ex10_2.htm


    Exhibit
10.2

     

    LETTER AMENDMENT
NO. 4 TO FORBEARANCE AGREEMENT

     

     

    Dated as of October 20, 2009

     

    
      	
              To:

            	
              the Agent and
      Lenders party to

            


    

    
      	
               
      

            	
               the
      Forbearance Agreement

            


    

    
      	
               
      

            	
               referred
      to below

            


    

    


     

    
        Ladies and
Gentlemen:

    

     

    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, the
Letter Amendment No. 2 to the Forbearance Agreement dated as of September 30,
2009 and the Letter Amendment No. 3 to the Forbearance Agreement dated as of
October 2, 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
1(a) of the Forbearance Agreement is hereby amended by replacing “October 20,
2009” therein with “October 27, 2009”; and

     

    (b)           Section
2(p) of the Forbearance Agreement is hereby amended by replacing “October 20,
2009” therein with “October 27, 2009”.

     

    This Letter
Amendment shall become effective as of the date first above written when, and
only when:

     

    (a)           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;

     

    (b)           (i)
an amendment (the “Lock-Up Amendment”)
to the Restructuring and Lock-Up Agreement, dated as of September 3, 2009 (as
amended by that certain First Amendment to the Restructuring and Lock Up
Agreement, dated as of September 14, 2009, the “Lock-Up Agreement”)
shall have been executed and delivered by the Nortek Parties (as defined in the
Lock-Up Agreement) and the requisite Consenting Debtholders (as defined in the
Lock-Up Agreement), in the form attached as Exhibit A hereto, (ii) except as set
forth herein, the Lock-Up Agreement shall not have been amended, supplemented or
otherwise modified except to the extent satisfactory to the Required Lenders and
(iii) the Agent shall have received a certificate from the Specified U.S.
Borrower (A) attaching a true and complete copy of the Lock-Up Amendment and (B)
certifying to the Agent that the Lock-Up Amendment has become fully effective in
accordance with the terms thereof and of the Lock-Up Agreement; and

     

    (c)           immediately
prior to the effectiveness of this Letter Amendment, no Default (other than a
Specified Default) shall have occurred and be continuing.

     

    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.

     

    In consideration of
the Lenders’ execution and delivery of this Letter Amendment, each Loan Party
and each of their successors and assigns (including, without limitation, any
receiver or trustee, collectively, the “Releasors”) does
hereby forever acquit, waive, release and discharge each of the Agent and each
Lender party hereto and each of their respective successors, assigns,
affiliates, directors, officers, employees, agents, attorneys, consultants,
advisors and other Related Parties (collectively, the “Releasees”) of and
from any and all claims (including, without limitation, any liabilities,
damages, demands and causes of action to the extent arising therefrom)
whatsoever, in law or in equity, whether known or unknown, which the Releasors
ever had, have now, or hereinafter can, shall or may have against any Releasee
by reason of (a) any matter arising on or prior to the date hereof out of the
Credit Agreement, the Forbearance Agreement or the other Loan Documents and (b)
any and all other actions or omissions relating in any way thereto done or
omitted to be done on or prior to the date hereof.  This paragraph
shall survive (i) the expiration or termination of the Forbearance Period, of
the Forbearance Agreement and of this Letter Amendment and (ii) the termination
of the Credit Agreement, the payment in full of all Obligations and the
termination of all Commitments.

     

    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.

     

     

    
      	 
    	
              Very truly
      yours,

               

              NORTEK, INC.,
      as the Specified U.S.

              Borrower and
      as a Guarantor

               

               

              By:  /s/Edward J.
      Cooney

              Name:  Edward
      J. Cooney

              Title:    Vice
      President and Treasurer

            
	 
    	 
    
	 
    	
              VENTROL AIR
      HANDLING SYSTEMS INC.,

              As the
      Canadian Borrower

               

              By:  /s/Edward J.
      Cooney

              Name:  Edward
      J. Cooney

              Title:    Vice
      President and Treasurer

            


    

    


    


    
      	 
    	
              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

               

            
	 
    	
              as a Borrower
      and Guarantor

               

               

              By:        /s/ Edward J.
      Cooney             

              Name:  Edward
      J. Cooney

              Title:    
      Vice President and Treasurer

               

              (of entity
      listed or as an officer of the managing member, sole member or general
      partner)

            


    

    


    


    


    


    


    
      	 
    	
              BROAN-NUTONE
      CANADA INC.

              INNERGY TECH
      INC.

              VENMAR CES,
      INC.

              VENMAR
      VENTILATION INC.

              VENMAR
      VENTILATION (H.D.H.) INC.

            
	 
    	
              as a
      Guarantor

               

               

              By:   /s/ Edward J.
      Cooney                      

              Name:  Edward
      J. Cooney

              Title:    
      Vice President and Treasurer

            


    

    


    


     

    
      	
               
      

            	
              Acknowledged
      and Agreed:

            


    

    


    
      	
               
      

            	
              BANK OF
      AMERICA, N.A.,

            


    

    
      	
               
      

            	
              as
      Agent

            


    

    


    


    
      	
              By:

            	
              /s/ Richard
      Levenson

            


    

    
      	
               
      

            	
              Name:  Richard
      Levenson

            


    

    
      	
               
      

            	
              Title:    Senior
      Vice President

            


    

    


    
      	
               
      

            	
              BANK OF
      AMERICA, N.A.,

            


    

    
      	
               
      

            	
              as U.S. L/C
      Issuer and Canadian L/C Issuer

            


    

    


    


    
      	
              By:

            	
              /s/ Richard
      Levenson

            


    

    
      	
               
      

            	
              Name:  Richard
      Levenson

            


    

    
      	
               
      

            	
              Title:    Senior
      Vice President

            


    

    


    


    


    Acknowledged and
Agreed:

    


    
      	
              WELLS FARGO
      FOOTHILL, LLC

            
	
               

              By:        /s/ Ilene
      Silberman

              Name:  Ilene
      Silberman

              Title:    
      Vice President

            


    

    


    Acknowledged and
Agreed:

    


    
      	
              WELLS FARGO
      FOOTHILL CANADA ULC

            
	
               

              By:        /s/ Sanat
      Amladi

              Name:  Kurt
      Duerfeldt

              Title:    Vice
      President

            


    

    


    


    
      	
              Exhibit A
      to

            


    

    
      	
              Letter Amendment No. 4
      to Forebearance Agreement

            


    

    


    
      	
              Form of Lock-Up
      Amendment

            


    

    


    SECOND
AMENDMENT TO THE

    RESTRUCTURING
AND LOCK UP AGREEMENT

    


    


    WHEREAS, the Parties entered
into that certain Restructuring and Lock Up Agreement, dated as of September 3,
2009 and amended on September 14, 2009 (the “Agreement”) for the
purpose of mutually agreeing to the terms of a pre-packaged bankruptcy filing of
the Nortek Parties;

    


    WHEREAS, the Agreement
provides that (a) no later than October 20, 2009, the Nortek Parties shall file
voluntary petitions for relief under chapter 11 of the Bankruptcy Code, (b) the
Agreement may be terminated by a specified vote of the Consenting Debtholders on
October 20, 2009, unless the Nortek Parties have commenced chapter 11 cases and
(c) the Forbearance Period shall terminate on the earlier of (i) the
Commencement Date, (ii) the date of an occurrence of a Forbearance Default or
(iii) October 20, 2009;

    


    WHEREAS, in entering into the
Agreement, it was the intention of the Parties thereto that the Nortek Parties
would commence their chapter 11 cases no later than October 20,
2009;

    


    WHEREAS, the Agreement
provides that once effective, it may be amended in accordance with Section 8 of
the Agreement; and

     
 

    WHEREAS, the Nortek Parties
and the Consenting Debtholders constituting the Requisite Debtholder Consent
have agreed to enter into this amendment of the Agreement (this “Second
Amendment”) to amend the Agreement, effective as of October 19, 2009, to extend
the date by which the Nortek Parties shall be required to commence the chapter
11 cases.

    


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

    


    1.           In
Section 2.01 of the Agreement, “October 20, 2009” shall be deleted, and “11:59
PM, prevailing Eastern time, on October 27, 2009” shall be inserted in lieu
thereof.

    


    2.           In
Section 3.03(a)(iii) of the Agreement, “October 20, 2009” shall be deleted, and
“11:59 PM, prevailing Eastern time, on October 27, 2009” shall be inserted in
lieu thereof.

    


    3.           In
Section 7.01(g) of the Agreement, “October 20, 2009” shall be deleted, and
“11:59 PM, prevailing Eastern time, on October 27, 2009” shall be inserted in
lieu thereof.

    


    4.           The
Parties also clarify and confirm their agreement that Section 11.6 of the
Prepackaged Plan is intended to provide that each Person who is entitled to
receive a distribution under the Prepackaged Plan shall release all “Released
Parties” (as defined in the Prepackaged Plan) in respect of any and all
applicable Claims, demands, causes of action and the like that such Person may
have (including, without limitation, any NTK 10-3/4% Notes Claims or NTK
Holdings Senior Secured Loan Claims (each as defined in the Prepackaged Plan)
such Person may hold), without regard to whether or not the Prepackaged Plan is
confirmed with respect to NTK Holdings and/or Nortek Holdings.

    


    5.           This
Second Amendment may be executed in one or more counterparts, each of which,
when so executed, shall constitute an original and all of which shall constitute
one instrument.  The counterparts may be delivered by facsimile
transmission or by electronic mail in portable document format
(.pdf).

    


    6.           This
Second Amendment shall be effective as of October 19, 2009, upon the execution
of the Nortek Parties and the Consenting Debtholders constituting the Requisite
Debtholder Consent, and shall only be amended in accordance with Section 8 of
the Agreement.

    


    7.           Except
as specifically amended or consented to herein, there are no other amendments,
modifications, or other alterations to the Agreement.

    


    8.           Capitalized
terms not defined herein shall have the meanings given to them in the Agreement,
and in the event of any inconsistency between the two, the Agreement shall
control.

    IN WITNESS WHEREOF, the Parties have executed
this Second Amendment on the day and year first above written.

     

    


    NTK HOLDINGS,
INC.

    


    


    By:  ______________________________

    Name:  Edward
J. Cooney

    Title:     Vice
President and Treasurer

    


    NORTEK HOLDINGS,
INC.

    


    


    By:  ______________________________

    Name:    Edward
J. Cooney

    Title:       Vice
President and Treasurer

    


    NORTEK,
INC.

    


    


    By:  ______________________________

    Name:      Edward
J. Cooney

    Title:         Vice
President and Treasurer

     

     

     

    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.

    HUNTAIR,
INC.

    INTERNATIONAL
ELECTRONICS, INC.

    LINEAR
LLC

    LINEAR H.K.
LLC

    LITE TOUCH,
INC.

    MAGENTA RESEARCH
LTD.

    MAMMOTH-WEBCO,
INC.

    NILES AUDIO
CORPORATION

    NORDYNE
INC.

    NORDYNE
INTERNATIONAL, INC.

    NORTEK
INTERNATIONAL, INC.

    NUTONE
INC.

    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.

    XANTECH
CORPORATION

    ZEPHYR
CORPORATION

    


    By           _____________________

    Name:    Edward
J. Cooney

    Title:       Vice
President and Treasurer

    


    
      	
               
      

            	
              (of entity
      listed or as an officer of the managing member, sole member or general
      partner)

            


    

     

     

     

    [CONSENTING
DEBTHOLDER]

    


    


    By:  ___________________________

    Name:

    Title:

    


    Address: _________________________

          
_________________________

          
_________________________

    Attn:         _________________________

    Tel:          _________________________

    Fax:         _________________________

    


    Aggregate principal
amount of Notes beneficially owned or managed on behalf of accounts that hold or
beneficially own such Notes:

    


    8-1/2%
Notes:  $_____________

    


    10%
Notes:  $_______________

    


    10-3/4%
Notes:  $___________________