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Execution
Version
DRESSER
RAND GROUP INC.
PARENT
GUARANTY
Dated
as of December 28, 2007
PARENT
GUARANTY
PARENT
GUARANTY
PARENT
GUARANTY, dated as of December 28, 2007 (this "
Guaranty "),
by DRESSER RAND GROUP INC, a Delaware corporation (the "
Guarantor "),
to CITIBANK INTERNATIONAL PLC (PARIS BRANCH), a finance institution
established under the laws of England and qualified in France as a
credit establishment of the European Economic Area (the "
Lessor ").
Capitalized terms used herein and not defined herein shall have the
meanings ascribed to them in the Participation Agreement dated as
of the date hereof among the Lessor, Dresser-Rand S.A. (France)
(the "
Lessee "
or the "
Company "),
the Persons named therein as Note Holders and Citicorp North
America, Inc., as Agent (the "
Agent ")
(as the same may be amended from time to time, the "
Participation Agreement ").
Preliminary Statement
A.
The
Guarantor intends this Guaranty to be an inducement for
(i) the Lessor and the Agent to enter into the
transactions contemplated by the Operative Documents, and
(ii) the Note Holders to make Advances under the Notes,
and (iii) the Lessor to make the Investments, all of
which the Agent, the Lessor and the Note Holders would be
unwilling to do if the Guarantor did not execute and deliver
this Guaranty.
B.
The
Guarantor will derive substantial direct and indirect
hereafter from the transaction contemplated by the
Participation Agreement and the Other Operative Documents. It
is a condition precedent to the making of Investments by the
Lessor and Advances by the Note Holders under the
Participation Agreement from time to time that the Guarantor
shall have executed and deliver this Guaranty.
NOW,
THEREFORE, in consideration of the premises and intending to
be legally bound by this Guaranty, the Guarantor hereby agrees
to be bound as follows:
1.
Guaranty .
The Guarantor unconditionally guarantees and agrees with the Lessor
that (i) all Rent, the Residual Value Amount, the Termination
Value, all indemnification payments required to be made pursuant to
Section 9.14 of the Participation Agreement and all other sums
stated in the Operative Documents to the extent payable by the
Company thereunder will be promptly paid in full when due, whether
at stated maturity, by acceleration or otherwise, in accordance
with the provisions of the Operative Documents and (ii) the
Company will perform, comply with and observe all other
obligations, covenants, terms, conditions and undertakings of the
Company (as Lessee and in its capacity as Construction Agent)
contained in the Operative Documents.
2.
Nature of the Guaranty .
a)
This
Guaranty shall be irrevocable, and in all events shall be
continuing, unconditional and absolute, and if for any reason any
sums stated in the other Operative Documents to be payable by the
Company, or any part thereof, shall not be paid promptly when due,
or any other obligation, covenant, term, condition or undertaking
of the Company contained in any Operative Document shall not be
performed, complied with or observed in accordance with said
Operative Document, subject in each case, in respect of such
obligation to pay or perform, to the terms of the Operative
Documents, then in each such instance upon demand of payment,
performance, compliance or observance, made by the Lessor to the
Guarantor, the Guarantor shall pay, perform, comply with or observe
the same to or for the benefit of the Lessor pursuant to and in
accordance with the provisions of the Operative Documents,
regardless of any defenses or rights of set-off or counterclaim,
regardless of whether the Lessor shall have taken any steps to
enforce its rights against the Guarantor, the Company or any other
Person, to collect such sums, or any part thereof, and regardless
of any other condition or contingency. The Guarantor also agrees to
pay on demand to the Lessor such further amounts as shall be
sufficient to cover the reasonable costs and expenses of collecting
such sums, or part thereof, or of otherwise enforcing this
Guaranty, including, in any case, reasonable compensation to their
respective attorneys for all services rendered in that
connection.
(b)
Any
and all payments by the Guarantor hereunder shall be made free
and clear of and without deduction for any and all present or
future Charges and all liabilities with respect thereto. If
the Guarantor shall be required by Law to deduct any Charges
from or in respect of any amounts payable hereunder,
(i) the amounts payable by the Guarantor shall be
increased by the amount necessary so that after making all
required deductions (including deductions applicable to
additional sums payable under this Section 2(b)) the
Lessor receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the
Guarantor shall make such deductions and (iii) the
Guarantor shall pay the full amount deducted to the relevant
taxation authority or other Governmental Authority in
accordance with applicable Laws. Within fifteen (15) days
after the date of any deduction of any Charges, the Guarantor
shall furnish to the Lessor, and the Agent the original or a
certified copy of a receipt or other documentation evidencing
payment thereof as is reasonably acceptable to the
Lessor.
3.
Certain Waivers .
b)
The
Guarantor hereby unconditionally (i) waives any requirement
that the Agent, the Lessor and the Note Holders first make demand
upon, or seek to enforce remedies against, any other Person or any
of the collateral or property of such other Person before demanding
payment from, or seeking to enforce this Guaranty against, the
Guarantor; (ii) covenants that this Guaranty will not be
discharged except by complete satisfaction of all obligations of
the Company contained in the Operative Documents; (iii) agrees
that this Guaranty shall remain in full effect without regard to,
and shall not be affected or impaired by, any invalidity,
illegality, irregularity or unenforceability in whole or in part of
any other Operative Document (and the Guarantor hereby waives any
defense relating to the enforceability of the Operative Documents
or any provision contained therein) or except as expressly set
forth herein or in the Operative Documents, or any limitation of
the liability of the Company thereunder or any limitation on the
method or terms of payment thereunder which may now or hereafter be
caused or imposed in any manner whatsoever; (iv) waives
diligence, presentment and protest with respect to, and, except as
expressly provided herein or in the Operative Documents, any notice
of default in, the payment of any amount at any time payable under
or in connection with the Notes, the Investments or any of the
Operative Documents; and (v) agrees that each and every right,
power and remedy given under this Guaranty or any other Operative
Document shall be cumulative and not exclusive, and be in addition
to all other rights, powers and remedies now or hereafter granted
or otherwise existing.
(b)
Until
all obligations of the Company under the Operative Documents
have been indefeasibly paid in full, the Guarantor hereby
irrevocably waives any claim, remedy or right that it may now
have or hereafter acquire against the Company that arise from
the existence, payment, performance or enforcement of the
obligations of the Company under any other Operative Document,
including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of the
Agent, the Lessor or any Note Holder against the Company
whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without
limitation, the right to take or receive from the Company
directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security on account
of such claim, remedy or right. If any amount shall be paid to
the Guarantor in violation of the preceding sentence at any
time prior to the indefeasible cash payment in full of all
amounts payable under this Guaranty, such amount shall be held
in trust for the benefit of the Lessor, and shall forthwith be
paid to the Lessor and be credited and applied to the amounts
payable under this Guaranty. The Guarantor acknowledges that
it will receive direct and indirect benefits from the
financing arrangement contemplated by the Operative Documents
and that the waiver set forth in this Section 3 is
knowingly made in contemplation of such benefits.
Notwithstanding the foregoing, the obligation to hold amounts
in trust shall not have effect to the extent that it would
otherwise create or take effect as a charge or security
interest over such amounts.
4.
Absolute Obligations .
The obligations, undertakings and conditions to be performed or
observed by the Guarantor under this Guaranty shall not be affected
or impaired by reason of the happening from time to time of any of
the following with respect to the Operative Documents, all without
notice to, or the further consent of, the Guarantor:
(a)
the
waiver by the Agent, the Lessor, any Note Holder or any other
Person of the observance or performance by the Company or the
Guarantor of any of the obligations, undertakings or
conditions contained in any of the Operative Documents, except
to the extent
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