First Amendment, dated as of February 10, 2005, to LIMITED LIABILITY COMPANY AGREEMENT OF THL - NORTEK INVESTORS, LLC A Delaware Limited Liability Company
Exhibit 10.15
First
Amendment, dated as of February 10, 2005, to
LIMITED
LIABILITY COMPANY
AGREEMENT
OF
THL
-
NORTEK INVESTORS, LLC
A
Delaware Limited Liability Company
This
First Amendment,
dated
as of February 10, 2005 (the “First
Amendment”),
amends that certain Limited
Liability Company Agreement
of
THL-Nortek Investors, LLC (the “Company”)
dated
and effective as of August 27, 2004 (the “Original
Agreement”),
by
and among ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P. and the other THL Holders (as
defined in the Original Agreement) and the other members of the Company.
Capitalized terms used and not otherwise defined in this Amendment are used
herein as defined in the Original Agreement. As used herein, the term “this
Agreement” means the Original Agreement, as amended by this First
Amendment.
Whereas,
certain
Members entered into the Original Agreement in August 2004 (and certain other
Members became Members in September 2004 in accordance with the terms of the
Original Agreement);
Whereas,
as of
August 27, 2004, Holdings became a wholly-owned subsidiary of the Company and
Nortek became a wholly-owned subsidiary of Holdings;
Whereas,
the
Company, Holdings and the Members now want to effect a recapitalization
transaction pursuant to which: (i) the Company 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 the
Company of shares of the common stock of NTK Holdings, as a result of which
exchange NTK Holdings will become a wholly-owned subsidiary of the Company
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 the Company which, in turn, will make a distribution to its
members in accordance with the terms of the Original Agreement; and
Whereas,
the
members of the Management Committee unanimously believe it to be in the best
interests of the Company that they enter into and adopt this Amendment so that
the terms of the Original Agreement will continue (adjusted appropriately to
reflect the interposition of NTK Holdings as a new intermediate holding
company);
Whereas,
the
Company, Holdings, NTK Holdings and the Members agree it is not currently
necessary for the Company to maintain audited financial statements in addition
to the audited financial statements of its operating subsidiaries;
Now,
Therefore,
the
members of the Management Committee adopt the following Amendment to the
Original Agreement:
1. Changes
to Section 1.1.
(a) Section
1.1 of the Original Agreement is amended as follows:
(i) The
definition of “Exit Event” is amended by:
| (A) |
deleting
the phrase “the
investment of the Company in Holdings”
in clause (i) and substituting therefor the phrase “the
investment of the Company in NTK Holdings”
and
|
| (B) |
deleting
the phrase “the
investment of the Company in Holdings”
in clause (ii)(A) and substituting therefor the phrase “the
investment of the Company in NTK Holdings”.
|
(ii) The
definition of “Holdings” is hereby amended and restated in its entirety as
follows: “‘Holdings’
means Nortek Holdings, Inc., formerly known as THL Buildco Holdings, Inc.,
a
Delaware corporation.”
(iii) The
definition of “Vested Class C-1 Units” is hereby amended by deleting the phrase
“the
employment or engagement of a holder of Class C-1 Units with Holdings and its
subsidiaries terminates”
and
replacing it with the phrase “the
employment or engagement of a holder of Class C-1 Units with NTK Holdings and
its subsidiaries terminates”.
(iv) The
definition of “Vested Class C-2 Units” is hereby amended by deleting the phrase
“the
employment or engagement of a holder of Class C-2 Units with Holdings and its
subsidiaries terminates”
and
replacing it with the phrase “the
employment or engagement of a holder of Class C-2 Units with NTK Holdings or
its
subsidiaries terminates”.
(b) Section
1.1 of the Original Agreement is further amended by adding (in appropriate
alphabetical order) the following additional definitions:
(i) “‘First
Amendment’ means the first amendment, dated February 10, 2005, to this
Agreement”.
(ii) “‘NTK
Holdings’” means NTK Holdings, Inc., a Delaware corporation.”
2. Change
to Section 3.2(b).
(a) Paragraph
(b) of Section 3.2 of the Original Agreement is hereby amended by deleting
the
phrase “those
Representatives who are employees of Holdings or Nortek”
and
substituting therefor the phrase “those
Representatives who are employees of NTK Holdings, Holdings or
Nortek”.
3. Change
to Section 3.7(c).
(a) Paragraph
(c) of Section 3.7 of the Original Agreement is hereby amended by deleting
the
phrase “those
Officers who are employees of Holdings or Nortek, Inc.”
and
substituting therefor the phrase “those
Officers who are employees of NTK Holdings, Holdings or Nortek.”
4. Change
to Section 3.9.
(a) Section
3.9 of the Original Agreement is hereby deleted in its entirety and replaced
with the following:
“SECTION
3.9 Securities
in NTK Holdings.
The
Company shall vote all of the securities it holds in NTK Holdings as directed
by
the Management Committee.”
5. Change
to Section 6.1.
(a) Section
6.1 of the Original Agreement is hereby amended by deleting the phrase
“Books
of Account. Appropriate
books of account shall be kept by the Management Committee, in accordance with
generally accepted accounting principles, at the principal place of business
of
the Company, and each member”
and
substituting therefore the phrase “Access. Each
Member”.
6. Change
to Section 6.2.
(a) Paragraph
(a) of Section 6.2 of the Original Agreement is hereby deleted in its entirety
and replaced with the following:
“(a)
Tax
Reporting.
The
Company shall supply to the Unitholders all information reasonably necessary
to
enable each Unitholder to prepare its federal, state, and local income tax
returns, which information shall include a Schedule K-1.”
7. Additional
Provisions.
(a) Effectiveness.
This
Amendment will take effect from and as of the time of the exchange of shares
described in the recitals of this First Amendment. The undersigned acknowledge,
agree and confirm that their execution of this Amendment is sufficient to cause
this Amendment to take effect and to be binding upon the Members, and
constitutes all consents and approvals required under Section 7.5 of the
Original Agreement.
(b) Governing
Law.
This
Amendment and the rights and obligations of the parties hereunder shall be
governed by, and construed and interpreted in accordance with, the law of the
State of Delaware applicable to agreements signed and to be performed in that
state, without giving effect to any choice of law principles thereof that would
cause application of the laws of another jurisdiction.
(c) Jurisdiction.
The
provisions of Section 7.10 of the Original Agreement are incorporated into
this
Amendment by reference and apply to this Amendment to the same extent as they
would if set forth in full herein.
(d) Headings;
Execution in Counterparts.
The
headings and captions contained herein are for convenience and shall not control
or affect the meaning or construction of any provision hereof. This Amendment
may be executed in any number of counterparts, each of which shall be deemed
to
be an original and all of which together shall constitute one and the same
instrument.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the members of the Management Committee of THL-NORTEK
INVESTORS, LLC and the Management Holder holding a majority of the Units held
by
Management Holders hereby adopt this Amendment to the Limited Liability Company
Agreement of the Company as of the date first above written.
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