Agreement, the Note Agreement and any replacement, refinancing, extension or renewal of either of the foregoing and (iii) Debt that is subordinated to the indebtedness hereunder on terms reasonably satisfactory to Maytag. |
Subject to the terms of the Subordination Agreement, the Company shall have the right to prepay all or any part of the unpaid principal amount hereof at any time without premium or penalty; provided that interest shall be paid on the amount prepaid to and including the date of prepayment. Subject to the terms of the Subordination Agreement, this Note may be amended or otherwise modified, or any provision hereof may be waived, from time to time, but only pursuant to a written instrument signed by the Company and Maytag. The Company agrees to pay all reasonable costs and expenses (including reasonable attorneys fees and court costs) of Maytag in connection with the enforcement of this Note and the collection of amounts due hereunder. Subject to the execution of a reasonably acceptable confidentiality agreement between the Company and each party seeking access to the Companys information hereunder, the Company further agrees to provide (i) Maytag (and its prospective transferees and assigns) reasonable access during normal business hours, upon reasonable advance notice, to the Companys books, records, personnel and facilities on the same basis as provided to the holders of the Senior Debt and, upon the reasonable request from Maytag, shall provide copies of all reports and other notices delivered from time to time to the holders of the Senior Debt and (ii) to the extent available and in existence on the date of request, such additional information and reports on the Companys business condition (financial or otherwise), operations, performance, properties and prospects as may be reasonably requested by Maytag (or any of its prospective transferees and assigns) in connection with a proposed assignment or transfer of this Note. The parties agree and acknowledge that the foregoing will not obligate or require the Company to prepare or compile any information or reports that the Company does not otherwise prepare in the ordinary course of its business and operations. THIS NOTE IS GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (EXCEPT 735 ILLINOIS COMPILED STATUTE §105/5-5) [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
This Note shall be binding upon and inure to the benefit of the Company and Maytag and their respective successors and assigns; provided that the Company may not assign any of its rights or obligations hereunder without the prior written consent of Maytag. |
THE MIDDLEBY CORPORATION By: /s/ David B. Baker Its: Vice President Address: 1400 Toastmaster Drive Elgin, Illinois 60120 |
Exhibit 4.3 CREDIT AGREEMENT dated as of December 21, 2001 among MIDDLEBY MARSHALL INC., THE MIDDLEBY CORPORATION, VARIOUS FINANCIAL INSTITUTIONS, FLEET NATIONAL BANK, and BANK OF AMERICA, N.A., BANC OF AMERICA SECURITIES LLC |
TABLE OF CONTENTS Page |
SECTION 1 | DEFINITIONS | 1 |
1.1 | Definitions | 1 |
1.2 | Other Interpretive Provisions | 23 |
SECTION 2 | COMMITMENTS OF THE LENDERS; BORROWING AND CONVERSION PROCEDURES; LETTER OF CREDIT PROCEDURES; SWING LINE LOANS | 24 |
2.1 | Commitments | 24 |
2.1.1 | Revolving Loans | 24 |
2.1.2 | L/C Commitment | 24 |
2.1.3 | Term Loans | 25 |
2.2 | Loan Procedures | 25 |
2.2.1 | Various Types of Loans | 25 |
2.2.2 | Borrowing Procedures | 25 |
2.2.3 | Conversion and Continuation Procedures | 26 |
2.3 | Letter of Credit Procedures | 27 |
2.3.1 | L/C Applications | 27 |
2.3.2 | Participations in Letters of Credit | 27 |
2.3.3 | Reimbursement Obligations | 27 |
2.3.4 | Limitation on Obligations of Issuing Lenders | 28 |
2.3.5 | Funding by Revolving Lenders to Issuing Lenders | 28 |
2.4 | Swing Line Loans | 29 |
2.4.1 | Swing Line Loans | 29 |
2.4.2 | Swing Line Loan Procedures | 29 |
2.4.3 | Refunding of, or Funding of Participations in, Swing Line Loans | 30 |
2.4.4 | Repayment of Participations | 30 |
2.4.5 | Participation Obligations Unconditional | 31 |
2.5 | Commitments Several | 31 |
2.6 | Certain Conditions | 31 |
SECTION 3 | NOTES EVIDENCING LOANS | 31 |
3.1 | Notes | 31 |
3.2 | Recordkeeping | 31 |
SECTION 4 | INTEREST | 32 |
4.1 | Interest Rates | 32 |
4.2 | Interest Payment Dates | 32 |
i |
4.3 | Setting and Notice of Eurodollar Rates | 32 |
4.4 | Computation of Interest | 33 |
SECTION 5 | FEES | 33 |
5.1 | Commitment Fee | 33 |
5.2 | Letter of Credit Fees | 33 |
5.3 | Up-Front and Funding Fees | 34 |
5.4 | Administrative Agents and Lead Arrangers Fees | 34 |
SECTION 6 | REPAYMENT OF LOANS; REDUCTION AND TERMINATION OF THE COMMITMENTS; PREPAYMENTS | 34 |
6.1 | Repayment of Loans | 34 |
6.2 | Voluntary Reductions of the Revolving Commitment Amount | 34 |
6.3 | Prepayments | 35 |
6.3.1 | Voluntary Prepayments | 35 |
6.3.2 | Mandatory Prepayments | 35 |
6.3.3 | Application of Prepayments | 36 |
SECTION 7 | MAKING AND PRORATION OF PAYMENTS; SETOFF; TAXES | 36 |
7.1 | Making of Payments | 36 |
7.2 | Application of Certain Payments | 37 |
7.3 | Due Date Extension | 37 |
7.4 | Setoff | 37 |
7.5 | Proration of Payments | 37 |
7.6 | Taxes | 37 |
SECTION 8 | INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS | 40 |
8.1 | Increased Costs | 40 |
8.2 | Basis for Determining Interest Rate Inadequate or Unfair | 41 |
8.3 | Changes in Law Rendering Eurodollar Loans Unlawful | 42 |
8.4 | Funding Losses | 42 |
8.5 | Right of Lenders to Fund through Other Offices | 43 |
8.6 | Discretion of Lenders as to Manner of Funding | 43 |
8.7 | Mitigation of Circumstances; Replacement of Affected Lender | 43 |
8.8 | Conclusiveness of Statements; Survival of Provisions | 44 |
SECTION 9 | REPRESENTATIONS AND WARRANTIES | 44 |
9.1 | Organization, etc | 44 |
9.2 | Authorization; No Conflict | 44 |
9.3 | Validity and Binding Nature | 45 |
9.4 | Financial Condition | 45 |
9.5 | No Material Adverse Change | 45 |
ii |
9.6 | Litigation and Contingent Liabilities | 45 |
9.7 | Ownership of Properties; Liens | 45 |
9.8 | Subsidiaries | 46 |
9.9 | Pension Plans | 46 |
9.10 | Investment Company Act | 46 |
9.11 | Public Utility Holding Company Act | 46 |
9.12 | Regulation U | 47 |
9.13 | Taxes | 47 |
9.14 | Solvency, etc | 47 |
9.15 | Environmental Matters | 47 |
9.16 | Information | 47 |
9.17 | Blodgett Acquisition | 48 |
9.18 | No Default | 48 |
9.19 | No Burdensome Restrictions | 48 |
9.20 | Note Purchase Representations and Warranties | 48 |
SECTION 10 | COVENANTS | 49 |
10.1 | Reports, Certificates and Other Information | 49 |
10.1.1 | Audit Report | 49 |
10.1.2 | Quarterly Reports | 49 |
10.1.3 | Monthly Reports | 49 |
10.1.4 | Compliance Certificates | 50 |
10.1.5 | Reports to SEC and to Shareholders | 50 |
10.1.6 | Notice of Default, Litigation, ERISA and Environmental Matters | 50 |
10.1.7 | Subsidiaries | 51 |
10.1.8 | Management Reports | 51 |
10.1.9 | Projections | 51 |
10.1.10 | Borrowing Base Certificate | 51 |
10.1.11 | Other Information | 51 |
10.2 | Books, Records and Inspections | 52 |
10.3 | Insurance | 52 |
10.4 | Compliance with Laws, Material Contracts; Payment of Taxes and Liabilities | 52 |
10.5 | Maintenance of Existence, etc | 52 |
10.6 | Financial Covenants | 53 |
10.6.1 | Fixed Charge Coverage Ratio | 53 |
10.6.2 | Total Leverage Ratio | 53 |
10.6.3 | Senior Leverage Ratio | 53 |
10.6.4 | Minimum Consolidated Net Worth | 53 |
10.6.5 | Capital Expenditures | 54 |
10.7 | Limitations on Debt | 54 |
10.8 | Liens | 55 |
10.9 | Restricted Payments | 56 |
iii |
10.10 | Mergers, Consolidations, Sales | 57 |
10.11 | Use of Proceeds | 57 |
10.12 | Further Assurances | 58 |
10.13 | Transactions with Affiliates | 58 |
10.14 | Employee Benefit Plans | 58 |
10.15 | Environmental Laws | 58 |
10.16 | Unconditional Purchase Obligations | 59 |
10.17 | Inconsistent Agreements | 59 |
10.18 | Business Activities | 59 |
10.19 | Advances and Other Investments | 59 |
10.20 | Foreign Subsidiaries | 60 |
10.21 | Interest Rate Protection | 60 |
10.22 | Amendments to Certain Documents | 61 |
10.23 | Real Estate Documents | 61 |
10.24 | Foreign Pledges | 62 |
10.25 | Key Management | 62 |
SECTION 11 | EFFECTIVENESS; CONDITIONS OF LENDING, ETC | 62 |
11.1 | Effectiveness | 62 |
11.1.1 | Notes | 63 |
11.1.2 | Resolutions | 63 |
11.1.3 | Consents, etc | 63 |
11.1.4 | Incumbency and Signature Certificates | 63 |
11.1.5 | Security Agreement | 63 |
11.1.6 | Subsidiary Guaranty | 63 |
11.1.7 | U.S. Pledge Agreement | 63 |
11.1.8 | Opinions of Counsel for the Loan Parties | 63 |
11.1.9 | Financial Information | 64 |
11.1.10 | Acquisition Documents | 64 |
11.1.11 | Mortgages | 64 |
11.1.12 | Subordinated Debt | 64 |
11.1.13 | Borrowing Base Certificate | 65 |
11.1.14 | Other | 65 |
11.2 | Conditions to All Credit Extensions | 65 |
11.2.1 | Compliance with Representations and Warranties, No Default, etc | 65 |
11.2.2 | Confirmatory Certificate | 65 |
SECTION 12 | EVENTS OF DEFAULT AND THEIR EFFECT | 65 |
12.1 | Events of Default | 65 |
12.1.1 | Non-Payment of the Loans, etc | 65 |
12.1.2 | Non-Payment of Other Debt | 66 |
12.1.3 | Bankruptcy, Insolvency, etc | 66 |
iv |
12.1.4 | Non-Compliance with Provisions of This Agreement | 66 |
12.1.5 | Representations and Warranties | 66 |
12.1.6 | Pension Plans | 67 |
12.1.7 | Judgments | 67 |
12.1.8 | Invalidity of Subsidiary Guaranty, etc | 67 |
12.1.9 | Invalidity of Collateral Documents, etc | 67 |
12.1.10 | Change in Control | 67 |
12.2 | Effect of Event of Default | 67 |
SECTION 13 | PARENT GUARANTY | 68 |
13.1 | The Guaranty | 68 |
13.2 | Guaranty Unconditional | 68 |
13.3 | Discharge Only Upon Payment In Full; Reinstatement In Certain Circumstances | 69 |
13.4 | Waiver by the Parent | 70 |
13.6 | Stay of Acceleration | 70 |
THE ADMINISTRATIVE AGENT | 70 |
14.1 | Appointment and Authorization | 70 |
14.2 | Delegation of Duties | 71 |
14.3 | Liability of Administrative Agent | 71 |
14.4 | Reliance by Administrative Agent | 71 |
14.5 | Notice of Default | 72 |
14.6 | Credit Decision | 72 |
14.7 | Indemnification | 73 |
14.8 | Administrative Agent in Individual Capacity | 74 |
14.9 | Successor Administrative Agent | 74 |
14.10 | Withholding Tax | 75 |
14.11 | Collateral Matters | 77 |
14.12 | Syndication Agent | 77 |
SECTION 15 | GENERAL | 77 |
15.1 | Waiver; Amendments | 77 |
15.2 | Confirmations | 78 |
15.3 | Notices | 78 |
15.4 | Computations | 79 |
15.5 | Regulation U | 79 |
15.6 | Costs, Expenses and Taxes | 79 |
15.7 | Subsidiary References | 80 |
15.8 | Captions | 80 |
15.9 | Assignments; Participations | 80 |
15.9.1 | Assignments | 80 |
15.9.2 | Participations | 82 |
v |
15.10 | Governing Law | 82 |
15.11 | Counterparts | 83 |
15.12 | Successors and Assigns | 83 |
15.13 | Indemnification by the Company | 83 |
15.14 | Forum Selection and Consent to Jurisdiction | 85 |
15.15 | Waiver of Jury Trial | 85 |
vi |
SCHEDULES |
SCHEDULE 1.1 | Pricing Schedule |
SCHEDULE 2.1 | Lenders and Percentages |
SCHEDULE 6.1 | Amortization of Term A Loans |
SCHEDULE 9.6 | Litigation and Contingent Liabilities |
SCHEDULE 9.7 | Ownership of Properties; Liens |
SCHEDULE 9.8 | Subsidiaries |
SCHEDULE 9.15 | Environmental Matters |
SCHEDULE 10.7(g) | Debt to be Repaid |
SCHEDULE 10.7(i) | Existing Debt |
SCHEDULE 10.8 | Existing Liens |
SCHEDULE 10.19 | Existing Investments |
SCHEDULE 11.1.11 | Mortgaged Property |
SCHEDULE 15.3 | Addresses for Notices |
EXHIBITS |
EXHIBIT A | Form of Note (Section 3.1) |
EXHIBIT B | Form of Compliance Certificate (Section 10.1.4) |
EXHIBIT C | Form of Subsidiary Guaranty (Section 1) |
EXHIBIT D | Form of Security Agreement (Section 1) |
EXHIBIT E | Form of U.S. Pledge Agreement (Section 1) |
EXHIBIT F | Form of Assignment Agreement (Section 15.9) |
EXHIBIT G | Form of Borrowing Base Certificate (Section 1) |
EXHIBIT H-1 | Form of Subordination Agreement (Seller Subordinated Debt) (Section 11.1) |
EXHIBIT H-2 | Form of Subordination Agreement (Senior Subordinated Debt) (Section 11.1) |
xii |
(a) | (i) the consolidated current assets of the Parent and its Subsidiaries less (ii) the amount of cash and cash equivalents included in such consolidated current assets; |
over |
(b) | (i) consolidated current liabilities of the Parent and its Subsidiaries less (ii) the amount of short-term Debt (including current maturities of long-term Debt) of the Parent and its Subsidiaries included in such consolidated current liabilities. |
Administrative Agent means Bank of America in its capacity as administrative agent for the Lenders hereunder and any successor thereto in such capacity. Affected Lender means any Lender that has given notice to the Company (which has not been rescinded) of (i) any obligation by the Company to pay any amount pursuant to Section 7.6 or 8.1 or (ii) the occurrence of any circumstances of the nature described in Section 8.2 or 8.3. Affiliate of any Person means (i) any other Person which, directly or indirectly, controls or is controlled by or is under common control with such Person and (ii) any officer or director of such Person. Agent-Related Persons means Bank of America or any successor agent arising under Section 14.9, together with their respective Affiliates (including, in the case of Bank of America, Banc of America Securities LLC), and the officers, directors, employees, agents and attorneys-in-fact of such Persons and Affiliates. Agreement see the Preamble. Asset Sale means the sale, lease, assignment or other transfer for value by the Company or any Subsidiary to any Person (other than the Company or any Subsidiary) of any asset or right of the Company or such Subsidiary (including any sale or other transfer of stock of any Subsidiary, whether by merger, consolidation or otherwise), excluding (a) the sale or lease of Inventory in the ordinary course of business, (b) license agreements entered into by the Company or any Subsidiary, as licensor, in the ordinary course of business for the use of any intellectual property or other intangible asset of the Company or such Subsidiary, (c) sales or discounts of accounts receivable in the ordinary course of business in connection with the compromise or collection thereof, which sales shall be without recourse to the Company or any Subsidiary and (d) other sales or transfers of assets in an aggregate amount not exceeding $500,000 in any Fiscal Year. Assignee see Section 15.9.1. Assignment Agreement see Section 15.9.1. Bank of America see the Preamble. Base Rate means at any time the greater of (a) the Federal Funds Rate plus 0.5% and (b) the Prime Rate. Base Rate Loan means any Loan which bears interest at or by reference to the Base Rate. Base Rate Margin see Schedule 1.1. 2 |
Blodgett means Blodgett Holdings Inc., a Delaware corporation. Blodgett Acquisition means the acquisition by the Company of all of the capital stock of Blodgett pursuant to the Blodgett Acquisition Agreement. Blodgett Acquisition Agreement means the Stock Purchase Agreement dated as of August 30, 2001 between the Company (as assignee of the Parent) and Maytag Corporation, including all schedules, annexes and exhibits thereto, as amended through Amendment No. 1 thereto dated December 21, 2001. Borrowing Base means the sum of (a) 85% of Eligible Accounts Receivable plus (b) 50% of Eligible Inventory measured at the lower of cost or fair market value. Borrowing Base Certificate means a borrowing base certificate executed by a Responsible Financial Officer of the Company substantially in the form of Exhibit G. Business Day means any day (other than a Saturday or Sunday) on which Bank of America is open for commercial banking business in Chicago, Charlotte, Dallas and New York and, in the case of a Business Day which relates to a Eurodollar Loan, on which dealings are carried on in the London interbank eurodollar market. Capital Expenditures means all expenditures which, in accordance with GAAP, would be required to be capitalized and shown on the consolidated balance sheet of the Parent, but excluding expenditures made in connection with the replacement, substitution or restoration of assets to the extent financed (i) from insurance proceeds (or other similar recoveries) paid on account of the loss of or damage to the assets being replaced or restored or (ii) with awards of compensation arising from the taking by eminent domain or condemnation of the assets being replaced. Capital Lease means, with respect to any Person, any lease of (or other agreement conveying the right to use) any real or personal property by such Person that, in conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of such Person. Cash Equivalent Investment means, at any time, (a) any evidence of Debt, maturing not more than one year after such time, issued or guaranteed by the United States Government or any agency thereof, (b) commercial paper, maturing not more than one year from the date of issue, or corporate demand notes, in each case (unless issued by a Lender or its holding company) rated at least A-l by Standard & Poors Ratings Group or P-l by Moodys Investors Service, Inc. (or carrying an equivalent rating by an internationally-recognized rating agency), (c) any certificate of deposit (or time deposits represented by such certificates of deposit) or bankers acceptance, maturing not more than one year after such time, or overnight Federal Funds transactions or money market deposit accounts that are issued or sold by, or maintained with, a Lender, (d) any repurchase agreement entered into with any Lender which (i) is secured by a fully perfected security interest in any obligation of the type described in any of clauses (a) through (c) and (ii) has a market value at the time such repurchase agreement is entered into of not less than 100% of the repurchase obligation of such Lender thereunder, (e) investments in short-term asset management accounts offered by any Lender for the purpose of investing in loans to any corporation (other than the Parent or an Affiliate of the Parent), state or municipality, in each case organized under the laws of any state of the United States or of the District of Columbia, (f) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any Lender, or (g) shares of money market mutual or similar funds which invest exclusively in assets satisfying the requirements of clauses (a) through (f) of this definition. 3 |
Change in Control means an event or series of events by which: (a) any person or group (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding (i) William Whitman, Jr. and any Related Person and (ii) any employee benefit plan of the Parent or any Subsidiary, or any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan), becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person shall be deemed to have beneficial ownership of all securities that such person has the right to acquire, whether such right is exercisable immediately or only after the passage of time), directly or indirectly, of outstanding shares of voting stock of the Parent in excess of the amount of shares of such stock owned by William Whitman, Jr. and the Related Persons; (b) William Whitman, Jr. and his spouse (or, after the death of William Whitman, Jr., the Related Persons) shall fail to own at least 15% of the total voting power of all outstanding shares of voting stock of the Parent; provided that the calculation of the percentage of the total voting power of all outstanding shares of voting stock of the Parent (the Parent Voting Shares) owned by William Whitman, Jr. and his spouse (or, after the death of William Whitman, Jr., the Related Persons) shall be computed without giving effect to any dilution caused by the issuance of any Parent Voting Shares (i) to officers, employees or directors of the Parent or any Subsidiary pursuant to any stock option, benefit or compensation plan, (ii) pursuant to a public offering of Parent Voting Shares and/or (iii) upon the exercise of any warrants or equity securities to the holders of the Senior Subordinated Debt; or (c) individuals who on the Effective Date were directors of the Parent (the Incumbent Board) shall cease for any reason to constitute a majority of the board of directors of the Parent; provided that any individual becoming a director subsequent to the Effective Date whose election, or nomination for election by the Parents shareholders, was approved by the requisite vote of the then Incumbent Board shall be considered as though such individual were a member of the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened solicitation of proxies or consents for the election or removal of one or more directors by any person or group other than a solicitation for the election of one or more directors by or on behalf of the board of directors. Code means the Internal Revenue Code of 1986. Collateral Access Agreement means an agreement, in form and substance reasonably acceptable to the Administrative Agent, between the Administrative Agent and a third party relating to Inventory of the Company or any Subsidiary Guarantor located on the property of such third party. 4 |
Collateral Documents means the U.S. Pledge Agreement, the Security Agreement, each Mortgage and any other agreement pursuant to which any Loan Party grants collateral to the Administrative Agent for the benefit of the Lenders. Commitment means, as to any Lender, such Lenders commitment to make Loans, and (if applicable) to issue or participate in Letters of Credit and to participate in Swing Line Loans, under this Agreement. Commitment Fee Rate see Schedule 1.1. Company see the Preamble. Computation Period means each period of four consecutive Fiscal Quarters ending on the last day of a Fiscal Quarter. Consolidated Net Income means, with respect to the Parent and its Subsidiaries for any period, the net income (or loss) of the Parent and its Subsidiaries for such period, excluding (a) any extraordinary gains during such period and (b) any foreign exchange translation gains or losses that might appear on or be reflected in the consolidated statement of earnings of the Parent and its Subsidiaries on a consolidated basis for such period. Consolidated Net Worth means, at any date, the sum of (a) consolidated stockholders equity (excluding any equity attributable to any preferred stock which is mandatorily redeemable, or redeemable at the option of the holder thereof, prior to one year following the final stated maturity of the Term Loans) of the Parent and its Subsidiaries as of such date and (b) all Special Charges taken after September 29, 2001. Controlled Group means all members of a controlled group of corporations and all members of a controlled group of trades or businesses (whether or not incorporated) under common control which, together with the Parent, are treated as a single employer under Section 414 of the Code or Section 4001 of ERISA. Credit Extension means the making of any Loan or the issuance of any Letter of Credit. Debt of any Person means, without duplication, (a) all indebtedness of such Person for borrowed money, whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under Capital Leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP, (c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in the ordinary course of business), (d) all indebtedness secured by a Lien on the property of such Person, whether or not such indebtedness shall have been assumed by such Person (it being understood that if such Person has not assumed or otherwise become personally liable for any such indebtedness, the amount of the Debt of such Person in connection therewith shall be limited to the lesser of the face amount of such indebtedness or the fair market value of all property of such Person securing such indebtedness), (e) all obligations, contingent or otherwise, with respect to the face amount of all letters of credit (whether or not drawn) and bankers acceptances issued for the account of such Person (including the Letters of Credit), (f) all Hedging Obligations of such Person, (g) all Suretyship Liabilities of such Person in respect of obligations of the types referred to in clauses (a) through (f) and (h) all Debt of any partnership in which such Person is a general partner. 5 |
Debt to be Repaid means the Debt listed on Schedule 10.7(g). Dollar and the sign $ mean lawful money of the United States of America. EBITDA means, for any period, Consolidated Net Income for such period plus to the extent deducted in determining such Consolidated Net Income, Interest Expense, income tax expense, depreciation and amortization for such period. Effective Date see Section 11.1. Eligible Account Receivable means an Account Receivable owing to the Company or any Subsidiary Guarantor which meets each of the following requirements: (a) it is payable in Dollars; (b) it arises from the sale of goods or the rendering of services by the Company or such Subsidiary Guarantor, such goods or services comply with the applicable Account Debtors specifications (if any) and, if it arises from the sale of goods, such sale is final and such goods have been delivered to and accepted by the applicable Account Debtor; (c) it (i) is subject to a perfected Lien in favor of the Administrative Agent and (ii) is not subject to any other assignment, claim or Lien (other than Liens permitted by Section 10.8(a)); (d) it is a valid, legally enforceable and unconditional obligation of the applicable Account Debtor, is not contingent in any respect or for any reason, and is not subject to any offset, deduction, counterclaim, credit, allowance, discount, rebate or adjustment by such Account Debtor or to any claim by such Account Debtor denying liability thereunder in whole or in part, provided that (i) if any offset, deduction, counterclaim, credit, allowance, rebate or adjustment is asserted, or discount is granted, the Account Receivable shall only be ineligible pursuant to this clause (d) to the extent of the same, and (ii) no Account Receivable shall be ineligible, or be reduced pursuant to clause (i) on account of, (A) rebates which are given to Account Debtors in the ordinary course of business consistent with past practice for volume purchases to the extent that the aggregate amount thereof does not exceed $2,000,000 at any time, and (B) warranty claims asserted by Account Debtors to the extent that the aggregate amount thereof does not exceed $2,000,000 at any time; (e) there is no bankruptcy, insolvency or liquidation proceeding by or against the Account Debtor with respect thereto; (f) the Account Debtor with respect thereto is a resident or citizen of, and is located within, the United States or Canada, unless the sale of goods or services giving rise to such Account Receivable is on letter of credit, bankers acceptance, credit insurance or other credit support terms reasonably satisfactory to the Administrative Agent; (g) it is not an Account Receivable arising from a sale on approval, sale or return, consignment or bill and hold or subject to any other repurchase or return agreement; (h) it is not an Account Receivable with respect to which possession and/or control of the goods sold giving rise thereto is held, maintained or retained by the Company or such Subsidiary Guarantor (or by any agent or custodian of such Person) for the account of or subject to further and/or future direction from the Account Debtor with respect thereto; (i) it arises in the ordinary course of business of the Company or such Subsidiary Guarantor; (j) if the Account Debtor is the United States or any department, agency or instrumentality thereof, the Company or such Subsidiary Guarantor has assigned its right to payment of such Account Receivable to the Administrative Agent pursuant to the Assignment of Claims Act of 1940; (j) if the Company or such Subsidiary Guarantor maintains a credit limit for an Account Debtor, the aggregate dollar amount of Accounts Receivable due from such Account Debtor, including such Account Receivable, does not exceed such credit limit (provided that if any such credit limit is exceeded, otherwise eligible Accounts Receivable will be ineligible only to the extent of such excess); (k) such Account Receivable is not more than (i) 60 days past the due date thereof or (ii) 90 days past the original invoice date thereof, in each case according to the original terms of sale; (l) the Account Debtor with respect thereto is not any Loan Party or an Affiliate thereof; (m) it is not owed by an Account Debtor with respect to which 25% or more of the aggregate amount of outstanding Accounts Receivable owed at such time by such Account Debtor is classified as ineligible under clause (k) of this definition; (n) the Account Receivable is not evidenced by a promissory note or chattel paper unless such promissory note or chattel paper has been pledged and delivered to the Administrative Agent; and (o) other than a prohibition which may be retroactively cured with de minimis expense, the Company or such Subsidiary Guarantor is not subject to a prohibition by the laws of the state where the Account Debtor is located from bringing an action in the courts of that state to enforce the Account Debtors obligation to pay the Account Receivable. 6 |
An Account Receivable which is at any time an Eligible Account Receivable, but which subsequently fails to meet any of the foregoing requirements, shall forthwith cease to be an Eligible Account Receivable. With respect to any Account Receivable, if the Administrative Agent at any time hereafter determines that the prospect of payment or performance by the Account Debtor with respect thereto is impaired for any reason whatsoever, such Account shall cease to be an Eligible Account five Business Days after notice of such determination is given to the Company. Eligible Assignee means (a) a commercial bank organized under the laws of the United States, or any state thereof, and having a combined capital and surplus of at least $100,000,000; (b) a commercial bank organized under the laws of any other country which is a member of the Organization for Economic Cooperation and Development or a political subdivision of any such country, and having a combined capital and surplus of at least $100,000,000, provided that such bank is acting through a branch or agency located in the United States; (c) a Person that is primarily engaged in the business of commercial banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary or (iii) a Person of which a Lender is a Subsidiary; (d) as to the Term Loans, (i) an accredited investor, as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933 (other than the Parent or an Affiliate of the Parent) or (ii) a finance company, insurance company or other financial institution or fund (whether a corporation, partnership, trust or other entity) that is primarily engaged in the business of making, purchasing or otherwise investing in commercial loans; and (e) any other Person approved by the Parent and the Administrative Agent. 7 |
Eligible Inventory means Inventory of the Company or any Subsidiary Guarantor which meets each of the following requirements: (a) it (i) is subject to a perfected Lien in favor of the Administrative Agent and (ii) is not subject to any other assignment, claim or Lien (other than Liens permitted by Section 10.8(a)); (b) it consists of raw materials which are usable or finished goods salable in the ordinary course of the Companys or such Subsidiary Guarantors business; (c) it is not Inventory produced in violation of the Fair Labor Standards Act and subject to the hot goods provisions contained in Title 29 U.S.C. §215; (d) if Inventory is held by a third Person or is located at property leased by the Company or a Subsidiary Guarantor, as lessee, such Person or the lessor of such property, as applicable, has delivered a Collateral Access Agreement to the Administrative Agent; provided that no Inventory shall be ineligible pursuant to this clause (d) until the 60th day after the Effective Date; (e) it is not subject to any agreement which would restrict the Administrative Agents ability to sell or otherwise dispose of such Inventory; (f) it is located in the United States or in any territory or possession of the United States that has adopted Article 9 of the Uniform Commercial Code; (g) it is not in transit to a Person other than the Company or such Subsidiary Guarantor; (h) it is not held by the Company or such Subsidiary Guarantor on consignment; (i) it is not work in progress; (j) it is not placed on consignment; and (k) it is not reserved against for obsolescence. Inventory which is at any time Eligible Inventory but which subsequently fails to meet any of the foregoing requirements shall forthwith cease to be Eligible Inventory. With respect to any Inventory, if the Administrative Agent at any time hereafter determines that such Inventory is unacceptable due to age, type, category, quality or quantity, such Inventory shall cease to be Eligible Inventory five Business Days after notice of such determination is given to the Company. Environmental Claims means all claims, however asserted, by any governmental, regulatory or judicial authority or other Person alleging potential liability or responsibility for violation of any Environmental Law, or for release of hazardous substances or injury to the environment. Environmental Laws means all federal, state or local laws, statutes, common law duties, rules, regulations, ordinances and codes, together with all administrative orders, directed and enforceable duties, licenses, authorizations and permits of, and agreements with, any governmental authority, in each case relating to environmental matters. ERISA means the Employee Retirement Income Security Act of 1974. Eurocurrency Reserve Percentage means, with respect to any Eurodollar Loan for any Interest Period, a percentage (expressed as a decimal) equal to the daily average during such Interest Period of the percentage in effect on each day of such Interest Period, as prescribed by the FRB, for determining the aggregate maximum reserve requirements applicable to Eurocurrency Liabilities pursuant to Regulation D or any other then applicable regulation of the FRB which prescribes reserve requirements applicable to Eurocurrency Liabilities as presently defined in Regulation D. 8 |
Eurodollar Loan means any Loan which bears interest at a rate determined by reference to the Eurodollar Rate (Reserve Adjusted). Eurodollar Margin see Schedule 1.1. Eurodollar Office means with respect to any Lender the office or offices of such Lender which shall be making or maintaining the Eurodollar Loans of such Lender hereunder or, if applicable, such other office or offices through which such Lender determines the Eurodollar Rate. A Eurodollar Office of any Lender may be, at the option of such Lender, either a domestic or foreign office. Eurodollar Rate means for any Interest Period with respect to any Eurodollar Loan: (a) the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate that appears on page 3750 of the Telerate screen (or any successor thereto) as the average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period; or (b) if the rate referenced in the preceding clause (a) does not appear on such page or service or such page or service shall cease to be available, the rate per annum equal to the rate determined by the Administrative Agent to be the offered rate on such other page or other service that displays an average British Bankers Association Interest Settlement Rate for deposits in Dollars (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period, determined as of approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period; or (c) if the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum determined by the Administrative Agent as the rate of interest (rounded upward to the next 1/100th of 1%) at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Loan being made, continued or converted by Bank of America and with a term equivalent to such Interest Period would be offered by Bank of Americas London Branch to major banks in the offshore Dollar market at their request at approximately 11:00 a.m. (London time) two Business Days prior to the first day of such Interest Period. 9 |
Eurodollar Rate (Reserve Adjusted) means, with respect to any Eurodollar Loan for any Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined pursuant to the following formula: |
Eurodollar Rate (Reserve Adjusted) |
= |
Eurodollar Rate 1-Eurocurrency Reserve Percentage |
Event of Default means any of the events described in Section 12.1. Excess Cash Flow means, for any period, the remainder of (a) EBITDA for such period, less (b) the sum, without duplication of |
(i) repayments of principal of Term Loans pursuant to Section 6.1, regularly scheduled principal payments arising with respect to any other long-term Debt of the Parent or any Subsidiary, and the portion of any regularly scheduled payments with respect to Capital Leases allocable to principal, in each case made during such period, |
plus |
(ii) voluntary prepayments of the Term Loans pursuant to Section 6.3.1 during such period, |
plus |
(iii) cash payments made in such period with respect to Capital Expenditures (to the extent permitted hereunder), |
plus |
(iv) all federal, state, local and foreign income taxes paid by the Parent and its Subsidiaries during such period, |
plus |
(v) cash Interest Expense of the Parent and its Subsidiaries during such period, |
10 |
plus |
(vi) any increase in Adjusted Working Capital during such period, |
minus |
(vii) any decrease in Adjusted Working Capital during such period, |
plus |
(viii) the amount of any prepayment made during such period with Net Cash Proceeds of Asset Sales to the extent the amount of such Net Cash Proceeds is included in the calculation of Consolidated Net Income for such period. |
Exemption Representation see Section 7.6. Existing Letter of Credit means irrevocable letter of credit number 7279886 issued for the account of the Company by Bank of America. Federal Funds Rate means, for any day, the rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Bank of New York (including any such successor publication, H.15(519)) on the preceding Business Day opposite the caption Federal Funds (Effective); or, if for any relevant day such rate is not so published on any such preceding Business Day, the rate for such day will be the arithmetic mean as determined by the Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of three leading brokers of Federal funds transactions in New York City selected by the Administrative Agent. Fiscal Quarter means each 13-week period during a Fiscal Year, beginning with the first day of such Fiscal Year. Fiscal Year means the fiscal year of the Company and its Subsidiaries, which period shall be the 12-month period ending on the Saturday closest to December 31 of each year. References to a Fiscal Year with a number corresponding to any calendar year (e.g., Fiscal Year 2001) refer to the Fiscal Year ending on the Saturday closest to December 31 of such calendar year. Fixed Charge Coverage Ratio means, as of the last day of any Computation Period, the ratio of (a) the result of (i) Pro Forma EBITDA for such Computation Period less (ii) Capital Expenditures for such Computation Period less (iii) cash income tax expense for such Computation Period to (b) the sum of (i) Interest Expense to the extent payable in cash for such Computation Period plus (ii) the Scheduled Loan Payments (as defined below) for such Computation Period plus (iii) the actual aggregate amount of all other principal payments on Debt made by the Parent and its Subsidiaries during such Computation Period; provided that: 11 |
(x) in calculating Capital Expenditures, capital expenditures of any Person (or division or similar business unit) acquired by the Parent or any of its Subsidiaries during such period shall be included on a pro forma basis for such period and the capital expenditures of any Person (or division or similar business unit) disposed of by the Parent or any of its Subsidiaries during such period shall be excluded on a pro forma basis for such period; and |
(y) in calculating Interest Expense, any Debt incurred or assumed in connection with any Acquisition shall be assumed to have been incurred or assumed on the first day of such period and any Debt assumed by any Person (other than the Parent or any of its Subsidiaries) in connection with the disposition of any Person (or division or similar business unit) disposed of by the Parent or any of its Subsidiaries during such period shall be assumed to have been repaid on the first day of such period. |
For purposes of clause (b)(ii) above, Scheduled Loan Payments means (A) for the Computation Period ending March 30, 2002, $6,000,000, (B) for the Computation Period ending June 29, 2002, $7,000,000, (C) for the Computation Period ending September 28, 2002, $9,000,000, (D) for the Computation Periods ending December 28, 2002, March 29, 2003, June 28, 2003 and September 27, 2003, $10,000,000, and (E) for any Computation Period ending thereafter, the amount of principal payments of the Loans scheduled to be made during such Computation Period. Foreign Subsidiary means each Subsidiary of the Parent which is organized under the laws of any jurisdiction other than, and which is conducting the majority of its business outside of, the United States or any state thereof. FRB means the Board of Governors of the Federal Reserve System or any successor thereto. Funded Debt means all Debt of the Parent and its Subsidiaries, excluding (i) contingent obligations in respect of undrawn letters of credit and Suretyship Liabilities (except, in each case, to the extent constituting Suretyship Liabilities in respect of Debt of a Person other than the Company or any Subsidiary), (ii) Hedging Obligations, (iii) Debt of the Company to Subsidiaries and Debt of Subsidiaries to the Company or to other Subsidiaries, (iv) Debt of Parent to the Company and (v) Seller Subordinated Debt. GAAP means generally accepted accounting principles set forth from time to time in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the U.S. accounting profession), which are applicable to the circumstances as of the date of determination. Group see Section 2.2.1. 12 |
Guaranteed Obligations means (a) all obligations of the Company to the Administrative Agent or any Lender, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, which arise under this Agreement or any other Loan Document (including with respect to Letters of Credit) and (b) all Hedging Obligations of the Company to any Lender or any affiliate of a Lender. Hedging Agreements means any interest rate, currency or commodity swap agreement, cap agreement or collar agreement, and any other agreement or arrangement designed to protect such Person against fluctuations in interest rates, currency exchange rates or commodity prices. Hedging Obligations means, with respect to any Person, all liabilities of such Person under Hedging Agreements. Immaterial Law means any provision of any Environmental Law the violation of which will not (a) violate any judgment, decree or order which is binding upon the Parent or any Subsidiary, (b) result in or threaten any injury to public health or the environment or any material damage to the property of any Person or (c) result in any liability or expense (other than any de minimis liability or expense) for the Parent or any Subsidiary; provided that no provision of any Environmental Law shall be an Immaterial Law if the Administrative Agent has notified the Parent or the Company that the Required Lenders have determined in good faith that such provision is material. Interest Expense means, for any Computation Period, the consolidated interest expense of the Parent and its Subsidiaries for such Computation Period (including all imputed interest on Capital Leases). Interest Period means, as to any Eurodollar Loan, the period commencing on the date such Loan is borrowed or continued as, or converted into, a Eurodollar Loan and ending on the date one month (or, if agreed by the Required Lenders, two, three or six months) thereafter, as selected by the Company pursuant to Section 2.2.2 or 2.2.3; provided that: |
(i) if any Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall be extended to the following Business Day unless the result of such extension would be to carry such Interest Period into another calendar month, in which event such Interest Period shall end on the preceding Business Day; |
(ii) any Interest Period for a Eurodollar Loan that begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period shall end on the last Business Day of the calendar month at the end of such Interest Period; |
(iii) the Company may not select any Interest Period for any Revolving Loan which would extend beyond the scheduled Revolving Termination Date; and |
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(iv) (A) the Company may not select any Interest Period for a Term A Loan if, after giving effect to such selection, the aggregate principal amount of all Term A Loans having Interest Periods ending after any date on which an installment of the Term A Loans is scheduled to be repaid would exceed the aggregate principal amount of the Term A Loans scheduled to be outstanding after giving effect to such repayment; and (B) the Company may not select any Interest Period for a Term B Loan if, after giving effect to such selection, the aggregate principal amount of all Term B Loans having Interest Periods ending after any date on which an installment of the Term B Loans is scheduled to be repaid would exceed the aggregate principal amount of the Term B Loans scheduled to be outstanding after giving effect to such repayment. |
Inventory has the meaning assigned to such term in the Uniform Commercial Code as in effect in the State of Illinois from time to time. Investment means, relative to any Person, (a) any loan or advance made by such Person to any other Person (excluding prepaid expenses in the ordinary course of business, accounts receivable arising in the ordinary course of business and commission, travel, relocation or similar loans or advances made to directors, officers and employees of the Parent or any of its Subsidiaries), (b) any Suretyship Liability of such Person, (c) any ownership or similar interest held by such Person in any other Person and (d) deposits and the like relating to prospective Acquisitions. Issuing Lender means Bank of America in its capacity as an issuer of Letters of Credit hereunder and any other Revolving Lender which, with the written consent of the Company and the Administrative Agent, is the issuer of one or more Letters of Credit. L/C Application means, with respect to any request for the issuance of a Letter of Credit, a letter of credit application in the form being used by the applicable Issuing Lender at the time of such request for the type of letter of credit requested; provided that to the extent any such letter of credit application is inconsistent with any provision of this Agreement, the applicable provision of this Agreement shall control. LC Fee Rate see Schedule 1.1. Lead Arranger means Banc of America Securities LLC in its capacity as arranger of the facilities hereunder. Lender see the Preamble. References to the Lenders and to the Revolving Lenders shall include the Issuing Lender and the Swing Line Lender; for purposes of clarification only, to the extent that Bank of America (or any successor Issuing Lender or Swing Line Lender) may have rights or obligations in addition to those of the other Lenders or the other Revolving Lenders, as applicable, due to its status as Issuing Lender or Swing Line Lender, its status as such will be specifically referenced. 14 |
Letter of Credit see Section 2.1.2. Lien means, with respect to any Person, any interest granted by such Person in any real or personal property, asset or other right owned or being purchased or acquired by such Person which secures payment or performance of any obligation and shall include any mortgage, lien, encumbrance, charge or other security interest of any kind, whether arising by contract, as a matter of law, by judicial process or otherwise. Loan means a Revolving Loan, a Swing Line Loan or a Term Loan. Loan Documents means this Agreement, the Notes, the Subsidiary Guaranty, the L/C Applications and the Collateral Documents. Loan Parties means the Parent, the Company and each Subsidiary Guarantor, and Loan Party means any of them. Margin Stock means any margin stock as defined in Regulation U of the FRB. Material Adverse Effect means (a) a material adverse change in, or a material adverse effect upon, the business, assets, liabilities (actual or contingent), operations, condition (financial or otherwise) or prospects of the Parent and its Subsidiaries taken as a whole, or (b) a material adverse effect upon any substantial portion of the collateral under the Collateral Documents or upon the legality, validity, binding effect or enforceability against any Loan Party of any Loan Document (other than as a result of a Person ceasing to be a Loan Party as a result of a transaction permitted hereunder). Mortgage means a mortgage, deed of trust, leasehold mortgage or similar instrument granting the Administrative Agent a Lien on real property owned or leased by the Company or any Subsidiary Guarantor. Multiemployer Pension Plan means a multiemployer plan, as such term is defined in Section 4001(a)(3) of ERISA, and to which the Company or any member of the Controlled Group may have any liability. Net Cash Proceeds means: |
(a) | with respect to any Asset Sale, the aggregate cash proceeds (including cash proceeds received by way of deferred payment of principal pursuant to a note, installment receivable or otherwise, but only as and when received) received by the Company or any Subsidiary pursuant to such Asset Sale, net of (i) the direct costs relating to such Asset Sale (including brokerage fees, sales and other commissions, legal, accounting and investment banking fees, survey costs, title insurance premiums and other customary fees and expenses incurred in connection therewith), (ii) taxes paid or reasonably estimated by the Company to be payable as a result thereof (after taking into account any available tax credits or deductions and any tax sharing arrangements), (iii) amounts required to be applied to the repayment of principal of any Debt (and related prepayment premiums) secured by a Lien on the asset subject to such Asset Sale (other than Debt hereunder), (iv) appropriate amounts to be provided by the Company or any Subsidiary, as the case may be, as a reserve, in accordance with GAAP, against any liabilities associated with the assets sold or disposed of in such Asset Sale and retained by the Company or such Subsidiary, as the case may be, after such Asset Sale, including pension and other post-employment benefit liabilities and liabilities related to environmental matters and liabilities under any indemnification obligation associated with the assets sold or disposed of in such Asset Sale (providedthat, if and to the extent that such reserves are no longer required to be maintained in accordance with GAAP, such amounts shall constitute Net Cash Proceeds, to the extent such amounts would have otherwise constituted Net Cash Proceeds under this clause (a)), (v) amounts that are used within 180 days following such Asset Sale to purchase replacement assets (or assets performing similar functions) and (vi) in the case of any proceeds arising out of the sublease of any property, amounts required to be paid in respect of the lease of such property); and |
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(b) | with respect to any issuance of equity securities or Debt, the aggregate cash proceeds received by the Company or any Subsidiary pursuant to such issuance, net of the direct costs relating to such issuance (including sales and underwriters discounts and commissions and legal, accounting and investment banking fees). |
Note see Section 3.1. Note Purchase Agreement means the Note and Equity Purchase Agreement dated as of December 21, 2001 among the Parent, the Company, American Capital Financial Services, Inc., as administrative agent, and the purchasers named therein. Operating Lease means any lease of (or other agreement conveying the right to use) any real or personal property by the Company or any Subsidiary, as lessee, other than any Capital Lease. Parent see the Preamble. Parent Guaranty means the guaranty of the Parent set forth in Section 13. Participant see Section 15.9.2. PBGC means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA. 16 |
Pension Plan means a pension plan, as such term is defined in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer Pension Plan), and to which the Company or any member of the Controlled Group may have any liability, including any liability by reason of having been a substantial employer within the meaning of Section 4063 of ERISA at any time during the preceding five years, or by reason of being deemed to be a contributing sponsor under Section 4069 of ERISA. Percentage means a Revolving Percentage, a Term A Percentage or a Term B Percentage, as the context may require. Person means any natural person, corporation, partnership, trust, limited liability company, association, governmental authority or unit, or other entity, whether acting in an individual, fiduciary or other capacity. Prime Rate means, for any day, the rate of interest in effect for such day as publicly announced from time to time by Bank of America in Charlotte, North Carolina, as its prime rate. (The prime rate is a rate set by Bank of America based upon various factors, including Bank of Americas costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.) Any change in the prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. Pro Forma EBITDA means, for any period, the sum of (a) EBITDA for such period plus (b) for the Computation Period ending (i) December 29, 2001, $4,900,000, (ii) March 30, 2002, $3,300,000 and (iii) June 29, 2002, $1,300,000 plus (c) to the extent deducted in determining Consolidated Net Income for such period, any Special Charges taken during such period; provided that in calculating Pro Forma EBITDA: (A) the consolidated net income of any Person (or business unit) acquired by the Company or any Subsidiary during such period (plus, to the extent deducted in determining such consolidated net income, interest expense, income tax expense, depreciation and amortization of such Person) shall be included on a pro forma basis for such period (assuming the consummation of each such Acquisition and the incurrence or assumption of any Debt in connection therewith occurred on the first day of such period) based upon (1) in the case of Blodgett, the pro forma financial information delivered to the Administrative Agent and the Lenders prior to the Effective Date and (2) in the case of any other Person, (x) to the extent available, (I) the audited consolidated balance sheet of such acquired Person and its consolidated Subsidiaries (or such business unit) as at the end of the fiscal year of such Person (or business unit) preceding such Acquisition and the related audited consolidated statements of income, stockholders equity and cash flows for such fiscal year and (II) any subsequent unaudited financial statements for such Person (or business unit) for the period prior such Acquisition so long as such statements were prepared on a basis consistent with the audited financial statements referred to above or (y) to the extent the items listed in clause (x) are not available, such historical financial statements and other information as is disclosed to, and reasonably approved by, the Required Lenders; and 17 |
(B) the consolidated net income of any Person (or division or similar business unit) disposed of by the Parent, the Company or any Subsidiary during such period (plus, to the extent deducted in determining such consolidated net income, interest expense, income tax expense, depreciation and amortization of such Person (or division or business unit)) shall be excluded on a pro forma basis for such period (assuming the consummation of such disposition occurred on the first day of such period). Related Person means (a) any living ancestor of William Whitman, Jr., (b) any descendant of William Whitman, Sr., (c) any spouse or former spouse of any of the foregoing and (d) any trustee for a trust on behalf of the foregoing. Required Lenders means at least three Lenders (unless there are less than three Lenders) having an aggregate Total Percentage of more than 50%. Responsible Financial Officer means, as to any Person, the chief financial officer, the treasurer or the controller of such Person. Responsible Officer means, as to any Person, the chief executive officer, president, any vice president, or any Responsible Financial Officer of such Person. Revolving Availability means the lesser of (i) the Revolving Commitment Amount and (ii) the Borrowing Base. Revolving Commitment means, as to any Lender, such Lenders commitment to make Revolving Loans, to participate in Swing Line Loans and to issue or participate in Letters of Credit under this Agreement. Revolving Commitment Amount means $27,500,000, as such amount may be reduced from time to time pursuant to the terms hereof. Revolving Lender means any Lender which has a Revolving Commitment or, after the termination of the Revolving Commitments, is the holder of any Revolving Loan or any participation in a Swing Line Loan or a Letter of Credit. Revolving Loan see Section 2.1.1. Revolving Outstandings means, at any time, the aggregate outstanding principal amount of all Revolving Loans and Swing Line Loans plus the aggregate Stated Amount of all Letters of Credit. 18 |
Revolving Percentage means, as to any Lender, the percentage which (a) the Revolving Commitment of such Lender (or, after termination of the Revolving Commitments, the principal amount of such Lenders Revolving Loans) is of (b) the aggregate amount of the Revolving Commitments (or after termination of the Revolving Commitments, the aggregate principal amount of all Revolving Loans); provided that, if and so long as any Lender fails to fund its participation in any Letter of Credit or Swing Line Loan when required by Section 2.3.5 or 2.4.3, such Lenders Revolving Percentage shall be deemed for purposes of this definition to be reduced to the extent of the defaulted amount and the Revolving Percentage of the Issuing Lender or the Swing Line Lender, as applicable, shall be deemed for purposes of this definition to be increased to such extent. The initial Revolving Percentage of each Lender is set forth across from such Lenders name on Schedule 2.1. Revolving Termination Date means the earlier to occur of (a) December 21, 2005 or (b) such other date on which the Revolving Commitments terminate pursuant to Section 6 or 12. SEC means the Securities and Exchange Commission, or any governmental agency succeeding to any of its principal functions. Security Agreement means a security agreement among the Parent, the Company, the Subsidiary Guarantors and the Administrative Agent substantially in the form of Exhibit D. Seller Subordinated Debt means Debt in original principal amount of up to $21,000,000 issued by the Parent in connection with the Blodgett Acquisition, together with any subordinated notes issued by the Parent as payments of interest thereon in kind and any capitalized interest thereon. Senior Funded Debt means the remainder of (a) Funded Debt minus (b) Subordinated Debt (other than Seller Subordinated Debt). Senior Leverage Ratio means, for any Computation Period, the ratio of (i) Senior Funded Debt as of the last day of such Computation Period to (ii) Pro Forma EBITDA for such Computation Period. Senior Subordinated Debt means Debt in original principal amount of not less than $25,000,000 issued by the Company on the Effective Date, together with any subordinated notes issued by the Company as payments of interest thereon in kind and any capitalized interest thereon. Special Charges means the up to $5,000,000 in the aggregate of special charges taken by (a) the Parent through the Fiscal Quarter ending December 28, 2002 relating to severance, and the closure of various locations of the Parent and various Subsidiaries, as a result of the Blodgett Acquisition and (b) Blodgett during the Fiscal Quarter ending December 29, 2001. 19 |
Specified Insurance Policy means the key man life insurance policy in an amount not exceeding $5,000,000 on the life of Selim Bassoul which is (or, upon issuance thereof, will be) pledged to the holders of the Senior Subordinated Debt. Stated Amount means, with respect to any Letter of Credit at any date of determination, the maximum aggregate amount available for drawing thereunder at any time during the remaining term of such Letter of Credit under any and all circumstances, plus the aggregate amount of all unreimbursed payments and disbursements under such Letter of Credit. Subordinated Debt means (a) the Seller Subordinated Debt, (b) the Senior Subordinated Debt and (c) any other Debt of the Company or the Parent which has maturities and other terms, and which is subordinated to the obligations of the Company and its Subsidiaries and the Parent to the extent applicable, hereunder and under the other Loan Documents in a manner, approved in writing by the Required Lenders. Subsidiary means, with respect to any Person, a corporation, partnership, limited liability company or other entity of which such Person and/or its other Subsidiaries own, directly or indirectly, such number of outstanding shares or other ownership interests as have more than 50% of the ordinary voting power for the election of directors or other managers of such entity. Unless the context otherwise requires, each reference to Subsidiaries herein shall be a reference to Subsidiaries of the Parent. Subsidiary Guarantor means, on any day, each Subsidiary that has executed a counterpart of the Subsidiary Guaranty on or prior to that day (or is required to execute a counterpart of the Subsidiary Guaranty on that date). Subsidiary Guaranty means a guaranty issued by various Subsidiaries of the Company substantially in the form of Exhibit C. Suretyship Liability means any agreement, undertaking or arrangement by which any Person guarantees, endorses or otherwise becomes or is contingently liable upon (by direct or indirect agreement, contingent or otherwise, to provide funds for payment, to supply funds to or otherwise to invest in a debtor, or otherwise to assure a creditor against loss) any indebtedness, obligation or other liability of any other Person (other than (a) customary indemnification obligations arising in the ordinary course of business under leases and other contracts and (b) by endorsements of instruments for deposit or collection in the ordinary course of business), or guarantees the payment of dividends or other distributions upon the shares of any other Person. The amount of any Persons obligation in respect of any Suretyship Liability shall (subject to any limitation set forth therein) be deemed to be the lesser of (i) the principal amount of the debt, obligation or other liability supported thereby and (ii) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Suretyship Liability, unless such primary obligation and the maximum amount for which such Person may be liable are not stated or determinable, in which case the amount of such Suretyship Liability shall be such Persons maximum reasonably anticipated liability in respect thereof as determined by such Person in good faith. 20 |
Swing Line Lender means Bank of America in its capacity as swing line lender hereunder, together with any replacement swing line lender arising under Section 14.9. Swing Line Loan see Section 2.4.1. Term A Commitment means, as to any Lender, such Lenders obligation to make a Term A Loan pursuant to Section 2.1.3. Term A Lender means any Lender which has a Term A Commitment or, after the making of the Term A Loans, is the holder of any Term A Loan. Term A Loan see Section 2.1.3. Term A Percentage means, as to any Term A Lender, the percentage which (a) the Term A Commitment of such Lender (or, after the making of the Term A Loans, the principal amount of such Lenders Term A Loan) is of (b) the aggregate amount of Term A Commitments (or, after the making of the Term A Loans, the aggregate principal amount of all Term A Loans). The initial Term A Percentage of each Lender is set forth across from such Lenders name on Schedule 2.1. Term B Commitment means, as to any Lender, such Lenders obligation to make a Term B Loan pursuant to Section 2.1.3. Term B Lender means any Lender which has a Term B Commitment or, after the making of the Term B Loans, is the holder of any Term B Loan. Term B Loan see Section 2.1.3. Term B Percentage means, as to any Term B Lender, the percentage which (a) the Term B Commitment of such Lender (or, after the making of the Term B Loans, the principal amount of such Lenders Term B Loan) is of (b) the aggregate amount of the Term B Commitments (or, after the making of the Term B Loans, the aggregate principal amount of all Term B Loans). The initial Term B Percentage of each Lender is set forth across from such Lenders name on Schedule 2.1. Term Loans means, collectively, the Term A Loans and the Term B Loans. Total Leverage Ratio means, for any Computation Period, the ratio of (i) Funded Debt as of the last day of such Computation Period to (ii) Pro Forma EBITDA for such Computation Period. Total Percentage means, as to any Lender, the percentage which (a) the Revolving Commitment of such Lender (or, after the termination of the Revolving Commitments, the sum of the unpaid principal amount of the Revolving Loans of such Lender plus the participations of such Lender in all Letters of Credit and Swing Line Loans) plus the unpaid principal amount of the Term Loans of such Lender is of (b) the sum of the Revolving Commitment Amount (or, after the termination of the Revolving Commitments, the unpaid principal amount of all Revolving Loans and Swing Line Loans plus the Stated Amount of all Letters of Credit) plus the unpaid principal amount of all Term Loans (or, prior to the Effective Date, the aggregate amount of the Term A Commitments and the Term B Commitments); provided that if and so long as any Lender fails to fund its participation in any Letter of Credit or Swing Line Loan when required by Section 2.3.5 or 2.4.3, such Lenders Total Percentage shall be deemed for purposes of this definition to be reduced to the extent of the defaulted amount and the Total Percentage of the Issuing Lender or the Swing Line Lender, as applicable, shall be deemed for purposes of this definition to be increased to such extent. 21 |
(i) elect, as of any Business Day, to convert any outstanding Loan into a Loan of the other type; or |
(ii) elect, as of the last day of the applicable Interest Period, to continue any Group of Eurodollar Loans having an Interest Period expiring on such day (or any part thereof in an aggregate amount not less than $1,000,000 or a higher integral multiple of $500,000) for a new Interest Period. |
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(b) The Company shall give written or telephonic (followed promptly by written confirmation thereof) notice to the Administrative Agent of each proposed conversion or continuation not later than (i) in the case of conversion into Base Rate Loans, 10:00 a.m., Chicago time, on the proposed date of such conversion; and (ii) in the case of a conversion into or continuation of Eurodollar Loans, 10:00 a.m., Chicago time, at least three Business Days prior to the proposed date of such conversion or continuation, specifying in each case: |
(1) | the proposed date of conversion or continuation; |
(2) | the aggregate amount of Loans to be converted or continued; |
(3) | the type of Loans resulting from the proposed conversion or continuation; and |
(4) | in the case of conversion into, or continuation of, Eurodollar Loans, the duration of the requested Interest Period therefor. |
(i) pay directly to the relevant authority the full amount required to be so withheld or deducted; |
(ii) promptly forward to the Administrative Agent a certified copy of an official receipt or other documentation reasonably satisfactory to the Administrative Agent evidencing such payment to such authority; and |
(iii) (except to the extent such withholding or deduction would not be required if such Lenders, Participants or Assignees Exemption Representation were true and such Lender, Participant or Assignee or the Administrative Agent had properly completed and delivered the necessary forms to the Company as required by Sections 7.6(d)and 14.10(a) through (c) to establish that it was not subject to any deduction or withholding) pay to the Administrative Agent for the account of such Lender, Participant or Assignee such additional amount or amounts as is necessary to ensure that the net amount actually received by such Lender, Participant or Assignee will equal the full amount such Lender, Participant or Assignee would have received had no such withholding or deduction been required. |
Moreover, if any Taxes are directly asserted against the Administrative Agent or any Lender, Participant or Assignee with respect to any payment received by the Administrative Agent or such Lender, Participant or Assignee hereunder, the Administrative Agent or such Lender, Participant or Assignee may pay such Taxes and the Company will (except to the extent such Taxes are payable by a Lender, Participant or Assignee and would not have been payable if such Lenders, Participants or Assignees Exemption Representation were true and such Lender, Participant or Assignee or the Administrative Agent had properly completed and delivered the necessary forms to the Company as required by Sections 7.6(d) and 14.10(a) through (c) to establish that it was not subject to any deduction or withholding) promptly pay such additional amounts (including any penalty, interest and expense) as is necessary in order that the net amount received by such Person after the payment of such Taxes (including any Taxes on such additional amount) shall equal the amount such Person would have received had such Taxes not been asserted. (b) If the Company fails to pay any Taxes when due to the appropriate taxing authority or fails to remit to the Administrative Agent, for the account of the respective Lender, Participant or Assignee the required receipts or other required documentary evidence, the Company shall indemnify such Lender, Participant or Assignee for any incremental Taxes, interest or penalties that may become payable by such Lender, Participant or Assignee as a result of any such failure; provided that the Company will not pay any Taxes (nor any interest or penalty relating thereto) that would not have been payable if such Lenders, Participants or Assignees Exemption Representation were true and such Lender, Participant or Assignee had properly completed and delivered the necessary forms to the Company as required by Sections 7.6(d) and 14.10(a) through (c) to establish that it was not subject to any deduction or withholding. For purposes of this Section 7.6, a distribution hereunder by the Administrative Agent or any Lender, Participant or Assignee to or for the account of any Lender, Participant or Assignee shall be deemed a payment by the Company. 36 |
(A) shall subject any Lender (or any Eurodollar Office of such Lender) to any additional tax, duty or other charge with respect to its Eurodollar Loans, its Note or its obligation to make Eurodollar Loans, or shall change the basis of taxation of payments to any Lender of the principal of or interest on its Eurodollar Loans or any other amounts due under this Agreement in respect of its Eurodollar Loans or its obligation to make Eurodollar Loans (except for changes in the rate of any franchise tax, branch profits tax or other tax imposed on or measured by the net income, net profits or receipts of such Lender or its Eurodollar Office imposed by the jurisdiction in which such Lenders principal executive office or Eurodollar Office is located, in which such Lender is organized or in which such Lender is doing business); or |
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(B) shall impose, modify or deem applicable any reserve (including any reserve imposed by the FRB, but excluding any reserve included in the determination of interest rates pursuant to Section 4), special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by any Lender (or any Eurodollar Office of such Lender); or |
(C) shall impose on any Lender (or its Eurodollar Office) any other condition affecting its Eurodollar Loans, its Note or its obligation to make Eurodollar Loans; |
and the result of any of the foregoing is to increase the cost to (or in the case of Regulation D of the FRB, to impose a cost on) such Lender (or any Eurodollar Office of such Lender) of making or maintaining any Eurodollar Loan, or to reduce the amount of any sum received or receivable by such Lender (or its Eurodollar Office) under this Agreement or under its Note with respect thereto, then within 10 Business Days after demand to the Company by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay directly to such Lender such additional amount as will compensate such Lender for such increased cost or such reduction. (b) If any Lender shall reasonably determine that the adoption or phase-in of any applicable law, rule or regulation regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by any Lender or any Person controlling such Lender with any request or directive regarding capital adequacy (whether or not having the force of law) of any such authority, central bank or comparable agency, has or would have the effect of reducing the rate of return on such Lenders or such controlling Persons capital as a consequence of such Lenders obligations hereunder or under any Letter of Credit to a level below that which such Lender or such controlling Person could have achieved but for such adoption, change or compliance (taking into consideration such Lenders or such controlling Persons policies with respect to capital adequacy) by an amount deemed by such Lender or such controlling Person to be material, then from time to time, within 10 Business Days after demand to the Company by such Lender (which demand shall be accompanied by a statement setting forth the basis for such demand and a calculation of the amount thereof in reasonable detail, a copy of which shall be furnished to the Administrative Agent), the Company shall pay to such Lender such additional amount or amounts as will compensate such Lender or such controlling Person for such reduction. 38 |
Computation Period Ending: |
Fixed Charge Coverage Ratio |
|||
---|---|---|---|---|
Effective Date through March 27, 2004 Thereafter |
1.20 to 1.0 1.30 to 1.0. |
10.6.2 Total Leverage Ratio. Not permit the Total Leverage Ratio as of the last day of any Computation Period to exceed the applicable ratio set forth below: |
Computation Period Ending: |
Total Leverage Ratio |
|||
---|---|---|---|---|
Effective Date through September 28, 2002 December 28, 2002 through June 28, 2003 Thereafter |
3.85 to 1.0 3.25 to 1.0 2.75 to 1.0. |
10.6.3 Senior Leverage Ratio. Not permit the Senior Leverage Ratio as of the last day of any Computation Period to exceed the applicable ratio set forth below: |
Computation Period Ending: |
Senior Leverage Ratio |
|||
---|---|---|---|---|
Effective Date through September 28, 2002 December 28, 2002 through June 28, 2003 Thereafter |
2.85 to 1.0 2.25 to 1.0 1.75 to 1.0. |
(a) Liens for taxes or other governmental charges not at the time delinquent or being contested in good faith by appropriate proceedings and, in each case, for which it maintains adequate reserves; (b) Liens arising in the ordinary course of business (such as (i) Liens of carriers, warehousemen, landlords, mechanics, repairmen and materialmen and other similar Liens imposed by law and (ii) Liens incurred in connection with workers compensation, unemployment compensation and other types of social security (excluding Liens arising under ERISA) or in connection with leases, surety bonds, bids, performance bonds and similar obligations) for sums not overdue for a period of more than 30 days or being contested in good faith by appropriate proceedings and not involving any deposits (other than deposits made to secure surety bonds, bids, performance bonds, trade contracts entered into in the ordinary course of business, leases not prohibited hereunder and other obligations of a similar nature incurred in the ordinary course of business and deposits permitted by Section 10.19(f), but excluding bonds of the types described in subsection (e) below) or advances or borrowed money or the deferred purchase price of property or services, and, in each case, for which it maintains adequate reserves; (c) Liens identified in Schedule 10.8 and Liens securing refinancings, refundings, renewals, replacements or extensions of the Debt originally secured by such Liens; provided that the amount of Debt secured thereby is not increased; (d) subject to the limitation set forth in Section 10.7(c), (i) Liens existing on property at the time of the acquisition thereof by the Company or any Subsidiary (and not created in contemplation of such acquisition), (ii) Liens that constitute purchase money security interests on any property securing debt incurred for the purpose of financing all or any part of the cost of acquiring such property, provided that any such Lien attaches to such property within 60 days of the acquisition thereof and such Lien attaches solely to the property so acquired and (iii) Liens arising under Capital Leases; (e) attachments, appeal bonds, judgments and other similar Liens, for sums not exceeding $500,000 in the aggregate arising in connection with court proceedings, provided the execution or other enforcement of such Liens is effectively stayed and the claims secured thereby are being actively contested in good faith and by appropriate proceedings; (f) leases, subleases, encroachments, subdivisions, easements, rights of way, restrictions, minor defects or irregularities in title and other similar Liens not interfering in any material respect with the ordinary conduct of the business of the Company or any Subsidiary; (g) Liens in favor of the Administrative Agent arising under the Loan Documents; (h) Liens arising solely by virtue of any statutory or common law provision relating to bankers liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depository institution; 52 |
Each Lender, Participant or Assignee or the Administrative Agent, as the case may be, agrees to promptly notify the Company and the Administrative Agent of any change in circumstances which would modify or render invalid any claimed exemption or reduction. In addition, each Lender, Participant or Assignee or the Administrative Agent, as the case may be, shall deliver to the Company and the Administrative Agent two further copies of such Form W-8BEN or W-8ECI or successor applicable forms or other manner of certification on or before the date that any such prior form expires or becomes obsolete or after the occurrence of any event requiring a change in the most recent form previously delivered by such Person to the Company and the Administrative Agent. (b) If any Lender claims exemption from, or reduction of, withholding tax by providing IRS Form W-8ECI and such Lender sells, assigns, grants a participation in, or otherwise transfers all or part of the obligations of the Company to such Lender, such Lender agrees to notify the Administrative Agent of the percentage amount in which it is no longer the beneficial owner of such obligations of the Company hereunder. To the extent of such percentage amount, the Administrative Agent will treat such Lenders IRS Form W-8ECI as no longer valid. (c) If any Lender claiming exemption from United States withholding tax by filing IRS Form W-8BEN with the Administrative Agent sells, assigns, grants a participation in, or otherwise transfers all or part of the obligations of the Company to such Lender hereunder, such Lender agrees to undertake sole responsibility for complying with the withholding tax requirements imposed by Sections 1441 and 1442 of the Code. (d) If any Lender, Assignee or Participant is entitled to a reduction in the applicable withholding tax, the Company or the Administrative Agent may withhold from any interest payment to such Lender, Assignee or Participant an amount equivalent to the applicable withholding tax after taking into account such reduction. If the forms or other documentation required by clause (a) of this Section are not delivered to the Company or the Administrative Agent, then the Company or the Administrative Agent may withhold from any interest payment to such Lender, Assignee or Participant not providing such forms or other documentation an amount equivalent to the applicable withholding tax. 71 |
(w) the Assignee shall have complied with the requirements set forth in Section 14.10, if applicable, |
(x) five Business Days (or such lesser period of time as the Administrative Agent and the assigning Lender shall agree) shall have passed after written notice of such assignment and delegation, together with payment instructions, addresses and related information with respect to such Assignee, shall have been given to the Company and the Administrative Agent by such assigning Lender and the Assignee, |
(y) the assigning Lender and the Assignee shall have executed and delivered to the Company and the Administrative Agent an assignment agreement substantially in the form of Exhibit F (an Assignment Agreement), together with any documents required to be delivered thereunder, which Assignment Agreement shall have been accepted by the Administrative Agent and, if required, the Company, and |
75 |
(z) the assigning Lender or the Assignee shall have paid the Administrative Agent a processing fee of $3,500. |
MIDDLEBY MARSHALL INC. By: /s/ David B. Baker Title: Vice President and Chief Financial Officer |
THE MIDDLEBY CORPORATION By: /s/ David B. Baker Title: Vice President and Chief Financial Officer |
80 |
BANK OF AMERICA, N.A., as Administrative Agent |
By: /s/ David A. Johanson Title: Vice President |
Signature page to Middleby Credit Agreement |
BANK OF AMERICA, N.A., as Issuing Lender, Swing Line Lender and a Lender |
By: /s/ William S. Richards, Jr. Title: Senior Vice President |
Signature page to Middleby Credit Agreement |
FLEET NATIONAL BANK, as Syndication Agent and as a Lender |
By: /s/ Kenneth R. Sheldon Title: Vice President |
Signature page to Middleby Credit Agreement |
THE NORTHERN TRUST COMPANY |
By: /s/ Eileen L. Sachanda Title: Vice President |
Signature page to Middleby Credit Agreement |
LASALLE BANK NATIONAL ASSOCIATION |
By: /s/ Peg Laughlin Title: Executive Vice President |
Signature page to Middleby Credit Agreement |
FIFTH THIRD BANK (CHICAGO) |
By: /s/ Joseph P. Gaffigan Title: Senior Vice President |
Signature page to Middleby Credit Agreement |
SCHEDULE 1.1 PRICING SCHEDULE The Base Rate Margin for Revolving Loans and Term A Loans, the Eurodollar Margin for Revolving Loans and Term A Loans, the Commitment Fee Rate and the LC Fee Rate for Commercial and Standby Letters of Credit, respectively, shall be determined in accordance with the table below and the other provisions of this Schedule 1.1. |
Level I | Level II | Level III | Level IV | Level V | |||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Commitment Fee Rate | 0.400 | % | 0.450 | % | 0.500 | % | 0.500 | % | 0.500 | % | |||||||
Eurodollar Margin | 2.250 | % | 2.500 | % | 2.750 | % | 3.000 | % | 3.250 | % | |||||||
Base Rate Margin | 0.750 | % | 1.000 | % | 1.250 | % | 1.500 | % | 1.750 | % | |||||||
LC Fee Rate for Standby Letters of Credit |
2.250 | % | 2.500 | % | 2.750 | % | 3.000 | % | 3.250 | % | |||||||
LC Fee Rate for Commercial Letters of Credit |
1.125 | % | 1.250 | % | 1.375 | % | 1.500 | % | 1.625 | % | |||||||
Level I applies when the Total Leverage Ratio is less than 1.00 to 1. Level II applies when the Total Leverage Ratio is equal to or greater than 1.00 to 1 but less than 1.5 to 1. Level III applies when the Total Leverage Ratio is equal to or greater than 1.50 to 1 but less than 2.00 to 1. Level IV applies when the Total Leverage Ratio is equal to or greater than 2.00 to 1 but less than 2.50 to 1. Level V applies when the Total Leverage Ratio is equal to or greater than 2.50 to 1. Initially, the applicable Level shall not be determined in accordance with the Total Leverage Ratio but shall be Level V. Beginning on June 30, 2002, the applicable Level shall be adjusted, to the extent applicable, 45 days (or, in the case of the last Fiscal Quarter of any Fiscal Year, 90 days) after the end of each Fiscal Quarter based on the Total Leverage Ratio as of the last day of such Fiscal Quarter; provided that if the Company fails to deliver the financial statements required by Section 10.1.1 or 10.1.2, as applicable, and the related certificate required by Section 10.1.4 by the 45th day (or, if applicable, the 90th day) after any Fiscal Quarter, Level V shall apply until such financial statements are delivered. |
SCHEDULE 2.1 LENDERS AND PERCENTAGES |
Lender | Revolving Commitment |
Term A Commitment |
Term B Commitment |
Total Commitment |
Revolving Percentage |
Term A Percentage |
Term B Percentage |
Total Percentage | |||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Bank of America, N.A | $7,192,309.00 | $9,807,691.00 | $3,000,000.00 | $20,000,000.00 | 26.153850909 | % | 26.153842667 | % | 100.000000000 | % | 29.411764705 | % | |||||
Fleet National Bank | $6,134,615.00 | $8,365,385.00 | $0.00 | $14,500,000.00 | 22.307690909 | % | 22.307693333 | % | 0 | % | 21.323529411 | % | |||||
LaSalle Bank National Association |
$5,711,538.00 | $7,788,462.00 | $0.00 | $13,500,000.00 | 20.769229091 | % | 20.769232000 | % | 0 | % | 19.852941176 | % | |||||
The Northern Trust Company | $4,230,769.00 | $5,769,231.00 | $0.00 | $10,000,000.00 | 15.384614545 | % | 15.384616000 | % | 0 | % | 14.705882352 | % | |||||
Fifth Third Bank (Chicago) | $4,230,769.00 | $5,769,231.00 | $0.00 | $10,000,000.00 | 15.384614545 | % | 15.384616000 | % | 0 | % | 14.705882352 | % | |||||
TOTALS | $27,500,000.00 | $37,500,000.00 | $3,000,000.00 | $68,000,000.00 | 100.000000000 | % | 100.000000000 | % | 100.000000000 | % | 100.000000000 | % | |||||
SCHEDULE 6.1 |
DATE |
PRINCIPAL PAYMENT |
---|---|
March 31, 2002 | $1,500,000 |
June 30, 2002 | $2,000,000 |
September 30, 2002 | $3,250,000 |
December 31, 2002 | $3,250,000 |
March 31, 2003 | $2,500,000 |
June 30, 2003 | $2,500,000 |
September 30, 2003 | $2,500,000 |
December 31, 2003 | $2,500,000 |
March 31, 2004 | $2,375,000 |
June 30, 2004 | $2,375,000 |
September 30, 2004 | $2,375,000 |
December 31, 2004 | $2,375,000 |
March 31, 2005 | $2,000,000 |
June 30, 2005 | $2,000,000 |
September 30, 2005 | $2,000,000 |
December 21, 2005 | $2,000,000 |
* To be revised to reflect payment on last day of Fiscal Quarters |
SCHEDULE 9.6 LITIGATION AND CONTINGENT LIABILITIES |
SCHEDULE 9.7 OWNERSHIP OF PROPERTIES; LIENS |
SCHEDULE 9.8
Middleby Marshall Inc. |
SCHEDULE 9.15 ENVIRONMENTAL MATTERS |
SCHEDULE 10.7(g) DEBT TO BE REPAID |
SCHEDULE 10.7(i) EXISTING DEBT |
SCHEDULE 10.8 EXISTING LIENS |
SCHEDULE 10.19 EXISTING INVESTMENTS |
SCHEDULE 11.1.11 MORTGAGED PROPERTY |
Owner |
Property Address |
County |
||
Middleby Marshall, Inc. | 1400 Toastmaster Drive Elgin, IL |
Cook | ||
Middleby Marshall, Inc. | 1100 Old Honeycutt Road Fuquay-Varina, NC |
Wake | ||
Cloverleaf Properties, Inc. | 42-44-50 Lakeside Avenue Burlington, VT |
Chittenden | ||
Cloverleaf Properties, Inc. | Junction Routes 89 & 93 Bow, New Hampshire |
Merrimack |
SCHEDULE 15.3 MIDDLEBY MARSHALL, INC. 1400 Toastmaster Drive BANK OF AMERICA, N.A., as Administrative Agent For notices of borrowing, payments and other administrative matters: 231 S. LaSalle Street BANK OF AMERICA, N.A., as Issuing Lender, as Swing Line Lender, and as a Lender 231 S. LaSalle Street |
FLEET NATIONAL BANK, as Syndication Agent and as a Lender For notices of borrowing, payments and other administrative matters: 1155 Elm Street For all other notices: Attention: Ken Sheldon FIFTH THIRD BANK (CHICAGO) 233 S. Wacker Drive For all other notices: Attention: Joshua Van Manen THE NORTHERN TRUST COMPANY For notices of borrowing, payments and other administrative matters: 50 S. LaSalle St. For all other notices: Attention: Eileen Sachanda |
LASALLE BANK NATIONAL ASSOCIATION Fax notices of borrowing, payments and other administrative matters: 135 S. LaSalle Street For all other notices: Attention: Peg Laughlin |
Exhibit 4.4 DATED DECEMBER 21, 2001 G.S. BLODGETT CORPORATION - and - BANK OF AMERICA, N.A., DEED OF CHARGE MAYER, BROWN &PLATT |
THIS DEED OF CHARGE AND MEMORANDUM OF DEPOSIT is dated the 21st day of December, 2001. BETWEEN: (1) G.S. BLODGETT CORPORATION, a Vermont corporation (the Depositor); and (2) BANK OF AMERICA, N.A., as administrative agent for the Lender Parties referred to below (in such capacity, together with any successor and assign in such capacity, the Administrative Agent). WHEREAS: (A) The Borrower, Middleby Marshall Inc. (the Borrower), The Middleby Corporation, various financial institutions (the Lenders) and the Administrative Agent have entered into a Credit Agreement dated December 21, 2001 (as amended, restated or otherwise modified from time to time, the Credit Agreement). (B) The Depositor has guaranteed all of the obligations of the Borrower under or in connection with the Credit Agreement and in respect of certain hedging obligations pursuant to a Subsidiary Guaranty dated December 21, 2001 (the Subsidiary Guaranty). (C) The Depositor will benefit from the making of loans and the issuance of letters of credit pursuant to the Credit Agreement. (D) The obligations of the Depositor under the Subsidiary Guaranty are to be secured pursuant to this Charge and Memorandum of Deposit (as amended, supplemented or otherwise modified from time to time, this Charge and Memorandum) as more fully described below. (E) For and in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as set forth in this Charge and Memorandum. ARTICLE 1. DEFINITIONS SECTION 1.1. Certain Terms. The following terms (whether or not underscored) when used in this Charge and Memorandum, including its preamble and recitals, shall have the following meanings (such definitions to be equally applicable to the singular and plural forms thereof): Administrative Agent is defined in the preamble. |
Borrower is defined in the first recital. Charge and Memorandum is defined in the fourth recital. Charged Property means all Charged Shares and all other securities, assignments of amounts due or to become due and other instruments which are now being delivered by the Depositor to the Administrative Agent or may from time to time hereafter be delivered by the Depositor to the Administrative Agent for the purpose of granting security under this Charge and Memorandum, and all proceeds of any of the foregoing. Charged Share Issuer means the company referred to in the Attachment hereto as such. Charged Shares means all shares of the Charged Share Issuer which are delivered by the Depositor to the Administrative Agent as Charged Property hereunder, which shall at all times constitute not less than 65% of the issued share capital of such Charged Share Issuer. Collateral is defined in Section 2.1. Costs and Expenses means all reasonable out-of-pocket costs and expenses (including reasonable attorneys fees and legal expenses) incurred by the Administrative Agent in connection with (i) the Depositors execution, delivery and performance of this Charge and Memorandum, (ii) protecting, preserving or maintaining any Collateral, (iii) collecting the Liabilities and (iv) enforcing any rights of the Administrative Agent hereunder in respect of the Collateral. Credit Agreement is defined in the first recital. Default means the occurrence of any of the following events: (i) any Unmatured Event of Default with respect to the Parent or the Borrower under Section 12.1.3 of the Credit Agreement, (ii) any Event of Default or (iii) any warranty of the Depositor herein is untrue or misleading in any material respect and, as a result thereof, the Administrative Agents security interest in any material portion of the Collateral is not perfected or the Administrative Agents rights and remedies with respect to any material portion of the Collateral are materially impaired or otherwise materially adversely affected. Depositor is defined in the preamble. Distributions means all stock dividends, all liquidating dividends, all shares of stock resulting from any merger or consolidation of the Charged Share Issuer or from (or in connection with the exercise of) stock splits, reclassifications, warrants, options or non-cash dividends and all other distributions (whether similar or dissimilar to the foregoing) on or with respect to any Charged Shares or other shares constituting Collateral, but shall not include Dividends. Dividends means cash dividends and cash distributions with respect to any Charged Shares or other Charged Property made in the ordinary course of business and not a liquidating dividend. -2- |
Lenders is defined in the first recital. Lender Party means each Lender and any Affiliate of a Lender which is a party to a Hedging Agreement with the Borrower, and Lender Parties means all of them. Liabilities means all obligations of the Depositor under or in connection with the Subsidiary Guaranty, as the same may be amended, modified, extended or renewed from time to time. Person means any individual, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) or any two or more of the foregoing. Subsidiary Guaranty is defined in the second recital. SECTION 1.2. Credit Agreement Definitions. Unless otherwise defined herein or the context otherwise requires, terms used in this Charge and Memorandum, including its preamble and recitals, have the meanings provided in the Credit Agreement. ARTICLE 2. SECURITY INTEREST SECTION 2.1. Grant of Security Interest. The Depositor by way of continuing security for the payment and satisfaction when due of the Liabilities hereby charges by way of first fixed charge and assigns by way of security, to the Administrative Agent, for its benefit and the ratable benefit of the Lender Parties, all of its right, title and interest in and to the following property (the Collateral): |
2.1.1. all issued and outstanding shares of the Charged Share Issuer identified in the Attachment hereto; |
2.1.2. all other Charged Property, whether now or hereafter delivered to the Administrative Agent in connection with this Charge and Memorandum; |
2.1.3. all Dividends, Distributions, interest and other payments and rights distributed in respect of or in exchange for any Charged Property; and 1.1.1. |
2.1.4. all proceeds of any of the foregoing; |
provided that to the extent the Charged Share Issuer issues a Dividend and/or makes a Distribution which does not violate the terms of this Charge and Memorandum, the Credit Agreement or any other Loan Document, such Dividend shall not be considered to be Collateral; and provided, further that Collateral shall not include shares of the Charged Share Issuer in excess of 65% of the total combined voting power of all issued share capital of such Charged Share Issuer. -3- |
SECTION 2.2. Delivery of Charged Property. All certificates and instruments representing or evidencing any Collateral, including all Charged Shares, shall be delivered to and held by or on behalf of the Administrative Agent pursuant hereto, shall be in suitable form for transfer by delivery and shall be accompanied by all necessary instruments of transfer or assignment, duly executed in blank. SECTION 2.3. Dividends on Charged Shares. If any Dividend is to be paid on any Charged Share at a time when no Default exists, such Dividend may be paid directly to the Depositor. During the existence of a Default, all Dividends shall be paid directly to the Administrative Agent. SECTION 2.4. Continuing Security Interest; Transfer of Note. This Charge and Memorandum shall create a continuing security interest in the Collateral and shall |
2.4.1. remain in full force and effect until payment in full in cash of all Liabilities and the termination of all commitments to create Liabilities (other than contingent indemnification obligations not yet due and payable), |
2.4.2. be binding upon the Depositor and its successors, transferees and assigns, and |
2.4.3. inure, together with the rights and remedies of the Administrative Agent hereunder, to the benefit of the Administrative Agent and each other Lender Party and their respective successors and assigns. |
ARTICLE 3. REPRESENTATIONS AND WARRANTIES SECTION 3.1. Representations and Warranties, etc. The Depositor represents and warrants unto each Lender Party, as at the date of each charge and assignment and delivery hereunder by the Depositor to the Administrative Agent of any Collateral, as set forth in this Article. SECTION 3.2. Ownership, No Liens, etc. The Depositor has full title guarantee to (and has full right and authority to charge and assign) such Collateral, free and clear of all liens, security interests, options or other charges or encumbrances, other than (a) liens arising hereunder and (b) inchoate tax and ERISA liens. SECTION 3.3. Valid Security Interest. The delivery of such Collateral to the Administrative Agent is effective to create a valid first fixed charge and assignment by way of security in such Collateral and all proceeds thereof, securing the Liabilities. No filing or other action will be necessary to perfect or protect such security interest other than registration of this Charge and Memorandum under Section 395 of the Companies Act 1985 which shall be completed by Mayer, Brown & Platt within 21 days of the date of this Charge and Memorandum. -4- |
SECTION 3.4. As to Charged Shares. In the case of any Charged Shares constituting such Collateral, all of such Charged Shares are duly authorized and validly issued, fully paid, and non-assessable, and the Charged Shares charged hereunder constitute not less than 65% of the issued and outstanding shares of capital stock of the Charged Share Issuer. SECTION 3.5. Authorization, Approval, etc. No authorization, approval or other action by, and no notice to or filing (other than as referred to in Section 3.3) with, any governmental authority, regulatory body or other Person is required either |
3.5.1. for the charge and assignment by the Depositor of any Collateral pursuant to this Charge and Memorandum or for the execution, delivery and performance of this Charge and Memorandum by the Depositor, or |
3.5.2. for the exercise by the Administrative Agent of the voting or other rights provided for in this Charge and Memorandum, or, except with respect to any Charged Shares, as may be required in connection with a disposition of such Charged Shares by laws affecting the offering and sale of securities generally, the remedies in respect of the Collateral pursuant to this Charge and Memorandum. |
ARTICLE 4. COVENANTS SECTION 4.1. Protect Collateral. The Depositor will not sell, assign, transfer, pledge or encumber in any other manner the Collateral (except (a) in favour of the Administrative Agent hereunder and (b) for sales, assignments, transfers, pledges or encumbrances which are not prohibited by the Credit Agreement). The Depositor will take all reasonable steps to warrant and defend the right and title herein granted unto the Administrative Agent in and to the Collateral (and all right, title, and interest represented by the Collateral) against the claims and demands of all Persons whomsoever. The Depositor agrees that at any time, and from time to time, at the expense of the Depositor, the Depositor will promptly execute and deliver all further instruments, and take all further action, that may be necessary, or that the Administrative Agent may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable the Administrative Agent to exercise and enforce its rights and remedies hereunder with respect to any Collateral. SECTION 4.2. Stock Transfer Forms, etc. The Depositor agrees that all Charged Shares (and all other shares constituting Collateral) delivered by the Depositor pursuant to this Charge and Memorandum will be accompanied by duly executed undated blank stock transfer forms, or other equivalent instruments of transfer reasonably acceptable to the Administrative Agent. The Depositor will, from time to time upon the reasonable request of the Administrative Agent, promptly deliver to the Administrative Agent such stock transfer forms, instruments and similar documents, reasonably satisfactory in form and substance to the Administrative Agent, with respect to the Collateral as the Administrative Agent may reasonably request and will, from time to time upon the request of the Administrative Agent during the existence of a Default, promptly transfer any Charged Shares or other shares constituting Collateral into the name of any nominee designated by the Administrative Agent. -5- |
SECTION 4.3. Continuous Security. The Depositor will, at all times, keep charged and assigned to the Administrative Agent pursuant hereto all Charged Shares and all other shares constituting Collateral, all Dividends and Distributions with respect thereto (except as provided in the proviso to Section 2.1) and all other Collateral and other securities, instruments, proceeds and rights from time to time received by or distributable to the Depositor in respect of any Collateral. SECTION 4.4. Voting Rights; Dividends, etc. The Depositor agrees: |
4.4.1. during the existence of a Default, promptly upon receipt of notice thereof from the Administrative Agent to the Depositor, to deliver (properly endorsed where required hereby or requested by the Administrative Agent) to the Administrative Agent all Dividends, Distributions and other proceeds of the Collateral received by the Depositor, all of which shall be held by the Administrative Agent as additional Collateral for use in accordance with Section 6.4; and |
4.4.2. during the existence of a Default after the Administrative Agent has notified the Depositor of the Administrative Agent's intention to exercise its voting power under this Section 4.4.2: |
(1) the Administrative Agent may exercise (to the exclusion of the Depositor) the voting power and all other incidental rights of ownership with respect to any Charged Shares or other shares of capital stock constituting Collateral and the Depositor hereby grants the Administrative Agent an irrevocable proxy, exercisable under such circumstances, to vote the Charged Shares and such other Collateral; and |
(2) promptly to deliver to the Administrative Agent such additional proxies and other documents as may be necessary to allow the Administrative Agent to exercise such voting power. |
All Dividends, Distributions and other proceeds of the Collateral which may at any time and from time to time be held by the Depositor which the Depositor is then obligated to deliver to the Administrative Agent shall, until delivery to the Administrative Agent, be held by the Depositor separate and apart from its other property in trust for the Administrative Agent. The Administrative Agent agrees that unless a Default exists and the Administrative Agent shall have given the notice referred to above in this Section 4.4.2, the Depositor shall have the exclusive voting power with respect to any shares (including any of the Charged Shares) constituting Collateral and the Administrative Agent shall, upon the written request of the Depositor, promptly deliver such proxies and other documents, if any, as shall be reasonably requested by the Depositor which are necessary to allow the Depositor to exercise voting power with respect to any such shares (including any of the Charged Shares) constituting Collateral; provided that no vote shall be cast, or consent, waiver or ratification given, or action taken by the Depositor that would violate this Charge and Memorandum or any other Loan Document. -6- |
ARTICLE 5. THE AGENT SECTION 5.1. Administrative Agent Appointed Attorney-in-Fact. The Depositor hereby irrevocably appoints the Administrative Agent the Depositors attorney-in-fact, with full authority in the place and stead of the Depositor and in the name of the Depositor or otherwise, from time to time in the Administrative Agents discretion, to take any action and to execute any instrument which the Administrative Agent may deem necessary or advisable during the existence of a Default to accomplish the purposes of this Charge and Memorandum, including: |
5.1.1. to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Collateral; |
5.1.2. to receive, endorse and collect any drafts or other instruments, documents and chattel paper, in connection with Section 5.1.1 above; and |
5.1.3. to file any claim or take any action or institute any proceeding which the Administrative Agent may deem necessary or desirable for the collection of any of the Collateral or otherwise to enforce the rights of the Administrative Agent with respect to any of the Collateral. |
The Depositor hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Charge and Memorandum is irrevocable and coupled with an interest. SECTION 5.2. Administrative Agent May Perform. If the Depositor fails to perform any agreement contained herein, the Administrative Agent may itself perform, or cause performance of, such agreement, and the reasonable Costs and Expenses of the Administrative Agent in connection therewith shall be payable by the Depositor pursuant to Section 6.4. SECTION 5.3. Administrative Agent Has No Duty. The powers conferred on the Administrative Agent hereunder are solely to protect its interest (on behalf of the Lender Parties) in the Collateral and shall not impose any duty on it to exercise any such powers. Except for reasonable care of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Administrative Agent shall have no duty as to any Collateral or responsibility for -7- |
5.3.1. ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Charged Property, whether or not the Administrative Agent has or is deemed to have knowledge of such matters, or |
5.3.2. taking any necessary steps to preserve rights against prior parties or any other rights pertaining to any Collateral. |
SECTION 5.4. Reasonable Care. The Administrative Agent is required to exercise reasonable care in the custody and preservation of any of the Collateral in its possession; provided that the Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of any of the Collateral if it takes such action for that purpose as the Depositor reasonably requests in writing, but failure of the Administrative Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. ARTICLE 6. REMEDIES SECTION 6.1. Certain Remedies. During the existence of a Default: |
6.1.1. The Administrative Agent may exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party upon a default and also may, without notice except as specified below, sell the Collateral or any part thereof in one or more parcels at public or private sale, at any of the Administrative Agents offices or elsewhere, for cash, on credit or for future delivery, and upon such other terms as the Administrative Agent may determine to be commercially reasonable. The Depositor agrees that, to the extent notice of sale shall be required by law, at least ten daysprior notice to the Depositor of the time and place of any public sale or the time after which any private sale is to be made shall constitute reasonable notification. The Administrative Agent shall not be obligated to make any sale of Collateral regardless of notice of sale having been given. The Administrative Agent may adjourn any public or private sale from time to time by announcement at the time and place fixed therefor, and such sale may, without further notice, be made at the time and place to which it was so adjourned. |
6.1.2. The Administrative Agent may |
(1) transfer all or any part of the Collateral into the name of the Administrative Agent or its nominee, with or without disclosing that such Collateral is subject to the lien and security interest hereunder, |
(2) notify the parties obligated on any of the Collateral to make payment to the Administrative Agent of any amount due or to become due thereunder, |
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(3) enforce collection of any of the Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto, |
(4) endorse any cheques, drafts or other writings in the Depositor's name to allow collection of the Collateral, |
(5) take control of any proceeds of the Collateral, and |
(6) execute (in the name, place and stead of the Depositor) endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Collateral. |
SECTION 6.2. Further Assurance. If the Administrative Agent shall determine to exercise its right to sell all or any of the Collateral pursuant to Section 6.1, the Depositor agrees that, upon request of the Administrative Agent, the Depositor will, at its own expense, execute and deliver, and cause the issuer of the Collateral contemplated to be sold and the directors and officers thereof to execute and deliver, all such instruments and documents, and do or cause to be done all such other acts and things as may be necessary or, in the opinion of the Administrative Agent, advisable to make such sale of the Collateral or any part thereof valid and binding and in compliance with applicable law. SECTION 6.3. Compliance with Restrictions. The Depositor agrees that in any sale of any of the Collateral during the existence of a Default, the Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with such sale as it may be advised by counsel is necessary in order to avoid any violation of applicable law (including compliance with such procedures as may restrict the number of prospective bidders and purchasers, require that such prospective bidders and purchasers have certain qualifications, and restrict such prospective bidders and purchasers to Persons who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral), or in order to obtain any required approval of the sale or of the purchaser by any governmental or regulatory authority or official, and the Depositor further agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner, nor shall the Administrative Agent be liable nor accountable to the Depositor for any discount allowed by the reason of the fact that such Collateral is sold in compliance with any such limitation or restriction. SECTION 6.4. Application of Proceeds. All cash proceeds received by the Administrative Agent in respect of any sale of, collection from or other realization upon all or any part of the Collateral may, in the discretion of the Administrative Agent, be held by the Administrative Agent as additional collateral security for, or then or at any time thereafter be applied (after payment of any amounts payable to the Administrative Agent pursuant to the Credit Agreement and Section 6.5) in whole or in part by the Administrative Agent against all or any part of the Liabilities in accordance with the terms of the Credit Agreement. -9- |
SECTION 6.5. Indemnity and Expenses. The Depositor hereby indemnifies and holds harmless the Administrative Agent from and against any and all claims, losses and liabilities arising out of or resulting from this Charge and Memorandum (including enforcement of this Charge and Memorandum), except claims, losses or liabilities resulting from the Administrative Agents gross negligence or wilful misconduct. Within three Business Days after demand therefor (which demand shall be accompanied by a written statement specifying in reasonable detail the basis for such demand), the Depositor will pay to the Administrative Agent the amount of any and all Costs and Expenses. ARTICLE 7. MISCELLANEOUS PROVISIONS SECTION 7.1. Loan Document. This Charge and Memorandum is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated herein) be construed, administered and applied in accordance with the terms and provisions thereof. SECTION 7.2. Amendments, etc. No amendment to or waiver of any provision of this Charge and Memorandum nor consent to any departure by the Depositor herefrom shall be effective unless the same shall be in writing and signed by the Administrative Agent and the Depositor, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it is given. SECTION 7.3. Protection of Collateral. The Administrative Agent may from time to time, at its option, perform any act which the Depositor agrees hereunder to perform and which the Depositor shall fail to perform after being requested in writing so to perform (it being understood that no such request need be given during the existence of a Default) and the Administrative Agent may from time to time take any other action which the Administrative Agent reasonably considers necessary for the maintenance, preservation or protection of any of the Collateral or of its security interest therein. SECTION 7.4. Notices. All notices hereunder shall be in writing (including facsimile transmission) and shall be sent to the applicable party at its address shown below its signature hereto or at such other address as such party may, by written notice to the other party, have designated as its address for such purpose. Notices sent by facsimile transmission shall be deemed to have been given when sent with confirmation of receipt; notices sent by mail shall be deemed to have been given five Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier shall be deemed to have been given when received. -10- |
SECTION 7.5. Captions. Captions used in this Charge and Memorandum are for convenience of reference only, and shall not affect the construction of this Charge and Memorandum. SECTION 7.6. Severability. Wherever possible each provision of this Charge and Memorandum shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Charge and Memorandum shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Charge and Memorandum. SECTION 7.7. Counterparts. This Charge and Memorandum may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. SECTION 7.8. Law of Property Act, 1925. Sections 93 (restricting the rights of consolidation) and 103 (restricting the right of sale) of the Law of Property Act, 1925 shall not apply to the security evidenced by this Charge and Memorandum. SECTION 7.9. Governing Law and Jurisdiction. |
7.9.1. This Charge and Memorandum shall be governed by and construed in accordance with English law. |
7.9.2. The Depositor irrevocably agrees for the exclusive benefit of the Administrative Agent that the High Court of Justice in England is to have jurisdiction to settle any disputes which may arise out of or in connection with this Charge and Memorandum and that accordingly any suit, action or proceeding arising out of or in connection with this Charge and Memorandum (in this Section 7.9 referred to as Proceedings) may be brought in such court. |
7.9.3. Nothing in this Section 7.9 shall limit the right of the Administrative Agent to take Proceedings against the Depositor in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or not. |
7.9.4. The Depositor irrevocably waives any objection which it may have now or hereafter to the laying of the venue of any Proceedings in any such court as is referred to in this Section 7.9and any claim that any Proceedings have been brought in an inconvenient forum and further irrevocably agrees that a judgment in any Proceedings brought in the English court or in any other court of competent jurisdiction shall be conclusive and binding upon it and may be enforced in the courts of any other jurisdiction. |
7.9.5. The Depositor hereby irrevocably agrees that any writ, judgment or other notice of process shall be sufficiently and effectively served on it (i) in connection with proceedings in England, if addressed to the Depositor and delivered to it at c/o Frialator International Limited, 4 Heaton Court, Off Risley Road, Birchwood, Warrington WA3 6QU, England, facsimile number 01925 815 653, with a copy to the Depositor at its address set forth on the signature page hereto, (ii) to the extent permitted by applicable law, if a copy thereof is mailed by registered or certified airmail, postage prepaid, to the address for the time being for the service of notices on it under the Credit Agreement or (iii) if served in any other manner permitted by applicable law. |
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7.9.6. The Depositor hereby consents generally in respect of any Proceedings arising out of or in connection with this Charge and Memorandum to the giving of any relief or the issue of any process in connection with such Proceedings, including, without limitation, the making, enforcement or execution against any property or assets whatsoever of any order or judgment which may be made or given in such Proceedings. |
SECTION 7.10. Sale of Collateral. If any of the Collateral shall be sold, transferred or otherwise disposed of by the Depositor in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the request and sole expense of the Depositor, shall execute and deliver to the Depositor all releases and other documents reasonably necessary for the release of Liens created hereby on such Collateral. This Charge and Memorandum shall remain in full force and effect until all Liabilities have been paid in full (other than contingent indemnification liabilities not yet due and payable) and all Commitments have terminated. Upon any such termination, the Administrative Agent will, upon the Depositors request and at the Depositors sole expense, (i) deliver to the Depositor, without any representation, warranty or recourse of any kind whatsoever (other than that there are no security interests, liens or encumbrances in favor of the Administrative Agent), all of the Depositors Collateral (including any stock transfer forms) held by the Administrative Agent hereunder as shall not have been sold or otherwise applied pursuant to the terms hereof, and (ii) execute and deliver to the Depositor such documents as the Depositor shall reasonably request to evidence such termination and the release of any security interest created thereby. -12- |
IN WITNESS WHEREOF the parties hereto have caused this Charge and Memorandum to be duly executed and delivered as a deed on the day and year first before written. |
SIGNED as a Deed by and and thereby executed by BANK OF AMERICA, N.A., as Administrative Agent, as its Deed |
) ) ) ) ) ) |
Authorised Signatory Title: Authorised Signatory Title: |
Address: |
SIGNED as a Deed by and and thereby executed by G.S. BLODGETT CORPORATION as its Deed |
) ) ) ) ) ) |
Authorised Signatory Title: |
Address: S-1 |
ATTACHMENT |
Charged Share Issuer | Authorized Shares |
Outstanding Shares |
% of Shares Pledged |
||||
---|---|---|---|---|---|---|---|
Frialator International Limited | 2,000,000 | 1,385,041 | 65% |
Exhibit 4.5 SUBSIDIARY GUARANTY THIS SUBSIDIARY GUARANTY dated as of December 21, 2001 is executed in favor of BANK OF AMERICA, N.A. (Bank of America), individually and as Administrative Agent (as defined below), and the Lender Parties (as defined below). W I T N E S S E T H: WHEREAS, The Middleby Corporation, Middleby Marshall Inc. (the Borrower), various financial institutions (the Lenders) and Bank of America, as administrative agent for the Lenders (in such capacity, the Administrative Agent), have entered into a Credit Agreement dated as of December 21, 2001 (as amended, restated or otherwise modified from time to time, the Credit Agreement; capitalized terms used but not defined herein have the respective meanings ascribed thereto in the Credit Agreement); and WHEREAS, each of the undersigned will benefit from the making of loans and the issuance of letters of credit pursuant to the Credit Agreement and is willing to guaranty the Liabilities (as defined below) as hereinafter set forth; NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned hereto agrees as follows: Each of the undersigned 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 (a) all obligations of the Borrower, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, which arise out of or in connection with the Credit Agreement or any other Loan Document, as the same may be amended, modified, extended or renewed from time to time, (b) all Hedging Obligations of the Borrower to any Lender Party (as defined below) and (c) all reasonable out-of-pocket costs and expenses paid or incurred by the Administrative Agent or any Lender Party during the existence of an Event of Default in enforcing this Subsidiary Guaranty or any other applicable Loan Document against such undersigned (all such obligations being herein collectively called the Liabilities); provided that the liability of each of the undersigned hereunder shall be limited to the maximum amount of the Liabilities which such undersigned may guaranty without rendering this Subsidiary Guaranty void or voidable with respect to such undersigned under any fraudulent conveyance or fraudulent transfer law. As used herein, Lender Party means each Lender and any Affiliate of such Lender which is a party to a Hedging Agreement with the Borrower. 1 |
Each of the undersigned agrees that, in the event of the occurrence of any Event of Default under Section 12.1.3 of the Credit Agreement, and if such event shall occur at a time when any of the Liabilities may not then be due and payable, such undersigned will pay to the Administrative Agent for the account of the Lender Parties forthwith upon demand the full amount which would be payable hereunder by such undersigned if all Liabilities were then due and payable. To secure all obligations of each of the undersigned hereunder, the Administrative Agent and each Lender Party shall have a lien on and security interest in (and may, without demand or notice of any kind, at any time and from time to time when any Unmatured Event of Default under Section 12.1.3 of the Credit Agreement or any Event of Default exists, appropriate and apply toward the payment of the Liabilities), any and all balances, credits, deposits, accounts or moneys of or in the name of such undersigned now or hereafter with the Administrative Agent or such Lender Party and any and all property of every kind or description of or in the name of such undersigned now or hereafter, for any reason or purpose whatsoever, in the possession or control of, or in transit to, the Administrative Agent or such Lender Party or any agent or bailee for the Administrative Agent or such Lender Party. This Subsidiary Guaranty shall in all respects be a continuing, irrevocable, absolute and unconditional guaranty of payment and performance and not only collectibility, and shall remain in full force and effect (notwithstanding, without limitation, the dissolution of any of the undersigned, that at any time or from time to time no Liabilities are outstanding or any other circumstance) until all Commitments have terminated and all Liabilities have been paid in full (other than contingent indemnification obligations not yet due and payable). The undersigned further agree that if at any time all or any part of any payment theretofore applied by the Administrative Agent or any Lender Party to any of the Liabilities is or must be rescinded or returned by the Administrative Agent or such Lender Party for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of the Borrower or any of the undersigned), such Liabilities shall, for the purposes of this Subsidiary Guaranty, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Administrative Agent or such Lender Party, and this Subsidiary Guaranty shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Administrative Agent or such Lender Party had not been made. The Administrative Agent or any Lender Party may, from time to time, at its sole discretion and without notice to the undersigned (or any of them), take any or all of the following actions: (a) retain or obtain a security interest in any property to secure any of the Liabilities or any obligation hereunder (it being understood that no such security interest will be taken with respect to property of such undersigned without its consent), (b) retain or obtain the primary or secondary obligation of any obligor or obligors, in addition to the undersigned, with respect to any of the Liabilities, (c) extend or renew any of the Liabilities for one or more periods (whether or not longer than the original period), alter or exchange any of the Liabilities, or release or compromise any obligation of any of the undersigned hereunder or any obligation of any nature of any other obligor with respect to any of the Liabilities, (d) release its security interest in, or surrender, release or permit any substitution or exchange for, all or any part of any property securing any of the Liabilities or any obligation hereunder, or extend or renew for one or more periods (whether or not longer than the original period) or release, compromise, alter or exchange any obligations of any nature of any obligor with respect to any such property, and (e) resort to the undersigned (or any of them) for payment of any of the Liabilities when due, whether or not the Administrative Agent or such Lender Party shall have resorted to any property securing any of the Liabilities or any obligation hereunder or shall have proceeded against any other of the undersigned or any other obligor primarily or secondarily obligated with respect to any of the Liabilities. 2 |
Any amounts received by the Administrative Agent or any Lender Party from whatever source on account of the Liabilities may be applied by it toward the payment of the Liabilities in accordance with the Credit Agreement; and, notwithstanding any payments made by or for the account of any of the undersigned pursuant to this Subsidiary Guaranty, the undersigned shall not exercise any right of subrogation to any rights of the Administrative Agent or any Lender Party until such time as this Subsidiary Guaranty shall have been terminated as to all of the undersigned and the Administrative Agent and the Lender Parties shall have received payment of the full amount of all Liabilities. The undersigned hereby expressly waive: (a) notice of the acceptance by the Administrative Agent or any Lender Party of this Subsidiary Guaranty, (b) notice of the existence or creation or non-payment of all or any of the Liabilities, (c) presentment, demand, notice of dishonor, protest, and all other notices (unless expressly provided for under the Loan Documents) whatsoever, and (d) all diligence in collection or protection of or realization upon any Liabilities or any security for or guaranty of any Liabilities. The creation or existence from time to time of additional Liabilities to the Administrative Agent or any Lender Party or any of them is hereby authorized, without notice to the undersigned (or any of them), and shall in no way affect or impair the rights of the Administrative Agent or any Lender Party or the obligations of the undersigned under this Subsidiary Guaranty. The Administrative Agent and any Lender Party may from time to time, without notice to the undersigned (or any of them), assign or transfer any or all of the Liabilities or any interest therein; and, notwithstanding any such assignment or transfer or any subsequent assignment or transfer thereof, such Liabilities shall be and remain Liabilities for the purposes of this Subsidiary Guaranty, and each and every immediate and successive assignee or transferee of any of the Liabilities or of any interest therein shall, to the extent of the interest of such assignee or transferee in the Liabilities, be entitled to the benefits of this Subsidiary Guaranty to the same extent as if such assignee or transferee were a Lender Party. 3 |
No delay on the part of the Administrative Agent or any Lender Party in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Administrative Agent or any Lender Party of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy; nor shall any modification or waiver of any provision of this Subsidiary Guaranty be binding upon the Administrative Agent or any Lender Party except as expressly set forth in a writing duly signed and delivered on behalf of the Administrative Agent (or, if at any time there is no Administrative Agent, the Required Lenders or, if required pursuant to Section 15.1 of the Credit Agreement, all Lenders). No action of the Administrative Agent or any Lender Party permitted hereunder shall in any way affect or impair the rights of the Administrative Agent or any Lender Party or the obligations of the undersigned under this Subsidiary Guaranty. For purposes of this Subsidiary Guaranty, Liabilities shall include all obligations of the Borrower to the Administrative Agent or any Lender Party arising under or in connection with any Loan Document, notwithstanding any right or power of the Borrower or anyone else to assert any claim or defense as to the invalidity or unenforceability of any obligation, and no such claim or defense shall affect or impair the obligations of the undersigned hereunder. Pursuant to the Credit Agreement, (a) this Subsidiary Guaranty has been delivered to the Administrative Agent and (b) the Administrative Agent has been authorized to enforce this Subsidiary Guaranty on behalf of itself and each of the other Lender Parties. All payments by the undersigned pursuant to this Subsidiary Guaranty shall be made to the Administrative Agent for application as set forth in the Credit Agreement or, if there is no Administrative Agent, to the Lender Parties for their ratable benefit. This Subsidiary Guaranty shall be binding upon the undersigned and the successors and assigns of the undersigned; and to the extent that the Borrower or any of the undersigned is either a partnership, corporation, limited liability company or other entity, all references herein to the Borrower and to the undersigned, respectively, shall be deemed to include any successor or successors, whether immediate or remote, to such entity. The term undersigned as used herein shall mean all parties executing this Subsidiary Guaranty and each of them, and all such parties shall be jointly and severally obligated hereunder. THIS SUBSIDIARY GUARANTY IS GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (EXCEPT 735 ILLINOIS COMPILED STATUTE §105/5-5). Wherever possible each provision of this Subsidiary Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Subsidiary Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Subsidiary Guaranty. This Subsidiary Guaranty may be executed in any number of counterparts and by the different parties hereto on separate counterparts, and each such counterpart shall be deemed to be an original but all such counterparts shall together constitute one and the same Guaranty. At any time after the date of this Subsidiary Guaranty, one or more additional persons or entities may become parties hereto by executing and delivering to the Administrative Agent a counterpart of this Subsidiary Guaranty. Immediately upon such execution and delivery (and without any further action), each such additional person or entity will become a party to, and will be bound by all of the terms of, this Subsidiary Guaranty. 4 |
The obligations of the undersigned under this Subsidiary Guaranty are secured pursuant to a Security Agreement dated as of even date herewith (as amended or otherwise modified from time to time) and may be secured by one or more other agreements (including, without limitation, one or more pledge agreements, mortgages, deeds of trust or other similar documents). Immediately upon any sale or transfer (whether by merger, consolidation or otherwise) of all of the stock of any of the undersigned to a Person other than an Affiliate of the Parent, the Borrower or any Subsidiary which is permitted by the Credit Agreement, the Administrative Agent shall execute and deliver such documents as such undersigned shall reasonably request to release such undersigned from this Subsidiary Guaranty. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SUBSIDIARY GUARANTY OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENTS OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH OF THE UNDERSIGNED FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS SET FORTH UNDER ITS NAME IN SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH OF THE UNDERSIGNED HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 5 |
EACH OF THE UNDERSIGNED, AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OF THE ADMINISTRATIVE AGENT AND EACH LENDER PARTY, HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS SUBSIDIARY GUARANTY, OR ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 6 |
IN WITNESS WHEREOF, this Subsidiary Guaranty has been duly executed and delivered as of the day and year first above written. |
MIDDLEBY WORLDWIDE, INC. BLODGETT HOLDINGS INC. G.S. BLODGETT CORPORATION PITCO FRIALATOR, INC. MAGIKITCH'N INC. CLOVERLEAF PROPERTIES, INC. By: Name Printed: Title: |
S-1 |
Signature page for the Subsidiary Guaranty dated as of
December __, 2001 issued by various subsidiaries of
Middleby Marshall Inc. (the Borrower) in favor of Bank
of America, N.A., as Administrative Agent under the Credit
Agreement dated as of December __, 2001 with The
Middleby Corporation, the Borrower and various financial
institutions The undersigned is executing a counterpart hereof for purposes of becoming a party hereto: |
[SUBSIDIARY] By: Name Printed: Title: |
S-2 |
Schedule I Middleby Worldwide, Inc. Blodgett Holdings Inc. G.S. Blodgett Corporation Pitco Frialator, Inc. MagiKitch'n Inc. Cloverleaf Properties, Inc. S-3 |
Exhibit 4.6 SECURITY AGREEMENT THIS SECURITY AGREEMENT (this Agreement) dated as of December 21, 2001 is among THE MIDDLEBY CORPORATION (the Parent), MIDDLEBY MARSHALL INC. (the Borrower), each subsidiary of the Borrower listed on the signature pages hereof, each other person or entity which from time to time becomes a party hereto (collectively, including the Parent and the Borrower, the Debtors and individually each a Debtor) and BANK OF AMERICA, N.A. (Bank of America), in its capacity as Administrative Agent (as defined below) for the Lenders (as defined below). W I T N E S S E T H: WHEREAS, the Parent, the Borrower, various financial institutions (the Lenders) and Bank of America, as Administrative Agent for the Lenders (in such capacity, the Administrative Agent), have entered into a Credit Agreement dated as of December 21, 2001 (as amended, restated or otherwise modified from time to time, the Credit Agreement); WHEREAS, the Parent has guaranteed all of the obligations of the Borrower under or in connection with the Credit Agreement and certain hedging obligations pursuant to the guaranty of the Parent set forth in Section 13 of the Credit Agreement, and each other Debtor other than the Borrower has guaranteed all obligations of the Borrower under or in connection with the Credit Agreement and certain hedging obligations pursuant to a Subsidiary Guaranty dated as of December 21, 2001 (the Subsidiary Guaranty); and WHEREAS, the obligations of the Borrower and the Parent under the Loan Documents (as defined in the Credit Agreement) and the obligations of each other Debtor under the Subsidiary Guaranty are to be secured pursuant to this Agreement; NOW, THEREFORE, for and in consideration of the premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. When used herein, (a) the terms Account, Account Debtor, Certificated Security, Chattel Paper, Commodity Account, Commodity Contract, Deposit Account, Document, Equipment, Fixture, Goods, Instrument, Inventory, Investment Property, Security, Security Entitlement, Securities Account and Uncertificated Security shall have the respective meanings assigned to such terms in the UCC (as defined below), (b) capitalized terms used but not defined have the meanings assigned to such terms in the Credit Agreement and (c) the following terms have the following meanings (such definitions to be applicable to both the singular and plural forms of such terms): 1. |
Administrative Agent see the recitals. Agreement see the introductory paragraph. Assignee Deposit Account see Section 4. Bank of America see the introductory paragraph. Borrower see the introductory paragraph. Collateral see Section 2. Computer Hardware and Software means, with respect to any Debtor, (i) all computer and other electronic data processing hardware, whether now or hereafter owned, licensed or leased by such Debtor, including, without limitation, all integrated computer systems, central processing units, memory units, display terminals, printers, card readers, tape drives, hard and soft disk drives, cables, electrical supply hardware, generators, power equalizers, accessories and all peripheral devices and other related computer hardware; (ii) all software programs, whether now or hereafter owned, licensed or leased by such Debtor, designed for use on the computers and electronic data processing hardware described in clause (i) above, including, without limitation, all operating system software, utilities and application programs in whatsoever form (source code and object code in magnetic tape, disk or hard copy format or any other listings whatsoever); (iii) all firmware associated therewith, whether now or hereafter owned, licensed or leased by such Debtor; (iv) all rights with respect thereto, including, without limitation, any and all licenses, options, warranties, service contracts, program services, test rights, maintenance rights, support rights, improvement rights, renewal rights and indemnifications, and any substitutions, replacements, additions or model conversions of any of the foregoing; and (v) all documentation for such hardware, software and firmware described in the preceding clauses (i), (ii) and (iii), whether now or hereafter owned, licensed or leased by such Debtor, including, without limitation, flow charts, logic diagrams, manuals, specifications, training materials, charts and pseudo codes. Costs and Expenses means, with respect to any Debtor, all reasonable out-of-pocket costs and expenses (including reasonable attorneys fees and legal expenses) incurred by the Administrative Agent in connection with (i) the execution, delivery and performance of this Agreement by such Debtor, (ii) protecting, preserving or maintaining any Collateral of such Debtor, (iii) collecting the Liabilities of such Debtor, and (iv) enforcing any rights of the Administrative Agent hereunder in respect of the Collateral of such Debtor. Credit Agreement see the recitals. Debtor see the introductory paragraph. 2 |
Default means the occurrence of any of the following events: (i) any Unmatured Event of Default under Section 12.1.3 of the Credit Agreement with respect to the Parent or the Borrower, (ii) any Event of Default or (iii) any warranty of any Debtor herein is untrue or misleading in any material respect and, as a result thereof, the Administrative Agents security interest in any material portion of the Collateral (of all Debtors taken as a whole) is not perfected or the Administrative Agents rights and remedies with respect to any material portion of the Collateral of all Debtors (taken as a whole) is materially impaired or otherwise materially adversely affected. General Intangibles means, with respect to any Debtor, all of such Debtors general intangibles as defined in the UCC and, in any event, includes (without limitation) all of such Debtors licenses, franchises, tax refund claims, guarantee claims, security interests and rights to indemnification. Intellectual Property means all of the following, whether now owned or hereafter acquired: trade secrets and other proprietary information; customer lists; trademarks, service marks, business names, trade names, designs, logos, indicia, and/or other source and/or business identifiers and the goodwill of the business relating thereto and all registrations or applications for registrations which have heretofore been or may hereafter be issued thereon throughout the world; copyrights (including, without limitation, copyrights for computer programs) and copyright registrations or applications for registrations which have heretofore been or may hereafter be issued throughout the world; inventions (whether or not patentable); patent applications and patents; industrial designs, industrial design applications and registered industrial designs; license agreements related to any of the foregoing and income therefrom; mask works, flow diagrams, specification sheets, source codes, object codes and other physical manifestations, embodiments or incorporations of any of the foregoing; the right to sue for all past, present and future infringements of any of the foregoing; and all common law and other rights throughout the world in and to all of the foregoing. Lender Party means each Lender and any Affiliate of such Lender which is a party to a Hedging Agreement with the Borrower. Lenders see the recitals. Liabilities means (a) with respect to the Borrower, (i) all obligations of the Borrower under or in connection with the Credit Agreement or any other Loan Documents (including this Agreement) and (ii) all Hedging Obligations of the Borrower to any Lender Party, (b) with respect to the Parent, all obligations of the Parent under or in connection with the Credit Agreement or any other Loan Document (including this Agreement) and (c) with respect to any other Debtor, all obligations of such Debtor under or in connection with the Subsidiary Guaranty, as the same may be amended, modified, extended or renewed from time to time. 3 |
Non-Tangible Collateral means, with respect to any Debtor, collectively, such Debtors Accounts and General Intangibles. Parent see the introductory paragraph. Permitted Liens see Section 3. Subsidiary Guaranty see the recitals. UCC means the Uniform Commercial Code as in effect from time to time in the State of Illinois. 1. Grant of Security Interest. As security for the payment and performance of all Liabilities, each Debtor 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 such Debtors right, title, and interest in the following, whether now or hereafter existing or acquired: |
(1) | Accounts; |
(2) | Chattel Paper; |
(3) | Computer Hardware and Software; |
(4) | Deposit Accounts; |
(5) | Documents; |
(6) | General Intangibles; |
(7) | Goods (including, without limitation, all its Equipment, Fixtures and Inventory), together with all accessions, additions, attachments, improvements, substitutions and replacements thereto and therefor; |
(8) | Instruments; |
(9) | Intellectual Property; |
(10) | Investment Property (including Commodity Accounts, Commodity Contracts, Securities (whether Certificated Securities or Uncertificated Securities), Security Entitlements and Securities Accounts); |
(11) | money (of every jurisdiction whatsoever); and |
4 |
(12) | to the extent not included in the foregoing, other personal property of any kind or description; |
together with all of such Debtors right, title and interest in all books, records, writings, data bases, information and other property relating to, used or useful in connection with, evidencing, embodying, incorporating or referring to any of the foregoing, all claims and/or insurance proceeds arising out of the loss, nonconformity or any interference with the use of, or any defects or infringements of rights in, or damage to, any of the foregoing, and all proceeds, products, offspring, rents, issues, profits and returns of and from, and all distributions on and rights arising out of, any of the foregoing. |
All of the foregoing are herein collectively called the Collateral. Notwithstanding the foregoing, Collateral shall not include any general intangible or other right arising under any contract, instrument, license or other document to the extent (but only to the extent) that the grant of a security interest would (x) result in a breach of the terms of, or constitute a default under, such contract, instrument, license or other document (other than to the extent that any such term would be rendered ineffective pursuant to Sections 9-406, 9-407 or 9-408 or any successor provision of the Uniform Commercial Code or any relevant jurisdiction or any other applicable law) unless and until any required consent shall have been obtained (provided that each Debtor agrees to use commercially reasonable efforts to obtain any such required consent) or (y) give any other party to such contract, instrument, license or other document the right to terminate its obligations thereunder pursuant to a valid and enforceable provision (provided that each Debtor agrees to use commercially reasonable efforts to obtain the waiver of each such right). 2. Warranties. Each Debtor warrants that: (i) no financing statement (other than any which may have been filed on behalf of the Administrative Agent or in connection with Permitted Liens (as defined below) and any financing statement filed as a precautionary filing in connection with an operating lease) covering any of the Collateral is on file in any public office; (ii) such Debtor is the lawful owner of all Collateral, free of all liens and claims whatsoever, other than the security interest hereunder and liens and claims expressly permitted by the Credit Agreement (Permitted Liens), with full power and authority to execute this Agreement and perform such Debtors obligations hereunder, and to subject the Collateral to the security interest hereunder; (iii) all information with respect to Collateral and Account Debtors set forth in any schedule, certificate or other writing at any time heretofore or hereafter furnished by such Debtor to the Administrative Agent or any Lender Party and all other written information heretofore or hereafter furnished by such Debtor to the Administrative Agent or any Lender Party in connection with the Credit Agreement will be true and correct in all material respects as of the date furnished; (iv) such Debtors true legal name as registered in the jurisdiction in which such Debtor is organized or incorporated, jurisdiction of organization or incorporation, federal employer identification number, organizational identification number, if any, as designated by the state of its organization or incorporation, chief executive office and principal place of business, in each case as of the date hereof, are as set forth on Schedule I hereto (and such Debtor has not maintained its chief executive office and principal place of business at any other location at any time after May 31, 2001 through and including the date hereof); (v) each other location where such Debtor maintains a place of business or has any Goods, in each case as of the date hereof, is set forth on Schedule II hereto; (vi) except as disclosed on Schedule III, as of the date of this Agreement such Debtor is not known, and during the five years preceding the date hereof has not previously been known, by any trade name; (vii) except as disclosed on Schedule III, during the five years preceding the date hereof such Debtor has not been known by any legal name different from the one set forth on the signature page of this Agreement nor has such Debtor been the subject of any merger or other corporate reorganization; and (viii) Schedule IV hereto contains a complete listing of all of such Debtors Intellectual Property which has been registered under any registration statute. 5 |
3. Collections, etc. Until such time during the existence of a Default as the Administrative Agent shall notify such Debtor of the revocation of such power and authority, each Debtor (a) may, in the ordinary course of its business, at its own expense, sell, lease or furnish under contracts of service any of the Inventory normally held by such Debtor for such purpose, use and consume, in the ordinary course of its business, any raw materials, work in process or materials normally held by such Debtor for such purpose, and use, in the ordinary course of its business (but subject to the terms of the Credit Agreement), the cash proceeds of Collateral and other money which constitutes Collateral, (b) will, at its own expense, endeavor to collect (in a manner consistent with past practice), as and when due, all amounts due under any of the Non-Tangible Collateral and (c) may grant, in the ordinary course of business, to any party obligated on any of the Non-Tangible Collateral, any rebate, refund or allowance to which such party may be lawfully entitled, and may accept, in connection therewith, the return of Goods, the sale or lease of which shall have given rise to such Non-Tangible Collateral. The Administrative Agent, however, may, at any time that a Default exists, whether before or after any revocation of such power and authority or the maturity of any of the Liabilities, notify any parties obligated on any of the Non-Tangible Collateral to make payment to the Administrative Agent of any amounts due or to become due thereunder and enforce collection of any of the Non-Tangible Collateral by suit or otherwise and surrender, release or exchange all or any part thereof, or compromise or extend or renew for any period (whether or not longer than the original period) any indebtedness thereunder or evidenced thereby. Upon request of the Administrative Agent during the existence of a Default, each Debtor will, at its own expense, notify any parties obligated on any of the Non-Tangible Collateral to make payment to the Administrative Agent for the benefit of the Lender Parties of any amounts due or to become due thereunder. Upon request by the Administrative Agent during the existence of a Default, each Debtor will forthwith, upon receipt, transmit and deliver to the Administrative Agent, in the form received, all cash, checks, drafts and other instruments or writings for the payment of money (properly endorsed, where required, so that such items may be collected by the Administrative Agent) which may be received by such Debtor at any time in full or partial payment or otherwise as proceeds of any of the Collateral. Except as the Administrative Agent may otherwise consent in writing, any such items which may be so received by any Debtor during the existence of a Default will not be commingled with any other of its funds or property, but will be held separate and apart from its own funds or property and upon express trust for the Administrative Agent until delivery is made to the Administrative Agent. Each Debtor will comply with the terms and conditions of any consent given by the Administrative Agent pursuant to the foregoing sentence. 6 |
During the existence of a Default, all items or amounts which are delivered by any Debtor to the Administrative Agent on account of partial or full payment or otherwise as proceeds of any of the Collateral shall be deposited to the credit of a deposit account (each an Assignee Deposit Account) of such Debtor maintained with the Administrative Agent, as security for payment of the Liabilities. No Debtor shall have any right to withdraw any funds deposited in the applicable Assignee Deposit Account. So long as a Default continues to exist, the Administrative Agent may, from time to time, in its discretion, and shall upon request of the applicable Debtor made not more than once in any week, apply all or any of the then balance, representing collected funds, in the Assignee Deposit Account, toward payment of the Liabilities, whether or not then due, in such order of application as the Administrative Agent may determine, and the Administrative Agent may, from time to time, in its discretion, release all or any of such balance to the applicable Debtor; provided that if such Default shall no longer exist, the Administrative Agent shall release the balance in the Assignee Deposit Account to the applicable Debtor. During the existence of a Default, the Administrative Agent is authorized to endorse, in the name of the applicable Debtor, any item, howsoever received by the Administrative Agent, representing any payment on or other proceeds of any of the Collateral. 4. Certificates, Schedules and Reports. Each Debtor will from time to time deliver to the Administrative Agent such schedules, certificates and reports respecting all or any of the Collateral at the time subject to the security interest hereunder, and the items or amounts received by such Debtor in full or partial payment of any of the Collateral, each as the Administrative Agent may reasonably request. Any such schedule, certificate or report shall be executed by a duly authorized officer of such Debtor and shall be in such form and detail as the Administrative Agent may reasonably specify. Each Debtor shall immediately notify the Administrative Agent of the occurrence of any event causing any loss or depreciation in the value of its Inventory or other Goods which is material to the Parent and its Subsidiaries taken as a whole, and such notice shall specify or reasonably estimate the amount of such loss or depreciation. 7 |
5. Agreements of the Debtors. Each Debtor (a) will, upon request of the Administrative Agent, execute such financing statements and other documents (and pay the cost of filing or recording the same in all public offices reasonably deemed appropriate by the Administrative Agent) and do such other acts and things (including, without limitation, delivery to the Administrative Agent of any Instruments or Certificated Securities which constitute Collateral), all as the Administrative Agent may from time to time reasonably request, to establish and maintain a valid security interest in the Collateral (free of all other liens, claims and rights of third parties whatsoever, other than Permitted Liens) to secure the payment of the Liabilities (and each Debtor hereby authorizes the Administrative Agent to file any financing statement without its signature, to the extent permitted by applicable law, and/or to file a copy of this Agreement as a financing statement in any jurisdiction); (b) will keep all its Inventory, and will not maintain any place of business at any location other than, in the United States; (c) will not change its state of organization or incorporation or its name, identity or corporate structure such that any financing statement filed to perfect the Administrative Agents interests under this Agreement would become seriously misleading, unless such Debtor shall have given the Administrative Agent not less than 30 days prior notice of such change (provided that this Section 6(c) shall not be deemed to authorize any change or transaction prohibited under the Credit Agreement); (d) will keep its records concerning the Non-Tangible Collateral in such a manner as will enable the Administrative Agent or its designees to determine at any time the status of the Non-Tangible Collateral; (e) will furnish the Administrative Agent such information concerning such Debtor, the Collateral and the Account Debtors as the Administrative Agent may from time to time reasonably request; (f) will, subject to the terms of the Credit Agreement, permit the Administrative Agent and its designees, from time to time, on reasonable notice and at reasonable times and intervals during normal business hours (or at any time without notice during the existence of a Default) to inspect such Debtors Inventory and other Goods, and to inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Debtor pertaining to the Collateral and the Account Debtors, and will, upon request of the Administrative Agent during the existence of a Default, deliver to the Administrative Agent all of such records and papers; (g) will, upon request of the Administrative Agent, stamp on its records concerning the Collateral and add on all Chattel Paper constituting a portion of the Collateral, a notation, in form satisfactory to the Administrative Agent, of the security interest of the Administrative Agent hereunder; (h) except as permitted by the Credit Agreement, will not sell, lease, assign or create or permit to exist any lien on or security interest in any Collateral other than Permitted Liens and liens and security interests in favor of the Administrative Agent; (i) will at all times keep all its Inventory and other Goods insured under policies maintained with reputable, financially sound insurance companies against loss, damage, theft and other risks to such extent as is customarily maintained by companies similarly situated, and cause all such policies to provide that loss thereunder shall be payable to the Administrative Agent as its interest may appear (it being understood that (A) so long as no Default shall be existing, the Administrative Agent shall deliver any proceeds of such insurance which may be received by it to such Debtor and (B) whenever a Default shall be existing, the Administrative Agent may apply any proceeds of such insurance which may be received by it toward payment of the Liabilities, whether or not due, in such order of application as the Administrative Agent may determine) and such policies or certificates thereof shall, if the Administrative Agent so requests, be deposited with or furnished to the Administrative Agent; (j) will take such actions as are reasonably necessary to keep its Inventory in good repair and condition, ordinary wear and tear excepted; (k) will take such actions as are reasonably necessary to keep its Equipment (other than obsolete Equipment) in good repair and condition and in good working or running order, ordinary wear and tear excepted; (l) will promptly pay when due all license fees, registration fees, taxes, assessments and other charges which may be levied upon or assessed against the ownership, operation, possession, maintenance or use of its Equipment and other Goods (as applicable); provided, however, that such Debtor shall not be required to pay any such fee, tax, assessment or other charge if the validity thereof is being contested by such Debtor in good faith by appropriate proceedings, so long as forfeiture of any substantial part of its Equipment or other Goods will not result from the failure of such Debtor to pay any such fee, tax, assessment or other charge during the period of such contest; (m) will, upon reasonable request of the Administrative Agent, (i) cause to be noted on the applicable certificate, in the event any of its Equipment is covered by a certificate of title, the security interest of the Administrative Agent in the Equipment covered thereby and (ii) deliver all such certificates to the Administrative Agent or its designees; (n) will take all steps reasonably necessary to protect, preserve and maintain all of its rights in the Collateral; (o) will keep all of the tangible Collateral, Deposit Accounts and Investment Property in the continental United States; and (p) will, promptly upon any Responsible Officer of such Debtor obtaining knowledge that such Debtor has acquired a commercial tort claim (as defined in Section 9-102 of the UCC) in excess of $50,000, immediately notify the Administrative Agent in a writing signed by such Debtor of the details thereof and grant to the Administrative Agent in such writing a security interest therein and in the proceeds thereof, with such writing to be in form and substance reasonably satisfactory to the Administrative Agent. 8 |
Each Debtor hereby authorizes the filing of any financing statement, continuation statement, and amendment to financing statement in any jurisdiction and with any filing office as the Administrative Agent may determine, in its sole discretion, are necessary or advisable to perfect the security interest granted to the Administrative Agent hereunder or in connection herewith. Any such financing statement or amendment may describe the Collateral in the same manner as described in any security agreement or pledge agreement entered into by the parties in connection herewith, or may contain an indication or description of collateral that describes such property in any other manner as the Administrative Agent may determine, in its sole discretion, is necessary, advisable or prudent to ensure the perfection of the security interest in the collateral granted to the Administrative Agent hereunder or in connection herewith, including, without limitation, describing such property as all assets or all personal property, whether now owned or hereafter acquired. Any expenses incurred in protecting, preserving and maintaining any Collateral shall be borne by the applicable Debtor. Whenever a Default shall be existing, the Administrative Agent shall have the right to bring suit to enforce any or all of the Intellectual Property or licenses thereunder, in which event the applicable Debtor shall at the request of the Administrative Agent do any and all lawful acts and execute any and all proper documents required by the Administrative Agent in aid of such enforcement and such Debtor shall promptly, upon demand, reimburse and indemnify the Administrative Agent for all reasonable costs and expenses incurred by the Administrative Agent in the exercise of its rights under this Section 6, except to the extent any of the foregoing result from the gross negligence or willful misconduct of the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent shall have no obligations or liabilities regarding the Collateral or any thereof by reason of, or arising out of, this Agreement. 9 |
6. Default. (a) Whenever a Default exists, the Administrative Agent may exercise from time to time any rights and remedies available to it under the UCC, under any other applicable law and in the subsections set forth below in this Section 7. (b) Each Debtor agrees, in case of Default, (i) to assemble, at its expense, all its Inventory and other Goods (other than Fixtures) at a convenient place or places acceptable to the Administrative Agent, and (ii) at the Administrative Agents request, to execute all such documents and do all such other things which may be necessary in order to enable the Administrative Agent or its nominee to be registered as owner of the Intellectual Property with any competent registration authority. (c) Each Debtor hereby agrees and acknowledges that (i) with respect to Collateral that is: (A) perishable or threatens to decline speedily in value or (B) is of a type customarily sold on a recognized market (including Investment Property), no notice of disposition need be given; and (ii) with respect to Collateral not described in clause (i) above, notification sent after default and ten days before any proposed disposition provides notice with a reasonable time before disposition. (d) Each Debtor hereby agrees and acknowledges that a commercially reasonable disposition of Inventory, Equipment, Computer Hardware and Software or Intellectual Property may be by lease or license of, in addition to the sale of, such Collateral. Each Debtor further agrees and acknowledges that a disposition (i) made in the usual manner on any recognized market, (ii) at the price current in any recognized market at the time of disposition or (iii) in conformity with reasonable commercial practices among dealers in the type of property subject to the disposition shall, in each case, be deemed commercially reasonable. (e) Any cash proceeds of any disposition by the Administrative Agent of any of the Collateral shall be applied by the Administrative Agent to payment of Costs and Expenses, and thereafter to the payment of any and all of the Liabilities in such order of application as the Administrative Agent may from time to time elect, and thereafter any surplus will be paid to the applicable Debtor or as a court of competent jurisdiction shall direct. The Administrative Agent need not apply or pay over for application noncash proceeds of collection and enforcement unless (i) the failure to do so would be commercially unreasonable and (ii) the applicable Debtor has provided the Administrative Agent with a written demand to apply or pay over such noncash proceeds on such basis. 7. General. The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of any of the Collateral in its possession if it takes such action for that purpose as any applicable Debtor requests in writing, but failure of the Administrative Agent to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of the Administrative Agent to preserve or protect any rights with respect to such Collateral against prior parties, or to do any act with respect to the preservation of such Collateral not so requested by any Debtor, shall be deemed a failure to exercise reasonable care in the custody or preservation of such Collateral. 10 |
All notices and requests hereunder shall be in writing (including facsimile transmission) and shall be sent (i) if to the Administrative Agent, to its address shown on Schedule 14.3 to the Credit Agreement or such other address as it may, by written notice to the Borrower, have designated as its address for such purpose, and (ii) if to any Debtor, to its address shown on Schedule I hereto or to such other address as such Debtor may, by written notice to the Administrative Agent, have designated as its address for such purpose. Notices sent by facsimile transmission shall be deemed to have been given when sent and receipt of such facsimile is confirmed; notices sent by mail shall be deemed to have been given five Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier shall be deemed to have been given when received. No delay on the part of the Administrative Agent in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by the Administrative Agent of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy. If any of the Collateral shall be sold, transferred or otherwise disposed of by any Debtor in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the request and sole expense of such Debtor, shall execute and deliver to such Debtor all releases and other documents reasonably necessary for the release of Liens created hereby on such Collateral. This Agreement shall remain in full force and effect until all Liabilities have been paid in full (other than contingent indemnification liabilities not yet due and payable) and all Commitments have terminated. Upon any such termination, the Administrative Agent will, upon any Debtors request and at such Debtors sole expense, (i) deliver to such Debtor, without any representation, warranty or recourse of any kind whatsoever (other than there are no liens, security interests or encumbrances in favor of the Administrative Agent), all of such Debtors Collateral held by the Administrative Agent hereunder as shall not have been sold or otherwise applied pursuant to the terms hereof, and (ii) execute and deliver to such Debtor such documents, including UCC-3 terminations, as such Debtor shall reasonably request to evidence such termination and the release of the security interest granted hereby. If at any time all or any part of any payment theretofore applied by the Administrative Agent or any Lender Party to any of the Liabilities is or must be rescinded or returned by the Administrative Agent or such Lender Party for any reason whatsoever (including, without limitation, the insolvency, bankruptcy or reorganization of any Debtor), such Liabilities shall, for the purposes of this Agreement, to the extent that such payment is or must be rescinded or returned, be deemed to have continued in existence, notwithstanding such application by the Administrative Agent or such Lender Party, and this Agreement shall continue to be effective or be reinstated, as the case may be, as to such Liabilities, all as though such application by the Administrative Agent or such Lender Party had not been made. 11 |
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 §105/5-5) except to the extent that, pursuant to Illinois law, the perfection, the effect of perfection or nonperfection or the priority of any security interest granted hereunder may be determined in accordance with the laws of a different jurisdiction. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. The rights and privileges of the Administrative Agent hereunder shall inure to the benefit of its successors and assigns. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, and each such counterpart shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement. At any time after the date of this Agreement, one or more additional persons or entities may become parties hereto by executing and delivering to the Administrative Agent a counterpart of this Agreement (including supplements to the Schedules hereto). Immediately upon such execution and delivery (and without any further action), each such additional person or entity will become a party to, and will be bound by all the terms of, this Agreement. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENTS OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH DEBTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS OF ITS CHIEF EXECUTIVE OFFICE SET FORTH ON SCHEDULE I HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICES HEREUNDER) OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH DEBTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. 12 |
EACH OF EACH DEBTOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH DEBTOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE LENDER PARTIES, ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 13 |
IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above written. |
THE MIDDLEBY CORPORATION MIDDLEBY MARSHALL INC. MIDDLEBY WORLDWIDE, INC. BLODGETT HOLDINGS INC. G.S. BLODGETT CORPORATION PITCO FRIALATOR, INC. MAGIKITCH'N INC. CLOVERLEAF PROPERTIES, INC. By: Name: Title: BANK OF AMERICA, N.A., as Administrative Agent By: Name: Title: |
S-1 |
Signature page for the Security Agreement dated as of December 21, 2001 among The Middleby
Corporation, Middleby Marshall Inc. (the Borrower), various
subsidiaries of the Borrower and Bank of America, N.A., as Administrative Agent
(as defined in the Credit Agreement dated as of December 21, 2001 among the
Borrower and various other parties) The undersigned is executing a counterpart hereof for purposes of becoming a party to the Security Agreement as of the date set forth below (and each of the undersigned has attached hereto supplements to the Schedules to the Security Agreement setting forth all information necessary to make the representations and warranties set forth in the Security Agreement with respect to such undersigned accurate as of the date set forth below) |
[SUBSIDIARY] By: Name Printed: Title: |
S-2 |
SCHEDULE I
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SCHEDULE II
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SCHEDULE III
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SCHEDULE IV
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Exhibit 4.7 U.S. PLEDGE AGREEMENT THIS U.S. PLEDGE AGREEMENT (this Agreement) dated as of December 21, 2001 is among THE MIDDLEBY CORPORATION (the Parent), MIDDLEBY MARSHALL INC. (the Borrower), each subsidiary of the Borrower from time to time party hereto (together with the Parent and the Borrower, individually each a Pledgor and collectively, the Pledgors), and BANK OF AMERICA, N.A. (Bank of America), as Administrative Agent (as defined below) for the Lenders (as defined below). W I T N E S S E T H: WHEREAS, the Parent, the Borrower, various financial institutions (the Lenders) and Bank of America, as administrative agent for the Lenders (in such capacity, the Administrative Agent), have entered into a Credit Agreement dated as of December 21, 2001 (as amended, restated or otherwise modified from time to time, the Credit Agreement); WHEREAS, the Parent has guaranteed all of the obligations of the Borrower under or in connection with the Credit Agreement and certain hedging obligations pursuant to the guaranty of the Parent set forth in Section 13 of the Credit Agreement (the Parent Guaranty), and each other Pledgor other than the Borrower has guaranteed all of the obligations of the Borrower under or in connection with the Credit Agreement and certain hedging obligations pursuant to a Subsidiary Guaranty dated as of December 21, 2001 (the Subsidiary Guaranty); WHEREAS, each Pledgor will benefit from the making of loans and the issuance of letters of credit pursuant to the Credit Agreement; and WHEREAS, the obligations of Borrower and the Parent under the Credit Agreement and the other Loan Documents (as defined in the Credit Agreement) and the obligation of each other Pledgor under the Subsidiary Guaranty are to be secured pursuant to this Agreement; NOW, THEREFORE, for and in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. When used herein, (a) the capitalized terms used but not defined have the meanings assigned to such terms in the Credit Agreement and (b) the following terms have the following meanings (such meanings to be applicable to both the singular and plural forms of such terms): Administrative Agent see the recitals. |
Agreement see the introductory paragraph. Bank of America see the introductory paragraph. Borrower see the introductory paragraph. Collateral see Section 2. Costs and Expenses means, with respect to any Pledgor, all reasonable out-of-pocket costs and expenses (including reasonable attorneys fees and legal expenses) incurred by the Administrative Agent in connection with (i) such Pledgors execution, delivery and performance of this Agreement, (ii) protecting, preserving or maintaining any Collateral of such Pledgor, (iii) collecting the Liabilities of such Pledgor and (iv) enforcing any rights of the Administrative Agent hereunder in respect of the Collateral of such Pledgor. Credit Agreement see the recitals. Default means the occurrence of any of the following events: (i) any Unmatured Event of Default with respect to the Parent or the Borrower under Section 12.1.3 of the Credit Agreement, (ii) any Event of Default or (iii) any warranty of any Pledgor herein is untrue or misleading in any material respect and, as a result thereof, the Administrative Agents security interest in any material portion of the Collateral is not perfected or the Administrative Agents rights and remedies with respect to any material portion of the Collateral are materially impaired or otherwise materially adversely affected. Issuer means the issuer of any of the shares of stock or other securities representing all or any of the Collateral. Lender Party means each Lender and any Affiliate of a Lender which is a party to a Hedging Agreement with the Borrower. Lenders see the recitals. Liabilities means, (a) with respect to the Borrower, (i) all obligations of the Borrower under or in connection with the Credit Agreement or any other Loan Document (including this Agreement) and (ii) all Hedging Obligations of the Borrower to any Lender Party, (b) with respect to the Parent, all obligations of the Parent under or in connection with the Credit Agreement or any other Loan Document (including this Agreement) and (c) with respect to any other Pledgor, all obligations of such Pledgor under or in connection with the Subsidiary Guaranty, as the same may be amended, modified, extended or renewed from time to time. Parent see the recitals. |
Parent Guaranty see the recitals. Pledgor see the introductory paragraph. Subsidiary Guaranty see the recitals. 2. Pledge. As security for the payment of all Liabilities, each Pledgor 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 following: |
1. All of the shares of stock and other securities described in Schedule I opposite the name of such Pledgor, all of the certificates and/or instruments representing such shares of stock and other securities, and all cash, securities, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares or other securities; |
2. All additional shares of stock of any of the Issuers listed in Schedule I opposite the name of such Pledgor at any time and from time to time acquired by the Pledgor in any manner, all of the certificates representing such additional shares, and all cash, securities, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such shares; |
3. All other property hereafter delivered to the Administrative Agent by such Pledgor in substitution for or in addition to any of the foregoing, all certificates and instruments representing or evidencing such property, and all cash, securities, interest, dividends, rights and other property at any time and from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all thereof; and |
4. All products and proceeds of all of the foregoing. |
All of the foregoing are herein collectively called the Collateral. Each Pledgor agrees to deliver to the Administrative Agent, promptly upon receipt and in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank), any Collateral (other than dividends or payments which such Pledgor is entitled to receive and retain pursuant to Section 5 hereof) which may at any time or from time to time be in or come into the possession or control of such Pledgor; and prior to the delivery thereof to the Administrative Agent, such Collateral shall be held by such Pledgor separate and apart from its other property and in express trust for the Administrative Agent. |
3. Warranties; Further Assurances. Each Pledgor warrants to the Administrative Agent, as to its Collateral, for the benefit of each Lender Party that: (a) such Pledgor is (or at the time of any future delivery, pledge, assignment or transfer thereof will be) the legal and equitable owner of such Pledgors Collateral free and clear of all liens, security interests and encumbrances of every description whatsoever other than (i) the security interest created hereunder and (ii) inchoate tax and ERISA liens; (b) to the extent such Pledgors Collateral is represented by certificated securities, the pledge and delivery of the Collateral pursuant to this Agreement will create a valid perfected security interest in such Collateral in favor of the Administrative Agent; (c) all shares of stock referred to in Schedule I opposite the name of such Pledgor are duly authorized, validly issued, fully paid and non-assessable; (d) as to each Issuer whose name appears in Schedule I opposite the name of such Pledgor, such Pledgors Collateral represents on the date hereof not less than the applicable percent (as shown in Schedule I) of the total shares of capital stock issued and outstanding of such Issuer; and (e) as of the date hereof, the information contained in Schedule I opposite the name of such Pledgor is true and accurate in all respects. So long as any of the Liabilities shall be outstanding or any commitment shall exist on the part of any Lender Party with respect to the creation of any Liabilities, each Pledgor (i) shall not, except as permitted by the Credit Agreement or with the express prior written consent of the Administrative Agent, sell, assign, exchange, pledge or otherwise transfer, encumber, or grant any option, warrant or other right to purchase the stock of any Issuer which is pledged hereunder; (ii) shall deliver such Uniform Commercial Code financing statements and other documents (and pay the costs of filing and recording or re-filing and re-recording the same in all public offices reasonably deemed necessary or appropriate by the Administrative Agent) and do such other acts and things, all as the Administrative Agent may from time to time reasonably request, to establish and maintain a valid, perfected security interest in such Pledgors Collateral (free of all other liens, claims and rights of third parties whatsoever) to secure the performance and payment of the Liabilities (and by its signature hereto, such Pledgor authorizes the Administrative Agent to file any financing statements without the signature of such Pledgor); (iii) will execute and deliver to the Administrative Agent such stock powers and similar documents relating to such Pledgors Collateral, reasonably satisfactory in form and substance to the Administrative Agent, as the Administrative Agent may reasonably request; and (iv) will furnish the Administrative Agent or any Lender Party such information concerning such Pledgors Collateral as the Administrative Agent or such Lender Party may from time to time reasonably request, and will permit the Administrative Agent or any Lender Party or any designee of the Administrative Agent or such Lender Party, from time to time at reasonable times and on reasonable notice (or at any time without notice during the existence of a Default), to inspect, audit and make copies of and extracts from all records and all other papers in the possession of such Pledgor which pertain to such Pledgors Collateral, and will, upon request of the Administrative Agent at any time when a Default has occurred and is continuing, deliver to the Administrative Agent all of such records and papers. 4. Holding in Name of Administrative Agent, etc. The Administrative Agent may from time to time after the occurrence and during the continuance of a Default, without notice to the Pledgors, take all or any of the following actions: (a) transfer all or any part of the Collateral into the name of the Administrative Agent or any nominee or sub-agent for the Administrative Agent, with or without disclosing that such Collateral is subject to the lien and security interest hereunder, (b) appoint one or more sub-agents or nominees for the purpose of retaining physical possession of the Collateral, (c) notify the parties obligated on any of the Collateral to make payment to the Administrative Agent of any amounts due or to become due thereunder, (d) endorse any checks, drafts or other writings in the name of any Pledgor to allow collection of the Collateral, (e) enforce collection of any of the Collateral by suit or otherwise, and surrender, release or exchange all or any part thereof, or compromise or renew for any period (whether or not longer than the original period) any obligations of any nature of any party with respect thereto, and (f) take control of any proceeds of the Collateral. |
5. Voting Rights, Dividends, etc. (a) Notwithstanding certain provisions of Section 4 hereof, so long as the Administrative Agent has not given the notice referred to in paragraph (b) below: |
1. The Pledgors shall be entitled to exercise any and all voting or consensual rights and powers and stock purchase or subscription rights (but any such exercise by the Pledgors of stock purchase or subscription rights may be made only from funds of the Pledgors not comprising part of the Collateral required to be delivered to the Administrative Agent hereunder) relating or pertaining to the Collateral or any part thereof for any purpose; provided that each Pledgor agrees that it will not exercise any such right or power in any manner which would violate this Agreement or any other Loan Document. |
2. The Pledgors shall be entitled to receive and retain any and all lawful dividends and other payments payable in respect of the Collateral which are paid in cash by any Issuer if such dividends and other payments are permitted by the Credit Agreement, but all dividends and distributions in respect of the Collateral or any part thereof made in shares of stock or securities or other property or representing any return of capital, whether resulting from a subdivision, combination or reclassification of Collateral or any part thereof or received in exchange for Collateral or any part thereof or as a result of any merger, consolidation, acquisition or other exchange of assets to which any Issuer may be a party or otherwise or as a result of any exercise of any stock purchase or subscription right, shall be and become part of the Collateral hereunder and, if received by any Pledgor, shall be forthwith delivered to the Administrative Agent in due form for transfer (i.e., endorsed in blank or accompanied by stock or bond powers executed in blank) to be held for the purposes of this Agreement. |
3. The Administrative Agent shall execute and deliver, or cause to be executed and delivered, to the applicable Pledgor, all such proxies, powers of attorney, dividend orders and other instruments as such Pledgor may request for the purpose of enabling such Pledgor to exercise the rights and powers which it is entitled to exercise pursuant to clause (A) above and to receive the dividends and payments which it is authorized to retain pursuant to clause (B) above. |
(b) Upon notice from the Administrative Agent during the existence of a Default, and so long as the same shall be continuing, all rights and powers which the Pledgors are entitled to exercise pursuant to Section 5(a)(A) hereof, and all rights of the Pledgors to receive and retain dividends pursuant to Section 5(a)(B) hereof, shall forthwith cease, and all such rights and powers shall thereupon become vested in the Administrative Agent which shall have, during the continuance of such Default, the sole and exclusive authority to exercise such rights and powers and to receive such dividends and payments. Any and all money and other property paid over to or received by the Administrative Agent pursuant to this paragraph (b) shall be retained by the Administrative Agent as additional Collateral hereunder and applied in accordance with the provisions hereof. 6. Remedies. During the existence of a Default, the Administrative Agent may exercise from time to time any rights and remedies available to it under the Uniform Commercial Code as in effect in Illinois or otherwise available to it. Without limiting the foregoing, during the existence of a Default the Administrative Agent (a) may, to the fullest extent permitted by applicable law, without notice, advertisement, hearing or process of law of any kind, (i) sell any or all of the Collateral, free of all rights and claims of any Pledgor therein and thereto, at any public or private sale or brokers board and (ii) bid for and purchase any or all of the Collateral at any such public sale and (b) shall have the right, for and in the name, place and stead of the applicable Pledgor, to execute endorsements, assignments, stock powers and other instruments of conveyance or transfer with respect to all or any of the Collateral. Each Pledgor hereby expressly waives, to the fullest extent permitted by applicable law, any and all notices, advertisements, hearings or process of law in connection with the exercise by the Administrative Agent of any of its rights and remedies during the continuance of a Default. Any notification of intended disposition of any of the Collateral shall be deemed reasonably and properly given if given at least ten (10) days before such disposition. Any proceeds of any of the Collateral may be applied by the Administrative Agent to the payment of Costs and Expenses, and any balance of such proceeds may be applied by the Administrative Agent toward the payment of such of the Liabilities, and in such order of application, as the Administrative Agent may from time to time elect (and, after payment in full of all Liabilities, any excess shall be delivered to the applicable Pledgor or as a court of competent jurisdiction shall direct). The Administrative Agent is hereby authorized to comply with any limitation or restriction in connection with any sale of Collateral as it may be advised by counsel is necessary in order to (a) avoid any violation of applicable law (including, without limitation, compliance with such procedures as may restrict the number of prospective bidders and purchasers and/or further restrict such prospective bidders or purchasers to persons or entities who will represent and agree that they are purchasing for their own account for investment and not with a view to the distribution or resale of such Collateral) or (b) obtain any required approval of the sale or of the purchase by any governmental regulatory authority or official, and each Pledgor agrees that such compliance shall not result in such sale being considered or deemed not to have been made in a commercially reasonable manner and that the Administrative Agent shall not be liable or accountable to any Pledgor for any discount allowed by reason of the fact that such Collateral is sold in compliance with any such limitation or restriction. |
7. General. The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if it takes such action for that purpose as the applicable Pledgor shall request in writing, but failure of the Administrative Agent to comply with any such request shall not of itself be deemed a failure to exercise reasonable care, and no failure of the Administrative Agent to preserve or protect any rights with respect to the Collateral against prior parties, or to do any act with respect to preservation of the Collateral not so requested by any Pledgor, shall be deemed a failure to exercise reasonable care in the custody or preservation of any Collateral. No delay on the part of the Administrative Agent in exercising any right, power or remedy shall operate as a waiver thereof, and no single or partial exercise of any such right, power or remedy shall preclude any other or further exercise thereof, or the exercise of any other right, power or remedy. No amendment, modification or waiver of, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and signed and delivered by the Administrative Agent, and then such amendment, modification, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. If any of the Collateral shall be sold, transferred or otherwise disposed of by any Pledgor in a transaction permitted by the Credit Agreement, then the Administrative Agent, at the request and sole expense of such Pledgor, shall execute and deliver to such Pledgor all releases and other documents reasonably necessary for the release of Liens created hereby on such Collateral. This Agreement shall remain in full force and effect until all Liabilities have been paid in full (other than contingent indemnification liabilities not yet due and payable) and all Commitments have terminated. Upon any such termination, the Administrative Agent will, upon any Pledgors request and at such Pledgors sole expense, (i) deliver to such Pledgor, without any representation, warranty or recourse of any kind whatsoever (other than that there are no security interests, liens or encumbrances in favor of the Administrative Agent), all of such Pledgors Collateral (including stock powers and other documents) held by the Administrative Agent hereunder as shall not have been sold or otherwise applied pursuant to the terms hereof, and (ii) execute and deliver to such Pledgor such documents as such Pledgor shall reasonably request to evidence such termination and the release of any security interest granted hereby. All obligations of the Pledgors and all rights, powers and remedies of the Administrative Agent and the Lender Parties expressed herein are in addition to all other rights, powers and remedies possessed by them, including, without limitation, those provided by applicable law or in any other written instrument or agreement relating to any of the Liabilities or any security therefor. |
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 §105/5-5). Wherever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement. All notices hereunder shall be in writing (including facsimile transmission) and shall be sent to the applicable party at its address shown opposite its signature hereto or at such other address as such party may, by written notice to the other party, have designated as its address for such purpose. Notices sent by facsimile transmission shall be deemed to have been given when sent with confirmation of receipt; notices sent by mail shall be deemed to have been given five Business Days after the date when sent by registered or certified mail, postage prepaid; and notices sent by hand delivery or overnight courier shall be deemed to have been given when received. This Agreement shall be binding upon the Pledgors and the Administrative Agent and their respective successors and assigns (provided that no Pledgor may assign its obligations hereunder without the prior written consent of the Administrative Agent), and shall inure to the benefit of each Pledgor and the Administrative Agent and the successors and assigns of the Administrative Agent. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, and each such counterpart shall be deemed an original but all such counterparts shall together constitute but one and the same Agreement. At any time after the date of this Agreement, one or more additional Persons may become parties hereto by executing and delivering to the Administrative Agent a counterpart of this Agreement, together with a supplement to Schedule I hereto setting forth all relevant information with respect to such party as of the date of delivery, whereupon Schedule I hereto shall be deemed to be amended automatically to incorporate such information. Immediately upon such execution and delivery (and without any further action), each such additional Person will become a party to, and will be bound by all of the terms of, this Agreement. ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE ADMINISTRATIVE AGENTS OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND. EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. EACH PLEDGOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE PREPAID, TO THE ADDRESS OF SUCH PLEDGOR SET ACROSS FROM ITS SIGNATURE HERETO (OR SUCH OTHER ADDRESS AS IT SHALL HAVE SPECIFIED IN WRITING TO THE ADMINISTRATIVE AGENT AS ITS ADDRESS FOR NOTICE HEREUNDER), OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. EACH PLEDGOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. |
EACH OF EACH PLEDGOR, THE ADMINISTRATIVE AGENT AND (BY ACCEPTING THE BENEFITS HEREOF) EACH LENDER PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. EACH PLEDGOR ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE ADMINISTRATIVE AGENT, FOR THE BENEFIT OF THE LENDER PARTIES, ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER LOAN DOCUMENT. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] |
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the day and year first written above. |
MIDDLEBY MARSHALL INC. THE MIDDLEBY CORPORATION G.S. BLODGETT CORPORATION BLODGETT HOLDINGS INC. By: Name Printed: Title: Address: 1400 Toastmaster Drive Elgin, Illinois 60120 Attention: David B. Baker Facsimile: (847) 741-1689 BANK OF AMERICA, N.A., as Administrative Agent By: Name Printed: Title: Address: 231 South LaSalle Street Chicago, IL 60697 Attention: David A. Johanson Facsimile: (312) 974-9102 |
Signature page for the U.S. Pledge Agreement dated as of December 21, 2001 among The
Middleby Corporation, Middleby Marshall Inc. (the Borrower), various
subsidiaries of the Borrower and Bank of America, N.A., as Administrative Agent
under the Credit Agreement dated as of December 21, 2001 with the Borrower and
various other parties. The undersigned is executing a counterpart hereof for purposes of becoming a party hereto: [SUBSIDIARY] By: Name Printed: Title: |
SCHEDULE I
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Pledgor | Issuer | Certificate # | # of Pledged Shares |
# of Shares Issued and Outstanding |
Pledged Shares as % of Total Shares of Issuer Outstanding |
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The Middleby Corporation | Middleby Marshall Inc. | 7 | 100,000 | 100,000 | 100% | ||||||
The Middleby Corporation | Middleby Marshall Inc. | 5 | 1,000,000 | 1,000,000 | 100% | ||||||
Middleby Marshall Inc. | Blodgett Holdings Inc. | 16 | 2,710,000 | 2,710,000 | 100% | ||||||
Middleby Marshall Inc. | Middleby Worldwide Corporation | 16 | 4,387 | 4,387 | 100% | ||||||
Blodgett Holdings Inc. | G. S. Blodgett Corporation | 142 | 10 | 10 | 100% | ||||||
G. S. Blodgett Corporation | Pitco Frialator, Inc. | 3 | 1,000 | 1,000 | 100% | ||||||
G. S. Blodgett Corporation | MagiKitchn Inc. | 3 | 10,000 | 10,000 | 100% | ||||||
G. S. Blodgett Corporation | Cloverleaf Properties, Inc. | 4 | 15,000 | 15,000 | 100% |