EXHIBIT (b)(4)
THIRD AMENDMENT
DATED AS OF MARCH 31, 2000 TO
MULTICURRENCY CREDIT AGREEMENT
DATED AS OF MARCH 18, 1998
THIS THIRD AMENDMENT, dated as of March 31, 2000 (this
"AMENDMENT") is entered into among MIDDLEBY MARSHALL INC., a Delaware
corporation ("MIDDLEBY"), the existing Subsidiaries of Middleby (together with
Middleby, individually, a "BORROWER" and collectively, the "BORROWERS"), and
BANK OF AMERICA, N.A. (successor to Bank of America National Trust and Savings
Association), a national banking association, having its principal office at 000
Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 (the "BANK").
RECITALS:
A. The Borrowers and the Bank have entered into a Multicurrency
Credit Agreement dated as of March 18, 1998, as amended by
that certain First Amendment dated as of July 4, 1998 and that
certain Second Amendment and Waiver dated as of March 31, 1999
(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 and the Bank wish to amend the Agreement as
hereinafter set forth.
C. Therefore, the parties hereto agree as follows:
1. AMENDMENTS TO THE AGREEMENT.
1.1 SECTION 2.13 EXTENSION OF THE COMMITMENT. SECTION 2.13 of
the Agreement is hereby amended as of the date hereof by deleting it in its
entirety and inserting the following in lieu thereof:
2.13 EXTENSION OF THE COMMITMENT.
(a) "CURRENT COMMITMENT TERMINATION DATE" shall
initially be February 28, 2002. On any Business
Day that is not less than 30 days nor more than 60
days prior to two (2) years prior to the Current
Commitment Termination Date then in effect,
Middleby may, by written notice (an "EXTENSION
REQUEST") given to the Bank, request that the
Current Commitment Termination Date be extended.
Each such Extension Request shall contemplate an
extension of the Current Commitment Termination
Date to a date that is one
year after the Current Commitment Termination Date
then in effect (the "EXTENDED TERMINATION DATE").
(b) The Bank may, in its sole discretion, consent to a
requested extension by giving written notice thereof
to Middleby by not later than the Business Day that
is 31 days after the date of the Extension Request.
Failure on the part of the Bank to respond to the
Extension Request by such date shall be deemed to be
a denial of such request by the Bank.
(c) The Current Commitment Termination Date, in the event
that the Bank shall not consent to such Extension
Request, shall continue to be the existing Current
Commitment Termination Date (the "EARLIER TERMINATION
DATE"). The Current Commitment Termination Date, in
the event that the Bank shall consent to such
Extension Request, shall continue to be the
Earlier Termination Date until the end of the day
immediately preceding the Current Commitment
Termination Date then in effect, at which time the
Current Commitment Termination Date shall become
the Extended Termination Date referenced in the
Extension Request.
1.2 SECTION 7.13(c) OF THE AGREEMENT. SECTION 7.13(c) of the
Agreement is hereby amended as of the date hereof by deleting it in its entirety
and inserting the following in lieu thereof:
(c) FIXED CHARGE COVERAGE RATIO. Middleby and its
Subsidiaries on a consolidated basis shall maintain a
Fixed Charge Coverage Ratio, measured at the end of
each fiscal quarter for the four (4) immediately
preceding fiscal quarters then ended, for such period
ending on a date set forth below of not less than the
amount set forth opposite such date:
Date Ratio
---- -----
4/1/00 1.00:1.00
7/1/00 1.00:1.00
9/30/00 and
each fiscal
quarter thereafter 1.25:1.00
In the event that Middleby or any of its Subsidiaries
shall have made an Acquisition involving any Person
during such immediately preceding fiscal quarter,
then for purposes of calculating the Fixed Charge
Coverage Ratio, Net Income shall include the
allocable net income (adjusted
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as provided in the definition of the term "Fixed
Charge Coverage Ratio") of such Person for the
four (4) most recently completed fiscal quarters
of such Person determined in accordance with GAAP,
and, if GAAP is not applicable, determined in a
manner agreed to in writing by the Bank and
Middleby.
2. WARRANTIES. To induce the Bank to enter into this
Amendment, the Borrowers warrant that:
2.1 AUTHORIZATION. The Borrowers are duly authorized to
execute and deliver this Amendment, and are and will continue to be duly
authorized to borrow monies under the Agreement, as amended hereby, and to
perform their obligations under the Agreement, as amended hereby.
2.2 NO CONFLICTS. The execution and delivery of this
Amendment, and the performance by the Borrowers of their respective obligations
under the Agreement, as amended hereby, do not and will not conflict with any
provision of law or of the charter or by-laws of each Borrower or of any
agreement binding upon each Borrower.
2.3 VALIDITY AND BINDING EFFECT. The Agreement, as amended
hereby, is a legal, valid and binding obligation of the Borrowers, enforceable
against the Borrowers in accordance with its respective terms, except as
enforceability may be limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors' rights or by general
principles of equity limiting the availability of equitable remedies.
3. CONDITIONS PRECEDENT. This Amendment shall be effective as
of the date first written above upon the satisfaction of each of the following
conditions precedent:
3.1 DOCUMENTATION. The Borrowers shall have delivered to the
Bank this Amendment together with each of the following, all duly executed and
dated the date hereof, in form and substance satisfactory to the Bank:
(a) RESOLUTIONS. For each Borrower, as the Bank deems
necessary, a copy, duly certified by the secretary or an assistant secretary of
such Borrower, of (i) resolutions of such Borrower's Board of Directors
authorizing or ratifying the execution and delivery of this Amendment and
authorizing the borrowings under the Agreement, as amended hereby, (ii) all
documents evidencing other necessary corporate action, and (iii) all approvals
or consents, if any, necessary with respect to this Amendment.
(b) INCUMBENCY. For each Borrower, as the Bank deems
necessary, a certificate of the secretary or an assistant secretary of such
Borrower certifying the names of such Borrower's officers authorized to sign
this Amendment and all other documents or certificates to be delivered
hereunder, together with the true signatures of such officers.
(c) CERTIFICATION. A certificate of the president or chief
financial officer of Middleby as to the matters set out in SECTIONS 3.2, 3.3 and
3.4 hereof.
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(d) OTHER. Such other documents as the Bank may reasonably
request.
3.2 NO DEFAULT. As of the date hereof, after giving effect to
this Amendment, no Event of Default or Default shall have occurred and be
continuing.
3.3 WARRANTIES. As of the date hereof, after giving effect to
this Amendment, the representations and warranties in ARTICLE V of the Agreement
and in SECTION 2 of this Amendment shall be true and correct as though made on
such date, except for such changes as are specifically permitted under the
Agreement.
3.4 NORTHWESTERN NOTES. As of the date hereof, no default or
event of default shall have occurred and be continuing under that certain Note
Agreement dated January 1, 1995 between Middleby and Northwestern Mutual Life
Insurance Company ("Northwestern") pursuant to which Middleby issued those
certain $15,000,000 10.99% Senior Notes due on January 10, 2003 which are held
by Northwestern.
4. GENERAL.
4.1 EXPENSES. The Borrowers agree to pay the Bank upon demand
for all reasonable expenses, including reasonable attorneys' and legal
assistants' fees (which attorneys and legal assistants may be employees of the
Bank), incurred by the Bank in connection with the preparation, negotiation and
execution of this Amendment.
4.2 LAW. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS (WITHOUT REGARD TO
CONFLICTS OF LAW PROVISIONS THEREOF); PROVIDED THAT THE BANK SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
4.3 SUCCESSORS. This Amendment shall be binding upon the
Borrowers and the Bank and their respective successors and assigns, and shall
inure to the benefit of the Borrowers and the Bank and the successors and
assigns of the Bank.
4.4 CONFIRMATION OF THE AGREEMENT. Except as amended and
waived hereby, the Agreement shall remain in full force and effect and is hereby
ratified and confirmed in all respects.
4.5 REFERENCES TO THE AGREEMENT. Each reference in the
Agreement to "this Agreement," "hereunder," "hereof," or words of like import,
and each reference to the Agreement in any and all instruments or documents
provided for in the Agreement or delivered or to be delivered thereunder or in
connection therewith, shall, except where the context otherwise requires, be
deemed a reference to the Agreement as amended hereby.
4.6 COUNTERPARTS. This Amendment may be executed in any number
of separate counterparts, each of which shall collectively and separately
constitute one agreement.
4.7 REAFFIRMATION OF GUARANTY. Middleby and Middleby
Worldwide, Inc. (f/k/a Xxxxxx Associates, Inc.), as guarantors (the
"GUARANTORS") pursuant to that certain Continuing
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Guaranty (Multicurrency) dated as of March 18, 1998 (the "GUARANTY") executed by
the Guarantors in favor of the Bank hereby acknowledge and affirm to the Bank
that notwithstanding the execution and delivery of this Amendment, the
Guarantors hereby re-confirm the Guaranty and are and continue to be primarily
liable for the Liabilities, as defined in the Guaranty.
[signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed at Chicago, Illinois by their respective officers
thereunto duly authorized as of the date first written above.
MIDDLEBY MARSHALL INC., as Borrower
and Guarantor
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY PHILIPPINES CORPORATION,
as Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY JAPAN CORPORATION, as
Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY TAIWAN CORPORATION
(f/k/a Xxxxxx Worldwide (Taiwan) Co., Ltd.), as
Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY WORLDWIDE, INC. (f/k/a Xxxxxx
Associates, Inc.), as Borrower and Guarantor
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY KOREA CORPORATION (f/k/a
Xxxxxx Worldwide Korea Co., Ltd.), as Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
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INTERNATIONAL CATERING EQUIPMENT
AND SUPPLIES, INC., as Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY MEXICO, S.A. DE C.V. (f/k/a
Xxxxxx Mexico, S.A. DE C.V.), as Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
MIDDLEBY WORLDWIDE SPAIN, S.L. (f/k/a
Xxxxxx, X.X.), as Borrower
By: /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: VP & CFO
BANK OF AMERICA, N.A. (successor to Bank
of America National Trust and Savings
Association), as Bank
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice-President
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