Exhibit 10.1


 


	
   

  

   

  	
  Amendment
  to Credit Agreement

  



 


This agreement is
dated as of September 26, 2008, by and between Supreme Corporation (the “Borrower”)
and JPMorgan Chase Bank, N.A. (the “Bank”), and its successors and assigns. 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 January 5,
2004, 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 below;


 


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 not defined herein shall have the meaning ascribed in the
Credit Agreement.


 


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


 


2.1          From and after the Effective Date, Section 1.2
of the Credit Agreement captioned “Facility  (Line of Credit ).” is hereby
amended and restated to read as follows:


 


1.2  Facility A (Line of Credit). The Bank has approved a credit facility to the
Borrower in the principal sum not to exceed $40,000,000.00 in the aggregate at
any one time outstanding (“Facility A”).
Credit under Facility A shall be repayable as set forth in a Line of Credit
Note executed concurrently with this agreement, and any renewals,
modifications, extensions, rearrangements, restatements thereof and
replacements or substitutions therefor.


 


Non Usage Fee. The Borrower shall pay to the Bank a
non-usage fee (the “Non-usage Fee”) on the average daily unused portion of
Facility A at a rate per annum set forth below opposite the applicable Funded
Debt to EBITDA Ratio, payable in arrears within fifteen (15) days of the end of
each fiscal quarter for which the fee is owing.


 


	
  Funded Debt to EBITDA Ratio

  	
   

  	
  Non Usage Fee

  	
   

  
	
  Greater than 4.00 to 1.00

  	
   

  	
  0.40

  	
  %

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

  	
   

  	
  0.35

  	
  %

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

  	
   

  	
  0.30

  	
  %

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

  	
   

  	
  0.25

  	
  %

  
	
  Less than or equal to 2.50 to
  1.00

  	
   

  	
  0.20

  	
  %

  



 


Borrowing Base. The
aggregate principal amount of advances outstanding at any one time under the
Line of Credit Note (and any and all renewals, modifications, extensions,
rearrangements, restatements thereof and replacements or substitutions
therefor) evidencing Facility A (the “Aggregate
Outstanding Amount”) shall not exceed the Borrowing Base or the
maximum principal amount then available under Facility A, whichever is less
(the “Maximum Available Amount”).
If at any time the Aggregate Outstanding Amount exceeds the Maximum Available
Amount, the Borrower shall immediately pay the Bank an amount equal to such
excess. “Borrowing Base” means the
aggregate of:


 


A.    80% of the book value of
all Eligible Accounts; plus


 


B.    50% of the lower of cost
(determined using the first-in, first-out method of inventory accounting) or
wholesale market value, as determined by the Bank, of all raw material and
finished goods Eligible Inventory.


 


2.2          From and after the
Effective Date, the following Definitions are hereby added to Section 2 of
the Credit Agreement;


 

















 


2.7          “Eligible Accounts” means, at any time, all
of the Borrower’s Accounts in which the Bank has a first priority continuing
perfected Lien and which are earned and invoiced within thirty (30) days of
being earned and which contain selling terms and conditions satisfactory to the
Bank, are payable on ordinary trade terms, and are not evidenced by a
promissory note, other instrument or chattel paper. The net amount of any Eligible
Account against which the Borrower may borrow shall exclude all returns,
discounts, credits, and offsets of any nature. Unless otherwise agreed to by
the Bank in writing, Eligible Accounts do not include Accounts: (1) which
are not owned by the Borrower free and clear of all Liens, constructive trust,
statutory priorities not in favor of the Bank, and claims of Persons other than the Bank; (2) with
respect to which the Account Debtor is an Affiliate of the Borrower or
otherwise affiliated with or related to the Borrower, including without
limitation, any employee, officer, director, Equity Owner or agent of the
Borrower; (3) with respect to which goods are placed on consignment,
guaranteed sale, bill-and-hold, sale-and-return, sale on approval, cash-on-delivery
or other terms by reason of which the payment by the Account Debtor may be
conditional; (4) with respect to which the Account Debtor is not a
resident of the United States, except to the extent such Accounts are otherwise
Eligible Accounts and are supported by insurance, bonds or other assurances
satisfactory to the Bank; (5) subject to the U.S. Office of Foreign Asset
Control Special Designated Nationals and Blocked Person’s List, or with respect
to which the Account Debtor is otherwise a Person with whom the Borrower or the
Bank is prohibited from doing business by any applicable Legal Requirement; (6) which
are not payable in U.S. Dollars; (7) with respect to which the Borrower is
or may become liable to the Account Debtor for goods sold or services rendered
by the Account Debtor to the Borrower; (8) which are subject to dispute,
counterclaim, deduction, withholding, defense, or setoff; (9) with respect
to which the goods have not been shipped or delivered, or the services have not
been rendered, to the Account Debtor, or which otherwise constitute pre-billed
Accounts; (10) which constitute retainage, or are bonded Accounts; (11)
with respect to which the Bank determines the creditworthiness, financial or
business condition of the Account Debtor to be unsatisfactory; (12) of any
Account Debtor who is the subject of any
state or federal bankruptcy, insolvency, or debtor-in-relief acts, or who has
had appointed a trustee, custodian, or receiver for the assets of such Account
Debtor, or who has made an assignment for the benefit of creditors or has
become insolvent or fails generally to pay its debts (including its payrolls)
as such debts become due; (13) with respect to which the Account Debtor is the
United States government or any department or agency of the United States; (14)
otherwise determined to be ineligible by the Bank and (15) which have not been
paid in full within ninety (90) days from the invoice date. In no event will
the balance of any Account of any single Account Debtor be eligible whenever
the portion of the Accounts of such Account Debtor which have not been paid
within ninety (90) days from the invoice date is in excess of 25% of the total
amount outstanding on all Accounts of such Account Debtor.


 


2.8          “Eligible Inventory” means, at any time, all
of the Borrower’s Inventory in which the Bank has a first priority continuing
perfected Lien except Inventory which is: (1) not owned by it free and
clear of all Liens except in favor of the Bank, and claims of Persons other than the
Bank; (2) slow moving, obsolete, unsalable, damaged, defective,
perishable, or unfit for further processing; (3) work in process; (4) subject
to consignment or otherwise in the possession of another Person, unless
otherwise agreed to by the Bank in writing; (5) in transit or located
outside of the United States; (6) identified to be purchased under a
contract under which it has received, or is entitled to receive, an advance
payment; (7) determined by the Bank to be ineligible due to licensing,
intellectual property, or any Legal Requirements that would make it difficult
to sell, lease or use such Inventory; (8) comprised of samples, returns,
rejected items, re-work items, non-standard items, odd-lots, or repossessed
goods; (9) produced in violation of applicable Legal Requirements,
including the Fair Labor Standards Act and the regulations and orders of the
Department of Labor; or (10) otherwise determined ineligible by the Bank;
provided, however, that transportation and storage charges shall be excluded
from amounts otherwise included in Eligible Inventory.


 


2.9          “Inventory” means raw materials, work in
process, finished goods, merchandise, parts and supplies, of every kind and
goods held for sale or lease or furnished under contracts of service and all
documents of title, warehouse receipts, bills of lading, and all other
documents of every type covering all or any part of the foregoing.


 


2.10        Intangible Assets” means the
aggregate amount of: (1) all assets classified as intangible assets under
GAAP, including, without limitation, goodwill, trademarks, patents, copyrights,
organization expenses, franchises, licenses, trade names, brand names, mailing
lists, catalogs, excess of cost over book value of assets acquired, and bond
discount and underwriting expenses; and (2) loans or advances to,
investments in, or receivables from (i) any Affiliate, officer, director,
employee, Equity Owner or agent of the Borrower or 


 


2

















 


(ii) any Person if such loan, advance, investment
or receivable is outside the Borrower’s ordinary course of business.


 


2.3          From and after the Effective Date, Section 5.2 of
the Credit Agreement captioned “K. Debt Service Coverage
Ratio” and “L. Funded Debt to EBITDA Ratio” are hereby deleted in
their entirety.


 


3.             RATIFICATION. The Borrower ratifies and
reaffirms the Credit Agreement and the Credit Agreement shall remain in full
force and effect as modified herein.


 


4.             BORROWER
REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants that (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, act or event which could constitute an event of default under the
Credit Agreement or any promissory note or credit facility executed in
reference to the Credit Agreement exists, and (c) no condition, event, act
or omission has occurred, which, with the giving of notice or passage of time,
would constitute an event of default under the Credit Agreement or any
promissory note or credit facility executed in reference to the Credit
Agreement.


 


5.             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.


 


6.             EXECUTION AND
DELIVERY. This agreement shall become effective only after it is fully
executed by the Borrower and the Bank.


 


7.             ACKNOWLEDGEMENTS OF
BORROWER. 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 on or prior to the date of
this agreement. 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 claims, causes of action, debts 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 the Bank
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.


 


(THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)


 


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8.             NOT A NOVATION.
This agreement is a modification only and not a novation. Except for the
above-quoted modification(s), the Credit Agreement, any loan agreements, credit
agreements, reimbursement agreements, security agreements, mortgages, deeds of
trust, pledge agreements, assignments, guaranties, instruments or documents
executed in connection with the Credit Agreement, 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 document executed in conjunction therewith, the provisions of
this agreement shall supersede and control. The Bank expressly reserves all
rights against all parties to the Credit Agreement.


 


 


	
   

  	
  Borrower:

  
	
   

  
	
   

  	
  Supreme
  Corporation

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Robert W. Wilson 

  	
  President  

  
	
   

  	
   

  	
  Printed Name

  	
  Title  

  
	
   

  
	
   

  	
  Date Signed:

  	
  9-26-2008

  
	
   

  
	
   

  
	
   

  	
  Bank:

  
	
   

  
	
   

  	
  JPMorgan Chase
  Bank, N.A.

  
	
   

  
	
   

  	
  By:

  	
   

  
	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Authorized Signer

  	
   

  
	
   

  
	
   

  	
  Date Signed:

  	
  9-26-2008

  
									



 


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