Exhibit 10.16


 


EIGHTH AMENDMENT TO THE LOAN AND SECURITY AGREEMENT


 


THIS EIGHTH AMENDMENT TO THE LOAN AND SECURITY AGREEMENT (the “Amendment”) is made effective as of the 7th day of October, 2008, by and among J.B.
POINDEXTER & CO., INC., a Delaware corporation, with its principal
office at  600 Travis Street, Suite 200,
Houston, Texas 77002 (“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 are collectively referred to as “Borrowers”), the other Loan Parties
signatory hereto, LaSalle Bank National Association, a national banking
association, with its office at 135 South LaSalle Street, Suite 425,
Chicago, Illinois 60603, for itself, as a Lender (as hereinafter defined), and
as Agent for the Lenders, and all other Lenders that are now or hereafter
parties to the Loan Agreement (as hereinafter defined).


 


PRELIMINARY
STATEMENTS


 


(A)                              Loan Parties, Agent and Lenders executed a
certain Loan and Security Agreement dated March 15, 2004 (as amended,
restated, extended or otherwise modified from time to time, the “Loan Agreement”) and various “Other
Agreements” as defined therein, in connection with certain loan
facilities.


 


(B)                                Borrower has requested and Lender has agreed
to amend the Loan Agreement on the terms and conditions set forth herein.


 


NOW THEREFORE,
in consideration of the foregoing and such other consideration as the parties
mutually agree, the parties hereto agree as follows:


 


AGREEMENT


 


1.                                       Preliminary Statements.  The
preliminary statements set forth above are accurate, represent the intent of
the parties hereto and are incorporated herein by reference.  Unless otherwise defined in this Amendment,
capitalized terms used herein will have the same meaning in this Amendment as
set forth in the Loan Agreement.


 


2.                                       Specific Amendments to Loan Agreement.  Loan
Parties, Agent and Lenders hereby agree that the Loan Agreement is hereby
amended and modified as follows:


 


A.                                   New Definitions.  The
following definitions are hereby added to Section 1 of the Loan
Agreement in alphabetical order:


 


““Dominion Account”
shall have the meaning specified in subsection 8(a) hereof.


 

















 


“Systems Day One”
shall mean the date upon which Agent’s system of record for loans and deposits
shall convert to the system of record for loans and deposits used by Bank of
America, N.A.”


 


B.                                     Removed Definition.  The
defined term “Blocked Account” set forth in Section 1 of the Loan
Agreement is hereby deleted in its entirety.


 


C.                                     Collections.  Subsection 8(a) of
the Loan Agreement is hereby amended and restated in its entirety as follows:


 


“(a)                            Within thirty (30) days
after the Closing Date, each Borrower shall establish one or more account (the “Dominion Account”) in Agent’s name with a financial
institution acceptable to Agent, into which all payments received by Borrower
and its Respective Loan Parties shall be deposited, and into which Borrower and
its Respective Loan Parties will immediately deposit all payments received by
Borrower on Accounts in the identical form in which such payments were
received, whether by cash or check; provided that on or prior to Systems Day
One, at the request of Agent, the Dominion Account shall be changed to Borrower’s
name for the benefit of Agent.  At the
option of the Loan Parties, Account Debtors of the Loan Parties may remit
payments on the Accounts directly to a post office box (the “Lock Box”) designated by, and under the exclusive control
of, Agent, at LaSalle or at a financial institution acceptable to Agent at
which a corresponding Dominion Account has been established under an arrangement
acceptable to Agent into which all payments received in such Lock Box shall be
deposited.  If a Loan Party, any
Affiliate or Subsidiary, any shareholder, officer, director, employee or agent
of Loan Party or any Affiliate or Subsidiary, or any other Person acting for or
in concert with a Loan Party shall receive any monies, checks, notes, drafts or
other payments relating to or as Proceeds of Accounts or other Collateral, such
Loan Party and each such Person shall receive all such items in trust for, and
as the sole and exclusive property of, Agent and, immediately upon receipt
thereof, shall remit the same (or cause the same to be remitted) in kind to a
Dominion Account.  The financial
institution with which the Dominion Account is established shall acknowledge
and agree, in a manner satisfactory to Agent, that the amounts on deposit in
such Dominion Account (and Lock Box if applicable) are the sole and exclusive
property of Agent, that such financial institution will follow the instructions
of Agent with respect to disposition of funds in the Dominion Account (and Lock
Box if applicable) without further consent from such Loan Party, that such
financial institution has no right to setoff (or only a subordinated right of
setoff) against the such Dominion Account (or Lock Box if applicable) or
against any other account maintained by such financial institution into which
the contents of the such Dominion Account (or Lock Box if applicable) are
transferred, and that such financial institution shall wire, or otherwise
transfer in immediately available funds to Agent in a manner satisfactory to
Agent, funds deposited in the Dominion Account on a daily basis as such funds
are collected.  At all times when no
Funds Control Event Period is in effect, Agent shall remit all funds received
by Agent from the Dominion Accounts into the account of the Borrower
Representative maintained at LaSalle.  In
addition to the Dominion Accounts, Loan Parties may also establish accounts at
financial institutions


 


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acceptable to Agent subject to control
agreements in favor of Agent (each a “Pledged Account”).  Loan Parties (other than Canadian Loan Party)
shall cause all proceeds of Accounts and other Collateral to be remitted to a
Dominion Account and shall not deposit such proceeds in any other account.  The Canadian Loan Party, however, shall cause
all proceeds of Accounts and other Collateral to be remitted to a Pledged
Account.  Within thirty (30) days after
the Closing Date, each Loan Party shall cause all accounts of such Loan Party,
other than Dominion Accounts established at LaSalle, to be subject to control
agreements in favor of and on terms and conditions reasonably acceptable to the
Agent.  At all times during a Funds
Control Event Period (as defined below), the Agent shall be entitled to send a
notice to the financial institutions holding such Pledged Accounts to assume
exclusive control over such Pledged Accounts and cause all proceeds of such
Pledged Accounts to be remitted to a Dominion Account or another account of
Agent (provided, that Agent hereby agrees to send such notice
only during a Funds Control Event Period). 
Each financial institution with which any Pledged Account is established
shall acknowledge and agree, in a manner satisfactory to Agent, that such
financial institution will follow the instructions of Agent after receipt by
such financial institution of a notice to that effect sent by Agent with
respect to disposition of funds in the Pledged Account without further consent
from such Loan Party, that except as set forth in such control agreement with
Agent, such financial institution has no right to setoff against the Pledged
Account, and that such financial institution shall wire, or otherwise transfer
in immediately available funds in a manner satisfactory to Agent, funds
deposited in the Pledged Account when so directed by a Loan Party or, after
receipt at the aforementioned notice, the Agent.  Each Loan Party agrees that all payments made
to any such Dominion Account or otherwise received by Agent at any time a Funds
Control Event Period is in effect, whether in respect of the Accounts or as
Proceeds of other Collateral or otherwise, will be applied on account of the
Liabilities in accordance with the terms of this Agreement; provided, that
so long as no Event of Default has occurred and remains continuing, payments
received by Agent shall not be applied to the unmatured portion of the LIBOR
Rate Loans, but shall be held in a cash collateral account maintained by Agent,
until the earlier of (i) the last Business Day of the Interest Period
applicable to such LIBOR Rate Loan and (ii) the occurrence of an Event of
Default; provided further, that so long as no Event of Default has occurred and
remains continuing, the immediately available funds in such cash collateral
account may be disbursed, at a Borrower’s discretion, to such Borrower so long
as after giving effect to such disbursement, such Borrower’s availability under
subsection 2(a) hereof at such time, equals or exceeds the
outstanding Revolving Loans at such time.


 


Notwithstanding the foregoing,
Agent hereby agrees not to exercise its sole and exclusive control with respect
to the Pledge Accounts set forth in this subsection so long as (x) Excess
Availability exceeds $20,000,000 and (y) no Event of Default has occurred
and remains continuing (the failure to meet (x) or (y) a “Funds Control Event”); provided, that once a Funds
Control Event has occurred, it shall remain in effect until Agent has determined
that (i) Excess Availability has exceeded $20,000,000 for a period of one (1) calendar
month and (ii) no Event of Default has occurred and is continuing during
such calendar month.  As used herein “Funds Control Event Period” shall mean any period while a
Funds Control Event has occurred and is continuing.  Prior to a Funds


 


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Control Event, the Loan Parties shall have
access to and may make withdrawals from the Pledged Accounts and other
operating accounts of Loan Parties at LaSalle (the “LaSalle
Accounts”); provided, that during a Funds Control Event
Period, Agent, may in its sole discretion, without any prior notice to
Borrowers or any other Loan Party, assume exclusive dominion and control over
each Pledged Account and LaSalle Account, and without limiting any of Agent’s
or any Lender’s other rights and remedies, apply the same to the payment and/or
cash collateralization of the Liabilities in accordance with the terms of this
Agreement and the Other Agreements.  Each
Loan Party agrees to pay all customary fees, costs and expenses in connection
with opening and maintaining each Dominion Account, related Lock Box, Pledged
Account and LaSalle Account.  All of such
fees, costs and expenses if not paid by a Loan Party, may be paid by Agent and
in such event all amounts paid by Agent shall constitute Liabilities hereunder,
shall be payable to Agent by each Borrower upon demand, and, until paid, shall
bear interest at the highest rate then applicable to Loans hereunder.  All checks, drafts, instruments and other
items of payment or Proceeds of Collateral shall be endorsed by the applicable
Loan Party to Agent, and, if that endorsement of any such item shall not be
made for any reason, Agent is hereby irrevocably authorized to endorse the same
on such Loan Party’s behalf.  For the
purpose of this section, each Loan Party irrevocably hereby makes, constitutes
and appoints Agent (and all Persons designated by Agent for that purpose) as
such Loan Party’s true and lawful attorney and agent-in-fact (i) to
endorse such Loan Party’s name upon said items of payment and/or Proceeds of
Collateral and upon any Chattel Paper, Document, Instrument, invoice or similar
document or agreement relating to any Account of such Loan Party or Goods
pertaining thereto; (ii) during a Funds Control Event Period, to take
control in any manner of any item of payment or Proceeds thereof (unless
authority is provided to Agent in any Other Agreement governing such Lock Box
or deposit account) and (iii) during a Funds Control Event Period, to have
access to any Lock Box or postal box into which any of such Loan Party’s mail
is deposited, and open and process all mail addressed to such Loan Party and
deposited therein (unless authority is provided to Agent in any Other Agreement
governing such Lock Box or deposit account).


 


D.                                    Application of Payments.  Subsection
8(c) of the Loan Agreement is hereby amended to add the following at
the end of such subsection:


 


“Notwithstanding the foregoing, on the first day of
the month during which Systems Day One occurs, for purposes of determining the
amount of Loans available for borrowing purposes, the ledger balance in the
main Dominion Account as of the end of a Business Day shall be applied to the
Liabilities at the beginning of the next Business Day. However, solely for
purposes of computing interest hereunder, and in addition to Lender’s standard
fees and charges relating to the Dominion Account, any application by Lender of
such balance to the Liabilities shall be deemed to be made one (1) Business
Day(s) after application to the Liabilities as set forth in the preceding
sentence.  If, as a result of such
application, a credit balance exists, the balance shall not accrue interest in
favor of such Loan Party and shall be made available to Loan Party as long as
no Event of Default exists.  Each Loan
Party irrevocably waives the right to direct the application of any payments or
Collateral proceeds, and agrees that Lender shall have the continuing,


 


4

















 


exclusive right to apply and reapply same against
the Liabilities, in such manner as Lender deems advisable, notwithstanding any
entry by Lender in its records.”


 


3.                                       Cross Default and Cross Collateralization.  A
default in the payment or performance of Borrower’s obligations under this
Amendment will constitute an Event of Default under the Loan Agreement and in
such event Lender will be entitled to exercise any and all remedies available
hereunder.  Borrower and Lender further agree
that the Other Agreements securing the Loan Agreement are hereby modified so
that each Other Agreement will hereafter secure the Loan Agreement.


 


4.                                       Ratification.  The
parties hereto ratify and reaffirm that all terms, conditions and provisions of
the Loan Agreement, and the Other Agreements remain in full force and effect
except to the extent expressly modified by the terms of this Amendment.


 


5.                                       Releases.  As a material part of the
consideration for Lender entering into this Amendment and in order to induce
Lender to further modify the Loan Agreement and Other Agreements and to extend
credit to Borrower, Borrower hereby releases and forever discharges Lender and
Lender’s directors, officers, employees, agents, attorneys, affiliates, subsidiaries,
successors and assigns from any and all liabilities, obligations, actions,
contracts, claims, causes of action, damages, demands, costs and expenses
whatsoever (collectively “Claims”),
of every kind and nature, however evidenced or created, whether known or
unknown, arising prior to or on the date of this Amendment including, but not
limited to, any Claims involving the extension of credit under or
administration of the Loan Agreement or Other Agreements, as each may be
amended, the indebtedness incurred by Borrower or any other transactions
evidenced by this Amendment or Other Agreements.


 


6.                                       Renewal.  To the extent that any payment
or payments made to Lender under this Amendment, the Loan Agreement or any of
the Other Agreements, as each may be amended, are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, to Borrower, whether directly or indirectly as a
debtor-in-possession, or to a receiver or any other party under any bankruptcy
law, or other state or federal law, then the portion of the indebtedness of
Borrower intended to have been satisfied by such payment or payments will be
revived and will continue in full force and 
effect as if such payment or payments had never been received by Lender.


 


7.                                       Representations and Warranties. 
Borrower represents and warrants to Lender as follows:


 


(A)                              All of the representations and warranties of Borrower in the Loan
Agreement and all of the Other Agreements, as each may be amended, are true and
correct as of the date hereof;


 


(B)                                Except as otherwise specifically stated herein, no Event of Default has
occurred or will occur as a result of the execution, delivery, and performance
of this Amendment; and


 


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(C)                                This Amendment has been duly authorized, executed and delivered and is
a legally valid, binding, joint and several obligation of Borrower and is
enforceable against Borrower in accordance with its terms.


 


8.                                       Miscellaneous.


 


 


(A)                              In the event of a conflict between or among
the terms, covenants, conditions or provisions of this Amendment, the Loan
Agreement, or any Other Agreement, as each may be amended, Lender may elect to
enforce from time to time those provisions that would afford Lender the maximum
financial benefits and security for the Liabilities (as defined in the Loan
Agreement) and/or provide Lender the maximum assurance of payment of the
Liabilities in full.


 


(B)                                No inference in favor of, or against, any
party will be drawn from the fact that such party has drafted any portion of
this Amendment, the Loan Agreement or any Other Agreement, as each may be
amended.


 


(C)                                Borrower hereby agrees that it will
immediately pay Lender all costs, expenses or reasonable attorneys fees Lender incurs
in the preparation, negotiation, execution and enforcement of this Amendment.


 


(D)                               This Amendment may be executed in any number
of counterparts, each of which will be deemed to be an original but all of
which taken together will constitute one and the same agreement.


 


(E)                                 This Amendment will be governed by and
construed under the laws of the State of Illinois.


 


(F)                                 This Amendment will be binding upon and will
inure to the benefit of the parties hereto and to their respective successors
and assigns.


 


9.                                       WAIVER OF JURY TRIAL. LENDER AND BORROWER WAIVE
THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATED
TO, THE SUBJECT MATTER OF THIS AMENDMENT. 
THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWER
AND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF
OF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL
BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.  BORROWER FURTHER ACKNOWLEDGES THAT IT HAS
BEEN REPRESENTED (OR HAS THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OF
THIS AMENDMENT AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL,
SELECTED OF ITS OWN FREE WILL, AND IT HAS HAD THE OPPORTUNITY TO DISCUSS THIS
WAIVER WITH COUNSEL.  BORROWER FURTHER
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTAND THE MEANING AND RAMIFICATIONS OF
THIS WAIVER PROVISION.


 


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IN WITNESS WHEREOF, Borrower and Lender have
caused this Amendment to be executed by an officer duly authorized to so
execute and bind said parties effective as of the day and year first written
above.


 


BORROWERS:


 




	
  J.B. POINDEXTER & CO., INC.,

  	
   

  	
  MORGAN TRUCK BODY, LLC, 

  
	
  a Delaware corporation

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
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  TRUCK ACCESSORIES GROUP, LLC,

  	
   

  	
  MIC GROUP, LLC, 

  
	
  a Delaware limited liability company

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  MORGAN OLSON, LLC,

  	
   

  	
  EFP LLC, 

  
	
  a Delaware limited liability company

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  FEDERAL COACH, LLC, 

  	
   

  	
  RICHARD’S MANUFACTURING 

  
	
  a Delaware limited liability company

  	
   

  	
  COMPANY, 

  
	
   

  	
   

  	
  an Oklahoma corporation

  
	
   

  	
   

  	
   

  
	
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AGENT AND LENDER:


 




	
  LASALLE BANK NATIONAL ASSOCIATION, 

  	
   

  	
   

  
	
  a
  national banking association, 

  	
   

  	
   

  
	
  as
  Agent and Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  Title:

  	
   

  	
   

  	
   

  	
   

  
									






 


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LOAN PARTIES:


 




	
  LOWY GROUP, INC.

  	
   

  	
  RAIDER INDUSTRIES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  SWK HOLDINGS, INC.

  	
   

  	
  UNIVERSAL BRIXIUS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
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  Name:

  	
   

  	
   

  	
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  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  MORGAN
  TRAILER FINANCIAL 

  	
   

  	
  MORGAN
  TRAILER FINANCIAL 

  
	
  CORPORATION

  	
   

  	
  MANAGEMENT,
  L.P.

  
	
   

  	
   

  	
  By:  MORGAN TRAILER MFG. CO.,

  
	
   

  	
   

  	
  Its
  general partner

  
	
   

  	
   

  	
   

  
	
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LOAN PARTIES:


 




	
  COMMERCIAL BABCOCK INC.

  	
   

  	
  EAGLE SPECIALTY VEHICLES, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  STATE WIDE ALUMINUM, INC.

  	
   

  	
  TARLTON SUPPLY CO.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
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  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  HANDLEY,
  L.P.

  	
   

  	
  MACHINE &
  MANUFACTURING I, INC.

  
	
  By:  MIC GROUP, LLC,

  	
   

  	
   

  
	
  Its
  general partner

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
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