November 9, 2012
Exhibit 10.99
November 9, 2012
The Coast Distribution System, Inc.
000 Xxxxxxxx Xxxxxx
Morgan Hill, California 95037
| Re: | Thirteenth Amendment |
Ladies and Gentlemen:
The Coast Distribution System, Inc., a Delaware corporation (“Coast Delaware”), United Sales & Warehouse of Texas, Inc., a Texas corporation (“United Sales”), C/P Products Corp., an Indiana corporation (“C/P”), Mohawk Trailer Supply, Inc., a New York corporation (“Mohawk”), and Les Systemes De Distribution Coast (Canada) Inc. The Coast Distribution System (Canada) Inc., a corporation organized under the laws of the Province of Quebec (“Coast Canada”) (Coast Delaware, United Sales, C/P, Mohawk, and Coast Canada are referred to individually as “Borrower” and collectively as “Borrowers”), and Bank of America, N.A., (in its individual capacity, “US Lender”), acting by and through Bank of America, N.A., a national banking association, as agent for US Lender (in such capacity, “Agent”) and Bank of America, N.A. (acting through its Canada branch) (“Canadian Lender”), (US Lender, acting through Agent, and Canadian Lender are referred to collectively as “Lender”), have entered into that certain Third Amended and Restated Loan and Security Agreement dated August 30, 2005 (the “Security Agreement”). From time to time thereafter, Xxxxxxxxx and Xxxxxx may have executed various amendments (each an “Amendment” and collectively the “Amendments”) to the Security Agreement (the Security Agreement and the Amendments hereinafter are referred to, collectively, as the “Agreement”). Borrowers and Xxxxxx now desire to further amend the Agreement as provided herein, subject to the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
1 . The Agreement hereby is amended as follows:
(a) Subsection 4(c)(v) is hereby amended and restated in its entirety as follows:
(c)(v) Amendment Fee. Borrowers shall pay to Lender a one-time fee of Ten Thousand and No/100 Dollars ($10,000.00), which shall be fully earned and payable on the date hereof.
(b) Subsection 9(a) of the Agreement is hereby amended and restated in its entirety as follows:
| (a) | Weekly Reports. |
By Wednesday of each week, each Borrower, or Coast Delaware on behalf of the Borrowers comprising Coast US, shall deliver to Lender (i) an executed weekly loan report and certificate in Lender’s then current form, which also summarizes the prior week’s changes in such numbers and (ii) reports of sales, including credits issued and collections received and summarizing the prior week’s changes in all such numbers, accompanied by copies of each such Borrower’s sales journal and credit memo journal for the relevant period. Such weekly loan report and certificate shall be used to give Borrowers US Borrowing Base Availability and Canadian Borrowing Base Availability against Borrowers’ Eligible Accounts until such time as Borrowers deliver to Lender a subsequent weekly loan report and certificate, provided that in the event such weekly loan report and certificate is not delivered to Lender in a timely manner, then Lender may, in its sole discretion, apply collections that are received against the previously reported accounts receivable balance.
(c) Subsection 14(a) of the Agreement is hereby amended and restated in its entirety as follows:
| (a) | Fixed Charge Coverage Ratio. |
Borrowers shall not permit their Fixed Charge Coverage Ratio for each period set forth below to be less than the ratio set forth below for the corresponding period set forth below (it being understood that the Fixed Charge Coverage Ratio is not being measured for the fiscal quarter ending September 30, 2012):
| Period |
Ratio | |||
| For the 12 month period ending on December 31, 2012 and for each twelve (12) month period ending on the last day of each fiscal quarter thereafter |
1.10:1.0 | |||
2. Borrowers represent and warrant to Lender that this Amendment has been approved by all necessary corporate action, and each individual signing below represents and warrants that he or she is fully authorized to do so.
3. Except as expressly amended hereby and by any other supplemental documents or instruments executed by either party hereto in order to effectuate the transactions contemplated by this Amendment, the Agreement and all Exhibits thereto are ratified and confirmed by Xxxxxxxxx and Lender and remain in full force and effect in accordance with their terms.
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4. This Amendment may be executed in any number of counterparts, each of which shall be an original, but all of which, taken together, shall constitute one and the same agreement. This Amendment may be delivered by facsimile, and when so delivered will have the same force and effect as delivery of an original signature.
5. Borrowers shall reimburse Lender for all reasonable attorney’s fees (whether for internal or outside counsel) incurred by Xxxxxx in connection with the documentation and consummation of this Thirteenth Amendment to the Agreement.
(Remainder of page intentionally blank; signatures follow)
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and duly authorized officers as of the date first set forth above.
| LENDER: | ||
| BANK OF AMERICA, N.A., as Agent | ||
| By: | /s/ XXXX X. XXXXXXXXX | |
| Title: | Senior Vice President | |
| BANK OF AMERICA, N.A., as US Lender | ||
| By: | /s/ XXXX X. XXXXXXXXX | |
| Title: | Senior Vice President | |
| BANK OF AMERICA, N.A., acting through its | ||
| Canada branch, as Canadian Lender | ||
| By: | /s/ XXXXXX SALES Xx XXXXXXX | |
| Title: | Vice President | |
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| BORROWERS: | ||
| THE COAST DISTRIBUTION SYSTEM, INC. | ||
| By: | /s/ XXXXXX X. XXXXX | |
| Title: | Executive Vice President | |
| UNITED SALES & WAREHOUSE OF TEXAS, INC. | ||
| By: | /s/ XXXXXX X. XXXXX | |
| Title: | Executive Vice President | |
| C/P PRODUCTS, CORP. | ||
| By: | /s/ XXXXXX X. XXXXX | |
| Title: | Executive Vice President | |
| MOHAWK TRAILER SUPPLY, INC. | ||
| By: | /s/ XXXXXX X. XXXXX | |
| Title: | Executive Vice President | |
| LES SYSTEMES DE DISTRIBUTION COAST (CANADA) INC. THE COAST DISTRIBUTION SYSTEM (CANADA) INC. | ||
| By: | /s/ XXXXXX X. XXXXX | |
| Title: | Executive Vice President | |
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GUARANTOR’S ACKNOWLEDGMENT
The undersigned guarantor acknowledges that Bank of America, N.A., (in its individual capacity, “US Lender”), acting by and through Bank of America, N.A., as agent for US Lender (in such capacity, “Agent”) and Bank of America, N.A. (acting through its Canada branch), (“Canadian Lender”) (US Lender, acting through Agent, and Canadian Lender are referred to collectively as “Lender”) have no obligation to provide it with notice of, or to obtain its consent to, the terms of the foregoing Thirteenth Amendment (the “Thirteenth Amendment”) to the Third Amended and Restated Loan and Security Agreement dated August 30, 2005, as amended, modified or supplemented from time to time. The undersigned guarantor nevertheless: (i) acknowledges and agrees to the terms and conditions of the Thirteenth Amendment; and (ii) acknowledges that its guaranty remains fully valid, binding, and enforceable.
| 9002-1288 QUEBEC INC. | ||
| By: | /s/ XXXXXX X. XXXXX | |
| Title: | Executive Vice President | |
