Exhibit 10.4
LIMITED WAIVER AND
AMENDMENT NO. 3
This
LIMITED WAIVER AND AMENDMENT NO. 3 (this “ Amendment
”), is dated as of March 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.
WITNESSETH:
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,
the Flowserve Entities have requested that the Agent and the
Purchasers (as assignees of SPV’s interests under the
Performance Undertaking and the RSA) waive 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 Agent and the Purchasers have agreed to grant such 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.
2.
Limited Waiver .
(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
Termination Event arising from an event of default under any
agreement or instrument evidencing or governing Material
Indebtedness of any Flowserve Entity or any of their respective
Subsidiaries arising solely from the failure to provide similar
financial information (or opinions or certifications thereof) or
annual or quarterly public filings during or for the fiscal year
ended December 31, 2004 or for the first three fiscal quarters
of the fiscal year ending December 31, 2005; in each case,
during the period from the date all the conditions precedent to
this Amendment under Section 5 have been satisfied
through and including the earlier to occur of (a) the date of
delivery of audited financial statements for the fiscal year ended
December 31, 2004 and accompanying independent public
accountant’s opinion in accordance with
Section 7.1(a)(i)(A) of the RPA, Section 4.1(a)(i)(A) of the
RSA and Section 7(a)(1) of the Performance Undertaking to the
Agent, and (b) September 30, 2005; provided , however,
all waivers and accommodations made to the Flowserve Entities in
this Section 2(a) shall be rescinded and be null and
void and of no force and effect upon the commencement by any holder
of Material I
