Exhibit
10.17


 


EXECUTION VERSION


 


NINTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


This NINTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”)
is entered into as of the 14th day of January, 2010 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”), and FEDERAL COACH, LLC,
a Delaware limited liability company (“Federal Coach”; Poindexter,
Morgan LLC, TAG LLC, MIC LLC, MOC LLC, EFP LLC and Federal Coach are each a “Borrower”
and collectively referred to as “Borrowers”), the other Loan Parties
signatory hereto, BANK OF AMERICA, N.A., 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 Amendment shall have the meanings ascribed to
them by the Loan Agreement (as hereinafter defined).


 


RECITALS


 


WHEREAS, Borrowers, the other Loan Parties, Agent and Lenders have
entered into 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,
that certain Limited Consent, Joinder and Seventh Omnibus Amendment dated as of
September 4, 2007 and that certain Limited Waiver and Eight Omnibus
Amendment dated as of May 26, 2009, and as may be further amended,
supplemented, restated or otherwise modified from time to time, the “Loan
Agreement”); and


 


WHEREAS, Borrowers and the other Loan Parties desire that certain
provisions of the Loan Agreement be amended as set forth herein.


 


NOW THEREFORE, in consideration of the foregoing recitals, 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 Requisite Lenders hereby agree as follows:


 


SECTION 1.  Incorporation
of Recitals. The parties hereto acknowledge the truth and
accuracy of the foregoing recitals, and the recitals are incorporated herein.


 

















 


SECTION 2.  Amendments
to Loan Agreement. Subject to the satisfaction of each of the
conditions precedent set forth in Section 3 hereof and the
limitations contained in Section 5 hereof, the Borrowers, the other
Loan Parties, Agent and Requisite Lenders hereby agree to amend the Loan
Agreement as follows:


 


(a)           Section 13(a) of
the Loan Agreement is hereby amended by replacing the phrase “hereof and/or (y) operating
leases,” appearing therein with the phrase “hereof, (y) operating leases
and/or (z) obligations owing to trade creditors incurred in the ordinary
course of business that are not overdue by more than six (6) months unless
being contested in good faith;”.


 


SECTION 3.  Effectiveness. This
Amendment shall become effective as of December 31, 2009 upon the
satisfaction of each the following conditions precedent:


 


(a)           this
Amendment shall have been duly executed and delivered by Borrowers, the other
Loan Parties, Agent and each Requisite 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 Requisite Lender
to enter into this Amendment, each Loan Party hereby represents and warrants to
Agent and each Lender, which representations and warranties shall survive the
execution and delivery of this Amendment, 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 Amendment, except to the extent that
any such representations and warranties expressly relate to an earlier date;


 


(b)           the
execution, delivery and performance by the Loan Parties of this Amendment has
been duly authorized by all necessary corporate action required on their part
and this Amendment, and the Loan Agreement is the legal, valid and binding
obligation of the Loan Parties enforceable against the 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 Amendment by the Loan Parties,
the performance by the Loan Parties of the Loan Agreement and Other Agreements
to which any Loan Party is a party 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, (ii) 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 by a written waiver
document, a copy of which has been delivered to Agent on or before the date
hereof; and


 


2

















 


(d)           as of the date
hereof, 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
amendment set forth herein is effective solely for the purposes set forth
herein and shall be limited precisely as written, and shall not be deemed to (i) be
an amendment or modification of any other term or condition of the Loan
Agreement or any Other Agreement, (ii) operate as a waiver of any Default
or Event of Default or any right, power or remedy of Agent or Lenders under the
Loan Agreement and Other Agreements. Upon the effectiveness of this Amendment,
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 Amendment 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, without
limitation, the reasonable fees, costs and expenses of counsel or other
advisors for advice, assistance or other representation, incurred in connection
with this Amendment.


 


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


 


SECTION 8.  Acknowledgment.  The parties hereto acknowledge that as of December 31,
2008, the following entities were merged: (i) each of Tarlton Supply Co.,
SWK Holdings, Inc., Richard’s Manufacturing Company, Machine &
Manufacturing I, Inc., Universal Brixius, LLC and Handley, L.P. with and
into MIC Group, LLC; and (ii) Lowy Group, Inc. with and into J.B.
Poindexter & Co., Inc.


 


SECTION 9.  Headings.  Section headings in this Amendment are
included herein for convenience of reference only and shall not constitute part
of this Amendment for any other purposes.


 


SECTION 10.  Counterparts. This
Amendment 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]


 


3

















 


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


 


BORROWERS:


 


 


	
  J.B. POINDEXTER & CO., INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name: Larry Wolfe

  	
   

  
	
  Title: Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MORGAN TRUCK BODY, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name: Larry Wolfe

  	
   

  
	
  Title: Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TRUCK ACCESSORIES GROUP, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name: Larry Wolfe

  	
   

  
	
  Title: Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MIC GROUP, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name: Larry Wolfe

  	
   

  
	
  Title: Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MORGAN OLSON, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name: Larry Wolfe

  	
   

  
	
  Title: Vice President

  	
   

  
	
   

  	
   

  
	
  EFP, LLC

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name: Larry Wolfe

  	
   

  
	
  Title: Vice President

  	
   

  



 


[Signature Page to Ninth Amendment to Loan and Security Agreement]


 

















 


FEDERAL COACH, LLC


 


	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name:
  Larry Wolfe

  	
   

  
	
  Title:
  Vice President

  	
   

  



 


[Signature Page to Ninth Amendment to Loan and Security Agreement]


 

















 


AGENT AND LENDER:


 


 


BANK OF AMERICA, N.A.,


as Agent and Lender


 


 


	
  By:

  	
  /s/ John Todd

  	
   

  
	
  Name:

  	
  John Todd

  	
   

  
	
  Title:

  	
  EVP

  	
   

  



 


[Signature Page to Ninth Amendment to
Loan and Security Agreement]


 

















 


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


 


 


LOAN PARTIES:


 


RAIDER INDUSTRIES INC.


 


	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name:
  Larry Wolfe

  	
   

  
	
  Title:
  Vice President

  	
   

  



 


MORGAN TRAILER FINANCIAL CORPORATION


 


	
  By:

  	
  MORGAN TRUCK BODY, LLC,

  	
   

  
	
   

  	
  its general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

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

  	
   

  
	
   

  	
   

  	
  it
  sole member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
   

  	
   

  	
  Name:
  Larry Wolfe

  	
   

  
	
   

  	
   

  	
  Title:
  Vice President

  	
   

  
					



 


 


MORGAN TRAILER FINANCIAL


MANAGEMENT, L.P.


 


	
  By:

  	
  MORGAN TRUCK BODY, LLC,

  	
   

  
	
   

  	
  its general partner

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

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

  	
   

  
	
   

  	
   

  	
  it
  sole member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
   

  	
   

  	
  Name:
  Larry Wolfe

  	
   

  
	
   

  	
   

  	
  Title:
  Vice President

  	
   

  
					



 


 


COMMERCIAL
BABCOCK INC.


 


	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name:
  Larry Wolfe

  	
   

  
	
  Title:
  Vice President

  	
   

  



 


[Signature Page to Ninth Amendment to Loan and Security Agreement]


 

















 


EAGLE SPECIALTY VEHICLES, LLC


 


	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name:
  Larry Wolfe

  	
   

  
	
  Title:
  Vice President

  	
   

  



 


 


STATE
WIDE ALUMINUM, INC.


 


	
  By:

  	
  /s/ Larry Wolfe

  	
   

  
	
  Name:
  Larry Wolfe

  	
   

  
	
  Title:
  Vice President

  	
   

  



 


[Signature Page to Ninth Amendment to Loan and Security Agreement]