Middleby Corporation (ADP)




	




Exhibit 4.2 



NOTE PREPAYMENT AND
WARRANT PURCHASE AGREEMENT 



     This
Note Prepayment and Warrant Purchase Agreement (this
“Agreement”), dated as of December 23, 2002, is by and
among The Middleby Corporation, a Delaware corporation
(“Parent”), Middleby Marshall Inc., a Delaware corporation (the
“Company” and, together with Parent, the “Loan
Parties”), the respective Subsidiaries of the Loan Parties signatory
hereto (together with the Loan Parties, the “Middleby
Companies”), American Capital Strategies, Ltd., a Delaware limited
partnership, for itself and in its capacity as servicer of and on behalf of each
of ACS Funding Trust I, ACAS Business Loan Trust 2000-1, ACAS Business Loan
Trust 2002-1 and ACAS Business Loan Trust 2002-2 (for itself and in such
capacity, “ACS”), and American Capital Financial Services,
Inc., a Delaware corporation (“ACFS”), as administrative agent
(in such capacity, the “Agent”) for the Purchasers under that
certain Note and Equity Purchase Agreement, dated as of December 21, 2001
(as amended, the “Purchase Agreement”), by and among the Loan
Parties, the Purchasers and the Agent. 



     WHEREAS,
on December 21, 2001, pursuant to the Purchase Agreement, the Company
issued and sold to ACS $25,000,000 in aggregate principal amount of the Notes;
and 



     WHEREAS,
on December 21, 2001, pursuant to the Purchase Agreement, Parent issued and
sold to ACS (i) a warrant, represented by a certificate designated
Certificate No. W-1 (the “Fixed Warrant”), granting the
Registered Holder (as defined therein) the right to purchase from Parent, at any
time and from time to time to and including December 21, 2011, 362,226
shares (subsequently reduced to 358,346 shares pursuant to
paragraph 2B(vii) of the Fixed Warrant) of Parent’s common stock,
$0.01 par value (“Common Stock”), at an exercise price per
share of $4.67 (subject to adjustment) and (ii) a warrant, represented by a
certificate designated Certificate No. W-2 (the “Conditional
Warrant”), granting the Registered Holder (as defined therein) the
right to purchase from Parent, at any time and from time to time after the
earlier to occur of (A) the payment in full of the Notes in accordance with
the terms of the Purchase Agreement and (B) September 14, 2006, at an
exercise price per share of $4.67 (subject to adjustment), the number of shares
of Common Stock determined in accordance with paragraph 1D and
Section 2 of the Conditional Warrant; and 



     WHEREAS,
the Company has notified the Agent of its election to prepay the Notes pursuant
to Section 3.3 of the Purchase Agreement; and 



     WHEREAS,
ACS wishes to sell to Parent, and Parent wishes to purchase from ACS, the Fixed
Warrant; and 






















	





     WHEREAS,
pursuant to paragraph 1D(vi) of the Conditional Warrant, the Conditional
Warrant expires immediately upon the prepayment of the Notes in accordance with
the terms of this Agreement; and 



     WHEREAS,
the parties have determined to effect the delivery of the Conditional Warrant to
Parent for cancellation in connection with the prepayment of the Notes
hereunder. 



     NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows: 



ARTICLE I 



DEFINITIONS 



               Section
1.1 Defined Terms  



                         (a)
Capitalized terms used herein and not otherwise defined shall have the
          respective meanings ascribed thereto in the Purchase Agreement; provided          that,
as used in this Agreement, the term “Purchase Documents”          shall
include, without limitation,  










	 	                              (i)
          the Purchase Agreement; 






	 	                              (ii)
          the Notes; 






	 	                              (iii)
          the Warrants; 






	 	                              (iv)
          the Stockholders Agreement (as such term is defined in Section 4.1(d) of
          the Purchase Agreement); 






	 	                              (v)
          that certain Guaranty, dated as of December 21, 2001, executed by Parent
in           favor of ACFS, in its capacity as agent for the Purchasers (as defined
therein),           and such Purchasers; 






	





2 





















	 	                              (vi)
          that certain Guaranty, dated as of December 21, 2001, executed by the
          Company in favor of ACFS, in its capacity as agent for the Purchasers (as
          defined therein), and such Purchasers; 






	 	                              (vii)
          that certain Subsidiary Guaranty, dated as of December 21, 2001, executed
          by Middleby Worldwide, Inc., Blodgett Holdings Inc., G.S. Blodgett Corporation,
          Pitco Frialator, Inc., MagiKitch’n Inc. and Cloverleaf Properties, Inc. in
          favor of ACFS, in its capacity as agent for the Purchasers (as defined
therein),           and such Purchasers; and 






	 	                              (viii)
          the Subordination Agreement, 






	

but shall not include
(A) that certain Subordination Agreement (the “Maytag
Agreement”), dated as of the 21st day of December, 2001, issued by
Maytag Corporation in favor of Bank of America, N.A., as administrative agent
under the Credit Agreement (as defined below), the Agent and the other Senior
Creditors (as defined therein) or (B) that certain Investment Unit Pricing
Agreement, executed as of the 21st day of December, 2001, by and among Parent,
the Company and ACS. 



                         (b)The
terms “affiliate” and “associate” have the
          meaning ascribed to such terms in Rule 12b-2 under the Securities Act of
          1934, as amended (the “Exchange Act”).  



                         (c)          “Credit
Agreement” means that certain Credit Agreement, dated           as of December 21,
2001, among the Company, Parent, various financial           institutions (together with
their respective successors and assigns, the           “Lenders”) and
Bank of America, N.A., as administrative agent           for the Lenders, as amended.  





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                         (d)          “Life
Insurance” means the life insurance policy insuring the           life of Selim
A. Bassoul delivered to the Agent by the Company as collateral           security
pursuant to Section 7.1(n) of the Purchase Agreement.  



                         (e)          “Parent
Transaction” means any of the following occurring after           the date of
this Agreement: (1) the sale, transfer, conveyance or other           disposition,
other than by way of merger of consolidation, in one or a series of           related
transactions, of all or substantially all of the assets of Parent and           its
Subsidiaries taken as a whole to any “person,” as such term is           used
in Sections 3(a)(9) and 13(d)(3) of the Exchange Act;           (2) the
consummation of any transaction, including, without limitation, any           merger or
consolidation, the result of which is that any “person,” as           such term
is used in Sections 3(a)(9) and 13(d)(3) of the Exchange Act           becomes
the beneficial owner (within the meaning of Rule 13d-3 under the           Exchange
Act), directly or indirectly, of more than fifty percent (50%) of the           Common
Stock outstanding immediately following such transaction; provided          that
any shares of Common Stock acquired in open market transactions on or after           the
date hereof by William Whitman, Jr., any Related Person or any employee           benefit
plan of Parent or any Subsidiary of Parent, or any person acting in its
          capacity as trustee, agent or other fiduciary or administrator of any such plan
          (each such person an “Excluded Person”) shall be deemed, for
          purposes of determining whether any Excluded Person or Excluded Persons have
          become the beneficial owner (within the meaning of Rule 13d-3 under the
          Exchange Act), directly or indirectly, of more than fifty percent (50%) of the
          outstanding Common Stock, not to be beneficially owned by such Excluded Person
          or Excluded Persons; (3) an acquisition of Common Stock by the Company
          which, by reducing the number of shares of Common Stock outstanding, increases
          the proportionate number of shares of Common Stock beneficially owned by
William           Whitman, Jr. or any Related Person to more than fifty percent (50%) of
the           Common Stock then outstanding; or (4) the consolidation of Parent
with, or           the merger of Parent into, a person, or the consolidation of any
person with, or           merger of any person into, Parent, in any such event pursuant
to a transaction           in which any of the outstanding Common Stock is converted into
or exchanged for           cash, securities or other property, other than any such
transaction in which the           Common Stock outstanding immediately prior to such
transaction is converted into           or exchanged for Voting Stock (as defined below)
of the surviving or transferee           person constituting at least sixty-six and
two-thirds percent (66 2/3%) of the           outstanding Voting Stock of such surviving
or transferee Person immediately           after giving effect to such conversion or
exchange, such that, in the case of           each of the foregoing clauses (1), (2), (3)
and (4), the fair market value of           the aggregate consideration for such assets
or Common Stock at the time of the           consummation of such disposition,
consolidation, merger, acquisition or other           transaction, is equivalent to an
amount in excess of $12.17 per share of Common           Stock outstanding immediately
prior to such disposition, consolidation, merger           or other transaction, such
excess being referred to hereinafter as the           “Per Share Value.” 





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                         (f)          “Voting
Stock” means, with respect to any entity, securities,           other ownership
interests or partnership interests entitled to vote in the           election of the
board of directors or other governing body of such entity.  



ARTICLE II 



RETIREMENT OF
WARRANTS AND NOTES;  



TERMINATION OF
PURCHASE DOCUMENTS; RELEASE OF CLAIMS  



               Section
2.1       Sale and Purchase of the Fixed Warrant; Cancellation of Conditional Warrant.
 On the date hereof (the "Payment Date"):  




                         (a)          ACS
will sell, assign, transfer and convey to Parent free and clear of all           liens,
claims, options, charges or encumbrances of whatever nature           (collectively,
“Encumbrances”), and Parent will purchase from           ACS, the Fixed
Warrant.  



                         (b)          On
the Payment Date, Parent shall deliver or cause to be delivered to ACS as the
          purchase price for the Fixed Warrant $2,687,595 in immediately available funds
          in accordance with the wire transfer instructions set forth in Exhibit A hereto.
The Conditional Warrant shall be cancelled without           the payment of any
consideration therefor.  



                         (c)          Upon
payment of the purchase price for the Fixed Warrant in accordance with           Section 2.1(b),
the Fixed Warrant shall be deemed to be cancelled, and ACS           will make notations
on the face of the certificates representing each of the           Fixed Warrant and the
Conditional Warrant to reflect the cancellation thereof.           ACS will deliver to
Parent, within seven (7) Business Days of the Payment Date,           the certificates
representing each of the Fixed Warrant and the Conditional           Warrant, in each
case together with a form of assignment thereof executed in           blank.  





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               Section
2.2 Additional Consideration in the Event of a Parent Transaction. If a Parent
Transaction is consummated prior to the first anniversary of the Payment Date, Parent
will pay or cause to be paid to ACS or its designee as additional consideration for the
Fixed Warrant, by wire transfer of immediately available funds as soon as practicable
following the consummation of such Parent Transaction, an amount equal to the product of
358,346 multiplied by the Per Share Value with respect to such Parent Transaction.  



               Section
2.3 Prepayment of the Notes. On the Payment Date, the Company shall pay to the
Agent in accordance with the wire transfer instructions set forth in Exhibit A hereto,
in satisfaction of all of the Company’s obligations under the Notes and, except as
specifically provided otherwise in Section 2.5, the Purchase Agreement, twenty-six
million seven hundred fifty-nine thousand two hundred forty dollars ($26,759,240) in
immediately available funds (the “Prepayment Amount”), consisting of (a) twenty-five
million five hundred fourteen thousand five hundred thirty-one dollars ($25,514,531)
principal amount of the Notes (including capitalized interest to the Payment Date) as of
the Payment Date, (b) two hundred ten thousand two hundred thirty-eight dollars
($210,238) in accrued interest (excluding capitalized interest) to the Payment Date, (c) a
prepayment fee of one million twenty thousand five hundred eighty-one dollars
($1,020,581), representing four percent (4%) of the principal amount set forth in the
immediately preceding clause (a) of this Section 2.3 and (d) thirteen
thousand eight hundred ninety dollars ($13,890) of out-of-pocket fees and expenses
incurred or payable by Agent or the Purchasers (as defined in the Purchase Agreement) and
which are reimbursable by the Loan Parties pursuant to Section 13.4 of the Purchase
Agreement. Payment of the Prepayment Amount hereunder shall be deemed to constitute the
payment in full of the Notes in accordance with the terms of the Purchase Agreement. Upon
payment of the Prepayment Amount hereunder, the Notes shall be deemed to be cancelled,
and ACS or the Agent will make (or cause to be made) notations on the face of the
instruments representing the Notes to reflect the cancellation thereof; ACS or the Agent
will deliver or cause to be delivered to the Company the Notes concurrently with or prior
to the delivery to Parent of the certificates representing the Fixed Warrant and the
Conditional Warrant.  





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               Section
2.4 Termination of Purchase Documents. Immediately upon the Agent’s receipt
of the Prepayment Amount as provided in Section 2.3, (i) the Purchase Agreement
and the other Purchase Documents shall be terminated, (ii) all obligations of the
Company, Parent and the other Middleby Companies under the Purchase Agreement and the
other Purchase Documents shall be deemed to have been satisfied in full, and the Company,
Parent, the other Middleby Companies and all other persons obligated therefor, whether by
guaranty or otherwise, shall, except as specifically provided otherwise in Section 2.5,
hereby be released from all liability therefor and (iii) each of the Agent, on
behalf of the Purchasers, and ACS shall be deemed to have released, terminated and
discharged, absolutely, unconditionally, irrevocably, fully and forever any and all
security interests, liens, pledges, mortgages and other Encumbrances on all assets and
properties, real or personal, tangible or intangible, of the Company and/or Parent and/or
their respective Subsidiaries, including, without limitation, the Life Insurance, arising
in connection with the Purchase Documents or any obligations thereunder.  



               Section
2.5 Mutual Release of Claims. Each of (a) ACFS, on behalf of the Purchasers,
itself and its Subsidiaries, affiliates, associates, stockholders, representatives,
successors, assigns, employees, attorneys, advisors and agents and (b) ACS, on
behalf of itself and its Subsidiaries, affiliates, associates, partners, representatives,
successors, assigns, employees, attorneys, advisors and agents (such persons described in
the foregoing clauses (a) and (b), including ACFS and ACS, being referred to hereinafter
collectively as the “American Capital Releasing Parties”) hereby (i) remises,
releases and discharges the Middleby Companies and their respective predecessors,
successors, assigns, stockholders, Subsidiaries and affiliates, together with the
respective former, current and future officers, directors, owners, employees, associates,
representatives, stockholders, attorneys, advisors and agents of each of the foregoing
(collectively, the “Released Middleby Parties”), and each of them, of
and from any and all claims, demands, debts, accounts, contracts, obligations,
liabilities, actions and causes of action, whether in law, in contract, in equity or
otherwise, which any of the American Capital Releasing Parties ever had, now has, or
hereafter may have against any of the Released Middleby Parties, directly or indirectly,
arising out of or in any way relating to (x) the Purchase Agreement, any other
Purchase Document or any transactions between or among any of the parties thereunder or
(y) the Maytag Agreement and (ii) acknowledges that none of the American
Capital Releasing Parties has any further rights or remedies under the Maytag Agreement;
provided, however, that the foregoing release shall not apply to, or
affect, any indemnification obligations of any Loan Party that expressly survives the
termination of the Purchase Agreement pursuant to Section 13.7 thereof. Each
Middleby Company, on behalf of itself and its Subsidiaries, affiliates, associates,
stockholders, representatives, successors, assigns, employees, attorneys, advisors and
agents (collectively, including, without limitation, each Middleby Company, the “Middleby
Releasing Parties”) hereby remises, releases and discharges the Agent and each
Purchaser, including ACS, and their respective predecessors, successors, assigns,
stockholders, Subsidiaries and affiliates, together with the respective former, current
and future officers, directors, owners, employees, associates, representatives,
stockholders, partners, attorneys, advisors and agents of each of the foregoing
(collectively, the “American Capital Released Parties”), and each of
them, of and from any and all claims, demands, debts, accounts, contracts, obligations,
liabilities, actions and causes of action, whether in law, in contract, in equity or
otherwise, which any of the Middleby Releasing Parties ever had, now has, or hereafter
may have against any of the American Capital Released Parties, directly or indirectly,
arising out of our in any way relating to the Purchase Agreement, any other Purchase
Document or any transactions between or among any of the parties thereunder. Nothing in
this Section 2.5 or in Section 2.4 shall be construed to constitute a release
of a party from any of its obligations under this Agreement.  




7 














	





ARTICLE III 



REPRESENTATIONS AND
WARRANTIES  



               Section
3.1 Representations and Warranties of the Loan Parties. Each Middleby Company,
severally and not jointly, represents and warrants as to itself to ACS and ACFS as
follows:  



                         (a)          Such
Middleby Company is a corporation duly organized and validly existing under           the
laws of its state of organization. Such Middleby Company has the corporate
          power and authority to enter into this Agreement and to perform its obligations
          hereunder.  



                         (b)          The
execution and delivery of this Agreement by such Middleby Company and the
          performance by such Middleby Company of its obligations under this Agreement
          have been duly authorized by all necessary corporate action on the part of such
          Middleby Company. This Agreement has been duly executed and delivered by such
          Middleby Company and, assuming that this Agreement has been duly executed and
          delivered by each of the other parties hereto, constitutes the legal, valid and
          binding obligation of such Middleby Company, enforceable against such Middleby
          Company in accordance with its terms, except as such enforceability may be
          limited by applicable bankruptcy, insolvency, reorganization, moratorium or
          similar laws affecting the enforcement of creditors’ rights generally and
          by general equitable principles (whether enforcement is sought by proceedings
in           equity or at law).  




8 



















	




               Section
3.2       Representations and Warranties of ACFS and ACS. 



                         (a)
          Each of ACS and ACFS (each an “American Capital Party”),
          severally and not jointly, represents and warrants as to itself to the Middleby
          Companies as follows:  









	 	                                   (i)
          Such American Capital Party is duly organized and validly existing under the
          laws of the state of Delaware. Such American Capital Party has all requisite
          power and authority to enter into this Agreement and to perform its obligations
          hereunder. 






	 	                                   (ii)
          The execution and delivery of this Agreement by such American Capital Party and
          the performance by such American Capital Party of its obligations under this
          Agreement have been duly authorized by all necessary action on the part of such
          American Capital Party. This Agreement has been duly executed and delivered by
          such American Capital Party and, assuming that this Agreement has been duly
          executed and delivered by each of the other parties hereto, constitutes the
          legal, valid and binding obligation of such American Capital Party, enforceable
          against such American Capital Party in accordance with its terms, except as
such           enforceability may be limited by applicable bankruptcy, insolvency,
          reorganization, moratorium or similar laws affecting the enforcement of
          creditors’ rights generally and by general equitable principles (whether
          enforcement is sought by proceedings in equity or at law). 







	



9 


















                              (b)
          ACS represents and warrants to the Middleby Companies as follows:  



	 	                                   (i)
          ACS, ACS Funding Trust I, ACAS Business Loan Trust 2000-1, ACAS Business
          Loan Trust 2002-1 and ACAS Business Loan Trust 2002-2 are the sole record and
          beneficial owners (within the meaning of Rule 13d-3 under the Exchange
Act)           of the Notes, the Fixed Warrant and the Conditional Warrant and own the
Notes,           the Fixed Warrant and the Conditional Warrant free and clear of all
          Encumbrances. Upon the consummation of the transactions contemplated by this
          Agreement, Parent will acquire good, valid and marketable title to the Fixed
          Warrant and the Conditional Warrant, free of any Encumbrances. 






	 	                                   (ii)
          The Fixed Warrant and the Conditional Warrant to be purchased or cancelled
          pursuant to Section 2.1 and the Notes to be prepaid pursuant to
          Sections 2.3 constitute all of the securities of Parent or the Company
          beneficially owned within the meaning of Rule 13d-3 under the Exchange Act
          by ACS or by any affiliate or associate of ACS. 





	


ARTICLE IV 



ADDITIONAL COVENANTS
AND AGREEMENTS  



               Section
4.1 Waiver of Notice. Pursuant to Sections 9.10 and 13.2 of the Purchase
Agreement, ACS and the Agent each expressly waives (a) the requirements in Section 3.4
of the Purchase Agreement relating to the timing and contents of notice of prepayment of
the Notes and (b) the requirement in such Section 3.4 that such notice be
accompanied by a certificate of the Chairman of the Board of Directors, the Chief
Executive Officer or the Chief Financial Officer of the Company relating to such
prepayment. ACS and the Agent each consent to the effectiveness for purposes of such
Section 3.4 of the notice heretofore provided by the Company and to the sufficiency
for purposes of such Section 3.4 of the officer’s certificate heretofore
delivered by the Company, and the Agent acknowledges receipt of such notice and such
officer’s certificate.  




10 

















	



               Section
4.2 Life Insurance. Upon consummation of the transactions provided for in Sections 2.1 and 2.3,
the Agent shall promptly deliver or cause to be delivered to the Company the documents
comprising the Life Insurance. The Agent shall take such further action (at the Company’s
expense) as may reasonably be required to name (or cause to be named) the Company or its
designee as the beneficiary of the Life Insurance and to assign or cause the assignment
of the Life Insurance to the Company or, if so directed by the Company, to cause the
cancellation of the Life Insurance, on or as soon as practicable after the Payment Date
or such direction, as applicable.  



               Section
4.3 Further Assurances. Each party will execute such documents and perform such
further acts as may reasonably be required or desirable to carry out or to perform the
provisions of this Agreement. Without limitation as to the foregoing, following receipt
of the Prepayment Amount as provided in Section 2.3 and the purchase price for the
Fixed Warrant in accordance with Section 2.1(b), the Agent and ACS shall do or cause
to be done, at their expense, such additional acts as Parent or the Company may
reasonably require from time to time in order to assist any of the Middleby Companies, or
their respective successors and assigns, to effectuate the cancellation of the
certificates and instruments representing the Fixed Warrant, the Conditional Warrant and
the Notes.  



ARTICLE V 



MISCELLANEOUS  



               Section
5.1 Amendment; Waiver. This Agreement may be amended at any time by the parties
hereto, but only by an instrument in writing signed on behalf of each of the parties
hereto. The failure of any of the parties hereto to comply with any obligation, covenant,
agreement or condition herein may be waived by the party or parties entitled to the
benefit thereof only by a written instrument signed by the party or parties granting such
waiver, but such waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.  





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                Section 5.2 Notices. All
notices and other communications given to or made upon any party hereto in connection
with this Agreement shall be in writing (including telecopy, but in such case, a
confirming copy will be sent by another permitted means) and mailed via certified mail,
telecopied or delivered by guaranteed overnight parcel express service or courier to the
respective parties as follows:  










	 		 	
	 	(a)	         	if
      to any Loan Party:	 
	                         	 	 	 	 
	 	 
      	 	The
      Middleby Corporation	 
	 	 
      	 	1400
      Toastmaster Drive	 
	 	 
      	 	Elgin,
      Illinois 60120	 
	 	 
      	 	Telecopy:
      (817) 741-0015	 
	 	 
      	 	Attention:
      Chief Financial Officer	 
	 	 	 	 	 
	 	 
      	 	with
      a copy to:	 
	 	 	 	 	 
	 	 
      	 	Skadden,
      Arps, Slate, Meagher & Flom LLP	 
	 	 
      	 	4
      Times Square	 
	 	 
      	 	New
      York, New York 10036	 
	 	 
      	 	Telecopy:
      (212) 735-2000	 
	 	 
      	 	Attention:
      Blaine V. Fogg	 
	 	 	 	 	 
	 	(b)	 	if
      to any American Capital Party:	 
	 	 	 	 	 
	 	 
      	 	American
      Capital Financial Services, Inc.	 
	 	
      	 	2
      Bethesda Metro Center, 14th Floor	 
	 	
      	 	Bethesda,
      Maryland 20814	 
	 	 
      	 	Telecopy:
      (301) 654-6714	 
	 	 
      	 	Attention:
      Compliance Officer	 
	 	 	 	 	 
	 	 
      	 	and	 
	 	 	 	 	 
	 	  
      	 	American
      Capital Strategies, Ltd.	 
	 	  
      	 	2
      Bethesda Metro Center, 14th Floor	 
	 	  
      	 	Bethesda,
      Maryland 20814	 
	 	  
      	 	Telecopy:
      (301) 654-6714	 
	 	  
      	 	Attention:
      Gordon O'Brien	 







	




12 



















	 	 	 	 
	        
                   
                    
                    
    	 	with a copy
      to	 
	 	 	 	 
	  	 	Arnold &
      Porter	 
	  	 	555 12th
      Street, N.W.	 
	 	 	Washington,
      D.C. 20004	 
	 	 	Telecopy:
      (202) 942-5999	 
	 	 	Attention:
      Samuel A. Flax, Esq.	 
	 	 	 	 
	 	 	and to	 
	 	 	 	 
	 	 	Patton Boggs
      LLP	 
	 	 	2001 Ross
      Avenue, Suite 3000	 
	 	 	Dallas, Texas
      75201	 
	 	 	Telecopy:
      (214) 758-1550	 
	 	 	Attention:
      R. Jeffery Cole, Esq.	 






	



               Section
5.3 Fees and Expenses. Each party shall bear its own fees and expenses incurred in
connection with this Agreement and the transactions contemplated hereby, except as
otherwise specified in Section 4.2 and Section 4.3 and except for any such fees
and expenses of the Agent and the Purchasers (as defined in the Purchase Agreement)
included in the Prepayment Amount.  



               Section
5.4 Descriptive Headings. The descriptive headings herein are included for
convenience of reference only and are not intended to be part of or to affect the meaning
or interpretation of this Agreement.  



               Section
5.5 Counterparts. This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and
the same instrument.  



               Section
5.6 Entire Agreement. This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties with respect to
the subject matter of this Agreement.  






13 


















	



               Section
5.7 Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois, without regard to conflicts of law rules thereof
that would require the application of the laws of another jurisdiction.  



               Section
5.8 Specific Performance. The parties hereto agree that irreparable damage would
occur in the event any of the provisions of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to specific
performance of the terms hereof, in addition to any other remedy at law or in equity.  



               Section
5.9 Severability. This Agreement shall be deemed severable; the invalidity or
unenforceability of any term or provision of this Agreement shall not affect the validity
or enforceability of this Agreement or of any other term hereof, which shall remain in
full force and effect.  



               Section
5.10 Parties in Interest; Assignment. This Agreement shall be binding upon and
inure solely to the benefit of each party hereto and its respective permitted successors
and assigns, and nothing in this Agreement, express or implied, is intended to or shall
confer upon any other person or persons any rights, benefits or remedies of any nature
whatsoever under or by reason of this Agreement. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the parties hereto
without the prior written consent of the other parties hereto.  



               Section
5.11 Indemnification. At all times, the Agent and ACS will indemnify and save and
hold harmless each of the Middleby Companies for, of and from any loss, claim, action,
suit, cost, expense or damage, including, without limitation, attorneys’ fees, (all
of the foregoing are hereinafter referred to as “Indemnified Amounts”)
that may result by reason of (a) a breach of any of ACS’s representations and
warranties contained in Section 3.2(b), (b) by reason of a breach of any of the
agreements contained in Section 2.1(c)2.1(c), the last sentence of Section 2.3
or the last sentence of Section 4.3 or (c) by reason of claims by any Person
through or related to the Fixed Warrant, the Conditional Warrant or the Notes.  





14 

















	




[Signature page
follows.]  





15 


















	




     IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.  










			THE MIDDLEBY CORPORATION



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer






			MIDDLEBY  MARSHALL INC.



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer









			MIDDLEBY  WORLDWIDE, INC.



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer









			BLODGETT HOLDINGS INC.



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer







			G.S. BLODGETT CORPORATION 



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer






	








 










	











			PITCO FRIALATOR, INC.



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer








			MAGIKITCH’N INC.



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer









			CLOVERLEAF PROPERTIES INC.



By:     /s/ David B. Baker
     ——————————————————

Name: David B. Baker

Title:   Vice President, Chief Financial Officer





	


















	









			AMERICAN CAPITAL FINANCIAL
 SERVICES INC. 



By:      /s/ Gordon O’Brien 
     ——————————————————

Name: Gordon O’Brien 

Title:   Vice President






			
AMERICAN CAPITAL STRATEGIES, LTD., 

for itself and in its capacity as servicer of and 

on behalf of ACS FUNDING TRUST I, ACAS 

BUSINESS LOAN TRUST 2000-1, ACAS 

BUSINESS LOAN TRUST 2002-1 AND

ACAS BUSINESS LOAN TRUST 2002-2 



By:      /s/ Gordon O’Brien 
     ——————————————————

Name: Gordon O’Brien 

Title:   Vice President





	




















	




Acknowledgment,
Consent and Agreement 
in
Connection with Note Prepayment and Warrant Purchase Agreement 



     Bank
of America, N.A., a national banking association, as administrative agent (the
“Administrative Agent”) under that certain Amended and Restated
Credit Agreement, dated as of December 23, 2002 (the “Credit
Agreement”), among Middleby Marshall Inc., a Delaware corporation (the
“Company”), The Middleby Corporation, a Delaware corporation
(“Parent”), various financial institutions party thereto and
the Administrative Agent, hereby (i) acknowledges having reviewed the Note
Prepayment and Warrant Purchase Agreement (the “Prepayment
Agreement”), dated as of December 23, 2002, by and among Parent,
the Company, the other Middleby Companies (as defined therein), American Capital
Strategies, Ltd., a Delaware limited partnership (“ACS”), for
itself and in its capacity as servicer of and on behalf of ACS Funding
Trust I, ACAS Business Loan Trust 2000-1, ACAS Business Loan Trust 2002-1
and ACAS Business Loan Trust 2002-2, and American Capital Financial Services,
Inc., a Delaware corporation, as administrative agent (in such capacity,
“ACFS”) for the securities purchasers party from time to that
certain Note and Equity Purchase Agreement, dated as of December 21, 2001,
by and among Parent, the Company, such securities purchasers and ACFS, and
(ii) acknowledges, consents and agrees to the termination, in accordance
with Section 2.4 of the Prepayment Agreement, of that certain Subordination
Agreement, dated the 21st day of December, 2001, by and among the ACFS, ACS,
Parent, the Company, certain subsidiaries of the Company party thereto and the
Administrative Agent. 



Date: December 23, 2002 



[Signature page
follows.]  






















	










			
BANK OF AMERICA, N.A.,

as administrative agent under the Credit

Agreement




By:     /s/ David A. Johnason
     ——————————————————

Name: David A. Johnason

Title:   Vice President





	




















	



EXHIBIT A 








		
	Name:	 	American Capital Strategies, Ltd.	 
	Bank:	 	Wells Fargo, National Association	 
	ABA No.:	 	121000248	 
	Bank Acct. No.:	 	4000037515	 
	Reference:	 	ACS Funding Trust I