Amendment #1 to Management Agreement
Exhibit 10.16
Amendment
#1 to Management Agreement
This
Amendment, dated as of February 10, 2005, amends the Management Agreement (the
“Original
THL Management Agreement”)
dated
August 27, 2004, by and among Nortek Holdings, Inc., a Delaware corporation
formerly named THL Buildco Holdings, Inc. (“Holdings”),
Nortek, Inc., a Delaware corporation and a wholly-owned subsidiary of Holdings
(the “Company”),
and
THL Managers V, LLC, a Delaware limited liability company (the “Sponsor”).
Whereas,
Holdings
and its owner(s) have decided to effect a recapitalization transaction pursuant
to which: (i) THL-Nortek Investors, LLC will transfer to NTK Holdings, Inc.,
a
new Delaware corporation (“NTK
Holdings”),
all
of the outstanding shares of Holdings in exchange for the issuance to THL-Nortek
Investors, LLC of shares of the common stock of NTK Holdings, as a result of
which exchange NTK Holdings will become a wholly-owned subsidiary of THL-Nortek
Investors, LLC and Holdings will become a wholly-owned subsidiary of NTK
Holdings, and (ii) NTK Holdings will issue and sell certain discount
notes, it being contemplated that a portion of the proceeds from such issuance
will be used to pay a dividend to THL-Nortek Investors, LLC which, in turn,
will
make a distribution to its members; and
Whereas,
Holdings, the Company and the Sponsor believe it to be in their respective
best
interests that they enter into this Amendment;
Now,
therefore,
in
consideration of foregoing and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree that:
1. Amendment
to Section 3.
The
Original THL Management Agreement is hereby amended by deleting from the third
sentence of Section 3 of the Original THL Management Agreement the words
“equity
securities of the Company or Holdings”
and
replacing them with the words “equity
securities of the Company, Holdings or NTK Holdings, Inc.”
2. Effectiveness;
Continuing Effect of Other Provisions.
This
Amendment will take effect from and as of the time of the exchange of shares
described in the recitals of this Amendment. Subject to the changes implemented
by this Amendment, the Original THL Management Agreement remains in full force
and effect.
3. Counterparts.
This
Amendment may be signed in one or more counterparts and by separate parties
in
separate counterparts, each of which when so executed shall be deemed to be
an
original and all of which together shall constitute one and the same agreement.
4. Governing
Law.
This
Amendment shall be governed by, and construed in accordance with, the domestic
substantive laws of the State of New York without giving effect to any choice
or
conflict of law provision or rule that would cause the application of the
domestic substantive laws of any other jurisdiction.
IN
WITNESS WHEREOF,
each of
the parties has caused this Amendment to be executed on its behalf as an
instrument under seal as of the date first above written by its officer or
representative thereunto duly authorized.
NORTEK
HOLDINGS, INC.
By:
/s/
Xxxxx X.
Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Vice President, General Counsel and Secretary
NORTEK,
INC.
By:
/s/
Xxxxx X.
Xxxxxxxx
Name:
Xxxxx Xxxxxxxx
Title:
Vice President, General Counsel and Secretary
THL
MANAGERS V, LLC
By:
Xxxxxx X. Xxx Partners, L.P., its Managing Member
By:
THL
Equity Advisors V, L.P., its
|
General
Partner
|
By:
/s/
Xxxxxxx X.
XxXxxx
Name:
Xxxxxxx X. XxXxxx
Title:
Managing Director
Accepted,
acknowledged and approved:
/s/
Xxxxxxx X.
Xxxxxx
Xxxxxxx
Xxxxxx, individually (including,
for
purposes
of Section 11.5 of the Securityholders
Agreement
dated as of August 27, 2004 among
THL-Nortek
Investors, LLC and the
Securityholders
party thereto)
