LETTER AMENDMENT NO. 2 TO FORBEARANCE AGREEMENT
LETTER AMENDMENT
NO. 2 TO FORBEARANCE AGREEMENT
Dated as of September 30, 2009
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To:
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the Agent and
Lenders party to
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referred
to below
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Ladies and
Gentlemen:
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We
refer to the Forbearance Agreement dated as of September 3, 2009, as amended by
the Letter Amendment to the Forbearance Agreement dated as of September 14, 2009
(such Forbearance Agreement, as so amended, the “Forbearance
Agreement”; capitalized terms used herein and not defined herein shall
have the meanings ascribed thereto in the Forbearance Agreement) among BANK OF
AMERICA, N.A., as Administrative Agent and Collateral Agent for the Lenders
under the Credit Agreement referred to therein (in such capacities, the “Agent”), the Lenders
party thereto, NORTEK, INC. (the “Specified U.S.
Borrower”), VENTROL AIR HANDLING SYSTEMS INC. (the “Canadian Borrower”
and, together with the Specified U.S. Borrower and each other Borrower from time
to time party to the Credit Agreement referred to therein, the “Borrowers”), and the
other Loan Parties (as defined in the Credit Agreement referred to
therein).
We
hereby request, and the Required Lenders hereby agree, that the Forbearance
Agreement be hereby amended as follows:
(a) Section
2(o) of the Forbearance Agreement is hereby amended by replacing “September 30,
2009” therein with “October 2, 2009”.
This Letter
Amendment shall become effective as of the date first above written when, and
only when, the Agent shall have received counterparts of this Letter Amendment
executed by the Loan Parties and the Required Lenders or, as to any of the
Required Lenders, advice satisfactory to the Agent that such Lender has executed
this Letter Amendment.
On and after the
effectiveness of this Letter Amendment, each reference in the Forbearance
Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import
referring to the Forbearance Agreement, and each reference in the Loan Documents
to the “Forbearance Agreement”, shall mean and be a reference to the Forbearance
Agreement, as modified hereby. The forbearance agreements contained
in the Forbearance Agreement, as modified hereby, shall be binding on all
Lenders in accordance with Section 11.01 of the Credit Agreement.
The Forbearance
Agreement and each of the other Loan Documents, as specifically amended or
otherwise modified by this Letter Amendment, are and shall continue to be in
full force and effect and are hereby in all respects ratified and
confirmed. The execution, delivery and effectiveness of this Letter
Amendment shall not, except as expressly provided herein, operate as a waiver of
any right, power or remedy of any Secured Party or the Agent under any of the
Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents. Nothing contained in this Letter Amendment and no action
by, or inaction on the part of, any Secured Party or the Agent shall, or shall
be deemed to, directly or indirectly (i) constitute a consent to or waiver of
any past, present or future violation of any provision of the Credit Agreement
or any other Loan Document, (ii) except as expressly set forth herein, amend,
modify or operate as a waiver of any provision of the Credit Agreement or any
other Loan Document or of any right, power, or remedy of the Agent or any
Secured Party thereunder or (iii) constitute a course of dealing or other basis
for altering any obligation of the Loan Parties under the Loan Documents or any
other contract or instrument. The Loan Parties and the Required Lenders hereby
agree that this Letter Amendment shall be a Loan Document for all purposes of
the Credit Agreement and the other Loan Documents.
Each Loan Party
ratifies and reaffirms the validity and enforceability (without defense,
counterclaim or offset of any kind and not subject to any avoidance, reduction,
recharacterization, subordination (whether equitable, contractual or otherwise
but subject to the Intercreditor Amendment), counterclaim, cross-claim, defense,
disallowance, impairment, objection or any challenges under any applicable Law
or by any Person) of the Liens and security interests granted to secure any of
the Obligations to and for the benefit of the Secured Parties, pursuant to the
Loan Documents. Each Loan Party acknowledges and agrees that all such
Liens and security interests granted by it secure, and shall continue to secure,
the Obligations and the Guaranties from and after the date hereof.
This Letter
Amendment may be executed by one or more of the parties to this Letter Amendment
on any number of separate counterparts, and all of said counterparts taken
together shall be deemed to constitute one and the same
instrument. Any party hereto may execute and deliver a counterpart of
this Letter Amendment by delivering by facsimile transmission or electronic mail
in portable document format a signature page of this Letter Amendment signed by
such party, and such signature shall be treated in all respects as having the
same effect as an original signature.
This Letter
Amendment shall be governed by, and construed in accordance with, the laws of
the State of New York.
[Remainder of Page Intentionally
Blank]
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Very truly
yours,
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NORTEK,
INC., as the Specified U.S. Borrower and as a Guarantor
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Name: Xxxxxx
X. Xxxxxx
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Title: Vice
President and Treasurer
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VENTROL AIR
HANDLING SYSTEMS INC.,
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as the
Canadian Borrower
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By:
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/s/ Xxxxxx X.
Xxxxxx
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Name: Xxxxxx
X. Xxxxxx
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Title: Vice
President and Treasurer
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AIGIS
MECHTRONICS, INC.
BROAN-MEXICO
HOLDINGS, INC.
BROAN-NUTONE
LLC
BROAN-NUTONE
STORAGE SOLUTIONS LP
CES GROUP,
INC.
CES
INTERNATIONAL LTD.
CLEANPAK
INTERNATIONAL, INC.
ELAN HOME
SYSTEMS, L.L.C.
GEFEN,
INC.
GOVERNAIR
CORPORATION
GTO,
INC.
HC
INSTALLATIONS, INC.
HOMELOGIC
LLC
HUNTAIR,
INC.
INTERNATIONAL
ELECTRONICS, INC.
LINEAR H.K.
LLC
LINEAR
LLC
LITE TOUCH,
INC.
MAGENTA
RESEARCH LTD.
MAMMOTH-WEBCO,
INC.
NILES AUDIO
CORPORATION
NORDYNE
INC.
NORDYNE
INTERNATIONAL, INC.
NORTEK
INTERNATIONAL, INC.
NUTONE
LLC
OMNIMOUNT
SYSTEMS, INC.
OPERATOR
SPECIALTY COMPANY, INC.
PACIFIC
ZEPHYR RANGE HOOD, INC.
PANAMAX
INC.
RANGAIRE GP,
INC.
RANGAIRE LP,
INC.
SECURE
WIRELESS, INC.
SPEAKERCRAFT,
INC.
TEMTROL,
INC.
WDS
LLC
XANTECH
CORPORATION
ZEPHYR
CORPORATION
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as a Borrower
and Guarantor
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Vice President and Treasurer
(of entity
listed or as an officer of the managing member, sole member or general
partner)
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BROAN-NUTONE
CANADA INC.
INNERGY TECH
INC.
VENMAR CES,
INC.
VENMAR
VENTILATION INC.
VENMAR
VENTILATION (H.D.H.) INC.
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as a
Guarantor
By: /s/ Xxxxxx X.
Xxxxxx
Name: Xxxxxx
X. Xxxxxx
Title:
Vice President and Treasurer
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Acknowledged
and Agreed:
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BANK OF
AMERICA, N.A.,
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as
Agent
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By:
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/s/ Xxxx X.
XxXxxx
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Name: Xxxx
X. XxXxxx
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Title: Vice
President
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BANK OF
AMERICA, N.A.,
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as U.S. L/C
Issuer and Canadian L/C Issuer
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By:
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/s/ Xxxx X.
XxXxxx
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Name: Xxxx
X. XxXxxx
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Title: Vice
President
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Acknowledged and
Agreed:
General Electric Capital
Corporation
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(please insert name of
Lender)
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By:
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/s/ Xxxxxxx
Xxx
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Name: Xxxxxxx
Xxx
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Title Duly
Authorized Signatory
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Acknowledged and
Agreed:
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XXXXX FARGO
FOOTHILL, LLC
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By: /s/ Xxxxx
Xxxxxxxxx
Name: Xxxxx
Xxxxxxxxx
Title:
Vice President
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Acknowledged and
Agreed:
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XXXXX FARGO
FOOTHILL CANADA ULC
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By: /s/ Xxxxx
Xxxxxx
Name: Xxxxx
Xxxxxx
Title:
Vice President
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