Credit and Security Agreement
Amendment No. 4 to
This Amendment No. 4 to Credit and Security Agreement (this “Amendment”), dated as of January 5, 2015, is made by and among Mohawk Factoring, LLC, a Delaware limited liability company (the “Borrower”), Mohawk Servicing, LLC, a Delaware limited liability company (the “Servicer”) the Lenders party hereto, the Liquidity Banks party hereto, the Co-Agents party hereto 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 Administrative Agent, the Lenders, the Liquidity Banks and the Co-Agents amend the Monthly Reporting Date and the Settlement Date, and the Administrative Agent, the Lenders, the Liquidity Banks and the Co-Agents are willing to do so under the terms of this Amendment;
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. Amendment to the Credit and Security Agreement.
Section 2.1. The defined term “Monthly Reporting Date” appearing in Exhibit I of the Credit and Security Agreement is hereby amended and restated in its entirety to read as follows:
“Monthly Reporting Date” means the Business Day set forth on Schedule D hereto.
Section 2.2. The defined term “Settlement Date” appearing in Exhibit I of the Credit and Security Agreement is hereby amended and restated in its entirety to read as follows:
“Settlement Date” means the 27th day of each calendar month, or if such day is not a Business Day, the next Business Day occurring thereafter.
Section 2.3. The Credit and Security Agreement is hereby amended by inserting a new Schedule D which shall read as set forth on Schedule D attached hereto.
4103990
Section 3. 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 4. 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 an executed copy of the Amendment to the Xxxxx Fargo Bank, National Association Deposit Account Control Agreement;
(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 5. 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 6. 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 7. 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 8. 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 9. 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.
2
Section 10. 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.]
3
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/ Xxxx X Xxxxx |
Name: Xxxx X Xxxxx
Title: Secretary
Mohawk Servicing, LLC, as Servicer
By: | /s/ Xxxxxxxx Xxxxxxxxxx |
Name: Xxxxxxxx Xxxxxxxxxx
Title: Vice President-Treasurer
SunTrust Bank, as a Non-Conduit Lender
By: | /s/ Xxxxx Xxxxxxxx |
Name: Xxxxx Xxxxxxxx
Title: Vice President
SunTrust Bank, as Co-Agent and Administrative Agent
By: | /s/ Xxxxx Xxxxxxxx |
Name: Xxxxx Xxxxxxxx
Title: Vice President
Victory Receivables Corporation
By: | /s/ Xxxxx X. XxXxxxxxx |
Name: Xxxxx X. XxXxxxxxx
Title: Vice President
4
The Bank of Tokyo‑Mitsubishi UFJ, Ltd., New York Branch, as Co‑Agent
By: | /s/ Xxx Xxxxxxxxx |
Name: Xxx Xxxxxxxxx
Title: Managing Director
The Bank of Tokyo‑Mitsubishi UFJ, Ltd., New York Branch, as Victory Liquidity Bank
By: | /s/ Xxxxx Xxxxxxxxx |
Name: Xxxxx Xxxxxxxxx
Title: Director
Working Capital Management Co., L.P., as Conduit
By: | /s/ Xxxxxxx Xxxxxxxx |
Name: Xxxxxxx Xxxxxxxx
Title: Attorney-in-Fact
Mizuho Bank, Ltd., as WCM Liquidity Bank and as Co-Agent
By: | /s/ Xxxxx XxXxxxxxxxx |
Name: Xxxxx XxXxxxxxxxx
Title: Authorized Signatory
PNC Bank, National Association, as a Non- Conduit Lender and as Co‑Agent
By: | /s/ Xxxx Xxxxxxxx |
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
Address: PNC Bank, National Association
Three PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
5
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxxxxx.xxxxxxx@xxx.xxx
With a copy to:
PNC Bank, National Association
0000 Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx, Managing Director
Telephone: (000) 000-0000
Fax: (000) 000-0000
Email: xxxx.xxxxx@xxx.xxx
Xxxxx Fargo Bank, National Association, as a Non-Conduit Lender and as Co‑Agent
By: | /s/ Xxxx Xxxx |
Name: Xxxx Xxxx
Title: SVP
Address: Xxxxx Fargo Bank, National Association
0000 Xxxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
6
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. 4 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.
MOHAWK INDUSTRIES, INC.
By: /s/ Xxxxxxxx Xxxxxxxxxx
Name: | Xxxxxxxx Xxxxxxxxxx |
Title: | Vice President-Treasurer |
SCHEDULE D
MONTHLY REPORTING DATES
Fiscal Month End | Monthly Reporting Date |
December 2014 | January 20, 2015 |
January 2015 | February 24, 2015 |
February 2015 | Xxxxx 00, 0000 |
Xxxxx 2015 | April 21, 2015 |
April 2015 | May 27, 2015 |
May 2015 | June 23, 2015 |
June 2015 | July 21, 2015 |
July 2015 | August 25, 2015 |
August 2015 | September 22, 2015 |
September 2015 | October 20, 2015 |
October 2015 | November 24, 2015 |
November 2015 | December 22, 2015 |
December 2015 | January 19, 2016 |
