|
<PAGE>
Exhibit 10.5
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.
<PAGE>
"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.
<PAGE>
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.
<PAGE>
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 o
| 
