LIMITED WAIVER AND AMENDMENT NO.
4
This
LIMITED WAIVER AND AMENDMENT NO. 4 (this “ Amendment
”), is dated as of August 12, 2005, and is entered into
by and among FLOWSERVE RECEIVABLES CORPORATION, a Delaware
corporation (“ SPV ”), FLOWSERVE US INC., a
Delaware corporation (“ Flowserve ”), FLOWSERVE
CORPORATION, a New York corporation (the “ Provider
” and together with SPV and Flowserve, the “
Flowserve Entities ”), the funding sources party
hereto as the financial institutions (the “ Financial
Institutions ”), JUPITER SECURITIZATION CORPORATION
(together with the Financial Institutions, the “
Purchasers ”), and JPMORGAN CHASE BANK, N.A.
(successor by merger to Bank One, NA (Main Office Chicago)), as
agent (the “ Agent ”) for the
Purchasers.
WHEREAS,
SPV, Flowserve, the Purchasers and the Agent are parties to that
certain Receivables Purchase Agreement, dated as of October 7,
2004 (as amended, restated, supplemented or otherwise modified from
time to time, the “ RPA ”);
WHEREAS,
SPV and Flowserve are parties to that certain Receivables Sale
Agreement, dated as of October 7, 2004 (as amended, restated,
supplemented or otherwise modified from time to time, the “
RSA ”);
WHEREAS,
the Provider executed a Performance Undertaking dated as of
October 7, 2004 in favor of SPV (as amended, restated,
supplemented or otherwise modified from time to time, the “
Performance Undertaking ” and together with the RSA
and the RPA, the “ Agreements ”);
WHEREAS,
pursuant to (a) Section 7.1(a)(i)(A) of the RPA, SPV is
required to deliver audited financial statements of the Provider
and various other accompanying documents within 100 days after
the end of each fiscal year of the Provider,
(b) Section 4.1(a)(i)(A) of the RSA, Flowserve is
required to deliver audited financial statements of the Provider
and various other accompanying documents within 100 days after
the end of each fiscal year of the Provider and
(c) Section 7(a)(1) of the Performance Undertaking, the
Provider is required to deliver audited financial statements of the
Provider and various other accompanying documents within
100 days after the end of each fiscal year of the
Provider;
WHEREAS,
pursuant to that certain Amendment No. 3 and Limited Waiver
dated as of March 10, 2005 by and among each of the parties
hereto (the “ Existing Waiver ”), the Agent and
the Purchasers (as assignees of SPV’s interests under the
Performance Undertaking and the RSA) have waived, subject to the
terms and conditions of the Existing Waiver, any noncompliance with
such requirements under the Agreements with respect to the fiscal
year ended December 31, 2004 until September 30, 2005 and
any consequences resulting from such noncompliance during such
period;
WHEREAS,
the Flowserve Entities have requested that the Agent and the
Purchasers (as assignees of SPV’s interests under the
Performance Undertaking and the RSA)
extend such
waiver of any noncompliance with such requirements under the
Agreements with respect to the fiscal year ended December 31,
2004 until December 31, 2005 and any consequences resulting
from such noncompliance during such period;
WHEREAS,
the Agent and the Purchasers have agreed to grant such limited
waivers on the terms and conditions set forth herein;
and
WHEREAS,
SPV, Flowserve, the Purchasers and the Agent desire to amend the
RPA on the terms and conditions set forth below;
NOW
THEREFORE, in consideration of the premises herein contained, and
for other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Defined Terms . Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in
the RPA.
(a) Subject
to the terms and conditions set forth herein and in reliance on the
representations and warranties of the Flowserve Entities herein
contained, the Agent and the Purchasers hereby temporarily waive
(i) compliance with the requirement (A) under Section
7.1(a)(i)(A) of the RPA that the financial statements of the
Provider for the fiscal year ended December 31, 2004 delivered
pursuant to Section 7.1(a)(i)(A) of the RPA are audited and
accompanied by an opinion of PricewaterhouseCoopers LLP,
(B) under Section 4.1(a)(i)(A) of the RSA that the
financial statements of the Provider for the fiscal year ended
December 31, 2004 delivered pursuant to
Section 4.1(a)(i)(A) of the RSA are audited and accompanied by
an opinion of PricewaterhouseCoopers LLP and (C) under
Section 7(a)(1) of the Performance Undertaking that the
financial statements for the fiscal year ended December 31,
2004 delivered pursuant to Section 7(a)(1) of the Performance
Undertaking are audited and accompanied by an opinion of
PricewaterhouseCoopers LLP, (ii) any consequences or further
affirmative obligations of any Flowserve Entity under any Agreement
resulting from such noncompliance, and (iii) any Amortization
Event, Potential Amortization Event, Termination Event or Potential
Termi
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