Exhibit
10.4


 




	
  

  	
   

  	
  Amendment
  to Credit Agreement

  






 


This agreement is
dated as of November 6, 2009, 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 and the Bank entered into
a credit agreement dated December 23, 2008, as amended (if applicable)
(the “Credit Agreement”); and


 


WHEREAS, the Borrower has requested and the Bank
has agreed to amend the Credit Agreement as 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.                                      DEFINED TERMS. Capitalized terms used in this
agreement shall have the same meanings as in the Credit Agreement, unless
otherwise defined in this agreement.


 


2.                                      WAIVER. The Bank hereby waives the violation of Section 5.2
of the Credit Agreement, entitled “O. Adjusted EBITDA”, and any default caused
thereby, which violations occurred prior to the date of this agreement, but
strict compliance with each of these covenants shall be required at all times
hereafter. Nothing in this paragraph shall be construed as a waiver of any
other term or condition of the Credit Agreement nor shall be construed as a
commitment on the part of the Bank to waive any subsequent violation of the
same or any other term or condition set forth in the Credit Agreement, as
amended by this agreement.


 


3.                                      MODIFICATION OF CREDIT
AGREEMENT. The
Credit Agreement is hereby amended as follows:


 


3.1                               From and after
the Effective Date, Section 5.2 of the Credit Agreement captioned “M.
Tangible Net Worth” is hereby amended and restated to read as follows:


 


M.             Tangible Net Worth.  Permit at October 31, 2009, or at any
time thereafter, the consolidated Tangible Net Worth of the Borrower and its
Subsidiaries to be less than $64,000,000.00


 


3.2          That certain Amendment to Credit Agreement dated as of September 9,
2009, by and between the Borrower and the Bank, in the first recital paragraph
incorrectly referred to the Credit Agreement as being dated “January 5,
2004, “and the Borrower and the Bank hereby agree that this date should have
read, and is hereby amended and corrected to read :December 23, 2008.


 


4.                                      RATIFICATION. The Borrower ratifies and reaffirms the Credit
Agreement and the Credit Agreement shall remain in full force and effect as
modified by this agreement.


 


5.                                      BORROWER REPRESENTATIONS
AND WARRANTIES.
The Borrower represents and warrants that, other than as may be described in Section 2
of this agreement (a) the representations and warranties contained in the
Credit Agreement are true and correct in all material respects as of the date
of this agreement, (b) no condition, event, act or omission which could
constitute a default or an event of default under the Credit Agreement, as
modified by this agreement, or any other Related Document exists, and (c) no
condition, event, act or omission has occurred and is continuing that with the
giving of notice, or the passage of time or both, would constitute a default or
an event of default under the Credit Agreement, as modified by this agreement,
or any other Related Document.


 


6.                                      FEES AND EXPENSES. The Borrower agrees to pay all fees and
out-of-pocket disbursements incurred by the Bank in connection with this
agreement, including legal fees incurred by the Bank in the preparation,
consummation, administration and enforcement of this agreement.


 


7.                                      EXECUTION AND DELIVERY. This agreement shall become effective
only after it is fully executed by the Borrower and the Bank, and the Bank
shall have received from the Borrower the following documents: Note
Modification Agreement.


 


8.                                      ACKNOWLEDGEMENTS OF
BORROWER / RELEASE.
The Borrower acknowledges that as of the date of this agreement it has no
offsets with respect to all amounts owed by the Borrower to the Bank arising
under or related to the


 

















 


Credit Agreement, as modified by this agreement, or
any other Related Document on or prior to the date of this agreement. 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 claims, causes of action, debts, demands
and liabilities, of whatever kind or nature, in law or in equity, of the
Borrower, whether now known or unknown to the Borrower, which may have arisen
in connection with the Credit Agreement or the actions or omissions of any Bank
Party related to the Credit Agreement on or prior to the date hereof. The
Borrower acknowledges and agrees that this agreement is limited to the terms outlined
above, and shall not be construed as an agreement to change any other terms or
provisions of the Credit Agreement. This agreement shall not establish a course
of dealing or be construed as evidence of any willingness on the Bank’s part to
grant other or future agreements, should any be requested.


 


9.                                      INTEGRATION, ENTIRE
AGREEMENT, CHANGE, DISCHARGE, TERMINATION, OR WAIVER. The Credit Agreement, 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 the
Credit Facilities and supersede all prior understandings and negotiations. No
provision of the Credit Agreement, as modified by this agreement, or the 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.


 


10.                               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 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.


 


11.                               NOT A NOVATION. This agreement is a modification only
and not a novation. Except as expressly modified by this agreement, the Credit
Agreement, any 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 Credit Agreement and made a part thereof. This agreement shall not
release or affect the liability of any guarantor of any promissory note or
credit facility executed in reference to the Credit Agreement or release any
owner of collateral granted as security for the Credit Agreement. The validity,
priority and enforceability of the Credit Agreement shall not be impaired
hereby. To the extent that any provision of this agreement conflicts with any
term or condition set forth in the Credit Agreement, or any other Related
Documents, the provisions of this agreement shall supersede and control. The
Bank expressly reserves all rights against all parties to the Credit Agreement
and the other Related Documents.


 


 


	
   

  	
  Borrower:

  
	
   

  	
   

  
	
   

  	
  Supreme
  Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Mowery

  	
   

  
	
   

  	
   

  	
  Jeff Mowery

  	
  CFO

  
	
   

  	
   

  	
  Printed Name

  	
  Title

  
	
   

  	
   

  
	
   

  	
  Date Signed:

  	
  11-6-09

  
					



 


 


	
   

  	
  Bank:

  
	
   

  	
   

  
	
   

  	
  JPMorgan Chase
  Bank, N.A.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ 

  	
   

  
	
   

  	
   

  	
   

  	
  VP

  
	
   

  	
   

  	
  Printed Name

  	
  Title

  
	
   

  	
   

  
	
   

  	
  Date Signed:

  	
  11-6-09

  
					



 


 


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