Credit And Security Agreement

Amendment No. 2 to Credit and Security Agreement and Waiver

EXHIBIT 10.1

AMENDMENT NO. 2 TO
CREDIT AND SECURITY AGREEMENT AND WAIVER
This Amendment No. 2 to Credit and Security Agreement and Waiver (this “Amendment”), dated as of April 11, 2014, among MOHAWK FACTORING, LLC, a Delaware limited liability company (the “Borrower”), MOHAWK SERVICING, LLC, a Delaware limited liability company (the “Servicer”) the Lenders from time to time party thereto, the Liquidity Banks from time to time party thereto, the Co-Agents from time to time party thereto and SUNTRUST BANK, a Georgia banking corporation, as administrative agent (in such capacity, the “Administrative Agent”).
WITNESSETH:
WHEREAS, the Borrower, the Servicer, the Lenders, the Liquidity Banks, the Co-Agents and the Administrative Agent previously entered into that certain Credit and Security Agreement (as amended, restated, supplemented or otherwise modified from time to time, the Credit and Security Agreement), dated as of December 19, 2012; and
WHEREAS, the Borrower and the Servicer, have requested that the Lenders, the Liquidity Banks, the Co-Agents and the Administrative Agent (i) waive the Existing Defaults (as defined below) and (ii) agree to amend the Credit and Security Agreement pursuant to the terms and conditions set forth herein; and
NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Section 1.    Definitions. Capitalized terms not otherwise defined herein shall have the meanings given to them in the Credit and Security Agreement.
Section 2.    Waiver. Section 7.1(a)(i) of the Credit and Security Agreement requires that the Borrower deliver to the Administrative Agent unaudited balance sheets and statements of earnings of the Borrower as of the end of each fiscal year within 90 days after the end of each fiscal year of the Performance Guarantor (the “Borrower Annual Financial Reporting Covenant”). The Borrower has failed to comply with the Borrower Annual Financial Reporting Covenant for the fiscal years ended December 31, 2012 and December 31, 2013 (the “Borrower Annual Financial Reporting Default”). Section 7.1(a)(ii) of the Credit and Security Agreement requires that the Borrower deliver to the Administrative Agent quarterly unaudited balance sheets and statements of earnings for Borrower within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Performance Guarantor (the “Borrower Quarterly Financial Reporting Covenant”). The Borrower has failed to comply with the Borrower Quarterly Financial Reporting



Covenant for the fiscal quarters ended March 30, 2013, June 29, 2013 and September 28, 2013 (the “Borrower Quarterly Financial Reporting Default” and, together with the Borrower Annual Financial Reporting Default, the “Existing Defaults”).
The Borrower has requested that the Lenders, the Liquidity Banks, the Co-Agents and the Administrative Agent waive the Existing Defaults. Accordingly, the Lenders, the Liquidity Banks, the Co-Agents and the Administrative Agent hereby waive the Existing Defaults. The Borrower acknowledges and agrees that the foregoing waiver is limited to the matters expressly set forth herein and the Borrower remains obligated to comply with all other terms and conditions of the Credit and Security Agreement (as amended hereby) and the other Transaction Documents. The Borrower further acknowledges and agrees that the Lenders, the Liquidity Banks, the Co-Agents and the Administrative Agent shall not be obligated in the future to waive any provision of the Credit and Security Agreement or the other Transaction Documents as a result of having provided the waiver contained herein.
Section 3.    Amendments to the Credit and Security Agreement.
(a)    Section 7.1(a)(ii) of the Credit and Security Agreement is hereby amended and restated in its entirety and as so amended and restated shall read as follows:
(ii)    Quarterly Reporting. As soon as available, but in any event within 45 days after the end of each of the first three (3) fiscal quarters of each fiscal year of the Performance Guarantor (commencing with the fiscal quarter ending March 29, 2014) (or, if earlier, 10 Business Days after the date required to be filed with the SEC), a consolidated balance sheet of the Performance Guarantor and its Subsidiaries as at the end of such fiscal quarter, the related consolidated statements of income or operations for such fiscal quarter and for the portion of the Performance Guarantor’s fiscal year then ended, and the related consolidated statements of cash flows for the portion of the Performance Guarantor’s fiscal year then ended, in each case setting forth in comparative form, as applicable, the figures for the corresponding fiscal quarter of the previous fiscal year and the corresponding portion of the previous fiscal year, such consolidated statements to be certified by the chief executive officer, chief financial officer, treasurer or controller of the Performance Guarantor as fairly presenting in all material respects the financial condition, results of operations and cash flows of the Performance Guarantor and its Subsidiaries in accordance with GAAP, subject only to normal year‑end audit adjustments and the absence of footnotes.



(b)    The defined term “LIBO Rate” appearing in Exhibit I to the Credit and Security Agreement is hereby amended and restated in its entirety and as so amended and restated shall read as follows:
“LIBO Rate” means, for any Interest Period, the quotient of (a) a rate per annum determined on the basis of the offered rate for deposits in U.S. dollars of amounts equal or comparable to the principal amount of the related Loan offered for a term comparable to such Interest Period, which rates appear on page BBAM on the Bloomberg Terminal (successor to Telerate page 3750) (“Page BBAM”) (or any other page that may replace such page from time to time on that service or such other service as may be nominated by the ICE Benchmark Administration (“ICE”) (or the successor thereto if ICE is no longer making the London Interbank Offered Rate available) as the information vendor for the purpose of displaying offered rates of leading banks for London interbank deposits for such Interest Period in United States dollars) at approximately 11:00 a.m. (London time), two Business Days prior to the first day of such Interest Period, provided that if no such offered rates appear on such page, the LIBO Rate for such Interest Period will be the arithmetic average (rounded upwards, if necessary, to the next higher 1/100th of 1%) of rates quoted by not less than three (3) major banks in New York, New York, selected by the applicable Co‑Agent, at approximately 10:00 a.m. (New York City time), two Business Days prior to the first day of such Interest Period, for deposits in U.S. dollars offered by leading European banks for a period comparable to such Interest Period in an amount comparable to the principal amount of such Loan, and (b) one minus the maximum aggregate reserve requirement, if any (including all basic, supplemental, marginal or other reserves) which is imposed against the applicable Co‑Agent in respect of Eurocurrency liabilities, as defined in Regulation D of the Board of Governors of the Federal Reserve System as in effect from time to time (expressed as a decimal), applicable to such Interest Period.
Section 4.    Representations of the Borrower. The Borrower hereby represents and warrants to the parties hereto that as of the date hereof each of the representations and warranties contained in the Credit and Security Agreement is true and correct as of the date hereof and after giving effect to this Amendment (except to the extent that such representations and warranties



expressly refer to an earlier date, in which case they are true and correct as of such earlier date); provided, that with respect to those contained in Section 5.1(a), (e), (f), (l), (u) and (w) of the Credit and Security Agreement, the determination of whether any Material Adverse Effect has occurred as set forth therein shall be made solely by the Borrower, in its reasonable, good faith judgment.
Section 5.    Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of all of the following conditions precedent:
(a)    Administrative Agent shall have received a fully executed counterpart of this Amendment;
(b)    Administrative Agent shall have received a duly executed Performance Guarantor’s Acknowledgment and Consent;
(c)    each representation and warranty of the Borrower contained herein shall be true and correct; and
(d)    no Amortization Event shall have occurred and be continuing.
Section 6.    Amendment. The parties hereto hereby agree that the provisions and effectiveness of this Amendment shall apply to the Credit and Security Agreement as of the date hereof. Except as amended by this Amendment, the Credit and Security Agreement remains unchanged and in full force and effect. This Amendment is a Transaction Document.
Section 7.    Counterparts. This Amendment may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 8.    Captions. The headings of the Sections of this Amendment are for convenience of reference only and shall not modify, define, expand or limit any of the terms or provisions of this Amendment.
Section 9.    Successors and Assigns. The terms of this Amendment shall be binding upon, and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Section 10.    Severability. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions, and any such



prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.    Governing Law and Jurisdiction. The provisions of the Credit and Security Agreement with respect to governing law and consent to jurisdiction are incorporated in this Amendment by reference as if such provisions were set forth herein.
[Signatures appear on following page.]




IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to be duly executed by their respective duly authorized officers as of the day and year first above written.
MOHAWK FACTORING, LLC, as Borrower
 
 
 
By:
 
/s/ Shailesh Bettadapur
Name:
 
Shailesh Bettadapur
Title:
 
Vice President and Treasurer
 
 
 
    
MOHAWK SERVICING, LLC, as Servicer
 
 
 
By:
 
/s/ Shailesh Bettadapur
Name:
 
Shailesh Bettadapur
Title:
 
Vice President and Treasurer
 
 
 
VICTORY RECEIVABLES CORPORATION
 
 
 
By:
 
/s/ David V. DeAngelis
Name:
 
David V. DeAngelis
Title:
 
Vice President
 
 
 
THE BANK OF TOKYO‑MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Co‑Agent
 
 
 
By:
 
/s/ Richard Gregory Hurst
Name:
 
Richard Gregory Hurst
Title:
 
Managing Director
 
 
 
THE BANK OF TOKYO‑MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Victory Liquidity Bank
 
 
 
By:
 
/s/ R. Mumick
Name:
 
R. Mumick
Title:
 
Director
 
 
 



WORKING CAPITAL MANAGEMENT CO., L.P., AS CONDUIT
 
 
 
By:
 
/s/ Shinichi Nochiide
Name:
 
Shinichi Nochiide
Title:
 
Attorney-In-Fact
 
 
 
SUNTRUST BANK, as a Non-Conduit Lender
 
 
 
By:
 
/s/ Michael Peden
Name:
 
Michael Peden
Title:
 
Vice President
 
 
 
SUNTRUST BANK, as Co-Agent and Administrative Agent
 
 
 
By:
 
/s/ Michael Peden
Name:
 
Michael Peden
Title:
 
Vice President
 
 
 
MIZUHO CORPORATE BANK, LTD., as WCM Liquidity Bank and as Co-Agent
 
 
 
By:
 
/s/ David Lim
Name:
 
David Lim
Title:
 
Authorized Signatory
 
 
 









    




PERFORMANCE GUARANTOR’S ACKNOWLEDGMENT AND CONSENT
The undersigned, Mohawk Industries, Inc., has heretofore executed and delivered the Performance Undertaking dated as of December 19, 2012 (the “Performance Undertaking”) and hereby consents to the Amendment No. 2 to the Credit and Security Agreement as set forth above and confirms that the Performance Undertaking and all of the undersigned’s obligations thereunder remain in full force and effect. The undersigned further agrees that the consent of the undersigned to any further amendments to the Credit and Security Agreement shall not be required as a result of this consent having been obtained, except to the extent, if any, required by the Performance Undertaking referred to above.

 
 
 
By:
 
/s/ Shailesh Bettadapur
Name:
 
Shailesh Bettadapur
Title:
 
Vice President and Treasurer