**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 principaloffice 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 Delawarelimited liability company (“EFP LLC”), FEDERAL COACH, LLC, a Delaware limitedliability company (“Federal Coach”) and RICHARD’S MANUFACTURING COMPANY, anOklahoma corporation (“RMC”) (Poindexter, Morgan LLC, TAG LLC, MIC LLC, MOLLC,EFP LLC, Federal Coach and RMC are collectively referred to as “**Borrowers**”), the other Loan Partiessignatory hereto, LaSalle Bank National Association, a national bankingassociation, with its office at 135 South LaSalle Street, Suite 425,Chicago, Illinois 60603, for itself, as a Lender (as hereinafter defined), andas Agent for the Lenders, and all other Lenders that are now or hereafterparties to the Loan Agreement (as hereinafter defined).

#  

PRELIMINARYSTATEMENTS

 

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

 

(B)                                Borrower has requested and Lender has agreedto 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 partiesmutually agree, the parties hereto agree as follows:

 

AGREEMENT

 

## 1.                                       Preliminary Statements.  Thepreliminary statements set forth above are accurate, represent the intent ofthe 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 asset forth in the Loan Agreement.

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

##  

A.                                   New Definitions.  Thefollowing definitions are hereby added to Section 1 of the LoanAgreement in alphabetical order:

 

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

 

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

 

B.                                     Removed Definition.  Thedefined term “Blocked Account” set forth in Section 1 of the LoanAgreement is hereby deleted in its entirety.

 

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

 

“(a)                            Within thirty (30) daysafter the Closing Date, each Borrower shall establish one or more account (the “**Dominion Account**”) in Agent’s name with a financialinstitution acceptable to Agent, into which all payments received by Borrowerand its Respective Loan Parties shall be deposited, and into which Borrower andits Respective Loan Parties will immediately deposit all payments received byBorrower on Accounts in the identical form in which such payments werereceived, whether by cash or check; provided that on or prior to Systems DayOne, at the request of Agent, the Dominion Account shall be changed to Borrower’sname for the benefit of Agent.  At theoption of the Loan Parties, Account Debtors of the Loan Parties may remitpayments on the Accounts directly to a post office box (the “**Lock Box**”) designated by, and under the exclusive controlof, Agent, at LaSalle or at a financial institution acceptable to Agent atwhich a corresponding Dominion Account has been established under an arrangementacceptable to Agent into which all payments received in such Lock Box shall bedeposited.  If a Loan Party, anyAffiliate or Subsidiary, any shareholder, officer, director, employee or agentof Loan Party or any Affiliate or Subsidiary, or any other Person acting for orin concert with a Loan Party shall receive any monies, checks, notes, drafts orother payments relating to or as Proceeds of Accounts or other Collateral, suchLoan Party and each such Person shall receive all such items in trust for, andas the sole and exclusive property of, Agent and, immediately upon receiptthereof, shall remit the same (or cause the same to be remitted) in kind to aDominion Account.  The financialinstitution with which the Dominion Account is established shall acknowledgeand agree, in a manner satisfactory to Agent, that the amounts on deposit insuch Dominion Account (and Lock Box if applicable) are the sole and exclusiveproperty of Agent, that such financial institution will follow the instructionsof Agent with respect to disposition of funds in the Dominion Account (and LockBox if applicable) without further consent from such Loan Party, that suchfinancial institution has no right to setoff (or only a subordinated right ofsetoff) against the such Dominion Account (or Lock Box if applicable) oragainst any other account maintained by such financial institution into whichthe contents of the such Dominion Account (or Lock Box if applicable) aretransferred, and that such financial institution shall wire, or otherwisetransfer in immediately available funds to Agent in a manner satisfactory toAgent, funds deposited in the Dominion Account on a daily basis as such fundsare collected.  At all times when noFunds Control Event Period is in effect, Agent shall remit all funds receivedby Agent from the Dominion Accounts into the account of the BorrowerRepresentative maintained at LaSalle.  Inaddition to the Dominion Accounts, Loan Parties may also establish accounts atfinancial institutions

 

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acceptable to Agent subject to controlagreements 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 aDominion Account and shall not deposit such proceeds in any other account.  The Canadian Loan Party, however, shall causeall proceeds of Accounts and other Collateral to be remitted to a PledgedAccount.  Within thirty (30) days afterthe Closing Date, each Loan Party shall cause all accounts of such Loan Party,other than Dominion Accounts established at LaSalle, to be subject to controlagreements in favor of and on terms and conditions reasonably acceptable to theAgent.  At all times during a FundsControl Event Period (as defined below), the Agent shall be entitled to send anotice to the financial institutions holding such Pledged Accounts to assumeexclusive control over such Pledged Accounts and cause all proceeds of suchPledged Accounts to be remitted to a Dominion Account or another account ofAgent (provided, that Agent hereby agrees to send such noticeonly during a Funds Control Event Period). Each financial institution with which any Pledged Account is establishedshall acknowledge and agree, in a manner satisfactory to Agent, that suchfinancial institution will follow the instructions of Agent after receipt bysuch financial institution of a notice to that effect sent by Agent withrespect to disposition of funds in the Pledged Account without further consentfrom such Loan Party, that except as set forth in such control agreement withAgent, such financial institution has no right to setoff against the PledgedAccount, and that such financial institution shall wire, or otherwise transferin immediately available funds in a manner satisfactory to Agent, fundsdeposited in the Pledged Account when so directed by a Loan Party or, afterreceipt at the aforementioned notice, the Agent.  Each Loan Party agrees that all payments madeto any such Dominion Account or otherwise received by Agent at any time a FundsControl Event Period is in effect, whether in respect of the Accounts or asProceeds of other Collateral or otherwise, will be applied on account of theLiabilities in accordance with the terms of this Agreement; provided, thatso long as no Event of Default has occurred and remains continuing, paymentsreceived by Agent shall not be applied to the unmatured portion of the LIBORRate 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 Periodapplicable to such LIBOR Rate Loan and (ii) the occurrence of an Event ofDefault; provided further, that so long as no Event of Default has occurred andremains continuing, the immediately available funds in such cash collateralaccount may be disbursed, at a Borrower’s discretion, to such Borrower so longas after giving effect to such disbursement, such Borrower’s availability undersubsection 2(a) hereof at such time, equals or exceeds theoutstanding Revolving Loans at such time.

 

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

 

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Control Event, the Loan Parties shall haveaccess to and may make withdrawals from the Pledged Accounts and otheroperating accounts of Loan Parties at LaSalle (the “**LaSalleAccounts**”); provided, that during a Funds Control EventPeriod, Agent, may in its sole discretion, without any prior notice toBorrowers or any other Loan Party, assume exclusive dominion and control overeach Pledged Account and LaSalle Account, and without limiting any of Agent’sor any Lender’s other rights and remedies, apply the same to the payment and/orcash collateralization of the Liabilities in accordance with the terms of thisAgreement and the Other Agreements.  EachLoan Party agrees to pay all customary fees, costs and expenses in connectionwith opening and maintaining each Dominion Account, related Lock Box, PledgedAccount and LaSalle Account.  All of suchfees, costs and expenses if not paid by a Loan Party, may be paid by Agent andin such event all amounts paid by Agent shall constitute Liabilities hereunder,shall be payable to Agent by each Borrower upon demand, and, until paid, shallbear interest at the highest rate then applicable to Loans hereunder.  All checks, drafts, instruments and otheritems of payment or Proceeds of Collateral shall be endorsed by the applicableLoan Party to Agent, and, if that endorsement of any such item shall not bemade for any reason, Agent is hereby irrevocably authorized to endorse the sameon such Loan Party’s behalf.  For thepurpose of this section, each Loan Party irrevocably hereby makes, constitutesand appoints Agent (and all Persons designated by Agent for that purpose) assuch Loan Party’s true and lawful attorney and agent-in-fact (i) toendorse such Loan Party’s name upon said items of payment and/or Proceeds ofCollateral and upon any Chattel Paper, Document, Instrument, invoice or similardocument or agreement relating to any Account of such Loan Party or Goodspertaining thereto; (ii) during a Funds Control Event Period, to takecontrol in any manner of any item of payment or Proceeds thereof (unlessauthority is provided to Agent in any Other Agreement governing such Lock Boxor deposit account) and (iii) during a Funds Control Event Period, to haveaccess to any Lock Box or postal box into which any of such Loan Party’s mailis deposited, and open and process all mail addressed to such Loan Party anddeposited therein (unless authority is provided to Agent in any Other Agreementgoverning such Lock Box or deposit account).

 

D.                                    Application of Payments.  Subsection8(c) of the Loan Agreement is hereby amended to add the following atthe end of such subsection:

 

“Notwithstanding the foregoing, on the first day ofthe month during which Systems Day One occurs, for purposes of determining theamount of Loans available for borrowing purposes, the ledger balance in themain Dominion Account as of the end of a Business Day shall be applied to theLiabilities at the beginning of the next Business Day. However, solely forpurposes of computing interest hereunder, and in addition to Lender’s standardfees and charges relating to the Dominion Account, any application by Lender ofsuch balance to the Liabilities shall be deemed to be made one (1) BusinessDay(s) after application to the Liabilities as set forth in the precedingsentence.  If, as a result of suchapplication, a credit balance exists, the balance shall not accrue interest infavor of such Loan Party and shall be made available to Loan Party as long asno Event of Default exists.  Each LoanParty irrevocably waives the right to direct the application of any payments orCollateral proceeds, and agrees that Lender shall have the continuing,

 

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exclusive right to apply and reapply same againstthe Liabilities, in such manner as Lender deems advisable, notwithstanding anyentry by Lender in its records.”

 

## 3.                                       Cross Default and Cross Collateralization.  Adefault in the payment or performance of Borrower’s obligations under thisAmendment will constitute an Event of Default under the Loan Agreement and insuch event Lender will be entitled to exercise any and all remedies availablehereunder.  Borrower and Lender further agreethat the Other Agreements securing the Loan Agreement are hereby modified sothat each Other Agreement will hereafter secure the Loan Agreement.

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## 4.                                       Ratification.  Theparties hereto ratify and reaffirm that all terms, conditions and provisions ofthe Loan Agreement, and the Other Agreements remain in full force and effectexcept to the extent expressly modified by the terms of this Amendment.

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## 5.                                       Releases.  As a material part of theconsideration for Lender entering into this Amendment and in order to induceLender to further modify the Loan Agreement and Other Agreements and to extendcredit to Borrower, Borrower hereby releases and forever discharges Lender andLender’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 expenseswhatsoever (collectively “**Claims**”),of every kind and nature, however evidenced or created, whether known orunknown, arising prior to or on the date of this Amendment including, but notlimited to, any Claims involving the extension of credit under oradministration of the Loan Agreement or Other Agreements, as each may beamended, the indebtedness incurred by Borrower or any other transactionsevidenced by this Amendment or Other Agreements.

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

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

##  

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

 

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

 

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

 

## 8.                                       Miscellaneous.

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##  

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

 

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

 

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

 

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

 

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

 

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

 

## 9.                                       **WAIVER OF JURY TRIAL****. LENDER AND BORROWER WAIVETHE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED UPON, OR RELATEDTO, THE SUBJECT MATTER OF THIS AMENDMENT. THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY BORROWERAND BORROWER ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALFOF LENDER HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIALBY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT.  BORROWER FURTHER ACKNOWLEDGES THAT IT HASBEEN REPRESENTED (OR HAS THE OPPORTUNITY TO BE REPRESENTED) IN THE SIGNING OFTHIS 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 THISWAIVER WITH COUNSEL.  BORROWER FURTHERACKNOWLEDGES THAT IT HAS READ AND UNDERSTAND THE MEANING AND RAMIFICATIONS OFTHIS WAIVER PROVISION**.

 

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**IN WITNESS WHEREOF,** Borrower and Lender havecaused this Amendment to be executed by an officer duly authorized to soexecute and bind said parties effective as of the day and year first writtenabove.

 

**BORROWERS:**

 

| J.B. POINDEXTER & CO., INC., |   | MORGAN TRUCK BODY, LLC,              |
|---------------------------------------|--------|--------------------------------------|
| a Delaware corporation                |   | a Delaware limited liability company |
|                                  |   |                                 |
|                                  |   |                                 |
| By:                                   |   |                                 | By: |   |
| Print  Name:                          |   |                                 | Print  Name: |   |
| Title:                                |   |                                 | Title: |   |
|                                  |   |                                 |
| TRUCK ACCESSORIES GROUP, LLC,         |   | MIC GROUP, LLC,                      |
| a Delaware limited liability company  |   | a Delaware limited liability company |
|                                  |   |                                 |
|                                  |   |                                 |
| By:                                   |   |                                 | By: |   |
| Print  Name:                          |   |                                 | Print  Name: |   |
| Title:                                |   |                                 | Title: |   |
|                                  |   |                                 |
| MORGAN OLSON, LLC,                    |   | EFP LLC,                             |
| a Delaware limited liability company  |   | a Delaware limited liability company |
|                                  |   |                                 |
|                                  |   |                                 |
| By:                                   |   |                                 | By: |   |
| Print  Name:                          |   |                                 | Print  Name: |   |
| Title:                                |   |                                 | Title: |   |
|                                  |   |                                 |
| FEDERAL COACH, LLC,                   |   | RICHARD’S MANUFACTURING         |
| a Delaware limited liability company  |   | COMPANY,                             |
|                                  |   | an Oklahoma corporation              |
|                                  |   |                                 |
| By:                                   |   |                                 | By: |   |
| Print  Name:                          |   |                                 | Print  Name: |   |
| Title:                                |   |                                 | Title: |   |
|                                       |        |                                      |  |  |  |  |  |  |  |  |  |  |

 

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**AGENT AND LENDER:**

** **

| LASALLE BANK NATIONAL ASSOCIATION, |   |   |
|------------------------------------|--------|--------|
| a  national banking association,   |   |   |
| as  Agent and Lender               |   |   |
|                               |   |   |
|                               |   |   |
| By:                                |   |   |   |   |
| Print  Name:                       |   |   |   |   |
| Title:                             |   |   |   |   |
|                                    |        |        |  |  |  |  |  |  |

 

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**LOAN PARTIES:**

 

| LOWY GROUP, INC.          |   | RAIDER INDUSTRIES INC.             |
|---------------------------|--------|------------------------------------|
|                      |   |                               |
|                      |   |                               |
| By:                       |   |                               | By: |   |
| Print  Name:              |   |                               | Print  Name: |   |
| Title:                    |   |                               | Title: |   |
|                      |   |                               |
| SWK HOLDINGS, INC.        |   | UNIVERSAL BRIXIUS, INC.            |
|                      |   |                               |
|                      |   |                               |
| By:                       |   |                               | By: |   |
| Print  Name:              |   |                               | Print  Name: |   |
| Title:                    |   |                               | Title: |   |
|                      |   |                               |
| MORGAN  TRAILER FINANCIAL |   | MORGAN  TRAILER FINANCIAL          |
| CORPORATION               |   | MANAGEMENT,  L.P.                  |
|                      |   | By:  MORGAN TRAILER MFG. CO., |
|                      |   | Its  general partner               |
|                      |   |                               |
| By:                       |   |                               |   |   |
| Print  Name:              |   |                               |   |   |
| Title:                    |   |                               |   |   |
|                      |   |                               | By: |   |
|                      |   |                               | Print  Name: |   |
|                      |   |                               | Title: |   |
|                           |        |                                    |  |  |  |  |  |  |  |  |  |  |  |

 

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**LOAN PARTIES:**

 

| COMMERCIAL BABCOCK INC.   |   | EAGLE SPECIALTY VEHICLES, LLC             |
|---------------------------|--------|-------------------------------------------|
|                      |   |                                      |
|                      |   |                                      |
| By:                       |   |                                      | By: |   |
| Print  Name:              |   |                                      | Print  Name: |   |
| Title:                    |   |                                      | Title: |   |
|                      |   |                                      |
| STATE WIDE ALUMINUM, INC. |   | TARLTON SUPPLY CO.                        |
|                      |   |                                      |
|                      |   |                                      |
| By:                       |   |                                      | By: |   |
| Print  Name:              |   |                                      | Print  Name: |   |
| Title:                    |   |                                      | Title: |   |
|                      |   |                                      |
| HANDLEY,  L.P.            |   | MACHINE &  MANUFACTURING I, INC. |
| By:  MIC GROUP, LLC, |   |                                      |
| Its  general partner      |   |                                      |
|                      |   |                                      | By: |   |
|                      |   |                                      | Print  Name: |   |
|                      |   |                                      | Title: |   |
| By:                       |   |                                      |   |   |
| Print  Name:              |   |                                      |   |   |
| Title:                    |   |                                      |   |   |
|                           |        |                                           |  |  |  |  |  |  |  |  |  |  |  |

 

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