FOURTH
AMENDMENT
THIS
FOURTH AMENDMENT dated as of December 11, 2009 (this “Amendment”) amends
the Credit Agreement dated as of May 18, 2007 (as amended, the “Credit Agreement”)
among PATRICK INDUSTRIES, INC., an Indiana corporation (the “Borrower”), the
LENDERS party thereto and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in
such capacity, the “Administrative
Agent”). Capitalized terms used but not defined herein have
the respective meanings given to them in the Credit Agreement.
WHEREAS,
the Borrower has requested certain amendments to the Credit
Agreement.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION
1. AMENDMENTS. Subject
to the conditions precedent set forth in Section 3, the
Credit Agreement is amended as follows:
1.1 Amendments to Definitions in
Section 1.1.
1.1.1 The
following definitions are added in proper alphabetical sequence:
“Ocala Sale” means the
sale of the real property located at 1609 SW 17th Street, Ocala, Florida, for
not less than $1,200,000 in cash.
“Purchasing Card
Program” means the purchasing card program provided to the Borrower and
its Subsidiaries by JPMorgan.
“Woodburn Sale” means
the sale of the real property located at 3099 N. Pacific Highway, Woodburn,
Oregon, for not less than $3,200,000 in cash.
“Fontana Sale
Leaseback” means (a) the sale of the real property located at 13414
Slover Avenue, Fontana, California, for not less than $4,200,000 in cash and (b)
the concurrent lease of such property (or a similar property to be used for
operations currently conducted at such property) by the Company or a Subsidiary
for a term of at least 24 months.
1.1.2 The definitions of “Consolidated EBITDA” and “Permitted
Asset Sales” are amended and restated in their entirety to read as follows,
respectively:
“Consolidated EBITDA”
means, for any period, the sum (without duplication) of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining such
Consolidated Net Income, Interest Expense, income tax expense, depreciation,
amortization, Restructuring Charges and
rent expense in an amount not to exceed $45,000 per month for the property sold
pursuant to the Fontana Sale Leaseback, plus (c) losses in connection with
discontinued operations during such period to the extent approved in writing by
the Administrative Agent (which approval shall not be unreasonably withheld)
minus (d) gains in connection with discontinued operations during such period,
plus (e)
losses in
connection with stock warrants revaluation during such period, minus (f) gains
in connection with stock warrants revaluation during such period.
“Permitted Asset Sale”
means each of, (i) the Ocala Sale, (ii) the Woodburn Sale and (iii) the Fontana
Sale Leaseback.
1.2 Amendment to Section
2.5(c). Section 2.5(c) is amended by adding the following
proviso immediately before the period at the end of the first sentence
thereof:
; provided, that any
Letter of Credit issued in connection with the Fontana Sale Leaseback may expire
on the date that is two years after the date of the issuance of such Letter of
Credit, so long as the Borrower confirms in writing to the Issuing Bank, at the
time of issuance, that such Letter of Credit will be a Supported Letter of
Credit
1.3 Amendment to Section
6.2. Section 6.2 is amended by adding the following new clause
(d) in proper sequence and designating existing clauses (d) and (e) as clauses
(e) and (f), respectively:
(d) Liens
on cash and a deposit or securities account at JPMorgan securing the obligations
of the Borrower under the Purchasing Card Program; provided that the
aggregate amount of all such cash and all amounts on deposit in such accounts
shall not at any time exceed $250,000.
1.4 Amendment to Section
6.8(a). Section 6.8(a) is amended in its entirety to read as
follows:
(a) Minimum
EBITDA. Consolidated EBITDA for any fiscal quarter to be less
than the amount specified for such quarter on Schedule
6.8.
1.5 Amendments to
Schedules. Schedule 1.1(b) and Schedule 6.8 to the Credit
Agreement are replaced with Schedule 1.1(b) and
Schedule 6.8
hereto, respectively.
SECTION
2. REPRESENTATIONS AND
WARRANTIES. The Borrower represents and warrants to the
Administrative Agent and the Lenders that after giving effect to this Amendment:
(a) the representations and warranties of the Borrower set forth in the Credit
Agreement are true and correct in all material respects (except to the extent
stated to relate to an earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date); and (b) no Default will exist.
SECTION
3. CONDITIONS
PRECEDENT. This Amendment shall become effective on the date
on which the Administrative Agent shall have received the
following:
(a) Counterparts
of this Amendment signed by the Borrower and the Required Lenders.
(b) A
Confirmation substantially in the form of Exhibit A signed by
each Loan Party.
(c) Payment
of all invoiced fees and expenses of the Administrative Agent (including
reasonable attorneys’ fees and expenses) in connection herewith.
(d) An
amendment fee for each Lender that delivers a signed counterpart to this
Amendment to the Administrative Agent, prior to 12:00 p.m. (Chicago time) on
December 11, 2009, in an amount equal to the product of 0.15% multiplied by the sum
of (i) such Lender’s Revolving Commitment and (ii) the outstanding principal
amount of such Lender’s Term Loans.
SECTION
4. MISCELLANEOUS.
4.1 Continuing Effectiveness,
etc. After giving effect to this Amendment, the Credit
Agreement shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness
hereof, all references to the Credit Agreement in any Loan Document shall be
deemed to refer to the Credit Agreement as amended hereby.
4.2 Incorporation of Credit
Agreement Provisions. The provisions of Sections 1.3 (Terms
Generally), 9.7 (Severability), 9.10 (Waiver of Jury Trial) and 9.11 (Headings)
of the Credit Agreement are incorporated by reference as if fully set forth
herein, mutatis
mutandis.
4.3 Signing in
Counterparts. This Amendment may be signed by the parties
hereto in several counterparts, each of which shall be deemed to be an original
and all of which shall constitute together but one and the same
agreement. A signature hereto delivered by facsimile or in .pdf
format shall be effective as delivery of an original counterpart.
4.4 Governing
Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF ILLINOIS.
4.5 Successors and
Assigns. This Amendment shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and permitted
assigns.
[Remainder
Of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto
have caused this Amendment to be signed by their respective officers thereunto
duly authorized as of the day and year first above written.
PATRICK
INDUSTRIES, INC.
By /s/ Andy L.
Nemeth
Name:
Andy L. Nemeth
Title:
Executive Vice President - Finance
JPMORGAN
CHASE BANK, N.A., individually and as Administrative Agent
By /s/ Michelle L.
Jameson
Name:
Michelle L. Jameson
Title: Vice
President
FIFTH
THIRD BANK
By /s/ Kristof C.
Schneider
Name: Kristof
C. Schneider
Title: Assistant
Vice President
BANK OF
AMERICA, N.A., as successor to LaSalle Bank National Association
By /s/ Robert L.
Wallace,
Jr.
Name:
Robert L. Wallace, Jr.
Title:
Senior Vice President
KEY BANK,
NATIONAL ASSOCIATION
By /s/ Ryan J.
Watkins
Name:
Ryan J. Watkins
Title: Vice
President
RBS
CITIZENS, NATIONAL ASSOCIATION, successor by merger with Charter One
Bank
By /s/ Ruben V.
Klein
Name:
Ruben V. Klein
Title:
Senior Vice President
ASSOCIATED
BANK
By /s/ Robert
J.
Burda
Name:
Robert J. Burda
Title:
Vice President
1ST
SOURCE BANK
By /s/ Jeff
Baker
Name:
Jeff Baker
Title:
Senior Vice President
SCHEDULE
1.1(b)
BORROWING
BASE AMOUNTS
|
Period
|
Amount
|
|
November
1, 2009 – December 31, 2009
|
$25,000,000
|
|
January
1, 2010 - January 24, 2010
|
$21,000,000
|
|
January
25, 2010 – February 28, 2010
|
$23,000,000
|
|
March
1, 2010 – March 28, 2010
|
$26,000,000
|
|
March
29, 2010 - April 25, 2010
|
$28,000,000
|
|
April
26, 2010 – June 27, 2010
|
$27,000,000
|
|
June
28, 2010 - August 29, 2010
|
$28,000,000
|
|
August
30, 2010 - October 24, 2010
|
$26,000,000
|
|
October
25, 2010 - November 28, 2010
|
$25,000,000
|
|
November
29, 2010 - December 31, 2010
|
$21,000,000
|
SCHEDULE
6.8
CONSOLIDATED
EBITDA
|
Fiscal
Quarter
(ended
on or closest to)
|
Fiscal
Quarter then ending
|
|
March
28, 2010
|
($584,000)
|
|
June
27, 2010
|
$2,204,300
|
|
September
26, 2010
|
$1,973,200
|
|
December
31, 2010
|
$1,434,600
|
EXHIBIT
A
FORM OF
CONFIRMATION
December
11, 2009
To: JPMorgan
Chase Bank, N.A., individually and as Administrative
Agent,
and the other financial institutions that are
parties
to the Credit Agreement referred to below
Please
refer to the Fourth Amendment dated as of the date hereof (the “Amendment”) to the
Credit Agreement dated as of May 18, 2007 (the “Credit Agreement”)
among Patrick Industries, Inc., an Indiana corporation, the Lenders party
thereto and JPMorgan Chase Bank, N.A., as Administrative
Agent. Capitalized terms used but not otherwise defined herein have
the respective meanings given to them in the Credit Agreement.
Each of the undersigned hereby confirms
to the Administrative Agent and the Lenders that such undersigned has received a
copy of the Amendment and that, after giving effect to the Amendment and the
transactions contemplated thereby, each Loan Document to which such undersigned
is a party continues in full force and effect and is the legal, valid and
binding obligation of such undersigned, enforceable against such undersigned in
accordance with its terms.
PATRICK INDUSTRIES, INC.
By: /s/ Andy L.
Nemeth
Andy L. Nemeth
Executive Vice President -
Finance
ADORN HOLDINGS, INC.
By: /s/ Andy L.
Nemeth
Andy L. Nemeth
Treasurer and Secretary
ADORN,
LLC
By: /s/ Andy L.
Nemeth
Andy L. Nemeth
Treasurer and Secretary