Exhibit 10.5
AMENDMENT NO. 1
TO THE
CREDIT
AGREEMENT
Dated as of August 21, 2009
AMENDMENT NO.1
TO THE CREDIT AGREEMENT (the “
Amendment ”) among Nortek, Inc., a Delaware
corporation (the “ Specified U.S. Borrower ”),
Ventrol Air Handling Systems Inc., a Canadian corporation (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 below, the “
Borrowers ”), the other Loan Parties party to the
Credit Agreement referred to below, the banks, financial
institutions and other institutional lenders parties to the Credit
Agreement referred to below (collectively, the “
Lenders ”) and Bank of America, N.A., as
administrative agent (the “ Agent ”) for the
Lenders.
PRELIMINARY
STATEMENTS:
(1) The
Borrowers, the Lenders and the Agent have entered into a Credit
Agreement dated as of May 20, 2008, as amended, restated, amended
and restated or otherwise modified prior to the date hereof, the
“ Credit Agreement ”). Capitalized
terms not otherwise defined in this Amendment have the same
meanings as specified in the Credit Agreement.
(2) The
Borrowers and the Required Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION
1.
Amendments to
Credit Agreement . The
Credit Agreement is, effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in
Section 2, hereby amended as follows:
(a)
Section 1.01 is
amended as follows:
(i)
The definition
of “ABL Priority Collateral” is amended by substituting
for the phrase “Revolving Facility Collateral” where it
appears therein the phrase “Revolving Facility First Lien
Collateral.”
(ii)
The definition
of “U.S. Borrowers” is amended by inserting after the
phrase “Specified U.S. Borrower” where it appears
therein the following: “, the Subsidiaries of the Specified
U.S. Borrower listed on the signature pages to this Agreement as
“Borrowers”.”
(b)
Section 4.02
is amended by inserting in the second line of clause (a) thereof,
immediately after the phrase “contained in Article V,”
the following: “(other than Section 5.18).”
(c)
Section 4.02
is further amended by adding to the end thereof a new
subsection (f), to read as follows:
“(f) The
Administrative Agent shall have received and shall be satisfied
with all such information as it shall have reasonably requested in
order to confirm the Loan Parties’ compliance with the
proviso to Section 6.11.”
(d)
Section 6.11 is
amended by inserting the following language at the end thereof
immediately before the period: “; provided
that from and after July 24, 2009, such proceeds shall be used only
to fund operating expenses and liabilities of the Specified U.S.
Borrower’s operating Subsidiaries who are Loan Parties and
Subsidiaries of such Loan Parties that were incurred in the
ordinary course of business and are due and payable at the time of
such Credit Extension and, in the case of Letters of Credit, to
provide credit support for the benefit of counterparties in
transactions entered into by such operating Subsidiaries, or by the
Specified U.S. Borrower primarily on behalf of such operating
Subsidiaries (but which may also benefit the Specified U.S.
Borrower and its other Subsidiaries), in the ordinary course of
business”.
(e)
Section 4
of Exhibit D is deleted in full.
SECTION
2.
Conditions of
Effectiveness . This
Amendment shall become effective as of (x) in the case of Section
1(e), May 20, 2008 and (y) in the case of the other provisions
hereof, July 4, 2009 when, and only when, the Agent shall have
received:
(a)
counterparts of
this Amendment executed by each Loan Party and the Required Lenders
or, as to any of the Lenders, advice satisfactory to the Agent that
such Lender has executed this Amendment, and the applicable consent
attached hereto executed by each Grantor;
(b)
the Agent shall
have received, for the benefit of each Lender, a fee equal to 0.10%
of the aggregate principal amount of such Lender’s Revolving
Credit Commitments; and
(c)
the Agent shall
have received a certificate signed by a duly authorized officer of
the Specified U.S. Borrower stating that:
(i)
the
representations and warranties contained in Article V of the Credit
Agreement (other than Section 5.18) are true and correct in all
material respects (or in all respects in the case of any
representations and warranties qualified by materiality) on and as
of the date of such certificate, before and after giving effect to
this Amendment, except to the extent that such representations and
warranties specifically refer to an earlier date, in which case
they shall be true and correct in all material respects (or in all
respects in the case of any representations and warranties
qualified by materiality) as of such earlier date and except that
the representations and warranties contained in Sections 5.05(a)
and (b) of the Credit Agreement shall be deemed to refer to the
most recent statements furnished pursuant to Sections 6.01(a) and
(b) thereof, respectively; and
(ii)
no Default
exists or would result from the effectiveness of this
Amendment.
