AMENDMENT TO
LOAN AGREEMENT
AMENDMENT (this "Amendment"), dated as of June 30, 2005, by and among
GRIFFON CORPORATION ("Griffon"), TELEPHONICS CORPORATION ("Telephonics;" Griffon
and Telephonics are at times referred to herein individually as a "Borrower" and
collectively as the "Borrowers"), BANK OF AMERICA, N.A., successor by merger to
Fleet National Bank ("BOA"), XX XXXXXX XXXXX BANK, successor to The Chase
Manhattan Bank ("Chase"), HSBC BANK USA ("HSBC"), US BANK, NATIONAL ASSOCIATION
f/k/a Firstar Bank, National Association ("US Bank;" BOA, Chase, HSBC and US
Bank are at times referred to herein individually as a "Bank" and collectively
as the "Banks"), BANK OF AMERICA, N.A., SUCCESSOR BY MERGER TO FLEET NATIONAL
BANK, in its capacity as Administrative Agent (in such capacity, the
"Administrative Agent") and XX XXXXXX XXXXX BANK, successor to The Chase
Manhattan Bank, in its capacity as Documentation Agent (in such capacity, the
"Documentation Agent").
W I T N E S S E T H
-------------------
WHEREAS, the Borrowers, the Banks, the Documentation Agent and the
Administrative Agent have entered into an Amended and Restated Loan Agreement
dated as of October 25, 2001 (such agreement, as previously amended, the "Loan
Agreement;" capitalized terms not otherwise defined herein shall have the
respective meanings provided therefore in the Loan Agreement);
WHEREAS, the Borrowers, the Administrative Agent and the Required Lenders
have agreed, subject to the terms and conditions of this Amendment, to amend
certain provisions of the Loan Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
1. Amendment.
---------
(a) The first paragraph of the definition of Permitted
Acquisition in Article 1 of the Loan Agreement is amended in its
entirety to read as follows:
""PERMITTED ACQUISITION" means the acquisition by either
Borrower or any Subsidiary of any Person or of any division or
line of business of any Person (whether a Person, or division or
line of business, an "Eligible Business", either by merger,
consolidation, purchase of stock, or purchase of all or a
substantial part of the assets of such Eligible Business (any
such type of transaction is referred to in this Agreement as an
"acquisition" and the principal agreement relating thereto,
whether a stock purchase agreement, an asset purchase agreement,
a merger agreement or otherwise, is referred to in this Agreement
as the "acquisition agreement"); provided that (i) the aggregate
Permitted Acquisition Purchase Price of all such Permitted
Acquisitions during the term of this Agreement does not exceed
(a) Two Hundred Million Dollars ($200,000,000) in the aggregate,
and (b) after excluding the value of any capital stock issued by
Griffon in connection with any Permitted Acquisition, One Hundred
Million
Dollars ($100,000,000) in the aggregate, (ii) notwithstanding
anything else in this Agreement, the acquisition of the 40%
minority interest in Finotech shall be deemed to be a Permitted
Acquisition and the related Permitted Acquisition Purchase Price
shall not be counted against the limits in subsections (i)(a) and
(i)(b) above, (iii) no Default or Event of Default shall exist
immediately before and after giving effect to such Permitted
Acquisition or result from the consummation thereof, and (iv)
each of the following conditions shall have been satisfied:"
(b) Section 6.9(b) of the Loan Agreement is amended in its
entirety to read as follows:
"(b) As of the end of each fiscal quarter, on a Rolling Four
Quarters basis, a Funded Debt to Cash Flow Ratio of not more
than 3.75 to 1.00."
(c) All references in the Loan Agreement and the other Loan
Documents to "Fleet National Bank" or to "Fleet National Bank, a
Bank of America company" or to "Fleet National Bank, successor by
merger to Fleet Bank, N.A." are deemed amended to read: "Bank of
America, N.A., successor by merger to Fleet National Bank" and
the defined term "Fleet" shall be deemed to read "BOA".
2. Representations and Warranties.
------------------------------
(a) Each of the Borrowers confirms and restates on and as of the
date hereof the accuracy of the representations and warranties contained in each
Loan Document.
(b) No Default or Event of Default and no event or condition
which, with the giving of notice or lapse of time or both, would constitute such
a Default or Event of Default, now exists or would exist.
3. Miscellaneous.
-------------
(a) This Amendment is limited precisely as written and shall not
be deemed to (i) be an amendment to or a waiver of any other term or condition
of the Loan Agreement or any other Loan Document or (ii) prejudice any rights
which any Bank may now have or may have in the future under or in connection
with the Loan Agreement or any other Loan Document.
(b) THIS AMENDMENT AND ALL OTHER AGREEMENTS, DOCUMENTS AND
INSTRUMENTS EXECUTED AND DELIVERED IN CONNECTION WITH THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK .
(c) The provisions of this Amendment are severable, and if any
clause or provision shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause, provision or part in such jurisdiction and shall not in any manner
affect such clause, provision or part in any other jurisdiction or any other
clause or provision in this Amendment in any jurisdiction.
(d) This Amendment may be signed in any number of counterparts
with the same effect as if all parties to this Amendment signed the same
counterpart.
(e) The Borrowers agree to pay the Administrative Agent upon
demand all reasonable expenses, including reasonable fees to attorneys and
paralegals for the Administrative Agent (who may be employees of the
Administrative Agent), incurred by the Administrative Agent in connection with
the preparation, negotiation and execution of this Amendment and any agreements,
instruments and documents executed or furnished in connection with this
Amendment.
IN WITNESS WHEREOF, the Borrowers and the Administrative Agent, as
authorized on behalf of the Required Lenders, have signed and delivered this
Amendment as of the date first written above.
GRIFFON CORPORATION
By: /s/Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Executive Vice-President
TELEPHONICS CORPORATION
By: /s/Xxxx Xxxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., SUCCESSOR BY
MERGER TO FLEET NATIONAL BANK, AS
ADMINISTRATIVE AGENT
By: /s/Xxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Credit Products Officer
XX XXXXXX XXXXX BANK, N.A.
By: /s/Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION
By: /s/Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
