Exhibit 10.18


 


LIMITED WAIVER AGREEMENT


 


This Limited Waiver Agreement (this “Agreement”) is made effective as of the       
day of December, 2008, by and among J.B. POINDEXTER & CO., INC.,
a Delaware corporation (“Poindexter”),
MORGAN TRUCK BODY, LLC, a Delaware limited liability company (“Morgan LLC”), TRUCK ACCESSORIES GROUP, LLC, a Delaware
limited liability company (“TAG LLC”), MIC
GROUP, LLC, a Delaware limited liability company (“MIC LLC”),
MORGAN OLSON, LLC, a Delaware limited liability company (“MO LLC”),
EFP, LLC, a Delaware limited liability company (“EFP LLC”),
FEDERAL COACH, LLC, a Delaware limited liability company (“Federal
Coach”) and RICHARD’S MANUFACTURING COMPANY, an Oklahoma corporation
(“RMC”) (Poindexter, Morgan LLC, TAG LLC,
MIC LLC, MO LLC, EFP LLC, Federal Coach and RMC each a “Borrower” and are
collectively referred to as “Borrowers”),
the other Loan Parties signatory hereto, BANK OF AMERICA, N.A., a national
banking association,  as successor by merger to  LaSalle
Bank National Association, for itself, as a Lender, and as Agent for the
Lenders, and all other Lenders that are now or hereafter parties to the Loan
Agreement (as hereinafter defined).


 


PRELIMINARY STATEMENT


 


A.            Loan Parties, Agent and Lenders executed
a certain Loan and Security Agreement dated March 15, 2004 (as the same now
existing or as hereafter amended, restated, extended, supplemented or otherwise
modified from time to time, the “Loan Agreement”).


 


B.            Borrowers have requested that the Agent
and Lenders waive certain provisions of the Loan Agreement, and the Agent and
Lender have agreed to such waivers upon the terms and subject to conditions set
forth herein.


 


NOW, THEREFORE, in
consideration of the foregoing, mutual agreements contained herein and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:


 


Section 1.               Definitions. 
Unless otherwise defined or amended in this Agreement, each capitalized
term used in this Agreement has the meaning assigned to such term in the Loan
Agreement.


 


Section 2.               Limited
Waiver.  At all times during the period commencing on
the date hereof and ending on and including April 1st, 2009 (the “Waiver Period”), the Agent and Lenders hereby agree to waive
Sections 13(b)(vi) and 13(e) of the Loan Agreement solely to the
extent necessary to permit Poindexter to repurchase the Senior Notes in one or
more transactions or series of related transactions during the Waiver
Period  (each such transaction or series
of related transactions is herein referred as a “Repurchase
of Senior Notes” and collectively as the “Repurchases
of Senior Notes”) so long as (i) no Default or Event of Default
exists immediately prior to or at the time of or would result after giving
effect to any Repurchase of Senior Notes, (ii) the aggregate amount paid
for any such Repurchase of Senior Notes does not exceed 60% of the face amount
of all of the Senior Notes repurchased in such Repurchase of Senior Notes, (iii) the
aggregate amount of proceeds of Loans used to fund all such Repurchases of
Senior Notes does not exceed $10,000,000 and (iv) promptly following each
such Repurchase 


 

















 


of Senior Notes, Borrowers deliver to the Agent notice
(which may be delivered by e-mail or fax), setting forth (1) the amount
paid for such Repurchase of Senior Notes and the aggregate amount paid for all
Repurchases of Notes since the commencement of the Waiver Period, (ii) the
face amount of the Senior Notes that are repurchased in such Repurchase of
Senior Notes and the aggregate face amounts of all Senior Notes repurchased
since the commencement of the Waiver Period and (iii) the amount of
proceeds of Loans (if any) used to fund such Repurchase of Senior Notes and the
aggregate amount of proceeds of Loans (if any) used to fund all Repurchases of
Senior Notes since the commencement of the Waiver Period.


 


Section 3.               Effectiveness. 
The effectiveness of this Agreement is subject to the satisfaction of
each of the following conditions precedent:


 


(a)           This Agreement shall have been duly
executed and delivered by the Borrowers, Loan Parties, Agent and the Requisite
Lenders;


 


(b)           The Borrowers shall have paid, in
immediately available funds, to the Agent for the account of the Lenders a
fully earned and non-refundable amendment fee in the amount of $25,000 (and
each Borrower hereby authorizes Agent to charge Borrowers’ accounts in the
amount of such amendment fee); and


 


(c)           the representations and warranties
contained herein shall be true and correct in all respects.


 


Section 4.               Representations and
Warranties.  In order to induce Agent and each Lender to
enter into this Agreement, each Loan Party hereby represents and warrants to
Agent and each Lender, which representations and warranties shall survive the
execution and delivery of this Agreement, that:


 


(a)           all of the representations and warranties
contained in the Loan Agreement and in each Other Agreement are true and
correct as of the date hereof after giving effect to this Agreement, except to
the extent that any such representations and warranties expressly relate to an
earlier date;


 


(b)           the execution, delivery and performance
by Loan Parties of this Agreement has been duly authorized by all necessary
corporate action required on their part and this Agreement, and the Loan Agreement
is the legal, valid and binding obligation of Loan Parties enforceable against
Loan Parties in accordance with its terms, except as its enforceability may be
affected by the effect of bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to or affecting the
rights or remedies of creditors generally;


 


(c)           neither the execution, delivery and
performance of this Agreement by Loan Parties, the performance by Loan Parties
of the Loan Agreement nor the consummation of the transactions contemplated
hereby does or shall contravene, result in a breach of, or violate (i) any
provision of any Loan Party’s certificate or articles of incorporation or
formation, bylaws or operating agreement or other similar documents, or
agreements, (iii) any law or regulation, or any order or decree of any
court or government instrumentality, or (iii) any indenture, mortgage,
deed of trust, lease, agreement or other 


 


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instrument to which any Loan Party or any of its Subsidiaries is a
party or by which any Loan Party or any of its Subsidiaries or any of their
property is bound, except in any such case to the extent such conflict or
breach has been waived herein or by a written waiver document, a copy of which
has been delivered to Agent on or before the date hereof; and


 


(d)           no
Default or Event of Default has occurred and is continuing.


 


Section 5.               Reference to and Effect
Upon the Loan Agreement.


 


(a)           Except
as specifically set forth above, the Loan Agreement and each of the Other
Agreements shall remain in full force and effect and are hereby ratified and
confirmed; and


 


(b)           the waivers set forth herein are
effective solely during the Waiver Period and solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be deemed to (i) be
a consent to any amendment, waiver or modification of any other term or
condition of the Loan Agreement or any Other Agreement, (ii) operate as a
waiver or otherwise prejudice any right, power or remedy that Agent or Lenders
may now have or may have in the future under or in connection with the Loan
Agreement or any Other Agreement or (iii) constitute a waiver of any
provision of the Loan Agreement or any Other Agreement, except as specifically
set forth herein.  Upon the effectiveness
of this Agreement, each reference in the Loan Agreement to “this Agreement”, “herein”,
“hereof” and words of like import and each reference in the Loan Agreement and
the Other Agreements to the Loan Agreement shall mean the Loan Agreement as
amended hereby.  This Agreement shall be
construed in connection with and as part of the Loan Agreement.  Each
Loan Party hereby acknowledges and agrees that there is no defense, setoff or
counterclaim of any kind, nature or description to the Liabilities or the
payment thereof when due.


 


Section 6.               Governing
Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS.


 


Section 7.               Miscellaneous.


 


(a)           Section headings in this Agreement
are included herein for convenience of reference only and shall not constitute
part of this Agreement for any other purposes.


 


(b)           This Agreement may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original, but all such counterparts shall constitute one and the same
instrument.


 


[Signature Pages Follow]


 


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IN WITNESS WHEREOF, each of the parties hereto has
caused this Limited Waiver Agreement to be executed by its officer(s) thereunto
duly authorized as of the date first above written.


 


	
   

  	
   

  
	
   

  	
  BORROWERS:

  
	
   

  	
   

  
	
   

  	
  J.B.
  POINDEXTER & CO., INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
  MORGAN TRUCK BODY, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
  TRUCK ACCESSORIES
  GROUP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
  MIC GROUP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
  MORGAN OLSON, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
  EFP, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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  FEDERAL COACH, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


	
   

  	
  RICHARD’S MANUFACTURING
  COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
   

  	
  AGENT AND LENDER:

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A.,  as successor by merger

  
	
   

  	
  to  LaSalle
  Bank National Association, as Agent
  and Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


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The following Persons are signatories to this
Consent and Amendment in their capacities as Loan Parties, not as Borrowers:


 


LOAN
PARTIES:


 


	
  LOWY GROUP, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


	
  RAIDER INDUSTRIES INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


	
  SWK HOLDINGS, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


 


	
  UNIVERSAL BRIXIUS, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


 


	
  MORGAN TRAILER FINANCIAL CORPORATION

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


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MORGAN
TRAILER FINANCIAL


MANAGEMENT,
L.P.


 


	
  By:

  	
  MORGAN TRUCK BODY, LLC,

  	
   

  
	
   

  	
  its
  general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


	
  COMMERCIAL BABCOCK INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


	
  EAGLE SPECIALTY VEHICLES, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


	
  STATE WIDE ALUMINUM, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


 


	
  TARLTON SUPPLY CO.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


HANDLEY
L.P.


 


	
  By:

  	
  MIC GROUP, LLC,

  	
   

  
	
   

  	
  its
  general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


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  MACHINE & MANUFACTURING I, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


[Signature
Page to Limited Consent and Omnibus Amendment]


 


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