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EXHIBIT 10.1
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THIRD AMENDMENT TO CREDIT
AGREEMENT
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THIS
THIRD AMENDMENT TO CREDIT AGREEMENT (this “Amendment”
or “Third Amendment”) has been executed as of the 14
th 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.
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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:
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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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$30,000,000.00
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January 1, 2008 through January 31,
2008
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$25,000,000.00
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February 1, 2008 through June 30, 2008
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$20,000,000.00
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July 1, 2008 through September 30,
2008
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$30,000,000.00
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October 1, 2008 through October 31,
2008
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$45,000,000.00
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November 1, 2008 through November 30,
2008
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$40,000,000.00
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December 1, 2008 through December 31,
2008
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$30,000,000.00
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January 1, 2009 through January 31,
2009
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$25,000,000.00
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February 1, 2009 through June 30, 2009
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$20,000,000.00
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July 1, 2009 through September 30,
2009
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$30,000,000.00
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October 1, 2009 through October 31,
2009
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$45,000,000.00
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November 1, 2009 through November 30,
2009
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$40,000,000.00
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December 1, 2009 through December 31,
2009
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$30,000,000.00
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January 1, 2010 through January 31,
2010
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$25,000,000.00
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February 1, 2010 through Scheduled Maturity
Date
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$20,000,000.00
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“ 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.
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“ 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.
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(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:
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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.
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The term “Third
Amendment Effective Date” is used as defined in the
Preamble of the Third 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 he
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