Amendment No. 7 to
Credit and Security Agreement
This Amendment No. 7 to Credit and Security Agreement (this “Amendment”), dated as of January 26, 2017, but effective as of December 31, 2016, 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 make certain amendments to the Credit and Security Agreement, 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.
2.1. Effective as of December 31, 2016, the defined terms “Delinquency Ratio” and “Borrowing Base” appearing in Exhibit I to the Credit and Security Agreement are hereby amended and restated in their entirety and as so amended shall read as follows:
“Borrowing Base” means, on any date of determination, the Net Pool Balance as of the last day of the period covered by the most recent Monthly Report, minus the Required Reserve as of the last day of the period covered by the most recent Monthly Report, and minus Deemed Collections that have occurred since the most recent Cut‑Off Date to the extent that such Deemed Collections exceed the Dilution Reserve. Notwithstanding the foregoing, for the period beginning December 31, 2016 up to and including February 4, 2017, for purposes of calculating the Borrowing Base, the Net Pool Balance shall not include any Receivables originated by Dal‑Tile Distribution, Inc.
“Delinquency Ratio” means, at any time, a percentage equal to (i) the aggregate Outstanding Balance of all Receivables that were Delinquent
Receivables at such time divided by (ii) the aggregate Outstanding Balance of all Receivables at such time. Notwithstanding the foregoing, for the period beginning December 31, 2016 up to and including February 4, 2017, the calculation of the Delinquency Ratio shall not include any Receivables originated by Dal‑Tile Distribution, Inc. in the numerator or denominator of such calculation.
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, including the Performance Guarantor’s Acknowledgment and Consent;
(b) each representation and warranty of the Borrower contained herein shall be true and correct; and
(c) 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.
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.]
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/ John J Koach |
Name: John J Koach
Title: Secretary
Mohawk Servicing, LLC, as Servicer
| By: | /s/ Shailesh Bettadapur |
Name: Shailesh Bettadapur
Title: VP & Treasurer
SunTrust Bank, as a Non-Conduit Lender
| By: | /s/ David Hufnagel |
Name: David Hufnagel
Title: Vice President
SunTrust Bank, as Co-Agent and Administrative Agent
| By: | /s/ David Hufnagel |
Name: David Hufnagel
Title: Vice President
The Bank of Tokyo‑Mitsubishi UFJ, Ltd., New York Branch, as a Non-Conduit Lender and as Co‑Agent
| By: | /s/ Richard Gregory Hurst |
Name: Richard Gregory Hurst
Title: Managing Director
Mizuho Bank, Ltd., as a Non-Conduit Lender and as Co‑Agent
| By: | /s/ Donna DeMagistris |
Name: Donna DeMagistris
Title: Authorized Signatory
PNC Bank, National Association, as a Non-Conduit Lender and as Co‑Agent
| By: | /s/ Eric Bruno |
Name: Eric Bruno
Title: Senior Vice President
Wells Fargo Bank, National Association, as a Non-Conduit Lender and as Co‑Agent
| By: | /s/ Isaac Washington |
Name: Isaac Washington
Title: Vice President
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. 7 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/ Shailesh Bettadapur |
Name: Shailesh Bettadpur
Title: VP & Treasurer