**Exhibit10.17**

 

EXECUTION VERSION

 

**NINTHAMENDMENT 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 andamong 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”), MORGANOLSON, LLC, a Delaware limited liability company (“MO LLC”), EFP, LLC, aDelaware 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 Partiessignatory hereto, BANK OF AMERICA, N.A., a national banking association, foritself, 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 tothem by the Loan Agreement (as hereinafter defined).

 

**RECITALS**

 

WHEREAS, Borrowers, the other Loan Parties, Agent and Lenders haveentered into that certain Loan and Security Agreement dated as of March 15,2004 (as amended by that certain First Amendment to Loan and Security Agreementdated as of May 13, 2004, that certain Limited Consent and SecondAmendment dated as of November 3, 2004, that certain Limited Consent andOmnibus Amendment dated as of December 30, 2004, that certain ThirdAmendment 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 Amendmentdated as of October 10, 2006, that certain Limited Consent, Joinder andFifth Omnibus Amendment dated as of April 30, 2007, that certain LimitedConsent, Joinder and Sixth Omnibus Amendment dated as of August 22, 2007,that certain Limited Consent, Joinder and Seventh Omnibus Amendment dated as ofSeptember 4, 2007 and that certain Limited Waiver and Eight OmnibusAmendment dated as of May 26, 2009, and as may be further amended,supplemented, restated or otherwise modified from time to time, the “LoanAgreement”); and

 

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

 

NOW THEREFORE, in consideration of the foregoing recitals, mutualagreements contained herein and for good and valuable consideration, thereceipt and sufficiency of which are hereby acknowledged, Borrowers, the otherLoan Parties, Agent and Requisite Lenders hereby agree as follows:

 

**SECTION 1.  Incorporationof Recitals**. The parties hereto acknowledge the truth andaccuracy of the foregoing recitals, and the recitals are incorporated herein.

 

----

 

**SECTION 2.  Amendmentsto Loan Agreement**. Subject to the satisfaction of each of theconditions precedent set forth in Section 3 hereof and thelimitations contained in Section 5 hereof, the Borrowers, the otherLoan Parties, Agent and Requisite Lenders hereby agree to amend the LoanAgreement as follows:

 

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

 

**SECTION 3.  Effectiveness**. ThisAmendment shall become effective as of December 31, 2009 upon thesatisfaction of each the following conditions precedent:

 

(a)           thisAmendment shall have been duly executed and delivered by Borrowers, the otherLoan Parties, Agent and each Requisite Lender; and

 

(b)           therepresentations and warranties contained herein shall be true and correct inall material respects.

 

**SECTION 4.  Representationsand Warranties**. In order to induce Agent and each Requisite Lenderto enter into this Amendment, each Loan Party hereby represents and warrants toAgent and each Lender, which representations and warranties shall survive theexecution and delivery of this Amendment, that:

 

(a)           allof the representations and warranties contained in the Loan Agreement and ineach Other Agreement are true and correct in all material respects as of thedate hereof after giving effect to this Amendment, except to the extent thatany such representations and warranties expressly relate to an earlier date;

 

(b)           theexecution, delivery and performance by the Loan Parties of this Amendment hasbeen duly authorized by all necessary corporate action required on their partand this Amendment, and the Loan Agreement is the legal, valid and bindingobligation of the Loan Parties enforceable against the Loan Parties inaccordance with its terms, except as its enforceability may be affected by theeffect of bankruptcy, insolvency, reorganization, moratorium or other similarlaws now or hereafter in effect relating to or affecting the rights or remediesof creditors generally;

 

(c)           neitherthe execution, delivery and performance of this Amendment by the Loan Parties,the performance by the Loan Parties of the Loan Agreement and Other Agreementsto which any Loan Party is a party nor the consummation of the transactionscontemplated hereby does or shall contravene, result in a breach of, or violate(i) any provision of any Loan Party’s certificate or articles ofincorporation or formation, bylaws or operating agreement or other similardocuments or agreements, (ii) any law or regulation, or any order ordecree of any court or government instrumentality, or (iii) any indenture,mortgage, deed of trust, lease, agreement or other instrument to which any LoanParty or any of its Subsidiaries is a party or by which any Loan Party or anyof its Subsidiaries or any of their property is bound, except in any such caseto the extent such conflict or breach has been waived by a written waiverdocument, a copy of which has been delivered to Agent on or before the datehereof; and

 

2

----

 

(d)           as of the datehereof, no Default or Event of Default has occurred and is continuing.

 

**SECTION 5.  Referenceto and Effect Upon the Loan Agreement.**

 

(a)           Exceptas specifically set forth above, the Loan Agreement and each of the OtherAgreements shall remain in full force and effect and are hereby ratified andconfirmed; and

 

(b)           theamendment set forth herein is effective solely for the purposes set forthherein and shall be limited precisely as written, and shall not be deemed to (i) bean amendment or modification of any other term or condition of the LoanAgreement or any Other Agreement, (ii) operate as a waiver of any Defaultor Event of Default or any right, power or remedy of Agent or Lenders under theLoan 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 OtherAgreements to the Loan Agreement shall mean the Loan Agreement as amendedhereby. This Amendment shall be construed in connection with and as part of theLoan Agreement. Each Loan Party hereby acknowledges and agrees that there is nodefense, setoff or counterclaim of any kind, nature or description to theLiabilities or the payment thereof when due.

 

**SECTION 6.  CostsAnd Expenses**.  As providedin Section 4(c)(v) of the Loan Agreement, Borrowers agree toreimburse Agent for all fees, costs and expenses, including, withoutlimitation, the reasonable fees, costs and expenses of counsel or otheradvisors for advice, assistance or other representation, incurred in connectionwith this Amendment.

 

**SECTION 7.  GOVERNINGLAW**.  THIS AMENDMENT SHALL BEGOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OFILLINOIS.

 

**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 andinto MIC Group, LLC; and (ii) Lowy Group, Inc. with and into J.B.Poindexter & Co., Inc.

 

**SECTION 9.  Headings**.  Section headings in this Amendment areincluded herein for convenience of reference only and shall not constitute partof this Amendment for any other purposes.

 

**SECTION 10.  Counterparts**. ThisAmendment may be executed in any number of counterparts, each of which when soexecuted shall be deemed an original, but all such counterparts shallconstitute one and the same instrument.

 

[Signature Pages Follow]

 

3

----

 

IN WITNESS WHEREOF, theparties hereto have executed and delivered this Amendment as of the date firstwritten 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 toLoan and Security Agreement]

 

----

 

The following Persons aresignatories to this Amendment in their capacities as Loan Parties, not asBorrowers:

 

 

**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               |   |
|            |                             |                                      |  |  |

** **

** **

**COMMERCIALBABCOCK 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 | ** **      |

 

 

**STATEWIDE ALUMINUM, INC.**

 
| By:                    | /s/ Larry Wolfe |   |
|------------------------|-----------------|--------|
| Name:  Larry Wolfe     |            |
| Title:  Vice President | ** **      |

 

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

 

----