EXHIBIT 4.8







	





     Exhibit
4.8 







NOTE AND
EQUITY PURCHASE AGREEMENT



by and among 



THE MIDDLEBY
CORPORATION and
MIDDLEBY MARSHALL INC.,
AS LOAN PARTIES,



AMERICAN CAPITAL
FINANCIAL SERVICES, INC.,
AS AGENT



and 



THE
PURCHASERS IDENTIFIED ON
ANNEX A HERETO






December 21,
2001

















	





TABLE OF
CONTENTS









	 		 		Page




	ARTICLE 1 DEFINITIONS		1


		1.1		Certain Definitions		1


		1.2		Other Definitional Provisions; Construction		18




	ARTICLE 2 ISSUE AND SALE OF SECURITIES		18


		2.1		Authorization and Issuance of the Notes		18


		2.2		Authorization and Issuance of the Warrants		18


		2.3		Sale and Purchase		18


		2.4		The Closing		18





	ARTICLE 3 REPAYMENT OF THE NOTES		19


		3.1		Interest Rates and Interest Payments		19


		3.2		Repayment of the Notes		19


		3.3		Optional Prepayment of Notes		19


		3.4		Notice of Optional Prepayment		20


		3.5		Mandatory Prepayment		20


		3.6		Home Office Payment		20


		3.7		Taxes		20


		3.8		Maximum Lawful Rate		22


		3.9		Capital Adequacy		22


		3.10		Certain Waivers		22





	ARTICLE 4 CONDITIONS		23


		4.1		Conditions to Purchase of Securities		23





	ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE LOAN PARTIES		26


		5.1		Representations and Warranties of Loan Parties		26


		5.2		Absolute Reliance on the Representations and Warranties		32





	ARTICLE 6 TRANSFER OF SECURITIES		33


		6.1		Restricted Securities		33


		6.2		Legends; Purchaser’s Representations		33


		6.3		Transfer of Notes		33


		6.4		Replacement of Lost Securities		34


		6.5		No Other Representations Affected		34





	ARTICLE 7 COVENANTS		34



		7.1		Affirmative Covenants		34


		7.2		Negative Covenants		40


		7.3		Financial Covenants		47





	ARTICLE 8 EVENTS OF DEFAULT		47


		8.1		Events of Default		47





	


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		8.2		Consequences of Event of Default		49





	ARTICLE 9 THE AGENT		50



		9.1		Authorization and Action		50


		9.2		Delegation of Duties		50


		9.3		Exculpatory Provisions		50


		9.4		Reliance		51


		9.5		Non-Reliance on Agent and Other Purchasers		51


		9.6		Agent in its Individual Capacity		51


		9.7		Successor Agent		51


		9.8		Collections and Disbursements		52


		9.9		Reporting		52


		9.10		Consent of Purchasers		53


		9.11		This Article Not Applicable to Loan Parties		53





	ARTICLE 10 PUT OPTION		54


		10.1		Grant of Option		54


		10.2		Put Price		54


		10.3		Exercise of Put Option		54


		10.4		Certain Remedies		54


		10.5		Put Option Closing		55





	ARTICLE 11 PREEMPTIVE RIGHTS		55


		11.1		Limited Preemptive Rights 		55





	ARTICLE 12 REGISTRATION RIGHTS		56



		12.1		Piggyback Registrations		56


		12.2		Demand Registration Rights		57


		12.3		S-3 Demand Registration Rights		58


		12.4		Holdback Agreements		58


		12.5		Registration Procedures		58


		12.6		Registration Expenses		61


		12.7		Indemnification		61


		12.8		Participation in Underwritten Registrations		62





	ARTICLE 13 MISCELLANEOUS		62


		13.1		Successors and Assigns		62


		13.2		Modifications and Amendments		62


		13.3		No Implied Waivers; Cumulative Remedies; Writing Required		63


		13.4		Reimbursement of Expenses		63


		13.5		Holidays		63


		13.6		Notices		63


		13.7		Survival		65


		13.8		Governing Law		65


		13.9		Jurisdiction, Consent to Service of Process		65


		13.10		Jury Trial Waiver		66


		13.11		Severability		66





	


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		13.12		Headings		66


		13.13		Indemnity		66


		13.14		Environmental Indemnity		66


		13.15		Counterparts		67


		13.16		Integration		68


		13.17		Subordination		68






	


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NOTE AND EQUITY
PURCHASE AGREEMENT



$25,000,000
Aggregate Principal Amount of
Senior
Subordinated Promissory Notes of the Company
Due
September 14, 2006



Warrants to
Purchase up to 8.25%
of Common
Stock of Parent



     THIS
NOTE AND EQUITY PURCHASE AGREEMENT (this “Agreement”), dated as of
December 21, 2001, is by and among The Middleby Corporation, a Delaware
corporation (“Parent”), Middleby Marshall Inc., a Delaware corporation
(the “Company” and, jointly and severally, the “Loan
Parties”), the securities purchasers that are now and hereafter at any time
parties hereto and are listed in Annex A (or any amendment or
supplement thereto) attached hereto (each a “Purchaser” and
collectively, “Purchasers”), and AMERICAN CAPITAL FINANCIAL SERVICES,
INC., a Delaware corporation (“ACFS”), as administrative agent for
Purchasers (in such capacity “Agent”). Capitalized terms used and not
defined elsewhere in this Agreement are defined in Article 1 hereof. 



RECITALS 



     A.
Parent and Maytag Corporation, a Delaware corporation (“Maytag”), are party to that
certain Stock Purchase Agreement, dated as of August 30, 2001 (as amended, restated or
otherwise modified from time to time, the “Acquisition Agreement”), whereby Parent has
agreed to purchase all of the capital stock of Blodgett Holdings, Inc. (the “Blodgett
Acquisition”). 



     B. In
order to finance the Blodgett Acquisition and provide working capital to the Company, the
Company has proposed selling to Purchasers the Notes to be issued pursuant to this
Agreement. 



     C.
In order to induce Purchasers to purchase the Notes to be issued pursuant to
this Agreement, Parent has agreed to issue and sell to Purchasers, in connection
with the purchase of such Notes, warrants to purchase up to 8.25% (on a fully
diluted basis) of the issued and outstanding Common Stock of Parent subject to
the terms and conditions sets forth in this Agreement. 



     NOW,
THEREFORE, the parties hereto, in consideration of the premises and their mutual
covenants and agreements herein set forth and intending to be legally bound
hereby, covenant and agree as follows: 



     NOW,
THEREFORE, the parties hereto, in consideration of the premises and their mutual
covenants and agreements herein set forth and intending to be legally bound
hereby, covenant and agree as follows: 




ARTICLE 1 



DEFINITIONS 




     1.1
Certain Definitions. In addition to other words and terms defined
elsewhere in this Agreement, the following words and terms shall have the
meanings set forth below (and such meanings shall be equally applicable to both
the singular and plural form of the terms defined, as the context may require): 



1













	





     “ACAS”
shall mean American Capital Strategies, Ltd., a Delaware limited partnership. 



     “ACFS”
shall have the meaning assigned to such term in the introductory paragraph
hereto. 



     “Acquisition”
shall mean any transaction or series of related transactions for the purpose of
or resulting, directly or indirectly, in (a) the acquisition of all or
substantially all of the assets of a Person, or of any business or division of a
Person, (b) the acquisition of in excess of 50% of the capital stock,
partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary). 



     “Acquisition
Agreement” shall have the meaning assigned to such term in the recitals
hereto. 



     “Acquisition
Documents” shall mean the Acquisition Agreement and all documents,
instruments, certificates, and agreements contemplated thereby or executed in
connection therewith. 



     “Affiliate”
shall mean with respect to any Person, (a) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person and (b) any officer or director of such Person. 



     “Agent”
shall have the meaning assigned to such term in the preamble hereto and any
successor agent provided for hereunder. 



     “Agreement”
shall mean this Note and Equity Purchase Agreement, as the same may be amended,
restated, supplemented or otherwise modified from time to time. 



     “Appraised
Value” shall mean the fair market value of a security on a control premium
basis without discount for limitations on voting rights, minority interests,
illiquidity or restrictions on transfer, as determined by an appraisal performed
at the expense of Parent by any of (x) Houlihan, Lokey, Howard & Zukin,
(y) Duff & Phelps or (z) Willamette Management Associates, or any successor
to such firms, as Parent shall elect; provided, that such appraiser shall
be directed to determine the value of such securities as soon as practicable,
but in no event later than 30 days from the date of its selection and for such
purposes all rights, options and warrants to subscribe for or purchase, and
other securities convertible into or exchangeable for Common Stock of Parent
shall be deemed to be exercised, exchanged or converted, and the underlying
shares of Common Stock of Parent shall be deemed outstanding. 



     “Asset
Sale” shall mean the sale, lease, assignment or other transfer for value by
a Middleby Company to any Person (other than a Middleby Company) of any asset or
right of such Middleby Company (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 such Middleby Company, as licensor, in the ordinary
course of business for the use of any intellectual property or other intangible
asset of such Middleby Company, (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 such Middleby Company and (d)
other sales or transfers of assets in an aggregate amount not exceeding $500,000
in any fiscal year. 



2













	





     “Blodgett
Acquisition” shall have the meaning assigned to such term in the recitals
hereto. 



     “Business”
shall mean the principal business of each of the Middleby Companies as set forth
in Section 5.1(b) herein and as such shall continue to be conducted
following the purchase and sale of the Securities. 



     “Business
Day” shall mean any day other than a Saturday, Sunday or other day on which
banking institutions in Illinois are authorized or required by law to close. 



     “By-laws”
shall mean the by-laws, partnership agreement, limited liability company
agreement, regulations, operating agreement or analogous instrument governing
the operations of each of the Middleby Companies, as applicable, including all
amendments and supplements thereto. 



     “Capital
Expenditures” shall mean 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 (a)
from insurance proceeds (or other similar recoveries) paid on account of the
loss of or damage to the assets being replaced or restored or (b) with awards of
compensation arising from the taking by eminent domain or condemnation of the
assets being replaced. 



     “Capitalized
Leases” shall mean, with respect to any Person, leases of (or other
agreements conveying the right to use) any property (whether real, personal or
mixed) by such Person as lessee that, in accordance with GAAP, would be required
to be classified and accounted for as Capitalized Leases on a balance sheet of
such Person. 



     “Cash
Equivalent Investment” shall mean, at any time, (a) any evidence of
Indebtedness, 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 Senior Lender or its holding
company) rated at least A-l by Standard & Poor’s Ratings Group
(“S&P”) or P-l by Moody’s Investors Service, Inc.
(“Moody’s”) (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 Senior Lender, (d) any repurchase agreement
entered into with any Senior 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 Senior Lender thereunder, (e) investments in short-term asset
management accounts offered by any Senior 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 (6) months or fewer from the date of acquisition backed by standby letters
of credit issued by any Senior 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













	





     “CERCLA”
shall mean the Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. § 9604, et seq.), as amended, and rules, regulations, standards
guidelines and publications issued thereunder. 



     “Change
of Control” shall mean the occurrence of any of the following: 










	 	     (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)
Individuals who on the Closing 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 Closing Date whose election, or nomination for election by the Parent’s
stockholders, 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; or 






	 	     (c)
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 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 the Warrants. 






	


4













	





     “Charter
Documents” shall mean the articles of incorporation, certificate of
incorporation, certificate of limited partnership, certificate of limited
liability company, articles of organization, certificate of organization,
charter or analogous organic instrument filed with the appropriate Governmental
Authorities of each of the Middleby Companies, as applicable, including all
amendments and supplements thereto. 



     “Closing”
shall mean the closing of the purchase and sale of the Securities pursuant to
this Agreement. 



     “Closing
Date” shall mean the date and time for delivery and payment of the Notes as
finally determined pursuant to Section 2.4 hereof. 



     “Closing
Processing Fee” shall mean a fee in an amount equal to $687,500 ($50,000 of
which was paid by the Company to ACFS prior to the date hereof) payable by the
Company to ACFS in consideration of the structuring of the financing
contemplated hereby. 



     “Code”
shall mean the Internal Revenue Code of 1986, as amended. 



     “Common
Stock” shall mean the common stock, $.01 par value, of the Parent. 



     “Company”
shall have the meaning assigned to such term in the introductory paragraph
hereto. 



     “Computation
Period” shall mean each period of four (4) consecutive Fiscal Quarters
ending on the last day of a Fiscal Quarter. 



     “Condition”
shall mean any condition that results in or otherwise relates to any
Environmental Liabilities. 



     “Conditional
Warrants” shall mean Warrants issued pursuant to, and in the form of
Exhibit B-2 to, this Agreement. 



     “Consolidated
Net Income” shall mean, 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” shall mean, 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
Financing) of the Parent and its Subsidiaries as of such date and (b) all
Special Charges taken after September 29, 2001. 



     “Controlled
Group” shall mean the “controlled group of corporations” as that
term is defined in Section 1563 of the Internal Revenue Code of 1986, as
amended, of which the Middleby Companies are a part from time to time. 



5













	





     “Default”
shall mean any event or condition that, but for the giving of notice or the
lapse of time, or both, would constitute an Event of Default. 



     “Determination
Date” shall mean the earlier to occur of (a) the date of payment in
full of the Notes in accordance with the terms of this Agreement and
(b) September 14, 2006. 



     “Direct
Competitor” shall mean a Person engaged in whole or in part in a business
substantially similar to the Business. 



     “Domestic
Subsidiary” shall mean any Subsidiary that is incorporated in the United
States. 



     “EBITDA”
shall mean for any period, without duplication, 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. 



     “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. 



     “Environmental
Liabilities” shall mean any obligations or liabilities (including any
claims, suits or other assertions of obligations or liabilities) that are: 










	 	     (a)
related to environmental, health or safety issues (including on-site or off-site
contamination by Pollutants of surface or subsurface soil or water, and occupational
safety and health); and 






	 	     (b)
based upon or related to (i) any provision of past, present or future United States
or foreign Environmental Law (including CERCLA and RCRA) or common law, or (ii) any
judgment, order, writ, decree, permit or injunction imposed by any court, administrative
agency, tribunal or otherwise. 






	


The term “Environmental
Liabilities” includes: (a) fines, penalties, judgments, awards, settlements,
losses, damages, costs, fees (including attorneys’ and consultants’ fees),
expenses and disbursements; (b) defense and other responses to any administrative or
judicial action (including claims, notice letters, complaints, and other assertions of
liability); and (c) financial responsibility for (i) cleanup costs and
injunctive relief, including any Removal, Remedial or other Response actions, and natural
resource damages, and (ii) any other compliance or remedial measures.  



     “Environmental
Schedule” shall have the meaning assigned to such term in Section
5.1(l) hereof. 



6













	





     “ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as the same may
from time to time be amended, and the rules and regulations of any governmental
agency or authority, as from time to time in effect, promulgated thereunder. 



     “Event
of Default” shall mean any of the events of default described in
Section 8.1 hereof. 



     “Exercise
Shares” shall mean the number of shares of Common Stock (as adjusted from
time to time in accordance with the Warrants) into which each Conditional
Warrant is exercisable. 



     “Fair
Market Value” of a security shall mean (a) the Market Price thereof or (b)
if determined in connection with a Change of Control, the greater of (i) the
Market Price thereof or (ii) the value to be realized by the holder of the
security as a result of such Change of Control. 



     “Fiscal
Quarter” shall mean each 13-week period during a Fiscal Year, beginning
with the first day of such Fiscal Year. 



     “Fiscal
Year” or “fiscal year” shall mean the fiscal year of the Parent
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” shall mean, 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 Indebtedness made by the Parent and its Subsidiaries
during such Computation Period; provided that: 










	 	     (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 Indebtedness 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 Indebtedness 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. 






	


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     For
purposes of clause (b)(ii) above, “Scheduled Loan Payments”
shall mean, with respect to the Term Financing, (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 (as defined in the Senior Credit Agreement) scheduled to be made during
such Computation Period. 



     “Funded
Debt” shall mean all Indebtedness 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 Indebtedness of a Person other than the
Company or any Subsidiary), (ii) Hedging Obligations, (iii) Indebtedness of the
Company to its Subsidiaries and Indebtedness of the Company’s Subsidiaries
to the Company or to other Subsidiaries of the Company, (iv) Indebtedness of
Parent to the Company and (v) Seller Subordinated Debt. 



     “GAAP”
shall mean 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. 



     “Governmental
Authorities” shall mean any federal, state, provincial or municipal court
or other governmental department, ministry, council, commission, board, bureau,
agency or instrumentality, governmental or quasi-governmental, domestic or
foreign. 



     “Guaranty”
shall mean any guaranty of the payment or performance of any Indebtedness or
other obligation and any other arrangement whereby credit is extended to one
obligor on the basis of any promise of another Person, whether that promise is
expressed in terms of an obligation to pay the Indebtedness of such obligor, or
to purchase an obligation owed by such obligor, or to purchase goods and
services from such obligor pursuant to a take-or-pay contract, or to maintain
the capital, working capital, solvency or general financial condition of such
obligor, whether or not any such arrangement is reflected on the balance sheet
of such other Person, firm or corporation, or referred to in a footnote thereto,
but shall not include endorsements of items for collection in the ordinary
course of business. For the purpose of all computations made under this
Agreement, the amount of a Guaranty in respect of any obligation shall be deemed
to be equal to the maximum aggregate amount of such obligation or, if the
Guaranty is limited to less than the full amount of such obligation, the maximum
aggregate potential liability under the terms of the Guaranty. 



     “Hazardous
Materials” shall mean all substances defined as Hazardous Substances, Oils,
Pollutants or Contaminants in the National Oil and Hazardous Substances
Pollution Contingency Plan, 40 C.F.R. § 300.5, or defined as such by, or
regulated as such under, any Environmental Law. 



8













	





     “Hedging
Agreements” shall mean 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” shall mean, with respect to any Person, all liabilities of
such Person under Hedging Agreements. 



     “Holder”
shall have the meaning assigned to such term in Section 10.1 hereof. 



     “Holders’
IRR” shall have the meaning set forth in Section 13.18(a) hereof. 



     “Indebtedness”
shall mean, 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 Capitalized
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 banker’s acceptances
issued for the account of such Person, (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
Indebtedness of any partnership in which such Person is a general partner. 



     “Indebtedness
to be Repaid” shall mean the Indebtedness listed on Schedule
7.2(a)(xi). 



     “Interest
Expense” shall mean, for any Computation Period, the consolidated interest
expense of the Parent and its Subsidiaries for such Computation Period
(including all imputed interest on Capitalized Leases). 



     “Investment”
shall mean, 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. 



     “IP
Assets” shall mean all intellectual property of the Middleby Companies
including copyrights, trademarks, trademark applications, service marks and
trade names, trade secrets, patent and patent applications related to the
Business, and all physical manifestations thereof, including, without
limitation, all books, manuals, software, disks, computer tapes and electronic
and electromagnetic representations and reproductions thereof. 



9













	





     “IRS”
shall mean the Internal Revenue Service and any governmental body or agency
succeeding to the functions thereof. 



     “IRR”
shall mean, as to any Person and as of any date of determination, the internal
rate of return received with respect to a Person’s investment in Notes and
Warrants (which rate of return shall specifically exclude loan fees (other than
prepayment premiums) received in connection therewith), assuming that the
Warrants are exercisable into 5.5% of the issued and outstanding Common Stock of
Parent on a fully diluted basis at the time of Closing. 



     “Laws”
shall mean all U.S. and foreign federal, state or local statutes, laws, rules,
regulations, ordinances, codes, policies, rules of common law, and the like, now
or hereafter in effect, including any judicial or administrative interpretations
thereof, and any judicial or administrative orders, consents, decrees or
judgments. 



     “Lien”
shall mean, 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. 



     “Life
Insurance” shall have the meaning assigned to such term in
Section 7.1(n) hereof. 



     “Litigation
Schedule” shall have the meaning assigned to such term in
Section 5.1(j) hereof. 



     “Loan
Parties” shall have the meaning assigned to such term in the introductory
paragraph hereto. 



     “Manage”
and “Management” shall mean generation, production, handling,
distribution, processing, use, storage, treatment, operation, transportation,
recycling, reuse and/or disposal, as those terms are defined in CERCLA, RCRA and
other Environmental Laws (including as those terms are further defined,
construed, or otherwise used in rules, regulations, standards, guidelines and
publications issued pursuant to, or otherwise in implementation of, such
Environmental Laws). 



     “Market
Price” of any security shall mean the average of the closing prices of such
security’s sales on all securities exchanges on which such security may at
the time be listed, or, if there have been no sales on any such exchange on any
day, the average of the highest bid and lowest asked prices on all such
exchanges at the end of each day, or, if on any day such security is not so
listed, the average of the representative bid and asked prices quoted in the
NASDAQ System as of 4:00 P.M., New York time, or, if on any day such security is
not quoted in the NASDAQ System, the average of the highest bid and lowest asked
prices on such day in the domestic over-the-counter market as reported by the
National Quotation Bureau, Incorporated, or any similar successor organization,
in each such case averaged over a period of 30 days consisting of the day
as of which “Market Price” is being determined and the
29 consecutive business days prior to such day. If at any time such
security is not listed on any securities exchange or quoted in the NASDAQ System
or the over-the-counter market, then “Market Price” shall be the fair
value thereof determined jointly by Parent and the Holders of Warrants
representing a majority of the shares of Common Stock of Parent obtainable upon
exercise of the Warrants. If such parties are unable to reach agreement within
ten (10) days of any event that requires the determination of Market Price, then
the Market Price shall be deemed to be the Appraised Value. 



10













	





     “Material
Adverse Effect” shall mean a material adverse effect on the business,
properties, assets or financial condition of the Middleby Companies, taken as a
whole. 



     “Maytag”
shall have the meaning assigned to such term in the recitals hereto. 



     “Middleby
Companies” shall mean Parent, Company and each of their respective
Subsidiaries. 



     “Multiemployer
Plan” shall mean a multiemployer plan (within the meaning of
Section 3(37) of ERISA) that is maintained for the benefit of the employees
of the Middleby Companies or any member of the Controlled Group. 



     “Net
Cash Proceeds” shall mean: 










			(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 a Middleby Company 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 such Middleby 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 Indebtedness (and related prepayment premiums) secured by a
Lien on the asset subject to such Asset Sale (other than Indebtedness hereunder and under
the Senior Credit Documents), (iv) appropriate amounts to be provided by such Middleby
Company, 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 such Middleby Company,
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 (provided that, 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 






	


11













	












			(b) 		with
respect to any issuance of equity securities or Indebtedness, the aggregate cash proceeds
received by such Middleby Company pursuant to such issuance, net of the direct costs
relating to such issuance (including sales and underwriter’s discounts and
commissions and legal, accounting and investment banking fees). 






	


     “Non-U.S.
Lender” shall have the meaning set forth in Section 3.7 hereof. 



     “Notes”
shall have the meaning set forth in Section 2.1(c) hereof. 



     “Organizational
Schedule” shall have the meaning assigned to such term in
Section 5.1(a) hereof. 



     “Other
Taxes” shall have the meaning assigned to such term in
Section 3.7 hereof. 



     “Parent”
shall have the meaning assigned to such term in the introductory paragraph
hereto. 



     “Parent
Notice” shall have the meaning set forth in Section 13.18(a) hereof. 



     “PBGC”
shall mean the Pension Benefit Guaranty Corporation established pursuant to
Subtitle A of Title IV of ERISA, or any other governmental agency, department or
instrumentality succeeding to the functions thereof. 



     “Permitted
Investment Schedule” shall have the meaning assigned to such term in
Section 7.2(g) hereof. 



     “Permitted
Liens” shall have the meaning assigned to such term in
Section 7.2(b) hereof. 



     “Person”
shall mean any individual, partnership, limited partnership, corporation,
limited liability company, association, joint stock company, trust, joint
venture, unincorporated organization or governmental entity or department,
agency or political subdivision thereof. 



     “Piggyback
Registration” shall have the meaning assigned to such term in
Section 12.1  hereof. 



     “Plan”
shall mean any employee benefit plan (within the meaning of Section 3(3) of
ERISA), other than a Multiemployer Plan, established or maintained by any of the
Middleby Companies or any member of the Controlled Group. 



     “Pollutant”
shall include any “hazardous substance” and any “pollutant or
contaminant” as those terms are defined in CERCLA; any “hazardous
waste” as that term is defined in RCRA; and any “hazardous
material” as that term is defined in the Hazardous Materials Transportation
Act (49 U.S.C. § 1801 et seq.), as amended (including as
those terms are further defined, construed, or otherwise used in rules,
regulations, standards, guidelines and publications issued pursuant to, or
otherwise in implementation of, said Environmental Laws); and including without
limitation any petroleum product or byproduct, solvent, flammable or explosive
material, radioactive material, asbestos, polychlorinated biphenyls (PCBs),
dioxins, dibenzofurans, heavy metals, and radon gas; and including any other
substance or material that is reasonably determined to present a threat, hazard
or risk to human health or the environment. 



12













	





     “Prime
Rate” shall mean, 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
America’s 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” shall mean, 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
Parent 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 Indebtedness in connection
therewith occurred on the first day of such period) based upon (1) in the case
of Blodgett Holdings, Inc., the pro forma financial information
delivered to the Agent and the Purchasers prior to the Closing 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 to 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
Purchasers; and 



     (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). 



     “Properties
and Facilities” shall have the meaning assigned to such term in
Section 5.1(q). 



13













	





     “Proprietary
Rights” shall mean all IP Assets, inventions, production methods, licenses,
formulas, know-how and licenses and goodwill related to any of the foregoing,
regardless of whether such are registered with any Governmental Authorities,
including applications therefor. 



     “Purchase
Documents” shall mean this Agreement, the Notes, the Warrants, any Guaranty
executed by a Middleby Company in favor of Purchasers and all other agreements,
instruments and documents delivered in connection therewith as any or all of the
foregoing may be supplemented or amended from time to time. 



     “Purchaser”
shall have the meaning assigned to such term in the introductory paragraph
hereto and in Section 6.2 hereof. 



     “Purchaser’s
Exemption Representation” shall have the meaning assigned to such term in
Section 3.7 hereof. 



     “Put
Option” shall have the meaning assigned to such term in
Section 10.1 hereof. 



     “Put
Option Closing” shall have the meaning assigned to such term in
Section 10.5 hereof. 



     “Put
Price” shall have the meaning assigned to such term in
Section 10.2 hereof. 



     “Put
Shares” shall have the meaning assigned to such term in
Section 10.2 hereof. 



     “RCRA”
shall mean the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.),
as amended, and all rules, regulations, standards, guidelines, and publications issued
thereunder. 



     “Registrable
Securities” shall mean any shares of Common Stock of Parent purchased upon
the exercise of any Warrant and any shares of Common Stock of Parent purchased
pursuant to Article 11 hereof. 



     “Related
Person” shall mean (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. 



     “Removal,”
“Remedial” and “Response” actions shall include the types of
activities covered by CERCLA, RCRA, and other comparable Environmental Laws, and
whether the activities are those which might be taken by a government entity or
those which a government entity or any other person might seek to require of
waste generators, handlers, distributors, processors, users, storers, treaters,
owners, operators, transporters, recyclers, reusers, disposers, or other persons
under “removal,” “remedial,” or other “response”
actions. 



     “Required
Purchasers” shall mean, at any time, Purchasers holding a pro rata
percentage of the outstanding principal amount of the Notes aggregating at least
66-2/3% at such time. 



     “Responsible
Financial Officer” shall mean, as to any Person, the chief financial
officer, the treasurer or the controller of such Person. 



14













	





     “Revolving
Financing” shall mean the secured revolving line of credit facility of the
Company established under the Senior Credit Agreement, as such facility may be
restated, renewed, replaced, refinanced, amended or modified from time to time. 



     “SEC”
shall mean the Securities and Exchange Commission and any governmental body or
agency succeeding to the functions thereof. 



     “Securities”
shall have the meaning assigned to such term in Section 2.3 hereof. 



     “Securities
Act” shall mean the Securities Act of 1933, as amended. 



     “Securities Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended. 



     “Seller
Subordinated Debt” shall mean Indebtedness 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
Agent” means the “Administrative Agent” (as such term is defined
in the Senior Credit Agreement). 



     “Senior
Credit Agreement” shall mean that certain Credit Agreement, dated as of
December 21, 2001, by and among the Company, Parent, Bank of America, N.A., as
Administrative Agent, Issuing Lender and Swing Line Lender, Banc of America
Securities LLC, as Lead Arranger and Book Manager and the various financial
institutions party thereto from time to time, as such agreement may be restated,
renewed, refinanced, replaced, amended or modified from time to time. 



     “Senior
Credit Documents” shall mean the Senior Credit Agreement and all documents,
instruments, certificates, and agreements contemplated thereby or executed in
connection therewith. 



     “Senior
Default Put Note” shall mean a senior subordinated promissory note of
Parent, (a) the payment and performance of which has been guaranteed by all
other Middleby Companies, (b) which shall initially bear interest at an annual
rate equal to the lesser of 15.5% or the highest rate permitted by applicable
law, and which provides that such annual rate of interest shall increase by 0.5%
per annum on the first (1st) Business Day of each Fiscal Quarter
immediately following the date of issuance of such note, (c) which provides that
such interest shall be paid monthly in cash, commencing on the first
(1st) Business Day of the month immediately following the date of
issuance of such note, (d) which provides that the principal thereof shall be
due and payable in 36 equal monthly installments (unless sooner accelerated or
sooner permitted to be paid by the Senior Lender), commencing on the first
(1st) Business Day of the month immediately following the date of
issuance of such note, and (e) which may be prepaid, in part or in full, at any
time and from time to time without premium or penalty of any kind. Any Senior
Default Put Note shall constitute “Subordinated Indebtedness” under
and as defined in the Subordination Agreement. 



15













	





     “Senior
Financing” shall mean the Revolving Financing and the Term Financing in an
aggregate principal amount not to exceed $77,500,000, which principal amount
shall be reduced by the amount of scheduled principal payments actually made on
the Term Financing after the Closing Date, and any refinancing or refunding
thereof, to which the Notes will be subordinated on the terms set forth in the
Subordination Agreement or such other terms as may be reasonably acceptable to
Required Purchasers. 



     “Senior
Funded Debt” means the remainder of (a) Funded Debt minus (b) the
sum of (i) Indebtedness under this Agreement and (ii) Subordinated Debt. 



     “Senior
Lender” shall collectively mean the banks from time to time party to the
Senior Credit Agreement. 



     “Senior
Leverage Ratio” shall mean, 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
Put Note” shall mean a senior subordinated promissory note of Parent, (a)
the payment and performance of which has been guaranteed by all other Middleby
Companies, (b) which shall bear interest at an annual rate equal to the lesser
of 13.5% or the highest rate permitted by applicable law, and which provides
that such interest shall be payable monthly in cash, commencing on the first
(1st) Business Day of the month immediately following the date of
issuance of such note, (c) which provides that the principal thereof shall be
due and payable in 36 equal monthly installments (unless sooner accelerated),
commencing on the first (1st) Business Day of the month immediately
following the date of issuance of such note, and (d) which may be prepaid, in
part or in full, at any time and from time to time without premium or penalty of
any kind. Any Senior Put Note shall constitute “Subordinated
Indebtedness” under and as defined in the Subordination Agreement. 



     “Special
Charges” shall mean 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
Holdings, Inc. during the Fiscal Quarter ending December 29, 2001. 



     “Stockholders
Agreement” shall have the meaning assigned to such term in
Section 4.1(g) hereof. 



     “Subject
Securities” shall mean the Warrants, the Warrant Shares and any shares of
Common Stock of Parent purchased pursuant to Article 11 hereof. 



     “Subordinated
Debt” shall mean (a) the Seller Subordinated Debt and (b) any other
Indebtedness of the Loan Parties which has maturities and other terms, and which
is subordinated to the obligations of the Loan Parties and its Subsidiaries
hereunder and under the other Transaction Documents in a manner, approved in
writing by the Required Purchasers. 



     “Subordination
Agreement” shall mean that certain Subordination Agreement, dated as of the
Closing Date, by and among Agent, Purchasers, the Loan Parties, the other
Middleby Companies signatory thereto, and Bank of America, N.A., as
Administrative Agent for the Senior Lender. 



16













	





     “Subsidiary”
of any corporation shall mean any other corporation or limited liability company
of which the outstanding capital stock possessing a majority of voting power in
the election of directors (otherwise than as the result of a default) is owned
or controlled by such corporation directly or indirectly through Subsidiaries. 



     “Suretyship
Liability” shall mean 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
Person’s obligation in respect of any Suretyship Liability shall (subject
to any limitation set forth therein) be deemed to be the lesser of (x) the
principal amount of the debt, obligation or other liability supported thereby
and (y) 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 Person’s maximum reasonably anticipated liability in respect
thereof as determined by such Person in good faith. 



     “Taxes”
shall have the meaning set forth in Section 3.7 hereof. 



     “Term
Financing” shall mean the secured term credit facilities established under
the Senior Credit Agreement, as such facilities may be restated, renewed,
replaced, refinanced, amended or modified from time to time. 



     “Total
Leverage Ratio” shall mean, 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. 



     “Transaction
Documents” shall have the meaning assigned to such term in
Section 5.1(f) hereof. 



     “Transactions”
shall mean the incurrence of debt and the issuance of securities in connection
therewith, as contemplated by this Agreement, the Notes, the Warrants and all
other agreements contemplated hereby and thereby. 



     “Underlying
Common Stock” shall mean (a) the Common Stock of Parent issued or issuable
upon exercise of the Warrants and (b) any equity securities issued or issuable
with respect to the securities referred to in clause (a) above by way of
stock dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. 



17













	





     “Warrants”
shall have the meaning assigned to such term in Section 2.2 hereof. 



     “Warrant
Shares” shall mean the shares of Common Stock issued or issuable upon
exercise of the Warrants. 




     1.2
Other Definitional Provisions; Construction. Whenever the context so
requires, neuter gender includes the masculine and feminine, the singular number
includes the plural and vice versa. The words “hereof”
“herein” and “hereunder” and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not in any
particular provision of this agreement, and references to section, article,
annex, schedule, exhibit and like references are references to this Agreement
unless otherwise specified. A Default or Event of Default shall
“continue” or be “continuing” until such Default or Event of
Default has been cured or waived by Agent and Purchasers. References in this
Agreement to any Persons shall include such Persons’ successors and
permitted assigns. Other terms contained in this Agreement (which are not
otherwise specifically defined herein) shall have meanings provided in Article 9
of the Illinois Uniform Commercial Code on the date hereof to the extent the
same are used or defined therein. 





ARTICLE 2 



ISSUE AND SALE OF
SECURITIES 




     2.1
Authorization and Issuance of the Notes. The Company has duly authorized
the issuance and sale to Purchasers of $25,000,000 in aggregate principal amount
of the Company’s Senior Subordinated Promissory Notes Due September 14,
2006 (including any Notes issued in substitution therefor pursuant to
Sections 6.3 and 6.4 hereof and any Notes issued in exchange for
Put Shares pursuant to Section 10.4 or Section 10.5, the
“Notes”) to be substantially in the form of the Note attached hereto
as Exhibit A. 




     2.2
Authorization and Issuance of the Warrants. Parent has duly authorized
the issuance and sale to Purchasers of stock purchase warrants substantially in
the form of the warrants attached hereto as Exhibits B-1 and
B-2 (collectively, the “Warrants”) evidencing Purchasers’
right to acquire up to 8.25% of the issued and outstanding Common Stock of
Parent on a fully diluted basis at the time of Closing. 




     2.3
Sale and Purchase. Subject to the terms and conditions and in reliance
upon the representations, warranties and agreements set forth herein,
(a) the Company shall sell to Purchasers, and Purchasers shall purchase
from the Company, their pro rata portion of the Notes and (b) the Parent shall
sell to Purchasers, and Purchasers shall purchase from the Parent, their pro
rata portion of the Warrants, in each case as set forth on Annex A.
The aggregate purchase price for the Notes and the Warrants is $25,000,000. (The
Warrants and the Notes are sometimes referred to herein collectively as the
“Securities.”) 




     2.4
The Closing. Delivery of and payment for the Securities (the
“Closing”) shall be made at the offices of Skadden, Arps, Slate,
Meagher & Flom (Illinois), Chicago, Illinois, commencing at 10:00 a.m.,
local time, on December 21, 2001 or at such place or on such other date on or
before December 21, 2001 as may be mutually agreeable to the Loan Parties
and Purchasers. The date and time of the Closing as finally determined pursuant
to this Section 2.4 are referred to herein as the “Closing
Date.” Delivery of the Securities shall be made to Purchasers against
payment of the purchase price therefor, less that portion of the Closing
Processing Fee not previously paid by the Company to ACFS and any other amounts
payable pursuant to Section 4.1(g) hereof, by wire transfer of
immediately available funds in the manner agreed to by the Loan Parties and
Purchasers. The Notes shall be issued in such name or names and in such
permitted denomination or denominations as set forth in Annex A or
as Purchasers may request in writing not less than two (2) Business Days before
the Closing Date. 



 













	






ARTICLE 3 



REPAYMENT OF THE NOTES 




     3.1
Interest Rates and Interest Payments. The Company covenants and agrees to
make payments to Agent for the ratable benefit of Purchasers, of accrued
interest on the Notes on the first Business Day of each month commencing
February, 2002. The Notes will bear interest on the outstanding principal amount
thereof at a fixed rate equal to (a) 13.5% per annum, which shall be
payable in cash on the due date thereof plus (b) 2% per annum, which
shall be paid in kind (i.e., such interest will be capitalized when due
and added to the principal balance of the Notes on a pro rata basis). Interest
on the Notes will be computed on the basis of a year of 360 days, composed of
twelve, 30-day months, and the actual number of days elapsed. 




     3.2
Repayment of the Notes. The Company covenants and agrees to repay to
Agent, for the ratable benefit of Purchasers, the unpaid principal balance of
the Notes in full, together with all accrued and unpaid interest, fees and other
amounts due hereunder on September 14, 2006. 




     3.3
Optional Prepayment of Notes. Subject to the terms of this
Section 3.3, the Company may prepay to Agent, for the ratable
benefit of Purchasers, the outstanding principal amount of the Notes in whole or
in part in multiples of $100,000, or such lesser amount as is then outstanding,
at any time for an amount equal to (a) the principal amount of the prepaid
Notes; plus (b) the accrued interest, if any, to the date set for
prepayment; plus (c) a prepayment fee representing the amortization
of certain of Purchasers’ costs incurred in connection with the purchase of
the Notes equal to the principal amount prepaid multiplied by the following
percentage: 









	
 If Prepaid During       

 the 12-Month Period     

 Ending on December 20   

 of the Following Years: 




               2002      

               2003      

               2004
	




                               Percentage




                                   5%

                                   4%

                                   3%







	


19













	





provided, however,
that no prepayment fee shall be applied to any prepayment of the outstanding principal
amount of the Notes in connection with any prepayment attributable to Life Insurance
proceeds. All such prepayments shall be applied by Agent to the outstanding principal
after application of such prepayment to any accrued interest and prepayment fee payable
in connection therewith.  




     3.4
Notice of Optional Prepayment. If the Company shall elect to prepay any
Notes pursuant to Section 3.3 hereof, the Company shall give notice
of such prepayment to Agent and each holder of the Notes to be prepaid not less
than 30 days or more than 90 days prior to the date fixed for prepayment,
specifying (a) the date on which such prepayment is to be made,
(b) the principal amount of such Notes to be prepaid on such date, and (c)
the prepayment fee, if any, and accrued interest applicable to the prepayment.
Such notice shall be accompanied by a certificate of the Chairman of the Board
of Directors, the Chief Executive Officer or Chief Financial Officer of the
Company that such prepayment is being made in compliance with
Section 3.3. Notice of prepayment having been so given, the
aggregate principal amount of the Notes specified in such notice, together with
accrued interest thereon and the prepayment fee, if any, shall become due and
payable on the prepayment date set forth in such notice. 




     3.5
Mandatory Prepayment. The Notes shall be prepaid (a) by an amount equal
to any proceeds of Life Insurance, together with all interest, fees and expenses
computed in accordance with Section 3.3, as if such prepayment were
a voluntary prepayment, in the event that any Middleby Company receives any
proceeds of Life Insurance, (b) in full, together with all accrued interest,
plus a prepayment fee computed in accordance with
Section 3.3, as if such prepayment were a voluntary prepayment, in
the event of a Change of Control and (c) by an amount (rounded down, if
necessary, to an integral multiple of $100,000) equal to 100% of the Net Cash
Proceeds received by any Middleby Company from any Asset Sale (after giving
effect to any mandatory or voluntary prepayments or repayments of the Senior
Financing required under the Senior Credit Agreement as a result of, or in
connection with, any such Asset Sale), together with all interest, fees and
expenses computed in accordance with Section 3.3, as if such
prepayment were a voluntary prepayment. Any prepayment of the Notes under this
Section 3.5 shall be made within one (1) Business Day of the event giving
rise to the mandatory prepayment requirement. 




     3.6
Home Office Payment. The Company will pay all sums becoming due on such
Notes for principal, premium, if any, and interest to Agent by the method and at
the address specified for such purpose in Annex A, or by such other
method or at such other address as Purchasers shall have from time to time
specified to the Company in writing for such purpose, without the presentation
or surrender of such Notes or the making of any notation thereon, except that
upon written request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note, each holder of a Note
shall surrender such Note for cancellation, reasonably promptly after such
request, to the Company at its principal executive office. 



20













	






     3.7
Taxes. Any and all payments by the Loan Parties hereunder or under the
Notes or other Purchase Documents that are made to or for the benefit of
Purchasers shall be made free and clear of and without deduction for any and all
present or future taxes, levies, imposts, deductions, charges or withholdings
and penalties, interests and all other liabilities with respect thereto
(collectively, “Taxes”), excluding taxes imposed on Agent’s,
Purchasers’ or any transferee of any Purchaser’s net income or capital
and franchise taxes imposed on any of them by the jurisdiction under the laws of
which any of them is organized or has its principal place of business or any
political subdivision thereof (all such nonexcluded Taxes being hereinafter
referred to as “Covered Taxes”). If any of the Loan Parties shall be
required by law to deduct any Covered Taxes from or in respect of any sum
payable hereunder or under any Notes or other Purchase Documents to Agent for
the benefit of Purchasers, or to any Purchaser, the sum payable shall be
increased as may be necessary so that after making all required deductions of
Covered Taxes (including deductions of Covered Taxes applicable to additional
sums payable under this paragraph), each Purchaser receives an amount equal to
the sum it would have received had no such deductions been made. The Loan
Parties shall make such deductions and the Loan Parties shall pay the full
amount so deducted to the relevant taxation authority or other authority in
accordance with applicable law. In addition, the Loan Parties agree to pay any
present or future stamp, documentary, excise, privilege, intangible or similar
levies that arise at any time or from time to time from any payment made under
any and all Purchase Documents or from the execution or delivery by the Loan
Parties or from the filing or recording or maintenance of, or otherwise with
respect to the exercise by Agent or Purchasers of their respective rights under
any and all Purchase Documents (collectively, “Other Taxes”). The Loan
Parties will indemnify Agent and Purchasers for the full amount of Covered Taxes
imposed on or with respect to amounts payable hereunder and Other Taxes, and any
liability (including penalties, interest and expenses, other than any such
amounts that are attributable to the gross negligence or willful misconduct of
the Person seeking indemnity) arising therefrom or with respect thereto. Payment
of this indemnification shall be made within 30 days from the date Agent or
Purchasers provide the Loan Parties with a certificate certifying and setting
forth in reasonable detail the calculation thereof as to the amount and type of
such Taxes. Any such certificates submitted by Agent or Purchasers in good faith
to the Loan Parties shall, absent manifest error, be final, conclusive and
binding on all parties. The obligation of the Loan Parties under this
Section 3.7 shall survive the payment of the Notes and the
termination of this Agreement until 60 days after the expiration of the
applicable statute of limitations. Within 30 days after the Loan Parties having
received a receipt for payment of Covered Taxes and/or Other Taxes, the Loan
Parties shall furnish to Agent, the original or certified copy of a receipt
evidencing payment thereof. Agent and each Purchaser represents and warrants
(the “Purchaser’s Exemption Representation”) to the Loan Parties
that, as of the date of this Agreement (or in the case of an assignee permitted
pursuant to Article 6 hereof, the date it becomes a party hereto), it is
entitled to receive payments hereunder without any deduction or withholding in
respect of any Taxes pursuant to any law, rule or regulation. Each Purchaser (or
transferee thereof) shall, upon the request of any Loan Party, (i) promptly
deliver to Agent and such Loan Party, on the date such Person first becomes a
party to this Agreement, two (2) original copies of IRS Form W-9 or any
successor form, certifying that such Person is exempt from United States backup
withholding tax on payments made hereunder, under the Notes or under any other
Purchase Document and (ii) thereafter upon the reasonable request of any Loan
Party, promptly deliver two (2) original copies of an updated IRS Form W-9 or
any successor form. Agent and each Purchaser (or transferee thereof) that is
organized under the laws of a jurisdiction other than the United States, any
state thereof or the District of Columbia (a “Non-U.S. Lender”) that
is entitled to an exemption from United States federal withholding tax under
United States federal income tax law (or any treaty to which the United States
is a party) with respect to payments made hereunder, under the Notes or under
any other Purchase Document, shall deliver to Agent and the Loan Parties such
properly completed and duly executed documentation prescribed by applicable law
(including, without limitation, an appropriate IRS Form W-8) as will permit such
payments to be made without deduction for any withholding tax. Such
documentation shall be delivered by each Non-U.S. Lender on or before the date
it becomes a party to this Agreement. In addition, each Non-U.S. Lender shall
deliver such documentation promptly upon the obsolescence or invalidity of any
documentation previously delivered by such Non-U.S. Lender. Notwithstanding any
provision of this Section 3.7 to the contrary, the Loan Parties shall not
be required to indemnify or pay any additional amounts to Agent, any Purchaser
(or transferee thereof) or any Non-U.S. Lender under this Section 3.7 in
respect of any Covered Taxes to the extent that (i) the obligation to deduct and
withhold amounts in respect of Covered Taxes existed on the date such Person
became a party to this Agreement or (ii) such Person has failed to comply with
the documentation requirements of this Section 3.7. 



21













	






     3.8
Maximum Lawful Rate. This Agreement, the Notes and the other Purchase
Documents are hereby limited by this Section 3.8. In no event,
whether by reason of acceleration of the maturity of the amounts due hereunder
or otherwise, shall interest and fees contracted for, charged, received, paid or
agreed to be paid to Purchasers exceed the maximum amount permissible under such
applicable law. If, from any circumstance whatsoever, interest and fees would
otherwise be payable to Agent or Purchasers in excess of the maximum amount
permissible under such applicable law, the interest and fees shall be reduced to
the maximum amount permitted under applicable law. If from any circumstance,
Agent or Purchasers shall have received anything of value deemed interest by
applicable law in excess of the maximum lawful amount, an amount equal to any
excess of interest shall be applied to the reduction of the principal amount of
the Notes, in such manner as may be determined by Purchasers, and not to the
payment of fees or interest, or if such excessive interest exceeds the unpaid
balance of the principal amount of the Notes, such excess shall be refunded to
the Loan Parties. 





     3.9
Capital Adequacy. If, after the date hereof, either the introduction of
or any change of the interpretation of any law or the compliance by Purchasers
with any guideline or request from any Governmental Authority (other than with
respect to Taxes for which Agent and Purchasers are indemnified pursuant to
Section 3.7 hereof, Taxes imposed on Agent’s and any
Purchaser’s net income or capital and franchise taxes imposed on any of
them by the jurisdiction under the laws of which any of them is organized or has
its principal place of business or any subdivision thereof) has or would have
the effect of reducing the rate of return on the capital or assets of Purchasers
as a consequence of, as determined by Agent or Purchasers in their sole
discretion, the existence of any Purchaser’s obligations under this
Agreement or any other Purchase Documents, then, upon demand by Purchasers, the
Loan Parties immediately shall pay to Purchasers, from the time as specified by
Purchasers, additional amounts sufficient to compensate Purchaser in light of
such circumstances. The obligations of the Loan Parties under this
Section 3.9 shall survive the payments of the Notes and the
termination of this Agreement. 




     3.10
Certain Waivers. The Loan Parties unconditionally waive (a) any
rights to presentment, demand, protest or (except as expressly required hereby)
notice of any kind, and (b) any rights of rescission, setoff, counterclaim
or defense to payment under the Notes or otherwise that the Loan Parties may
have or claim against any Purchaser, the Agent or any prior Purchaser or Agent. 



22













	






ARTICLE 4 



CONDITIONS 




     4.1 Conditions
to Purchase of Securities. The obligation of Purchasers to purchase and pay for the
Securities is subject to the satisfaction, prior to or at the Closing, of the following
conditions: 










	 	     (a)
Representations and Warranties True. The representations and warranties contained
in Article 5 hereof shall be true and correct in all material respects at and
as of the Closing Date as though then made, except to the extent of changes caused by the
transactions expressly contemplated herein. 






	 	     (b)
Material Adverse Change. There will have been no material adverse change in the
business or financial condition of the Parent and its Subsidiaries taken as a whole or
the capital markets since November 19, 2001.






	 	     (c)
Environmental Reports. Agent shall have received reports covering the Middleby
Companies’ properties in form and substance satisfactory to Agent regarding the Middleby
Companies’ compliance with Environmental Laws.






	 	     (d)
Stockholders Agreement. Parent, Selim A. Bassoul, William F. Whitman, Jr., Mrs.
William F. Whitman, Jr. and ACFS shall have entered into a stockholders agreement in form
and substance as set forth in Exhibit C hereto (as the same may be amended, modified or
supplemented and in effect from time to time, the “Stockholders Agreement”).






	 	     (e)
Subordination Agreement. Agent, Purchasers and the Senior Agent shall have
executed the Subordination Agreement, on terms reasonably satisfactory to Agent and
Purchasers.






	 	     (f)
Closing Documents. The Loan Parties shall have delivered or caused to be delivered
to Agent all of the following documents in form and substance satisfactory to Agent:






	 	     (i) one
or more Notes (as designated by Agent and Purchasers pursuant to Section 2.1 and
Annex A hereof) in aggregate original principal amounts as set forth herein,
duly completed and executed by the Company; 






	 	     (ii) one
or more Warrants (as designated by Agent and Purchasers pursuant to Section 2.2 and
Annex A hereof) evidencing the right to acquire the number of shares of Common
Stock of Parent set forth in Section 2.2 and Annex A hereof,
subject to adjustment from time to time in accordance with the terms thereof; 






	 	     (iii)
the Guaranties, duly executed by the Parent and each of the domestic Middleby Companies
of Company;






	


23













	












	 	     (iv) certificates
of good standing issued as of a recent date prior to the Closing Date for each of the
domestic Middleby Companies issued by their respective jurisdictions of organization; 






	 	     (v) a
copy of the Charter Documents of each of the domestic Middleby Companies, certified by
the appropriate governmental official of the jurisdiction of its organization issued as
of a recent date prior to the Closing Date; 






	 	     (vi) a
copy of the By-laws of each of the domestic Middleby Companies, certified as of the
Closing Date by the secretary, assistant secretary, manager or general partner, as
applicable, of each respective domestic Middleby Company; 






	 	     (vii) a
certificate of the secretary, assistant secretary, manager or general partner of each of
the domestic Middleby Companies, certifying as to the names and true signatures of the
officers or other authorized person of such domestic Middleby Company authorized to sign
this Agreement and the other documents to be delivered by such domestic Middleby Company
hereunder; 






	 	     (viii) copies
of the resolutions duly adopted by the each of the domestic Middleby Companies’ boards
of directors, general partners, boards of managers or other governing body, authorizing
the execution, delivery and performance by such domestic Middleby Company of this
Agreement and each of the other agreements, instruments and documents contemplated hereby
to which such domestic Middleby Company is a party, and the consummation of all of the
other Transactions, certified as of the Closing Date by the secretary, assistant
secretary, manager or general partner of each such domestic Middleby Company; 






	 	     (ix) a
certificate dated as of the Closing Date from an officer, general partner or manager of
each of the domestic Middleby Companies stating that the conditions specified in this Section 4.1 have
been fully satisfied or waived by Agent; 






	 	     (x) a
certificate regarding financial statements from the chief financial officer of the Parent
regarding the pro forma financial statements referenced therein, together with
appropriate attachments; 






	 	     (xi) copies
of the Acquisition Documents, Senior Credit Documents, and the Stockholder Agreement,
with all exhibits and schedules thereto and all collateral or related agreements,
instruments or documents entered into or delivered in connection therewith, each as in
effect at the Closing; 






	 	     (xii) an
opinion of Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel to the Middleby
Companies, in form and substance satisfactory to Agent; and 






	 	     (xiii) such
other documents relating to the Transactions contemplated by this Agreement as Agent or
its special counsel may reasonably request. 






	


24













	












	 	     (g)
Purchaser’s Fees and Expenses.






	 	     (i) Closing
Processing Fee: On the Closing Date, the Company shall pay that portion of the
Closing Processing Fee not previously paid by the Company to ACFS (and the Company hereby
authorizes Agent to deduct from the aggregate proceeds from the sales of the Notes by the
Company, the unpaid amount of such Closing Processing Fee); and 






	 	     (ii) Other
Fees and Expenses. On the Closing Date, the Company shall have paid the fees and
expenses of Agent and Purchasers, payable by the Loan Parties pursuant to Section 13.3 hereof
(and the Company hereby authorizes Agent to deduct from the aggregate proceeds of the
sale of the Notes by the Company, all such amounts). 






	 	     (h)
Legal Investment. On the Closing Date, Purchasers’ purchases of the Securities
shall not be prohibited by any applicable law, rule or regulation of any Governmental
Authority (including, without limitation, Regulations T, U or X of the Board of Governors
of the Federal Reserve System) as a result of the promulgation or enactment thereof or
any changes therein, or change in the interpretation thereof by any Governmental
Authority, subsequent to the date of this Agreement. 






	 	     (i)
Proceedings. All proceedings taken or required to be taken in connection with the
transactions contemplated hereby to be consummated at or prior to the Closing and all
documents incident thereto will be satisfactory in form and substance to Agent and its
special counsel and to Purchaser and its special counsel. 






	 	     (j)
Background Investigations. Agent shall be satisfied with the results of background
investigations of each member of Key Management.






	 	     (k)
Employment Agreements. The Loan Parties shall have entered into an employment
agreement with each member of Key Management, on terms and conditions acceptable to Agent
and Purchasers in their sole discretion, and such employment agreement shall be in full
force and effect as of the Closing Date and shall not have been amended or modified. 






	 	     (l)
Consummation of the Blodgett Acquisition. The Blodgett Acquisition shall have been
consummated in form and substance satisfactory to Agent, in Agent’s sole discretion,
by the execution, delivery, performance and recordation of definitive agreements,
instruments, and documents related to the Acquisition Agreement. 






	 	     (m)
Consummation of the Senior Credit Documents. The Senior Credit Documents shall
have been executed in form and substance satisfactory to Agent, in Agent’s sole
discretion, and Agent shall have been provided certified copies of all such agreements,
instruments and documents delivered in connection therewith. 






	 	     (n)
Availability. The Company shall have available cash and immediately accessible
availability in an amount greater than (i) $7,500,000 plus (ii) fees to be paid by
any Middleby Company in connection with the Blodgett Acquisition (and the financing
thereof) during the six (6) months following the Closing Date. 






	


25













	












	 	     (o)
Seller Debt. The Company shall have issued one (1) or more promissory notes in the
original aggregate principal amount of $21,000,000 in favor of Maytag, which such
promissory note(s) shall be (i) in form and substance satisfactory to Purchaser in its
sole discretion, (ii) issued as partial payment for the purchase price of the Blodgett
Acquisition and (iii) subordinated to the Notes and the other Purchase Documents pursuant
to a subordination agreement in form and substance satisfactory to Purchaser in its sole
discretion. 






	 	     (p)
Due Diligence. Purchaser shall have completed its business, legal and accounting
due diligence review of the Middleby Companies and related matters.






	 	     (q)
Approval. ACAS shall have received approval from its board of directors to
consummate the transactions contemplated hereby.






	 	     (r)
Waiver. Any condition specified in this Section 4.1 may be waived by
Agent; provided that no such waiver will be effective against Agent unless it is set
forth in a writing executed by Agent. 






	



ARTICLE 5 



REPRESENTATIONS AND
WARRANTIES OF THE LOAN PARTIES 




     5.1
Representations and Warranties of Loan Parties. As a material inducement
to Agent and Purchasers to enter into this Agreement and purchase the Notes and
the Warrants, the Loan Parties, jointly and severally, hereby represent and
warrant to Agent and Purchasers as follows: 










	 	     (a)
Organization and Power. Each of the Parent and the Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of Delaware.
Each of the Middleby Companies is duly organized, validly existing and, if applicable, in
good standing under the laws of its state of organization. Each of the Middleby Companies
has all requisite corporate or other organizational power and authority and all material
licenses, permits, approvals and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed to be
conducted and to carry out the Transactions, and is qualified to do business in each
jurisdiction where the nature of its business makes such qualification necessary, except
in those instances where the failure to be so qualified could not reasonably be expected
to have a Material Adverse Effect. Each of the Middleby Companies has its principal place
of business as set forth on the “Organizational Schedule” attached hereto as Schedule
5.1(a). The copies of the Charter Documents and By-Laws of the Middleby Companies
that have been furnished to Agent reflect all amendments made thereto at any time prior
to the date of this Agreement and are correct and complete. 






	


26













	












	 	     (b)
Principal Business. The Middleby Companies are primarily engaged in the business
of designing, manufacturing, marketing, distributing and servicing cooking and warming
equipment used in the food service industry (the “Business”).






	 	     (c)
Financial Statements and Financial Projections.






	 	     (i) Financial
Statements. The Parent has delivered to Agent copies of its audited consolidated and
consolidating year-end financial statements for and as of the end of the three (3) fiscal
years ended 1998, 1999, and 2000 (the “Annual Statements”) and the quarter-end
financial statements for and as of September 29, 2001 (the “Quarterly Statements”).
The Annual Statements and Quarterly Statements were compiled from the books and records
maintained by the Parent’s management, are correct and complete and fairly represent
the consolidated financial condition of the Middleby Companies as of their dates and the
results of operations for the fiscal periods then ended, and have been prepared in
accordance with GAAP consistently applied. 






	 	     (ii) Financial
Projections. The Parent has delivered to Agent financial projections of the Middleby
Companies for the period from January 1, 2001 through December 31, 2006, derived
from various assumptions of the Middleby Companies’ management (the “Financial
Projections”). The Financial Projections represent a reasonable range of possible
results in light of the history of the Business and the Middleby Companies, present and
foreseeable conditions and the intentions of the Middleby Companies’ management
(giving effect, in each case, to the Blodgett Acquisition and reasonable cost savings and
adjustments in connection therewith, to the borrowings hereunder and the borrowings under
the Senior Financing). 






	 	     (iii) Accuracy
of Financial Statements. The Middleby Companies do not have any liabilities,
contingent or otherwise, or forward or long-term commitments that are not disclosed in
the Annual Statements or in the notes thereto, and except as disclosed therein there are
no unrealized or anticipated losses from any commitments of the Middleby Companies which
may cause a Material Adverse Effect. 






	 	     (d)
Capitalization and Related Matters. As of the Closing Date and immediately
thereafter, the authorized capital stock of Parent will consist of 20,000,000 shares of
Common Stock of Parent of which 8,971,922 shares of Common Stock of Parent are issued and
outstanding and of which 807,326 shares of Common Stock of Parent have been reserved for
issuance upon exercise of the Warrants. As of the Closing Date, the authorized capital
stock of each of the other Middleby Companies and the number and ownership of all
outstanding capital stock of each of the other Middleby Companies is as set forth on the
Organizational Schedule. As of the Closing Date, none of the Middleby Companies will have
outstanding any capital stock or securities convertible or exchangeable for any shares of
its capital stock other than the Warrants and none will have outstanding any rights or
options to subscribe for or to purchase its capital stock or any stock or securities
convertible into or exchangeable for its capital stock, other than the Warrants and
options to purchase 363,624 shares of Common Stock. As of the Closing Date, none of the
Middleby Companies will be subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of its capital stock, except as set
forth herein and the Charter Documents, respectively, as in effect on the date hereof. As
of the Closing, all of the outstanding shares of each Middleby Company’s capital
stock will be validly issued, fully paid and nonassessable. There are no statutory or
contractual stockholders’ preemptive rights with respect to the issuance of the
Warrants hereunder. None of the Middleby Companies has violated any applicable federal or
state securities laws in connection with the offer, sale or issuance of any of its
capital stock, and the offer, sale and issuance of the Securities hereunder do not
require registration under the Securities Act or any applicable state securities laws.
There are no agreements among Parent’s stockholders with respect to the voting or
transfer of Parent’s capital stock other than as contemplated herein. 






	


27













	












	 	     (e)
Subsidiaries. The Loan Parties do not own, or hold any rights to acquire, any
shares of stock or any other security or interest in any other Person, and the Loan
Parties have no Subsidiaries, except in each case as set forth on the Organizational
Schedule. 






	 	     (f)
Authorization; No Breach. The execution, delivery and performance of this
Agreement, the other Purchase Documents and all other agreements, instruments,
certificates and documents contemplated hereby and thereby to which each of the domestic
Middleby Companies is a party (collectively, the “Transaction Documents”), and
the consummation of the Transactions have been duly authorized by each of the domestic
Middleby Companies. The execution and delivery by each of the domestic Middleby Companies
of the Transaction Documents and the consummation of the Transactions do not and will not
(i) conflict with or result in a breach of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in the creation of any Lien upon any
of the domestic Middleby Companies’ capital stock or assets pursuant to, (iv) give
any third party the right to accelerate any obligation under, (v) result in a violation
of, or (vi) require any authorization, consent, approval, exemption or other action
by or notice to any Governmental Authority pursuant to, the Charter Documents of any of
the domestic Middleby Companies, or any law, statute, rule or regulation to which any of
the domestic Middleby Companies is subject, or any agreement, instrument, order,
judgment, decree, writ or injunction to which any of the domestic Middleby Companies is a
party or to which they or their assets are subject. 






	 	     (g)
Governmental Approvals. Except as specifically provided by the Transaction Documents, no
registration with or consent or approval of, or other action by,
any Governmental Authority is or will be required in connection with the consummation of
the Transactions by the Middleby Companies.






	 	     (h)
Enforceability. This Agreement constitutes, and each of the other Transaction
Documents when duly executed and delivered by each of the Middleby Companies who are
parties thereto, will constitute, legal, valid and binding obligations of each of the
Middleby Companies enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights
generally and to general principles of equity. 






	


28













	












	 	     (i)
No Material Adverse Effect. Since November 19, 2001, through and including the
Closing Date, there has been no event or occurrence that is likely to have a Material
Adverse Effect.






	 	     (j)
Litigation. Except as described in the “Litigation Schedule” attached
hereto as Schedule 5.1(j) there are no actions, suits or proceedings at law or
in equity or by or before any arbitrator or any Governmental Authority now pending or, to
the best knowledge of the Loan Parties’ management after due inquiry, threatened
against or filed by or affecting any of the Middleby Companies, which might reasonably be
expected to have a Material Adverse Effect. 






	 	     (k)
Compliance with Laws. The Middleby Companies are not in violation of any
applicable Law in any material respect. The Middleby Companies are not in default with
respect to any judgment, order, writ, injunction, decree, rule or regulation of any
Governmental Authority in any material respect. The Middleby Companies are not in, and
the consummation of the Transactions will not cause any, default concerning any judgment,
order, writ, injunction or decree of any Governmental Authority, and there is no
investigation, enforcement action or regulatory action pending or threatened against or
affecting any of the Middleby Companies by any Governmental Authority, except as set
forth on the Litigation Schedule and except for such defaults, investigations or actions
which could not reasonably be expected to have a Material Adverse Effect. Except as set
forth in the Litigation Schedule, there is no remedial or other corrective action that
any Middleby Company is required to take to remain in compliance with any judgment,
order, writ, injunction or decree of any Governmental Authority or to maintain any
material permits, approvals or licenses granted by any Governmental Authority in full
force and effect, except for such actions which could not reasonably be expected to have
a Material Adverse Effect. 






	 	     (l)
Environmental Matters. The Middleby Companies conduct in the ordinary course of
business a review of the effect of existing Environmental Laws and Environmental Claims
alleging potential liability or responsibility for violation of any Environmental Law on
their respective businesses, operations and properties, and as a result thereof the
Middleby Companies have reasonably concluded that, except as specifically disclosed in
the “Environmental Schedule” attached hereto as Schedule 5.1(l), such
Environmental Laws and Environmental Claims would not, individually or in the aggregate,
have a Material Adverse Effect. 






	 	     (m)
Legal Investments; Use of Proceeds. The Company will use the proceeds from the
sale of the Notes to fund the acquisition of Blodgett Holdings, Inc. by Parent and
provide the Company with working capital. The Middleby Companies are not engaged in the
business of extending credit for the purpose of purchasing or carrying any “margin
stock” or “margin security” (within the meaning of Regulations T, U or X
issued by the Board of Governors of the Federal Reserve System), and no proceeds of the
sale of the Notes will be used to purchase or carry any margin stock or margin security
or to extend credit to others for the purpose of purchasing or carrying any margin stock
or margin security. 






	


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	 	     (n)
Taxes. Each of the Middleby Companies has filed all United States federal income
tax returns and other material tax returns required by law to have been filed by it and
has paid all taxes and governmental charges thereby shown to be owing, except any such
tax returns, taxes, fees or other charges (i) that are not delinquent, and (ii) which are
being diligently contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its books. 






	 	     (o)
Labor and Employment. During the twelve- (12) consecutive-month period prior to
the date of the execution and delivery of this Agreement, (i) no steps have been taken to
terminate any Plan and (ii) no contribution failure has occurred with respect to any Plan
sufficient to give rise to a lien under Section 302(f) of ERISA. No condition exists or
event or transaction has occurred with respect to any Plan which could reasonably be
expected to have a Material Adverse Effect. All contributions (if any) have been made to
any Multiemployer Plan that are required to be made by Parent or any other member of the
Controlled Group under the terms of the plan or of any collective bargaining agreement or
by applicable Law; neither the Parent nor any member of the Controlled Group has
withdrawn or partially withdrawn from any Multiemployer Plan, incurred any withdrawal
liability with respect to any such plan, received notice of any claim or demand for
withdrawal liability or partial withdrawal liability from any such plan, and no condition
has occurred which, if continued, could reasonably be expected to result in a withdrawal
or partial withdrawal from any such plan; and neither the Parent nor any member of the
Controlled Group has received any notice that any Multiemployer Plan is in
reorganization, that increased contributions may be required to avoid a reduction in plan
benefits or the imposition of any excise tax, that any such plan is or has been funded at
a rate less than that required under Section 412 of the Code, that any such plan is or
may be terminated, or that any such plan is or may become insolvent. 






	 	     (p)
Investment Company Act; Public Utility Holding Company Act. None of the Middleby
Companies is (i) an “investment company” or “controlled” by an
investment company within the meaning of the Investment Company Act of 1940, as amended,
or (ii) a “holding company” or a “subsidiary company” of a “holding
company” or an “affiliate” of a “holding company” or of a “subsidiary
company” of a “holding company,” within the meaning of the Public Utility
Holding Company Act of 1935, as amended. 






	 	     (q)
Properties. Except as set forth on the Properties Schedule attached hereto as Schedule
5.1(q), each Middleby Company owns good and, in the case of real property,
indefeasible title to all of its properties and asserts, real and personal, tangible and
intangible, or any nature whatsoever, in each case necessary for the conduct of its
business (including, patents, trademarks, trade names, service mars and copyrights)
(collectively, the “Properties and Facilities”), free and clear of all Liens,
charges and material claims (including material infringement claims which are pending or,
to the knowledge of the Middleby Companies, threatened with respect to patents,
trademarks, copyrights and the like) except as permitted pursuant to Section 7.2(b). 






	


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	 	     (r)
Intellectual Property; Licenses. Each of the Middleby Companies possesses all IP
Assets reasonably necessary to conduct the Business as heretofore conducted or as
proposed to be conducted by it. All material IP Assets registered in the name of any of
the Middleby Companies are listed on the “Intellectual Property Schedule,” attached
hereto as Schedule 5.1(r). No event has occurred that permits, or after notice or
lapse of time or both would permit, the revocation or termination of any of the
foregoing, which taken in isolation or when considered with all other such revocations or
terminations could have a Material Adverse Effect. None of the Loan Parties has notice or
knowledge of any facts or any past, present or threatened occurrence that could preclude
or impair any Middleby Companies’ ability to retain or obtain any authorization
necessary for the operation of the Business. 






	 	     (s)
Solvency. After giving effect to the Transactions, (i) the “present fair
saleable value” of the assets of the domestic Middleby Companies, at a fair
valuation, will exceed their debts and liabilities, whether subordinated, “contingent
or otherwise”, (ii) the present fair saleable value of the property of the domestic
Middleby Companies will be greater than the amount that will be required to pay the
probable liability of their debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute and matured, (iii) the
domestic Middleby Companies will be able to pay their debts and liabilities, whether
subordinated, “contingent or otherwise”, as such debts and liabilities become
absolute and matured, (iv) the domestic Middleby Companies will own property with “fair
saleable value” greater than the amount required to pay its debts as they become
absolute and matured and (v) the domestic Middleby Companies will not have “unreasonably
small capital” with which to conduct the business in which they are engaged as such
business is now conducted and is proposed to be conducted following the Closing Date.
(All quoted terms used in this Section 5.1(s) having the respective meanings given
thereto in applicable federal and state laws governing determinations of the insolvency
of debtors.) 






	 	     (t)
Complete Disclosure. The written statements and written information furnished to
Purchasers in connection with the negotiation of this Agreement and the other Transaction
Documents, as supplemented from time to time prior to the Closing Date and taken as a
whole, and when taken together with all of the representations and warranties contained
herein and in the other Transaction Documents, do not contain any untrue statements of a
material fact or omit a material fact necessary to make the material statements contained
herein or therein not misleading in light of circumstances existing at the time made,
Purchasers acknowledging that as to any projections furnished to Purchasers, the Loan
Parties only represent that the same were prepared on the basis of information and
estimates the Loan Parties believed at the time to be reasonable (it being recognized
that projections are not to be viewed as fact and that actual results may differ from
projected results), it being understood that this representation shall not be interpreted
to broaden in any manner the scope of the matters covered by any other representation or
warranty contained in this Agreement or the other Transaction Documents or to affect or
diminish any qualification therein. 






	 	     (u)
Side Agreements. Neither the Middleby Companies nor any Affiliate of the Middleby
Companies nor any director, officer or employee of the Middleby Companies or any of their
Affiliates, respectively, has entered into, as of the date hereof, any side material
agreement, either oral or written, with any individual or business, pursuant to which the
director, officer, employee, Middleby Companies or Affiliate agreed to do anything beyond
the requirements of the formal, written contracts executed by the Middleby Companies and
disclosed to Purchasers and Agent herein. 






	


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	 	     (v)
Broker’s or Finder’s Commissions. No broker’s or finder’s or
placement fee or commission will be payable to any broker or agent engaged by the
Middleby Companies or any of its officers, directors or agents with respect to the
issuance of the Notes or the Warrants or the transactions contemplated by this Agreement,
including without limitation the Transactions, except for fees payable to Banc of America
Securities LLC and J.P. Morgan Chase &Co. and to ACFS, Purchasers and Agent. The Loan
Parties agree to indemnify Agent and Purchasers and hold them harmless from against any
claim, demand or liability for broker’s or finder’s or placement fees or
similar commissions, whether or not payable by the Loan Parties, alleged to have been
incurred in connection with such transactions, other than any broker’s or finder’s
fees payable to Persons engaged by Agent or Purchasers without the knowledge of the Loan
Parties. 






	 	     (w)
Blodgett Acquisition. The Blodgett Acquisition complies in all material respects
with all applicable legal requirements, and all necessary governmental, regulatory,
shareholder and other consents and approvals required for the consummation of the
Blodgett Acquisition have been, or prior to the consummation thereof will be, (A) duly
waived or (B) duly obtained and in full force and effect. The consummation by the Parent
of the Blodgett Acquisition will not violate any statute or regulation of the United
States or any other applicable jurisdiction, or any order, judgment or decree of any
court or other governmental authority, or result in a breach of, or constitute a default
under, any material agreement or indenture, or any material order or decree, affecting
the Parent or any of its Subsidiaries (including any entity which will be a Subsidiary
after giving effect to the Blodgett Acquisition). The representations and warranties of
the Parent and, to the best of Parent’s knowledge, Maytag, in the Acquisition
Agreement are true and correct in all material respects on the date of this Agreement,
and there have been no amendments to or waivers under the Acquisition Agreement (other
than amendments and waivers approved by the Required Purchasers). 






	 	     (x)
No Default. No Loan Party is in default under any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is bound which
could reasonably be expected to have a Material Adverse Effect. No Default or Event of
Default exists.






	 	     (y)
No Burdensome Restrictions. No Loan Party is a party to any agreement or subject
to any other obligation or any charter or corporate restriction or any provision of any
applicable law, rule, regulation which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect. 






	



     5.2
Absolute Reliance on the Representations and Warranties. All
representations and warranties contained in this Agreement and any financial
statements, instruments, certificates, schedules or other documents delivered in
connection herewith, shall survive the execution and delivery of this Agreement,
regardless of any investigation made by Agent or Purchasers or on Agent’s
or Purchasers’ behalf. 



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ARTICLE 6 



TRANSFER OF SECURITIES 




     6.1
Restricted Securities. Purchasers acknowledge that the Securities have
not been registered under the Securities Act and may be resold only if
registered pursuant to the provisions of the Securities Act or if an exemption
from registration is available, and that the Loan Parties are not required to
register the Notes or the Warrants, as the case may be. 




     6.2
Legends; Purchaser’s Representations. Each of the Purchasers hereby
represents and warrants to the Loan Parties that (i) it is an “accredited
investor” within the meaning of Rule 501(a) under the Securities Act;
(ii) it is acquiring the Securities for investment for its own account, with no
present intention of dividing its participation with others (except for a
potential transfer or transfers of the Securities to an affiliate or affiliates
of Purchasers) or reselling or otherwise distributing the same in violation of
the Securities Act or any applicable state securities laws; (iii) it understands
(a) that this is a highly speculative investment with a substantial risk of loss
of such Purchaser’s entire investment and such Purchaser is in a position
to bear the economic risk of such loss, (b) that it has no registration rights
with respect to the Securities or the Common Stock issuable upon the conversion
of the Warrants except as set forth in Article 12, and (c) that even if
available, such exemption may not allow such Purchaser to transfer all or any
portion of the Securities, if any, under the circumstances, in the amount or at
the times it might propose; (iv) by reason of its business or financial
experience, or the business and financial experience of its management, it has
the capacity to protect its own interest in connection with the transaction
contemplated in this Agreement and such Purchaser is not a corporation formed
for the specific purpose of consummating this transaction; and (v) it has been
given access to all documents, records, and other information of the Loan
Parties, has received physical delivery of all those which it requested, and has
had adequate opportunity to ask questions of, and receive answers from, the
officers, employees, agents, accountants, and representatives of the Loan
Parties concerning the business, operations, financial condition, assets,
liabilities, and all other matters of the Loan Parties relevant to its
investment in the Securities. The Loan Parties may place an appropriate legend
on the Securities owned by Purchasers concerning the restrictions set forth in
this Article 6. Upon the assignment or transfer by Purchasers or any
of its successors or assignees of all or any part of the Securities, the term
“Purchaser” as used herein shall thereafter mean, to the extent
thereof, the then holder or holders of such Securities, or portion thereof. 




     6.3
Transfer of Notes. Subject to Section 6.2 hereof, a holder of
a Note may transfer such Note to a new holder other than, prior to the
occurrence of an Event of Default, to a Direct Competitor of any of the Middleby
Companies, or may exchange such Note for Notes of different denominations (but
in no event of denominations of less than $100,000 in original principal
amount), by surrendering such Note to the Company duly endorsed for transfer or
accompanied by a duly executed instrument of transfer naming the new holder (or
the current holder if submitted for exchange only), together with written
instructions for the issuance of one or more new Notes specifying the respective
principal amounts of each new Note and the name of each new holder and each
address therefor. The Company shall simultaneously deliver to such holder or its
designee such new Notes, shall mark the surrendered Notes as canceled and shall
provide notice of such transfer to Agent. In lieu of the foregoing procedures, a
holder may assign a Note (in whole but not in part) to a new holder by sending
written notice to the Company and Agent of such assignment specifying the new
holder’s name and address; in such case, the Company shall promptly
acknowledge such assignment in writing to both the old and new holder. The
Company shall not be required to recognize any subsequent holder of a Note
unless and until the Company has received reasonable assurance that all
applicable transfer taxes have been paid and that any such transfer has not
violated the Securities Act or any applicable state securities laws. 



33













	






     6.4
Replacement of Lost Securities. Upon receipt of evidence reasonably
satisfactory to the Loan Parties of the mutilation, destruction, loss or theft
of any Securities and the ownership thereof, the Loan Parties shall, upon the
written request of the holder of such Securities, execute and deliver in
replacement thereof new Securities in the same form, in the same original
principal amount and dated the same date as the Securities so mutilated,
destroyed, lost or stolen; and such Securities so mutilated, destroyed, lost or
stolen shall then be deemed no longer outstanding hereunder. If the Securities
being replaced have been mutilated, they shall be surrendered to the Loan
Parties; and if such replaced Securities have been destroyed, lost or stolen,
such holder shall furnish the Loan Parties with an indemnity in writing to save
it harmless in respect of such replaced Security. 




     6.5 No
Other Representations Affected. Nothing contained in this Article 6 shall limit
the full force or effect of any representation, agreement or warranty made herein or in
connection herewith to Purchaser. 




ARTICLE 7 



COVENANTS 




     7.1
Affirmative Covenants. The Loan Parties, jointly and severally, covenant
that, so long as all or any of the principal amount of the Notes or any interest
thereon shall remain outstanding, the Loan Parties shall comply with each of the
covenants set forth in this Section 7.1. In addition, following the
repayment in full of the principal amount of the Notes and all accrued interest
thereon, and for so long as the Purchasers collectively own Warrants and/or
Underlying Common Stock which represent in the aggregate not less than fifty
percent (50%) of the Warrants and/or Underlying Common Stock issued or issuable
on the Closing Date, the Loan Parties, jointly and severally, covenant that the
Loan Parties shall comply with Sections 7.1(a), 7.1(b),
7.1(c), 7.1(d), 7.1(e)(i)-(vii), 7.1(f)(v),
7.1(f)(vii), 7.1(h), 7.1(i) and 7.1(j) below. 










	 	     (a)
Existence. Do or cause to be done all things necessary to preserve, renew and keep
in full force and effect the legal existence of each Middleby Company (provided any
Middleby Company (other than the Loan Parties) may liquidate or be dissolved, if the
Parent determines in good faith that such liquidation or dissolution is in the best
interests of the Parent and is not materially disadvantageous to the Purchasers). 






	


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	 	     (b)
Businesses and Properties; Compliance with Laws. At all times (i) do or cause
to be done all things necessary to preserve, renew and keep in full force and effect the
rights, licenses, registrations, permits, certifications, approvals, consents,
franchises, patents, copyrights, trademarks, industrial designs and trade names, and any
other trade names which may be material to the conduct of their businesses; (ii) comply
in all material respects with all laws and regulations applicable to the operation of
such business, including but not limited to, all Environmental Laws, whether now in
effect or hereafter enacted and with all other applicable laws and regulations; (iii) take
all action which may be required to obtain, preserve, renew and extend all rights,
patents, copyrights, trademarks, industrial designs, tradenames, franchises,
registrations, certifications, approvals, consents, licenses, permits and any other
authorizations which may be material to the operation of such business, (iv) maintain,
preserve and protect all property material to the conduct of such business, and (v) except
for obsolete or worn out equipment, keep their property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and proper
repairs, renewals, additions, improvements and replacements thereto necessary in order
that the business carried on in connection therewith may be properly conducted at all
times. 






	 	     (c)
Insurance. Maintain, and cause each Subsidiary to maintain, with responsible
insurance companies, insurance required by the Transaction Documents, including but not
limited to: (i) such insurance as may be required by any law or governmental regulation
or court decree or order applicable to it, (ii) such other insurance, to such extent and
against such hazards and liabilities, as is customarily maintained by companies similarly
situated and (iii) the Life Insurance; and, upon request of the Agent or any Purchaser,
furnish to the Agent or such Purchaser a certificate setting forth in reasonable detail
the nature and extent of all insurance maintained by the Parent and its Subsidiaries.
Each of the Loan Parties shall, and shall cause each other Middleby Company to, pay all
insurance premiums payable by it. 






	 	     (d)
Obligations and Taxes. Pay and discharge, and cause each Middleby Company to pay
and discharge, promptly when due, all United States federal taxes and all other material
taxes, assessments and governmental charges or levies imposed upon them or upon their
respective income or profits or in respect of their properties before the same shall
become delinquent or in default, as well as all lawful material claims for labor,
materials and supplies or otherwise, which, if unpaid, might give rise to Liens or
charges upon such properties or any part thereof (other than Permitted Liens); provided,
however, that the Middleby Companies shall not be required to pay and discharge or to
cause to be paid and discharged any such tax, assessment, charge, levy or claim so long
as the validity or amount thereof shall be contested in good faith by appropriate
proceedings and the relevant Middleby Company shall have set aside on their books
adequate reserves with respect thereto in accordance with GAAP. 






	 	     (e)
Financial Statements; Reports; Furnish to Agent.






	 	     (i) Annual
Statements. Promptly when available and in any event within 90 days after the close
of each Fiscal Year, furnish to Agent: (a) a copy of the annual audit report of the
Parent and its Subsidiaries for such Fiscal Year, including therein consolidated balance
sheets of the Parent and its Subsidiaries as of the end of such Fiscal Year and
consolidated statements of earnings and cash flow of the Parent and its Subsidiaries for
such Fiscal Year reported on without a “going concern” exception, or a
qualification arising out of the scope of the audit, by Arthur Andersen LLP or other
independent auditors of recognized standing selected by the Parent and reasonably
acceptable to the Required Purchasers, together with a written statement from such
accountants to the effect that in making the examination necessary for the signing of
such annual audit report by such accountants, they have not become aware of any Default
or Event of Default that has occurred and is continuing or, if they have become aware of
any such event, describing it in reasonable detail; and (b) consolidating balance sheets
of the Parent and its Subsidiaries as of the end of such Fiscal Year and consolidating
statements of earnings and cash flow for the Parent and its Subsidiaries for such Fiscal
Year, certified by a Responsible Financial Officer of the Parent. 






	


35













	












	 	     (ii) Quarterly
Statements. Promptly when available and in any event within 45 days after the end of
each Fiscal Quarter (except the last Fiscal Quarter) of each Fiscal Year, furnish to
Agent consolidated and consolidating balance sheets of the Parent and its Subsidiaries as
of the end of such Fiscal Quarter, together with consolidated and consolidating
statements of earnings and cash flow for such Fiscal Quarter and for the period beginning
with the first (1st) day of such Fiscal Year and ending on the last day of
such Fiscal Quarter, certified by a Responsible Financial Officer of the Parent. 






	 	     (iii) Monthly
Statements. Promptly when available and in any event within 30 days after the end of
each of the first two (2) months of each Fiscal Quarter, furnish to Agent consolidated
balance sheets of the Parent and its Subsidiaries as of the end of such month, together
with (a) consolidated statements of earnings and cash flow for such month and for the
period beginning with the first day of the applicable Fiscal Year and ending on the last
day of such month, certified by a Responsible Financial Officer of the Parent and (b)
detailed all Special Charges taken by the Parent during such month. 






	 	     (iv) Format;
Management Report; Certificate of Compliance. Each financial statement furnished to
Agent pursuant to subsections (i), (ii) and (iii) of this  Section 7.1(e) will
be furnished by an electronic means in Excel spreadsheet format containing such line
items and other formatting requirements as may be specified by Agent. Each financial
statement furnished to Agent pursuant to subsections (i), (ii) and (iii) of
this Section 7.1(e) shall be accompanied by (A) a written narrative
report by the management of the Loan Parties explaining material developments and trends
in the Business and such financial statements and (B) a written certificate signed
by a responsible officer of the relevant Loan Party to the effect that such officer has
not become aware of any Default or Event of Default that has occurred during the period
covered by such statements or, if any such Default or Event of Default has occurred
during such period and is continuing or, if there is any such event, setting forth a
description of such Default or Event of Default and specifying the action, if any, taken
by the relevant Loan Party to remedy the same, and a compliance certificate in the form
of Exhibit D  showing the relevant Loan Party’s compliance with the
covenants set forth in Section 7.3 hereof. 






	


36













	












	 	     (v) Accountant
Reports. Promptly upon the receipt thereof, copies of all reports, if any, submitted
to any Middleby Company by independent certified public accountants in connection with
each annual, interim or special audit or review of the financial statements of the
relevant Middleby Companies made by such accountants, including but not limited to, any
comment letter submitted by such accountants to management in connection with any annual
review. 






	 	     (vi) Annual
Budgets. On or before 30 days prior to the beginning of each Fiscal Year (or, in the
case of Fiscal Year 2002, within 45 days after), an annual budget for such fiscal year
approved by the Board of Directors of each of the Middleby Companies. 






	 	     (vii) Projections.
As soon as practicable and in any event within 30 days before the commencement of each
Fiscal Year (or, in the case of Fiscal Year 2002, within 45 days after), financial
projections for the Parent and its Subsidiaries for such Fiscal Year prepared in a manner
consistent with those projections delivered by the Parent to the Agent prior to the
Closing Date. 






	 	     (viii) Borrowing
Base Certificate. Upon delivery of any Borrowing Base Certificates to a Senior Lender
in accordance with the terms of the Senior Credit Agreement, the Middleby Companies shall
contemporaneously deliver to Agent and Purchasers a copy of such Borrowing Base
Certificate. 






	 	     (ix) Additional
Information. Promptly, from time to time, such other information regarding the
compliance by the Middleby Companies with the terms of this Agreement and the other
Purchase Documents or the affairs, operations or condition (financial or otherwise) of
the Middleby Companies as Agent or Required Purchasers may reasonably request and that is
capable of being obtained, produced or generated by the Middleby Companies or of which
the Middleby Companies have knowledge. 






	 	     (f)
Litigation and Other Notices. Promptly upon becoming aware of any of the
following, give Agent prompt written notice thereof:






	 	     (i) Orders;
Injunctions. The issuance by any court or governmental agency or authority of any
injunction, order, decision or other restraint prohibiting, or having the effect of
prohibiting, the making of any loan or the initiation of any litigation or similar
proceeding seeking any such injunction, order or other restraint with respect to any
Middleby Company which might reasonably be expected to have a Material Adverse Effect. 






	 	     (ii) Litigation.
The notice, filing or commencement of any action, suit or proceeding against any of the
Middleby Companies whether at law or in equity or by or before any court or any federal,
state, municipal or other governmental agency or authority which might reasonably be
expected to have a Material Adverse Effect. 






	


37













	












	 	     (iii)
Environmental Matters. Any violation of any Environmental Law or the assertion of
any Environmental Claim which might reasonably be expected to have a Material Adverse
Effect.






	 	     (iv) Labor
and Employment Matters. The institution of any steps by any member of the Controlled
Group or any other Person to terminate any Plan, or the failure of any member of the
Controlled Group to make a required contribution to any Plan (if such failure is
sufficient to give rise to a lien under Section 302(f) of ERISA) or to any Multiemployer
Plan, or the taking of any action with respect to a Plan which could reasonably be
expected to result in the requirement that the Parent furnish a bond or other security to
the PBGC or such Plan, or the occurrence of any event with respect to any Pension Plan or
Multiemployer Plan which could result in the incurrence by any member of the Controlled
Group of any material liability, fine or penalty (including any claim or demand for
withdrawal liability or partial withdrawal from any Multiemployer Plan), or any notice
that any Multiemployer Plan is in reorganization, that increased contributions may be
required to avoid a reduction in plan benefits or the imposition of an excise tax, that
any such plan is or has been funded at a rate less than that required under Section 412
of the Code, that any such plan is or may be terminated, or that any such plan is or may
become insolvent. 






	 	     (v) Default.
Any Default or Event of Default, specifying the nature and extent thereof and the action
(if any) that is proposed to be taken with respect thereto. 






	 	     (vi)
Material Adverse Effect. Any development in the business or affairs of any of the
Middleby Companies that could reasonably be expected to have a Material Adverse Effect.






	 	     (vii) Board
Meetings. Written notice of each regular meeting of each Middleby Company’s
Board of Directors at least 30 days in advance of such meeting and, to the extent
possible, prior written notice of each special meeting of each of such Middleby Company’s
Board of Directors at least seven (7) days in advance of such meeting, but in any case
such notice shall be delivered no later than the date on which the members of the Board
of Directors are notified of such meeting. In addition, the Loan Parties will, or will
cause the other Middleby Companies to, send Agent copies of all reports and materials
provided to members of the Board of Directors at meetings or otherwise. 






	 	     (g)
Maintaining Records; Access to Premises and Inspections. Maintain financial
records in accordance with generally accepted practices and, upon reasonable notice, at
all reasonable times and as often as Agent or any Purchasers may reasonably request (and
at any time after the occurrence and during the continuation of a Default or Event of
Default), permit any authorized representative designated by Agent to visit and inspect
the properties and financial records of the Middleby Companies and to make extracts from
such financial records, all at the Loan Parties’ reasonable expense, and permit any
authorized representative designated by Agent or any Purchasers to discuss the affairs,
finances and conditions of the Middleby Companies with the respective Middleby Companies’ chief
financial officer and such other officers as the Loan Parties shall deem appropriate, and
the Middleby Companies’ independent public accountants. 






	


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	 	     (h)
Board of Directors.






	 	     (i)
Each Loan Party shall cause its Board of Directors to meet at least once per calendar
quarter.






	 	     (ii) Purchasers
shall have the right to designate an observer, without voting rights, who will be
entitled to attend all meetings of the Middleby Companies’ Boards of Directors
(including committees) and stockholders. Any observer designated by Purchasers shall be
entitled to notice of all meetings of the Middleby Companies’ Boards of Directors
(including committee meetings) and to information provided to Directors. Such observer
shall receive reimbursement for reasonable out-of-pocket expenses from the Loan Parties
incurred in connection with attendance at Boards of Directors, committee and stockholder
meetings. 






	 	     (iii) Each
Loan Parties’ Board of Directors shall maintain an audit and compensation committee,
each of which shall be comprised of directors who are not otherwise employed by the
Middleby Companies. 






	 	     (iv) All
rights of Purchasers under this Section 7.1(h) shall be exercised by Required
Purchasers, and if no Notes are outstanding, by holders representing a majority of the
Warrant Shares. 






	 	     (i)
Common Stock Reserve. Maintain in reserve, at all times that the Warrants are
effective, Common Stock for issuance upon exercise of the Warrants.






	 	     (j)
Guaranties. The Loan Parties shall cause each of their respective Domestic
Subsidiaries, whether now existing or hereafter formed or acquired in accordance with
this Agreement, to execute a counterpart of the Guaranty in substantially the form
attached hereto as Exhibit E. 






	 	     (k)
Employment Agreements. The Loan Parties shall promptly notify the Purchasers of
any amendment to, termination of, or waiver or non-enforcement of any material rights
under any employment agreement with a member of Key Management or any other executive
officer of any Middleby Company. 






	 	     (l)
Environmental Laws. The Loan Parties will, and will cause each other Middleby
Company to, conduct its operations and keep and maintain its property in material
compliance with all Environmental Laws.






	 	     (m)
Further Assurances. The Loan Parties will, and will cause each other Middleby
Company to, with reasonable promptness, execute and deliver to each Purchaser, from time
to time, upon the reasonable request of such Purchaser, such supplemental agreements,
statements, assignments and transfers, or instructions on documents as any Purchaser may
reasonably request in order that the full intent of this Agreement and the other
Transaction Documents may be carried into effect. 






	


39













	












	 	     (n)
Life Insurance. Within 45 days of the Closing Date, the Company shall deliver to
Agent a paid life insurance policy issued by a carrier reasonably acceptable to Agent
insuring the life of Selim A. Bassoul, which policy shall be in the amount of $5,000,000,
shall name Agent as the beneficiary, and shall be assigned to Agent as collateral
security for the repayment of the Notes and all other Indebtedness, obligations and
liabilities of the Middleby Companies under this Agreement and the Transaction Documents
(the “Life Insurance”). 






	 	     (o)
Bassoul Employment. Within 90 days of Closing, the Company shall offer Selim A.
Bassoul a five (5) year employment agreement. In the event that during the time that any
of the Notes are outstanding, Selim A. Bassoul fails to be employed by the Company as
Chief Executive Officer, a replacement Chief Executive Officer of the Company reasonably
satisfactory to Requisite Purchasers and Senior Agent will be hired by the Company no
later than 180 days after the termination of Selim A. Bassoul’s employment with the
Company. 






	



     7.2 Negative
Covenants. The Loan Parties, jointly and severally, covenant that, so long as all or
any part of the principal amount of the Notes or any interest thereon shall remain
outstanding: 










	 	     (a)
Indebtedness. The Loan Parties shall not, and shall not cause or permit any other
Middleby Company to, create, incur, assume guarantee or be or remain liable for,
contingently or otherwise, or suffer to exist any Indebtedness, except: 






	 	     (i)
Indebtedness under this Agreement;






	 	     (ii) Indebtedness
under the Senior Financing, including, without limitation, Guaranties thereof by the
Middleby Companies, to which payment under the Notes will be subordinated on terms
reasonably acceptable to Agent; 






	 	     (iii) Indebtedness
set forth on Schedule 7.2(a), and refinancings of any such Indebtedness so long as
the terms applicable to such refinanced Indebtedness are no less favorable to the Loan
Parties or the applicable Subsidiary than the terms in effect immediately prior to such
refinancing (except that interest and fees payable with respect to such refinanced
Indebtedness may be at the then-prevailing market rates); 






	 	     (iv) Indebtedness
incurred in the ordinary course of business with respect to customer deposits, trade
payables and other unsecured current liabilities not the result of borrowing and not
evidenced by any note or other evidence of indebtedness; 






	


40













	












	 	     (v) Unsecured
seller Indebtedness which represents all or part of the purchase price payable in
connection with a transaction permitted by Section 7.2(e), provided that the
aggregate principal amount of all such Indebtedness shall not at any time exceed
$1,250,000; 






	 	     (vi) Indebtedness
arising under Capitalized Leases and Indebtedness secured by Liens permitted by Section
 7.2(b)(iv) and Section 7.2(b)(v), provided that the aggregate amount of
all such Indebtedness at any time outstanding shall not exceed $2,500,000, and any
replacements, refundings, renewals, extensions or refinancings of any such Indebtedness
so long as the principal amount thereof is not increased or the maturity thereof
shortened; 






	 	     (vii)
Indebtedness of Subsidiaries owed to Parent or any other Subsidiary;






	 	     (viii) Indebtedness
incurred pursuant to Hedging Obligations of a Middleby Company incurred in the ordinary
course of business for bona fide hedging purposes and not for speculation; 






	 	     (ix)
Unsecured Indebtedness of the Company to Subsidiaries;






	 	     (x) Indebtedness
of Parent owed to the Company solely to the extent that the proceeds of such Indebtedness
are used by the Parent to pay its taxes, accounting, legal and corporate overhead
expenses as they become due; 






	 	     (xi)
Indebtedness to be Repaid; provided that all such Indebtedness to be Repaid shall
be repaid on or before the Closing Date;






	 	     (xii)
the Seller Subordinated Debt; and






	 	     (xiii)
Any other Indebtedness which does not exceed in the aggregate $375,000 at any time
outstanding. 






	 	     (b)
Negative Pledge; Liens. The Loan Parties shall not, and shall not cause or permit
any other Middleby Company to, create, incur, assume or suffer to exist any Lien of any
kind on any of their properties or assets of any kind, except the following
(collectively, “Permitted Liens”): 






	 	     (i) Liens
created in connection with the Senior Financing and Liens securing Hedging Obligations in
favor of Senior Lender or Affiliates thereof, which Liens Purchaser will subordinate to
on terms that are reasonably acceptable to Purchaser; 






	 	     (ii) 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 worker’s 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
7(h)(vi), but excluding bonds of the types described in subsection (xiii) 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; 






	


41













	












	 	     (iii)
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; 






	 	     (iv)
Liens listed on the Permitted Encumbrances Schedule attached hereto as Schedule 7.2(b) and
Liens securing refinancings, refunds, renewals, replacements or extensions of the
Indebtedness originally secured by such Lien, provided that the amount of
Indebtedness secured thereby is not increased; 






	 	     (v)
Subject to the limitations set forth in Section 7.2(a)(vi), (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) and (ii) Liens that constitute purchase
money security interests on any property securing Indebtedness 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 with 60 days of the acquisition thereof and such Lien
attaches solely to the property so acquired; 






	 	     (vi)
Subject to the limitations set forth in Section 7.2(a)(vi), Liens securing
obligations in respect of Capitalized Leases on assets subject to such leases, provided
that such Capitalized Leases are otherwise permitted hereunder; 






	 	     (vii)
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 business of the Company
or any Subsidiary; 






	 	     (viii)
Liens in favor of the Agent or any Purchaser arising under or pursuant to this Agreement;






	 	     (ix)
Liens arising solely by virtue of any statutory or common law provision relating to banker’s
liens, rights of set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; 






	 	     (x)
Licenses of patents, trademarks, or other intellectual property rights granted in the
ordinary course of business;






	


42













	












	 	     (xi)
Any interest or title or a lessor, licensor or sublessor under any lease or license
entered into in the ordinary course of business and covering only the assets so leased or
licensed; 






	 	     (xii)
Extensions, renewals and replacements of Liens referred to in clauses (i) through
(xiii) of this Section 7.2(b); provided, however, that
any such extension, renewal or replacement Lien shall be limited to the property or
assets covered by the Lien extended, renewed or replaced and that the obligations secured
by any such extension, renewal or replacement Lien shall be in an amount not greater than
the amount of the obligations secured by the Lien extended, renewed or replaced; 






	 	     (xiii)
Attachments, appeal bonds, judgments and other similar Liens, for sums not exceeding
$625,000 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; and 






	 	     (xiv)
Liens not otherwise permitted by this Section 7.2(b) so long as the aggregate
outstanding principal amount of the obligations secured thereby does not exceed $125,000. 






	 	     (c)
Capital Expenditures. The Loan Parties shall not, and shall not cause or permit
any other Middleby Company to, make Capital Expenditures, that in the aggregate, with
respect to all such Middleby Companies, would cost more than $3,450,000. 






	 	     (d)
Mergers, etc. The Loan Parties shall not, and shall not cause or permit any other
Middleby Company to, merge into or consolidate or combine with any other Person, or
purchase, lease or otherwise acquire (in one transaction or a series of related
transactions) all or any part of the property or assets of any Person other than
purchases or other acquisitions of inventory, materials, leases, property and equipment
in the ordinary course of business. The Loan Parties shall not, and shall not cause or
permit any other Middleby Company to, sell, transfer or otherwise dispose of any of its
assets (including the stock of the other Middleby Companies). With respect to the Loan
Parties, the preceding two sentences shall not prohibit (i) any such merger or
consolidation, sale, transfer, conveyance, lease or assignment of or by any wholly-owned
Subsidiary into the Company or into, with or to any other wholly-owned Subsidiary; (ii)
any such purchase or other acquisition by the Company or any other wholly-owned
Subsidiary of the assets or stock of any wholly-owned Subsidiary; (iii) the Blodgett
Acquisition; (iv) any such Acquisition by the Company or any wholly-owned Subsidiary
where (A) the assets acquired are for use in, or the Person acquired is engaged in,
business activities permitted under Section 7.2(l); (B) immediately before or
after giving effect to such Acquisition, no Default or Event of Default shall have
occurred and be continuing; (C) the Loan Parties’ consolidated Debt to EBITDA Ratio
as of the end of the two Fiscal Quarters ended on or immediately prior to the date of
such acquisition was less than 2.0 to 1.0; (D) the aggregate consideration paid by the
Company and its Subsidiaries (including any Indebtedness assumed or issued in connection
therewith, the amount thereof to be calculated in accordance with GAAP, but excluding any
common stock of the Parent) in connection with (1) such Acquisition (or any series of
related Acquisitions) does not exceed $3,000,000 and (2) all such Acquisitions made after
the Closing Date do not exceed $5,000,000; and (E) after giving effect to such
Acquisition, the Loan Parties will be in pro forma compliance after giving effect to any
such Acquisition with all of the financial ratios and restrictions set forth in Section
7.3; (v) sales and dispositions of assets (including the stock of the other Middleby
Companies) so long as the net book value of all assets sold or otherwise disposed of in
any Fiscal Year does not exceed $625,000; and (vi) purchases and advances of Investments
permitted by Section 7.2(h). 






	


43













	












	 	     (e)
Affiliate Transactions. The Loan Parties shall not, and shall not cause or permit
any other Middleby Company to, make any loan or advance to any director, officer or
employee of the Middleby Companies or any Affiliate (other than the Parent and its
domestic Subsidiaries), or enter into or be a party to any transaction or arrangement
with any Affiliate of the Middleby Companies (other than the Parent and its domestic
Subsidiaries), which is on terms less favorable to the Middleby Companies than would be
obtained in a comparable arm’s-length transaction with a Person other than an
Affiliate. 






	 	     (f)
Dividends and Stock Purchases. The Loan Parties shall not, and shall not cause or
permit any other Middleby Company to, directly or indirectly: declare or pay any
dividends (other than stock dividends) or make any distribution of any kind on their
outstanding capital stock or any other payment of any kind to any of their stockholders
or its Affiliates with respect to their equity interests (including any redemption,
purchase or acquisition of, whether in cash or in property, securities or a combination
thereof, any partnership interests or capital accounts or warrants, options or any of
their other securities), or set aside any sum for any such purpose; provided, however,
that (i) any Subsidiary may declare and pay dividends to the Company or to any other
Subsidiary, (ii) the Company or the Parent, as the case may be, may make regularly
scheduled payments of interest on any Subordinated Debt if the holder of such
Subordinated Debt is permitted to receive such payments at such time under the applicable
agreement or instrument governing such Subordinated Debt and any applicable subordination
agreement and/or intercreditor agreement, (iii) the Company and any of its Subsidiaries
may purchase, redeem, retire or otherwise acquire shares of its capital stock or warrants
or options from officers, directors, employees of the Company and any of its Subsidiaries
upon the death, disability, or termination of employment of such Person in an aggregate
amount not to exceed $125,000 in any fiscal year, (iv) the Company and any of its
Subsidiaries may make payments to effect mandatory prepayments of the Loans (as defined
in the Senior Credit Agreement), (v) the Company or any Subsidiary may declare and pay
dividends to the Parent to the extent necessary to enable the Parent to pay its taxes,
accounting, legal and corporate overhead expenses as they become due, and (vi) so long as
no Default or Event of Default exists or will result therefrom, the Parent and any of its
Subsidiaries may declare and pay dividends to the Parent to the extent necessary to
enable the Parent to make regularly scheduled payments of interest on the Seller
Subordinated Debt if the holder of the Seller Subordinated Debt is permitted to receive
such payments at such time under the applicable subordination agreement and/or
intercreditor agreement related to such Seller Subordinated Debt. Notwithstanding the
foregoing, this Section 7.2(g) shall not apply to stock purchases pursuant to
Article 10 hereof. 






	


44













	












	 	     (g)
Advances, Investments and Loans. The Loan Parties shall not, and shall not permit
any other Middleby Company to, make, incur, assume or suffer to exist any Investment in
any other Person, except (without duplication) the following: 






	 	     (i)
equity Investments existing on the Closing Date in Subsidiaries identified in the
“Permitted Investment Schedule” attached hereto as Schedule 7.2(h);






	 	     (ii)
equity Investments in Subsidiaries organized or acquired after the Closing Date in
connection with transactions permitted as acquisitions of stock or assets pursuant to Section 7.2(d); 






	 	     (iii)
in the ordinary course of business, contributions by the Parent to the capital of the
Company, by the Company to any of its Subsidiaries or by any such Subsidiary to the
capital of any of its Subsidiaries; 






	 	     (iv)
in the ordinary course of business, Investments by the Parent in the Company, by the
Company in any of its Subsidiaries or by any Subsidiary in the Company or any other
Subsidiary of the Company, by way of intercompany loans, advances or guaranties, all to
the extent permitted by Section  7.2(a); 






	 	     (v)
Suretyship Liabilities permitted by Section 7.2(a);






	 	     (vi)
good faith deposits made in connection with prospective acquisitions of stock or assets
permitted by Section 7.2(e);






	 	     (vii)
Cash Equivalent Investments;






	 	     (viii)
the Blodgett Acquisition;






	 	     (ix)
bank deposits in the ordinary course of business and consistent with past practice;






	 	     (x)
Investments received in connection with the creation and collection of receivables in the
ordinary course of business;






	 	     (xi)
Investments set forth on the Permitted Investments Schedule;






	 	     (xii)
loans to officers and directors of the Parent or any Subsidiary, so long as the aggregate
principal amount of such loans made after the Closing Date does not exceed $500,000; and 






	 	     (xiii)
other Investments in an aggregate amount (valued at cost) not exceeding $125,000 at any
time outstanding;






	


45













	





provided that no Investment
otherwise permitted by clause (ii), (v) (vi) or (vi) shall be
permitted to be made if, immediately before or after giving effect thereto, any Default
or Event of Default shall have occurred and be continuing.  










	 	     (h)
Use of Proceeds. The Loan Parties shall not, and shall not cause or permit any
other Middleby Company to, use any proceeds from the sale of the Notes hereunder,
directly or indirectly, (a) for the purposes of purchasing or carrying any “margin
securities” within the meaning of Regulations T, U or X promulgated by the Board of
Governors of the Federal Reserve Board, (b) for the purpose of arranging for the
extension of credit secured, directly or indirectly, in whole or in part by collateral
that includes any “margin securities” or (c) in violation of any applicable law,
rule or regulation. 






	 	     (i)
Stock Issuances. The Parent shall not cause or permit any other Middleby Company
to, issue any capital stock or other equity interests or any options or warrants to
purchase, or securities convertible into capital or equity interests or establish any
stock appreciation rights or similar programs based on the value of any such Middleby
Companies’ equity interests to any Person other than another Middleby Company; provided,
however, that the foregoing restrictions shall not prohibit any such Middleby
Company from issuing capital stock to a Person not a Middleby Company if such issuance is
required by the jurisdiction of organization of such Middleby Company. 






	 	     (j)
Amendment of Charter Documents. The Loan Parties shall not, and shall not cause or
permit any other Middleby Company to, amend, terminate, modify or waive or agree to the
amendment, modification or waiver of any material term or provision of their respective
Charter Documents, or Bylaws. 






	 	     (k)
Assets and Revenues. The Loan Parties shall not at any time permit more than 30%
of their consolidated assets to be owned by, or more than 50% of their consolidated
revenues for any fiscal quarter to be earned by, Middleby Companies that were not formed
or incorporated in the United States. 






	 	     (l)
Business. (i) The Parent shall not engage in any business activity other than the
ownership of the capital stock of the Company and activities incident thereto (including
the issuance and servicing of the Seller Subordinated Debt) and (ii) the Loan Parties
shall not, and shall not cause or permit the Company or any of its Subsidiaries, to
engage in any line of business other than those engaged in by the Company and its
Subsidiaries on the Closing Date and businesses reasonably related thereto 






	 	     (m)
Fiscal Year; Accounting. The Loan Parties shall not, and shall not cause or permit
any other Middleby Company to, change its Fiscal Year from ending on the Saturday closest
to December 31 or method of accounting (other than immaterial changes in methods), except
as required by GAAP. 






	 	     (n)
Modification of Agreements. The Loan Parties will not, and will not cause or
permit any of their respective Subsidiaries to, agree or consent to any modification or
amendment of any of the terms or provisions of the Acquisition Agreement, if such
amendment, modification or waiver would adversely affect the interests of the Purchasers. 






	


46













	






     7.3
Financial Covenants. The Loan Parties, jointly and severally, covenant
that, so long as all or any part of the principal amount of the Notes or any
interest thereon shall remain outstanding, they will, on a consolidated basis,
beginning December 29, 2001: 










	 	     (a)
Fixed Charge Coverage Ratio. Not permit the Fixed Charge Coverage Ratio as of the
last day of any Computation Period to be less than the applicable ratio set forth below:





	Computation Period Ended
	Ratio

	
Closing Date through March 27, 2004 

             Thereafter
	
1.05 to 1.00

1.15 to 1.00







	 	     (b)
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 Ended
	Ratio

	
 Closing Date through September 28, 2002 

 December 28, 2002 through June 28, 2003 

                Thereafter
	
 4.25 to 1.00  

 3.65 to 1.00  

 3.15 to 1.00







	 	     (c)
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 Ended
	Ratio

	
 Closing Date through September 28, 2002

 December 28, 2002 through June 28, 2003

                Thereafter
	
3.28 to 1.00 

2.59 to 1.00 

2.01 to 1.00







	 	     (d)
Minimum Consolidated Net Worth. Not permit Consolidated Net Worth at any time to
be less than the sum of (a) $35,000,000 plus (b) 65% of the sum of Consolidated Net
Income for each Fiscal Quarter, beginning with the Fiscal Quarter ending December 29,
2001 and ending with the most recently-ended Fiscal Quarter for which the Company has
delivered financial statements (excluding any Fiscal Quarter for which Consolidated Net
Income is less than zero) plus 100% of the Net Cash Proceeds of any equity issued by the
Parent or any of its Subsidiaries (on a consolidated basis) after the Closing Date. 






	



ARTICLE 8 



EVENTS OF DEFAULT 




     8.1 Events
of Default. An “Event of Default” means the occurrence of one or more of the
following described events: 



47













	












	 	     (a)
the Company shall default in the payment of (i) interest on any Note within five (5)
days after its due date or (ii) principal of any Notes when due, whether at
maturity, upon notice of prepayment in accordance with Sections 3.3 or 3.4 hereof,
upon any scheduled payment date or by acceleration or otherwise; 






	 	     (b)
any Middleby Company shall default under the terms applicable to any Indebtedness of any
Middleby Company (other than the Senior Financing) in an aggregate principal amount (for
all such Indebtedness so affected) exceeding $625,000 and such default shall (a) consist
of the failure to pay such Indebtedness when due (subject to the expiration of any
applicable grace period), whether by acceleration or otherwise, or (b) accelerate the
maturity of such Indebtedness or permit the holder or holders thereof (subject to the
expiration of any applicable grace period), or any trustee or agent for such holder or
holders, to cause such Indebtedness to become due and payable prior to its expressed
maturity; 






	 	     (c)
any representation or warranty herein made by any Loan Party, or any certificate or
financial statement furnished pursuant to the provisions hereof, shall prove to have been
false or misleading in any material respect as of the time made or furnished or deemed
made or furnished; 






	 	     (d)
any Loan Party shall fail to comply in the performance of (i) any covenant, condition or
provision of Section 7.1(a) (with respect to Parent or the Company), (g),
(h), (m), or (o), Section 7.2(a), (b), (e), (f),
(g), (h), (i), (m)or (o), or Section 7.3 hereof
or (ii) any other covenant condition or provision of this Agreement (and not constituting
an Event of Default under any of the other provisions of this Section 8.1) and
such failure to comply shall contuinue for a period of 30 days after notice thereof to
the Loan Parties from the Agent or any Purchaser; 






	 	     (e)
the occurrence or existence of any event of default under the Senior Loan Documents if
the effect of such default is to cause the Senior Financing to become or be declared due
and payable prior to its stated maturity; 






	 	     (f)
Any Middleby Company shall revoke or attempt to revoke its Guaranty, or shall terminate
or repudiate its liability thereunder unless any such Guaranty is released in accordance
with this Agreement; 






	 	     (g)
Any Middleby Company becomes insolvent or generally fails to pay, or admits in writing
its inability to pay, debts as they become due; or the Parent or any Subsidiary applies
for, consents to, or acquiesces in the appointment of a trustee, receiver or other
custodian for the Parent or such Subsidiary or any substantial part of the property
thereof, or makes a general assignment for the benefit of creditors; or, in the absence
of such application, consent or acquiescence, a trustee, receiver or other custodian is
appointed for the Parent or any Subsidiary or for any substantial part of the property
thereof and is not discharged within 60 days; or any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding (except the voluntary dissolution, not under any
bankruptcy or insolvency law, of a Subsidiary), is commenced in respect of the Parent or
any Subsidiary, and if such case or proceeding is not commenced by the Parent or such
Subsidiary, it is consented to or acquiesced in by the Parent or such Subsidiary, or
remains for 60 days undismissed; or the Parent or any Subsidiary takes any corporate
action to authorize, or in furtherance of, any of the foregoing. 






	


48













	












	 	     (h)
(A) institution of any steps by any Middleby Company or any other Person to terminate a
Plan if as a result of such termination such Middleby Company could be required to make a
contribution to such Plan, or could incur a liability or obligation to such Plan, in
excess of $625,000; (B) a contribution failure occurs with respect to any Plan sufficient
to give rise to a Lien under section 302(f) of ERISA; or (C) there shall occur any
withdrawal or partial withdrawal from a Multiemployer Plan and the withdrawal liability
(without unaccrued interest) to Multiemployer Plans as a result of such withdrawal
(including any outstanding withdrawal liability that the Parent and the Controlled Group
has incurred on the date of such withdrawal) exceeds $625,000; 






	 	     (i)
a final judgment which, with other undischarged final judgments against any Middleby
Company, exceeds an aggregate (to the extent not covered by independent third-party
insurance as to which the insurer does not dispute coverage) of $625,000 shall be
rendered against the Parent or any Subsidiary and shall not have been paid, discharged or
vacated or had execution thereof stayed pending appeal within 30 days after entry or
filing of such judgments; 






	 	     (j)
any Transaction Document shall at any time after the Closing Date cease for any reason to
be in full force and effect with respect to any Loan Party; or






	 	     (k)
a Change of Control shall have occurred.






	



     8.2 Consequences
of Event of Default. 










	 	     (a)
Bankruptcy. If an Event of Default specified in paragraphs (g) or (h) of
Section 8.1 hereof shall occur, the unpaid balance of the Notes and interest
accrued thereon and all other liabilities of the Loan Parties to the holders thereof
hereunder and thereunder shall be immediately due and payable, without presentment,
demand, protest or (except as expressly required hereby) notice of any kind, all of which
are hereby expressly waived. 






	 	     (b)
Other Defaults. If any other Event of Default shall occur, Required Purchasers may
at their option, by written notice to the Company, declare the entire unpaid balance of
the Notes, and interest accrued thereon and all other liabilities of the Loan Parties
hereunder and thereunder to be forthwith due and payable, and the same shall thereupon
become immediately due and payable, without presentment, demand, protest or (except as
expressly required hereby) notice of any kind, all of which are hereby expressly waived;
provided, that in the case of a default specified in clause (ii) of paragraph (a) of Section 8.1
 hereof shall occur, any holder of a Note may declare the entire unpaid balance of
such Note (but only such Note) and other amounts due hereunder and thereunder with regard
to such Note to become immediately due and payable. 






	


49













	












	 	     (c)
Penalty Interest. Following the occurrence and during the continuance of any Event
of Default, the holders of the Notes shall be entitled to receive, to the extent
permitted by applicable law, interest on the outstanding principal of, and premium and
overdue interest, if any, on, the Notes at a rate per annum equal to the interest rate
thereon (determined as provided in Section 3.1 hereof) plus 200 basis points. 






	 	     (d)
Premium. In the event of any acceleration of any Note pursuant to Section 8.2(b) hereof,
the Company shall also pay to Agent, for the ratable benefit of Purchasers the prepayment
premium that would otherwise be payable upon any voluntary prepayment of such Note. 






	



ARTICLE 9 



THE AGENT 




     9.1 Authorization
and Action. Each Purchaser and each subsequent holder of any Note by its acceptance
thereof, hereby designates and appoints ACFS as Agent hereunder and authorizes ACFS to
take such actions as agent on its behalf and to exercise such powers as are delegated to
Agent by the terms of this Agreement and the other Purchase Documents, together with such
powers as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary relationship
with any Purchaser, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of Agent shall be read into this Agreement or
otherwise exist for Agent. In performing its functions and duties hereunder, Agent shall
act solely as agent for Purchasers and does not assume, nor shall be deemed to have
assumed, any obligation or relationship of trust or agency with or for the Middleby
Companies or any of their respective successors or assigns. Agent shall not be required
to take any action that exposes Agent to personal liability or that is contrary to this
Agreement or applicable Laws. The appointment and authority of Agent hereunder shall
terminate at the indefeasible payment in full of the Notes and related obligations.  




     9.2
Delegation of Duties. Agent may execute any of its duties under this
Agreement by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care. 




     9.3
Exculpatory Provisions. Neither Agent nor any of its directors, officers,
agents or employees shall be (a) liable for any action lawfully taken or
omitted to be taken by it or them under or in connection with this Agreement
(except for its, their or such Person’s own gross negligence or willful
misconduct or, in the case of Agent, the breach of its obligations expressly set
forth in this Agreement, unless such action was taken or omitted to be taken by
Agent at the direction of the Required Purchasers), or (b) responsible in
any manner to any of Purchasers for any recitals, statements, representations or
warranties made by the Loan Parties contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for in,
or received under or in connection with, this Agreement for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other document furnished in connection herewith, or for any failure of any
of the Loan Parties to perform their respective obligations hereunder, or for
the satisfaction of any condition specified in Article 4 hereof. Agent
shall not be under any obligation to any Purchaser to ascertain or to inquire as
to the observance or performance of any of the agreements or covenants contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of any of the Middleby Companies. 



50













	






     9.4
Reliance. Agent shall in all cases be entitled to rely, and shall be
fully protected in relying, upon any document or conversation believed by it to
be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Middleby Companies), independent accountants
and other experts selected by Agent. Agent shall in all cases be fully justified
in failing or refusing to take any action under this Agreement or any other
document furnished in connection herewith unless it shall first receive such
advice or concurrence of the Required Purchasers or all of Purchasers, as
applicable, as it deems appropriate or it shall first be indemnified to its
satisfaction by Purchasers; provided, that, unless and until Agent shall have
received such advice, Agent may take or refrain from taking any action, as Agent
shall deem advisable and in the best interests of Purchasers. Agent shall in all
cases be fully protected in acting, or in refraining from acting, in accordance
with a request of the Required Purchasers or all of Purchasers, as applicable,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all Purchasers. 




     9.5
Non-Reliance on Agent and Other Purchasers. Each Purchaser expressly
acknowledges that neither Agent, nor any of its officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by Agent or hereafter taken, including, without
limitation, any review of the affairs of the Middleby Companies, shall be deemed
to constitute any representation or warranty by Agent. Each Purchaser represents
and warrants to Agent that it has and will, independently and without reliance
upon Agent or any other Purchaser and based on such documents and information as
it has deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, prospects, financial and other conditions and
creditworthiness of the Middleby Companies and made its own decision to enter
into this Agreement. 




     9.6
Agent in its Individual Capacity. Agent, and each of its Affiliates may
make loans to, purchase securities from, provide services to, accept deposits
from and generally engage in any kind of business with the Middleby Companies or
any Affiliate of the Middleby Companies as though Agent were not Agent
hereunder. 




     9.7
Successor Agent. Agent may, upon 45 days’ notice to the Loan Parties
and Purchaser, and Agent will, upon the direction of the Required Purchasers
(other than Agent, in its individual capacity), resign as Agent. If Agent shall
resign, then the Required Purchasers during such 15-day period shall appoint a
successor Agent and if the Required Purchasers direct Agent to resign, such
direction shall include an appointment of a successor Agent. If for any reason
no successor Agent is appointed by the Required Purchasers during such 15-day
period, then effective upon the expiration of such 15-day period, Purchasers
shall perform all of the duties of Agent hereunder and the Company shall make
all payments in respect of the Notes directly to the applicable Purchaser and
for all purposes shall deal directly with Purchasers. After any retiring
Agent’s resignation hereunder as Agent, the provisions of this Article
9 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Agent under this Agreement. 



51













	






     9.8 Collections
and Disbursements. 










	 	     (a)
Agent will have the right to collect and receive all payments of the Notes, and to
collect and receive all reimbursements due hereunder, together with all fees, charges or
other amounts due under this Agreement and the other Purchase Documents with regard to
the Notes, and Agent will remit to each Purchaser, according to its pro rata percentage,
all such payments actually received by Agent (other than pursuant to the Fee Letter) in
accordance with the settlement procedures established from time to time. Settlements
shall occur on such dates as Agent may elect in its sole discretion, but which shall be
no later than two (2) Business Days following receipt thereof. 






	 	     (b)
If any such payment received by Agent is rescinded or otherwise required to be returned
for any reason at any time, whether before or after termination of this Agreement or the
other Purchase Documents, each Purchaser will, upon written notice from Agent, promptly
pay over to Agent its pro rata percentage of the amounts so rescinded or returned,
together with interest and other fees thereon so rescinded or returned. 






	 	     (c)
All payments by Agent and Purchasers to each other hereunder shall be in immediately
available funds. Agent will at all times maintain proper books of accounts and records
reflecting the interest of each Purchaser in the Notes, in a manner customary to Agent’s
keeping of such records, which books and records shall be available for inspection by
each Purchaser at reasonable times during normal business hours, at such Purchaser’s
sole expense. Agent may treat the payees of any Note as the holder thereof until written
notice of the transfer thereof shall have been received by Agent in accordance with Section 6.3 hereof.
In the event that any Purchaser shall receive any payment in reduction of the Notes in an
amount greater than its applicable pro rata percentage in respect of obligations to
Purchaser evidenced hereby (including, without limitation amounts obtained by reason of
setoffs) such Purchaser shall hold such excess in trust for Agent (on behalf of all other
Purchasers) and shall promptly remit to Agent such excess amount so that the amounts
received by each Purchaser hereunder shall at all times be in accordance with its
applicable pro rata percentage. If, however, any Purchaser that has received any such
excess amount fails to remit such amount to the Agent, the Agent shall reallocate the
amounts paid on the next payment date to each Purchaser so that, after giving effect to
such payments, the pro rata obligations owed by the Loan Parties to each Purchaser shall
be in an amount equal to the pro rata amount owed by the Loan Parties before the date of
the payment of such excess amount. In no event shall any Purchaser be deemed to have a
participation or other right in, to or against any other Purchaser’s Note as a
result of the payment of any excess amount. 






	



     9.9
Reporting. During the term of this Agreement, Agent will promptly furnish
each Purchaser with copies of all notices and financial statements of the
Middleby Companies required to be delivered or obtained hereunder and such other
financial statements and reports and other information in Agent’s
possession as any Purchaser may reasonably request. Agent will immediately
notify Purchasers when it receives actual knowledge of any Event of Default
under the Purchase Documents. 



52













	






     9.10
Consent of Purchasers. 










	 	     (a)
Except as expressly provided herein, Agent shall have the sole and exclusive right to
service, administer and monitor the Notes and the Purchase Documents related thereto,
including, without limitation, the right to exercise all rights, remedies, privileges and
options under this Agreement and under the other Purchase Documents, including, without
limitation, the credit judgment with respect to the purchasing of the Notes and the
determination as to the basis on which and extent to which purchases of Notes may be
made. 






	 	     (b)
Notwithstanding anything to the contrary contained in Section 9.10(a) above,
Agent shall not without the prior written consent of all Purchasers then holding Notes:
(i) extend any payment date under the Notes, (ii) reduce any interest rate
applicable to any of the Notes or any fee payable to Purchasers hereunder, (iii) waive
any Event of Default under Section 8.1(a) hereof, (iv) compromise or
settle all or a portion of the Indebtedness under the Notes, (v) release any obligor
from the Indebtedness under the Notes except in connection with full payment and
satisfaction of all Indebtedness under the Notes, (vi) amend the definition of
Required Purchasers, or (vii) amend this Section 9.10(b). 






	 	     (c)
Notwithstanding anything to the contrary contained in Section 9.10(a) above,
and subject to any applicable limitation set forth in Section 9.10(b) above,
Agent shall not, without the prior written consent of Required Purchasers: (i) waive
any Event of Default; (ii) consent to any Middleby Company’s taking any action
that, if taken, would constitute an Event of Default under this Agreement or under any of
the other Purchase Documents; or (iii) amend or modify or agree to an amendment or
modification of this Agreement or other Purchase Documents. 






	 	     (d)
After an acceleration of the Indebtedness, Agent shall have the sole and exclusive right,
after consultation (to the extent reasonably practicable under the circumstances) with
all Purchasers and, unless otherwise directed in writing by Required Purchasers, to
exercise or refrain from exercising any and all rights, remedies, privileges and options
under this Agreement or the other Purchase Documents and available at law or in equity to
protect the rights of Agent and Purchaser and collect the Indebtedness under the Notes,
including, without limitation, instituting and pursuing all legal actions brought against
any Middleby Company or to collect the Indebtedness under the Notes, or defending any and
all actions brought by any Middleby Company or other Person; or incurring expenses or
otherwise making expenditures to protect the collateral, the Notes or Agent’s or any
Purchaser’s rights or remedies. 






	



     9.11
This Article Not Applicable to Loan Parties. This Article 9 is included
in this Agreement solely for the purpose of determining certain rights as
between Agent and Purchasers and does not create, nor shall it give rise to, any
rights in or obligations on the part of the Loan Parties and all rights and
obligations of the Loan Parties (other than as specifically set forth herein)
under this Agreement shall be determined by reference to the provisions of this
Agreement other than this Article 9. 



53













	






ARTICLE 10 



PUT OPTION 




     10.1
Grant of Option. Parent hereby grants to each holder of Subject
Securities (a “Holder”) an option to sell to Parent, and Parent is
obligated to purchase from each Holder under such option (the “Put
Option”), all (or such portion as is designated by any such Holder pursuant
to Section 10.3 below) of the Subject Securities then owned by such
Holder. The Put Option will be effective at any time and from time to time after
the earliest to occur of (a) March 15, 2007 or (b) a Change of
Control. 




     10.2
Put Price. In the event that any Holder exercises the Put Option, the
price (the “Put Price”) to be paid to each such Holder pursuant
to this Agreement will be the sum of the amount determined by multiplying the
number of shares of Subject Securities (or, in the case of any Warrant, the
number of shares of Underlying Common Stock into which such Warrant is
convertible) for which the Put Option is being exercised (collectively, the
“Put Shares”) by the Fair Market Value therefor (or, in the
case of any Subject Securities that are issuable Warrant Shares, by the
difference between the Fair Market Value therefor and the exercise price
therefor). 




     10.3
Exercise of Put Option. If any Holder elects to exercise its Put Option,
such Holder shall give notice to Parent and each other Holder of such
Holder’s election to exercise the Put Option, specifying, among other
things, the date on which the Put Option Closing (as hereinafter defined) shall
occur, which date shall not be less than 30 days after the date of such notice.
If a Holder receives such notice of another Holder’s exercise of such other
Holder’s Put Option and the Put Option of the Holder receiving such notice
is effective pursuant to Section 10.1 hereof, the Holder receiving
such notice may elect to exercise its Put Option and designate a Put Option
Closing simultaneous with that of such other Holder. Parent will provide each
Holder desiring to exercise its Put Option with the name and address of each
other Holder. Notwithstanding the foregoing, the right of each Holder to
exercise its Put Option shall be an individual and separate right, and the
exercise of any Put Option by any Holder shall not be conditioned upon the
exercise by any other Holder of its Put Option. 




     10.4
Certain Remedies. Subject to the following sentence, in the event that
Parent defaults on its obligation to purchase all or any portion of the Put
Shares upon exercise of the Put Option by any Holder (i.e., Parent fails
to pay the Put Price in cash or, at a time when permitted, by the issuance of a
Senior Put Note), the Holder may elect, in addition to any other rights or
remedies of such Holder, either to (a) rescind its exercise of the Put
Option, in which case the Put Option will continue in full force and effect, or
(b) receive a promissory note that (i) shall be in form and substance
satisfactory to such Holder in its sole discretion, (ii) shall be duly
executed by the Parent and payable to such Holder in the principal amount of the
Put Price, (iii) shall be guaranteed by each other Middleby Company,
(iv) shall bear interest on the outstanding principal thereof at a rate per
annum equal to 17.5%, (v) shall be payable on demand and (vi) may be
subject to repayment, in part or in full, at any time and from time to time
without premium or penalty of any kind. If any Holder elects to exercise its Put
Option at a time that all or any portion of the Put Price is not permitted to be
paid in cash pursuant to the Senior Credit Agreement, the Holder shall accept a
Senior Default Put Note with respect to that portion of the Put Price which the
Company is not then permitted to dividend or otherwise distribute to Parent
under the Senior Credit Agreement to permit the Parent to pay the Put Price in
cash. 



54













	






     10.5
Put Option Closing. Each closing for the purchase and sale of the Put
Shares as to which any Holder has notified Parent of such Holder’s
intention to exercise the Put Option (a “Put Option Closing”)
shall occur on the date specified in such notice of exercise. At any Put Option
Closing, to the extent applicable, the Holder of the Put Shares will deliver the
certificate or certificates evidencing the Put Shares being purchased, duly
endorsed in blank. In consideration therefor, Parent will deliver to the Holder
the Put Price, which will be payable, at the Company’s option, (a) in cash
by wire transfer of immediately payable funds to an account designated by such
Holder, or (b) if at the time of the Put Option Closing, the Senior Leverage
Ratio is not greater than 2.5 to 1.0 for the Computation Period then ended, by
the issuance of a Senior Put Note. 




ARTICLE 11 



PREEMPTIVE RIGHTS 




     11.1
Limited Preemptive Rights. If after the date of this Agreement, Parent
authorizes the issuance and sale of any shares of capital stock or any
securities containing options or rights to acquire any shares of capital stock
(other than in connection with the exercise of the Warrants, an underwritten
public offering or the issuance of such securities in exchange for the
securities or assets of another Person as a part of a merger or acquisition (or
other similar transaction) of a business as a going concern) at any time that
any Purchaser holds any Common Stock of Parent or Warrants, Parent will offer to
sell to each Purchaser a portion of such securities equal to the percentage
determined by dividing (a) the number of shares of Common Stock of Parent
and Underlying Common Stock (without duplication) then held by such Purchaser by
(b) the number of shares of Common Stock of Parent then outstanding (on a fully
diluted basis). For purposes of clause (b) above, a share of Common Stock
of Parent acquirable upon exercise or conversion of options or rights to acquire
any shares of Common Stock of Parent shall be deemed outstanding only if the
applicable conversion price, exercise price or other acquisition price is equal
to or less than the then current Market Price of a share of Common Stock of
Parent. Each Purchaser will be entitled to (x) purchase such stock or securities
at the same price and on the same terms as such stock or securities are to be
offered to any other Person and (y) receive written notice of such proposed sale
from Parent describing in reasonable detail the stock or securities being so
offered, the purchase price thereof, the payment terms and each Purchaser’s
percentage allotment. Each Purchaser will have 30 Business Days from the date of
receipt of any such notice and such other information as such Purchaser may
reasonably request to facilitate its investment decision, to agree to purchase
up to its respective pro rata share of the new stock or securities being so
offered for the price (valued at Fair Market Value for any noncash
consideration) and upon the terms specified in such notice by giving written
notice to the Parent stating the quantity of such new stock or securities that
such Purchaser has agreed to purchase. Upon the expiration of such period,
Parent will be free to sell such stock or securities which Purchasers have not
elected to purchase during the 180-days following such expiration on terms and
conditions no more favorable to purchasers thereof than those offered to
Purchasers. Any stock or securities offered or sold by Parent after such 180-day
period must be reoffered to each Purchaser pursuant to the terms of this
Section 11.1. Any stock or securities purchased by a Purchaser from
Parent pursuant to this Section 11.1 shall, upon such purchase and
thereafter be deemed to be Securities and Registrable Securities for all
purposes of this Agreement. 



55













	






ARTICLE 12 



REGISTRATION RIGHTS 




     12.1
Piggyback Registrations. 










	 	     (a)
Whenever Parent proposes to register any of its securities under the Securities Act and
the registration form to be used may be used for the registration of Registrable
Securities (a “Piggyback Registration”), Parent will give prompt written notice
(in any event within 20 Business Days after its receipt of notice of any exercise of
demand registration rights other than under this Agreement) to all holders of Registrable
Securities with respect of the proposed offering at least 20 Business Days before the
initial filing with the SEC of such registration statement, and offer to include in such
filing such Registrable Securities as any such holder may request. Each such holder of
Registrable Securities desiring to have Registrable Securities registered under this Section 12.1 shall
advise Parent in writing within 20 Business Days after the date of receipt of such notice
from Parent, setting forth the amount of such Registrable Securities for which
registration is requested. Parent shall thereupon include in such filing the number of
Registrable Securities for which registration is so requested, and shall use its best
efforts to effect registration under the Securities Act of such Registrable Securities. 






	 	     (b)
The registration expenses of the holders of Registrable Securities will be paid by Parent
in all Piggyback Registrations to the extent provided in Section 12.6 hereof. 






	 	     (c)
If a Piggyback Registration is an underwritten primary registration on behalf of holders
of Parent’s securities, and the managing underwriters advise Parent in writing that
in their opinion the number of securities requested to be included in such registration
exceeds the number which can be sold in an orderly manner in such offering within a price
range acceptable to Parent, Parent will include in such registration: (i) first, the
securities Parent proposes to sell, and (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of the other
securities requested to be included in such registration, provided that no holders of
such securities will have priority for inclusion in such registration over the holders of
the Registrable Securities. 






	 	     (d)
If a Piggyback Registration is an underwritten secondary registration on behalf of
holders of Parent’s securities, and the managing underwriters advise Parent in
writing that in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in an orderly manner in such offering
within a price range acceptable to the holders initially requesting such registration,
Parent will include in such registration: (i) first, the securities the holders initially
requesting such registration propose to sell, and (ii) second, the Registrable Securities
requested to be included in such registration, pro rata among the holders of other
securities requested to be included in such registration, provided that no holders of
such securities will have priority for inclusion in such registration over the holders of
the Registrable Securities. 






	


56













	












	 	     (e)
If any Piggyback Registration is an underwritten offering, the selection of investment
banker(s) and manager(s) for the offering shall be selected by the Parent. 






	 	     (f)
If Parent has previously filed a registration statement with respect to Registrable
Securities pursuant to this Section 12.1, and if such previous registration
has not been withdrawn or abandoned, Parent will not file or cause to be effected any
other registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities Act
(except on Form S-8 or any successor form), whether on its own behalf or at the request
of any holder or holders of such securities, until a period of at least 90 days has
elapsed from the effective date of such previous registration. 






	



     12.2
Demand Registration Rights. 










	 	     (a)
If, at any time, Parent receives a written request by the holders of a majority of the
Registrable Securities to effect the registration under the Securities Act of such shares
of Common Stock of Parent, Parent shall follow the procedures described in this Section 12.2.
Within 20 days of its receipt of such request, Parent shall give written notice of such
proposed registration (a “Demand Registration”) to all holders of Registrable
Securities, and thereupon, Parent shall, as expeditiously as possible, use its best
reasonable efforts to effect the registration on a form of general use under the
Securities Act of the shares it has been requested to register in such initial request
and in any response to such notice given to Parent within 20 days after Parent’s
giving of such notice; provided, however, that Parent shall not be required
to effect more than one (1) Demand Registration pursuant to this Section 12.2. 






	 	     (b)
Parent may not be required to effect a registration pursuant to this Section 12.2 during
the first 180 days after the effective date of any registration statement filed by Parent
under Section 12.1 hereof if the holders of Registrable Securities requesting
registration have been afforded the opportunity to register in such registration all or a
majority of their Registrable Securities. 






	 	     (c)
Parent may include in any registration under this Section 12.2 any other
shares of Common Stock of Parent (including issued and outstanding shares of stock as to
which the holders thereof have contracted with Parent for “piggyback” registration
rights) so long as the inclusion in such registration of such shares will not, in the
opinion of the managing underwriter of the shares of the stockholder or stockholders
first demanding registration (if the offering is underwritten), interfere with the
successful marketing in accordance with the intended method of sale or other disposition
of all the stock sought to be registered by such demanding stockholder or stockholders
pursuant to this Section 12.2. 






	


57













	






     12.3
S-3 Demand Registration Rights. In addition to the registration rights
provided in Sections 12.1 and 12.2 above, if at any time Parent is
eligible to use SEC Form S-3 (or any successor form) for registration of
secondary sales of Registrable Securities, any holder of Registrable Securities
may request in writing that Parent register shares of Registrable Securities on
such form. Upon receipt of such request, Parent will promptly notify all holders
of Registrable Securities in writing of the receipt of such request and each
such Holder may elect (by written notice sent to Parent within 30 days of
receipt of Parent’s notice) to have its Registrable Securities included in
such registration pursuant to this Section 12.3. Thereupon, Parent
will, as soon as practicable, use its best efforts to effect the registration on
Form S-3 of all Registrable Securities that Parent has so been requested to
register by such holder for sale. Parent will use its best efforts to qualify
and maintain its qualification for eligibility to use Form S-3 for such
purposes. 




     12.4
Holdback Agreements. 










	 	     (a)
Each holder of Registrable Securities agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) of equity securities of Parent, or
any securities convertible into or exchangeable or exercisable for such securities,
during the seven (7) days prior to and the 90-day period (or such longer period, not to
exceed 90 additional days, as the managing underwriter shall require) beginning on the
effective date of any underwritten Piggyback Registration in which Registrable Securities
are included or any Demand Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering otherwise
agree. 






	 	     (b)
Parent agrees (i) not to effect any public sale or distribution of its equity securities,
or any securities convertible into or exchangeable or exercisable for such securities,
during the seven (7) days prior to and during the 90-day period beginning on the
effective date of or any underwritten Piggyback Registration or Demand Registration
(except as part of such underwritten registration or pursuant to registrations on Form
S-8 or any successor form), unless the underwriters managing the registered public
offering otherwise agree, and (ii) to the extent possible, to cause each holder of
at least 10% (on a fully-diluted basis) of its Common Stock of Parent, or any securities
convertible into or exchangeable or exercisable for Common Stock, purchased from Parent
at any time after the date of this Agreement (other than in a registered public offering)
to agree not to effect any public sale or distribution (including sales pursuant to Rule
144) of any such securities during such period (except as part of such underwritten
registration, if otherwise permitted), unless the underwriters managing the registered
public offering otherwise agree. 






	



     12.5
Registration Procedures. Whenever the holders of Registrable Securities
have requested that any Registrable Securities be registered pursuant to this
Agreement, Parent will use reasonable efforts to effect the registration and the
sale of such Registrable Securities in accordance with the intended method of
disposition thereof (including the registration of Warrants held by a holder of
Registrable Securities requesting registration as to which Parent has received
reasonable assurances that only Registrable Securities will be distributed to
the public), and pursuant thereto Parent will as expeditiously as possible: 



58













	












	 	     (a)
prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use reasonable efforts to cause such registration statement to become
effective (provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, Parent will furnish to the counsel selected by the
holders of a majority of the Registrable Securities covered by such registration
statement copies of all such documents proposed to be filed, which documents will be
subject to the review of such counsel); 






	 	     (b)
furnish to each seller of Registrable Securities such number of copies of such
registration statement, each amendment and supplement thereto, the prospectus included in
such registration statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such seller; 






	 	     (c)
use reasonable efforts to register or qualify such Registrable Securities under such
other securities or blue sky laws of such jurisdictions as any seller of Registrable
Securities reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller (provided that
Parent will not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdictions, (iii) consent to general service of
process in each such jurisdiction or (iv) undertake such actions in any jurisdiction
other than the states of the United States of America and the District of Columbia); 






	 	     (d)
notify each seller of such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening of any
event as a result of which the prospectus included in such registration statement
contains an untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading, and, at the request of any such seller, Parent will
prepare a supplement or amendment to such prospectus so that, as thereafter delivered to
purchasers of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make the statements
therein not misleading; 






	 	     (e)
use its best efforts to cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by Parent are then listed and, if
not so listed, to be listed on the NASD automated quotation system and, if listed on the
NASD automated quotation system, use its best efforts to secure designation of all such
Registrable Securities covered by such registration statements as a NASDAQ “national
market system security” within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure NASDAQ authorization for such Registrable
Securities and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable Securities with
the NASD; 






	


59













	












	 	     (f)
provide a transfer agent and registrar for all such Registrable Securities not later than
the effective date of such registration statement;






	 	     (g)
enter into such customary agreements (including underwriting agreements in customary
form) and take all such other actions as the holders of a majority of the Registrable
Securities being sold or the underwriters, if any, reasonably request in order to
expedite or facilitate the disposition of such Registrable Securities (including, without
limitation, effecting a stock split or a combination of shares); 






	 	     (h)
make available for inspection by any seller of Registrable Securities, any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and properties of Parent, and
cause Parent’s officers, directors, employees and independent accountants to supply
all information reasonably requested by any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement; 






	 	     (i)
otherwise use its best efforts to comply with all applicable rules and regulations of the
SEC, and make available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve months beginning with the first
day of Parent’s first full calendar quarter after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of Section 11(a)
of the Securities Act and Rule 158 thereunder; 






	 	     (j)
permit any holder of Registrable Securities which holder, in its sole and exclusive
judgment, might be deemed to be an underwriter or a controlling person of Parent, to
participate in the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to Parent in writing, which in the
reasonable judgment of such holder and its counsel should be included; and 






	 	     (k)
in the event of the issuance of any stop order suspending the effectiveness of a
registration statement, or of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Common Stock of Parent included in such
registration statement for sale in any jurisdiction, Parent will use its reasonable best
efforts promptly to obtain the withdrawal of such order. If any such registration or
comparable statement refers to any holder by name or otherwise as the holder of any
securities of Parent and if in its sole and exclusive judgment such holder is or might be
deemed to be a controlling person of Parent, such holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to such holder
and presented to Parent in writing, to the effect that the holding by such holder of such
securities is not to be construed as a recommendation by such holder of the investment
quality of Parent’s securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements of Parent, (ii) in
the event that such reference to such holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the
reference to such holder; provided that with respect to this clause (ii) such holder
shall furnish to Parent an opinion of counsel to such effect, which opinion and counsel
shall be reasonably satisfactory to Parent. 






	


60













	






     12.6
Registration Expenses. All expenses incident to Parent’s performance
of or compliance with this Article 12, including without limitation all
registration and filing fees, fees and expenses of compliance with securities or
blue sky laws, printing expenses, messenger and delivery expenses, and fees and
disbursements of counsel for Parent and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by Parent (all such expenses, excluding underwriting discounts
and commissions, being herein called “Registration Expenses”),
will be borne by Parent. Parent will bear the cost of one set of counsel for the
Holders of Registrable Securities participating in any Piggyback Registration or
Demand Registration. All underwriting discounts and commissions will be borne by
the seller of the securities sold pursuant to the registration. 





     12.7
Indemnification. 










	 	     (a)
Parent agrees to indemnify, to the extent permitted by law, each holder of Registrable
Securities, its officers and directors and each Person who controls such holder (within
the meaning of the Securities Act) against all losses, claims, damages, liabilities and
expenses caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any amendment thereof
or supplement thereto or any omission or alleged omission of a material fact required to
be stated therein or necessary to make the statements therein not misleading, except
insofar as the same are caused by or contained in any information furnished to Parent by
such holder for use therein or by such holder’s failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto after
Parent has furnished such holder with a sufficient number of copies of the same. In
connection with an underwritten offering, Parent will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within the meaning
of the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities. 






	 	     (b)
In connection with any registration statement in which a holder of Registrable Securities
is participating, each such holder will furnish to Parent in writing such information and
affidavits as Parent reasonably requests for use in connection with any such registration
statement or prospectus and, to the extent permitted by law, will indemnify Parent, its
directors and officers and each Person who controls Parent (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses resulting
from any untrue or alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein not misleading but only to the
extent that such untrue statement or omission is contained in any information or
affidavit so furnished in writing by such holder; 






	 	     (c)
Any Person entitled to indemnification hereunder will (i) give prompt written notice to
the indemnifying party of any claim with respect to which it seeks indemnification and
(ii) unless in such indemnified party’s reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed, the
indemnifying party will not be subject to any liability for any settlement made by the
indemnified party without its consent (but such consent will not be unreasonably
withheld). An indemnifying party who is not entitled to, or elects not to, assume the
defense of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party a conflict of interest
may exist between such indemnified party and any other of such indemnified parties with
respect to such claim. 






	


61













	












	 	     (d)
The indemnification provided for under this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified party or
any officer, director or controlling Person of such indemnified party and will survive
the transfer of securities. Parent also agrees to make such provisions, as are reasonably
requested by any indemnified party, for contribution to such party in the event Parent
‘s indemnification is unavailable for any reason. 






	



     12.8
Participation in Underwritten Registrations. No Person may participate in
any registration hereunder which is underwritten unless such Person (a) agrees
to sell such Person’s securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements; provided that no holder of
Registrable Securities included in any underwritten registration shall be
required to make any representations or warranties to Parent or the underwriters
other than representations and warranties regarding such holder and such
holder’s intended method of distribution. 




ARTICLE 13 



MISCELLANEOUS 




     13.1
Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
except that (a) the Loan Parties may not assign or transfer their rights
hereunder or any interest herein or delegate their duties hereunder and
(b) Purchasers shall have the right to assign their rights hereunder and
under the Securities in accordance with Article 6 hereof. 




     13.2
Modifications and Amendments. The provisions of this Agreement may be
modified, waived or amended, but only by a written instrument signed by each of
the Loan Parties to be bound thereby, and to the extent such modification,
amendment or waiver relates (a) to the Notes, such instrument must be
executed by Agent on behalf of Purchasers upon satisfaction of the conditions
set forth in Section 9.10 and (b) to the Warrants or the
Underlying Shares, such instrument must be executed by the holders of a 75% of
the Warrant Shares. 



62













	






     13.3
No Implied Waivers; Cumulative Remedies; Writing Required. No delay or
failure in exercising any right, power or remedy hereunder shall affect or
operate as a waiver thereof; nor shall any single or partial exercise thereof or
any abandonment or discontinuance of steps to enforce such a right, power or
remedy preclude any further exercise thereof or of any other right, power or
remedy. The rights and remedies hereunder are cumulative and not exclusive of
any rights or remedies that Agent or Purchasers or any holder of Notes, Warrants
or Warrant Shares would otherwise have. Any waiver, permit, consent or approval
of any kind or character of any breach or default under this Agreement or any
such waiver of any provision or condition of this Agreement must be in writing,
satisfy the conditions set forth in Section 9.10 hereof and shall be
effective only to the extent in such writing specifically set forth. 




     13.4
Reimbursement of Expenses. The Loan Parties upon demand shall (or shall
cause the other Middleby Companies to) pay or reimburse Agent and Purchasers for
all reasonable out-of-pocket fees and expenses incurred or payable by Agent or
Purchasers (including, without limitation, reasonable fees and expenses of
special counsel for Agent and Purchasers), from time to time (a) arising in
connection with the negotiation, preparation and execution of this Agreement,
the Notes, the other Purchase Documents and all other instruments and documents
to be delivered hereunder or thereunder or arising in connection with the
transactions contemplated hereunder or thereunder, (b) relating to any
amendments, waivers or consents pursuant to the provisions hereof or thereof,
and (c) arising in connection with the enforcement of this Agreement or
collection of the Notes. 




     13.5
Holidays. Whenever any payment or action to be made or taken hereunder or
under the Notes shall be stated to be due on a day which is not a Business Day,
such payment or action shall be made or taken on the next following Business
Day, and such extension of time shall be included in computing interest or fees,
if any, in connection with such payment or action. 




     13.6
Notices. All notices and other communications given to or made upon any
party hereto in connection with this Agreement shall, except as otherwise
expressly herein provided, 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: 



     to
any Loan Party: 










	 	
                  The Middleby Corporation

                  1400 Toastmaster Drive

                  Elgin, Illinois  60120

                  Attn:  Chief Financial Officer

                  Telecopier:  (817) 741-0015







	


63













	





     with a
copy to: 










	 	
                  Skadden, Arps, Slate, Meagher &  Flom LLP

                  4 Times Square

                  New York, NY 10036-6522

                  Attn: Blaine V. Fogg

                  Telecopier: (212) 735-2000








	


     to
Agent: 










	 	
                  American Capital Financial Services, Inc.

                  2 Bethesda Metro Center, 14th Floor

                  Bethesda, Maryland  20814

                  Attn:  Compliance Officer

                  Telecopier:  (301) 654-6714







	


     with a
copy to: 










	 	
                  Arnold  &  Porter

                  555 12th Street, N.W.

                  Washington, D.C. 20004

                  Attn:  Samuel A. Flax, Esq.

                  Telecopier:  (202) 942-5999







	


     and to: 










	 	
                  American Capital Strategies, Ltd.

                  311 South Wacker Drive

                  Suite 4550

                  Chicago, Illinois  60606

                  Attn:  Gordon O’Brien

                  Telecopier:  (312) 697-4917







	


     and to: 










	 	
                  Patton Boggs LLP
                  2001 Ross Avenue, Suite 3000
                  Dallas, Texas  75201
                  Attn:  R. Jeffrey Cole, Esq.
                  Telecopier:  (214) 758-1550







	


     to
Purchasers: 










	 	
As
set forth on Annex A






	


or in accordance with any subsequent
written direction from the recipient party to the sending party. All such notices and
other communications shall, except as otherwise expressly herein provided, be effective
upon delivery if delivered by courier or overnight parcel express service; in the case of
certified mail, three (3) Business Days after the date sent; or in the case of telecopy,
when received.  



64













	






     13.7
Survival. All representations, warranties, covenants and agreements of
the Middleby Companies contained herein or made in writing in connection
herewith shall survive the execution and delivery of this Agreement and the
purchase of the Notes and the Warrants and shall continue in full force and
effect so long as any Note or Warrant is outstanding and until payment in full
of all of the Loan Parties’ obligations hereunder or thereunder. All
obligations relating to indemnification hereunder shall survive any termination
of this Agreement and shall continue for the length of any applicable statute of
limitations. 




     13.8
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF ILLINOIS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES. 




     13.9
Jurisdiction, Consent to Service of Process. 










	 	     (a)
THE LOAN PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMIT, FOR THEMSELVES AND THEIR
PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF ANY ILLINOIS STATE COURT OR FEDERAL COURT
OF THE UNITED STATES OF AMERICA SITTING IN THE STATE OF ILLINOIS, AND ANY APPELLATE COURT
FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR ANY OTHER PURCHASE DOCUMENT, OR FOR RECOGNITION OR ENFORCEMENT OF
ANY JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES THAT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ALL CLAIMS IN RESPECT OF ANY SUCH
ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH ILLINOIS OR, TO THE EXTENT
PERMITTED BY LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
NOTHING IN THIS AGREEMENT SHALL AFFECT ANY RIGHT THAT AGENT AND PURCHASERS MAY OTHERWISE
HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE NOTES OR ANY OTHER
PURCHASE DOCUMENT AGAINST THE LOAN PARTIES OR THEIR PROPERTIES IN THE COURTS OF ANY
JURISDICTION. 






	 	     (b)
THE LOAN PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT THEY
MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE NOTES OR ANY OTHER PURCHASE DOCUMENT IN ANY ILLINOIS OR FEDERAL COURT.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING
IN ANY SUCH COURT. 






	


65













	












	 	     (c)
EACH PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION 13.6 HEREOF. NOTHING IN THIS AGREEMENT WILL
AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW. 






	



     13.10
Jury Trial Waiver. THE LOAN PARTIES HEREBY IRREVOCABLY WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING (I) TO ENFORCE OR DEFEND ANY RIGHTS
UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR (II) ARISING FROM ANY DISPUTE OR
CONTROVERSY IN CONNECTION WITH OR RELATED TO THIS AGREEMENT AND AGREES THAT ANY
SUCH ACTION OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY. 




     13.11
Severability. 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 is held to be prohibited by or invalid
under applicable law in any jurisdiction, such provision shall be ineffective
only to the extent of such prohibition or invalidity, without invalidating any
other provision of this Agreement. 




     13.12
Headings. Article, section and subsection headings in this Agreement are
included for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose. 




     13.13
Indemnity. The Loan Parties hereby agree to indemnify, defend and hold
harmless Agent and Purchasers and their officers, directors, employees, agents
and representatives, and their respective successors and assigns in connection
with any losses, claims, damages, liabilities and expenses, including reasonable
attorneys’ fees, to which Agent or any Purchaser may become subject (other
than as a result of the gross negligence or willful misconduct of any such
Person), insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or by reason of any investigation, litigation or
other proceedings related to or resulting from any act of, or omission by, the
Loan Parties or their Affiliates or any officer, director, employee, agent or
representative of the Loan Parties or their Affiliates with respect to the
Transactions, the Notes, Charter Documents, the Bylaws or any agreements entered
into in connection with any such agreements, instruments or documents and to
reimburse Agent and Purchasers and each such Person and Affiliate, upon demand,
for any legal or other expenses incurred in connection with investigating or
defending any such loss, claim, damage, liability, expense or action. To the
extent that the foregoing undertakings may be unenforceable for any reason, the
Loan Parties agree to make the maximum contribution to the payment and
satisfaction of indemnified liabilities set forth in this
Section 13.13 which is permissible under applicable law. 



66













	






     13.14
Environmental Indemnity. The Loan Parties, and their successors and
assigns, hereby release and discharge, and agree to defend, indemnify and hold
harmless, Agent, Purchasers and their Affiliates (including their partners,
subsidiaries, customers, guests, and invitees, and the successors and assigns of
all of the foregoing, and their respective officers, employees and agents) from
and against any and all losses, claims, damages, liabilities and expenses,
including reasonable attorneys’ fees, to which Agent or any Purchaser may
become subject (other than as a result of the gross negligence or willful
misconduct of any such Person), insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or by reason of any
Environmental Liabilities, whenever and by whomever asserted, to the extent that
such Environmental Liabilities are based upon, or otherwise relate to:
(a) any Condition at any time in, at, on, under, a part of, involving or
otherwise related to the Properties and Facilities (including any of the
properties, materials, articles, products, or other things included in or
otherwise a part of the Properties and Facilities); (b) any action or
failure to act of any Person, including any prior owner or operator of the
Properties and Facilities (including any of the properties, materials, articles,
products, or other things included in or otherwise a part of the Properties and
Facilities), involving or otherwise related to the Properties and Facilities or
operations of the Middleby Companies; (c) the Management of any Pollutant,
material, article or product (including Management of any material, article or
product containing a Pollutant) in any physical state and at any time, involving
or otherwise related to the Properties and Facilities or any property covered by
clause (d) (including Management either from the Properties and
Facilities or from any property covered by clause (d), and
Management to, at, involving or otherwise related to the Properties and
Facilities or any property covered by clause (d)); (d) conditions,
and actions or failures to act, in, at, on, under, a part of, involving or
otherwise related to any property other than the Properties and Facilities,
which property was, at or prior to the Closing Date, (i) acquired, held,
sold, owned, operated, leased, managed, or divested by, or otherwise associated
with, (A) the Middleby Companies, (B) any of the Middleby Companies’
Affiliates, or (C) any predecessor or successor organization of those
identified in (A) or (B); or (ii) engaged in any tolling, contract
manufacturing or processing, or other similar activities for, with, or on behalf
of the Middleby Companies; (e) any violation of or noncompliance with or
the assertion of any Lien under the Environmental Laws, (f) the presence of
any toxic or hazardous substances, wastes or contaminants on, at or from the
past and present Properties and Facilities, including, without limitation, human
exposure thereto; (g) any spill, release, discharge or emission affecting
the past and present Properties and Facilities, whether or not the same
originates or emanates from such Properties and Facilities or any contiguous
real estate, including, without limitation, any loss of value of such Properties
and Facilities as a result thereof; or (h) a misrepresentation in any
representation or warranty or breach of or failure to perform any covenant made
by the Loan Parties in this Agreement. This indemnity and agreement to defend
and hold harmless shall survive any termination or satisfaction of the Notes or
the sale, assignment or foreclosure thereof or the sale, transfer or conveyance
of all or part of the past and present properties and facilities or any other
circumstances which might otherwise constitute a legal or equitable release or
discharge, in whole or in part, of the Company under the Notes. 




     13.15
Counterparts. This Agreement may be executed in any number of
counterparts and by either party hereto on separate counterparts, each of which,
when so executed and delivered, shall be an original, but all such counterparts
shall together constitute one and the same instrument. 



67













	






     13.16
Integration. This Agreement and the other Purchase Documents set forth
the entire understanding of the parties hereto with respect to all matters
contemplated hereby and supersede all previous agreements and understandings
among them concerning such matters. No statements or agreements, oral or
written, made prior to or at the signing hereof, shall vary, waive or modify the
written terms hereof. 




     13.17
Subordination. THE OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN THE
MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT (THE
“SUBORDINATION AGREEMENT”), DATED AS OF DECEMBER 21, 2001, AMONG BANK
OF AMERICA, N.A., AS ADMINISTRATIVE AGENT FOR THE SENIOR LENDER, AGENT,
PURCHASERS, THE LOAN PARTIES, AND THE OTHER MIDDLEBY COMPANIES SIGNATORY THERETO
TO THE INDEBTEDNESS AND OTHER LIABILITIES OWED BY THE LOAN PARTIES UNDER AND
PURSUANT TO THE SENIOR CREDIT AGREEMENT, AND EACH RELATED “LOAN
DOCUMENT” (AS DEFINED THEREIN), AND EACH HOLDER HEREOF, BY ITS ACCEPTANCE
HEREOF, ACKNOWLEDGES AND AGREES TO BE BOUND BY THE PROVISIONS OF THE
SUBORDINATION AGREEMENT. 



     13.18
Conditional Warrant Determination 










	 	     (a)
Calculation of IRR. At or prior to the Determination Date, Agent shall provide the
Company with the calculation of the IRR received by the Holders, collectively, with
respect to the Notes and Warrants (the “Holders’ IRR”), assuming that the
Warrants are exercisable into 5.5% of the issued and outstanding Common Stock of Parent
on a fully diluted basis at the time of Closing. For a period of ten (10) Business Days
following such determination, Agent shall provide the Parent with any information
reasonably requested by the Parent in connection with the Holders’ IRR. If the Parent
disputes Agent’s calculation of Holders’ IRR, then the Parent shall notify Agent
of such dispute within ten (10) Business Days of receiving Agent’s calculations (the
“Parent Notice”). If the Parent fails to provide the Parent Notice, then Holders’ IRR
shall be deemed to be Holders’ IRR as originally determined by Agent. If the Parent
delivers the Parent Notice, then Agent shall have ten (10) Business Days following its
receipt of the Parent Notice, together with any information reasonably requested by the
Parent in connection with such calculation, to correct such error and provide the Parent
with a revised, and final determination of Holders’ IRR. 






	 	     (b)
Adjustment of Exercise Shares. Promptly, but in no event later than one (1)
Business Day, following the final determination of Holders’ IRR, the Agent shall
inform the Company of, and the Company shall confirm, the number of Exercise Shares
applicable to each Conditional Warrant. 






	 	     (c)
Costs and Expenses. Each of Agent and the Company shall bear its respective fees
and expenses with respect to the determination of the Holders’ IRR and the Exercise
Shares. 






	


[remainder of page
intentionally left blank; signature page follows] 



68













	





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










			LOAN PARTIES:


THE MIDDLEBY CORPORATION



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

       David B. Baker
       Vice President and Chief Financial Officer






			
MIDDLEBY MARSHALL INC.



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

       David B. Baker
       Vice President and Chief Financial Officer







			AGENT:


AMERICAN CAPITAL FINANCIAL SERVICES, INC.



By: /s/ Mark D. Schindel
       ——————————————

Name: Mark D. Schindel
Title: Vice President







			PURCHASERS:


AMERICAN CAPITAL STRATEGIES, LTD.



By: /s/ Mark D. Schindel
       ——————————————

Name: Mark D. Schindel
Title: Principal









	





ANNEXES 









	Annex A	Purchaser and Payment Information






	


SCHEDULES 









	
“Organizational Schedule”        

“Litigation Schedule”            

“Environmental Schedule”         

“Properties Schedule”            

“Intellectual Property Schedule” 

“Indebtedness to be Repaid”      

“Permitted Encumbrances Schedule”

“Permitted Investments Schedule”
	
Section 5.1(a)         

Section 5.1(j)         

Section 5.1(l)         

Section 5.1(q)         

Section 5.1(r)         

Schedule 7.2(a)(xi)    

Section 7.2(b)         

Section 7.2(h)







EXHIBITS 


	
EXHIBIT A    

EXHIBIT B-1  

EXHIBIT B-2  

EXHIBIT C    

EXHIBIT D    

EXHIBIT E    

	
                                               Form of Series A Note

                                               Form of Primary Warrant

                                               Form of Conditional Warrant

                                               Form of Stockholders Agreement

                                               Form of Compliance Certificate

                                               Form of Guaranty










	






                                                      ANNEX A

                                                        TO

                                        NOTE AND EQUITY PURCHASE AGREEMENT




Information
Relating to Purchasers










	I. 		INFORMATION
REGARDING PURCHASERS. 






	 	
         American Capital Strategies, Ltd. (“ACS”)

         2 Bethesda Metro Center

         14th Floor

         Bethesda, MD  20814







	II. 		PAYMENT
AND NOTICE INFORMATION. 






			(a) 		All
payments to Purchaser:






	 	If
by wire:





	 	
                           Account Name:  ACS Funding Trust I

                           Account #: 8601046967

                           Bank:  LaSalle National Bank, Chicago

                           ABA #: 071000505







	 	If
by mail:





	 	
                           ACS Funding Trust I

                           135 South LaSalle Street, Dept 4522

                           Chicago, Illinois  60674-4522







	 	If
by overnight parcel service (e.g., FedEx, UPS, etc.): 





	 	
                           ACS Funding Trust I

                           200 West Monroe Street, Suite 200

                           Chicago, Illinois  60606

                           Attn:  ACS Funding Trust I, Dept. 4522







	 	with
sufficient information to identify the source and application of such funds.






			(b) 		All
notices of payments and written confirmations of such wire transfers:






	 	
                  American Capital Strategies, Ltd., as Servicer

                  2 Bethesda Metro Center, 14th Floor

                  Bethesda, Maryland  20814

                  Attn:  Comptroller

                  Telecopier:  (301) 654-6714










	












			(c) 		All
other communications:





	 	
                  American Capital Strategies, Ltd., as Servicer

                  2 Bethesda Metro Center, 14th Floor

                  Bethesda, Maryland  20814

                  Attn:  Compliance Officer

                  Telecopier:  (301) 654-6714







	III. 		NOTES.
Company will issue Senior Subordinated Notes in the aggregate principal amount of
$25,000,000 to ACS. 





	 	
All Notes issued to ACS will be assigned to:



                  ACS FUNDING TRUST I

                  c/o AMERICAN CAPITAL STRATEGIES, LTD.,

                  as Servicer

                  2 Bethesda Metro Center, 14th Floor

                  Bethesda, MD  20814







	IV. 		WARRANTS.
Parent will issue Warrants to purchase up to 8.25% (on a fully diluted basis) of Parent
to ACS.