Unassociated Document


Exhibit
4.18




COMMERCIAL
PROMISSORY NOTE





	
      $2,513,884.16
	
       November 10,
2004




 

FOR VALUE
RECEIVED, The Middleby Corporation, a Delaware corporation with its principal
place of business in Elgin, Illinois (the "Borrower"), promises to pay to
Pizzagalli Properties, LLC, a Vermont limited liability company with its
principal place of business in South Burlington, Vermont (together with any
successors or assigns, the "Lender") at the principal offices of the Lender, 50
Joy Drive, P.O. Box 2009, South Burlington, Vermont 05403-2009, Two Million,
Five Hundred Thirteen Thousand, Eight Hundred Eighty-Four and 16/100 Dollars
($2,513,884.16) as provided below:




The
Borrower shall repay this Note in equal monthly payments of principal and
interest of $40,000.00 beginning December 1, 2004, and on the same day of each
consecutive month thereafter, until and including November 1, 2009. If not
sooner paid, the entire remaining principal balance, plus accrued interest and
all other charges shall be due and payable December 1, 2009.

 

Commencing
on the date hereof, interest shall accrue on the unpaid principal balance
outstanding from time to time at a floating rate per annum equal to the LIBOR
Rate (as defined below) plus four (4) percentage points; provided, however, that
at no time shall interest accrue at a rate higher than nine percent (9%) per
annum.




 LIBOR
Rate  means
the offered rate for deposits of U.S. Dollars in an amount approximately equal
to the then outstanding principal balance for a one month period that the
British Bankers  Association fixes as its LIBOR rate and which appears on the
Telerate Page 3750 as of 11:00 a.m. London time on the day which is two London
Banking Days prior to the Adjustment Date (as defined below).

 

 London
Banking Day  means a
day on which dealings in US dollar deposits are transacted in the London
interbank market.




The
applicable floating rate shall change on the first day of each calendar month
throughout the term of this Note (the  Adjustment Date ). Interest shall be
calculated on the basis of actual days elapsed in a 365/366 day year, including
holidays and days on which the Lender is not open for business.




Section
1. Payment Terms.




1.1
Payments; Prepayments. All
payments hereunder shall be made by the Borrower to the Lender in United States
currency at the Lender's address specified below (or at such other address as
the Lender may specify), in immediately available funds, on or before 3:00 p.m.
(Burlington, Vermont time) on the due date thereof. All payments under this Note
shall to Lender in the manner designated by the Lender: (i) by Automated
Clearing House (ACH) payment initiated by the Lender to an account designated by
the Lender, (ii) by wire transfer via the Federal Banking Wire Transfer system
to an account designated by the Lender, or (iii) to the Lender at Pizzagalli
Properties, LLC, P.O. Box 752031, Charlotte, North Carolina 2875-2031, or at
such other place as the Lender shall designate to the Borrower in writing.
Payments received by the Lender will be applied first to fees, expenses, and
other amounts due hereunder (excluding principal and interest), if any, pursuant
to Section 4.2 hereof; second, to accrued and unpaid interest; and third to
outstanding principal. The Borrower may pay all or a portion of the amount owed
earlier than is due without premium or penalty. Prepayments shall be applied to
installments of principal in the direct order of the date on which they become
due. Amounts prepaid may not be re-borrowed.























1.2
Default Rate. To the
extent permitted by applicable law, upon and after the occurrence of an Event of
Default, but only so long as such Event of Default shall be continuing (whether
or not the Lender has accelerated payment of this Note), interest on principal
and overdue interest shall, at the option of the Lender, be payable on demand
and shall accrue during such period at a rate per annum equal to two (2)
percentage points above the rate of interest otherwise payable
hereunder.




1.3
Letter of Credit. The
Borrower s payment obligations under this Note shall be partially supported by
Letter of Credit #7415646 issued by Bank of America, N.A., dated November 10,
2004, and all substitutions and replacements (the  Letter of Credit ), all in
accordance with a certain Lease Termination Agreement between the Borrower and
the Lender, dated November 10, 2004 (as amended from time to time, the  Lease
Termination Agreement ).




Section
2. Defaults and Remedies.




2.1
Default. The
occurrence of any of the following events shall constitute an "Event of Default"
hereunder:




(a) (i)
default in the payment when due of the principal of or interest on this Note,
which default continues for ten (10) consecutive days or (ii) any other default
in the payment or performance of this Note, which default continues for ten (10)
consecutive days;




(b)
failure of any representation or warranty of the Borrower hereunder or under the
Lease Termination Agreement or the failure of any representation or warranty of
the Tenant under the Lease that survives the termination of the Lease pursuant
to the Lease Termination Agreement to be true and correct in any material
respect on the date as of which made or deemed made;




(c)
dissolution, termination of existence, insolvency, appointment of a receiver,
trustee, or other custodian of any part of the property of, assignment for the
benefit of creditors by, or the commencement of any proceedings under any
bankruptcy or insolvency laws by or against the Borrower; or




(d)
failure to maintain in effect at all times the Letter of Credit, or to provide a
replacement Letter of Credit not less than fifteen (15) days prior to the
expiration of the then current Letter of Credit, unless such expiring Letter of
Credit is subject to automatic renewal.










2












2.2
Remedies. Upon
the occurrence and during the continuance of an Event of Default, at the option
of the Lender and following notice to the Borrower, all obligations of the
undersigned hereunder shall become immediately due and payable without demand
and the Lender shall then have the right to draw on the Letter of Credit,
subject to the limitations set forth in the Lease Termination Agreement. Nothing
in this Note shall be deemed to deprive the Lender of the right to reject a
payment made after the due date, and the expiration of any applicable grace
period, and accelerate repayment of the indebtedness and draw on the Letter of
Credit. All rights and remedies of the Lender are cumulative and are not
exclusive of any rights or remedies provided by laws or any other agreement, and
may be exercised separately or concurrently.




Section
3. [Intentionally Omitted] 




Section
4. Miscellaneous.




4.1
Waiver; Amendment. No
delay or omission on the part of the Lender in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
No waiver of any right or amendment to this Note shall be effective unless in
writing and signed by the Lender nor shall a waiver on one occasion be construed
as a bar to a waiver of any such right on any future occasion. The Borrower
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, and assents to any extensions or postponements of the time of payment
or any and all other indulgences under this Note or with respect to the Letter
of Credit, or to any and all substitutions, exchanges or releases of the Letter
of Credit, or to any and all additions or releases of any other parties or
persons primarily or secondarily liable under this Note, which from time to time
may be granted by the Lender in connection herewith regardless of the number or
period of any extensions.




4.2
Expenses. The
Borrower will pay on demand all reasonable expenses of the Lender in connection
with the default, collection or enforcement of this Note or the Letter of
Credit, or any waiver or amendment of any provision of any of the foregoing,
including, without limitation, reasonable attorneys' fees, and the amount of all
such expenses shall, until paid, be an obligation supported by the Letter of
Credit. 




4.3
Lender Records. The
entries on the records of the Lender (including any appearing on this Note)
shall be prima facie evidence of the aggregate principal amount outstanding
under this Note and interest accrued thereon, absent manifest
error.




4.4
Governing Law; Consent to Jurisdiction. This
Note shall be governed by, and construed in accordance with, the laws of the
State of Vermont. The Borrower agrees that any suit for the enforcement of this
Note may be brought in the courts of the State of Vermont or any federal court
sitting in such state and consents to the non-exclusive jurisdiction of each
such court and to service of process in any such suit being made upon the
Borrower by mail at the address specified in the Lease Termination Agreement by
and between the Lender, the Borrower, Cloverleaf Properties, Inc., and Blodgett
Holdings, Inc., of approximately even date herewith. The Borrower hereby waives
any objection that it may now or hereafter have to the venue of any such suit or
any such court or that such suit was brought in an inconvenient
court.










3












4.5 Severability;
Authorization to Complete; Paragraph Headings. If any
provision of this Note shall be invalid, illegal or unenforceable, such
provision shall be severable from the remainder of this Note and the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby. Paragraph headings are for the convenience of
reference only and are not a part of this Note and shall not affect its
interpretation.

 

4.6 Certain
References. All
pronouns and any variations thereof shall be deemed to refer to the masculine,
feminine, neuter, singular or plural, as the identity of the person, persons,
entity or entities may require. The terms "herein", "hereof" or "hereunder" or
similar terms used in this Note refer to this entire Note and not only to the
particular provision in which the term is used.

 

4.7 Assignments. This
Note shall not be assignable by the Borrower without the Lender's prior written
consent, and any attempted assignment without the Lender's prior written consent
shall be void and of no force and effect. This Note shall not be assignable by
the Lender without the Borrower s prior written consent, which consent shall not
be unreasonably withheld, conditioned, or delayed.





	
      IN THE PRESENCE OF:

       

       

       

      
      Witness

      /s/
      Martin Lindsay 

      Print/Type
      Full Name

	
      BORROWER:

      


      The
      Middleby Corporation

       

      By: /s/
      Timothy J. FitzGerald

      Its Vice President and duly authorized
      agent




 

 

   







4