Exhibit 10.19
AMENDMENT NO. 2 AND CONSENT TO THE CREDIT AGREEMENT
AMENDMENT NO. 1 TO THE DOMESTIC GUARANTEE
AND COLLATERAL AGREEMENT
Dated as of July __, 2005
AMENDMENT NO. 2 AND CONSENT TO THE CREDIT AGREEMENT and AMENDMENT
NO. 1 TO THE DOMESTIC GUARANTEE AND COLLATERAL AGREEMENT (collectively, the
"Amendment") among D-R Interholding LLC, a Delaware limited liability company
("Holdings"), Dresser-Rand Group Inc., a Delaware corporation (the "Domestic
Borrower"), D-R Holdings (UK) Limited, a corporation organized under the laws of
England and Wales (the "UK Borrower"), D-R Holdings (France) S.A.S., a
corporation organized under the laws of France (the "French Borrower" and
together with the Domestic Borrower and the UK Borrower, the "Borrowers") and
each of the Lenders (as defined in the Credit Agreement referred to below)
listed on the signature pages hereto.
PRELIMINARY STATEMENTS:
(1) Holdings and the Borrowers have entered into that certain Credit
Agreement, dated as of October 29, 2004 (as amended by Amendment No. 1 and
Consent to the Credit Agreement, dated as of January 4, 2005 and as modified by
the Consent and Waiver Under the Credit Agreement dated as of May 13, 2005, the
"Credit Agreement") with the Lenders party thereto, Citicorp North America, Inc.
("CNAI"), as Administrative Agent (in such capacity, the "Administrative
Agent"), Xxxxxx Xxxxxxx Senior Funding, Inc. ("Xxxxxx Xxxxxxx") and UBS
Securities LLC ("UBS"), as Co-Syndication Agents, Citigroup Global Markets Inc.,
Xxxxxx Xxxxxxx and UBS, as Joint Lead Arrangers and Joint Book Managers, and
Bear Xxxxxxx Corporate Lending Inc. and Natexis Banques Populaires, as
Co-Documentation Agents. Capitalized terms not otherwise defined in this
Amendment have the same meanings as specified therefor in the Credit Agreement.
(2) Pursuant to the Credit Agreement, the Domestic Loan Parties have
entered into a Domestic Guarantee and Collateral Agreement, dated October 29,
2004, with CNAI, as Collateral Agent.
(3) The Domestic Borrower intends to consummate an initial public
offering of its Equity Interests and, in connection therewith, Holdings, the
Borrowers and the Lenders have agreed, on the terms and conditions stated below,
to amend and modify the Loan Documents as set forth herein.
(4) The French Borrower intends to refinance outstanding Tranche B
Euro Term Loans under the Credit Agreement with a new class of Tranche B1 Euro
Term Loans under the Credit Agreement (the "Tranche B1 Euro Term Loans") having
identical terms with, and having the same rights and obligations under the Loan
Documents as and in the same aggregate principal amounts as, the Tranche B Euro
Term Loans, as set forth in the Loan Documents, except as such terms are amended
hereby.
(5) Each Tranche B Euro Term Lender who executes and delivers this
Amendment shall be deemed, upon the occurrence of the Repricing Effective Date
(as defined
2
herein), to have exchanged its Tranche B Euro Term Loan Commitment and Tranche B
Euro Term Loan (which Tranche B Euro Term Loan Commitment and Tranche B Euro
Term Loan shall thereafter be deemed terminated and deemed repaid and refinanced
in full) for a Tranche B1 Euro Term Loan Commitment (a "Tranche B1 Euro Term
Loan Commitment") in the same aggregate principal amount as such Tranche B Euro
Term Lender's Tranche B Euro Term Loan Commitment, as so terminated, and a
Tranche B1 Euro Term Loan in the same aggregate principal amount as such Tranche
B Euro Term Lender's Tranche B Euro Term Loan, as so repaid, and such Tranche B
Euro Term Lender shall thereafter become a Tranche B1 Euro Term Lender (each, a
"Tranche B1 Euro Term Lender").
(6) Each Person who executes and delivers this Amendment as an
additional Tranche B1 Euro Term Lender (each, an "Additional Tranche B1 Euro
Term Lender") will become a party to the Credit Agreement (as amended by this
Amendment) and make, on the Repricing Effective Date (as defined herein), a
Tranche B1 Euro Term Loan (each, an "Additional Tranche B1 Euro Term Loan") to
the French Borrower, the proceeds of which will be used by the French Borrower
to refinance in full the outstanding principal amount of Tranche B Euro Term
Loans of Tranche B Euro Term Lenders, if any, who do not execute and deliver
this Amendment, it being understood that, prior to the Repricing Effective Date
(as defined herein), an Additional Tranche B1 Euro Term Lender may be a Tranche
B Euro Term Lender.
(7) The French Borrower shall pay to each Tranche B Euro Term Lender
all accrued and unpaid interest on its Tranche B Euro Term Loan to but excluding
the Repricing Effective Date on the Repricing Effective Date (as defined
herein).
SECTION 1. Amendments to the Credit Agreement. The Credit Agreement
is, effective as of the date on which the applicable conditions precedent set
forth in Section 4 have been satisfied, hereby amended as follows:
(a) Section 1.01 is amended as follows:
(i) The definition of "Applicable Margin" is amended by
deleting clause (ii) thereof in its entirety and inserting the following
new clause (ii) in replacement therefor:
"(ii) for any day with respect to any Eurocurrency Loan that
is a Tranche B1 Euro Term Loan, 2.25% and"
(ii) The definition of "Change in Control" is amended by (x)
adding immediately after the words "at any time" in the first line of
clause (a) thereof the words "prior to an initial public offering of
Equity Interests of the Domestic Borrower", (y) replacing each reference
in clauses (b) and (c) thereof to "Holdings" with a reference to "the
Domestic Borrower" and (z) inserting immediately prior to subclause (y) in
clause (c) thereof the word "and" and deleting in its entirety subclause
(z) thereof (together with the corresponding reference to "such
Intermediate Holding Company" in lines 10 and 11 of clause (c) thereof,
with any other conforming changes being deemed made as appropriate).
3
(iii) The definition of "Commitments" is amended in full to
read as follows:
" `Commitments' shall mean (a) with respect to any Lender,
such Lender's Revolving Facility Commitment, Tranche B Dollar Term
Loan Commitment, Tranche B1 Euro Term Loan Commitment and Additional
Tranche B1 Euro Term Loan Commitment and (b) with respect to any
Swingline Lender, its Swingline Commitment, as applicable."
(iv) The definition of "Domestic Loan Parties" is amended in
full to read as follows:
" `Domestic Loan Parties' shall mean (a) prior to the Holdings
Covenant Release Date, Holdings, the Domestic Borrower and each
Domestic Subsidiary Loan Party and (b) upon and after the Holdings
Covenant Release Date, the Domestic Borrower and each Domestic
Subsidiary Loan Party."
(v) The definition of "Term Loan" is amended in full to read
as follows:
" `Term Loan' shall mean any Tranche B Dollar Term Loan and
any Tranche B1 Euro Term Loan."
(vi) The definition of "Tranche B Euro Facility" is amended in
full to read as follows:
" `Tranche B1 Euro Facility' shall mean the Tranche B1 Euro
Term Loan Commitments and the Tranche B1 Euro Term Loans made
hereunder."
(vii) The definition of "Tranche B Euro Installment Date" is
amended in full to read as follows:
" `Tranche B1 Euro Installment Date' shall have the meaning
assigned to such term in Section 2.10(a)(ii)."
(viii) The definition of "Tranche B Euro Maturity Date" is
amended in full to read as follows:
" `Tranche B1 Euro Maturity Date' shall mean October 29,
2011."
(ix) The definition of "Tranche B Euro Term Borrowing" is
amended in full to read as follows:
" `Tranche B1 Euro Term Borrowing' shall mean a Borrowing
comprised of Tranche B1 Euro Term Loans."
(x) The definition of "Tranche B Euro Term Lender" is amended
in full to read as follows:
4
" `Tranche B1 Euro Term Lender' shall mean, collectively, (a)
each Tranche B Euro Term Lender that executes and delivers Amendment
No. 2 on or prior to the Amendment No. 2 Effective Date and (b) each
Additional Tranche B1 Euro Term Lender."
(xi) The definition of "Tranche B Euro Term Loan Commitment"
is amended in full to read as follows:
" `Tranche B1 Euro Term Loan Commitment' shall mean,
collectively, (a) with respect to each Tranche B Euro Term Lender
that executes and delivers Amendment No. 2 on or prior to the
Amendment No. 2 Effective Date, the amount set forth next to the
name of such Lender on the Repricing Effective Date in the Register
maintained by the Administrative Agent pursuant to Section 9.04(b)
and (b) with respect to each Additional Tranche B1 Euro Term Lender
that is not a Tranche B Euro Term Lender, its Additional Tranche B1
Euro Term Loan Commitment or, in each case, if such Lender has
entered into one or more Assignment and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent
pursuant to Section 9.04(b)."
(xii) The definition of "Tranche B Euro Term Loans" is amended
in full to read as follows:
" `Tranche B1 Euro Term Loans' shall mean the term loans
denominated in Euros made by the Lenders to the French Borrower
pursuant to Section 2.01(d) or (e) or Section 2.21 (including New
Tranche B1 Term Loans denominated in Euros)."
(xiii) The definition of "Tranche B Term Borrowings" is
amended in full to read as follows:
" `Tranche B Term Borrowings' shall mean Tranche B Dollar Term
Borrowings and Tranche B1 Euro Term Borrowings."
(xiv) The definition of "Tranche B Term Loans" is amended in
full to read as follows:
" `Tranche B Term Loans' shall mean Tranche B Dollar Term
Loans and Tranche B1 Euro Term Loans."
(xv) The following new definitions are inserted in the
appropriate alphabetical order:
"Additional Tranche B1 Euro Term Lender" shall mean a Lender
with an Additional Tranche B1 Euro Term Loan Commitment to make
Additional Tranche B1 Euro Term Loans to the French Borrower on the
Repricing Effective Date, it being understood that an Additional
Tranche B1 Euro Term Lender may be a Tranche B Euro Term Lender.
5
"Additional Tranche B1 Euro Term Loan Commitment" shall mean,
with respect to an Additional Tranche B1 Euro Term Lender, the
commitment of such Additional Tranche B1 Euro Term Lender to make
Additional Tranche B1 Euro Term Loans on the Repricing Effective
Date, in an amount set forth next to the name of such Additional
Tranche B1 Euro Term Lender in the Register on the Repricing
Effective Date. The aggregate amount of the Additional Tranche B1
Euro Term Loan Commitments shall equal the outstanding principal
amount of Tranche B Euro Term Loans of Tranche B Euro Term Lenders
that do not execute and deliver Amendment No. 2 on or prior to the
Amendment No. 2 Effective Date.
"Additional Tranche B1 Euro Term Loan" shall mean a term loan
or term loans denominated in Euros made by the Additional Tranche B1
Euro Term Lenders on the Repricing Effective Date to the French
Borrower pursuant to Section 2.01(e).
"Amendment No. 2" shall mean Amendment No. 2 and Consent to
this Agreement, dated as of July __, 2005, among the Borrowers and
the Lenders party thereto.
"Amendment No. 2 Effective Date" shall have the meaning
specified in Section 4(a) of Amendment No. 2.
"Holdings Covenant Release Date" shall mean the date on which
the Domestic Borrower's registration statement on Form S-1 shall
have been declared effective by the Securities and Exchange
Commission.
"Repricing Effective Date" shall have the meaning specified in
Section 4(b) of Amendment No. 2.
"Tranche B Euro Term Lender" shall have the meaning specified
in Section 1.01 of this Agreement as in effect prior to the
Repricing Effective Date.
"Tranche B Euro Term Loan Commitment" shall have the meaning
specified in Section 1.01 of this Agreement as in effect prior to
the Repricing Effective Date.
"Tranche B Euro Term Loans" shall have the meaning specified
in Section 1.01 of this Agreement as in effect prior to the
Repricing Effective Date.
(b) Section 2.01 is amended by (i) deleting the introductory clause
"Subject to the terms and conditions set forth herein, each Lender agrees", (ii)
inserting the words "Subject to the terms and conditions set forth herein, each
Lender agrees" at the beginning of each of paragraph (a) and paragraph (b)
thereof, (iii) inserting the paragraph heading "(c)" immediately before the last
sentence thereof, and (iv) inserting the following new paragraphs (d), (e) and
(f):
"(d) Subject to the terms and conditions set forth herein,
each Tranche B Euro Term Lender with a Tranche B1 Euro Term Loan
Commitment
6
severally agrees to exchange its Tranche B Euro Term Loan for a like
principal amount of Tranche B1 Euro Term Loans on the Repricing
Effective Date, and from and after the Repricing Effective Date such
Tranche B Euro Term Loan shall be deemed refinanced in full and such
Tranche B1 Euro Term Loans shall be deemed made hereunder. Amounts
borrowed as Tranche B1 Euro Term Loans (whether pursuant to this
paragraph or paragraph (e) below) which are repaid or prepaid by the
French Borrower may not be reborrowed. The Tranche B1 Euro Term Loan
Commitments shall expire concurrently with the making of the Tranche
B1 Euro Term Loans (whether pursuant to this paragraph or paragraph
(e) below) on the Repricing Effective Date.
"(e) Subject to the terms and conditions set forth herein,
each Additional Tranche B1 Euro Term Lender severally agrees to make
Additional Tranche B1 Euro Term Loans to the French Borrower on the
Repricing Effective Date in a principal amount not to exceed its
Additional Tranche B1 Euro Term Loan Commitment on the Repricing
Effective Date. The French Borrower shall refinance all Tranche B
Euro Term Loans of Tranche B Euro Term Lenders that do not execute
and deliver Amendment No. 2 on or prior to the Amendment No. 2
Effective Date with the gross proceeds of the Additional Tranche B1
Euro Term Loans.
"(f) On the Repricing Effective Date, the French Borrower
shall pay all accrued and unpaid interest on the Tranche B Euro Term
Loans to the Tranche B Euro Term Lenders; provided, however, that
the existing Interest Periods of the Tranche B Euro Term Loans prior
to the Repricing Effective Date shall continue with respect to all
Tranche B1 Euro Term Loans on and after the Repricing Effective Date
and shall accrue interest at the Applicable Margin in effect on and
after the Repricing Effective Date (it being understood that the
foregoing proviso shall not prejudice the rights of Tranche B Euro
Term Lenders that do not execute and deliver Amendment No. 2 on or
prior to the Amendment No. 2 Effective Date or Additional Tranche B1
Euro Term Lenders to seek compensation pursuant to Section 2.16)."
(c) Section 2.01(b) is further amended by deleting the figure
"U.S.$200 million" in clause (iii) thereof and inserting "U.S.$220 million" in
replacement therefor.
(d) Section 2.02(c) is amended by deleting "three (3)" in the final
proviso thereof and inserting "six (6)" in replacement therefor.
(e) Section 2.05(b) is amended by deleting the figure "U.S.$200
million" in clause (iii)(A) thereof and inserting "U.S.$220 million" in
replacement therefor.
(f) Section 2.05(c) is amended by (i) inserting "(i)" immediately
after the words "Expiration Date." at the beginning of paragraph (c) thereof and
(ii) inserting the following new clause (ii) at the end of paragraph (c)
thereof:
7
"(ii) Notwithstanding the foregoing, any Borrower may request
the issuance of a Letter of Credit that expires at or prior to the close
of business on the date that is five (5) Business Days prior to the
Revolving Facility Maturity Date; provided that the Revolving L/C Exposure
in respect of Letters of Credit issued pursuant to this Section
2.05(c)(ii) shall not exceed U.S.$25 million at any one time outstanding."
(g) Section 6.01 is amended by deleting the figure "U.S.$40 million"
in paragraph (p) thereof and inserting the figure "U.S.$60 million" in
replacement therefor.
(h) Section 6.01 is further amended by (i) deleting the word "and"
at the end of paragraph (t) thereof, (ii) deleting the period at the end of
paragraph (u) thereof and inserting a semicolon in replacement therefor, (iii)
deleting the period at the end of paragraph (v) thereof and inserting "; and" in
replacement therefor and (iv) inserting the following new paragraph (x):
"(x) other unsecured Indebtedness of the Domestic Borrower and
its subsidiaries in an aggregate amount not to exceed U.S.$100 million, if
the Leverage Ratio is less than 3.50 to 1.00. For purposes of determining
whether Indebtedness is permitted to be incurred, created, assumed or
exist pursuant to this paragraph (x), the Leverage Ratio shall be measured
at the time of the incurrence, creation or assumption of such
Indebtedness, after giving effect to the incurrence thereof and the
application of the proceeds of such Indebtedness, calculated on a pro
forma basis as of the last day of the most recently ended fiscal quarter
in respect of which financial statements have been delivered pursuant to
Section 5.04."
(i) Section 6.04 is amended by (i) deleting the period at the end of
paragraph (s) thereof and inserting "; and" in replacement therefor and (ii)
inserting the following new paragraph (t) at the end thereof:
"(t) the Investment more fully described on Schedule 6.04(t),
in an aggregate amount, which shall be deemed to include the principal
amount of Indebtedness that is assumed pursuant to Section 6.01 in
connection with such Investment, not to exceed U.S.$65 million."
(j) Section 6.05 is amended by deleting clause (i) of the last sentence
thereof in its entirety and inserting following new clause (i) in replacement
therefor:
"(i)(A) prior to the Holdings Covenant Release Date, Holdings
shall at all times own, directly or indirectly, at least 85% of the Equity
Interests of each Borrower and (B) upon and after the Holdings Covenant
Release Date, the Domestic Borrower shall at all times own, directly or
indirectly, at least 85% of the Equity Interests of each other Borrower,
in each case, free and clear of any and Liens other than the Liens created
by the Security Documents,"
(k) Section 6.06 is amended by deleting the figure "U.S.$4.0
million" in paragraph (c) thereof and inserting the figure "U.S.$15.0 million"
in replacement therefor.
(l) Section 6.06 is further amended by (i) deleting the word "and"
at the end of paragraph (i) thereof, (ii) deleting the period at the end of
paragraph (j) thereof and inserting
8
"; and" in replacement therefor and (iii) adding the following new paragraph (k)
at the end thereof:
"(k) the Domestic Borrower may declare and pay dividends in an
amount equal to the net cash proceeds of any initial public offering of
the Equity Interests of the Domestic Borrower less the aggregate amount of
such net cash proceeds applied to redeem the Senior Subordinated Notes
pursuant to, and as permitted by, Section 6.09(b)."
(m) Section 6.09(b)(i) is amended in its entirety to read as
follows:
"(i) Make, or agree or offer to pay or make, directly or
indirectly, any payment or other distribution (whether in cash, securities
or other property) of or in respect of principal of or interest on the
Senior Subordinated Notes or any Permitted Subordinated Debt Securities,
or any payment or other distribution (whether in cash, securities or other
property), including any sinking fund or similar deposit, on account of
the purchase, redemption, retirement, acquisition, cancellation or
termination of the Senior Subordinated Notes or any Permitted Subordinated
Debt Securities (except for Refinancings permitted by Section 6.01(l)),
except for (A) payments of regularly scheduled interest, (B) with respect
to Permitted Subordinated Debt Securities, payments made solely with the
proceeds from the issuance of Equity Interests and (C) with respect to the
Senior Subordinated Notes, (x) payments made solely with the net cash
proceeds of an initial public offering of the Equity Interests of the
Domestic Borrower for the purpose of redeeming Senior Subordinated Notes
in accordance with the Senior Subordinated Notes Indenture, in an
aggregate amount not to exceed U.S.$100 million and (y) so long as no
Default or Event of Default has occurred and is continuing or would result
therefrom on and after the Repricing Effective Date, additional purchases
and redemptions of Senior Subordinated Notes (I) in an amount not to
exceed U.S.$50 million plus (II) an amount equal to U.S.$100 million less
the aggregate amount of any purchases and redemptions made pursuant to
clause (x) above; provided that, after giving effect to any such
additional redemptions pursuant to this clause (y), the Leverage Ratio
shall be less than 3.00 to 1.00 (in the case of purchases and redemptions
made as permitted under clause (y)(I)), or 3.50 to 1.00 (in the case of
purchases and redemptions made as permitted under clause (y)(II)), as
applicable, in each case calculated on a pro forma basis as of the last
day of the most recently ended fiscal quarter in respect of which
financial statements have been delivered pursuant to Section 5.04; or"
(n) Section 6.10(a) is amended by deleting the chart set forth
therein and replacing it in its entirety with the following:
Year Amount
---- ------
2005 $30,000,000
2006 $30,000,000
2007 $30,000,000
2008 $30,000,000
9
(o) Section 7.03 is amended by deleting the words ", and, in each
case, to contribute any such cash to the capital of the Domestic Borrower"
immediately before the parenthetical "(collectively, the `Cure Right')".
(p) Article VII is further amended by inserting the following new
Section 7.04 at the end thereof:
"SECTION 7.04. Holdings Covenant Release. Upon the occurrence
of the Holdings Covenant Release Date:
(a) all of the obligations of Holdings under each of the Loan
Documents shall automatically terminate and, thereafter, any failure on
the part of Holdings to comply with those obligations will not constitute
a Default or Event of Default;
(b) except as specifically amended elsewhere in Amendment No.
2 and Consent to the Credit Agreement or as set forth in clause (c) or (d)
of this Section 7.04, each reference in Article I to "Holdings", "Holdings
and the Subsidiaries", "Holdings or any Subsidiary" or "Subsidiary of
Holdings" shall be deemed to be a reference to "the Domestic Borrower",
"the Domestic Borrower and the Subsidiaries", "the Domestic Borrower or
any Subsidiary" or "Subsidiary of the Domestic Borrower", as applicable;
(c) each reference to "Holdings" in the definition of "Capital
Expenditures", "Holdings", and "Holdings LLC Agreement" shall remain
unchanged;
(d) each reference to "Holdings" in the definition of
"Acquisition Agreement Payment", "Collateral and Guarantee Requirement"
(other than the second reference thereto in clause (f) thereof, which
shall be amended to be a reference to the "Domestic Borrower"), "Domestic
Collateral Agreement", "ERISA Affiliate", "ERISA Event", "Excess Cash
Flow", "Interest Expense", "Management Group", "Multiemployer Plan", the
last sentence of "Net Proceeds", "Permitted Holder", "Plan", "Projections"
and in Section 1.03 shall be deleted (with any conforming changes being
deemed made as appropriate);
(e) (i) the obligation of Holdings to make representations and
warranties under Article III and the Collateral Agreements shall
automatically terminate, (ii) each reference to "Holdings" in Article III
(other than each such reference in Sections 3.05(b), 3.07(g), 3.07(h),
3.14(b), 3.15(iv), 3.15(v), 3.15(vi), 3.15(vii), 3.18 and the last
sentence of Section 3.15) shall be deleted (with any conforming changes
being deemed made as appropriate) and (iii) each reference to "Holdings"
in Sections 3.07(g), 3.07(h), 3.14(b), 3.15(iv), 3.15(v), 3.15(vi),
3.15(vii), 3.18 and the last sentence of Section 3.15 shall be amended to
be a reference to "the Domestic Borrower" (with any conforming changes
being deemed made as appropriate);
10
(f) (i) each reference to "Holdings" or "Holding" in Article V
(other than each such reference in Sections 5.01, 5.04(f), 5.10(c),
5.10(f), 5.11 and 5.14) shall be deleted (with any conforming changes
being deemed made as appropriate) and (ii) each reference to "Holdings" in
Sections 5.01, 5.04(f), 5.10(c), 5.10(f), 5.11 and 5.14 shall be amended
to be a reference to "the Domestic Borrower" (with any conforming changes
being deemed made as appropriate);
(g) (i) each reference to "Holdings" or "Holding" in Article
VI (other than each such reference in the last sentence of Section 6.01,
the second reference to "Holdings" in Section 6.05(k), Section 6.06(h),
Section 6.07(b)(ix) and Section 6.09(a)) shall be amended to be a
reference to "the Domestic Borrower" (with any conforming changes being
deemed made as appropriate), (ii) the last sentence of Section 6.01 is
deleted in its entirety, (iii) clause (b) of Section 6.08 is deleted in
its entirety and (iv) each reference to "Holdings" in Sections 6.06(h),
6.07(b)(ix) and 6.09(a), as well as the second reference to "Holdings" in
Section 6.05(k) shall be deleted (with any conforming changes being deemed
made as appropriate);
(h) (i) each reference to "Holdings" in Article VII (other
than the third reference to "Holdings" in Section 7.01(m) and Section
7.03) shall be deleted (with any conforming changes being deemed made as
appropriate) and (ii) each reference to "Holdings" in Section 7.03 and the
third reference to "Holdings" in Section 7.01(m) shall be amended to be a
reference to "the Domestic Borrower" (with any conforming changes being
deemed made as appropriate); and
(i) (i) each reference to "Holdings" in Sections 9.08 and 9.15
shall be deleted (with any conforming changes being deemed made as
appropriate), (ii) each reference to "Holdings" in Section 9.18 (other
than the third reference to "Holdings" therein) shall be deleted (with any
conforming changes being deemed made as appropriate) and (iii) the third
reference to "Holdings" in Section 9.18 shall be amended to be a reference
to "the Domestic Borrower".
(q) Upon the Repricing Effective Date, the Tranche B1 Euro Term
Loans shall have the same terms, rights, and obligations as the Tranche B Euro
Term Loans as set forth in the Loan Documents, except as modified by this
Amendment, and all references to "Tranche B Euro Facility", "Tranche B Euro
Installment Date", "Tranche B Euro Maturity Date", "Tranche B Euro Term
Borrowing", Tranche B Euro Term Lender", "Tranche B Euro Term Loan Commitment"
and "Tranche B Euro Term Loans" in the Loan Documents (other than those
references in the amendments to the Credit Agreement made hereby) shall be
deemed to be references to "Tranche B1 Euro Facility", "Tranche B1 Euro
Installment Date", "Tranche B1 Euro Maturity Date", "Tranche B1 Euro Term
Borrowing", Tranche B1 Euro Term Lender", "Tranche B1 Euro Term Loan
Commitment", respectively.
11
SECTION 2. Amendments to the Domestic Guarantee and Collateral
Agreement. The Domestic Guarantee and Collateral Agreement is, effective as of
the date on which the conditions precedent set forth in Section 4 have been
satisfied, hereby amended as follows:
(a) The definition of "Guarantors" is amended in full to read as
follows:
" `Guarantors' shall mean (a) prior to the Holdings Covenant
Release Date, Holdings, the Domestic Borrower and each Domestic
Subsidiary Loan Party and (b) upon and after the Holdings Covenant
Release Date, the Domestic Borrower and each Domestic Subsidiary
Loan Party."
(b) The Domestic Guarantee and Collateral Agreement is further
amended by (i) deleting the second reference to Holdings in Section 3.01 and
(ii) by replacing each reference to "Holdings" in Sections 3.03(b), 4.01(a) and
7.14(b) and the first reference to "Holdings" in Section 3.01 with a reference
to "the Domestic Borrower" (in each case, with any conforming changes being
deemed made as appropriate).
SECTION 3. Consent. Effective as of the date hereof and subject to
the satisfaction of the conditions precedent set forth in Section 4(a), each
Lender party hereto hereby consents to the automatic release of Holdings from
its obligations under the Domestic Guarantee and Collateral Agreement upon the
occurrence of the Holdings Covenant Release Date. Upon the occurrence of the
Holdings Covenant Release Date, all security interests and other liens granted
by Holdings in favor of the Secured Parties in the Collateral of Holdings
(including, without limitation, the pledge of the shares of the Domestic
Borrower) shall be released, and the Collateral Agent shall execute and deliver
to Holdings, at Holdings' expense, all documents that Holdings shall reasonably
request to evidence such release and shall assist Holdings in making any filing
in connection therewith.
SECTION 4. Conditions of Effectiveness. (a) The amendments set forth
in Sections 1(a)(ii) and (iv), 1(i), 1(l), 1(j), 1(m), 1(p) and 2(a) of this
Amendment, the amendment in Section 1(a)(xv) of this Amendment inserting the
definitions of "Holdings Covenant Release Date" and "Repricing Effective Date"
and the consent set forth in Section 3 of this Amendment shall become effective
as of the date when, and only when, (the "Amendment No. 2 Effective Date") the
Administrative Agent shall have received counterparts of this Amendment executed
by Holdings, each of the Borrowers and each of the Lenders or, as to any of such
Lenders, advice satisfactory to the Administrative Agent that such Lender has
executed this Amendment, and the Administrative Agent shall have additionally
received certified copies of all documents evidencing any necessary corporate
action and governmental approvals, if any, with respect to this Amendment, the
consent attached hereto (the "Consent") and the matters contemplated hereby and
thereby.
(b) Each other amendment set forth in Sections 1 and 2 of this
Amendment shall become effective as of the date when, and only when, (the
"Repricing Effective Date") each of the following conditions precedent have been
satisfied:
12
(i) Amendment No. 2 Effective Date. The Amendment No. 2
Effective Date shall have occurred.
(ii) Consummation of IPO. The initial public offering of
Equity Interests of the Domestic Borrower shall have been consummated.
(iii) Borrowing Request. The French Borrower shall have
provided the Administrative Agent with a Borrowing Request in accordance
with the requirements of Section 2.03 of the Credit Agreement prior to the
Repricing Effective Date (except that the three Business Day notice
requirement is hereby waived) with respect to the borrowing of the Tranche
B1 Euro Term Loans on the Repricing Effective Date.
(iv) Evidence of Indebtedness. Each Tranche B1 Euro Term
Lender shall have received, if requested, one or more promissory notes
payable to the order of such Lender duly executed by the French Borrower
in substantially the form of Exhibit L-2 to the Credit Agreement, as
modified by this Amendment, evidencing such Lender's Tranche B1 Euro Term
Loan.
(v) Interest, etc. Simultaneously with the making of the
Tranche B1 Euro Term Loans, the French Borrower shall have paid to all the
Tranche B Euro Term Lenders all accrued and unpaid interest on the Tranche
B Euro Term Loans to the Repricing Effective Date plus any loss or expense
pursuant to Section 2.16 of the Credit Agreement.
SECTION 5. Representations and Warranties of Holdings and the
Borrowers. Each of Holdings and the Borrowers represents and warrants as
follows:
(a) The execution, delivery and performance by Holdings and each of
the Borrowers of this Amendment and the performance by each of the Borrowers of
the Credit Agreement, as amended hereby, have been duly authorized by all
necessary corporate action.
(b) This Amendment has been duly executed and delivered by Holdings
and each of the Borrowers. This Amendment and the Credit Agreement, as amended
hereby, constitute the legal, valid and binding obligations of each of the
Borrowers, enforceable against each of the Borrowers in accordance with their
respective terms, subject to the effect of any applicable bankruptcy,
insolvency, reorganization, moratorium or similar law affecting creditors'
rights generally, and subject to the effects of general principles of equity
(regardless whether considered in a proceeding in equity or at law).
SECTION 6. Reference to and Effect on the Credit Agreement and the
other Loan Documents. (a) On and after the effectiveness of this Amendment, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement, and each reference in
the Notes and each of the other Loan Documents to "the Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement, shall mean and be a reference to the Credit Agreement, as amended by
this Amendment.
13
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described thereof do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents.
The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or Agent under any of the Loan Documents, nor
constitute a waiver of any provision of any of the Loan Documents.
SECTION 7. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
[Remainder of this page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
D-R INTERHOLDING, LLC,
as Holdings and as a Guarantor and
Pledgor (in each capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND GROUP INC., as the
Domestic Borrower and as a
Guarantor and Pledgor (in each
capacity)
By:
----------------------------------
Name:
Title:
D-R HOLDINGS (UK) LTD, as an Initial
Foreign Borrower
By:
----------------------------------
Name:
Title:
D-R HOLDINGS (France) S.A.S., as an
Initial Foreign Borrower
By:
----------------------------------
Name:
Title:
DRESSER-RAND LLC,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND COMPANY,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND GLOBAL SERVICES, L.L.C.,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND POWER LLC,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
CONSENT
Dated as of July __, 2005
Reference is made to (a) Amendment No. 2 and Consent to the Credit
Agreement and Amendment No. 1 to the Domestic Guarantee and Collateral
Agreement, each dated as of July __, 2005 (collectively, the "Amendment"), (b)
the Credit Agreement dated as of October 29, 2004 (as amended by Amendment No. 1
and Consent to the Credit Agreement, dated as of January 4, 2005 and as modified
by the Consent and Waiver Under the Credit Agreement dated as of May 13, 2005,
the "Credit Agreement") among D-R Interholding, LLC, as Holdings, Dresser-Rand
Group Inc., as Domestic Borrower, D-R Holdings (UK) Limited, as UK Borrower, D-R
Holdings (France) S.A.S., as French Borrower, the Lenders party thereto,
Citicorp North America, Inc., as Administrative Agent and certain other agents
and arrangers party thereto and (c) the other Loan Documents referred to
thereof. Capitalized terms not otherwise defined in this Consent have the same
meanings as specified in the Credit Agreement.
The undersigned, as parties to one or more of the Loan Documents,
each hereby consents to the execution, delivery and the performance of the
Amendment and agrees that each of the Loan Documents to which it is a party is,
and shall continue to be, in full force and effect and is hereby in all respects
ratified and confirmed as of the Amendment No. 2 Effective Date and the
Repricing Effective Date (each as defined in the Amendment), except that, on and
after the Amendment No. 2 Effective Date and the Repricing Effective Date (each
as defined in the Amendment), as applicable, each reference to "the Credit
Agreement", "thereunder", "thereof", "thereof" or words of like import referring
to the Credit Agreement shall mean and be a reference to the Credit Agreement,
as amended and otherwise modified by the Amendment.
This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York.
[Remainder of this page intentionally left blank]
DRESSER-RAND LLC,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND COMPANY,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND POWER LLC,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
DRESSER-RAND GLOBAL SERVICES, L.L.C.,
as a Guarantor and Domestic
Subsidiary Loan Party (in each
capacity)
By:
----------------------------------
Name:
Title:
