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Exhibit 10.1
FIRST AMENDMENT TO FIVE YEAR CREDIT
AGREEMENT
THIS FIRST AMENDMENT TO FIVE YEAR CREDIT AGREEMENT (this "
Amendment ") is dated as of December 31, 2008, by and
among MOHAWK INDUSTRIES, INC., a Delaware corporation (the "
Borrower "), the banks and other financial institutions or
entities from time to time party to the Credit Agreement referred
to below (the " Banks ") that have executed an Authorization
in the form set forth as Exhibit A attached hereto, and
WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for
the Banks (in such capacity, the " Administrative Agent
").
Statement of Purpose
The Borrower, the Banks and the Administrative Agent are parties
to that certain Five Year Credit Agreement dated as of
October 28, 2005 (as amended, restated, supplemented or
otherwise modified from time to time and in effect immediately
prior to the effectiveness of this Amendment, the " Credit
Agreement "), pursuant to which the Banks have extended certain
credit facilities to the Borrower.
The Borrower has requested, and the Banks and the Administrative
Agent have agreed, subject to the terms and conditions set forth
herein, to amend the Credit Agreement as specifically set forth
herein.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. Capitalized Terms . All capitalized undefined terms
used in this Amendment (including, without limitation, in the
Statement of Purpose hereto) shall have the meanings assigned
thereto in the Credit Agreement.
2. Amendments . Subject to and in accordance with the
terms and conditions set forth herein, the Administrative Agent and
the Banks hereby agree that the Credit Agreement is amended as
follows:
(a) Section 1.01 of the Credit Agreement is hereby
amended as follows:
(i) by adding the following new defined terms in appropriate
alphabetical order:
" Defaulting Bank " means any Bank that (a) has
failed to fund any portion of the Revolving Credit Loans,
participations in Letter of Credit Obligations or participations in
Swing Loans required to be funded by it hereunder within three
Business Days of the date required to be funded by it hereunder,
(b) has otherwise failed to pay over to the Administrative
Agent or any other Bank any other amount required to be paid by it
hereunder within three Business Days of the date when due, unless
such amount is the subject of a good faith dispute, (c) has
notified the
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Borrower, the Administrative Agent or any other
Bank in writing that it does not intend to comply with any of its
funding obligations under this Agreement or has made a public
statement to the effect that it does not intend to comply with its
funding obligations under this Agreement or under other agreements
in which it commits or is obligated to extend credit, or
(d) has (or has a parent corporation that has) (i) become
or is insolvent, as reasonably determined by the Administrative
Agent in consultation with the Borrower, or (ii) become the
subject of a bankruptcy or insolvency proceeding, or has had a
receiver, conservator, trustee or custodian appointed for it, or
has taken any action in furtherance of, or indicating its consent
to, approval of or acquiescence in any such proceeding or
appointment.
" Defaulting Bank Termination " has the meaning set forth
in Section 8.09 .
" Defaulting Bank Termination Date " has the meaning set
forth in Section 8.09 .
" Supermajority Banks " means at any time Banks having
more than 66 2 / 3 % of the sum of
(a) the aggregate amount of the Revolving Credit Commitments
plus (b) the aggregate outstanding principal amount of the
Term Loans, or if the Revolving Credit Commitments are no longer in
effect, holding more than 66 2 / 3 % of the aggregate outstanding
principal amount of the Loans; provided , that the Revolving
Credit Commitment of, and the portion of the outstanding principal
amount of the Loans, as applicable, held or deemed held by, any
Defaulting Bank shall be excluded for purposes of making a
determination of Supermajority Banks.
(ii) by adding the following proviso to the end of the
definition of "Required Banks": " provided , that the
Revolving Credit Commitment of, and the portion of the outstanding
principal amount of the Loans, as applicable, held or deemed held
by, any Defaulting Bank shall be excluded for purposes of making a
determination of Required Banks."
(iii) by adding the following proviso to the end of the
definition of "Required Revolving Credit Banks": " provided
, that the Revolving Credit Commitment and the portion of the
outstanding principal amount of the Revolving Credit Loans, Swing
Loans and Letter of Credit Obligations held or deemed held by any
Defaulting Bank shall be excluded for purposes of making a
determination of Required Revolving Credit Banks."
(iv) by adding the phrase "and 8.09" after both of the
references to " Sections 2.08 and 2.09 " in the definition
of "Revolving Credit Commitment."
(b) Section 2.07 of the Credit Agreement is hereby
amended by adding the phrase "(other than any Defaulting Bank from
and after the date such Bank became a Defaulting Bank and
regardless of whether such Defaulting Bank’s Revolving Credit
Commitment has been terminated pursuant to Section 8.09 or
otherwise)" in each of clauses (a) and (b) of
Section 2.07 after the first reference in each such
clause to "Revolving Credit Bank".
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(c) Section 2.14 of the Credit
Agreement is hereby amended by adding the phrase "(other than any
Defaulting Bank from and after the date such Bank became a
Defaulting Bank and regardless of whether such Defaulting
Bank’s Revolving Credit Commitment has been terminated
pursuant to Section 8.09 or otherwise)" in subclause
(i) of clause (b) of Section 2.14 after the
first reference in such clause to "Revolving Credit
Bank".
(d) Section 8.07 of the Credit Agreement is hereby
amended by adding the phrase "or becomes a Defaulting Bank," after
the phrase "that it can no longer participate in Eurocurrency Loans
or Alternative Currency Loans, as applicable,"
(e) The following new provision is hereby added as a new
Section 8.09 of the Credit Agreement:
"Section 8.09. Optional Termination of Revolving Credit
Commitment of Defaulting Bank.
(a) If any Bank becomes a Defaulting Bank, the Borrower may
terminate in full the Revolving Credit Commitment of such
Defaulting Bank by giving notice to such Defaulting Bank and the
Administrative Agent (such termination, a " Defaulting Bank
Termination "); provided , that on the effective date of
such Defaulting Bank Termination and after giving effect thereto
and to any repayment of Revolving Credit Loans in connection
therewith, (i) no Default or Event of Default has occurred and
is continuing (unless the Required Revolving Credit Banks otherwise
consent to such Defaulting Bank Termination), (ii) the
aggregate outstanding principal amount of Revolving Credit Loans,
if any, owing to su
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