Exhibit 10.2


 


	
   

  

   

  	
  Note
  Modification Agreement

  



 


This agreement is dated as of September 26, 2008 (the “Agreement
Date”), by and between Supreme Corporation (the “Borrower”) and JPMorgan Chase
Bank, N.A. (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 as evidence of indebtedness in the
original face amount of Forty Million and 00/100 Dollars ($40,000,000.00),
dated August 11, 2008 owing by the Borrower to the Bank, as same may have
been amended or modified from time to time (the “Note”), 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;


 


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.     MODIFICATION
OF NOTE.


 


2.1   From and after the Effective Date, the
provision in the Note captioned “Applicable
Margin” is hereby amended and restated to read as follows:


 


“Applicable
Margin” means with respect to any Prime Rate Advance or LIBOR
Rate Advance, as the case may be, the rate per annum set forth below for such
Advance and opposite the applicable Funded Debt to EBITDA Ratio. Funded Debt to
EBITDA Ratio is defined as Supreme Industries, Inc. and its subsidiaries’
ratio of (a) accounts arising from the purchase of goods and services in
the ordinary course of business, (ii) accrued expenses or losses, (iii) deferred
revenues or gains, and (iv) controlled disbursements, to (b) net
income, plus amortization expense, depreciation expense, interest expense and
income tax expense.


 


	
   

  	
   

  	
  Applicable Margin

  	
   

  
	
  Funded Debt to EBITDA Ratio

  	
   

  	
  Prime Rate Advance

  	
   

  	
  LIBOR Rate Advance

  	
   

  
	
  Greater than 4.00 to 1.00

  	
   

  	
  2.00

  	
  %

  	
  3.80

  	
  %

  
	
  Greater than or equal to 3.51
  to 1.00 but less than or equal to 4.00
  to 1.00

  	
   

  	
  1.60

  	
  %

  	
  3.40

  	
  %

  
	
  Greater than or equal to 3.01
  to 1.00 but less than or equal to 3.50
  to 1.00

  	
   

  	
  1.30

  	
  %

  	
  3.00

  	
  %

  
	
  Greater than or equal to 2.51
  to 1.00 but less than or equal to 3.00
  to 1.00

  	
   

  	
  1.00

  	
  %

  	
  2.75

  	
  %

  
	
  Less than or equal to 2.50 to
  1.00

  	
   

  	
  0.50

  	
  %

  	
  2.50

  	
  %

  



 


The Applicable Margin
shall, in each case, be determined and adjusted on March 1st, June 1st,
September 1st, and December 1st of each year this Note is effective,
based on the quarterly financial statements required by the Credit Agreement,
provided that the Bank has received those financial statements on a timely
basis as required by the Credit Agreement. If such financial statements are not
delivered within two Business Days after the required date, the Applicable
Margin shall increase to the maximum percentage amount set forth in the table
above from the date such financial statements were required to be delivered to
the Bank until received by the Bank. Such determinations by the Bank shall be
conclusive absent manifest error. The initial Applicable Margin for Prime Rate
Advances is 1.00% and for LIBOR Rate Advances 2.75%.


 


2.2   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 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.


 


2.3   Each
reference in the Related Documents to any of the Related Documents shall be a
reference to such document as modified herein.


 

















 


3.     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 herein. All real or
personal property described as security in the Related Documents shall remain
as security for the Note and the obligations of the Borrower in the Related
Documents.


 


4.     BORROWER REPRESENTATIONS AND WARRANTIES. The
Borrower represents and warrants to the Bank that each of the following
representations and warranties made in the Note and Related Documents are true
and will remain true until maturity of the Note, termination of the other
Related Documents and payment and performance in full of all liabilities,
obligations and debt evidenced by the Note and other Related Documents:


 


4.1   No
default or event of default under any of the Related Documents as modified
hereby, nor any event, that, with the giving of notice or the passage of time
or both, would be a default or an event of default under the Related Documents
as modified herein has occurred and is continuing.


 


4.2   There has
been no material adverse change in the business, assets, affairs, prospects or
financial condition of the Borrower or any Guarantor or any subsidiary of the
Borrower.


 


4.3   Each
and all representations and warranties of the Borrower in the Related Documents
are accurate on the date hereof.


 


4.4   The
Borrower has no claims, counterclaims, defenses, or setoffs with respect to the
loan evidenced by the Note or with respect to the Related Documents as modified
herein.


 


4.5   The
Note and the Related Documents as modified herein are the legal, valid, and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their terms.


 


4.6   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.


 


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


 


5.1   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.


 


5.2   The
Borrower fully, finally, and forever releases and discharges the Bank and its
successors, assigns, directors, officers, employees, agents, and
representatives 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 the Bank 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.


 


5.3   The
Borrower shall pay to the Bank:


 


5.3.1        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).


 


6.     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.


 


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


 


8.     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 


 


2

















 


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.


 


9.     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.


 


10.   NOT A NOVATION. This agreement is a
modification only and not a novation. In addition to all amounts hereafter due
under the Note and the Related Documents as they may be modified herein, 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 above-quoted modification(s), the
Note, any 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.


 


 


	
   

  	
  Borrower:

  
	
   

  	
   

  
	
  Address:

  	
  2581 Kercher
  Road

  	
  Supreme
  Corporation

  
	
   

  	
  Goshen, IN 46528

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert W. Wilson

  	
  President 

  
	
   

  	
   

  	
  Printed Name

  	
  Title  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Date Signed:

  	
  9-26-2008

  
						



 


 


BANK’S
ACCEPTANCE


 


The foregoing agreement is hereby agreed to and acknowledged.


 


 


	
   

  	
  Bank:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
  JPMorgan Chase
  Bank, N.A.

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Authorized Signer

  	
   

  
	
   

  
	
   

  
	
   

  	
   

  	
   

  	
  Date Signed:

  	
  9-26-2008

  
							



 


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