PARENT GUARANTY
Execution
Version
DRESSER
RAND GROUP INC.
Dated
as
of December 28, 2007
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-Xxxx X.X. (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 of such waiver;
(b) the
extension, in whole or in part, of the time for payment of any amount owing
or
payable under or with respect to any of the Notes, the Investments, the Loan
Agreement, or any other Operative Document or of any other sums or obligations
under or arising out of or on account of the Notes, the Investments, the Loan
Agreement or any other Operative Document except to the extent of such
extension;
(c) the
modification or amendment (whether material or otherwise) of any of the
obligations of the Company, the Lessor, the Guarantor or any other guarantor
under any Operative Document, except to the extent of such modification or
amendment;
(d) the
taking or the omission of any of the actions referred to in any other Operative
Document (including, without limitation, the giving of any consent referred
to
therein);
(e) any
failure, omission, delay or lack on the part of the Agent, the Lessor, any
Note
Holder, or any other Person to enforce, assert or exercise any right, power
or
remedy conferred on the Agent, the Lessor, any Note Holder or any other Person
in any of the Operative Documents or any action on the part of the Agent, the
Lessor, any Note Holder or any other Person granting indulgence or extension
in
any form;
(f) the
release or discharge of the Agent, the Lessor, the Company or any other Person
from the performance or observance of any obligation, undertaking or condition
to be performed by the Agent, the Company or any other Person under or with
respect to any Notes, the Investments or any other Operative Document by
operation of Law;
(g) any
action, inaction or election of remedies by the Agent, the Lessor, a Note Holder
or any other Person which results in any impairment or destruction of any
subrogation rights of the Guarantor, or any rights of the Guarantor to proceed
against any other Person for reimbursement;
(h) the
surrender by the Agent, the Lessor, any Note Holder or any other Person of
any
security at any time held for the performance or observance of any of the
agreements, covenants, terms or conditions contained in the Notes or any of
the
other Operative Documents;
(i) any
event
or circumstance which might otherwise constitute a legal or equitable discharge
or defense of a guarantor, indemnitor or surety under the laws of the State
of
New York or any other applicable jurisdiction;
(j) any
other
circumstances whatsoever (with or without notice to or knowledge of the
Guarantor) which constitutes, or might be construed to constitute, an equitable
or legal discharge of the Guarantor with respect to its obligations hereunder
or
under the other Operative Documents, in bankruptcy or in any other instance,
except based on payment or performance;
(k) any
change in circumstances, whether or not foreseen or foreseeable, whether or
not
imputable to the Guarantor, any Note Holder, the Agent or the Lessor and whether
or not such change in circumstances shall or might in any manner and to any
extent vary the risk of the Guarantor hereunder;
(l) any
sublease or other use of any of the Property, or any sale, transfer,
disposition, grant of security interest, mortgaging or assignment by the Company
of any of its interests, rights or obligations, in, to and under the Lease,
or
with respect to the Property or any part thereof, whether or not permitted
by
the terms of any of the Operative Documents;
(m) any
assignment or grant of security interest by any Note Holder or the Lessor of
all
or any part of such Note Holder's or the Lessor's right, title and interest
in
or in respect of its Notes, Investments or in the Property;
(n) any
sale
by the Lessor, or its successors or assigns, of the Property or any part thereof
pursuant to the terms of the Operative Documents, subject to the application
of
the proceeds thereof in accordance with the Operative Documents;
(o) any
consolidation or merger of the Company, whether permitted under the terms of
the
Participation Agreement or otherwise, or the sale, transfer or other disposition
by the Company of all or substantially all of the assets and/or liabilities
of
the Company or any change in the ownership of the equity interests of the
Company;
(p) the
voluntary or involuntary liquidation, dissolution, receivership, insolvency,
bankruptcy, assignment for the benefit of creditors, reorganization, the
arrangement, composition or readjustment of the Company, or any other similar
proceeding affecting the status, existence, assets or obligations of the
Company, or the limitation on damages for the breach of, or the disaffirmation
of, any of the Operative Documents in any such proceeding;
(q) any
invalidity or unenforceability, for any reason, of the Lease or any other
Operative Document, or of any provision thereof, or of any of the obligations,
or any defect in the Lessor's title to, or any security interest granted in,
the
Property or any part thereof; or
(r) any
other
cause, whether similar or dissimilar to the foregoing;
it
being
the intention of the Guarantor that this Guaranty be absolute and unconditional
in any and all circumstances and that this Guaranty shall be discharged only
by
the indefeasible payment in full of all sums and the performance of all
obligations with respect to which this Guaranty relates.
5. Events
of Default.
An
Event of Default under the Participation Agreement shall constitute an Event
of
Default hereunder.
6. Representation
and Warranties.
The
Guarantor represents and warrants to the Lessor, the Agent and the Note Holders
that the following shall be true and correct on and as of the date hereof and
true and correct in all material respects on and as of each Funding Date on
which a Funding shall occur (except to the extent such representations and
warranties relate expressly to an earlier date):
(a) The
execution, delivery and performance by the Guarantor of this Guaranty are within
the Guarantor’s corporate powers, have been duly authorized by all necessary
corporate action and do not contravene (i) the Guarantor’s charter or by-laws or
(ii) any law or any contractual restriction binding on or affecting the
Guarantor, except where such contravention would not reasonably be expected
to
cause a Material Adverse Effect.
(b) The
Guaranty is a legal, valid and binding obligation of the Guarantor enforceable
against the Guarantor in accordance with its terms, except as enforceability
thereof may be limited by the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors’ rights generally
and by general principles of equity.
(c) the
representations and warranties applicable to the Guarantor set forth in Sections
3.01(a), (b) and (c), 3.04 through 3.10, 3.12 through 3.15 and 3.18 through
3.20
(each as amended, supplemented or otherwise modified from time to time) of
the
Revolving Credit Agreement, incorporated herein by reference (the “Incorporated
Representations”),
mutatis
mutandis,
are
true and correct in all material respects as if made on the date hereof. For
purposes of this representation, the terms defined in the Revolving Credit
Agreement and used in any of the Incorporated Representations are incorporated
herein by reference.
7. Affirmative
Covenants.
The
affirmative covenants applicable to the Guarantor set forth in Sections 5.01
through 5.07, 5.09 and 5.11 (each as amended, supplemented or otherwise modified
from time to time) of the Revolving Credit Agreement, are incorporated herein
by
reference (the “Incorporated
Affirmative Covenants”),
mutatis
mutandis.
For
purposes of this Section 7, the terms defined in the Revolving Credit Agreement
and used in any of the Incorporated Affirmative Covenants are incorporated
herein by reference.
8. Negative
Covenants.
The
negative covenants applicable to the Guarantor set forth in Sections 6.01
through 6.14 (each as amended, supplemented or otherwise modified from time
to
time) of the Revolving Credit Agreement, are incorporated herein by reference
(the “Incorporated
Negative Covenants”),
mutatis
mutandis.
For
purposes of this Section 8, the terms defined in the Revolving Credit Agreement
and used in any of the Incorporated Negative Covenants are incorporated herein
by reference..
9. Waiver
of Notice of Acceptance.
Notice
of acceptance of this Guaranty and notice of the execution and delivery of
any
other instrument referred to in this Guaranty are hereby waived by the
Guarantor.
10. Reinstatement.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time payment, or any part thereof, of any of the obligations to be paid
hereunder is rescinded or must otherwise be restored or returned by any Person,
upon the insolvency, bankruptcy or reorganization of the Guarantor, or
otherwise, all as though such payment had not been made. The provisions of
this
Section shall survive the termination of this Guaranty.
11. Term.
This
Guaranty shall remain in full force and effect until payment in full of all
sums
payable by the Company under the Operative Documents, the termination of all
Commitments and the performance in full of all obligations of the Guarantor
in
accordance with the provisions of this Guaranty, subject to reinstatement as
provided in Section 10. Subject as aforesaid, the Guarantor's payment
obligations hereunder shall be deemed satisfied upon the actual and timely
receipt by the Agent of all amounts payable hereunder in full in cash. This
Guaranty is a guaranty of payment and performance when due and not a guaranty
of
collection.
8
PARENT
GUARANTY
12. Severability.
In case
any provision of this Guaranty or any application thereof shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions and any other application thereof shall not in any way
be
affected or impaired thereby.
13. Time
of the Essence; Successor; No Oral Modification; Enforcement.
TIME IS OF THE ESSENCE IN THIS GUARANTY AND THE TERMS HEREIN SHALL BE SO
CONSTRUED.
This
Guaranty shall be binding upon the Guarantor and its successors and shall inure
to the benefit of, and be enforceable by, the Lessor and its respective
successors and assigns. This Guaranty may not be changed, waived, discharged
or
terminated orally, but only by a statement in writing signed by the Guarantor
and the parties required pursuant to Section 9.04 of the Participation
Agreement. This Guaranty may be enforced as to any one or more defaults either
separately or cumulatively.
14. GOVERNING
LAW.
c) THIS
GUARANTY SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH,
THE
LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 51401 OF THE GENERAL
OBLIGATIONS LAW (OR ANY SIMILAR SUCCESSOR PROVISION THERETO) BUT EXCLUDING
ALL
OTHER CONFLICT-OF-LAW RULES.
15. Submission
to Jurisdiction. d) The
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and
any
appellate court from any thereof, in any action or proceeding arising out of
or
relating to this Guaranty or any other Operative Document, or for recognition
or
enforcement of any judgment, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to
the extent permitted by law, in such federal court. The Guarantor agrees that
a
final judgment in any such action or proceeding shall be conclusive and may
be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Guaranty shall affect any right that the Note
Holders, the Agent or the Lessor may otherwise have to bring any action or
proceeding relating to this Guaranty in the courts of any
jurisdiction.
(b) The
Guarantor irrevocably and unconditionally waives, to the fullest extent it
may
legally and effectively do so, any objection that it may now or hereafter have
to the laying of venue of any suit, action or proceeding arising out of or
relating to this Guaranty or any other Operative Document in any New York State
or federal court. The Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
9
PARENT
GUARANTY
16. Notices.
All
notices, demands, requests, consents, approvals and other instruments hereunder
shall be given in the manner and at the appropriate address set forth in the
Participation Agreement or at such other address as such party shall designate
by notice to each of the other parties hereto.
17. Waiver;
Reliance.
The
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the amounts which the Guarantor is obligated to pay hereunder
and notice of or proof of reliance by the Agent, the Lessor or the Note Holders
upon this Guaranty or acceptance of this Guaranty. The indebtedness evidenced
by
the Operative Documents shall conclusively be deemed to have been created,
contracted, incurred, renewed, extended, amended or waived in reliance upon
this
Guaranty, and all dealings between the Guarantor, the Agent, the Lessor and
the
Note Holders shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guaranty.
18. Construction.
The
rules of construction set forth in Appendix A to the Participation
Agreement apply to this Guaranty.
19. Revolving
Credit Agreement.
If the
Revolving Credit is terminated or is otherwise no longer in effect, the
Incorporated Representations, the Incorporated Affirmative Covenants and the
Incorporated Negative Covenants shall be deemed to be the representations and
warranties, affirmative covenants and negative covenants, as applicable, in
effect immediately prior to the termination thereof.
10
PARENT
GUARANTY
IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed
as
of the day and year first above written.
|
DRESSER
RAND GROUP INC.
|
||
| |
|
|
| By: | ||
|
Name:
|
||
| Title | ||
11
