Exhibit 3
THE SECURITY REPRESENTED HEREBY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE ACT), OR
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD IN THE ABSENCE
OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND SUCH STATE SECURITIES
LAWS, OR AN EXEMPTION FROM REGISTRATION THEREUNDER.
THIS NOTE IS SUBJECT TO THE TERMS OF THE
SUBORDINATION AGREEMENT DATED THE DATE HEREOF BETWEEN THE INITIAL HOLDER OF
THIS NOTE AND JPMORGAN CHASE BANK, N.A., AS ADMINISTRATIVE AGENT, AND NO
PAYMENTS HEREON MAY BE MADE, OR ACTIONS TAKEN TO ENFORCE THIS NOTE, IN
VIOLATION OF SUCH SUBORDINATION AGREEMENT.
SENIOR
SUBORDINATED PROMISSORY NOTE
$11,180,000
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Elkhart, Indiana
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FOR VALUE RECEIVED, PATRICK
INDUSTRIES, INC., an Indiana corporation (hereinafter referred to as the Borrower), hereby promises to pay to the
order of TONTINE CAPITAL PARTNERS, L.P., and its successors and assigns
(hereinafter referred to as Holder),
in the manner hereinafter provided, the principal sum of ELEVEN MILLION ONE
HUNDRED EIGHTY THOUSAND DOLLARS ($11,180,000), as it may be increased herein,
in immediately available funds and in lawful money of the United States of
America, together with interest thereon, all in accordance with the provisions
hereinafter specified. This Note is one
of $13,975,000 in aggregate principal amount of Senior Subordinated Promissory
Notes (each a Note and collectively, the Notes) issued
pursuant to the Securities Purchase Agreement dated April 10, 2007, among the
Borrower and the original purchasers of the Notes (the Purchase
Agreement), and is subject to the provisions set forth therein.
1. Accrual of Interest. Interest shall accrue on the outstanding
principal amount hereof (including any PIK Interest, as hereafter defined) at
(i) a rate equal to nine and one-half percent (9.50%) per annum for the period
beginning on the date hereof and ending on the first anniversary of the date
hereof (the Initial Period) and (ii) a rate
equal to thirteen and one-half percent (13.50%) per annum for the period
following the Initial Period. Interest
shall be calculated hereunder on the basis of the actual number of days
elapsed.
2. Payment of Interest. Commencing on December 31, 2007, the Borrower
shall pay interest on this Note semi-annually in arrears on each June 30 and
December 31 of each calendar year and on the Maturity Date (as hereafter
defined), or if any such day is not a business day, on the next succeeding
business day (each an Interest Payment Date),
to Holder. Interest payable on this Note
shall be paid on each Interest Payment Date, at the election of the Borrower,
(i) in cash or (ii) in kind, in which event the amount of the principal
outstanding under this Note shall be increased by the amount of such interest
payment (PIK Interest) on such Interest Payment
Date and interest shall then accrue on the increased principal amount. During the continuance of an Event of
Default, notwithstanding anything else to the contrary contained in this Note,
interest payable on the outstanding principal hereunder, including any PIK
Interest,
shall bear interest at
the then applicable interest rate set forth in Section 1 plus two percent (2%)
per annum and such interest shall be payable upon demand.
3. Scheduled Principal Payments. The Borrower shall make payments of principal
to Holder as follows: (i) on the first anniversary of this Note, the sum of
$1,118,000, which represents 10% of original principal amount of this Note,
(ii) on the second anniversary of this Note, the sum of $4,472,000, which
represents 40% of original principal amount of this Note, and (iii) on May 18,
2010 (the Maturity Date), a final payment
of the sum of the outstanding principal balance of this Note, including the
amount of any PIK Interest, together with accrued and unpaid interest thereon,
and all other obligations and indebtedness owing hereunder, if not sooner paid.
4. Prepayment.
This Note may be prepaid in whole or in part at any time without premium
or penalty. Any prepayment of principal
shall be accompanied by payment of any interest, if any, accrued and unpaid
through the date of such prepayment.
5. Manner and Application of Payments. All amounts payable in cash hereunder shall be payable to Holder by
wire transfer of immediately available funds. Payments hereunder shall be applied first to
interest and then to principal outstanding hereunder, except that if Holder has
incurred any cost or expense in connection with the enforcement or collection
of the obligations of the Borrower hereunder, Holder shall have the option of
applying any monies received from the Borrower to payment of such costs or
expenses plus interest thereon before applying any of such monies to any
interest or principal then due.
6. No Security. This Note is an unsecured
obligation of the Borrower and no collateral accompanies the obligations
hereunder.
7. Subordination.
The indebtedness of the Borrower evidenced by this Note, including the
principal and interest, is subordinated and junior in right of payment to all
Senior Liabilities under and as defined in the Subordination Agreement dated
the date hereof (the Subordination Agreement)
between the initial Holder and JPMorgan Chase Bank, N.A., as Administrative
Agent, as more fully set forth in the Subordination Agreement.
8. Treatment of Notes. All Notes issued pursuant to the Purchase
Agreement or subsequently issued in replacement thereof shall rank pari passu as to the payment of principal
and interest. Further, the Notes and any
notes subsequently issued in replacement thereof shall rank senior as to the
payment of principal and interest with all present and future indebtedness for
money borrowed of the Borrower or any of its subsidiaries other than (i) the
Senior Liabilities, (ii) indebtedness existing on the date hereof and
identified on Schedule 8 to this Note and extensions, renewals and replacements
of any such indebtedness that do not increase the outstanding principal amount
thereof and (iii) indebtedness of the Borrower or any of its subsidiaries
incurred to finance the acquisition, construction or improvement of any fixed
or capital assets, including capital lease obligations and any indebtedness
assumed in connection with the acquisition of any such assets or secured by a
lien on any such assets prior to the acquisition thereof, and extensions,
renewals and replacements of any indebtedness that do not increase the
outstanding principal amount thereof.
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9. Events of Default. Each of the following acts, events or
circumstances shall constitute an Event of Default (each an Event of Default) hereunder:
(i) the
Borrower shall default in the payment when due (in accordance with the terms of
the Notes) of any principal, including PIK Interest, interest or other amounts
owing hereunder or under any other Note, and such default is not cured within
three (3) business days of the due date;
(ii) any
representation or warranty made by the Borrower in the Purchase Agreement to
shall have been false or misleading in any material respect on the date as of
which such representation or warranty was made;
(iii) the
Borrower shall fail to perform or observe any material agreement, covenant or
obligation arising under any provision hereof, under any other Note or the
Purchase Agreement for more than thirty (30) days following receipt by the
Borrower of a notice from Holder indicating any such violation;
(iv) any
default by the Borrower under the terms of the Senior Liabilities, which
results in the acceleration of the Senior Liabilities;
(v) (a)
the Borrower shall commence a voluntary case concerning itself under any
bankruptcy, insolvency or similar laws or statutes (including Title 11 of
the United States Code, as amended, supplemented or replaced) (collectively,
the Bankruptcy Code); or (b) an
involuntary case is commenced against the Borrower and is not dismissed within
ninety (90) days; or (c) a custodian (as defined in the Bankruptcy Code) is
appointed for, or takes charge of, all or substantially all of the property of
the Borrower or the Borrower commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Borrower or there is commenced
against the Borrower any such proceeding; or (d) any order of relief or other
order approving any such case or proceeding is entered; or (e) the Borrower is
adjudicated insolvent or bankrupt; or (f) the Borrower makes a general
assignment for the benefit of creditors; or (g) the Borrower shall call a
meeting of its creditors with a view to arranging a composition or adjustment
of its debts; or (h) the Borrower shall by any act or failure to act consent
to, approve of or acquiesce in any of the foregoing; and
(vi) this
Note or any other Note shall cease to be in full force and effect, or shall
cease to provide the rights, powers and privileges purported to be created
hereby.
Subject to the
Subordination Agreement, if an Event of Default, other than an Event of Default
described in Section 9(v), occurs, the Holder by written notice to the Borrower
may declare the principal of and accrued interest on this Note to be
immediately due and payable. Upon a
declaration of acceleration, such principal and interest will become
immediately due and payable. If an Event
of Default described in Section 9(v) occurs, the principal of and accrued
interest on this Note then outstanding will become immediately due and payable
without any declaration or other act on the part of the Holder.
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10. Remedies;
Cumulative Rights. In addition to the rights provided under
Section 8, Holder shall also have any other rights that Holder may have been
afforded under any contract or agreement at any time, including the Purchase
Agreement, and any other rights that Holder may have pursuant to applicable
law. No delay on the part of Holder in
the exercise of any power or right under this Note or under any other
instrument executed pursuant hereto shall operate as a waiver thereof, nor
shall a single or partial exercise of any power or right preclude other or
further exercise thereof or the exercise of any other power or right.
No extension of time of
the payment of this Note or any other modification, amendment or forbearance
made by agreement with any person now or hereafter liable for the payment of
this Note shall operate to release, discharge, modify, change or affect the
liability of any co-borrower, endorser, guarantor or any other person with
regard to this Note, either in part or in whole. No failure on the part of Holder or any
holder hereof to exercise any right or remedy hereunder, whether before or
after the occurrence of a default, shall constitute a waiver thereof, and no
waiver of any past default shall constitute a waiver of any future default or
of any other default. No failure to
accelerate the debt evidenced hereby by reason of an Event of Default hereunder
or acceptance of a past due installment, or indulgence granted from time to
time shall be construed to be a waiver of the right to insist upon prompt
payment thereafter, or to impose late payment charges, or shall be deemed to be
a novation of this Note or any reinstatement of the debt evidenced hereby, or a
waiver of such right of acceleration or any other right, or be construed so as
to preclude the exercise of any right which Holder or any holder hereof may
have, whether by the laws of the State of Indiana, by agreement or otherwise,
and none of the foregoing shall operate to release, change or affect the liability
of the Borrower under this Note, and the Borrower hereby expressly waives (to
the extent allowed by law) the benefit of any statute or rule of law or equity
which would produce a result contrary to or in conflict with the foregoing.
11. Waivers. Except for the notices expressly required by
the terms of this Note (which rights to notice are not waived by the Borrower),
the Borrower, for itself and its successors and assigns, hereby forever waives
presentment, protest and demand, notice of protest, demand, dishonor and
non-payment of this Note, and all other notices in connection with the
delivery, acceptance, performance, default or enforcement of the payment of
this Note, and waives and renounces (to the extent allowed by law), all rights
to the benefits of any statute of limitations and any moratorium, appraisement,
and exemption now allowed or which may hereby be provided by any federal or
state statute or decisions against the enforcement and collection of the
obligations evidenced by this Note and any and all amendments, substitutions,
extensions, renewals, increases, and modifications hereof.
12. Attorneys Fees. The Borrower agrees to pay all reasonable
costs and expenses of collection and enforcement of this Note when incurred,
including Holders reasonable attorneys fees and legal and court costs,
including any incurred on appeal or in connection with bankruptcy or
insolvency, whether or not any lawsuit or proceeding is ever filed with respect
hereto.
13. Severability; Invalidity. The Borrower and Holder intend and believe
that each provision in this Note comports with all applicable local, state and
federal laws and judicial decisions.
However, if any provisions, provision, or portion of any provision in this
Note is found by a court of competent jurisdiction to be in violation of any
applicable local, state or federal ordinance,
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statute, law, or
administrative or judicial decision, or public policy, and if such court would
declare such portion, provision or provisions of this Note to be illegal,
invalid, unlawful, void or unenforceable as written, then it is the intent of
all parties hereto that such portion, provision or provisions shall be given
force and effect to the fullest possible extent they are legal, valid and
enforceable, and the remainder of this Note shall be construed as if such
illegal, invalid, unlawful, void or unenforceable portion, provision or
provisions were severable and not contained herein, and the rights, obligations
and interest of the Borrower and Holder hereof under the remainder of this Note
shall continue in full force and effect.
14. Usury. All terms, conditions and agreements herein
are expressly limited so that in no contingency or event whatsoever, whether by
acceleration of maturity of the unpaid principal balance hereof, or otherwise,
shall the amount paid or agreed to be paid to the holders hereof for the use,
forbearance or detention of the money advanced hereunder exceed the highest
lawful rate permissible under applicable laws.
If, from any circumstances whatsoever, fulfillment of any provision
hereof shall involve transcending the limit of validity prescribed by law which
a court of competent jurisdiction may deem applicable hereto, then ipso facto, the obligation to be fulfilled
shall be reduced to the limit of such validity, and if under any circumstances
the holder hereof shall ever receive as interest an amount which would exceed
the highest lawful rate, such amount which would be excessive interest shall be
applied to reduction of the unpaid principal balance due hereunder and not to
the payment of interest.
15. Assignment. The Borrower may not transfer, assign or
delegate any of its rights or obligations hereunder. This Note shall accrue to the benefit of
Holder and its successors and shall be binding upon the undersigned and its
successors. Holder shall have the right,
without the consent of the Borrower, to transfer or assign, in whole or in
part, its rights and interests in and to this Note, and, as used herein, the
term Holder shall mean and include such
successors and assigns.
16. Notices. Any notices required or permitted to be given
under the terms of this Note shall be sent or delivered personally or by
courier (including a recognized, receipted overnight delivery service) or by
facsimile (with a copy sent by a recognized, receipted overnight delivery
service) and shall be effective upon receipt, if delivered personally or by
courier (including a recognized overnight delivery service) or by facsimile, in
each case addressed to a party. The addresses
for such communications shall be:
If to the Borrower:
Patrick
Industries, Inc.
107
West Franklin Street
Elkhart,
Indiana 46516
Telephone:
(574) 294-7511
Facsimile: (574) 522-5213
Attention:
Andy Nemeth
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If to Holder:
Tontine
Capital Partners, L.P.
55
Railroad Avenue, 1st Floor
Greenwich,
Connecticut 06830
Attention:
Mr. Jeffrey L. Gendell
Telephone:
(203) 769-2000
Facsimile: (203) 769-2010
Each
party shall provide notice to the other party of any change in address.
17. Amendment. The provisions of this Note may be amended
only by a written instrument signed by the Borrower and Holder.
18. Governing Law. THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF
ALL PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE
STATE OF INDIANA.
19. Jurisdiction; Waiver of Jury Trial. ALL ACTIONS OR PROCEEDINGS ARISING IN
CONNECTION WITH THIS NOTE SHALL BE FILED, TRIED AND LITIGATED IN THE STATE AND
FEDERAL COURTS LOCATED IN INDIANA. THE
BORROWER WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF THIS NOTE, INCLUDING CONTRACT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. THE BORROWER HAS REVIEWED THIS WAIVER AND
KNOWINGLY AND VOLUNTARILY WAIVES THE AFORESAID TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL. IN THE
EVENT OF LITIGATION, A COPY OF THIS NOTE MAY BE FILED AS A WRITTEN CONSENT TO A
TRIAL BY THE COURT.
[Signature page follows]
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EXECUTED AND DELIVERED at Elkhart, Indiana as of the
date written below.
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PATRICK INDUSTRIES, INC.
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Dated as of May 18, 2007
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By:
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/s/ Andy L. Nemeth
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Name:
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Andy L. Nemeth
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Title:
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Executive Vice President-Finance
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