Exhibit
10.5


 




	
  

  	
   

  	
  Note
  Modification Agreement

  






 


This agreement is dated as of November 6, 2009 (the “Agreement Date”), by and between Supreme
Corporation (the “Borrower”) and
JPMorgan Chase Bank, N.A. (together with its successors and assigns, the “Bank”). The
provisions of this agreement are effective on the date that this agreement has
been executed by all of the signers and delivered to the Bank (the “Effective Date”).


 


WHEREAS, the Borrower executed a Line of Credit
Note dated as of December 23, 2008 in the original principal amount of
Thirty-Three Million and 00/100 Dollars ($33,000,000.00), (as same may have
been amended or modified from time to time, the “Note”) as evidence of an extension of credit from the Bank to
the Borrower, which Note has at all times been, and is now, continuously and
without interruption outstanding in favor of the Bank; and,


 


WHEREAS, the Borrower has requested and the Bank
has agreed that the Note be modified to the limited extent as hereinafter set
forth in this agreement;


 


NOW
THEREFORE, in
mutual consideration of the agreements contained herein and for other good and
valuable consideration, the parties agree as follows:


 


1.     ACCURACY OF RECITALS. The Borrower acknowledges the accuracy
of the Recitals stated above.


 


2.     DEFINITIONS. Capitalized terms used in this agreement shall
have the same meanings as in the Note, unless otherwise defined in this
agreement.


 


3.     MODIFICATION OF NOTE.


 


3.1  From and after the Effective Date, the
provision in the Note captioned “Promise to Pay” is hereby amended as
follows:  The date on which the entire
balance of unpaid principal plus accrued interest shall be due and payable
immediately is hereby changed from July 31, 2010 to October 31, 2010.


 


3.2  Each of the
Related Documents is modified to provide that it shall be a default or an event
of default thereunder if the Borrower shall fail to comply with any of the
covenants of the Borrower herein or if any representation or warranty by the
Borrower herein or by any guarantor in any Related Documents is materially
incomplete, incorrect, or misleading as of the date hereof. As used in this
agreement, the “Related Documents”
shall include the Note and all applications for letters of credit, loan
agreements, credit agreements, reimbursement agreements, security agreements,
mortgages, deeds of trust, pledge agreements, assignments, guaranties, or any
other instrument or document executed in connection with the Note or in
connection with any other obligations of the Borrower to the Bank.


 


3.3  Each
reference in the Related Documents to any of the Related Documents shall be a
reference to such document as modified by this agreement.


 


4.     RATIFICATION OF RELATED DOCUMENTS AND COLLATERAL. The Related
Documents are ratified and reaffirmed by the Borrower and shall remain in full
force and effect as they may be modified by this agreement. All property
described as security in the Related Documents shall remain as security for the
Note, as modified by this agreement, and the Liabilities under the other
Related Documents.


 


5.     BORROWER REPRESENTATIONS AND WARRANTIES. The Borrower
represents and warrants to the Bank that each of the representations and
warranties made in the Note and the other Related Documents and each of the
following representations and warranties are and will remain, true and correct
until the later of maturity or the date on which all Liabilities evidenced by
the Note are paid in full:


 


5.1  No default,
event of default or event that would constitute a default or event of default
but for the giving of notice, the lapse of time or both, has occurred and is
continuing under any provision of the Note, as modified by this agreement, or
any other Related Document.


 


5.2  No event has occurred which may in any one
case or in the aggregate materially and adversely affect the financial
condition, properties, business, affairs, prospects or operations of the
Borrower or any guarantor or any subsidiary of the Borrower.


 


5.3  The Borrower
has no defenses or counterclaims, offsets or adverse claims, demands or actions
of any kind, personal or otherwise, that it could assert with respect to the
Note or any other Liabilities.


 

















 


5.4  The Note, as
modified by this agreement, and the other Related Documents are the legal,
valid, and binding obligations of the Borrower and the other parties,
enforceable against the Borrower and other parties in accordance with their
terms, except as may be limited by bankruptcy, insolvency or other laws
affecting the enforcement of creditors’ rights generally and by general
principles of equity.


 


5.5  The
Borrower, other than any Borrower who is a natural person, is validly existing
under the laws of the State of its formation or organization. The Borrower has
the requisite power and authority to execute and deliver this agreement and to
perform the obligations described in the Related Documents as modified herein.
The execution and delivery of this agreement and the performance of the
obligations described in the Related Documents as modified herein have been
duly authorized by all requisite action by or on behalf of the Borrower. This
agreement has been duly executed and delivered by or on behalf of the Borrower.


 


6.     BORROWER COVENANTS. The Borrower covenants with the Bank:


 


6.1  The Borrower
shall execute, deliver, and provide to the Bank such additional agreements,
documents, and instruments as reasonably required by the Bank to effectuate the
intent of this agreement.


 


6.2  The Borrower
fully, finally, and forever releases and discharges the Bank, its successors,
and assigns and their respective directors, officers, employees, agents, and
representatives (each a “Bank Party”)
from any and all causes of action, claims, debts, demands, and liabilities, of
whatever kind or nature, in law or equity, of the Borrower, whether now known
or unknown to the Borrower, (i) in respect of the loan evidenced by the
Note and the Related Documents, or of the actions or omissions of any Bank
Party in any manner related to the loan evidenced by the Note or the Related
Documents and (ii) arising from events occurring prior to the date of this
agreement.


 


6.3  To the
extent not prohibited by applicable law, the Borrower shall pay to the Bank:


 


6.3.1       All
the internal and external costs and expenses incurred (or charged by internal
allocation) by the Bank in connection with this agreement (including, without
limitation, inside and outside attorneys, appraisal, appraisal review,
processing, title, filing, and recording costs, expenses, and fees).


 


7.     EXECUTION AND DELIVERY OF AGREEMENT BY THE BANK. The Bank
shall not be bound by this agreement until (i) the Bank has executed this
agreement and (ii) the Borrower performed all of the obligations of the
Borrower under this agreement to be performed contemporaneously with the
execution and delivery of this agreement.


 


8.     INTEGRATION, ENTIRE AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER.
The Note, as modified by this agreement, and the other Related Documents
contain the complete understanding and agreement of the Borrower and the Bank
in respect of any Liabilities evidenced by the Note and supersede all prior
understandings, and negotiations. No provision of the Note, as modified by this
agreement, or any other Related Documents may be changed, discharged,
supplemented, terminated, or waived except in a writing signed by the party
against whom it is being enforced.


 


9.     GOVERNING LAW AND VENUE. This agreement shall be governed by
and construed in accordance with the laws of the State of Indiana (without
giving effect to its laws of conflicts). The Borrower agrees that any legal
action or proceeding with respect to any of its obligations under the Note or
this agreement may be brought by the Bank in any state or federal court located
in the State of Indiana, as the Bank in its sole discretion may elect. By the
execution and delivery of this agreement, the Borrower submits to and accepts,
for itself and in respect of its property, generally and unconditionally, the
non-exclusive jurisdiction of those courts. The Borrower waives any claim that
the State of Indiana is not a convenient forum or the proper venue for any such
suit, action or proceeding. This agreement binds the Borrower and its
successors, and benefits the Bank, its successors and assigns. The Borrower
shall not, however, have the right to assign the Borrower’s rights under this
agreement or any interest therein, without the prior written consent of the
Bank.


 


10.  COUNTERPART EXECUTION. This agreement may be executed in
multiple counterparts, each of which, when so executed, shall be deemed an
original, but all such counterparts, taken together, shall constitute one and
the same agreement.


 


2

















 


11.  NOT A NOVATION. This agreement is a modification only and not
a novation. In addition to all amounts hereafter due under the Note, as
modified by this agreement, and the other Related Documents, all accrued
interest evidenced by the Note being modified by this agreement and all accrued
amounts due and payable under the Related Documents shall continue to be due
and payable until paid. Except for the modification(s) set forth in this
agreement, the Note, the other Related Documents and all the terms and
conditions thereof, shall be and remain in full force and effect with the
changes herein deemed to be incorporated therein. This agreement is to be
considered attached to the Note and made a part thereof. This agreement shall
not release or affect the liability of any guarantor, surety or endorser of the
Note or release any owner of collateral securing the Note. The validity, priority
and enforceability of the Note shall not be impaired hereby. References to the
Related Documents and to other agreements shall not affect or impair the
absolute and unconditional obligation of the Borrower to pay the principal and
interest on the Note when due. The Bank reserves all rights against all parties
to the Note and the other Related Documents.


 


 


	
   

  	
  Borrower:

  
	
   

  	
   

  
	
  Address:

  	
  2581 Kercher Road

  	
  Supreme
  Corporation

  
	
   

  	
  Goshen, IN 46528

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Mowery

  	
   

  
	
   

  	
   

  	
  Jeff Mowery

  	
  CFO

  
	
   

  	
   

  	
  Printed Name

  	
  Title

  
	
   

  	
   

  
	
   

  	
  Date Signed:

  	
  11-6-09

  
						



 


 


BANK’S ACCEPTANCE


 


The foregoing agreement is hereby agreed to and acknowledged.


 


 


	
   

  	
  Bank:

  
	
   

  	
   

  
	
   

  	
  JPMorgan Chase
  Bank, N.A.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
   

  
	
   

  	
   

  	
   

  	
  VP

  
	
   

  	
   

  	
  Printed Name

  	
  Title

  
	
   

  	
   

  
	
   

  	
  Date Signed:

  	
  11-6-09

  
					



 


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