EXHIBIT 10.1


	
 


	
THIRD
  AMENDMENT TO CREDIT AGREEMENT


	






          THIS
THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment” or “Third Amendment”) has
been executed as of the 14th day of December, 2007, (the “Third
Amendment Effective Date”), by INDIAN-MARTIN, INC., a Nevada corporation,
(“Company”), and JPMORGAN CHASE BANK, N.A., successor by merger to BANK ONE,
NATIONAL ASSOCIATION, a national banking association (“Bank”).


Recitals


          1.
Company and Bank (collectively, the “Parties”) are parties to a Credit
Agreement, dated as of September 5, 2003, which has previously been amended (as
in effect immediately prior to the execution of this Amendment, the “Existing
Agreement”).


          2.
The Parties have determined that it is in their best interests to amend the
Existing Agreement, effective as of the Third Amendment Effective Date, as set
forth in this Third Amendment, and subject to the terms and conditions of this
Third Amendment.


Agreement


          NOW
THEREFORE, in consideration of the Recitals and for other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged by
each of the Parties to this Third Amendment, it is agreed as follows:


          1. Definitions.
Terms which are defined in the Existing Agreement shall have the same meanings
in this Amendment as are ascribed to them in the Existing Agreement, as amended
hereby, excepting only those terms which are expressly defined in this
Amendment, which shall have the meanings ascribed to them in this Amendment.


3






          2. Amendments
to Existing Agreement.


          (a)
Amendments to Definitions. The following definitions, which are set
forth in Section 1.02 of the Existing Agreement, are amended and restated in
their entirety as of the Third Amendment Effective Date to read as follows:


	
 

	
 


	
 

	
“Maximum Availability” means as of the
  date any determination thereof is to be made, the lesser of: (i) the
  Borrowing Base as of such date, and (ii) the following amounts during
  the respective time periods described:








	
 

	
 

	
 

	
 


	
 

	
Third Amendment Effective Date through December 31,
  2007

	
$30,000,000.00

	
 


	
 

	
January 1, 2008 through January 31, 2008

	
$25,000,000.00

	
 


	
 

	
February 1, 2008 through June 30, 2008

	
$20,000,000.00

	
 


	
 

	
July 1, 2008 through September 30, 2008

	
$30,000,000.00

	
 


	
 

	
October 1, 2008 through October 31, 2008

	
$45,000,000.00

	
 


	
 

	
November 1, 2008 through November 30, 2008

	
$40,000,000.00

	
 


	
 

	
December 1, 2008 through December 31, 2008

	
$30,000,000.00

	
 


	
 

	
January 1, 2009 through January 31, 2009

	
$25,000,000.00

	
 


	
 

	
February 1, 2009 through June 30, 2009

	
$20,000,000.00

	
 


	
 

	
July 1, 2009 through September 30, 2009

	
$30,000,000.00

	
 


	
 

	
October 1, 2009 through October 31, 2009

	
$45,000,000.00

	
 


	
 

	
November 1, 2009 through November 30, 2009

	
$40,000,000.00

	
 


	
 

	
December 1, 2009 through December 31, 2009

	
$30,000,000.00

	
 


	
 

	
January 1, 2010 through January 31, 2010

	
$25,000,000.00

	
 


	
 

	
February 1, 2010 through Scheduled Maturity Date

	
$20,000,000.00 

	
 








	
 

	
 


	
 

	
“Scheduled Maturity Date” means June 30,
  2010 or such later date as may be established pursuant to the terms of
  Section 2.01(d) of this Agreement.


	
 

	
 


	
 

	
“Revolving Note” has the meaning ascribed
  to it in Section 2.01(b) of this Agreement which Revolving Note shall be in
  form and substance substantially the same as Exhibit “I” attached to the
  Third Amendment.





4






          (b)
New Definitions. Section 1.02 of the Existing Agreement is hereby
amended, effective as of the Third Amendment Effective Date, by adding thereto
in appropriate alphabetical sequence the following new definitions:


	
 

	
 


	
 

	
The term “Third Amendment” means the Third
  Amendment to Credit Agreement, dated as of the Third Amendment Effective
  Date, executed by and between the Parties.


	
 

	
 


	
 

	
The term “Third Amendment Effective Date” is used
  as defined in the Preamble of the Third Amendment.





          3.
Representations and Warranties. Company represents and warrants to Bank
that:


          (a)
(i)The execution, delivery and performance of this Amendment and all agreements
and documents delivered pursuant hereto by Company have been duly authorized by
all necessary corporate action and do not and will not violate any provision of
any law, rule, regulation, order, judgment, injunction or writ presently in
effect applying to Company, or its articles of incorporation, or result in a
breach of or constitute a default under any material agreement, lease or
instrument to which Company is a party or by which it or any of its properties
may be bound or affected; (ii) no authorization, consent, approval, license,
exemption or filing of a registration with any court or governmental authority,
department, agency or instrumentality is or will be necessary to the valid execution,
delivery or performance by Company of this Amendment and all agreements and
documents delivered pursuant hereto; and (iii) this Amendment and all
agreements and documents delivered pursuant hereto by Company are the legal,
valid and binding obligations of


5






Company, as a signatory thereto, and are enforceable
against Company in accordance with the terms thereof.


          (b)
After giving effect to the amendments contained in this Amendment, the
representations and warranties contained in Article III of the Agreement are
true and correct on and as of the Third Amendment Effective Date with the same
force and effect as if made on and as of the Third Amendment Effective Date,
except that the representation in Section 3.01(d) of the Agreement shall be
deemed to refer to the Financial Statements of Company most recently delivered
to Bank prior to the Third Amendment Effective Date. 


          (c)
No Event of Default has occurred and is continuing or will exist under the
Existing Agreement, as amended hereby, as of the Third Amendment Effective
Date.


          4.
Conditions. The obligation of Bank to execute and to perform this
Amendment shall be subject to full satisfaction of the following conditions
precedent on or before the Third Amendment Effective Date:


          (a)
Copies, certified as of the Third Amendment Effective Date, of such corporate
documents of Company as Bank may request evidencing necessary corporate action
by Company with respect to this Third Amendment. 


          (b)
This Amendment and the replacement Revolving Note shall have been duly executed
and delivered by Company to Bank and this Amendment executed by Bank.


          (c)
Bank shall have received such additional agreements, documents and
certifications, fully executed by Company, as may be reasonably requested by
Bank.


6






          5.
Supplemental Documents and Further Assurances. Company shall at any time
on or after the Third Amendment Effective Date, and upon the request of Bank,
execute and deliver, or cause to be executed and delivered, such additional
documents, agreements and instruments as may be reasonably required by Bank or
appropriate to give full force and effect to the intents and purposes of this
Amendment and the Agreement. Company’s failure to comply with the terms of this
Section 5 within thirty (30) days after Bank’s request shall at Bank’s sole
discretion and election be deemed an Event of Default under Section 7.01 of the
Agreement.


          6.
Binding on Successors and Assigns. All of the terms and provisions of
this Amendment shall be binding upon and inure to the benefit of the Parties
and each of their respective successors, assigns and legal representatives.


          7.
Governing Law/Entire Agreement/Survival. This Amendment is a contract
made under, and shall be governed by and construed in accordance with, the
substantive laws of the State of Indiana applicable to contracts made and to be
performed entirely within such state and without giving effect to the conflicts
of laws rules or principles of any jurisdiction. This Amendment constitutes and
expresses the entire understanding between the Parties with respect to the
subject matter hereof, and supersedes all prior agreements and understandings,
commitments, inducements or conditions, whether express or implied, oral or
written. All covenants, agreements, undertakings, representations and
warranties made in this Amendment shall survive the execution and delivery of
this Amendment, and shall not be affected by any investigation made by any
Person. Except as expressly provided otherwise in this Amendment, the Existing
Agreement, as amended hereby, remains in full force and effect in accordance
with its terms and provisions.


7






          8.
WAIVER OF JURY TRIAL. EACH PARTY TO THIS AMENDMENT HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT
NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT
IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION
9.


          9.
WAIVER OF SPECIAL
DAMAGES. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, COMPANY SHALL NOT ASSERT, AND HEREBY WAIVES, ANY
CLAIM AGAINST BANK, ON ANY THEORY OF LIABILITY, FOR SPECIAL, INDIRECT,
CONSEQUENTIAL OR PUNITIVE DAMAGES (AS OPPOSED TO DIRECT OR ACTUAL DAMAGES)
ARISING OUT OF, IN CONNECTION WITH, OR AS A RESULT OF, THIS AMENDMENT OR ANY
AGREEMENT OR INSTRUMENT CONTEMPLATED HEREBY, THE TRANSACTIONS, THE TERM LOAN OR
THE USE OF THE PROCEEDS THEREOF.


8






          IN
WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed and
delivered by their respective duly authorized signatories as of the Third
Amendment Effective Date.


	
 

	
 

	
 

	
 


	
INDIAN-MARTIN, INC., 

	
 

	
JPMORGAN CHASE BANK, N.A.,


	
a Nevada corporation

	
 

	
successor by merger to


	
 

	
 

	
 

	
BANK ONE, NATIONAL ASSOCIATION


	
 

	
 

	
 

	
 


	
By:

	
/s/ Terry Frandsen

	
  By:

	
/s/ John C. Otteson


	
 

	


	
 

	



	
 

	
Terry Frandsen, VP Finance - CFO

	
 

	
John C. Otteson, Vice President


	
 

	
 

	
 

	
 


	
(“Company”)

	
(“Bank”)





9