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EXHIBIT 10.2
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FOURTH AMENDMENT TO CREDIT
AGREEMENT
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THIS
FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”
or “Fourth Amendment”) has been executed as of the 31
st day of May, 2008, (the “Fourth 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 Fourth Amendment
Effective Date, as set forth in this Fourth Amendment, and subject
to the terms and conditions of this Fourth 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 Fourth
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.
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 Fourth Amendment
Effective Date to read as follows:
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“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:
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Third Amendment Effective Date through December
31, 2007
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$
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30,000,000.00
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January 1, 2008 through January 31,
2008
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$
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25,000,000.00
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February 1, 2008 through May 31, 2008
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$
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20,000,000.00
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June 1, 2008 through September 30,
2008
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$
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30,000,000.00
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October 1, 2008 through October 31,
2008
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$
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45,000,000.00
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November 1, 2008 through November 30,
2008
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$
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40,000,000.00
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December 1, 2008 through December 31,
2008
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$
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30,000,000.00
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January 1, 2009 through January 31,
2009
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$
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25,000,000.00
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February 1, 2009 through June 30, 2009
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$
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20,000,000.00
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July 1, 2009 through September 30,
2009
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$
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30,000,000.00
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October 1, 2009 through October 31,
2009
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$
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45,000,000.00
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November 1, 2009 through November 30,
2009
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$
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40,000,000.00
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December 1, 2009 through December 31,
2009
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$
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30,000,000.00
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January 1, 2010 through January 31,
2010
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$
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25,000,000.00
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February 1, 2010 through Scheduled Maturity
Date
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$
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20,000,000.00
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(b)
New Definitions . Section 1.02 of the Existing Agreement is
hereby amended, effective as of the Fourth Amendment Effective
Date, by adding thereto in appropriate alphabetical sequence the
following new definitions:
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The term
“ Fourth Amendment ” means the Fourth Amendment
to Credit Agreement, dated as of the Fourth Amendment Effective
Date, executed by and between the Parties.
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2
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The term
“Fourth Amendment Effective Date” is used as
defined in the Preamble of the Fourth Amendment.
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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,
ord
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