EXHIBIT (b)(5)
WAIVER
DATED AS OF AUGUST 7, 2000 TO
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MARCH 18, 1998
THIS WAIVER, dated as of August 7, 2000 (this "WAIVER") is
entered into among MIDDLEBY MARSHALL INC., a Delaware corporation ("MIDDLEBY"),
the existing Subsidiaries of Middleby (together with Middleby, individually, a
"BORROWER" and collectively, the "BORROWERS"), and BANK OF AMERICA, N.A.
(formerly known as Bank of America National Trust and Savings Association), a
national banking association (the "BANK").
RECITALS:
A. The Borrowers and the Bank have entered into a
Multicurrency Credit Agreement dated as of March 18, 1998, as amended by that
certain First Amendment dated as of July 4, 1998, that certain Second Amendment
and Waiver dated as of March 31, 1999 and that certain Third Amendment dated as
of March 31, 2000 (as amended, modified or supplemented, the "AGREEMENT"; the
terms defined in the Agreement and not otherwise defined herein shall be used
herein as defined in the Agreement).
B. The Borrowers have requested, and the Bank has agreed, that
the Bank shall waive any Default or Event of Default arising out of the
Borrowers' prepayment of principal amount outstanding under the Note Agreement.
C. Therefore, the parties hereto agree as follows:
1. CONSENT AND WAIVER. The Bank hereby consents to, and waives
any Default or Event of Default and notice requirement occurring or arising
under the Agreement or any Loan Document upon the occurrence of or as a result
of (i) prepayment in full, and the full and complete satisfaction of,
liabilities of the Borrowers in connection with and under the Note Agreement and
(ii) repurchase of 250,000 warrants held by the "Note Holders," as defined in
the Note Agreement.
2. CONDITIONS PRECEDENT. This Waiver shall be effective as
of the date first written above upon the receipt by the Bank of a copy of a
waiver executed by all parties to this Waiver, in form and substance
satisfactory to the Bank.
3. RELEASE. The Bank hereby agrees to the termination of
the Support Agreement to be effective as of the effective date of this Waiver.
4. GENERAL.
4.1 EXPENSES. The Borrowers agree to pay the Bank upon demand
for all reasonable expenses, including reasonable attorneys' and legal
assistants' fees (which attorneys and legal assistants may be employees of the
Bank), incurred by the Bank in connection with the preparation, negotiation and
execution of this Waiver.
4.2 LAW. THIS WAIVER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED THAT THE BANK SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
4.3 SUCCESSORS. This Waiver shall be binding upon the
Borrowers and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrowers and the Bank and the successors and
assigns of the Bank.
4.4 CONFIRMATION OF THE AGREEMENT. Except as modified hereby,
the Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects.
4.5 REFERENCES TO THE AGREEMENT. Each reference in the
Agreement to "this Agreement," "hereunder," "hereof," or words of like import,
and each reference to the Agreement in any and all instruments or documents
provided for in the Agreement or delivered or to be delivered thereunder or in
connection therewith, shall, except where the context otherwise requires, be
deemed a reference to the Agreement as modified hereby.
4.6 COUNTERPARTS. This Waiver may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
4.7 REAFFIRMATION OF GUARANTY. Middleby and Middleby
Worldwide, Inc. (formerly known as Xxxxxx Associates, Inc.), as guarantors (the
"GUARANTORS") pursuant to that certain Continuing Guaranty (Multicurrency) dated
as of March 18, 1998 (the "GUARANTY") executed by the Guarantors in favor of the
Bank hereby acknowledge and affirm to the Bank that notwithstanding the
execution and delivery of this Waiver, the Guarantors hereby re-confirm the
Guaranty and are and continue to be primarily liable for the Liabilities, as
defined in the Guaranty.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver
to be executed at Chicago, Illinois by their respective officers thereunto duly
authorized as of the date first written above.
MIDDLEBY MARSHALL INC., as Borrower
and Guarantor
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY PHILIPPINES CORPORATION,
as Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY JAPAN CORPORATION, as
Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY TAIWAN CORPORATION
(f/k/a Xxxxxx Worldwide (Taiwan) Co., Ltd.),
as Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY WORLDWIDE, INC. (f/k/a Xxxxxx
Associates, Inc.), as Borrower and Guarantor
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY KOREA CORPORATION (f/k/a Xxxxxx
Worldwide Korea Co., Ltd.), as Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
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INTERNATIONAL CATERING EQUIPMENT
AND SUPPLIES, INC., as Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY MEXICO, S.A. DE C.V. (f/k/a
Xxxxxx Mexico, S.A. DE C.V.), as Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
MIDDLEBY WORLDWIDE SPAIN, S.L. (f/k/a
Xxxxxx, X.X.), as Borrower
By: Xxxxx X. Xxxxx
--------------
Name: Xxxxx X. Xxxxx
Title: Chief Financial Officer
BANK OF AMERICA, N.A. (successor to Bank
of America National Trust and Savings
Association), as Bank
By: Xxxxxx X. Xxxxx
---------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice-President
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