Exhibit 10.17


 


LIMITED CONSENT AND
WAIVER TO LOAN AND SECURITY AGREEMENT


 


This
LIMITED CONSENT AND WAIVER TO LOAN AND SECURITY AGREEMENT (this “Consent and Waiver”) is entered into as 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”), RICHARD’S MANUFACTURING COMPANY, an Oklahoma corporation (“RMC”), Machine & Manufacturing I, Inc., a
Texas corporation (“M&M”, and
together with Poindexter, Morgan LLC, TAG LLC, MIC LLC, MOC LLC, EFP LLC,
Federal Coach and RMC, collectively, “Borrowers”
and each, a “Borrower”), the other Loan Parties
signatory hereto, BANK OF AMERICA, N.A., a national banking association, as
successor by merger to LaSalle Bank National Association,  a
national banking association, for itself, as a Lender, and as Agent for Lenders
(in such capacity, “Agent”), and
all other Lenders parties hereto.  Unless
otherwise specified herein, capitalized terms used in this Consent and Waiver
shall have the meanings ascribed to them by the Loan Agreement (as hereinafter
defined).


 


RECITALS


 


WHEREAS,
Borrowers, the other Loan Parties, Agent and Lenders are parties to that
certain Loan and Security Agreement dated as of March 15, 2004 (as amended
by that certain First Amendment to Loan and Security Agreement dated as of May 13,
2004, that certain Limited Consent and Second Amendment dated as of November 3,
2004, that certain Limited Consent and Omnibus Amendment dated as of December 30,
2004, that certain Third Amendment to Loan and Security Agreement dated as of January 20,
2005, that certain Amendment No. 4 to Loan and Security Agreement dated as
of April 25, 2005, that certain Limited Consent and Second Omnibus
Amendment, dated as of June 7, 2005, that certain Third Omnibus Amendment,
dated as of January 20, 2006, that certain Limited Consent and Fourth
Omnibus Amendment, dated as of March, 17, 2006, that certain Limited Consent,
Joinder and Fourth Omnibus Amendment, dated as of October 10, 2006, that
certain Limited Consent, Joinder and Fifth Omnibus Amendment, dated as of April 30,
2007, that certain Limited Consent, Joinder and Sixth Omnibus Amendment, dated
as of August 22, 2007 and that certain Limited Consent, Joinder and
Seventh Omnibus Amendment, dated as of September 4, 2008, and as may be
further amended, supplemented, restated or otherwise modified from time to
time, the “Loan Agreement”);


 


WHEREAS,
Borrowers and the other Loan Parties have advised Agent and Lender that Morgan
LLC, as seller, intends to enter into a sale and leaseback
transaction (collectively,
the “Morgan Sale and Leaseback Transaction”)
with Poindexter Properties, LLC, as buyer, involving the real
properties owned by Morgan LLC in (i) Lancaster County, Pennsylvania; (ii) Berks
County, Pennsylvania; and (iii) Navarro County, Texas on the terms set forth in the agreement
attached hereto as Exhibit A (the “Sale and
Leaseback Agreement”);


 

















 


WHEREAS,
notwithstanding the provisions of Section 13(d)(iii) of the Loan
Agreement and any other provisions of the Loan Agreement and the Other
Agreements prohibiting the Morgan Sale and Leaseback Transaction, Borrowers and
the other Loan Parties have requested that Agent and Lender consent to the
Morgan Sale and Leaseback Transaction; and


 


WHEREAS,
in connection therewith, Borrowers have requested that Agent and Lender waive
the provisions of Section 2(c)(ii) of the Loan Agreement solely to
the extent they require prepayment of the Liabilities with the proceeds of the
Morgan Sale and Leaseback Transaction.


 


NOW
THEREFORE, in consideration of the foregoing recital, mutual agreements
contained herein and for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Borrowers, the other Loan
Parties, Agent and Lender hereby agree as follows:


 


SECTION 1.         Limited
Consent.  Subject to
the conditions precedent set forth in Section 3 hereof, Agent and
Lender hereby consent to the Morgan Sale and Leaseback Transaction; provided
that the Sale and Leaseback Transaction is consummated on the terms and
conditions set forth in the Sale and Leaseback Agreement.


 


SECTION 2.         Limited Waiver.  Subject to the conditions precedent set forth
in Section 3 hereof, Agent and Lender hereby waive the provisions of Section 2(c)(ii) of
the Loan Agreement solely to the extent they require prepayment of the
Liabilities with the proceeds of the Morgan Sale and Leaseback Transaction.


 


SECTION 3.         Effectiveness.  The effectiveness of this Consent and Waiver
is subject to the satisfaction of each the following conditions precedent:


 


(a)           This
Consent and Waiver shall have been duly executed and delivered by Borrowers,
Loan Parties, Agent and each Lender; and


 


(b)           The
representations and warranties contained herein shall be true and correct in
all material respects.


 


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


 


(a)           all
of the representations and warranties contained in the Loan Agreement and in
each Other Agreement are true and correct in all material respects as of the
date hereof after giving effect to this Consent and Waiver, 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 Consent and Waiver
has been duly authorized by all necessary corporate action required on their
part and this Consent and Waiver, 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 


 


2

















 


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 Consent and Waiver 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
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 consent and
waiver set forth herein are effective 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 Consent and Waiver, 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 Consent and Waiver 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.         Costs And Expenses.  As provided in Section 4(c)(v) of
the Loan Agreement, Borrowers agree to reimburse Agent for all fees, costs, and
expenses, including the reasonable fees, costs, and expenses of counsel or
other advisors for advice, assistance, or other representation in connection
with this Consent and Waiver.


 


SECTION 7.         GOVERNING LAW. THIS
CONSENT AND WAIVER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
INTERNAL LAWS OF THE STATE OF ILLINOIS.


 


3

















 


SECTION 8.         Headings.  Section headings in this Consent and
Waiver are included herein for convenience of reference only and shall not
constitute part of this Consent and Waiver for any other purposes.


 


SECTION 9.           Counterparts.  This Consent and Waiver 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]


 


4

















 


IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Consent
and Waiver as of the date first written above.


 


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:

  	
   

  	
   

  



 


[Signature Page Limited
Consent to Loan Agreement]


 

















 


	
  FEDERAL COACH, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


 


	
  RICHARD’S MANUFACTURING COMPANY

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


[Signature Page Limited
Consent and Waiver to Loan Agreement]


 

















 


	
  AGENT AND LENDER:

  	
   

  
	
   

  	
   

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

  	
   

  
	
  merger
  to LaSalle Bank National Association,

  	
   

  
	
  as
  Agent and Lender

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


[Signature Page Limited
Consent and Waiver to Loan Agreement]


 

















 


The
following Persons are signatories to this Consent and Waiver 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:

  	
   

  	
   

  



 


[Signature Page
Limited Consent to Loan Agreement]


 

















 


	
  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:

  	
   

  	
   

  



 


[Signature Page Limited
Consent and Wavier to Loan Agreement]


 

















 


	
  MACHINE & MANUFACTURING I, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  



 


[Signature Page
Limited Consent and Wavier to Loan Agreement]


 

















 


Exhibit A


 


Sale and Leaseback
Agreement


 


[See attached.]