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Exhibit 10.4
TRANSITION SERVICES AGREEMENT
TRANSITION
SERVICES AGREEMENT, dated as of October 29, 2004, by and
between Ingersoll-Rand
Company Limited, a company organized under the laws of
Bermuda, on behalf of itself
and the other Sellers (as defined in the Purchase
Agreement) (together with any
of its subsidiaries providing services hereunder,
"Seller"), and Dresser-Rand
Group Inc., a Delaware corporation, on behalf of
itself and the other Buyers
(as defined in the Purchase Agreement) (collectively
with any of their respective
subsidiaries receiving services hereunder,
"Buyer"). Seller and Buyer
are sometimes hereinafter collectively referred to as
the "Parties."
WITNESSETH:
WHEREAS,
Seller and Dresser-Rand Holdings, LLC (f/k/a FRC
Acquisitions
LLC) ("Holdings") are parties
to an Equity Purchase Agreement, dated as of
August 25, 2004 (as amended,
supplemented or otherwise modified from time to
time, the "Purchase
Agreement"), relating to the sale by Seller and the
other
sellers party thereto, and
the purchase and assumption by Holdings, of the
Business (as defined in the
Purchase Agreement);
WHEREAS,
immediately prior to the Closing (as defined in the
Purchase
Agreement), Holdings has
entered into an Assignment Agreement with Buyer, dated
as of October , 2004, whereby Holdings assigned
to Buyer its rights and
obligations under the
Purchase Agreement relating to the purchase of the
Acquired Interests (as
defined in the Purchase Agreement) and entering into any
Transaction Agreements (as
defined in the Purchase Agreement) and any other
agreements in connection
therewith; and
WHEREAS,
the Purchase Agreement provides that, in connection with
the
consummation of the
transactions contemplated thereby, the Parties will
enter
into this Agreement pursuant
to which Buyer will purchase certain services from
Seller during a transition
period from the date hereof;
NOW,
THEREFORE, the Parties hereby agree as follows:
ARTICLE I DEFINITIONS
SECTION
1.1. For the purposes of this Agreement, (a) unless
otherwise
defined herein capitalized
terms used herein shall have the meanings assigned to
them in the Purchase
Agreement and (b) the following terms shall have the
meanings hereinafter
specified:
"Agreement" shall mean this Agreement, including the Schedules
hereto, as
the same may be amended,
supplemented or otherwise modified from time to time.
"Buyer"
shall have the meaning set forth in the introductory
paragraph
hereof.
"Parties"
shall have the meaning set forth in the introductory
paragraph
hereof.
"Purchase
Agreement" shall have the meaning set forth in the
recitals
hereto.
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"Seller"
shall have the meaning set forth in the introductory
paragraph
hereof.
"Service"
or "Services" shall mean those services listed and described
on
Schedule A.
SECTION
1.2. Interpretation; Exhibits and Schedules. When a reference
is
made in this Agreement to a
Section or a Schedule, such reference shall be to a
Section of, or a Schedule to,
this Agreement unless otherwise indicated. The
headings contained in this
Agreement are for reference purposes only and shall
not affect in any way the
meaning or interpretation of this Agreement. Whenever
the words "include",
"includes" or "including" are used in this Agreement,
they
shall be deemed to be
followed by the words "without limitation." The words
"hereof," "herein" and
"hereunder" and words of similar import when used in
this
Agreement shall refer to this
Agreement as a whole and not to any particular
provision of this Agreement.
The definitions contained in this Agreement are
applicable to the singular as
well as the plural forms of such terms and to the
masculine as well as to the
feminine and neuter genders of such term. Any
agreement, instrument or
statute defined or referred to herein shall mean such
agreement, instrument or
statute as from time to time amended, modified or
supplemented. References to a
Person are also to its permitted successors and
assigns and, in the case of
an individual, to his heirs and estate, as
applicable.
ARTICLE II AGREEMENT TO SELL AND BUY
SECTION
2.1. Provision of Services. Seller shall provide to Buyer
the
Services (it being understood
that Services rendered for any particular month
shall include the preparation
and delivery of any required reports, filings or
other work related to such
month even though performed after the end of the
particular month in
question). The applicable fee for each Service shall be
the
specified fee for such
Service set forth in Schedule A. In addition, it is
understood that Seller shall
not be required to use its own funds for any third
party-provided service that
is requested by Buyer or any payment obligation of
Buyer (including employee
compensation payments, employee benefit payments and
payments to fund checks
issued or wire transfer payments made on behalf of
Buyer). Buyer shall be
responsible to provide Seller with the funds for each
such service and shall be
solely responsible for the payment of any additional
license fees, royalties and
other payments and fees (including licensee fees and
application service provider
fees) due under any license agreement or other
agreement relating to
intellectual property (including software) necessary to
perform the Services incurred
after the prior approval of Buyer as a result of
the performance of the
Services for the Buyer. In every case, all of the
Services shall be provided in
accordance with the terms, limitations and
conditions set forth herein
and on Schedule A. Seller shall maintain all
existing insurance coverages
of the types that relate to the activities
constituting or property
relating to the Services.
SECTION
2.2. Access. Buyer shall make available on a timely basis
to
Seller all information and
materials reasonably requested by Seller to enable it
to provide the Services.
Buyer shall give Seller reasonable access, during
regular business hours and at
such other times as are reasonably required, to
the premises of the Business
for the purposes of providing Services.
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SECTION
2.3. Books and Records. Seller shall keep books and records of
the
Services provided and
reasonable supporting documentation of all charges and
expenses incurred in
providing such Services and shall produce written
records
that verify the dates and
times during which the Services were performed. Seller
shall make such books and
records available to Buyer, upon reasonable notice,
during normal business
hours.
ARTICLE III SERVICES; PAYMENT; INDEPENDENT CONTRACTOR
SECTION
3.1. Service Quality.
(a)
Unless otherwise
agreed in writing by the Parties, the Services
shall be performed by Seller
for Buyer in a manner and quality that are
substantially consistent with
Seller's past practice in performing the Services
for the Business, and Buyer
shall use such Services in substantially the same
manner as they were used by
Seller in the past practice of the Business. Seller
shall act under this
Agreement solely as an independent contractor and not as
an
agent of Buyer. All employees
and representatives providing the Services shall
be under the direction,
control and supervision of Seller (and not of Buyer),
and Seller shall have the
sole right to exercise all authority with respect to
such employees and
representatives and in no event shall such employees and
representatives be deemed to
be employees or agents of Buyer.
(b)
Seller shall
have the right to shut down temporarily for routine
maintenance purposes the
operation of the facilities providing any Service
whenever in its judgment,
reasonably exercised, such action is necessary,
provided, that such shut down
shall not adversely and unduly affect Buyer's
operations to which the
provision of Services relate. Seller shall notify Buyer
as much in advance as
reasonably practicable that maintenance is required.
Unless not feasible under the
circumstances, this notice shall be given in
writing. Where written notice
is not feasible, Seller shall give prompt oral
notice to Buyer, which notice
shall be promptly confirmed in writing by Seller.
Seller shall be relieved of
its obligations to provide Services only for the
period of time that its
facilities are so shut down but shall use diligent and
commercially reasonable
efforts to minimize each period of shutdown for such
purpose and to schedule such
shutdown so as not to inconvenience or disrupt the
conduct of the Business by
Buyer. Seller shall consult with Buyer prior to
temporary shutdowns to the
extent reasonably practicable or, if not reasonably
practicable, immediately
thereafter in order to establish alternative sources
for such services. To the
extent commercially reasonable, Seller will afford
Buyer the benefit of any
arrangements for substitute services that Seller makes
on its own behalf.
SECTION
3.2. Payment. Statements will be rendered each month by Seller
to
Buyer for Services delivered
during the preceding month. Each such statement
shall set forth in reasonable
detail a description of such Services and the
amounts charged therefor and
shall be payable 30 days after the date thereof.
Any amount not paid within
such 30-day period, unless such amount is being
challenged, shall be subject
to late charges at a rate of 10% per annum pro
rated for each day that such
amount is overdue.
SECTION
3.3. Priorities. In providing Services, Seller shall accord
Buyer
the same priority it accords
its own operations.
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SECTION
3.4. Taxes. The amounts set forth for each Service on Schedule
A
do not include any Taxes. Any
Taxes required to be charged by Seller under
applicable Law are in
addition to the amounts to be paid by Buyer hereunder
for
the Services.
SECTION
3.5. Uses of Services. Seller shall be required to
provide
Services only to Buyer in
connection with the Buyer's operation of the Business.
Buyer shall not resell any
Services to any Person whatsoever or permit the use
of the Services by any Person
other than in connection with the operation of the
Business in the ordinary
course by Buyer and its subsidiaries.
ARTICLE IV TERM OF SERVICES
The
provision
