**Exhibit10.5**

 

|  | ** ** | **Note  Modification Agreement** |
|--|------------|----------------------------------|

 

This agreement is dated as of November 6, 2009 (the “**Agreement Date**”), by and between SupremeCorporation (the “**Borrower**”) andJPMorgan Chase Bank, N.A. (together with its successors and assigns, the “**Bank**”). Theprovisions of this agreement are effective on the date that this agreement hasbeen executed by all of the signers and delivered to the Bank (the “**Effective Date**”).

 

**WHEREAS**, the Borrower executed a Line of CreditNote dated as of December 23, 2008 in the original principal amount ofThirty-Three Million and 00/100 Dollars ($33,000,000.00), (as same may havebeen amended or modified from time to time, the “**Note**”) as evidence of an extension of credit from the Bank tothe Borrower, which Note has at all times been, and is now, continuously andwithout interruption outstanding in favor of the Bank; and,

 

**WHEREAS**, the Borrower has requested and the Bankhas agreed that the Note be modified to the limited extent as hereinafter setforth in this agreement;

 

**NOWTHEREFORE**, inmutual consideration of the agreements contained herein and for other good andvaluable consideration, the parties agree as follows:

 

1.     **ACCURACY OF RECITALS.** The Borrower acknowledges the accuracyof the Recitals stated above.

 

2.     **DEFINITIONS.** Capitalized terms used in this agreement shallhave the same meanings as in the Note, unless otherwise defined in thisagreement.

 

**3.    **MODIFICATION OF NOTE.

** **

3.1  From and after the Effective Date, theprovision in the Note captioned “Promise to Pay” is hereby amended asfollows:  The date on which the entirebalance of unpaid principal plus accrued interest shall be due and payableimmediately is hereby changed from July 31, 2010 to October 31, 2010.

 

3.2  Each of theRelated Documents is modified to provide that it shall be a default or an eventof default thereunder if the Borrower shall fail to comply with any of thecovenants of the Borrower herein or if any representation or warranty by theBorrower herein or by any guarantor in any Related Documents is materiallyincomplete, incorrect, or misleading as of the date hereof. As used in thisagreement, the “**Related Documents**”shall include the Note and all applications for letters of credit, loanagreements, credit agreements, reimbursement agreements, security agreements,mortgages, deeds of trust, pledge agreements, assignments, guaranties, or anyother instrument or document executed in connection with the Note or inconnection with any other obligations of the Borrower to the Bank.

 

3.3  Eachreference in the Related Documents to any of the Related Documents shall be areference to such document as modified by this agreement.

 

4.     **RATIFICATION OF RELATED DOCUMENTS AND COLLATERAL.** The RelatedDocuments are ratified and reaffirmed by the Borrower and shall remain in fullforce and effect as they may be modified by this agreement. All propertydescribed as security in the Related Documents shall remain as security for theNote, as modified by this agreement, and the Liabilities under the otherRelated Documents.

 

5.     **BORROWER REPRESENTATIONS AND WARRANTIES.** The Borrowerrepresents and warrants to the Bank that each of the representations andwarranties made in the Note and the other Related Documents and each of thefollowing representations and warranties are and will remain, true and correctuntil the later of maturity or the date on which all Liabilities evidenced bythe Note are paid in full:

 

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

 

5.2  No event has occurred which may in any onecase or in the aggregate materially and adversely affect the financialcondition, properties, business, affairs, prospects or operations of theBorrower or any guarantor or any subsidiary of the Borrower.

 

5.3  The Borrowerhas no defenses or counterclaims, offsets or adverse claims, demands or actionsof any kind, personal or otherwise, that it could assert with respect to theNote or any other Liabilities.

 

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5.4  The Note, asmodified 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 theirterms, except as may be limited by bankruptcy, insolvency or other lawsaffecting the enforcement of creditors’ rights generally and by generalprinciples of equity.

 

5.5  TheBorrower, other than any Borrower who is a natural person, is validly existingunder the laws of the State of its formation or organization. The Borrower hasthe requisite power and authority to execute and deliver this agreement and toperform the obligations described in the Related Documents as modified herein.The execution and delivery of this agreement and the performance of theobligations described in the Related Documents as modified herein have beenduly authorized by all requisite action by or on behalf of the Borrower. Thisagreement 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 Borrowershall execute, deliver, and provide to the Bank such additional agreements,documents, and instruments as reasonably required by the Bank to effectuate theintent of this agreement.

 

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

 

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

 

6.3.1       Allthe internal and external costs and expenses incurred (or charged by internalallocation) by the Bank in connection with this agreement (including, withoutlimitation, 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 Bankshall not be bound by this agreement until (i) the Bank has executed thisagreement and (ii) the Borrower performed all of the obligations of theBorrower under this agreement to be performed contemporaneously with theexecution 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 Documentscontain the complete understanding and agreement of the Borrower and the Bankin respect of any Liabilities evidenced by the Note and supersede all priorunderstandings, and negotiations. No provision of the Note, as modified by thisagreement, or any other Related Documents may be changed, discharged,supplemented, terminated, or waived except in a writing signed by the partyagainst whom it is being enforced.

 

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

 

10.  **COUNTERPART EXECUTION.** This agreement may be executed inmultiple counterparts, each of which, when so executed, shall be deemed anoriginal, but all such counterparts, taken together, shall constitute one andthe same agreement.

 

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11.  **NOT A NOVATION.** This agreement is a modification only and nota novation. In addition to all amounts hereafter due under the Note, asmodified by this agreement, and the other Related Documents, all accruedinterest evidenced by the Note being modified by this agreement and all accruedamounts due and payable under the Related Documents shall continue to be dueand payable until paid. Except for the modification(s) set forth in thisagreement, the Note, the other Related Documents and all the terms andconditions thereof, shall be and remain in full force and effect with thechanges herein deemed to be incorporated therein. This agreement is to beconsidered attached to the Note and made a part thereof. This agreement shallnot release or affect the liability of any guarantor, surety or endorser of theNote or release any owner of collateral securing the Note. The validity, priorityand enforceability of the Note shall not be impaired hereby. References to theRelated Documents and to other agreements shall not affect or impair theabsolute and unconditional obligation of the Borrower to pay the principal andinterest on the Note when due. The Bank reserves all rights against all partiesto 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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