AMENDMENT 1 TO PSA



Exhibit No. 10.34


 


 


AMENDMENT NO. 3 AND JOINDER


 


to the


 


RECEIVABLES PURCHASE AND
SALE AGREEMENT


 


 


Dated as of December 31, 2002


 


 


 


 




                THIS
AMENDMENT NO. 3 AND JOINDER (this "Amendment and Joinder") to the
Receivables Purchase and Sale Agreement, dated as of October 25, 2000 (as
amended and supplemented, the "Purchase and Sale Agreement"), is dated
as of December 31, 2002, and is by and among MOHAWK CARPET CORPORATON, a
Delaware corporation ("Mohawk Carpet"), MOHAWK CARPET OF TEXAS, L.P. a
Delaware limited partnership ("Carpet LP"), MOHAWK CARPET DISTRIBUTION,
L.P., a Delaware limited partnership ("Mohawk Distribution"), and MOHAWK
FACTORING, INC., a Delaware corporation ("Mohawk Factoring" or "Buyer").  Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Purchase and
Sale Agreement.




WHEREAS, Mohawk Carpet, Mohawk Commercial, Inc. ("Commercial"),
Durkan Patterned Carpets, Inc. ("Durkan") and Mohawk Factoring were
parties to the Purchase and Sale Agreement whereby Mohawk Carpet, Mohawk
Commercial and Durkan would sell and Mohawk Factoring, as Buyer, would
purchase, from time to time, Receivables originated by each of Mohawk Carpet,
Mohawk Commercial and Durkan (the "Initial Originators");




WHEREAS, pursuant to Amendment No. 1 to the Purchase and Sale Agreement,
Carpet LP was added as an Originator under the Purchase and Sale Agreement;
 




WHEREAS, Durkan was merged into Mohawk Carpet, effective 2001, and, in
accordance with Section 7.9 of the Purchase and Sale Agreement, Durkan's
rights, obligations and interests thereunder were assigned by operation of law
to the surviving Originator, Mohawk Carpet;




WHEREAS, Mohawk Commercial will be merged into Mohawk Carpet, effective
December 31, 2002, and, in accordance with Section 7.9 of the Purchase and Sale
Agreement, Mohawk Commercial's rights, obligations and interests thereunder
will be assigned by operation of law to the surviving Originator, Mohawk
Carpet;




WHEREAS, Mohawk Carpet and Carpet LP are each contributing all of their
respective finished goods inventories to Mohawk Distribution and, upon and
following the effective date of this Amendment and Joinder, will act only as
sales agents for Mohawk Distribution, and Mohawk Distribution will sell
inventory in the manner formerly sold by Mohawk Carpet and Carpet LP, thereby
originating the Receivables arising from such sales;




WHEREAS, this Amendment and Joinder is being entered into by the parties
hereto (collectively, the "Parties") to effect, among other things, the
removal of Mohawk Carpet and Carpet LP as Originators under the Purchase and
Sale Agreement, and the joinder of Mohawk Distribution as a new Originator
under the Purchase and Sale Agreement (the "Joinder");




WHEREAS, the Parties have
taken each and all of the actions required to properly amend the Purchase and
Sale Agreement in accordance with its terms; and




                NOW,
THEREFORE, in consideration of the mutual promises contained herein and in the
Purchase and Sale Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties,
intending to be legally bound hereby, hereto agree as follows:  




Section 1.              
 Amendments
to the Purchase and Sale Agreement




                1.1           The
first paragraph of the preamble shall be amended in its entirety to read as
follows:




"THIS RECEIVABLES PURCHASE AND SALE
AGREEMENT, dated as of October 25, 2000, is by and among Mohawk Distribution
LP, a Delaware limited partnership ("Mohawk Distribution," being
hereinafter referred to as an "Originator"), and Mohawk Factoring, Inc.,
a Delaware corporation ("Buyer"), and replaces and supersedes the
following agreements (each, an "Exisiting Agreement") in their
entirety:"




                1.2           All references to Mohawk Carpet and
Carpet LP, as Originators, are hereby amended to refer to Mohawk Distribution,
as Originator.




Section 2.              
 Joinder




                Upon and following the
effectiveness of this Amendment and Joinder, Mohawk Distribution shall become a
party to, and an Originator under, the Purchase and Sale Agreement, and shall
have all obligations, duties, rights and interests as an Originator under the
Purchase and Sale Agreement, and hereby agrees to abide by each of the
representations, covenants and other agreements of an Originator under the
Purchase and Sale Agreement and makes and adopts the Purchase and Sale
Agreement as an agreement to which it is a party and by which it is bound.




Section 3.              
 Representations
and Warranties


 


                (a)           Each of the Parties hereby represents
and warrants severally and not jointly that, with respect to each Party:




                                (i)            Its execution, delivery and
performance of this Amendment and Joinder are within its corporate powers, have
been duly authorized by all necessary corporate action and do not require any
consent or approval which has not been obtained.




(ii)           This
Amendment and Joinder is the legal, valid and binding obligation of it,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally or by general equitable principles.




                (b)           Mohawk Distribution hereby further
represents and warrants that:




(i)            The Purchase and Sale Agreement as amended hereby is the
legal, valid and binding obligation of it, enforceable in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights
generally or by general equitable principles.




(c)           Mohawk
Factoring hereby further represents and warrants that, pursuant to Section 7.9
of the Purchase and Sale Agreement, it consents to the substitution of Mohawk
Distribution for Mohawk Carpet and Carpet LP as Originator under the Purchase
and Sale Agreement.




Section 4.              
 Miscellaneous




                (a)           Applicability of the Purchase and
Sale Agreement.




                In all respects not
inconsistent with the terms and provisions of this Amendment and Joinder, the
provisions of the Purchase and Sale Agreement are hereby ratified, approved and
confirmed, with the substitution of Mohawk Distribution for Mohawk Carpet and
Carpet LP as Originator.




                (b)          
 Headings


                The
captions in this Amendment and Joinder are for convenience of reference only
and shall not define or limit the provisions hereof.




                (c)          
 Counterparts


                This Amendment and
Joinder may be executed in counterparts by facsimile or otherwise, each of
which shall constitute an original, but all of which, when taken together,
shall constitute but one and the same instrument.




                (d)          
 Governing Law


                THIS
AMENDMENT AND JOINDER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF GEORGIA, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.




[Signatures on Next Page]




                 IN
WITNESS WHEREOF, the Parties have caused this Amendment and Joinder to be duly
executed and delivered by their respective officers thereunto duly authorized
as of December 31, 2002.


MOHAWK CARPET CORPORATION,


  as a former Originator






By:
_____________________________


          Name: 
 


          Title:   
 




MOHAWK CARPET OF TEXAS, L.P.


  as a former Originator






By:
_____________________________


                                                                                                          Name: 
 


                                                                                                          Title:   
 




MOHAWK
CARPET DISTRIBUTION, L.P.


  as a new Originator






By: _____________________________


                                                                                                          Name:


                                                                                                          Title:




MOHAWK
FACTORING, INC.


  as Buyer






By:
_____________________________


                                                                                                          Name:


                                                                                                          Title:






The foregoing Amendment and
Joinder is  


hereby consented to as of
the date first


written above:




WACHOVIA BANK, NATIONAL
ASSOCIATION,


as Agent




By:
_____________________________


Name:


Title: