This
WAIVER is dated as of September 15, 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,
as of the end of the Accrual Period ended July 31, 2005, the
average Loss Ratio in respect of the three Accrual Periods then
most recently ended exceeded 3.5%, which constitutes an
Amortization Event under Section 9.1(e)(i) of the RPA
(the “ Specified Amortization Event ”);
and
WHEREAS,
the Agent and the Purchasers have agreed to waive the Specified
Amortization Event on the terms and conditions set forth
herein;
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 waive the Specified
Amortization Event.
(b) The
waiver set forth in Section 2(a) shall be limited
precisely as written and relate solely to the noncompliance by the
SPV with the provisions of the RPA with the Specified Amortization
Event, and nothing in this Waiver shall be deemed to:
1. constitute a
waiver of noncompliance by SPV with respect to
(i) Section 9.1(e)(i) of the RPA in any other instance or
(ii) any other term, provision or condition of the RPA or any
other Transaction Document;
2. constitute a
waiver of noncompliance by Flowserve with respect to any term,
provision or condition of the RPA, the RSA or any other Transaction
Document;
3. constitute a
waiver of noncomplianc
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